Heavican v. Benes, A-15-1232.

Decision Date02 August 2016
Docket NumberNo. A-15-1232.,A-15-1232.
CourtNebraska Court of Appeals

(Memorandum Web Opinion)


Appeal from the District Court for Butler County: MARY C. GILBRIDE, Judge. Affirmed and remanded with directions.

Debra K. Lyford, P.C., L.L.O., for appellant.

Ryan J. Thomas for appellee.


BISHOP, Judge.

Andrew Heavican brought this action against Jennifer Benes to establish paternity and custody of Bryson Benes, Jennifer's minor son. Following a bench trial, the district court for Butler County determined that Andrew was Bryson's father and entered a journal entry addressing custody, parenting time, child support, and childcare expenses, among other issues. Jennifer appeals. Because our record does not contain all of the applicable worksheets, we remand the child support issue with directions. We affirm the remainder of the district court's journal entry.


Andrew and Jennifer, who never married, began living together in January or February 2013 and were still living together when Bryson was born in August. Jennifer and Bryson moved out of Andrew's home in mid-March 2014; the parties continued to work on their relationship, which ultimately ended in August.

On February 12, 2015, Andrew filed a complaint to establish paternity. In his complaint, Andrew sought temporary and permanent legal and physical custody of Bryson, subject to Jennifer's reasonable right to parenting time. He asked that Jennifer be ordered to pay child support and carry medical insurance for Bryson. Andrew asked the court to award him the tax exemption for Bryson. He also asked for a division of childcare costs and any of Bryson's medical expenses not covered by insurance.

After a hearing, the court filed its temporary order on April 10, 2015, wherein Jennifer was awarded temporary custody of Bryson; Andrew was awarded reasonable parenting time "including, without limitation," every other weekend from Friday at 6 p.m. to Saturday at 5 p.m., and every Wednesday evening from 5 to 8 p.m.; and Andrew was ordered to pay temporary child support in the amount of $422 per month, beginning on May 1.

Jennifer filed her answer and "cross-complaint" for custody and child support on April 14, 2015, after being granted leave to file out of time. In her "cross-complaint," Jennifer sought legal and physical custody of Bryson. She also asked the court to determine parenting time, child support, health insurance for the benefit of Bryson, payment of Bryson's medical expenses not covered by insurance, and the dependency exemption for Bryson. In his answer to Jennifer's "cross-complaint," Andrew asked the court to dismiss her "cross-complaint" and award attorney fees to him.

A pretrial order filed on May 12, 2015, notes that the parties reached a stipulation on paternity. The parties' attempt at mediation of the remaining issues failed and trial was held on July 31, 2015.

Andrew, age 32 at trial, testified as follows. After Jennifer and Bryson moved out of Andrew's home in mid-March 2014, Andrew and Jennifer tried to "work things out." Andrew saw Bryson approximately once a week. He said "[i]t was always tough to get a visit in. Sometimes it would take 3 to 5 days to get a visit, and it was usually pretty minimal." Visits always took place at Jennifer's house and she "would never allow" Andrew to take Bryson anywhere on his own. During their time together, Andrew and Bryson would play in Jennifer's living room and read books, and "sometimes" Jennifer would "let" Andrew feed Bryson. The parties ended their relationship in August 2014 and Andrew "decided to file for rights, 'cause [sic] it was getting extra difficult to get a visit in."

Andrew testified that he filed a paternity action in Lancaster County, Nebraska, in August 2014, but it was dismissed in December because he filed the action in the wrong county. In December, the parties decided to "try to work things out again" and got back together. The relationship "broke down" in late January 2015, and Andrew subsequently filed the current paternity action in Butler County, Nebraska. After he filed his paternity action in February, Andrew got to see Bryson at Jennifer's home once a week for about an hour; if he asked for more time, it had to be on her terms.

Once the temporary order was entered in April 2015, Andrew said he got more time with Bryson, including overnights, and they got to build a better bond between them. Andrew "stuck with the temporary orders" and never asked for more time. He testified that when Jennifer offered to let him have Bryson on Father's Day, he turned her down because Jennifer proposed a switch wherein Andrew would not get parenting time on Bryson's birthday. He never missed his parentingtime and was responsible for almost all of the transportation; whenever he asked Jennifer to transport Bryson, she told Andrew it was his obligation (the temporary order was silent as to transportation).

