Herrera v. Herrera
| Docket Number | A-21-450 |
| Decision Date | 22 March 2022 |
| Parties | Steffen P. Herrera, appellee, v. Victoria G. Herrera, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.
Victoria G. Herrera, pro se.
Robin L. Binning, of Binning & Plambeck, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
The Douglas County District Court entered an order modifying the November 2017 marriage dissolution decree of Steffen P. Herrera and Victoria G. Herrera. The original decree granted Victoria sole legal and physical custody of the parties' four children, subject to Steffen's parenting time. In June 2020, following concerning behavior by Victoria which placed the children at risk of harm, Steffen moved to modify the decree. The modification order awarded Steffen sole legal and physical custody of the parties' children, subject to Victoria's supervised parenting time. Victoria, pro se, appeals. We affirm.
Steffen and Victoria were married in 2004. Four children were born during their marriage: Osiris, born in 2006; Karma, born in 2007; Sylvia, born in 2009; and Viviana, born in 2012. Victoria also has an older daughter, Alyssa, who was born in 2001 from a prior relationship. Alyssa lived with the parties during the marriage and with Victoria after the divorce. In 2010, the parties agreed that Victoria would homeschool their children.
In November 2017, the district court entered a decree dissolving the parties' marriage. At trial, Victoria appeared personally with representation. The decree noted that Steffen did not personally appear and was not represented by an attorney at trial. As will later be described in further detail, Steffen was in the custody of law enforcement at the time of trial due to criminal charges filed against him; the charges were subsequently dropped. The decree awarded Victoria sole legal and physical custody of the parties' children subject to Steffen's parenting time as set forth in the parenting plan attached to the decree. The decree also required Steffen to pay $1, 122 per month in child support for four children and $350 per month in alimony.
Following the entry of the decree, the parties' children lived with Victoria, and Steffen had parenting time one day per week and every other weekend. We note that several reports were made to the Nebraska Department of Health and Human Services in the years following the divorce concerning the well-being of the children in Victoria's custody, although the children were never removed from the home. In the summer of 2019, Steffen moved from Nebraska to Minnesota for better employment prospects due to his inability to pay the amount of child support and alimony ordered by the decree. While living in Minnesota, he traveled to Nebraska to exercise his parenting time with the children and would otherwise keep in contact through phone calls and other methods of remote communication. After discussing the matter with Victoria, Steffen's trips to Nebraska became less frequent due to the COVID-19 pandemic and related travel restrictions.
On June 7 and 8, 2020, a series of events occurred involving Victoria and the children. Throughout the late night of June 7 and early morning of June 8, Victoria kept the children awake and exhibited paranoid behaviors that alarmed the older children. During the early morning of June 8, Victoria locked Alyssa and Karma out of the family residence. Shortly thereafter, Victoria had Osiris, Sylvia, and Viviana get into her vehicle and she then proceeded to drive recklessly to another location, culminating in a traffic accident. When law enforcement initially contacted Alyssa at the family residence in response to a dispatch call about a "disturbance," Alyssa informed them that her mother had not slept in days and "was acting paranoid and was afraid that everybody in the apartment complex that they reside [in] was going to die."
Law enforcement subsequently received a dispatch that there was a "hit-and-run accident of a vehicle that matched the description" of Victoria's vehicle. At the scene of the accident, there was an unoccupied minivan and a truck; the truck owner indicated that "a female and children left that minivan" and went to a nearby house. When knocking on the door of the house, police heard "yelling and screaming." Officers made contact with Victoria inside the house where she was "yelling, screaming at one of the residents there as they were trying to calm her down." The children were in the living room. An officer observed the children to be "nervous," "scared," and "in shock." As officers spoke with Victoria, she was behaving "erratically" and "paranoid" with "fast speech." Victoria explained to the officers that she feared for the safety of people she knew as a result of her presence at a protest and comments she posted online. She was worried about a person at that residence not answering the phone and Victoria "was fearful that they were dead," so she "hopped curbs" and was driving in a "reckless manner with the children" in an attempt to locate the people at that residence.
Officers subsequently arrested Victoria and placed her in the back of the officers' cruiser. As the officers transported her to a county corrections facility, Victoria managed to free herself from her handcuffs and began "banging the Plexiglas partition" which separated the front and back of the cruiser. She threatened that she was "going to stab" the officers and that she "wanted to fight, and that if [the officers] were going to fight, that [they] were going to have to shoot her." She said she did not believe they were "real police officers" and started yelling out the cruiser's window that she was being abducted. Upon arrival at the corrections facility, officers attempted to remove Victoria from the cruiser. She punched and kicked at the officers, striking one in the face with the loose handcuff. "She was kicking, punching, scratching, yelling, screaming, and at one point [an officer] had to take her hand off of [his] partner's gun," which Victoria was "attempting to grab." Law enforcement eventually restrained Victoria by cuffing her hands and feet and by putting her in a restraint chair with a "spit mask because she was attempting to spit at officers." She was booked on multiple charges, including three counts of child neglect, resisting arrest, and assault on an officer. Victoria was subsequently placed on mental health diversion for these charges.
After Victoria was taken into police custody, the children's paternal and maternal grandmothers helped provide for their care and to prevent foster placement. Steffen was apprised of the circumstances and subsequently remained in frequent contact with the children. The children's paternal grandmother thereafter worked with the Nebraska Department of Health and Human Services to develop a safety plan for the children.
Steffen filed a complaint on June 12, 2020, requesting modification of the November 2017 decree. Steffen alleged that a material change in circumstances had occurred in that it was no longer in the children's best interests for Victoria to have sole legal and physical custody. Steffen also filed an ex parte motion that same day, requesting temporary custody of the parties' children and permission to remove the children from Nebraska to Minnesota during the pendency of the modification proceeding. The district court entered an ex parte order on June 15, 2020, granting Steffen's requests for temporary custody and removal.
Following a hearing held on June 25, 2020, the district court entered a temporary order requiring the children to be returned from Minnesota to Nebraska, stating that it was "not comfortable with the children remaining removed from the State of Nebraska on a temporary basis pending trial." The court ordered that Steffen would retain temporary legal and physical custody of the children subject to Victoria's supervised parenting time. Steffen was given permission by the court to place the children in the care of their paternal grandparents during the course of this action.
On July 10, 2020, Victoria, then pro se, filed an answer denying the allegations in Steffen's complaint for modification. She subsequently retained counsel and filed an "Application for Complaint Citation" on August 4, requesting the district court to cite Steffen for contempt due to, among other allegations, Steffen claiming the parties' children as tax exemptions and receiving "stimulus checks for the children" that Victoria claimed she was entitled to receive as the custodial parent. An August 5 order temporarily suspended Steffen's child support obligation under the November 2017 decree. We also note that Steffen returned to Nebraska prior to trial upon securing new employment.
Trial was held over the course of 2 days in February 2021, a third day in March, and a final day in April. Prior to trial Victoria had retained new counsel. Numerous exhibits were offered and received. The parties both testified and each called several witnesses. In addition to other third parties Steffen called the children's maternal and paternal grandmothers to testify on his behalf, and Victoria called two of her cousins to testify on her behalf. There was significant crossover between the testimonies of Steffen and Victoria and the testimony of these familial witnesses, and we focus primarily on the parties'...
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