Essink v. Essink
| Docket Number | A-21-830 |
| Decision Date | 02 August 2022 |
| Parties | Tiffany A. Essink, now known as Tiffany A. Bolish, appellee, v. Ethan D. Essink, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Susan I Strong, Judge.
Laura A. Lowe, P.C., for appellant.
No appearance for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)
Ethan D. Essink appeals from the Lancaster County District Court's order on his complaint to modify child custody and his application for an order to show cause based on the failure of Tiffany A. Essink, now known as Tiffany A. Bolish, to abide by the terms of the parties' parenting plan. For the reasons stated herein, we affirm.
Ethan and Tiffany were married in 2012 and had one child, Dalton James Dean Essink, who was born in 2013. The parties' marriage was dissolved by dissolution decree entered by the Lancaster County District Court in December 2014. The court's order, which was entered pursuant to a stipulated agreement, awarded the parties joint legal custody of Dalton with primary physical custody awarded to Tiffany. Ethan was granted parenting time starting at 4:30 p.m. every other Tuesday until the following Monday morning. Additionally, Ethan was ordered to pay $130 in monthly child support and was granted a $1,143 judgment against Tiffany for daycare expenses. Under the terms of the parenting plan, the parties were required to, among other things, include the other parent in decision-making, cooperate, and refrain from disparaging each other. The plan provided in part:
In December 2020, Ethan filed a complaint for modification of the dissolution decree requesting sole legal and physical custody of Dalton. In his complaint, Ethan alleged that a substantial and material change in circumstances had occurred which affected Dalton's best interests including that Tiffany had arranged for therapeutic services for Dalton without first consulting Ethan, refused to keep Ethan apprised of Dalton's therapy appointments, limited Ethan's access to Dalton's therapist, and refused to provide Ethan with medications prescribed for Dalton; that Tiffany had "repeatedly disparaged and denigrated [Ethan] in public communications and in communications involving [Dalton]"; that Tiffany had "unreasonably refused to cooperate with [Ethan] in allowing [Ethan's] parents to facilitate the parenting time transitions, while demanding her representatives be allowed to facilitate transitions on her behalf which has created conflict in the presence of the minor child"; that Tiffany has unstable housing and has moved numerous times since the entry of the dissolution decree; that Tiffany is involved in a relationship in which Dalton has been subjected to inappropriate discipline; that Tiffany failed to provide a safe and stable home for Dalton; and that Dalton wishes to spend more time with Ethan. Ethan further requested that the court review and modify child support.
On the same date, Ethan also filed an application for an order to show cause why Tiffany should not be held in contempt for her willful violation of the dissolution decree and parenting plan. Ethan asserted that Tiffany willfully violated the provisions of the parenting plan by, inter alia, failing to make any payments on the $1,143 judgment against her for daycare expenses. The court entered an order to show cause which was heard at the same time as the modification hearing in August 2021.
Evidence at the hearing established that, after operating under the parenting plan without issue for about two years, the parties began having disagreements over pick-up times, locations, and individuals who were permitted to pick up Dalton from school. Due to the location of Dalton's elementary school, the parties relied on family and friends to help facilitate school pick up. Additionally, Dalton was diagnosed with AD/HD and was placed on medication. The parties also began having difficulty with communicating important school and medical concerns and ensuring that each parent had access to Dalton's medications and other items.
Tiffany determined that it was best to keep Dalton in the same school since they were familiar with him and his behaviors. However, Ethan stated that he was unable to get information from Tiffany and the school did not contact him when there was an issue. After contacting the school, Ethan learned that he was not listed as a contact, but rather Tiffany's fiancé and father were the other contacts listed. Ethan also learned that Tiffany arranged for Dalton to begin seeing a therapist without discussing it with him first and refused to provide Ethan with the therapist's contact information or to include Ethan in the therapy sessions so both parties could address Dalton's behavioral needs. Ethan also asserted that Tiffany changed Dalton's primary doctor without discussing the change with Ethan first. Although Dalton was prescribed daily medications, the parties were unable to cooperate in order to ensure Dalton took his medication. Ethan testified that Tiffany failed to ensure that Dalton had his medications with him during Ethan's parenting time. He asserts that this led to Dalton's doctor assisting the parties in reach an agreement with the school for the school to provide the medications each morning. However, despite the agreement, the parties continued to have difficulties as the medication was not provided to the school on occasions. In addition to the medication, Ethan indicated that Tiffany would not send Dalton's school Chromebook during Ethan's parenting time which Dalton needed to complete homework, making it difficult for Ethan to continue to work with Dalton on his math and reading.
The parties contacted child protective services (CPS) on each other on multiple occasions. Ethan testified that he reported concerns relating to Tiffany's disciplinary measures in her home. He asserts that Tiffany and her fiancée required Dalton to kneel on the hard floor for a long period of time which left marks on his skin and caused Dalton a lot of pain. Further, Ethan indicated that he has called CPS as it related to Tiffany and her fiancée's care of Dalton because he believed Tiffany's fiancée hit Dalton repeatedly in the head. Tiffany likewise expressed concerns related to Ethan's parenting and called CPS on Ethan on numerous occasions. Ethan admits that he was previously involved with CPS after his prior roommate's daughter inappropriately touched Dalton. However, he asserted that he reported the issue to Tiffany and no further CPS action was taken after the roommate and the child left the home. The parties both indicated that no additional CPS reports have been substantiated.
On September 16, 2021, the district court overruled Ethan's complaint to modify to the extent that Ethan sought legal and physical custody and continued joint legal custody but provided Tiffany with final decision-making as to Dalton's health, education, and religious upbringing. The court further continued physical custody with Tiffany subject to Ethan's parenting time but adjusted the parenting time schedule. Specifically, the court found:
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