Masters v. Masters
| Docket Number | A-23-111 |
| Decision Date | 16 January 2024 |
| Parties | Lisa M. Masters, appellant, v. Andrew G. Masters, appellee |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Douglas County: Shelly R Stratman, Judge.
Matthew Stuart Higgins, of Higgins Law, for appellant.
James M. Buchanan, P.C., L.L.O., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Lisa M. Masters and Andrew G. Masters married in 2011; their son was born in 2013. Lisa filed for divorce the following year. In August 2017, the Douglas County District Court entered a decree dissolving the parties' marriage. Based on the parties' mediated parenting plan and agreed upon addendum, the court awarded the parties joint legal custody of their son, and awarded Lisa primary physical custody, subject to Andrew's parenting time which did not include overnights. Andrew was not to exercise overnight parenting time until recommended by the child's therapist in writing.
In December 2018, Andrew filed a complaint to modify the decree alleging a material change in circumstances. In its January 2023 modification order, the district court awarded Andrew sole legal custody of the parties' son as to medical decisions (including therapy, optical, dental, and mental health), school, and extracurricular activities that involve a sport; Lisa was awarded sole legal custody as to religion and non-sport extracurricular activities. The parties were granted joint physical custody of their son with equal amounts of parenting time. Lisa was ordered to pay Andrew $8,000 for attorney fees. On appeal, Lisa challenges many of the court's determinations. Finding no abuse of discretion, we affirm.
The district court entered a decree dissolving the parties' marriage in August 2017. Based on the parties' mediated parenting plan and agreed upon addendum, the court awarded the parties joint legal custody of their son, and awarded Lisa primary physical custody, subject to Andrew's parenting time. Pursuant to the parenting plan, Andrew was to have regular parenting time for certain hours on specific days, including holidays. Additionally, the parties' son was to continue seeing his therapist, Mary Ellen Christ Anderson (Anderson), at a "frequency and duration determined by her," and Andrew was not to exercise overnight parenting time/visitation until recommended in writing by Anderson. Andrew was ordered to pay $606 per month in child support.
On November 14, 2018, Andrew filed a "Verified Application for Show Cause for Contempt" alleging that Lisa had denied him parenting time with their son since November 2 and she had refused all forms of communication. On December 26, Andrew filed a complaint to modify the decree, alleging there had been a material change in circumstances in that: both parties' circumstances had changed; Lisa routinely failed to follow the parenting plan, especially regarding legal custody and parenting time; Lisa made decisions detrimental to the child's wellbeing; Lisa refused to communicate regarding the child; and the child attained an age where the current parenting plan was no longer in his best interests. Andrew asked the court "for an Order reevaluating child custody, parenting time and support based on the [parties'] new parenting arrangement."
Throughout this case, numerous motions were filed and ruled upon, including motions to continue, for withdrawal of counsel, and for an in camera interview with the child. There were also numerous subpoenas issued, as well as motions to quash subpoenas and rulings thereon. We set forth only those pleadings and orders relevant to this appeal.
In an "Order to Continue Trial" entered on March 13, 2020, the district court ordered that "[Lisa's] oral motion to appoint Dr. Cyntia Topf as a 706 expert is granted." See Neb. Rev. Stat. § 27-706 (Reissue 2016) (judge-appointed expert witnesses). The court found that the parties had been engaging in regular counseling for the child with Dr. Topf. The court also found and ordered, "Since November 2019, recommendations have been made by Dr. Cynthia Topf increasing [Andrew's] parenting time," "[t]herefore, in [a]ddition to the parenting time previously stipulated to by the parties in November, 2019," Andrew would have additional parenting time. The order specifically referenced overnight parenting time going back to November, adjustments to transition times going back to November, and upcoming dates when Andrew would begin to have parenting time from Friday at 5 p.m. to Sunday at 8 p.m. on his weekends.
