Shandera v. Schultz
| Docket Number | A-22-783 |
| Decision Date | 22 August 2023 |
| Parties | Donald L. Shandera III, appellee, v. Kaitlyn A. Schultz, now known as Kaitlyn A. Weston, appellant |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Washington County: JOHN E SAMSON, Judge. Affirmed.
Adam R. Little, of Nebraska Legal Group, for appellant.
Nicholas R. Glasz and William Taylor, Senior Certified Law Student, of Glasz Law Firm, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Kaitlyn A. Schultz, now known as Kaitlyn A. Weston, appeals the order of the district court for Washington County overruling her amended counter-complaint for modification of custody and removal of her minor child from the jurisdiction. Based on the reasons that follow, we affirm.
On December 2, 2014, the district court entered a decree of paternity and custody, finding Donald L. Shandera III to be the natural father of Austyn M. Shandera, born in 2013. Kaitlyn is Austyn's biological mother. Kaitlyn resided in Texas at the time of the decree, and Donald resided in Nebraska. Donald was awarded sole legal and physical custody of Austyn, and Kaitlyn was awarded parenting time. Kaitlyn appealed the district court's award of custody to Donald and we affirmed. See Shandera v. Schultz, 23 Neb.App. 521, 876 N.W.2d 667 (2016).
On July 11, 2021, Donald filed a complaint for modification alleging there had been a material change in circumstances since the decree was entered and seeking to amend the visitation and parenting plan. Kaitlyn filed an answer and counter-complaint on September 29, and an amended counter-complaint on June 27, 2022. In the amended counter-complaint she alleged that there had been material changes in circumstances since the decree was ordered that warranted modification of the decree. Specifically, she alleged that the material changes included: (1) she had relocated from Texas to Iowa, and was living approximately 2 to 21/2 hours from Donald and Austyn, (2) Donald had relocated from Washington County to Saunders County, such that Austyn's school district and living environment had changed, (3) Austyn had aged and matured such that the existing parenting plan was no longer consistent with her best interests, (4) the parties' incomes had changed such that the child support calculation would result in a change of more than 10 percent, (5) Donald's co-parenting skills had changed such that the current parenting plan was no longer in Austyn's best interests, and (6) the parties' respective living environments had changed. Kaitlyn asked the court to modify the decree to award her sole physical custody of Austyn and to grant her permission to remove Austyn to Iowa. She also sought full legal custody of Austyn, or in the alternative, joint legal custody.
Trial was held on Donald's complaint and Kaitlyn's amended counter-complaint in August 2022. The evidence at trial showed that Donald was living in Ashland, Nebraska, with Austyn, his wife Colleen, and his stepson, Triston, who was 12 years old at the time of trial. Donald and Colleen had been married for 5 years. At the time of the original decree Donald lived in Blair, Nebraska. He moved to Ashland to start his own construction business. By owning his own business, he has flexibility in his work hours and is home when Austyn goes to school and comes home from school.
Donald testified that Austyn has friends in the neighborhood. She also has aunts, uncles, and cousins who live within a 10-minute drive of Donald's home. Donald also has a sister who lives in Lincoln, Nebraska. Austyn spends time with her relatives that live nearby on a regular basis.
Kaitlyn had moved multiple times since the decree was entered. Kaitlin lived in Texas at the time of the decree and stayed there for 6 years. She then moved to Oregon for 2 months, moved back to Texas for 4 to 5 months, and then moved to La Vista, Nebraska. In October 2019, after living in La Vista for 6 months, she got engaged to Ryan Weston and moved to West Des Moines, Iowa, to be with him. At the time of trial she continued to live in West Des Moines and was married to Ryan. Donald testified it takes 2 hours and 40 minutes to drive from Ashland to West Des Moines.
