Coffey v. Coffey, A-02-051.

CourtCourt of Appeals of Nebraska
Citation11 Neb. App. 788,661 N.W.2d 327
Docket NumberNo. A-02-051.,A-02-051.
PartiesStacy A. COFFEY, now known as Stacy A. Ryan, Appellant and Cross-Appellee, v. J. Michael COFFEY, Appellee and Cross-Appellant.
Decision Date13 May 2003

Kathleen K. Rockey, of Copple, Rockey & McGough, P.C., Norfolk, and William G. Dittrick, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, L.L.P., Omaha, for appellant.

John S. Slowiaczek and Virginia A. Albers, of Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O., Omaha, for appellee.

SIEVERS, INBODY, and MOORE, Judges.

MOORE, Judge.

I. INTRODUCTION

Stacy A. Coffey, now known as Stacy A. Ryan, appeals from an order by the district court for Douglas County, which terminated the joint custody arrangement in the decree of dissolution and awarded custody of the parties' minor children to J. Michael Coffey, subject to Stacy's specific visitation. Stacy asserts error to the award of custody, visitation, and child support; the assignment of bank accounts held for the benefit of the children; and orders sealing the court file. In Michael's cross-appeal, he assigns error with regard to fees for his own attorneys and fees for the guardian ad litem (GAL) and the GAL's attorney.

II. BACKGROUND

The parties were married on April 19, 1985, and divorced on November 24, 1997. Four children, Megan, John Ryan (Ryan), and twins Sean and Timothy were born to the marriage on November 14, 1987, February 23, 1989, and June 5, 1991, respectively. The parties were granted joint shared custody of the children, pursuant to their settlement agreement as approved by the district court. The decree provided that the parties would agree to the amount of time spent between the two homes, but it was contemplated that the children would spend approximately 60 percent of their time with Stacy and 40 percent with Michael. Michael was to have possession of the children from Wednesday, after school or early Wednesday morning when the children were not in school, until Friday morning, when the children would return to school or to Stacy's home when not in school. Michael was also to have the children every other week on Friday until a reasonable time on Sunday afternoon or early Sunday evening. The parties agreed to split possession of the children during the summer so that each party had the children for approximately 50 percent of the time. At the time of the modification trial, Megan was 14, Ryan was 12, and the twins were 10 years old. Megan and the twins were attending a parochial school, while Ryan, who has learning disabilities, was attending a private school. Because of those disabilities, Ryan requires extra assistance from his teachers at school and from his parents at home in order to complete his homework assignments, and he benefits from structure and consistency in his daily routine. Subsequent to the entry of the decree, the parties agreed to allow Ryan to go home with Stacy on Wednesday and Thursday after school to facilitate consistency in Ryan's environment for completing his homework. Stacy then returns Ryan to Michael's home on Wednesday and Thursday evenings.

The record reflects that the joint custody arrangement deteriorated between the time of the decree and the filing of Stacy's application for modification. The parties have had repeated difficulty in communicating with one another over issues, including scheduling doctor's appointments, funding a joint account provided for in the decree and used for payment of the children's expenses, supervision and completion of the children's homework assignments, and other issues related to the children's basic needs. The record is replete with various faxed and written communications between the parties on these and other issues, illustrating the deterioration of their ability to cooperate amicably toward resolution of these issues. The record shows that at least some of the children's grades suffered during this period, and the evidence suggests that the midweek transfer of the children between the parties' residences has made it more difficult for the children to keep track of homework assignments and personal items.

The child support provision in the decree reflected the parties' agreement to deviate from the Nebraska Child Support Guidelines. The parties agreed to establish a joint checking account with an initial contribution of $1,000 each, and thereafter, Stacy was to deposit $600 per month and Michael was to deposit $1,200 per month. Either party was allowed to pay child-related expenses, as specified in the decree, from the account. Each year, during the month of August, the parties were to review with each other the expenses for the year to determine whether the amounts being contributed were sufficient to cover the children's expenses.

