Cohrs v. Bruns
| Decision Date | 08 December 2015 |
| Docket Number | No. A-14-740.,A-14-740. |
| Court | Nebraska Court of Appeals |
| Parties | DAN COHRS, APPELLEE, v. LANA SUE BRUNS, APPELLANT. |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge. Affirmed in part, and in part reversed and remanded with directions.
Stephanie Weber Milone for appellant.
Jon J. Puk, of Woodke & Gibbons, P.C., L.L.O., for appellee.
Lana Sue Bruns (Lana) appeals and Dan Cohrs (Dan) cross appeals from a modification order by the district court for Douglas County which, among other things, modified the custody and parenting time of Lana and Dan's minor child, increased the amount of Dan's monthly child support obligation, and denied Lana's request to remove the child from Nebraska to Colorado. Because we find that the district court erred in the determination of Dan's income, the calculation of modified child support, and the date of retroactivity of the child support modification, we reverse those portions of the order and remand with directions to the trial court. Finding no abuse of discretion by the court in the remaining modification order, we affirm in all other respects.
Dan and Lana are the parents of a daughter Karsten born in June 2003. Dan and Lana were never married; in fact, Karsten was born to Lana during Dan's marriage to his wife Chris. Dan and Chris remain married and are the parents of a son Drake born in October 1996. Dan and Chris live in Logan, Iowa. Lana lives in Omaha, Nebraska with Karsten. Karsten attends a private parochial school in Council Bluffs, Iowa. Lana and Dan both work for United Airlines at Eppley Airfield in Omaha. Lana is single but is in a relationship with a man living in the Denver, Colorado metro area.
On March 10, 2005, the district court for Douglas County entered a paternity decree, awarding joint legal custody of Karsten to Dan and Lana, with Lana being awarded primary physical care of Karsten subject to Dan's visitation rights as specified in the Parenting Plan agreed to by the parties and incorporated into the original decree. The Parenting Plan specifically provided that Dan would have parenting time with Karsten every other weekend, starting at 2:00 p.m. on Friday and continuing until 8:00 p.m. on Sunday. The plan also provided that once Karsten reached school age, Dan will be allowed on certain weekdays to pick up Karsten from school at 3:30 p.m. and return her to Lana at 8:00 p.m. the same day. Additionally, the plan established visitation schedules for certain holidays, birthdays, and summer break. The plan, as later clarified, provided that Dan and Lana shall have joint decision-making power concerning Karsten's education, religion, medical, and other major decisions. The court also ordered Dan to pay child support of $400 per month and determined that Lana could claim the tax exemption for Karsten.
On October 25, 2010, Lana filed a complaint to modify the decree. First, Lana sought several modifications of the original decree with regard to the visitation arrangement. Lana requested that an order be entered prohibiting Karsten from sharing a bedroom with Drake during her visits with Dan, prohibiting Chris from being present during visitation, and restraining Dan and Chris from making any derogatory remarks to Karsten or in the presence of Karsten regarding Lana. To support these requests, Lana alleged that Karsten was being exposed to a very negative and hostile environment at Dan's home during weekend visits, that Chris has made harmful derogatory remarks about Lana in the presence of Karsten (many of which were allegedly made directly to Karsten), and that Chris has restricted contact between Karsten and Lana during weekend visitation by taking away the cell phone Lana has provided to Karsten and refusing to return the phone until visitation is over. Lana sought a "right of first refusal" to prevent Karsten from being left with Chris during Dan's weekend visits. Lana also requested that the return time for Karsten on Sundays be modified to 5:00 p.m. rather than 8:00 p.m. because 8:00 p.m. is too late for Lana to help Karsten with homework and to prepare her for the school week.
Next, Lana requested that Dan's child support obligation be increased based on the current income of the parties, alleging that Dan's income has increased since the original order, and that such modification be effective on the date of the filing of the complaint to modify. Lana also requested that Dan be required to pay for his portion of Karsten's school tuition and for Lana's attorney fees.
