Gartner v. Hume
| Decision Date | 24 August 2004 |
| Docket Number | No. A-03-620.,A-03-620. |
| Citation | 12 Neb.App. 741,686 N.W.2d 58 |
| Parties | Shae D. GARTNER, appellee, v. Jena R. HUME, appellant. |
| Court | Nebraska Court of Appeals |
Philip M. Kelly, of Douglas, Kelly, Ostdiek, Bartels & Neilan, P.C., Scottsbluff, for appellant.
Kimberly J. Quandt, of Sonntag, Goodwin & Quandt, P.C., Sidney, for appellee.
In this proceeding to modify a paternity judgment, Jena R. Hume appeals from the district court's order denying permission to remove the child to Colorado and granting an increase in child support. Because we conclude that the trial court did not abuse its discretion except in determining the mandatory retirement deduction and in granting only a prospective increase in child support, we affirm as modified.
On October 7, 1999, Shae D. Gartner filed this paternity action against Jena, asserting that Shae was the father of Triston G. Gartner-Hume, who was born on September 30, 1999. Shae also filed a motion for paternity testing. Court-ordered paternity testing confirmed Shae to be Triston's father. On July 3, 2000, the parties filed a stipulation regarding child custody, visitation, and child support.
On July 25, 2000, the trial court entered an order pursuant to the parties' stipulation. The court awarded joint legal custody of Triston to both parties and primary physical custody to Jena, subject to Shae's reasonable visitation rights including, but not limited to, every other weekend, a 4-hour weeknight visitation once each week, alternating holidays, Triston's birthday, and summertime visitation. The court granted both parties the "right of first refusal to have [Triston] in his or her care when the other party requires a day care provider." The court ordered Shae to pay $350 per month in child support and to maintain health insurance for Triston. Each party was ordered to pay half of Triston's uncovered medical expenses, and the parties were ordered to take turns claiming Triston as a dependent for income tax purposes.
On June 14, 2001, Shae filed an application for modification of physical custody. On February 26, 2002, Jena filed her amended response to Shae's motion, together with a counterclaim for modification. Jena alleged that because of her employment with the Colorado Department of Corrections, the State of Colorado had offered her an opportunity to pursue her degree as a registered nurse; that Jena would have to move to Colorado to continue that employment; that she was engaged to a man also employed by the Colorado Department of Corrections and planned to live in Colorado upon her marriage; that it was in Triston's best interests to move to Colorado with Jena; and that upon Jena's move to Colorado, Shae would have reasonable visitation with Triston. Jena prayed for permission to relocate with Triston to Colorado. The court conducted a hearing on June 19.
On August 21, 2002, the trial court entered an order denying Shae's motion to modify custody, granting Jena's request to move Triston to Fort Lyon, Colorado, and providing for visitation by Shae. The order further provided:
We note that insofar as the trial court's August 21, 2002, order purported to require that Triston be returned to Nebraska if Jena did not comply with certain requirements regarding her education, employment, and marital status, that order constituted a void conditional order. If a judgment looks to the future in an attempt to judge the unknown, it is a conditional judgment. A conditional judgment is wholly void because it does not "perform in praesenti" and leaves to speculation and conjecture what its final effect may be. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). However, Jena never attempted to utilize the order and did not remove Triston to Colorado under its provisions.
On September 11, 2002, Jena filed a motion to modify child support and to modify the court's order concerning the relocation of Triston. Jena alleged that a material change in circumstances had occurred since the July 25, 2000, order in that the incomes of both parties had changed significantly, and she prayed that the court modify the child support pursuant to the Nebraska Child Support Guidelines (Guidelines) to reflect the parties' incomes. Jena also requested that Shae be ordered to pay for both daycare and medical expenses pursuant to the Guidelines. Jena further alleged that after the trial on her previous request to relocate Triston, she was advised the nursing program had been canceled by the school in Fort Lyon; that she had not moved to Colorado as planned; and that she had postponed her marriage because she had not moved to Fort Lyon. Jena requested leave to move to Sterling, Colorado, where she worked for the Colorado Department of Corrections. Jena alleged that she would be able to pursue her nursing degree at a school in Fort Morgan, Colorado. She requested that the court modify its August 21, 2002, order to allow her to move to Colorado without specifying the town in which she would live and to remove the requirements regarding her employment with the Colorado Department of Corrections. Jena also prayed for an order requiring the parties to share responsibility for transporting Triston between Nebraska and Colorado for visitation.
