James-Estenson v. Estenson

• Decision Date: 21 November 2017
• Docket Number: No. A-16-846.,A-16-846.
• Parties: KARA D. JAMES-ESTENSON, APPELLEE AND CROSS-APPELLANT, v. NATHAN E. ESTENSON, APPELLANT AND CROSS-APPELLEE.
• Court: Nebraska Court of Appeals

KARA D. JAMES-ESTENSON, APPELLEE AND CROSS-APPELLANT, v. NATHAN E. ESTENSON, APPELLANT AND CROSS-APPELLEE.

No. A-16-846.

NEBRASKA COURT OF APPEALS

November 21, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge. Affirmed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Andrea D. Snowden and Amanda M. Phillips, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

PIRTLE, RIEDMANN, and ARTERBURN, Judges.

ARTERBURN, Judge.

I. INTRODUCTION

Nathan E. Estenson appeals and Kara D. James-Estenson cross-appeals from an order entered by the district court for Lancaster County which modified the parties' decree of dissolution. Nathan assigns numerous jurisdictional, procedural, and factual errors regarding the district court's modification of the decree. Kara argues the district court erred by refusing to award an upward deviation for Nathan's failure to pay noncovered medical expenses for the parties' only child. For the reasons set forth below, we affirm.

II. BACKGROUND

The parties were divorced pursuant to an agreed upon decree of dissolution entered by the district court on April 11, 2011. The parties have one child, Ronan, born in 2004. The parties were awarded joint legal custody of the child with primary physical custody awarded to Kara and specific parenting time awarded to Nathan. The decree ordered Nathan to pay $156.00 per month in child support. The decree further awarded Nathan $500.00 per month in alimony for the first 18 months following the decree and $300.00 per month for the following 6 months thereafter. The decree did not order Nathan to pay any amount towards work-related childcare expenses as Nathan held out that he was unemployed at the time of the agreement and entry of the decree. The decree ordered Kara to pay the first $480.00 of medical and dental expenses for the minor child each calendar year with the remainder to be divided equally thereafter. The decree required Kara to provide Nathan with copies of all medical or dental bills along with evidence as to what had been paid by insurance, at least twice per year.

On June 16, 2011, Kara filed a complaint to modify the decree, requesting an increase of Nathan's child support, as well as an increase in Nathan's obligation for work-related daycare expenses. On January 5, 2012, the district court ordered that Nathan's child support be increased to $616.00 per month. The order remained silent as to Kara's requested increase in work-related daycare expenses.

On July 18, 2012, Kara filed another complaint to modify the decree. Kara requested that her alimony obligation to Nathan be terminated, Nathan be ordered to pay his share of Ronan's medical and dental expenses, and Nathan be ordered to pay for a portion of the work-related childcare expenses. A summons was filed with the complaint and was returned without service on August 29, 2012. Kara filed a second summons that day, which was returned October 9, 2012, without return of service. On October 23, 2012, Kara filed an amended complaint to modify requesting her spousal support obligation be terminated, establishing Nathan's obligation for work-related childcare expenses, increasing Nathan's obligation for medical and dental expenses, and awarding Kara for unreimbursed medical and dental expenses already incurred. Service of the amended complaint was perfected on November 20, 2012, Nathan signed the receipt of service.

Kara filed a second amended complaint for modification on August 2, 2013. On September 2, 2013, Nathan filed an answer and counterclaim in response to Kara's second amended complaint. Nathan requested that his child support obligation be reduced or eliminated. On October 2, 2013, Kara filed an answer to Nathan's counterclaim. In addition, Nathan filed a "motion to cite Plaintiff in contempt" requesting the district court to hold Kara in contempt due to her alleged willful failure to pay her spousal support obligation, as well as her failure to provide the proper documentation to Nathan for Ronan's medical and dental expenses.

Trial was set for the matter on December 18, 2014. Both parties filed multiple pretrial motions, as well as motions to continue trial. We will address the rulings of the district court with regard to the error assigned on these motions more thoroughly in the analysis of this opinion. Trial on all matters pending commenced on June 29, 2015, and concluded on August 21, 2015. Various posttrial motions were filed, which we will address as needed in the analysis below.

