Gandara-Moore v. Moore
| Decision Date | 17 November 2020 |
| Docket Number | No. A-19-1110.,A-19-1110. |
| Parties | Tracy D. GANDARA-MOORE, appellant, v. Michael E. MOORE, Jr., appellee. |
| Court | Nebraska Court of Appeals |
Stephen D. Stroh, of Bianco Stroh, L.L.C., and Ryan D. Caldwell, Omaha, of Caldwell Law, L.L.C., for appellant.
Alex M. Lierz, of Rembolt Ludtke, L.L.P., for appellee.
Tracy D. Gandara-Moore appeals from the order of the district court for Lancaster County that dissolved her marriage to Michael E. Moore, Jr.; awarded custody, parenting time, and child support for their minor children; divided the marital estate; and found her in contempt of court. We find that the district court abused its discretion in failing to include a provision in the parenting plan to protect Tracy from harm, in calculating child support, and in dividing the marital estate. We therefore modify the court's order accordingly. We otherwise affirm.
Tracy and Michael were married in March 2012, in Lincoln, Nebraska. Two children were born during the marriage: a daughter in 2012 and another daughter in 2014. Tracy filed a dissolution petition in August 2017, after an incident of domestic violence perpetrated by Michael. Tracy was granted temporary custody of the children in January 2018. Michael was ordered to pay $1,061 per month in child support, and each party was to pay half of all daycare costs and medical bills.
In June 2018, Michael, who had moved back to the east coast, filed a motion for parenting time. In July, the district court granted Michael parenting time on the "FaceTime" application twice a week for at least 30 minutes. The court also ordered Michael to meet with Dr. Michael Keady, the children's counselor, twice before exercising in-person parenting time. The court further stated that if Keady recommended in-person parenting time, Michael could have parenting time one weekend in August in Lincoln and parenting time from August 31 until September 4 in Washington, D.C.
In August 2018, the parties stipulated that Michael was in contempt of the January temporary order, as he had failed to pay $3,971.20 in daycare expenses. They agreed that he should be sentenced to 7 days in jail with the ability to purge his contempt by paying $300 per month until the outstanding expenses were paid. The court entered a stipulated order accordingly. Michael filed additional motions requesting parenting time in September, November, and March 2019. In response to Michael's motions for parenting time, the district court again ordered that Michael was to have FaceTime parenting time twice a week. The court's notes from October 12, 2018, indicate Michael's parenting time was subject to the modification of a no-contact order that had been entered in his ongoing criminal case resulting from Tracy's allegations of domestic abuse. In September and November 2018, the county court for Lancaster County, in which Michael's criminal case was pending, noted that Michael's bond could be amended to allow him to have FaceTime visitation with the children, consistent with the district court's order.
Michael filed a motion with the district court in March 2019, requesting that Tracy show cause as to why she should not be held in contempt for withholding parenting time. According to Michael's motion, he had not had any FaceTime visitations with his children since the court ordered it in October 2018 and he had not spoken to his daughters since the previous summer. In June 2019, Tracy filed an affidavit requesting sanctions for Michael's failure to comply with the purge plan ordering him to make monthly payments for past daycare expenses.
As referenced above, while the dissolution case was pending, Michael was charged in the county court for Lancaster County with domestic assault in August 2018. Michael was arrested on the same day as the charges were filed, and his appearance bond ordered him to have no contact with Tracy. Following a trial in June 2019, he was convicted of domestic assault and placed on probation.
A trial was held on Tracy's complaint for dissolution, Michael's order to show cause, and Tracy's request for sanctions. The trial spanned 3 days in May, June, and September 2019. During the trial, Tracy testified and presented evidence regarding her relationship with Michael. She stated that Michael started verbally abusing her shortly after they were married. Michael became more violent during the marriage, and physically abused her "four or five" times. The last assault occurred in July 2017, when Michael punched her in the face, held her against her will in the garage, strangled her, and threatened to kill her and kidnap their children. After the assault, Michael left Nebraska and returned to the east coast.
