Ewing v. Evans
| Docket Number | A-23-093 |
| Decision Date | 26 December 2023 |
| Parties | Susan Ewing, appellee, v. Joseph Evans, appellant. |
| Court | Nebraska Court of Appeals |
1
32 Neb.App. 531
Susan Ewing, appellee,
v.
Joseph Evans, appellant.
No. A-23-093
Court of Appeals of Nebraska
December 26, 2023
1. Modification of Decree: Child Custody: Visitation: Child Support: Appeal and Error. Modification of a judgment or decree relating to child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed by an appellate court de novo on the record, and will be affirmed absent an abuse of discretion.
2. Modification of Decree: Attorney Fees: Appeal and Error. In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.
3. Modification of Decree: Child Custody: Proof. Ordinarily, custody and parenting time of a minor child will not be modified unless there has been a material change in circumstances showing that the best interests of the child require modification.
4. Modification of Decree: Words and Phrases. A material change in circumstances is the occurrence of something which, had it been known to the dissolution court at the time of the initial decree or prior modification, would have persuaded the court to decree differently.
5. Modification of Decree: Child Custody: Proof. Proof of a material change in circumstances is the threshold inquiry in a proceeding on a complaint to modify custody, because issues determined in the prior custody order are deemed preclusive in the absence of proof of new facts and circumstances.
6. Modification of Decree: Child Custody. When a change in custody is to be made, it should appear to the court that the material change in circumstances is more or less permanent or continuous and not merely transitory or temporary.
[32 Neb.App. 532] 7. Constitutional Law: Parental Rights. A parent has a constitutional right under the Free Exercise Clause of the First Amendment to exercise religious practices and spiritual beliefs with their child.
8. Constitutional Law. Although the prohibition against infringement of religious belief is absolute, the immunity afforded religious practices by the First Amendment is not so rigid.
9. Child Custody: Visitation. The paramount consideration in all cases involving the custody or visitation of a child is the best interests of that child.
10. Constitutional Law: Parental Rights. When a court finds that particular religious practices pose an immediate and substantial threat to a child's temporal well-being, a court may fashion an order aimed at protecting the child from that threat. In doing so, a court must narrowly tailor its order, so as to result in the least possible intrusion upon the constitutionally protected interests of the parent.
11. Child Support: Evidence. Generally, earning capacity should be used to determine a child support obligation only when there is evidence that the parent can realize that capacity through reasonable efforts.
12. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.
13.____ . Customarily, attorney fees are awarded only to prevailing parties or assessed against those who file frivolous suits.
14. Divorce: Attorney Fees. A uniform course of procedure exists in Nebraska for the award of attorney fees in dissolution cases.
15. Attorney Fees. In awarding attorney fees, a court shall consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.
Appeal from the District Court for Lancaster County: Lori A. Maret, Judge.
Mona L. Burton, of Anderson, Creager &Wittstruck, P.C., L.L.O., for appellant.
Tara L. Gardner-Williams and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for appellee.
Riedmann, Bishop, and Welch, Judges.
[32 Neb.App. 533] Riedmann, Judge.
I. INTRODUCTION
Joseph Evans appeals the order of the Lancaster County District Court that overruled his complaint to modify a custody order and parenting plan. We conclude that Evans failed to show a material change in circumstances to warrant modification. Furthermore, we find the district court did not abuse its discretion in enjoining Evans from taking the child into sweat lodges, imputing an earning capacity beyond his Veterans Administration (VA) disability benefits, and awarding Susan Ewing attorney fees. Therefore, we affirm.
II. BACKGROUND
Evans and Ewing are the biological parents of a son born in May 2013. The parties were never married, and their relationship ended in February 2014. On January 23, 2015, Evans was in a severe automobile accident in which he collided with a wall at 75 miles per hour. Among his many injuries, he suffered a broken back, a traumatic brain injury, and bleeding in his brain.