Nathan testified at trial that he was 39 years old and had a bachelor's of fine arts from the Art Institute of Chicago. Since his graduation, Nathan has always worked as a professional photographer. Nathan testified that he was offered a position at Land of Nod, a business selling home goods, textiles, and toys marketed towards children, on March 8, 2011. The position was a full-time salaried position with an annual income of $55,000.00. Nathan accepted the position on March 18, 2011. Nathan did not tell Kara about the employment offer or his acceptance prior to April 11, 2011, the date of their divorce. Nathan testified that he represented he was unemployed on the date of the divorce.

Nathan began his employment with Land of Nod on May 3, 2011. Nathan worked for the company by taking photos for their websites, catalogs, and other promotional photos. Nathan testified that he underwent an employment evaluation on January 11, 2013. Nathan was informed that he repeatedly displayed negative behavior, had angry outbursts, and could not control his temper. Nathan was informed that if he did not correct these behaviors, he would be terminated without further notice. After a disagreement with a supervisor, Nathan was terminated from his position from Land of Nod on August 30, 2013. Nathan testified that he received two weeks' severance pay. Nathan then applied for and received unemployment benefits until November 2013.

The district court received Exhibits 61 and 63, which were the depositions of Barbara Kramer and Sue Cortesi. Kramer was the "manager of photo producer" at the Land of Nod at the time of Nathan's termination. Cortesi was the director of human resources at Land of Nod at the time. Kramer testified that she was Nathan's manager. Kramer testified that she conducted performance reviews with Nathan during his employment. Kramer testified that during performance reviews Kramer noted concerns about Nathan's attitude and anger issues, and informed Nathan that if he did not change his behavior, he would be terminated. Kramer testified that the most recent performance evaluation where Nathan was informed of these issues was March 5, 2013. Kramer testified that she was not working the day Nathan was terminated. Cortesi testified that she was present during Nathan's termination. Cortesi testified that she provided managerial support during Nathan's termination.

Nathan testified that he was hired by Crate & Barrel in November 2013. Crate & Barrel and Land of Nod are both owned by the same parent corporation. Nathan's starting pay was $21.00 per hour and he worked 40 hours per week. In January 2014, Nathan was reassigned as a "seasonal short-term associate" with the company. His hourly pay was increased to $44.00 per hour, but his workable hours were capped at 1,000 hours per year. Nathan's taxable income was $53,853.00 for 2012, $50,559.00 for 2013, and $37,527.33 for 2014. Nathan testified that after he was terminated from Land of Nod, he never applied for a full-time position. Nathan has never looked for work outside of professional photography. He has worked on a sporadic basis as a freelance photographer. However, he has not actively marketed his photography business. He currently lives in Minnesota with his parents.

Kara testified that she is employed as a pastor. Kara receives health insurance through her employer. Kara has primary physical custody of the parties' son, Ronan. Before the parties were divorced, but during their separation, they took Ronan to Dr. Tim Riley, a child therapist. Ronan was diagnosed with attention deficit hyperactivity disorder (ADHD) after meeting with Dr. Riley. Around December 2011, Dr. Riley additionally diagnosed Ronan with Asperger's Syndrome,which falls within the autism spectrum. Three other doctors have diagnosed Ronan with Asperger's Syndrome, including Dr. Judith Bothern. Ronan received treatment with Dr. Bothern for nearly a year after the divorce, then resumed treatment with Dr. Riley thereafter. Dr. Riley was not in Kara's insurance network, but the original decree allowed Kara to seek out of network treatment, if necessary.

Ronan has been prescribed Concerta, a medication for his ADHD. For his Asperger's syndrome, Ronan has required treatment in the form of neurofeedback. Dr. Riley is the person that performs this treatment, which involves connecting electrodes from a cap on the child's head to an electroencephalograph to monitor how the child's brain is processing different stimuli. The goal of neurofeedback is to develop long-term positive responses to external stimuli without the need for medication. Ronan began his neurofeedback therapy in January 2014. Ronan receives neurofeedback once per week, with the possibility of two sessions per week in the future. Kara testified that the therapy costs $120 per session, and is not covered by insurance. Kara testified that she believes Ronan has absolutely benefitted from neurofeedback.

Kara testified that she attempts to provide Ronan with in-network treatment whenever possible. Kara's employer switched insurance providers in 2014. Ronan had been prescribed Concerta every month since 2011, which cost $49.99 per month. In January 2014, Ronan was prescribed...