Dixon v. Dixon
| Decision Date | 07 June 2022 |
| Docket Number | A-21-492 |
| Parties | William J. Dixon, Jr., appellant and cross-appellee, v. Carrie S. Dixon, now known as Carrie S. Chandler, appellee and cross-appellant. |
| Court | Nebraska Court of Appeals |
William J. Dixon, Jr., appellant and cross-appellee,
v.
Carrie S. Dixon, now known as Carrie S. Chandler, appellee and cross-appellant.
No. A-21-492
Court of Appeals of Nebraska
June 7, 2022
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 Sarpy County: Kimberly Miller Pankonin, Judge.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Patrick A. Campagna, of Campagna Law Office, P.C., L.L.O., for appellee.
Julie E. Bear, of Reinsch, Slattery, Bear, Minahan & Prickett, P.C., L.L.O., for guardian ad litem.
Moore, Riedmann, and Arterburn, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MOORE, JUDGE.
I. INTRODUCTION
William J. Dixon, Jr., appeals, and Carrie S. Dixon, now known as Carrie S. Chandler, cross-appeals, from an order of modification entered by the district court for Douglas County. On appeal, William challenges the court's orders regarding custody of the parties' minor children, the denial of his request to relocate the children to California, its determination of child support, and its decision requiring him to pay certain fees. In her cross-appeal, Carrie challenges the court's failure to award her attorney fees and in not allowing the testimony of a certain witness. For the reasons set forth below, we affirm in part, and in part reverse and remand with directions.
II. STATEMENT OF FACTS
1. Decree and First Modification
William and Carrie were married in 2002 and together have three children: Tannor, born in 2000; Connor, born in 2004; and Carter, born in 2008. Tannor is no longer a minor, and we only discuss him as necessary to the resolution of the current appeal.
Proceedings in this case originated in the district court for Sarpy County. Carrie filed for dissolution of marriage in February 2013, and the district court entered a stipulated decree on August 4, 2014. Pursuant to their agreement, the parties were awarded joint legal custody and Carrie was awarded primary physical custody. At the time the decree was entered, William was residing in Chicago, and his parenting time with the children was limited to weekends and extended weeks when the children were available.
In 2015, William filed a complaint to modify, alleging a material change of circumstances; namely, that he was now residing in Nebraska, Carrie's parenting was not in the best interests of the children, and the children had expressed a desire to have equal parenting time with William. While the matter was pending, William moved to California. William then filed an amended complaint to modify, alleging that Tannor had requested to live with William and seeking the removal of Tannor to California.
Carrie filed an answer to William's amended complaint, as well as a cross-complaint for modification. Carrie alleged that William's income had significantly increased, constituting a material change in circumstances. Carrie also filed an application for contempt on the basis that William had failed to return Tannor to Nebraska prior to the start of the school year.
After a 3-day trial, the district court entered an order for modification in February 2017. The court denied William's request for the physical custody and removal of Tannor, finding that Tannor's complaint that Carrie's home was a "toxic environment," was "created largely in part by Tannor's immaturity and disrespect." The court "strongly suggest[ed]" that Tannor become involved in therapy to process issues associated with his parents. Additionally, the court increased William's child support obligation and denied Carrie's application for contempt. The court noted that that "while [Carrie] has demonstrated that [William] influenced Tannor in his decision-making process," the court was unable to find willful disobedience on William's behalf.
The district court also made several credibility findings regarding both parents. The court found William to be "self-centered and authoritarian" and that he "actively encourages Tannor to be argumentative and defiant to his mother." The court pointed to William's change in pleadings as "one example of the inconsistent positions that [William] has taken throughout these proceedings." Carrie was found by the court to be "a credible witness" who was "struggling to parent a child who is openly defiant of her."
2. Carrie's Complaint to Modify and Parental Alienation Allegation
In November 2017, Carrie filed a complaint to modify, seeking a restriction of William's parenting time to a therapeutic setting, therapy for all three children, and additional restrictions aimed to prohibit William from interfering in the children's therapy. Carrie also filed a motion for ex parte orders, requesting that she be awarded sole legal custody and alleging parental alienation.