Following a hearing on April 23, 2020, the district court entered an "Order for Further Temporary Allowances," finding and ordering that it was in the child's best interests that temporary legal and physical custody be placed with Andrew. The court found that Lisa "shall engage in individual and continue family therapy with Dr. Topf," and that should Lisa engage in individual therapy with a separate therapist, then that therapist "shall be allowed to confer with Dr. Topf to obtain any information related to this matter to assist in furthering therapy for [Lisa]"; Lisa was to follow all recommendations of Dr. Topf and her individual treating therapist. The court stated that "Dr. Topf shall determine when [Lisa] has properly expressed an understanding of how her actions have affected the minor child," and "[o]nce this has occurred, Dr. Topf may make recommendations as to how [Lisa's] parenting time will increase"; "[t]he parties shall abide by those recommendations as though they were ordered by this Court." The court found that starting April 23, Lisa's parenting time with the minor child was suspended, subject to the ongoing recommendations of Dr. Topf, the terms of the order, or until further order of the court. However, Lisa was to have telephonic and/or video visitation with the child every day for no more than 15 minutes per day. Andrew was to supervise the calls and be allowed to record them, and he was allowed to immediately end the conversation if Lisa began asking the child questions regarding alleged abuse, matters related to the case, or became distraught and emotional. Parenting time was to continue in this fashion until Dr. Topf made recommendations on how to properly increase parenting time, or until further order of the court. Andrew's child support obligation was suspended effective May 1.
On October 22, 2020, Lisa filed a motion to remove Dr. Topf as the district court's § 27-706 expert. Lisa alleged that she filed a complaint against Dr. Topf with the licensing board, and the relationship between them had deteriorated to a point where it was unworkable and a hinderance to the fair resolution of the case. Lisa's motion was denied.
On June 9, 2021, Lisa filed a "Motion for Further Temporary Orders and Motion to Vacate Prior Order and Motion to Remove 706 Expert." She asked the court for "a further temporary order, an Order vacating the Court's Orders of April 27, 2020, an Order removing Dr. Cynthia Topf as the court's 706 expert, an Order removing Dr. Glenda Cottam as the reunification counselor, and an order for attorney's fees." Following a hearing, the district court entered an order on July 7 denying Lisa's motion to vacate the April 27 order and her motion to remove the § 27-706 expert. The court found that "the 706 expert shall make an updated recommendation to the Court as to a parenting schedule consistent with the intention that after therapeutic sessions, [Lisa's] parenting would be increased." And "[u]pon receipt of the recommendations, the Court will enter a further temporary [sic] or set the matter for further hearing."
On August 18, 2021, Lisa filed a "Motion to Appoint Family Therapist" alleging that Dr. Cottam was no longer providing family therapy for Lisa and the child and the parties were unable to agree on a new family therapist and asking that Ashley Schrad be appointed as the family therapist.
On September 3, 2021, Lisa filed a motion "for an order vacating the Temporary Order . . . and for an Order Nunc Pro Tunc." As to the motion to vacate the temporary order, Lisa alleged that the terms of the order violated her due process rights and abdicated the court's authority to a third party, "that being the Court's 706 expert who is acting in the capacity of a visitation master in violation of the law." As for the motion for an order nunc pro tunc, Lisa alleged that the order appointing Dr. Topf inaccurately recited that it was Lisa's attorney who requested that she be appointed as the court's expert, when in fact the request was made by Andrew's counsel.
Following a hearing on September 14, 2021, the district court entered an order denying the motion to vacate the temporary order. It stated that upon the written recommendations of Dr. Topf as to an updated parenting schedule as stated in the June 22 order, the court would enter a further temporary order to guide the parties until final disposition. The court entered an order nunc pro tunc that any reference to Dr. Topf shall now read, "'Court-appointed 706 expert.'" Finally, the court found that Lisa's motion to appoint a family therapist should be granted, however, the court appointed Jack Dross as the child's therapist, to begin sessions with the child with the understanding that family therapy would follow in a manner recommended by the therapist.
On December 16, 2021, Andrew filed a "Motion to Clarify 706 Expert Duties." In an order entered on January 26, 2022 the court stated that Dr. Topf...
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