Carter v. Thompson

• Decision Date: 14 January 2020
• Docket Number: No. A-18-1189.,A-18-1189.
• Parties: CHRISTINA M. CARTER, APPELLEE, v. JASON A. THOMPSON, APPELLANT.
• Court: Nebraska Court of Appeals

CHRISTINA M. CARTER, APPELLEE, v. JASON A. THOMPSON, APPELLANT.

No. A-18-1189.

NEBRASKA COURT OF APPEALS

January 14, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT.R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge.Affirmed in part, and in part reversed and remanded with directions.

Darren J. Pekny and Annie E. Mathews, of Johnson & Pekny, L.L.C., for appellant.

Terrance A. Poppe and McKynze P. Works, of Morrow, Poppe, Watermeier & Lonowski, P.C., for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

MOORE, Chief Judge.

INTRODUCTION

Jason A. Thompson appeals from the order of the district court for Lancaster County, which modified his child support obligation previously awarded in the decree dissolving his marriage to Christina M. Thompson, now known as Christina M. Carter.On appeal, Jason assigns error to the court's failure to employ a joint custody calculation in modifying child support, failure to allow a deduction for travel expenses associated with Jason's parenting time, and the retroactive modification of his child support obligation.In addition to seeking modification of the decree on various grounds, the parties filed opposing contempt actions, and Jason also appeals from the court's determination that he was in contempt, and Christina was not in contempt, of certain provisions of the original divorce decree and/or a subsequent amended decree.For the reasons set forth below, we affirm the order on the issues raised in the modification and contempt trial.However, we reverse the separate amended purge order and remand with directions for the district court to make express findings regarding Jason's ability to comply with the order.

BACKGROUND

The parties were married in 2006 and divorced in 2014.They have one minor child, born in 2009.The divorce proceedings occurred in Douglas County.Christina had resided in Douglas County for more than 1 year prior to filing her complaint for dissolution of marriage, but she was living in Lincoln, Nebraska, when she filed her complaint and at the time of the decree.Jason resided in Omaha, Nebraska, at the time the decree was entered.The modification and contempt proceedings that are the subject of the present appeal occurred in Lancaster County.At the time of the modification/contempt trial at issue here, Christina continued to reside in Lincoln and Jason resided in Gretna, Nebraska.

The dissolution trial was held in November 2013 and March 2014, but the decree was not entered until the end of October.Prior to entry of the decree, Christina sought to hold Jason in contempt for violation of certain temporary orders.A hearing in that contempt action was held prior to entry of the decree, and on November 3, the district court entered an order, finding Jason in contempt for failure to pay his share of daycare expenses totaling $3,960.

On October 31, 2014, the district entered a decree dissolving the parties' marriage (decree was admitted into evidence in the current modification and contempt proceedings as exhibit 52).As relevant to the present appeal, the decree stated:

2.CHILD CUSTODY, SUPPORT AND VISITATION:The parties have entered into a Partial Parenting Plan.The Court hereby approves the Partial Parenting Plan and attaches it to this Decree as Exhibit A and incorporated herein with the same full force and effect as if all terms of the Parenting Plan were set forth separately in this Decree in their entirety with the following changes to become a part hereof:

a. Parenting Plan:[Christina] and [Jason] shall be awarded joint legal custody.[Christina] shall be awarded the primary physical possession of the minor child.

1.[Jason] shall have regular parenting time with the minor child every other weekend from Thursday at 6:00 p.m. to Sunday at 7:00 p.m.

2.[Jason] shall be given three consecutive weeks of parenting time during the school summer vacation.This shall begin at 12:00 p.m. on the Sunday starting the third week of summertime vacation and end at 12:00 p.m. on the Sunday at the end of the three week and one day period.Each party is allowed two consecutive weeks of uninterrupted vacation time with the minor child during the summer school break.[Jason] is to exercise his two interrupted [sic] consecutive weeks of parenting time with the minor child during the three week period where he has possession of the minor child.[Jason] is to give 60 days [of] notice to [Christina] as to when he wants to exercise his three weeks of summer vacation.

Paragraph 7B of the attached Partial Parenting Plan titled 'Vacation' is hereby declared void in its entirety.

