Harper v. Harper
| Decision Date | 22 September 2020 |
| Docket Number | No. A-19-1146.,A-19-1146. |
| Parties | MAELYNE A. HARPER, APPELLEE, v. NICKOLAS J. HARPER, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Cass County: MICHAEL A. SMITH, Judge. Affirmed.
Angela M. Minahan, of Reinsch, Slattery, Bear, Minahan & Prickett, P.C., L.L.O., for appellant.
John A. Kinney and Jill M. Mason, of Kinney Mason, P.C., L.L.O., for appellee.
Nickolas J. Harper appeals from a decree of dissolution entered by the district court for Cass County, which decree dissolved his marriage to Maelyne A. Harper, divided certain marital assets and debts, awarded Maelyne sole physical custody of the parties' minor child and permitted Maelyne to move with the child to Kansas, and ordered Nickolas to pay child support. On appeal, Nickolas challenges the district court's decisions to award Maelyne physical custody of the minor child and to permit Maelyne and the child to move to Kansas. Nickolas also challenges the district court's division of certain marital assets and its calculation of his child support obligation. Finally, Nickolas argues that the district court erred in failing to find Maelyne in contempt of court. For the reasons that follow, we affirm the district court's decision in its entirety.
Nickolas and Maelyne were married in March 2009. They have one child together, Barrett, born in 2014. After more than 9 years of marriage, Nickolas moved out of the marital home in August 2018. Maelyne subsequently filed a complaint for dissolution of marriage on September 7.
In the complaint, Maelyne sought sole custody of Barrett and requested permission to remove Barrett from Nebraska to Kansas. Nickolas filed an answer to the complaint opposing Maelyne's requests for sole custody and removal to Kansas and seeking either sole custody of Barrett for himself or joint custody.
Both Maelyne and Nickolas filed motions for temporary allowances. In her motion, Maelyne requested that she be awarded sole legal and physical custody of Barrett pending the dissolution trial. She also requested that she be permitted to move with Barrett to Kansas immediately and that the court establish child support and a temporary parenting plan. In his motion, Nickolas asked that he and Maelyne be awarded joint legal and physical custody of Barrett pending the dissolution trial. He indicated that beginning in September 2018, the parties had developed their own temporary parenting plan, which he described as "a 50/50 shared schedule." He wished this agreed upon parenting plan to continue. Nickolas also requested that the district court prohibit Maelyne from moving to Kansas with Barrett prior to the dissolution trial.
On November 27, 2018, after a hearing on the parties' motions, the district court entered a temporary order which awarded the parties joint legal and physical custody of Barrett pending the dissolution trial. Specifically, the parties were to exercise parenting time on alternating weeks, with the exchange of the child to occur at 6 p.m. every Sunday evening. The court's order acknowledged that Maelyne had been offered a job in Phillipsburg, Kansas. However, she proposed to move to Alma, Nebraska, and commute to her new job. Nickolas agreed to Maelyne moving to Alma and the district court approved of this plan. Given that Maelyne was moving to Alma, the court found that Nickolas was entitled to temporary possession of the marital home. The court ordered Nickolas to pay $1,000 per month in temporary alimony and $324 per month in temporary child support.
In January 2019, Nickolas filed a motion to amend the November 2018 temporary order. In the motion, he requested that the district court "amend" the amount of temporary alimony ordered. He also asked that the court specifically order that Barrett not attend daycare in Kansas when Maelyne exercised her parenting time. Nickolas indicated that "Temporary removal of the minor child was not granted as previously requested." The court entered an order granting Nickolas' request to amend the amount of temporary alimony ordered. The court ordered Nickolas to pay only $500 per month going forward. The court denied Nickolas' request to require Barrett to attend daycare in Nebraska. The court explained:
The evidence is that [Maelyne] resides in Alma, Nebraska, and commutes to her employment in Phillipsburg, Kansas. The child is placed in a daycare near [Maelyne]'s place of employment while [Maelyne] is at work. In the Court's view, this is not a violation of the temporary order and parenting plan. However, for the purposes of clarification, this practice is approved.