Andrew owns a home in Valparaiso, Nebraska; Bryson has his own bedroom and there is a backyard in which he can play. Andrew's parents live one block away from Andrew and his sister and brother-in-law live two blocks away; Andrew's grandmother also lives in Valparaiso. Andrew and Jennifer live nine miles apart.

Andrew acknowledged the parties had some difficulties with communication; for instance, before the temporary orders were put into place it "could be hours or a whole day" before Jennifer responded to Andrew's text message requesting a visit, and then it would sometimes take several days to get a visit (Andrew felt he was being ignored). Despite "tension" between the parties, Andrew testified that the parties can work together. He said that Jennifer is a good mother and he thinks it is important for Bryson to have both parents in his life. Andrew testified that joint custody would be in Bryson's best interest.

Andrew testified that he is a self-employed electrician. He stated that his gross income in 2014 was $55,000, but his net income was $10,000; he said he bought a lot of inventory to start his business. Andrew's 2014 tax return was received into evidence as exhibit 6.

Andrew's sister and mother both testified that Andrew is a good father and is very attentive to Bryson. Neither woman had concerns about Andrew's ability to care for his son.

Jennifer, age 31 at trial, testified as follows. She has always been Bryson's primary caregiver and wanted sole custody of Bryson. She said that she rearranged her schedule to be a "stay-at-home mom"; she worked part-time for her brother and was able to take Bryson to work with her. Jennifer said that when Bryson returns from parenting time with Andrew, he is often tired, hungry, "clingy," and less disciplined (throwing fits and saying "no" a lot).

Jennifer testified that she has had a difficult time communicating with Andrew. For example, Jennifer tried to talk to Andrew about Bryson being hungry and tired after visits, but Andrew did not always respond. The parties have also not been able to discuss simple matters about changing the parenting schedule, like when she offered to give him parenting time on Father's Day. Additionally, she told Andrew on more than one occasion that she thought Bryson had an allergic reaction to a certain brand of diapers, but he continued to put Bryson in that brand of diapers.

Jennifer testified that she has an associate's degree in massage therapy and was certified as a nursing assistant, but did not work in either of those professions at the time of trial. She was currently working part-time for her brother earning $10,000 per year, and she earned an additional $150 to $250 per week babysitting. She agreed that she had an earning capacity of at least minimum wage, and was capable of working 40 hours per week; for child support purposes she was willing to base her income on her 2014 earnings from a former job where she earned $17,300 (which at the time of the trial was more than minimum wage).

Jennifer testified that prior to the temporary support order, Andrew provided her with diapers, wipes, groceries, toys, $500 when she asked for help, and he paid a $280 electric bill for her.

Jennifer said she has a close relationship with her mother and four siblings, who all live within 25 miles of her. Her sister testified that she visited the parties monthly when they lived together, and during that time Jennifer was the one taking care of Bryson; Andrew was usually in a separate room or outside when she visited the home. Like everyone else, she said that Bryson is a healthy and happy child. Jennifer's sister also testified that after Bryson has parenting time with Andrew, Bryson is "somewhat violent," hitting and biting her children, but the behavior is short-lived.

The district court filed its journal entry on November 23, 2015, finding that Andrew is the father of Bryson. Finding that it was in Bryson's best interest, the district court awarded the parties joint legal and physical custody of Bryson, subject to the parenting plan authored by the court. The parenting plan essentially provided for 9/5 custody, with two 14-day periods. During the first 14-day period, Andrew has 9 days (not consecutive) and Jennifer has 5 days (consecutive). During the second 14-day period, Jennifer has 9 days (not consecutive) and Andrew has 5 days (consecutive). The parenting plan also established a holiday and summertime parenting schedule.

In its journal entry, the court used a joint custody calculation and ordered Andrew to pay child support in the amount of $50 per month, beginning December 1, 2015. The court also ordered: the parties to alternate claiming the tax exemption for Bryson; Andrew to maintain health insurance for Bryson so long as it is available to him at a reasonable...

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