Collins v. Collins

• Decision Date: 20 August 2013
• Docket Number: No. A–12–505.,A–12–505.
• Citation: 21 Neb.App. 161,837 N.W.2d 573
• Parties: Danelle Kay Collins, appellant, v. Colby Ree Collins, appellee.
• Court: Nebraska Court of Appeals

21 Neb.App. 161

837 N.W.2d 573

Danelle Kay Collins, appellant,

v.Colby Ree Collins, appellee.

No. A–12–505.

Court of Appeals of Nebraska.

Filed August 20, 2013.

Appeal from the District Court for Hall County: James D. Livingston, Judge. Affirmed.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.

Nancy S. Johnson, of Conway, Pauley & Johnson, P.C., for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

[21 Neb.App. 161]1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result.

3. Divorce: Child Custody. When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child's parents, child custody is determined by parental fitness and the child's best interests.

4. Child Custody.Neb.Rev.Stat. § 43–2923(6) (Cum. Supp. 2012) provides that in determining custody and parenting arrangements, the court shall consider the best interests of the minor child.

5. Child Custody. The Nebraska Supreme Court has held that in determining a child's best interests, courts may consider a variety of factors.

6. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

7. Child Custody: Armed Forces.Neb.Rev.Stat. § 43–2929.01(1) (Cum. Supp. 2012) provides that for children of military parents, it is in the best interests of the child to maintain the parent-child bond during the military parent's mobilization or deployment.

8. Child Custody: Visitation: Armed Forces.Neb.Rev.Stat. § 43–2929.01(3) (Cum. Supp. 2012) provides that a military parent's military membership, mobilization, deployment, absence, relocation, or failure to comply with custody, parenting time, visitation, or other access orders because of military duty shall not, by itself, be sufficient to justify an order or modification of an order involving custody, parenting time, visitation, or other access.

Irwin, Judge.

I. INTRODUCTION

Danelle Kay Collins appeals an order of the district court for Hall County, Nebraska, dissolving her marriage to Colby Ree Collins and awarding custody of the parties' two minor children to Colby. On appeal, Danelle challenges the court's custody award. She also asserts that the district court's custody award was in violation of Neb.Rev.Stat. § 43–2929.01(3) (Cum.Supp.2012), concerning custody awards involving military parents. We find no abuse of discretion in the court's award of custody to Colby, and we find that the court's order was not in violation of the statute.

II. BACKGROUND

Danelle and Colby were married in August 2003 and resided in Grand Island, Nebraska, throughout the duration of their marriage. Two children were born during the marriage: Callie, born in 2005, and Tyler, born in 2008.

The primary issue litigated by the parties was custody of the two children. The parties reached an agreement related to other issues, and nearly all of the testimonyadduced at trial concerned the issue of custody.

Prior to trial, the parties submitted a joint proposal for a temporary parenting plan. That proposal provided for joint legal and physical custody, including parenting time of more than 145 days per year for Colby. The court approved the temporary parenting plan.

1. Parties' Employment Histories

Both parties were employed outside of the home throughout the marriage. Danelle has a degree in construction management, and she was employed in various jobs throughout the marriage. At the time of separation, she was working for a restoration company that provided services restoring homes damaged by fire or water. She testified that the job required travel across the state and was not “strictly an eight-to-five position.” Danelle left that employer between the time of separation and the time of trial, and at the time of trial, she was working for an insulation company in Kearney, Nebraska, and was starting a pesticide business.

Danelle testified that her new employment was flexible to accommodate her children. She testified that she is “able to take Tyler to work with [her] virtually all day,” that she is able to go to Callie's school and volunteer to help in her classroom, and that she is able to take the children to appointments. She testified that the job also pays better than her previous employment.

Colby was employed throughout the marriage as a branch manager and loan officer at a bank. He testified that he had been with the same employer for 17 1/2 years. Colby's typical work schedule was 8 a.m. to 5 p.m., Monday through Friday.

2. Danelle's Military Service

In addition to her various employments, Danelle was a member of the Air National Guard throughout the marriage, serving as a jet engine mechanic. She testified that she had been in the Air National Guard for approximately 12 years at the time of trial and that she was planning to serve for 20 years. She testified that her service in the Air National Guard required her to travel to Lincoln, Nebraska, for weekend drills once per month and that she is subject to deployment at any time.

Danelle testified that when she was required to travel to Lincoln for weekend drills, she typically took the children with her. She testified that the parties' teenage babysitter, Sadie C. (Sadie), accompanied her and the children to Lincoln and took care of the children while she was at the drills. Danelle testified that she did not prevent Colby from keeping the children in Grand Island, but that she did not feel he was supportive of her military career and that there would have been “a huge fight if [she] would ask him to watch the children on the weekend [she] had drill.” She testified that Colby accompanied them to Lincoln on one or two occasions.

Colby, on the other hand, testified that Danelle usually did not tell him about her weekend drills until the Friday she was leaving to travel to Lincoln and that although she “[o]ccasionally” gave him the opportunity to keep the children in Grand Island, she gave him an ultimatum of either joining them all in Lincoln or not. He testified that he did not accompany them to Lincoln because it would have meant spending the weekend at a hotel with the female teenage babysitter, Sadie, and he did not feel that would have been appropriate.

Danelle testified that, in addition to the weekend drills once per month, the other primary time commitment related to being in the Air National Guard involved 2–week training sessions held once per year. She testified that she had been serving in the Air National Guard long enough her attendance at these training sessions was no longer mandatory and that she had opted not to attend on some occasions. On cross-examination, she acknowledged that in 2010, she had told Colby she was going to be in Virginia for the 2–week drill, but she was actually in Texas. Colby testified that he was confused about why Danelle would lie about the location of her drill, and the record reveals no other explanation.

In addition to her regular service and training commitments, Danelle had been deployed on three occasions during the marriage. Danelle testified that her first deployment was in 2006, before Tyler was born. She was deployed for approximately 2 weeks to Turkey. Danelle testified that she took Callie to North Dakota to be cared for by her parents during this deployment. Colby, however, disputed Danelle's testimony that Callie was cared for in North Dakota by Danelle's parents during that deployment.

Danelle testified that her second deployment was in 2007, again before Tyler was born. She was deployed for approximately 2 weeks to Guam. Danelle testified that she again took Callie to North Dakota to be cared for by her parents during this deployment. Colby again disputed Danelle's testimony and testified that although Callie spent part of the deployment time visiting Danelle's parents in North Dakota, she spent part of the deployment time with him.

At the conclusion of the trial, the parties agreed to a stipulation concerning the first two deployments and Callie's care. The parties stipulated that Colby had provided care for Callie during “part of” the 2006 and 2007 deployments.

Danelle testified that her third deployment was in 2009, after Tyler was born. She was deployed for more than 40 days, although the record does not reflect the location of this deployment. Danelle testified that Callie and Tyler were primarily cared for by the teenage babysitter, Sadie, during this deployment. Sadie testified that she attended school during the day and cared for Callie and Tyler in the evening and on weekends, that when Colby arrived home from work he would make dinner for everyone, and that she then took care of getting the children ready for bed.

The evidence adduced at trial indicated that Danelle's military service was one of the primary sources of contention between the parties. Danelle testified that Colby “hated the military and would not support [her] in it at all.” She testified that she could not ask Colby to care for the children during her weekend drills because “it was a huge fight” if she would do so. She testified that she “could not ask him to take care of [the] children while [she] was on military because it would end up in a fight” and that “to save peace and have a nonargumentative house in front of the children, [she] would just make other arrangements ... with [her] family.” She also testified that...