At the time of the divorce decree, Michael was employed as an attorney, and he subsequently became a district court judge. Michael's gross monthly income at the time of the modification trial was approximately $8,556, and his net monthly income was approximately $5,407. Michael's income tax returns for 1998, 1999, and 2000 showed adjusted gross income of $70,904, $76,548, and $91,676, respectively.

Stacy was not employed outside the home at the time of the modification trial. Stacy was employed full time in pharmaceutical sales in 1997. In 1998, she took part-time contracts to be more flexible for the children and worked approximately 25 to 30 hours per week in 1998, 1999, and 2000. In 2001, Stacy became employed by a different company in the area of pharmaceutical sales. Stacy indicated that her contract with that company ended in late April 2001 and that she has not obtained another contract since that time. Stacy testified that her parents are willing to help her financially if she has custody of the children.

In the divorce decree, Stacy was awarded, as separate premarital or nonmarital property, her interest in Streck Laboratories (Streck Labs), which interest was 1,100 shares valued at approximately $250,000, and her interest in the Ryan Family Limited Partnership (family partnership), which interest was valued at $25,000. Streck Labs is a subchapter S corporation wholly owned by Stacy's family. The divorce decree indicated it was anticipated that the family partnership would begin providing Stacy annual income in approximately 8 years. In late December 1997, Stacy received a distribution from Streck Labs in the approximate amount of $90,000. For the years 1998, 1999, and 2000, Stacy's tax returns show passive income from both Streck Labs and the family partnership. Stacy's adjusted gross income for 1998, 1999, and 2000 was $150,627, $170,326, and $55,954, respectively.

Stacy filed a petition to modify the decree of dissolution on March 21, 2001, requesting sole custody of the parties' children, subject to visitation by Michael. In Stacy's petition, she alleged that a material change in circumstances had occurred since the entry of the decree, which change materially affected the best interests of the parties' children. Stacy's petition to modify was in excess of 20 pages in length and was amended on two occasions during the course of these proceedings. We will not repeat the specific allegations of her petitions here, except to state Stacy alleged that Michael had repeatedly violated the terms of the parenting plan contained in the decree, that Michael had been unable to cooperate with her sufficiently to make the joint custody arrangement work, that Michael's conduct had interfered with Stacy's ability to effectively parent the children, and that Michael's failure to abide by the terms of the parenting plan had negatively impacted Stacy's relationship with the parties' children and had been detrimental to the children's best interests. Michael filed a responsive pleading and cross-petition, in which he denied that a material change in circumstances had occurred but sought sole custody of the parties' children in the event that the court determined that such a change had occurred. A GAL was appointed for the children. The parties' petitions to modify were heard by the court on November 26 through 30. Other procedural and factual matters relevant to the resolution of this appeal will be recited below as necessary.

The district court entered an order of modification on December 12, 2001, finding that a material change in circumstances had occurred which necessitated termination of the joint custody arrangement and parenting plan set forth in the decree. The court found that the joint and shared custody arrangement and corresponding parenting plan established by the parties had failed. The court stated that the evidence showed that the parties had been unable to agree on or resolve many of the most basic parenting matters relating to the children, including schooling, transportation, time spent by the parties with the children, and the children's activities. The court found that while there generally had been communication between the parties, most of that communication had been negative and often impersonal through the use of written correspondence and facsimiles. The court found that there had been a lack of trust between the parties, as exemplified by Stacy's engaging private investigators to conduct surveillance of Michael and by Michael's tape-recording telephone conversations with Stacy despite her expressed wishes to the contrary. The court further found that the children had not benefited from being shuttled between two households in the same community without having a primary residence. The court determined that this arrangement was not in the children's best interests because of the parties' inability to make the parenting plan work.

After determining that a material change in circumstances had occurred, the district court reviewed the considerations of Neb.Rev.Stat. § 42-364(2) (Reissue 1998) and made specific findings with respect to those considerations. The court...

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