Dan answered and filed a counterclaim, seeking modifications in custody and visitation. First, Dan argued that it would be in the best interests of Karsten to be placed in the joint legalcustody of the parties (as was the case in the original decree) but that primary physical custody be transferred to Dan. In the alternative, Dan requested that the Parenting Plan be modified to allow for expanded visitation by Dan, including an award of joint physical custody. To support his counterclaim for change in custody, or expanded visitation in the alternative, Dan alleged a material and substantial change in circumstances based on Karsten expressing a desire to live and spend more time with Dan at his residence; that Dan has, at the request of Lana, taken Karsten on numerous occasions and exercised substantially more parenting time than established in the Parenting Plan; that Karsten attends school in Iowa where Dan lives; that both Dan and Lana share an employer and have the same work shift which allows for both parents to provide for Karsten's needs and education; that Lana has made substantial derogatory, false, and malicious statements to Karsten and manipulates Karsten resulting in damage to her relationship with Dan and Chris; and that Lana otherwise acts in such a way that is not in the best interests of Karsten.
Beyond his requested change in custody and visitation, Dan also asked that the court award him the child dependency tax exemption for Karsten, along with an award of attorney fees for having to defend Lana's complaint to modify.
On March 23, 2011, Lana filed an amended complaint for modification in which she also requested that she be granted permission to remove Karsten from Nebraska to Colorado. Lana alleged that she has applied for a transfer to Denver, Colorado with her employer, and that Lana and her significant other, who resides in Denver, intend to get married. Lana alleged that such removal and continued custody with Lana would be in Karsten's best interests. Dan filed an answer to the amended complaint for modification, denying Lana's request for removal and otherwise renewing his prayer for relief contained in his original answer and counterclaim.
A temporary order was entered by the court on October 31, 2011. The order provided that Dan must be present with Karsten during all visits, that Karsten not be left alone with Chris or Drake for longer than one hour, that Dan and Lana both receive a "right of first refusal" if the other is going to be unable to personally care for Karsten for a period of 3 hours or more, that Karsten may not sleep in the same room as Drake, that Dan and Lana agree not to discuss differences in the presence of Karsten, that Karsten have access to a cell phone during visits with Dan, and that the parties and Karsten shall attend family counseling with Dr. Tom Haley (Haley).
Between Lana's original complaint to modify and the court's final modification of the decree (a span of approximately 3 years and 9 months), numerous motions were filed by the parties. These included motions by Lana to compel discovery, to amend the scheduling order, to discontinue the court-ordered therapy sessions with Haley, to recuse the original trial judge, for contempt (7 motions), to allow Karsten to testify as a child witness (which Dan resisted), and to alter or amend judgment. Dan filed motions seeking to enforce visitation, to amend the temporary order, for removal of the child to Iowa, to enforce and re-initiate counseling, for contempt, and for new trial. The original trial judge was recused during the pendency of the action and the new trial judge acknowledged that the delay between the first and last days of trial was a result of the court's busy calendar.
The trial was held before the district court for Douglas County on several days beginning in October 2012, and continuing in January, April, and May 2013. The court heard testimony fromthe parties, Karsten, Haley, Chris, various other members of Dan's family, a co-worker of Dan and Lana, and a close friend of Dan and the Cohrs family. Numerous exhibits were also received.
The parties presented conflicting testimony throughout the trial regarding their relationship and their respective overall ability to care for Karsten. Lana accuses Dan of various acts of harassment and domestic abuse towards her, as well as alleged mistreatment of Karsten by Dan and Chris. Dan strongly denied these allegations and presented evidence regarding his close relationship with Karsten and of Lana's harassment and erratic behavior, which Dan maintains causes harm to Karsten.
This record on appeal contains over 1,200 pages of testimony and 155 exhibits. We have thoroughly reviewed the complete record. However, it would serve no purpose to detail the contentious testimony of the parties as it relates to the care and custody of Karsten, particularly since the award of sole legal and physical custody of Karsten to Lana is not being challenged on appeal.
As provided for under the temporary order, Haley began counseling Karsten in 2011. Again, we need not detail all of his testimony as may be pertinent to the determination...
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