Keiser v. Hohenthaner, A-11-590

CourtCourt of Appeals of Nebraska
Docket NumberNo. A-11-590,A-11-590
Decision Date22 May 2012


No. A-11-590


Dated: May 22, 2012



Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.

John J. Heieck and Matthew Stuart Higgins, of Higgins Law, for appellant.

Grant A. Forsberg, of Forsberg Law, P.C., L.L.O., for appellee.

INBODY, Chief Judge, and IRWIN and SIEVERS, Judges.



Scott Hohenthaner appeals from an order of the district court for Sarpy County granting custody of the parties' minor child to Laura Keiser (Laura) and allowing her to remove the child to South Dakota. We affirm.


The parties, who never married, are the biological parents of one child: Tatum Hohenthaner, born in May 2004. Laura and Scott had an "on-and-off" relationship since 2000, when they met as students at the University of South Dakota at Vermillion. Laura and Tatum lived in South Dakota until June 2006, when they moved to South Sioux City, Nebraska. In August 2007, Laura and Tatum moved to Omaha, Nebraska, at Scott's request. Shortly after Laura and Tatum moved to Omaha, Laura and Scott ended their romantic relationship. Scott also has a 12-year-old daughter from a prior relationship. His older daughter lives with her mother in Council Bluffs, Iowa. Scott regularly exercises visitation with her.

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On November 27, 2007, Laura filed a complaint to establish paternity and support. In her complaint, she alleged that Scott was the biological father of Tatum. She also sought temporary and permanent custody of Tatum and asked that the court order Scott to pay child support, provide health insurance, pay out-of-pocket future medical care, and pay a portion of childcare expenses.

On November 30, 2007, Laura filed a motion for temporary custody and allowances. In its order signed on December 21, the district court awarded temporary custody of Tatum to Laura, subject to Scott's parenting time which was specifically set forth in the order.

On January 25, 2008, Scott filed a "motion for leave to file answer out of time," which was granted by the district court on February 11.

On February 15, 2008, Laura filed an amended complaint to establish paternity and support. In addition to restating the allegations from her original complaint, Laura also sought the court's permission to remove Tatum from Nebraska to South Dakota.

In his answer and cross-complaint filed on February 29, 2008, Scott alleged that he was Tatum's biological father. Scott alleged that an order of joint custody would be in Tatum's best interests, but sought sole custody of Tatum if the court did not award joint custody. On May 21, 2009, Laura filed a motion to dismiss the removal action only.

The decree of paternity was filed on September 1, 2009. In the decree, the district court found that Scott is Tatum's father. The court awarded Laura and Scott joint legal and physical custody of Tatum, with Laura maintaining the primary decisionmaking authority regarding major decisions affecting Tatum's health, education, and religion; however, Laura was to consult with Scott prior to making such decisions. The parties' parenting time was specifically set forth in the decree. Scott was to have parenting time every Thursday overnight, alternating weekends, and alternating Wednesdays overnight. Scott was ordered to pay child support in the amount of $650 per month, 60 percent of work-related childcare expenses, and 60 percent of unreimbursed medical expenses after the first $480 per year.

Laura filed a complaint for modification on June 10, 2010. In her complaint, Laura alleged a material change in circumstances in that (1) she had received an employment opportunity in Gayville-volin, South Dakota, and (2) she had become engaged to Adam Haberman (Adam), who resides and is employed in Yankton, South Dakota. Laura sought custody of Tatum, subject to Scott's reasonable parenting time. Laura also sought the court's permission to remove Tatum from Nebraska to South Dakota.

On July 7, 2010, Laura filed a motion for a custody evaluation by a clinical psychologist. Also on July 7, Laura filed a motion for expedited trial or, in the alternative, a motion for a temporary order allowing her to remove the minor child from the jurisdiction pending trial. On July 19, Scott filed a "verified motion" seeking immediate custody of Tatum, alleging that Tatum should remain in Nebraska pending trial.

