Johnson v. Johnson, 091421 NECA, A-21-020

CourtCourt of Appeals of Nebraska
JudgePirtle, Chief Judge, and Moore and Welch, Judges.
Writing for the CourtPIRTLE, CHIEF JUDGE
PartiesMelissa R. Johnson, appellee, v. Eric W. Johnson, appellant.
Docket NumberA-21-020

Melissa R. Johnson, appellee,

v.

Eric W. Johnson, appellant.

No. A-21-020

Court of Appeals of Nebraska

September 14, 2021

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 Douglas County: Duane C. Dougherty, Judge.

Phillip Wright for appellant.

Catherine Dunn Whittinghill, of Marks, Clare & Richards, L.L.C., for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, CHIEF JUDGE

INTRODUCTION

Eric W. Johnson appeals from an order of the district court for Douglas County which denied his application to modify custody of his and Melissa R. Johnson's minor children. He also appeals from a second order which granted Melissa's motion to alter or amend and ordered him to pay child support. Based on the reasons that follow, we affirm.

BACKGROUND

A decree of dissolution was entered in September 2018 ending the marriage between the parties. Based on an agreement by the parties, they were awarded joint legal and physical custody of their two minor children, Caleb, born in 2005, and Polly, born in 2010. The parenting time rotated on a week on/week off schedule. Also by agreement of the parties, neither party was ordered to pay child support. This was a slight deviation from the Nebraska Child Support Guidelines.

In August 2019, Eric filed an application to modify the decree seeking sole legal and physical custody of the children. He alleged that material changes in circumstances had occurred since entry of the decree, specifically that Melissa was cohabitating with a boyfriend and it was having a detrimental effect on the children; that Caleb had poor and failing grades in school due to Melissa's lifestyle and boyfriend; that Melissa interfered with Eric's parenting time; and that the children wanted to live with Eric full time. Eric also asked that Melissa be ordered to pay child support pursuant to the Child Support Guidelines.

Melissa filed an answer and counterclaim for modification of decree also alleging that material changes in circumstances had occurred and requesting that she be awarded sole legal and physical custody and for child support to be determined based upon the guidelines.

At trial, Eric testified that Melissa was living with her boyfriend, Adam, before the decree was entered, but claimed he did not know it at the time. Melissa testified that Eric knew she was living with Adam at the time the decree was entered. Eric believed that Melissa's living with Adam was having a detrimental effect on the children because she was being influenced by him to make bad choices. When asked how he knew the children were being detrimentally effected, he responded that it was "probably too early to tell" and that it felt like there was going to be a detrimental effect on them eventually. He testified that the children were not showing any detrimental effects at the time of trial.

Eric testified that the children are in an unhealthy environment when they are with Melissa, and he claimed that Melissa was an unfit parent. He believed that Melissa consumed alcohol on a regular basis. His belief was based on how much she drank when they were married and what he had heard from other people. Eric was also concerned about Adam verbally and physically abusing the children. He testified that Caleb told him Adam hit him on one occasion and also called him names.

Melissa testified that Eric objected to her alcohol consumption during the marriage. She also admitted that Caleb had expressed concern about how much she drinks but she attributed that to Eric telling the children during the marriage that she had a drinking problem.

Kenneth Shreck, Adam's stepfather, testified that he has observed Melissa and Adam drink excessive amounts of alcohol in the presence of the children. He specifically recalled two holidays that this occurred--Christmas Eve 2018 and July 4, 2019. He testified that when Adam consumes alcohol, he yells at the children and calls them names, and that he "backhands" Caleb in the testicles, which Adam called "the sack tap game." Shreck stated that he did not believe Adam's intent was to cause injury or pain, but Shreck considered it physical abuse. He also testified that Adam often goes into a "rage" after consuming alcohol.

Shreck also testified that Melissa had been present when Adam was verbally and physically abusing the children and did nothing to stop it. Rather, she would say that Adam was just playing with them. Shreck testified that Melissa and Adam presented a danger to the children because of their drinking and because of the anger he has seen in both of them.

