Kolar v. Tester

• Decision Date: 27 June 2017
• Docket Number: No. A-16-1072.,A-16-1072.
• Parties: STACI ANE KOLAR, APPELLEE AND CROSS-APPELLANT, v. BRANDON TESTER, APPELLANT AND CROSS-APPELLEE.
• Court: Nebraska Court of Appeals

STACI ANE KOLAR, APPELLEE AND CROSS-APPELLANT, v. BRANDON TESTER, APPELLANT AND CROSS-APPELLEE.

No. A-16-1072.

NEBRASKA COURT OF APPEALS

June 27, 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 Hall County: MARK J. YOUNG, Judge.Affirmed in part, and in part reversed and remanded with directions.

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, P.C., L.L.O., for appellant.

J.D. Sabott, of Shamberg, Wolf, McDermott & DePue, for appellee.

INBODY, RIEDMANN, and ARTERBURN, Judges.

RIEDMANN, Judge.

I.INTRODUCTION

Brandon Tester appeals the order of the district court for Hall County granting legal and primary physical custody of his minor child to the child's mother, Staci Ane Kolar.Kolar cross-appeals from the district court's order granting Tester's request to change the child's surname.Finding that the court erred in granting the name change and abused its discretion in awarding the dependency exemption to Kolar, we affirm in part, and in part reverse and remand the cause with directions.

II.BACKGROUND

Kolar and Tester are the biological parents of a minor son, born in January 2011.The parties were never married but had been in a dating relationship.They separated prior to the child's birth.

In February 2015, Kolar filed a complaint to establish paternity, custody, and child support.Tester filed an answer and counterclaim, in which he requested legal and physical custody of the child.A temporary order granted Kolar primary physical custody and granted Tester parenting time every other weekend.Tester was ordered to pay $312 per month in child support.

Trial was held in October 2016.At that time, the child was 5 years old and had recently started kindergarten.The parties submitted a joint proposed parenting plan in which they requested joint legal custody.

At trial, Tester testified that he currently lived with his fiancée and her 9 year old daughter.He had a 10 year old son from a previous relationship with whom he had visitation every other weekend.Tester said that he did not meet his and Kolar's son until his first birthday.He testified that Kolar did not notify him when she was giving birth and that she did not allow him to see their child on a regular basis until 2014.

Tester admitted that in February 2015, he was involved in a domestic assault incident with Kolar wherein he assaulted her over a visitation dispute.He admitted that their child was present when this occurred.As a result of this incident, Tester was arrested and charged with third-degree domestic assault.He was ultimately convicted and was on probation at the time of trial while he completed a domestic violence class.

Tester alleged that Kolar had been difficult in working out parenting time with his son and that she had previously attempted to limit his relationship with their child.Tester admitted that as of the time of trial, he had not paid any of the child's daycare or medical expenses, nor had he attended any doctor's appointments with the child.He did provide health insurance for the child through his employer, although it was at no additional cost to him because he already provided insurance for his other son through his employer's family plan.

Tester testified that he worked at Jerry's Sheet Metal and made $21 per hour.He said that he was not guaranteed any hours over 40 per week but that he typically worked 45 to 50 hours each week.Tester said that overtime pay was $32 per hour.

Tester asked the district court to change the child's surname from Kolar to Tester because he said that Kolar "is not a blood name," as it originated with Kolar's stepfather.Tester said that he believed having the same surname as his son would improve their relationship as well as the relationship between this child and his older son.He further testified that he did not believe it would be difficult for the child to change his name when he was in kindergarten.

Kolar testified that she had lived with the child for his entire life and she had provided all of his financial support and taken him to all of his doctor's appointments.She admitted that she did not allow Tester to see the child at various points in the past but claimed that it was due to her fear that Tester would not return the child after an incident wherein he failed to bring the child back at the agreed upon time.Kolar also testified that their son was afraid of Tester after the domestic assault incident and did not initially want to go with him for visitation.Despite admittingto preventing Tester from seeing their child at times, Kolar said that it was not her intention to keep the child from him.

Kolar asked the court to deny Tester's request to change the child's surname.She said that Kolar had been her legal surname since she was young and that "blood [did not] mean anything."Kolar said that the child was just starting school and learning who he was and that she believed it would be difficult for him if his surname was changed.

The district court granted Kolar legal and primary physical custody of the child, with Tester to have parenting time every other weekend, on alternating holidays, and for eight continuous weeks during the summer.The court attached its child support calculations to its decree and ordered Tester to pay $524 per month in child support.Furthermore, the court ordered Tester to pay half of all work or education-related daycare expenses as well as half of the child's medical expenses over the first $480 annually.Tester was ordered to keep the child on his health insurance.

The court also granted Tester's request to change the child's surname, summarily stating that it found "that a name change is in the minor child's best interests."Tester appeals and Kolar cross-appeals.

III.ASSIGNMENTS OF ERROR

Tester assigns, restated, that the district court erred in (1) failing to award him primary custody; (2) failing to include several of his requested provisions in the parenting plan; (3) failing to divide the dependency exemption on an equal basis; (4) determining the amount of child support; and (5) failing to grant a child support abatement when he has custody of the child during the summer.Tester also assigns that the district court's decree contains several "minor yet significant typographical errors."

On cross-appeal, Kolar assigns that the district court erred in granting Tester's request to change the child's surname.

IV.STANDARD OF REVIEW

Child custody and visitation determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710(2016);McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577(2002).An abuse of discretion exists when a judge elects to act or refrains from acting and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result.McLaughlin v. McLaughlin, supra.

Domestic matters such as child support and the child dependency tax exemption are entrusted to the discretion of trial courts.Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113(2015).An appellate court reviews a trial court's determinations on such issues de novo on the record to determine whether the trial judge abused his or her discretion.Id.

An appellate court reviews a trial court's decision concerning a requested change in the surname of a minor de novo on the record and reaches a conclusion independent of the findings of the trial court.In re Change of Name of Slingsby, 276 Neb. 114, 752 N.W.2d 564(2008).Provided, however, that where credible evidence is in conflict on a material issue of fact, the appellate courtconsiders and gives weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.Id.

V.ANALYSIS

1.PRIMARY CUSTODY

Tester argues that the district court erred in failing to award him primary custody of the minor child.Tester claims that there is evidence that Kolar has previously tried to prevent and limit the opportunity for him to have a meaningful relationship with their son.He argues that he is in a more stable position than Kolar is and that it would therefore be in the child's best interests for him to have primary physical custody.We disagree.

Child custody is determined by parental fitness and the child's best interests.Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492(2007).When both parents are found to be fit, the inquiry for the court is the best interests of the child.Id.In making such a determination under Neb. Rev. Stat. § 42-364(Reissue 2016), the court may consider factors such as moral fitness of the child's parents; the parents' sexual conduct; the respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy the educational needs of the child; as well as other factors relevant to the general health, welfare, and well-being of the child.Id.

Here, Tester claims that he is in a better position to have primary custody because he has stable employment, lives with his fiancée and her child, and has a home with enough room for each child to have his or her own bed.Tester argues that Kolar has previously attempted to prevent him from having a relationship with their son and has made it difficult for Tester to play a meaningful role in his life.

The district court found that both parties are fit...