Vaughn v. Schnell, No. A-07-328 (Neb. App. 4/8/2008)
| Decision Date | 08 April 2008 |
| Docket Number | No. A-07-328.,A-07-328. |
| Parties | ERIC VAUGHN, APPELLANT, v. INGRID SCHNELL, APPELLEE. |
| Court | Court of Appeals of Nebraska |
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Eric Vaughn appeals from an order of the district court, which modified the dissolution decree by awarding sole custody of the parties' minor child to Ingrid Schnell, modified Eric's child support obligation, and awarded Ingrid the income tax dependency exemption for the minor child. Upon our de novo review, we find no abuse of discretion by the district court and we affirm the order in all respects.
A decree of dissolution was entered on January 12, 2004, pursuant to a settlement agreement between the parties which was approved by the court. The parties were awarded joint legal and physical custody of their minor child, Aiden Vaughn, born July 18, 2002. The decree provided:
The parties will communicate and have joint input regarding major decisions affecting the child's health, education and welfare. Either parent may make emergency decisions affecting Aiden's health or safety while he is in the physical custody of such parent. Both parents shall continue to have full and equal access to Aiden's education and medical records. The parties shall cooperate with each other to encourage a good relationship between parents and child.
No specific parenting time was set forth within the decree. Eric was ordered to pay $150 per month as child support according to a joint physical custody worksheet attached to the decree. Eric was awarded the income tax dependency exemption beginning in 2003, with the decree specifically recognizing that Ingrid was in school and working part time and Eric was not currently employed, but was employed at approximately the rate shown on the worksheet.
On June 20, 2006, Eric filed a complaint to modify, in which he alleged that a material change of circumstances had occurred and that it was in the best interests of Aiden to be in the sole physical custody of Eric. A temporary order was entered on June 30, which continued the custody as set forth in the decree but ordered that Ingrid not have any overnight male visitors in her home while Aiden is present. Ingrid filed an answer and counterclaim on July 21, in which she also alleged that a material change in circumstances had occurred since the decree and that it would be in Aiden's best interests that sole custody be awarded to Ingrid. Ingrid also alleged that a specific visitation order should be entered awarding Eric reasonable visitation and that Eric be required to pay child support in accordance with the Nebraska Child Support Guidelines.
Prior to trial, Ingrid filed a motion to compel Eric to answer requests for discovery, which was granted. Thereafter, Ingrid filed a motion for sanctions, which motion was denied.
Trial occurred on October 23, 2006. Both parties testified, and their testimony will be discussed in further detail below. Ingrid also called a physician's assistant and her mother to testify. On January 12, 2007, the trial judge wrote a letter to counsel, outlining the court's findings relative to the issues submitted for resolution, which letter directed Ingrid's counsel to prepare a journal in accordance with the court's findings. This letter was signed by the trial judge and file stamped by the clerk. On January 24, an order was entered by the court. On February 5, Eric filed a motion for reconsideration or, in the alternative, a motion for new trial, and Ingrid filed a motion to alter or amend. On March 14, both motions were overruled, and on March 26, Eric filed his notice of appeal.
Eric asserts that the trial court erred (1) by finding that Ingrid proved a material change in circumstances warranting a change in custody rather than finding that Eric met this requirement, (2) by finding that it was in Aiden's best interests to be placed in Ingrid's custody, (3) in calculating child support, and (4) in awarding Ingrid the tax dependency exemption for Aiden each year.
Child custody 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. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004); Johnson v. Johnson, 15 Neb. App. 292, 726 N.W.2d 194 (2006).
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Simpson v. Simpson, 275 Neb. 152, 744 N.W.2d 710 (2008). Modification of child support is entrusted to the discretion of the trial court. Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005). An appellate court reviews proceedings for modification of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion. Id.
A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Simpson v. Simpson, supra.
When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004). The question in this case is the effect of the January 12, 2007, letter, signed by the trial court and file stamped by the clerk, prior to the entry of the order on January 24. This practice has been consistently disapproved, see City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006), because of the uncertainty as to which filed document is the final appealable order. See, also, Peterson v. Peterson, 14 Neb. App. 778, 714 N.W.2d 793 (2006) (). In this case, the January 12 letter set forth the court's findings with respect to all of the issues presented for resolution, including the parties' incomes to be used for calculating child support. However, the letter did not contain the amount of child support to be paid by Eric, but, rather, directed that a child support worksheet be prepared. A worksheet was attached to the January 24 order. Thus, in this instance, there was one matter left unresolved — the actual determination of the child support amount. Therefore, the January 24 order was the final order, the parties' tolling motions were timely filed under Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2006), and the notice of appeal was timely filed following the overruling of the tolling motions.
Material Change in Circumstances.
Eric first assigns that the trial court erred in finding a material change in circumstances sufficient to warrant a modification of custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Heistand v. Heistand, supra; Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005). The party seeking modification of child custody bears the burden of showing a change in circumstances. Id. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. Id.
Prior to the modification of a child custody order, two steps of proof must be taken by the party seeking the modification. First, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests. Adams v. Adams, supra.
In this case, both parties sought modification of the custody provision contained in the decree. The joint custody arrangement was decreed based upon the agreement of the parties. Although not entirely clear from the record, it appears that Eric and Ingrid were both residing in Alliance at the time the decree was entered. As recited in the decree, Ingrid was attending school and working part time and Eric was unemployed. At some point, Eric moved to North Platte and began working at the Union Pacific railroad. The time that Aiden spent with each parent was flexible; however, it appeared that Aiden initially spent more time in Ingrid's care. Beginning in either the summer of 2005 or 2006, the parties began exchanging Aiden on a weekly basis, generally from Wednesday through Wednesday. Either the parties met at a location between Alliance and North Platte or, on occasion, one party would travel to the home of the other party.
Evidence was presented that problems have arisen between the parties in connection with their joint parenting. The parties have significant difficulty communicating and cooperating with each other, there have been problems with regard to the exchange of Aiden between the parties, and there is inconsistency between the parties regarding the discipline and care of Aiden, as well as the environment provided by each parent. Ingrid testified that the weekly exchange has become too difficult. Further, Aiden will begin kindergarten in the summer/fall of...
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