On November 17, 2017, the district court entered an ex parte order, which awarded Carrie temporary sole legal custody of the children, required the children to participate in individual therapy, and restricted William's parenting time to occur in a therapeutic setting at the recommendation of a therapist. An order filed on December 15 found that the ex parte order should remain in effect and further ordered that William was allowed to have 30-minute telephone calls with each child every other day, provided that Carrie be allowed to record the calls. The order noted that William was prohibited from discussing the proceedings with the children.
In March 2018, Carrie filed a motion to compel, alleging that Tannor had recorded therapy sessions with his individual therapist without permission and had provided copies of the recordings to William's attorney, Matthew Higgins. Carrie requested that the court order William to provide her with all recordings made by Tannor and "cease and desist [William's] effort to undermine the therapeutic process and the parental authority" of Carrie.
In April 2018, William motioned the district court to appoint an attorney for the children, asserting that the children were in need of "independent representation." Additionally, the parties both filed several motions related to discovery during April and May.
On June 29, 2018, the district court issued a comprehensive order addressing Carrie's motion to compel, William's motion to appoint an attorney for the children, and other discovery matters. The court overruled Carrie's motion to compel, finding that the matter was better reserved for an application to show cause. The court sustained William's motion and appointed John Kinney to serve as the children's attorney, provided that William deposited $2, 500 with the clerk to pay Kinney's fees. The court held that its 2017 ex parte order would remain in full force.
3. Williams's Complaint to Modify and Request for Removal
In August 2018, William filed a complaint for modification and removal, alleging that Carrie's unfitness to continue as the custodial parent and the children's strong preference to reside with William constituted a material change in circumstances. William requested sole physical and legal custody of the children and for authorization to remove the children to reside with him in California. Also in August, Carrie filed a motion to disqualify William's attorney, Higgins, alleging that he would be a witness in the proceedings. Carrie noted that Higgins' testimony would include his communications with Tannor and the receipt of recordings Tannor had made of his therapy sessions. And, in September, William filed a motion to appoint Dr. Cynthia Topf as an evaluator pursuant to Neb. Ct. R. Disc. § 6-335 (Rule 35), so that she may prepare a child custody evaluation.
On September 19, 2018, the district court sustained Carrie's motion to disqualify Higgins. On October 18, Higgins appealed the district court's order. On December 17, this court dismissed Higgins' appeal for lack of jurisdiction. See Dixon v. Dixon, 26 Neb. xxxvii (No. A-18-1000, Dec. 17, 2018).
In December 2018, William again filed a motion to appoint Topf as a Rule 35 evaluator, which the court granted on December 20, at William's cost, however, the court ordered that an evaluator was to be selected by mutual consent of the parties. The court additionally ordered that Tannor was permitted to reside with William on a temporary basis until further order. William was required to facilitate telephone calls between Tannor and Carrie, and between Tannor and his siblings. The court ordered the telephone calls be recorded.
On February 11, 2019, the district court designated Dr. Mary Paine to serve as the Rule 35 evaluator, pursuant to William's request. Our record indicates that in April 2019, William and Paine entered into a contract for the preparation of a child custody evaluation.
In March 2019, Carrie filed a motion for attorney fees. On April 19, 2019, the district court, sua sponte, appointed a guardian ad litem (GAL) for the children. The court also ordered William to contribute $5, 000 to Carrie's attorney fees.
On April 29, 2019, William filed a complaint to modify his child support obligation due to Tannor temporarily residing with him. William requested that the court reduce his child support obligation and grant him credit based on amounts already paid in 2019. William filed another motion to review and update his child support obligation on June 11.
A hearing on William's complaint for modification of his child support obligation was held on July 12, 2019. In an order entered the same day, the district court reduced William's monthly child support obligation from $2, 615 to $2, 346, effective August 1, but it did not grant William credit based on amounts already paid in 2019.
During the July 2019 hearing, Kinney made an oral motion to withdraw as the children's attorney. The parties did not object. The district court granted Kinney...
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