Coleman v. Kahler

• Decision Date: 14 April 2009
• Docket Number: No. A-08-333.,A-08-333.
• Parties: Martin L. COLEMAN, Appellant, v. Joni K. KAHLER, Appellee.
• Court: Nebraska Court of Appeals

766 N.W.2d 142

17 Neb. App. 518

Martin L. COLEMAN, Appellant, v. Joni K. KAHLER, Appellee.

No. A-08-333.

Court of Appeals of Nebraska.

April 14, 2009.

Christopher A. Furches, of Johnson, Flodman, Guenzel & Widger, Lincoln, for appellant.

Stephanie Payne, of Payne Law, P.C., L.L.O., Lincoln, for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Martin L. Coleman appeals from a declaratory judgment granting relief determining him to be the father of Joni K. Kahler's son, but awarding Kahler custody of the parties' minor children and allowing her to remove the children from Nebraska. We hold that Nebraska's removal jurisprudence does not apply to a child born out of wedlock where there has been no prior adjudication addressing child custody or parenting time. Because we find no abuse of discretion by the district court, we affirm its judgment.

BACKGROUND

The parties, who never married, are the biological parents of two children: a daughter, born in 1992, and a son, born in 2002. In May 1993, a consent decree established Coleman's paternity to the parties' daughter and ordered him to pay child support, but it did not address custody or visitation rights. In February 2003, Coleman filed an acknowledgment of paternity concerning the parties' son, but there was no judicial determination of his paternity.

On October 5, 2007, Coleman filed his complaint for declaratory judgment. He sought an order establishing his paternity to the parties' son, establishing the parties' custodial and visitation rights with respect to both children, establishing child support obligations over the son, and prohibiting Kahler from removing the children from Nebraska.

Coleman also sought temporary custody of the children or, in the alternative, an order compelling Kahler to return the children to Nebraska during the pendency of the proceedings. After a hearing, the court denied Coleman's motion. The court stated:

[T]his is not a case in which a custodial parent has filed a request seeking permission to remove the children from the jurisdiction of the court. The reason [Kahler] made no such request before moving or contemplating moving the children to Ohio is because there has been no judicial custody determination made concerning either of the children (i.e., neither party has previously sought to have a court address custody and parenting time-related issues). The court considers this to be a significant factor in addressing [Coleman's] alternative request that [Kahler] be ordered to return the children to Nebraska.

On March 4 and 5, 2008, the court conducted a trial on Coleman's complaint. In the interest of brevity, we summarize the detailed evidence regarding Coleman's visitation with the children. Coleman moved to Georgia after Kahler became pregnant with the parties' daughter. In November 1992, when the child was approximately 7 months old, Coleman returned to Nebraska and lived with Kahler and their daughter for approximately 1 to 2 months. Between 1993 and 1995, the parties both lived in Lincoln, Nebraska, and Coleman's mother provided daycare for the child. Kahler testified that Coleman saw the child approximately 20 times at Coleman's mother's house. Coleman testified that he did not see the child on a regular basis but saw her at least once every 2 weeks.

In 1997, Kahler married and moved with her husband and the parties' daughter to Kansas City, Missouri. Coleman initially had visitation every other weekend, but that became less frequent, and he also had summer visitation of 4 to 6 weeks, broken into 1- or 2-week periods. Kahler and her husband separated in 1999, and a decree dissolved Kahler's marriage in 2003. From 1999 to 2001, Kahler lived in Kansas City with the parties' daughter; Kahler's "partner," Kimberly S.; and Kimberly's son. During that time, Coleman visited the parties' daughter a couple of times a year.

In the fall of 2001, Kahler and the parties' daughter returned to Lincoln, along with Kimberly and her son. Coleman visited the parties' daughter on weekends.

In late 2001, the parties discussed having a second child, but Kahler wanted Coleman to impregnate Kimberly. Ultimately, Kahler became pregnant with the parties' son. Kahler testified that the agreement with Coleman was that their son would be raised by Kahler and Kimberly, that Kahler and Kimberly would have full financial responsibility and custody, and that Coleman could be part of the child's life if Coleman wished. Coleman testified that although he had not been ordered to pay child support for the parties' son, he gave Kahler $500 to $1,000 once their son was born and provided financial support in the form of clothes and toys and by paying certain bills.