In March 2015, the district court issued a custody order (2015 Order) regarding the parties' son. The order was based on a joint stipulation filed by the parties in which Ewing received sole physical and legal custody of their son and Evans received parenting time set out under a parenting plan. In addition to determining custody, the district court ordered that Evans pay $557 per month in child support.
At the time of trial, Evans was married to Erin Evans (Erin). Evans has three children: a 16-year-old daughter; the son at issue, who turned 9 years old during trial; and a 3-year-old daughter. Erin is the mother of the 3-year-old daughter only. Evans has parenting time with his older daughter every other weekend, Friday to Sunday, and for a brief window on Wednesdays. Evans' weekend parenting time with her aligns with his parenting time for his son.
[32 Neb.App. 534] 1. Evans Files for Modification
In March 2021, Evans filed a complaint to modify the 2015 Order. He asserted that there had been two material changes of circumstances since the district court's 2015 Order. First, Evans was "no longer an active member of the National Guard and no longer subject to long periods of deployment and/or travel." Second, "[the parties' son's] behaviors have become increasingly problematic and disruptive in both school and [Ewing's] home." He requested that the 2015 Order be modified to award both parties joint legal and physical custody. Additionally, he stated that if the son's custody were to be modified, he would request that child support and other financial obligations be modified accordingly.
In April 2021, Ewing filed an answer and "Counter-Complaint." In her countercomplaint, Ewing asserted four material changes that necessitated modifying the parenting plan. The four material changes she alleged were: (1) Evans' income increased, so there should be an increase in child support; (2) their son struggles in Evans' care when he takes the son to sweat lodges on the weekend; (3) their son struggles after the conclusion of Evans' parenting time, so all such parenting time should end no later than 7 p.m.; and (4) their son no longer trick-or-treats, so Halloween should be removed from the parenting plan.
Following her answer and countercomplaint, Ewing motioned to enjoin Evans from taking their son to sweat lodges. She also filed a motion for attorney fees. After a hearing, the district court granted both of Ewing's motions.
The parties stipulated that Evans could file an amended complaint out of time. Evans added a third material change in circumstances, which was that Ewing was preventing him from exercising his constitutional rights under the Free Exercise Clause of the First Amendment to the U.S. Constitution by barring him from taking their son into a sweat lodge. In response to the amended complaint, Ewing filed an amended answer and countercomplaint in which she
[32 Neb.App. 535] asserted three additional "material and substantial change[s] in circumstances" to her countercomplaint, which included the following: Evans did not provide health insurance for their son despite the 2015 Order; winter break should be divided evenly between the parties, with transitions on the day halfway through winter break; and Ewing wishes to obtain a U.S. passport for their son. The parties later stipulated to their son's passport application.
2. Modification Trial
The trial lasted 3 days over the course of roughly 6 months. Trial was held on March 24, June 2, and August 15, 2022.
(a) Son's Behavior Issues
(i) Diagnosis, Medication, and Treatment
Ewing testified that their son has had behavior issues since he was 2 or 3 years old. He was previously diagnosed with Oppositional Defiant Disorder (ODD). For the past 4 years, he has regularly taken Clonidine to treat his ODD.
When their son was 4 years old, he began treatment with Dr. Levita Bui, and he had six appointments. During the treatment period, Bui met only Ewing. Bui never met Evans. Bui testified that she could not recall why therapy ended.
Bui cannot conduct psychological testing. She is a psychologist, and her practice focuses on children, adolescents, and adults, as well as children with behavior or conduct disorders. Although she never addressed the son's transitions between households, she testified that hypothetically, any child, especially one diagnosed with or being treated for ODD, can have additional difficulty in transitioning between houses.
After Bui, the son saw different therapists, but his longest and current relationship with a therapist is with Robin Townsend, who also testified at trial. The son meets with Townsend every week during the school year and every other week during the summer. Townsend testified that...
To continue reading
Request your trial