State v. Zachary R.

Decision Date22 November 2022
Docket NumberA-22-222
PartiesState of Nebraska on behalf of Samantha P., appellee and cross-appellant, v. Zachary R., appellant and cross-appellee.
CourtNebraska Court of Appeals

State of Nebraska on behalf of Samantha P., appellee and cross-appellant,
v.

Zachary R., appellant and cross-appellee.

No. A-22-222

Court of Appeals of Nebraska

November 22, 2022


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 Buffalo County: John H. Marsh, Judge. Affirmed as modified.

Nathan P. Husak, of Bruner Frank, for appellant.

Nicole M. Mailahn and Allison R. Seiler, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

Moore, Riedmann, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Zachary R. appeals from an order of the district court for Buffalo County, which awarded Samantha P. primary physical custody of the parties' children. The court also set a parenting time schedule and modified a previous award of child support to Samantha. On appeal, Zachary asserts that the court abused its discretion by not awarding the parties joint physical custody of the children, not awarding him reasonable parenting time, and not adopting a joint custody child support calculation. Samantha has cross-appealed, asserting that the court erred in not applying the child support modification retroactively. For the reasons set forth herein, we affirm as modified.

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STATEMENT OF FACTS

The parties have never been married to each other. Lua P. was born to the parties in 2010. This paternity action was initiated in March 2012 when the State of Nebraska filed a complaint to establish child support for Lua. In June, the district court entered an order for support, finding that Zachary was Lua's father and ordering him to pay child support to Samantha of $250 per month. Subsequently, Parker P. was born to the parties in 2013. After the State filed a complaint to modify, the court entered an order in March 2017, finding that Zachary was Parker's father and increasing Zachary's child support obligation to $618 per month. The court's calculation was based on "the historical earnings of the [parties]" and assigned a total monthly income of $2,426.67 to each of the parties. Zachary's child support obligation was suspended on April 11, 2017 (the parties lived together with the children in Texas at that point), and then support was reinstated on September 28, 2020 (after the parties separated and were no longer residing together).

On March 5, 2021, Zachary filed a third party complaint against Samantha, seeking to establish custody and parenting time. He asked the court to grant him both temporary and permanent legal and physical custody of the children, or alternatively, to grant the parties joint custody. He also asked the court to revise, modify, and reallocate child support, nonreimbursed health care expenses, and childcare expenses.

On April 5, 2021, Samantha filed a third party answer and counterclaim, seeking modification of Zachary's child support on a temporary and permanent basis, along with temporary and permanent custody of the children. She filed an amended third party answer and counterclaim on April 15, in which she specifically alleged that, since entry of the March 2017 child support order, there had been a material change in circumstances in that Zachary's income had increased. She again asked the court for temporary and permanent custody and child support and other equitable relief.

The district court entered a temporary order on April 19, 2021. The court granted Samantha temporary legal and physical custody of the children subject to Zachary's parenting time based on "what appears to have been the prior practice of the parties." Zachary's temporary parenting time was to occur on Monday, Wednesday, and Thursday from 3:30 p.m. to 5:30 p.m.; on Tuesday from 3:30 p.m. to 6:30 p.m.; on alternating weekends from 5:30 p.m. Friday until 6:30 p.m. Sunday; and on alternating holidays. The court also granted Zachary 3 weeks of summer parenting time. The court found that a recalculation of child support was more appropriate for final hearing, and it observed that modification of child support may be made retroactive to the time of filing.

On June 21, 2021, Samantha filed a motion for temporary orders, asking the district court to address the parties' responsibilities for health insurance, nonreimbursed health care and childcare expenses, as well as the issue of parental communication, none of which had been addressed by the court's April 19 temporary order. On July 29, the court entered an order approving the parties' stipulation that Zachary was to provide health insurance for the children, pay half of childcare expenses, and pay half of nonreimbursed medical expenses for the children after Samantha covered the first $250. The stipulation approved by the court also set forth provisions addressing parenting communication, including that the primary form of communication between the parties was to be by email, except in the event of an emergency, in which case they were to call by phone.