(Emphasis in original.)The parenting plan portion of the decree set forth other provisions including that the parties were each allowed two phone calls per day when the child was in the other party's possession and that the parties were to meet at the halfway point between their residences for parenting time exchanges.The court ordered Jason to pay child support of $320 per month.It also ordered the parties to each pay 50 percent of employment related daycare expenses on behalf of the child.The court awarded Christina a judgment of $4,132 against Jason for past due daycare expenses.The only provision of the property division portion of the decree relevant to the present appeal is the court's determination that both parties were responsible for "one half of any tax amount occurring as the result of an IRS forgiven debt."The court stated that there had been no evidence presented indicating "what the exact current amount of IRS debt is."Accordingly, the court determined that the parties were each liable for 50 percent.

One of the issues in the present contempt proceedings has been what portions of the partial parenting plan remained in effect after entry of the decree and the subsequent amended decree.The partial parenting plan attached to the decree provided as follows with respect to regular and vacation parenting time:

7.[Christina] and [Jason] agree on the following parenting time arrangements:

A. [Jason] shall have parenting time on alternating weekends.Prior to [the child] star[t]ing kindergarten, the weekend parenting time will start on Thursday evening at 6:00 p.m. and conclude on Sunday evening at 7:00 p.m.After [he] starts kindergarten, the weekend parenting time will start on Friday at 6:00 p.m. and conclude on Sunday at 7:00 p.m.However, if [the child] does not have school on the Friday preceding [Jason's] weekend, parenting time for that weekend will start on Thursday at 6:00 p.m.

[Christina] shall have parenting time for the remainder of the week and weekends except as set forth above for [Jason's] parenting time.

B.Vacation: Each parent shall have up to fourteen (14) days of vacation parenting time each year with the minor child.Each parent shall provide a minimum of sixty (60) days [of] notice of the dates he/she intends to exercise vacation parenting time.Vacation parenting time cannot conflict with the holiday schedule and cannot conflict with the school schedule without the consent of both parties.When parenting time includes leaving the Omaha area for travel, telephone and address information, and a travel itinerary shall be provided to the other parent.

Prior to [the child] starting kindergarten, vacation parenting time cannot exceed seven (7) days.After the start of kindergarten, parenting time can exceed seven (7) days in one vacation.At no time, can vacation parenting time be tacked onto regular weekly parenting time or holiday parenting time.

The record on appeal does not include any postdissolution motions the parties might have filed or the bill of exceptions from any postdissolution hearings, but the evidence in the current modification/contempt proceedings indicates that the parties sought clarification as to some part of the decree, after which the district court entered a second decree, labeled as "DECREE OF DISSOLUTION OF MARRIAGE NUNC PRO TUNC."This second decree, however, makes substantive changes in addition to correcting certain clerical errors, and is not properly a nunc pro tunc order.SeeIn re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651(2017)(order nunc pro tunc differs from order substantively amending or vacating court's prior order; purpose of order nunc pro tunc is to correct clerical or formal errors in order to make record correctly reflect judgment actually rendered by court).See, also, Neb. Rev. Stat. 25-2001(3)(Reissue 2016).Throughout this opinion, we have referred to this order (admitted into evidence in the modification and contempt proceedings as exhibit 53) as the "January 2015 amended decree" or the "amended decree."

The amended decree, entered by the district court on January 27, 2015, is essentially identical to the original decree, except for certain substantive (and a few clerical) changes.As relevant to the present appeal, the amended decree included the following parenting plan provisions (new language underscored; former language struck through):

a. Parenting Plan:[Christina] and [Jason] shall be awarded joint legal custody.[Christina] shall be awarded the primary physical possession of the minor child.

1.[Jason] shall have regular parenting time with the minor child every other weekend from Thursday at 6:00 p.m. to Sunday at 7:006:00 p.m.

2.[Jason] shall be given three consecutive weeks of parenting time during the school summer vacation.This shall begin at 12:00 p.m. on the Sunday starting the third week of summertime vacation and end at 12:00 p.m. on the Sunday at the end of the three week and one day period.

3.Each party is allowed two consecutive weeks of uninterrupted vacation time with the minor child during the summer school break.[Jason] is to exercise his two uninterrupted consecutive weeks of parenting

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