Seizys v. Seizys
| Decision Date | 20 April 2021 |
| Docket Number | No. A-20-661.,A-20-661. |
| Parties | KIMBERLY A. SEIZYS, APPELLEE, v. DAVID A. SEIZYS, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: DARLA S. IDEUS, Judge. Affirmed.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.
Donald H. Bowman and Terri M. Weeks, of Bowman & Krieger, for appellee.
David A. Seizys appeals from an order of the Lancaster County District Court denying his complaint to modify the March 2017 decree dissolving his marriage to Kimberly A. Seizys. David sought a change in custody of the parties' son, which the court denied. We affirm.
David and Kimberly were married on August 12, 1994. Three children were born to the marriage: two daughters, one born in 1998 and another in 2000; and Anthony, born in 2004. The marriage was dissolved by consent decree on March 20, 2017. The decree adopted the parties' agreement and approved the parties' parenting plan, which gave Kimberly legal and physical custody of the parties' three children subject to David's parenting time. The parenting plan provided that Kimberly would have the children for 10 days, followed by David having the children 4 days, in each 14-day period. The parenting plan also included a holiday and summer parenting time schedule and required the parties to "make every effort to minimize the exposure of the minor child to parental conflict." The decree further required David to pay child support and alimony.
David filed a "Complaint for Modification" on December 23, 2019, seeking to modify custody, child support, and alimony. In that complaint, he referenced having filed a previous modification complaint which he voluntarily dismissed. Kimberly's answer reflected that David's previous modification complaint was filed in May 2018 "seeking joint custody" of Anthony, but she agreed that the complaint was voluntarily dismissed by David, and an order dismissing the complaint was entered in June 2019. By the time David filed the present complaint, the parties' two daughters had attained the age of majority; therefore, only Anthony's custody was at issue. David alleged that "[m]aterial and substantial changes in circumstances" had occurred since the March 2017 decree in that (1) he "had virtually no parenting time . . . from the time of the 2017 Decree" with the parties' daughters due to Kimberly's conduct, (2) Kimberly had gone from part-time work to full-time work, and (3) the Nebraska Supreme Court decided State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019). David claimed that it was "in the best interests of the parties' minor son to either be placed in the legal and physical custody of [David], or, at a minimum, to spend equal parenting time with each of the parties, and for the parties to have joint legal and physical custody of their minor son."
In her answer, Kimberly responded that there had been no material change in circumstances since the entry of the March 2017 decree. She alleged that David's lack of parenting time with their daughters "was as a direct result of [David's] indecent behavior and conduct, and had nothing to do with interference by [Kimberly]." Kimberly also claimed that David had "continually harassed [her] concerning changes in the Decree" that he wanted, "including texts and emails on a continual basis relating to parenting time and custody." She sought dismissal of the complaint and an award of attorney fees.
In their briefs on appeal, the parties reference that David filed a "Motion for Temporary Parenting Time" on December 23, 2019, and that such motion was denied by the district court in an order entered on January 10, 2020. However, neither David's motion nor the district court's corresponding order appear in the transcript before this court.
Trial took place on June 24, 2020, at which time the parties offered witness testimony and other evidence to the district court. David, Kimberly, and their oldest daughter testified. Anthony, age 15 at the time, also testified, but only with the judge and attorneys present. The court directed, and the attorneys agreed, that Anthony's testimony was to be kept confidential and was not to be shared with his parents. We set forth details of the evidence provided at trial later in our analysis as pertinent to the issues on appeal.
The district court entered an "Order Denying Complaint to Modify" on August 12, 2020. Although the court found a material change of circumstances had occurred, it made it clear that its finding was not based upon the Nebraska Supreme Court's decision in State on behalf of Kaaden S. v. Jeffery T., supra, or David's allegation that Kimberly interfered with his parenting time with the parties' daughters. While not pled by David in his complaint, the district court neverthelessdetermined that "[e]vidence as to Anthony's wishes was offered at trial and neither party was surprised by that evidence," and thus the court considered Anthony's wishes in its analysis of whether a material change in circumstances had occurred. The court determined that David "met his burden of proof that a material change in circumstances has occurred since entry of the dissolution in that Anthony is older, he desires to spend more time with David, and Kimberly's work schedule has changed."
The district court "found Anthony to be an articulate and mature fifteen year old who has a good relationship with both of his parents." The court indicated that there was "no doubt both parents love Anthony; both have a strong parent/child relationship with him; and both want what is best for Anthony." The court described Anthony as a good student and athlete who "is mature, articulate, and responsible" with "a strong bond with both parents." However, the court also noted there was "no doubt the parties do not get along," describing the difficulties and stress caused by "the ongoing conflict" between David and Kimberly concerning David's amount of parenting time with Anthony. The court further identified that "David acknowledged discussing the subject [of equal parenting time] with Anthony" because "when [David] brings it up with Kimberly, she either tells him she wants to follow the original agreement or he gets no response."
The district court emphasized a particular instance of David communicating with Anthony about the parenting plan. In November 2019, "David texted Anthony asking . . . if he had talked to Kimberly yet about equal [parenting] time." The court described that David "told Anthony that David sent a text to Kimberly about equal [parenting] time" and then proceeded to "forward to Anthony the text message David had sent to Kimberly in its entirety" when Kimberly did not respond. As summarized by the district court, these text messages forwarded to Anthony included the following information:
• Kimberly had told David she will never go 50/50;
• David encouraged Kimberly to talk to Anthony and make the right decision based on Anthony's wishes;
• The law in Nebraska has changed and parenting time now starts at equal;
• Kimberly allowed both girls to decide whether to go with David so she should treat Anthony the same and likewise let him decide;
• David and Anthony had already discussed the logistics of a "7/7" plan with start and stop times;
• David thanked Kimberly in advance for having a conversation with Anthony, listening to Anthony, and agreeing to a "7/7" plan before going to court.
In light of this exchange and other evidence adduced at trial, the district court stated:
The court takes no issue with the substance of David's message to Kimberly. However, by sending this message to Anthony, David undermined Kimberly's authority; disrespected her opinion; suggested Anthony was being treated different than his sisters; misstated the law; suggested Kimberly was not following the law; suggested Kimberly was not doing the right thing; and implied that Kimberly refused to listen to Anthony. The bottom line is that Kimberly had responded to David and told him she would not agree to 50/50 time. Rather than accept her response and proceed to mediation and/or court, David went through Anthony to try [to] get a different response. David's actions put Anthony in the middle of parental conflict. Nonetheless, David testified that he acted appropriately andthat it was healthy for Anthony to know what was said between David and Kimberly. The court disagrees. It is inappropriate to involve Anthony in these discussions at the level David chose to involve him. Putting Anthony in the middle of parental dispute and undermining Kimberly in front of Anthony is not healthy nor does it provide for Anthony's emotional health and stability.
The district court concluded that "[m]odifying Anthony's custody to joint physical custody will only serve to increase his exposure to parental conflict as well as the opportunity for him to be placed in the middle of parental conflict" and would not be in Anthony's best interests. It added, "The court has considered the custody factors identified by statute and case law including Anthony's wishes but notes that Anthony's wishes are just one factor of many the court is required to consider." David's complaint for modification was denied.
David now appeals.
David assigns that the district court erred in (1) denying his motion for a temporary change to the parties' parenting time; and (2) denying his complaint for modification, particularly in its determination that increasing his parenting time was not in Anthony's best interests.
Modification of a judgment or decree relating to child custody,...
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