Fichtl v. Fichtl

• Decision Date: 19 May 2020
• Docket Number: No. A-19-203.,A-19-203.
• Parties: Jared L. FICHTL, appellee, v. Joey W. FICHTL, appellant.
• Court: Nebraska Court of Appeals

28 Neb.App. 380
944 N.W.2d 516

Jared L. FICHTL, appellee,
v.
Joey W. FICHTL, appellant.

No. A-19-203.

Court of Appeals of Nebraska.

Filed May 19, 2020.

Adam E. Astley, of Astley Putnam, P.C., L.L.O., for appellant.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P., Omaha, for appellee.

Pirtle, Riedmann, and Welch, Judges.

Pirtle, Judge.

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28 Neb.App. 382

I. INTRODUCTION

Joey W. Fichtl, now known as Joey W. Hansen, appeals from an order of the Douglas County District Court denying her application for modification of a previously entered decree of dissolution in regard to child custody and parenting time and granting the counterclaim of Jared L. Fichtl to modify the decree in regard to child support. Based on the reasons that follow, we find that the district court did not abuse its discretion in declining to modify child custody and parenting time and in modifying Joey's child support obligation. However, we find that the district court erred in calculating Jared's monthly

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income. Accordingly, we affirm the district court's decision regarding modification and modify the portion of the decree concerning child support.

II. BACKGROUND

Joey and Jared were married in 2003 and are the parents of three minor children: Kalilee Fichtl (Kali), born in 2002; Liberty Fichtl (Liby), born in 2004; and Trapton Fichtl (Trapper), born in 2008. The parties divorced in 2012 and entered into a consent decree whereby they shared legal custody; Jared was granted physical custody and final decisionmaking in the event that the parties disagreed on religious, medical, or educational decisions; and Joey received certain parenting time. Trial regarding Joey's application to modify and Jared's counterclaim took place on May 4, 2017, and April 4, 2018. The district court entered an order of modification on May 31, denying Joey's request to modify custody and granting Jared's request for child support. On December 18, the court heard Joey's motion to alter or amend the order of

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modification. That motion was denied on January 28, 2019. This appeal followed.

At trial, Joey testified that the initial parenting plan was drafted by Jared's attorney and that Jared had indicated to her they would be able to "split a lawyer." Joey testified that at the time she signed the parenting plan, Jared indicated they "would never follow it," and that the two subsequently did not follow its terms after it had been entered by the court. Joey and Jared initially followed an informal routine, where Joey would see the children when she was not scheduled to work. She testified that at the time the parenting plan was entered, in July 2012, she had contemplated pursuing further education, but was undecided at the time. Joey applied for, but was not initially accepted into, a medical school program in Grenada to begin in the fall of 2012.

Joey testified that when she brought up her plan to pursue an education in Grenada and their arrangement with visiting the children, Jared called her an "idiot" for signing the parenting plan and stated that they were going to start following the plan entered by the court. Joey moved to Grenada in August 2012. She testified that she would return to Nebraska for several months to see the children when she had breaks in her educational requirements in Grenada. Despite her requests for more parenting time, Jared would refuse and adhere to the parenting plan previously entered by the court.

Joey testified that she made several attempts to call or "Skype" with the children, but she would not get an answer or would be met with excuses from Jared that he "couldn't get it set up." In 2014, Joey made the decision not to return to school in Grenada due to her father's ill health. Instead, Joey completed her master's degree in nursing and continued to apply for medical programs in Nebraska. Joey worked as a nurse and made arrangements to live in Omaha, Nebraska, in December 2014.

Joey testified that prior to filing the application to modify, she experienced difficulties getting ahold of the children and

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implementing aspects of the original parenting plan. After returning to Nebraska, Joey sought to have more time with the children than provided for under the original parenting plan. Joey testified that she was requesting that Jared no longer have the "final say" on education and health decisions for the children due to ongoing difficulties she experienced related to those issues.

Joey testified that at one point, Jared indicated Kali had started counseling and he had not discussed this with Joey beforehand

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despite the two sharing joint legal custody of the children. According to Joey, Jared would also sign the children up for activities without first consulting her and would not tell her about practices or games. There were several incidents where Joey tried to attend school events with the children, but Jared would tell her not to do so.

Joey also discovered that she was not listed in the school directory, nor with the children's doctor and dentist, as the children's mother for contact purposes. Joey testified that Jared would not communicate with her regarding the children's appointments. Joey testified that the police had to intervene to enforce her parenting time on at least three occasions.

Joey testified that she had a meeting scheduled with Kali and Trapper's therapist, Sarah Wemhoff-Strawn (Strawn), but that when she reached out to confirm the meeting, she was told Strawn was out of the office that day. Joey testified that she did not make any further efforts to meet Strawn again because both Jared and Kali told her not to attend the counseling sessions. She further testified that she was not aware of any trust or other issues Kali was having with her prior to hearing Strawn testify about them. Joey indicated that she would be willing to participate in therapy sessions in order to build a stronger relationship with Kali.

Joey testified that when the children are at her home, she will coordinate activities with them such as playing soccer, watching movies, and going to places such as the library. Joey testified that she has remarried and lives with her husband,

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Lee Hansen (Lee), and that their home is large enough for each child to have his or her own room when visiting. Joey testified that the children have a "great relationship" with Lee and that he is supportive of all the children's activities.

Joey testified that if she were awarded equal parenting time, she would reduce her work hours and likely work only one job. She testified that she earned a lump sum of $6,500 for teaching a course between January and May of 2017. At her job with Methodist Health System, Joey worked four 12-hour shifts per month and earned $2 per hour when on call and $43 per hour when required to go in. Joey also worked at CHI Health Immanuel, where she worked three 12-hour shifts per week, earning $31.64 per hour. Joey testified that under the original parenting plan, the children remained on her health insurance through her employment.

On cross-examination, Joey denied ever talking negatively about Jared or his current wife, Maggie Fichtl, although she admitted Jared was listed in her cell phone contacts as " ‘asshole’ " when she and Jared first separated. She denied ever keeping the children from contacting Jared when they were staying with her.

Joey testified that she was aware when she moved to Grenada that she would not see the children "every other weekend and one day during the week," as provided for under the original parenting plan. She testified that when she returned from Grenada, Jared requested her work schedule, and that she would sometimes give it to him, but did not want him "showing up" at her place of employment. She acknowledged that all three of the children have done very well in school; are in good health; and, for the most part, do well socially.

Strawn provided counseling services for Kali for approximately 1 year leading up to trial. Kali was brought in to see Strawn due to concerns that Kali was having difficulty expressing emotion and was stressed about her relationship with Joey. Strawn testified that Kali told her that she had a

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difficult time trusting Joey and that Kali felt Joey left abruptly, often does

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not follow through with things, and places her in the middle of arguments between Joey and Jared. Kali also has expressed that she feels that Joey puts her in the middle of her relationship with Liby, where Kali feels she has to defend Liby. Strawn testified that Kali has indicated that she gets anxious visiting Joey and that she does not enjoy visiting her. Strawn...