Tracy filed for a protection order after the assault, and she indicated on the form that she was not requesting that Michael be prohibited from contacting or communicating with her so that he could call the children. Tracy further indicated that she made "[h]undreds and hundreds" of attempts to communicate with Michael after he left, but Michael refused to answer his phone and had only random communication with the children.
According to Tracy, after the district court ordered Michael to have FaceTime parenting time with the children, she attempted to facilitate calls between him and the children until August 15, 2018, when a no-contact order was put in place as a condition of his appearance bond in the domestic assault case. She stated that she spoke to a prosecutor who informed her that the no-contact order "trumped" any civil order that was in place; therefore, she was unable to facilitate visitation between Michael and the children. The appearance bond was modified in September and November to allow Michael to have contact with the children consistent with the district court's order.
Tracy stated that Keady, the children's therapist, was willing to facilitate parenting time between Michael and the children after the appearance bond was modified. However, Keady testified that it was his recommendation that any parenting time between Michael and the children be therapeutic. Keady stated that he met with the children four or five times and that they met the criteria for a post-traumatic stress disorder
diagnosis. Keady also indicated that he met with Michael and the children in August 2018, that the children asked why Michael had not apologized to Tracy, and that Michael did not respond. Despite Keady's offer to facilitate therapeutic visitation, he stated that Michael did not accept the offer. Keady further opined that Tracy was an appropriate and protective mother.
Tracy also testified regarding her employment and income, the children's health and education, and her continued fear of Michael. She stated that at the time of trial, she was unemployed and had been since January 2019. Tracy worked for a health insurer from 2016 to 2018, earning about $58,000 per year. She explained that she left the job because she could not keep up with the demands of the job while she was a single parent. She indicated that she receives $400 per week in unemployment benefits and that she was applying for 5 to 10 jobs per week. Tracy also testified that she was injured in a car accident in June 2019 and her injuries impacted her ability to look for work.
Tracy informed the court that the children attend a private school and daycare in Lincoln and are doing very well. She indicated that the children were significantly delayed in speech and language when she registered them for preschool but that they have made great progress under her care. According to Tracy, the older child has an autoimmune disease
which requires frequent hospitalizations and requires a complicated treatment when she becomes sick, which Michael was not aware of. Tracy also stated that she remained in fear of Michael and believed that he would eventually try to kill her.
Finally, Tracy testified regarding the parties’ marital assets. She stated that she had cashed out her retirement account from her prior employment to pay her bills. She explained that the parties had numerous debts, including a loan which was used to pay basic living expenses during the marriage. Tracy stated that a portion of an inheritance that Michael received during the marriage was placed in her account to pay bills and that the money had been spent. She further indicated that Michael had not made all of the payments he was ordered to make for daycare expenses, nor had he paid his half of the unreimbursed medical expenses for the children. Tracy did not request alimony, but did request approximately $5,000 in attorney fees. She also requested that any parenting time that Michael receive be therapeutic.
In his case in chief, Michael testified about the domestic assault, as well as his attempts to have parenting time with the children. He disputed Tracy's account of the assault and stated that he did not punch her. However, Michael acknowledged that he was found guilty of domestic assault by the county court and was placed on probation.
Michael indicated that the last telephonic parenting time he had was in March 2019 and that he had not had any other telephonic parenting time since the beginning of 2018. He stated that it was difficult to call his children because of the restraining orders and that when he did call, Tracy called the police on him. Michael also informed the court that he attended a therapeutic parenting session with his children facilitated by Keady, but that the session lasted only 15 minutes and Tracy was in the room during the session. Michael stated that he underwent an evaluation by Dr. Rick McNeese in October 2018 to demonstrate that he was ready for parenting time. Issues regarding McNeese's testimony and report will be laid out in greater detail in the analysis section below.
Michael provided testimony about the marital estate and the care he provided for the...
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