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Trial was held before the district court on December 16, 2021. The court heard testimony from the parties, Samantha's boyfriend, and certain other witnesses, and the court received various exhibits into evidence.

The parties began dating in 2007, and they temporarily broke up several times before their final separation in February 2020. Samantha has been the primary caretaker for the children at most points since their birth. Between 2007 and 2015, the parties lived in Nebraska, sometimes together and sometimes separately, and had various employments. Zachary was also in a band, and the band performance schedule required him to be away from home some evenings and late nights and to take occasional trips out of town. By the time of the trial, however, Zachary was only involved in band activity about four times per year.

At some point, Zachary suggested a move to Texas and Samantha agreed since she had family there. The parties lived in Texas between August 2015 and September 2017. After the move to Texas, Samantha worked part time for a short period, while Zachary had full-time employment. His job, which increased from 40 hours per week to between 75 and 80 hours per week, also required occasional out-of-state travel. Samantha continued to be the primary caregiver for the children while the parties were in Texas. The parties returned to Nebraska in September 2017 after a hurricane destroyed their home and belongings.

Upon returning to Nebraska, the parties lived with Zachary's mother in Kearney until March 2018 and then lived in their own residence until their separation. With respect to parenting roles, Samantha testified that Zachary had "a little more time with [her] and the kids" during this period.

Samantha ended the parties' relationship on February 28, 2020. Since March of that year, Samantha has lived in an apartment in Kearney. Her boyfriend, Matthew Zavela, resided with her there at the time of trial. Samantha has worked at a medical office for more than 2 years. Her schedule is Monday through Friday from 8 a.m. to 5 p.m. Her paystubs reflect a pay rate of $14 per hour (with occasional overtime at $21 per hour). Her 2020 income tax returns and W-2 show wages of $25,352. Samantha has health insurance coverage for herself.

When the parties separated and at the time of the temporary order, Zachary was employed at Eaton Corporation in Kearney, working from 10 p.m. to 7 a.m. Monday through Saturday and every other Sunday. His rate of pay was $25 per hour. In May, 2021, Zachary began employment at Parker Hannifin in Kearney. He initially had an overnight schedule, but at the time of trial, he was working Friday, Saturday, and Sunday from 6:30 a.m. to 6:30 p.m. and earning $27 per hour. The district court received, for demonstrative purposes, Zachary's proposed joint custody child support calculation (based on monthly income of $4,680 for him and $2,426.67 for Samantha). Zachary's W-2 earnings from Eaton were $56,106 for 2019 and $63,393 for 2020. The court also received a compensation summary, pay stubs, and benefit information from Zachary's current employment at Parker Hannifin. According to this information, Zachary's annual salary is $56,106 ($4,680 per month). His paystubs also show that he is working some overtime hours, for which he is paid $40.50 per hour. The parties agreed upon the income figures used in their respective proposed child support calculations.

Zachary's current residence in Kearney is a three-bedroom, two-bathroom apartment with a garage. Each child has their own bedroom in the apartment, and Zachary gave Lua the master

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bedroom, which has its own bathroom, to help ensure her privacy. Zachary testified that the apartment is safe and located in a safe neighborhood.

Zachary testified at length about the children, their personalities and interests, and his relationship and activities with them. From this testimony, it is clear that Zachary is a good parent, has a good relationship with the children, and is actively involved in their lives. Zachary testified that one of the reasons he was seeking a parenting time schedule with more overnights was so that he could have more time to engage in an active relationship with the children. According to Zachary, he ensures that the children's needs with respect to food, clothing, and hygiene are always met when they are in his care.

Zachary testified about his involvement in the children's education, including his communication with the children's teachers and his attendance at parent-teacher conferences when they do not conflict with his work schedule. He noted that when Lua was struggling in math, he found a tutor for her over Samantha's objections. He did acknowledge not working with the children on their homework every day after school because of the limited time he has with them. He also testified about his...

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