In Shae's answer, he alleged that Jena's motion was frivolous and that based on the unclean hands doctrine, Jena should be estopped from requesting relief. Shae requested an order requiring that Triston remain in Nebraska. On April 29, 2003, the court conducted a trial on Jena's motion to remove Triston to Sterling and on her motion for modification of child support.
Jena testified at length. Jena was 27 years old at the time of trial. She had been a licensed practical nurse (LPN) for 6 years and lived in Sidney, Nebraska. At the time of the original order, she worked as an LPN at Beverly Healthcare in Sidney, which work required daycare for Triston. At the time of trial, she worked for the Colorado Department of Corrections in Sterling and wanted to return to school to become a registered nurse (RN). Jena never implemented the move to Fort Lyon because the community college she had planned to enroll at temporarily canceled its nursing program. The college informed Jena of the cancellation during the latter part of July 2002 (prior to the trial court's August 21 order). Jena refrained from marrying her fiance because she could not move to Colorado after the nursing program had been canceled and because she did not want to live apart from him after getting married. Jena never obtained employment in Fort Lyon by the Colorado Department of Corrections.
Jena requested specific permission to move to Sterling, rather than generally to the State of Colorado. She claimed that she intended to continue her employment with the Colorado Department of Corrections. She expressed the intention to remain in Sidney with Triston, if the court would not approve her request to move to Sterling. Sterling is approximately 40 miles from Sidney. Commuting from her home in Sidney to her work in Sterling required approximately 45 minutes.
Jena's fiance lives and works in Fort Lyon. The Colorado Department of Corrections, where Jena's fiance works, had placed all transfers on hold for "a couple of months" due to budget constraints. If Jena's fiance were not transferred to Sterling, Jena probably would not marry him; at least at the time of trial, she disclaimed any firm plans to marry.
At the time of trial, Jena, Triston, and Jena's daughter from a previous relationship were living with Gwen Hume, Jena's mother, and with Gwen's boyfriend. Jena had moved three times since Triston's birth.
Jena asserted that she and Shae had always worked well together to accomplish visitation and to accommodate their respective schedules. She intended for that cooperation to continue if she was allowed to move to Sterling with Triston. With that in mind, Jena offered that on Wednesday evenings, she would bring Triston to Sidney to visit Shae, and that for weekend visits, she would take Triston to Sidney, arrange for Shae to pick Triston up in Sterling, or meet Shae halfway between Sterling and Sidney. She claimed that Triston is accustomed to traveling between Sidney and Sterling on a daily basis. For that reason, she asserted that transporting him for visitation would not be a problem.
All of Jena's family members, except her sister, lived in Sidney, and all of Shae's family members lived there. Jena maintained that if she were to move, Shae and his family would have as much time with Triston as before. Jena acknowledged that Shae and Triston have a close relationship. She agreed that Triston had bonded with his relatives in Sidney and that those relatives all have maintained active roles in Triston's life.
Jena had signed a contract to purchase a house in Sterling, subject to obtaining permission to move. The house has two stories, a finished basement, four bedrooms, and 1 1/2 bathrooms. There is a large play area in the backyard, and a park is located two blocks away. Jena had been preapproved for a loan at a 6- or 8-percent interest rate to purchase the house. The purchase price of the house was to be $155,000, and Jena's monthly payments were to be $1,189.
While Jena was at work, Natasha Wilcox provided daycare for Triston in Sterling and would continue to do so in the event that...
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