Kahler testified that once their son was born, Coleman usually saw him at least once a week. Coleman testified that he regularly had visitation with both of the parties' children in Kahler's home, but Kahler testified that Coleman's regular visits with the children began in 2005 and that he did not have much involvement with them prior to that time. When the parties' son was 1 or 2 years old, their children began having overnight weekend visits at Coleman's home every other weekend in addition to visits with Coleman at Kahler's house on Wednesday and Sunday nights.

In 2007, Coleman's visitation with the children varied, but it generally included Sundays and Wednesdays and every other weekend from Saturday night to Sunday night. Sometimes Coleman would keep the parties' son from Wednesday to Friday night, and at times, the parties' son stayed with Coleman from Wednesday night to Sunday.

The parties had an amicable relationship. Some of Coleman's visits were as a family unit with Kahler and Kimberly along with Coleman and his wife, whom Coleman married in July 2007. Kimberly's teenage son lived with the Colemans for nearly a year, beginning in November 2006. Coleman testified that Kimberly's son's behavior and schoolwork improved the longer the child lived with the Colemans.

Coleman testified that he and Kahler shared the responsibility of taking their children to the doctor and dentist. They both disciplined the children. Coleman testified that Kahler remarked on several occasions he was more of a disciplinarian than she, but Kahler disagreed. Coleman testified that the parties' daughter had behavioral problems when she began high school and that Kahler requested his assistance in helping deal with issues such as poor grades, not completing homework, sneaking out of the house, and having friends stop by the house when no adults were present. Coleman's wife testified that the parties' daughter confided in her about sex-related issues, but Kahler testified that she had discussed such issues in detail with the parties' daughter multiple times.

On September 5, 2007, Kahler learned that her job as a broadband support technician would be eliminated and that her employer's broadband support division would be relocated to Ohio. Kimberly worked for the same company. At that time, Kahler earned close to $13 an hour and approximately $26,000 a year. Kahler testified that a position which she had applied for and accepted with the same company in Ohio would pay $16.30 an hour, or $33,900 a year, with an opportunity for advancement. The position also offered health care for Kahler and the children. Kahler testified that the company had two positions open in Nebraska at that time but that neither was in her field. She testified that she inquired about employment with a cellular telephone company in Lincoln and with a computer-payment-processing firm in Omaha, Nebraska, and checked a Web site with a Nebraska employment database, but that she did not apply for any positions, "[b]ecause they were all really low, low pay."

Kahler discussed with Coleman a potential out-of-state move due to the outsourcing of her job and that of Kimberly. Kahler told Coleman that she and Kimberly would not accept positions in Ohio if Coleman did not want the children to move. Coleman testified that he told Kahler he did not want the parties' children moved from Nebraska, but that Kahler accepted the job in Ohio anyway. Kahler testified that at some point, Coleman agreed to allow her to move the children to Ohio, saying, "`I don't like it, but you have to do what you have to do."' Kahler testified that on the following day, she and Kimberly signed paperwork to accept the positions in Ohio. According to Kahler, Coleman later sent Kahler an e-mail that said only, "`I've sold my soul,"' which Kahler understood to mean that Coleman had changed his mind about agreeing to the move.

Coleman then initiated this action. After Kahler was served with the complaint, she told Coleman that he would never see the parties' children again. While Kahler admitted making the threat in anger, she claimed that she immediately sent Coleman an e-mail apologizing for having done so. Coleman testified that he then had problems exercising visitation and that Kahler sent an e-mail informing him that he had to provide 24-hour notice of any visitation and that all visits would be supervised. Kahler testified that she told Coleman that a visit needed to be supervised on one occasion, which was the visit right before the move to Ohio.

The children moved with Kahler to Ohio on October 23, 2007. From that time to the time of trial, Coleman had telephone communications with the children on Wednesday and Sunday nights, one Web camera visit, and 2 weeks' visitation over Christmas. Coleman testified that the parties' daughter spends approximately 2 to 5 minutes on the telephone with him. His access to the children had been "[e]xtremely limited," and he feared that the parties' son will "grow away" from him. Coleman testified that it would cost roughly $500 to drive to and from Ohio and that the average cost for an airplane ticket was around $350. Coleman described his relationship with the parties' daughter...