Kaitlyn testified that changes since the initial decree include her relocation to West Des Moines and her marriage to Ryan. She testified that Ryan's income gives her more money to put toward Austyn and her well-being, as well as allowing her to spend more on extracurriculars and activities for Austyn. Kaitlyn also testified she was working as a nurse and her job was stable and there was potential for growth. She was also earning more income than she did in Texas and had affordable health insurance. She further stated that at the time of the decree she was living paycheck to paycheck, and that was no longer the case. She believed her current circumstances were an improvement in her living situation and in her ability to provide for Austyn. Kaitlyn and Ryan have a house in West Des Moines, where Austyn has her own bedroom, as well as a big yard and a park close by. Kaitlyn does not have any family in West Des Moines.
At the time of trial Austyn had been in the Ashland-Greenwood school district for two years. Donald testified that she was doing well in school with some extra help. Her teacher suggested the use of a tutor at school for reading and math. Kaitlyn and Donald discussed it and agreed that it would be good for Austyn. Donald also testified that both he and Kaitlyn received a letter from the school recommending that Austyn enroll in summer school. Kaitlyn testified that Donald told her he was going to enroll Austyn in summer school without discussing it with her. Donald did not dispute that occurred. Kaitlyn did not oppose Austyn being in summer school but thought Donald should have discussed it with her first. The evidence also showed that both parties have regular communication with Austyn's teachers and have access to information and communication from her school.
Both parties presented evidence regarding two sexual incidents that occurred between Austyn and other minors. The first incident happened during Kaitlyn's parenting time and involved inappropriate touching between Austyn and another minor child. Austyn was interviewed at Project Harmony and the incident was found to be harmless exploration by the minors. Kaitlyn testified that Project Harmony suggested that Austyn start therapy, not necessarily because of the sexual incident, but because going between two different households can be difficult for a child. Kaitlyn testified that she wanted to put Austyn in therapy and talked to Donald about it, but he did not feel it was necessary at the time.
The second incident occurred in July 2021 when Austyn was in Donald's custody. Austyn had inappropriate sexual contact with her five-year-old cousin at Donald's sister's house in Lincoln. Donald testified he called Kaitlyn right after he learned about the incident from his sister. Donald also contacted Child Protective Services and the police department as well.
At the recommendation of the Department of Health and Human Services (DHHS) and Project Harmony, Donald enrolled Austyn in therapy. However, therapy did not start until several months after the incident because Donald could not find a therapist to see Austyn earlier due to COVID restrictions. Donald did not notify Kaitlyn before Austyn's initial therapy appointment and did not give her therapy updates. Donald testified that Austyn's therapist advised him not to communicate about therapy with Kaitlyn. By the time of trial, Austyn had completed therapy and was discharged.
Kaitlyn did not disagree that Austyn needed therapy, but claimed it was wrong that she did not know anything about Austyn's treatment plan. She did not even know the name of the therapist. She testified that she asked Donald for information about Austyn's therapy multiple times.
Following the incident in July 2021, Donald filed a motion to have Kaitlyn's parenting time temporarily terminated based on her response upon learning about the sexual incident. At the time the parties learned of the incident, Kaitlyn and Ryan's wedding in the Virgin Islands was a few days away and they were scheduled to fly there the next day. Austyn was going with them. Based on the sexual incident, Donald wanted Austyn to stay home because he thought the sexual incident needed to be addressed. He claimed that Kaitlyn did not want to delay the wedding or leave Austyn behind and chose to go ahead with her wedding rather than addressing what had occurred with Austyn. Austyn went to the Virgin Islands with Kaitlyn and Ryan and upon her return, the parties took Austyn to Project Harmony.
Donald's sister whose daughter was assaulted by Austyn, testified that when Kaitlyn first heard about the sexual assault, she told Austyn she did nothing wrong and that she was the victim. The sister also stated that Kaitlyn's wedding was more important to her than getting Austyn help. She also stated she was concerned that Kaitlyn is a mandatory reporter of sexual assault because she is a nurse and did not take the situation seriously.
Kaitlyn's husband, Ryan, testified that Kaitlyn was not dismissive of the sexual allegations and took them seriously. He also testified that Kaitlyn called Child Protective Services after she learned about the incident.
Austyn was also caught stealing small items on several occasions in the year before trial, and all instances occurred when Austyn was in Donald's care. Donald testified that...
To continue reading
Request your trial