A few weeks prior to trial, on June 5, 2019, Nickolas filed a verified application for contempt and an order to show cause. In the application, Nickolas alleged that Maelyne "has violated the temporary order of this court by removing the minor child from the State of Nebraska." Nickolas went on to assert that Nickolas requested that the district court issue an order directing Maelyne to appear and show cause as to why she should not be held in contempt.
Ultimately, the district court determined to hold an evidentiary hearing on Nickolas' application for contempt in conjunction with the dissolution trial, which began on June 19, 2019. Evidence specifically related to the contempt citation was adduced first, but all of the evidence adduced at trial was considered for purposes of the contempt citation and the dissolution action. The trial spanned 3 days ending on July 10.
During the evidentiary hearing on Nickolas' application for contempt, Maelyne testified that she moved to her residence in Alma in December 2018. A signed copy of a lease for Maelyne's home in Alma indicates that she began renting the home on December 8. Maelyne affirmatively indicated that she keeps her things at her house in Alma. She described the layout of the house and how she had set up the furniture when she moved into the home in December. Maelyne also testified that she stays the night at her home in Alma as much as possible. Maelyne explained that, for example, during the month of December 2018, she did not stay in Alma very much because Barrett was with Nickolas for the Christmas holiday and she stayed in Phillipsburg, Kansas, with her family, in Plainville, Kansas, with her now fiance, Harrison Gilliland, and went on a vacation to Mexico.
When questioned about her relationship with Harrison, Maelyne indicated that she had met him in October 2018, approximately a month after filing the complaint for dissolution of marriage. Harrison lives in Plainville, which is about an hour away from Alma. Phillipsburg is located approximately halfway between Alma and Plainville. Maelyne admitted that because of her relationship with Harrison, she and Barrett have stayed in Plainville "on a regular basis." She further explained that they sometimes stay in Plainville during the week, but most often they go there on the weekends. And when Barrett is with Nickolas, she primarily stays in Plainville with Harrison. Maelyne also admitted that as her relationship with Harrison strengthened, she has spent more time in Plainville and less time in Alma. Harrison testified that when Maelyne has parenting time with Barrett, they spend approximately 60 percent of their time in Plainville and about 40 percent of their time in Alma. Harrison also testified that he is uncomfortable with Maelyne residing alone in Alma.
Maelyne explained that because she works in Phillipsburg, and because her family, including her mother, resides there, that she and Barrett also spend time in Phillipsburg. Maelyne indicated that even when she and Barrett stay in Alma, they often go to Phillipsburg to have breakfast with Maelyne's mother before Maelyne goes to work. Maelyne acknowledged that her bank records for the 5 months prior to trial demonstrate that while there are multiple charges fromplaces in Plainville, Phillipsburg, and Holdrege, Nebraska, that there are no charges from any place in Alma. Maelyne testified, "I do use cash a lot." Maelyne's mother, Debra McConnell, testified that Maelyne and Barrett sometimes stay in Alma, sometimes stay in Plainville, and spend a lot of time in Phillipsburg.
Evidence in the record reveals that Maelyne was personally served with the application for contempt and order to show cause at the Alma residence on June 16, 2019, after four prior attempts. While one sheriff's deputy indicated that the residence did not appear to be lived in, a second deputy reported that it did, in fact, look like someone lived in the residence.
Nickolas testified that on January 23, 2019, approximately a month after Maelyne reported moving to Alma, he drove to Alma to observe Maelyne's residence there. When Nickolas traveled to Alma, Barrett was in Maelyne's physical custody. Nickolas described the house in Alma as having a "pretty overgrown" yard, windows which were boarded up, and a "run down" roof. He did not observe any vehicles at the house either at that time or later in the evening when he returned. Nickolas testified that he then drove to Plainville and did observe Maelyne's vehicle at Harrison's home.
Nickolas returned to Alma on May 29, 2019. He drove by Maelyne's residence, but did not see her or her vehicle there. Nickolas then got out of his vehicle and approached the house to look inside. Through the windows, he observed some boxes stacked up inside the kitchen. He did not believe that the house had been ...
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