Scott filed an answer and cross-complaint for modification on July 20, 2010, In his cross-complaint, Scott alleged a material change in circumstances in that (1) Laura recently moved to South Dakota, (2) Tatum now spends 5 hours round trip in a car twice per week so that Scott can exercise his parenting time, and (3) Laura's decision to move Tatum away from Scott was not in Tatum's best interests. Scott sought custody of Tatum and asked the court to create a parenting plan for Tatum. On July 21, Scott filed a "resistance to plaintiff's motion to remove

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child from jurisdiction," citing Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000), which discourages trial courts from granting temporary permission to remove children to another jurisdiction prior to a ruling on permanent removal.

At a motions hearing on July 26, 2010, the district court denied the temporary removal to South Dakota. The district court also sustained Laura's motion for a custody evaluation. And Scott stated that he did not object to Dr. Kevin Cahill performing the evaluation.

On October 25, 2010, Scott filed a motion to continue the trial scheduled for October 27 and for disclosure of the opinion or report of Dr. Cahill, Laura's expert. On October 26, Laura filed an objection to Scott's motion to continue. Laura alleged that Scott had willfully attempted to prolong the trial. She also alleged that Scott delayed contacting Dr. Cahill's office for more than 30 days, despite knowing that time was of the essence. Laura further alleged that she was not withholding Dr. Cahill's opinion or report, but, rather, Dr. Cahill was still in the process of preparing such. Also on October 26, Laura filed a "motion in the alternative to trial for additional temporary relief," asking the court, should it continue the trial, to grant a temporary modification of the parenting schedule to allow her to relocate with Tatum to Crofton, Nebraska.

The district court filed its temporary order on November 10, 2010. Because Dr. Cahill had not yet reduced his opinions to writing, the district court granted Scott's motion to continue and trial was scheduled for December 14. The court further modified the parenting schedule to accommodate Laura's move to Crofton with Tatum. The district court attached a parenting calendar through January 3, 2011; granted Scott two 30-minute Webcam communications per week; and liberal telephone contact. The court ordered that if a future order was not entered on or before January 3, Scott shall be entitled to "similar parenting time" as set forth in the parenting calendar through January 3.

On December 9, 2010, Laura filed a motion to continue, alleging that (1) Dr. Cahill had not submitted his report and (2) she sent a proposal to Scott in an effort to reach a settlement. The district court granted Laura's motion and continued the trial to February 22 and 23, 2011.

On February 17, 2011, Laura again filed a motion to continue alleging that (1) Dr. Cahill had not submitted his report and (2) she sent a proposal to Scott in an effort to reach a settlement. The district court again granted Laura's motion and continued the trial to May 5 and 6. The court also found that Dr. Cahill violated the prior order of the court requiring him to complete and submit his custody evaluation to the parties by November 15, 2010. The court ordered Dr. Cahill to complete and submit the custody evaluation report to the parties on or before March 15, 2011.

On March 22, 2011, Laura filed an amended motion for additional temporary relief. She alleged the court's order entered on November 10, 2010, included a day-by-day parenting schedule through January 3, 2011, and that the parties have had difficulty agreeing on parenting time since January 3. Laura further alleged that she has had difficulty making the exchange time without leaving work early. Laura asked the court to set out a specific parenting schedule, modify the exchange time, and require Scott to give her 24-hour notice if he intends to pick Tatum up from school for his weekend parenting time.

On March 25, 2011, Scott filed a "verified motion to vacate order allowing temporary change of residence and for immediate custody change." Scott requested that the district court vacate its order of November 10, 2010, that allowed Laura to "temporarily" remove Tatum to a place within Nebraska, but less than 5 miles from the Nebraska-South Dakota state line and

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10 minutes from the destination to which Laura petitioned the court to permanently remove the child. Scott also asked the court to immediately award temporary custody to him. Scott alleged that Laura is attempting to "poison the child's connections to Nebraska and bolster her removal suit." Scott further alleged that his time with Tatum "suffered in quantity and quality."

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