Shreck testified that July 2019 was the last time he saw Melissa with her children. He testified that he and Adam's mother are no longer welcome at Melissa and Adam's home and they have been told by Melissa and Adam that they are no longer considered family.

Melissa testified that she did not know if Adam had hit Caleb in the testicles and she had never witnessed Adam verbally abuse the children. She denied that Adam yells at or insults the children and stated that Adam and the children "joke around."

In regard to Eric's claim that Melissa was interfering with his parenting time, he testified that there was one time when he told her he was going to be late picking up the children and it was a "big deal" for her to wait 10 to 15 minutes until he got there. He also testified that Melissa requires him to email her before he can talk to the children on the phone during Melissa's weeks of custody. He testified that this is disruptive to his communication with the children because sometimes Melissa will email him back saying that the children are busy and they will call him later, but he does not get a call.

There was evidence presented by both parties that Caleb had struggled in school in the past. Eric testified that Caleb's school issues started when the parties were still married, but got worse after the parties split up. He testified that when Caleb was in middle school he failed to complete his homework, which in turn affected his grades. Melissa agreed that Caleb had struggled with school since fifth grade, particularly in one class. Both parties testified that Caleb would not do his homework when at either parent's home and would lie about having finished it. Eric testified that he helped Caleb get back on track and that Caleb's grades were much better at the time of trial. The evidence showed that Caleb received good grades in eighth grade, the most recent grade he had completed at the time of trial.

Caleb testified in chambers, stating that he wanted to live with his father full time because Adam makes jokes that hurt his feelings and "sometimes [he] feels like that [he's] just not cared for with them." He stated there was not anything else that Adam does that he does not like, and he denied that Adam had ever hit him or physically abused him in any way. He testified that he had never observed Adam physically or verbally abuse Melissa and that he never yelled at or insulted Polly.

Caleb also stated that there have been times when he has asked to go to Eric's house during Melissa's parenting time. When asked why he wanted to go to his dad's house, Caleb stated that he just did not feel like being at his mom's house. A text message from Caleb to Eric was also entered into evidence stating that his mom and Adam were in the bathroom and he was hearing noises that he did not like and he wanted to go to his dad's house. Caleb testified that he did not remember why what he heard upset him or why he wanted to go to his dad's house.

Melissa testified that neither child has ever told her that they want to live full time with Eric. She acknowledged that she knew of two times Caleb had told Eric he wanted to go to his house during her parenting time. She explained that the first time was shortly after Adam moved in and the other time was after she and Caleb had an argument.

In regard to child support, both parties testified about their current income and offered proposed child support worksheets. Eric testified that he is employed by Cox Communications and earns $29 per hour and works 40 hours per week. He offered and the trial court accepted into evidence copies of his 2018 and 2019 tax returns, as well as pay stubs from his employer. Eric presented a child support worksheet with a calculation of child support under a sole custody calculation. Over Melissa's objection, the court accepted it as an aid to the court.

Melissa testified that she works as the clerk for the Village of Waterloo and earns just over $25 per hour, working 40 hours per week. She had been employed by the Village of Waterloo for 14 years. She had no other sources of income. Melissa presented a proposed child support worksheet with a joint physical custody child support calculation. The trial court accepted it as an aid to the court over Eric's objection.

Following trial, the trial court entered an order on November 12, 2020, finding that neither party had satisfied his or her burden to prove a material change in circumstance justifying a change of custody. The court dismissed Eric's application to modify and Melissa's counterclaim with prejudice.

On November 19, 2020, Melissa filed a motion to alter or amend the court's November 12 order alleging that the court did not address either party's request that child support be determined pursuant to the Child Support Guidelines. She requested that the November 12 order be amended to find that she provided sufficient evidence at trial to establish a material change in circumstances with regard to child support, specifically Eric's...

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