Weaver v. Weaver
| Decision Date | 12 February 2021 |
| Docket Number | No. S-19-1058.,S-19-1058. |
| Citation | 954 N.W.2d 619,308 Neb. 373 |
| Parties | Meaghann Shaw WEAVER, appellee, v. John Glen WEAVER, appellant. |
| Court | Nebraska Supreme Court |
Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., Lincoln, for appellant.
Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., Omaha, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
A father appeals the district court's denial of his motion to modify parenting time after the court concluded that while more parenting time with the father would be in the child's best interests, the father had failed to demonstrate a material change of circumstances. At issue is the meaning of the provision in the custody agreement incorporated into the decree stating that if a dispute over modification were submitted to a court, such court would apply the "then-governing legal standard." Also at issue are the factors applicable to determining whether there has been a material change of circumstances. On further review, albeit for different reasons, we affirm the Nebraska Court of Appeals’ opinion, which reversed the judgment of the district court and remanded the cause with directions.
A decree of divorce for John Glen Weaver (Glen) and Meaghann Shaw Weaver was entered by the District of Columbia Superior Court in May 2016. Subsequently, both Glen and Meaghann moved to Omaha, Nebraska. Pursuant to Neb. Rev. Stat. § 42-711 (Reissue 2016), the foreign decree was registered in Nebraska in May 2017.
One child was born of the marriage, in July 2015. The decree incorporated a settlement agreement. The settlement agreement provided that Meaghann shall have sole physical custody of the child, with parenting time for Glen, and that Glen and Meaghann were to have shared joint legal custody.
The agreement set forth that Meaghann planned on moving with the child to Omaha and that Glen, who is in the U.S. Air Force, was trying to get stationed there. Under the provisions of the agreement governing physical custody, set forth in paragraph 4.1, when Meaghann and the child moved to Omaha in July 2016, and in the event Glen was also able to be stationed in Omaha, then "the parties will work together to implement gradually, and over time, a schedule in which Glen will visit with [the child] every other weekend (Friday — Sunday) and one dinnertime visit every other week."
Additionally, Glen would have parenting time with the child while she was in daycare when Meaghann was working:
Glen may visit with [the child] on occasion while [the child] is in work-related daycare, so long as Glen provides reasonable notice of any such visit, such visits do not take place at Meaghann's home, and such visits are not disruptive to [the child] and do not interfere with any plans or activities associated with [the child's] daycare or planned by her daycare provider.
Under a separate paragraph governing child care expenses, the parties contemplated that until July 31, 2016, the child's maternal grandmother would be the childcare provider, inasmuch as it described payment to the grandmother for these services. Specifically, the agreement stated that for care provided between August 15, 2015, and July 31, 2016, both Glen and Meaghann were to "have gifted $17,500" to her by June 1, 2016. Starting August 1, 2016, "the parties will contribute toward the cost of [the child's] work-related childcare, with Glen setting the limit of his contribution toward childcare in Nebraska at ... $200/week." By its terms, the agreement did not specifically contemplate at what location the daycare for the child would take place or who would provide the daycare after July 31, 2016.
In the event the child were "at some point in the future" enrolled in private school "by mutual agreement of the parties," Glen would contribute a minimum of $1,000 annually toward private school tuition. If the parties were unable to reach an agreement about whether the child should enroll in private school, they were directed to follow the protocol set forth in the agreement for "Dispute Resolution Regarding Child Custody."
According to the agreement, at the time it was made, Glen had been visiting the child 1 hour every Monday, Wednesday, and Friday, from 5 to 6 p.m., plus an additional weekend day each week for 1 to 3 hours.
There was a provision in the agreement for Glen to be able to see the child 3 to 4 hours per day during an anticipated upcoming 10-day leave. Beyond that, no provision was set forth in the agreement regarding parenting time during holidays, vacations, or school breaks.
Meaghann agreed that during the time that both parties lived in the District of Columbia, in addition to accommodating the described schedule for parenting time, she would "consider in good faith requests for incrementally longer visits so long as such visits do not interfere with [the child's] eating or sleeping schedule."
The implementation of the graduated schedule set forth in the agreement was for the eventuality that both parties moved to Omaha and was to occur over a period of 4 months.
Paragraph 4.2 of the agreement, entitled "Modification of Physical Custody," described that "either party may request a modification to the physical custody" "[u]pon a material and significant change in circumstance of either party, or in the needs or interests of [the child]."
Paragraph 4.2 explained that the parties were to "discuss negotiation of a modification of custody in good faith and attempt to agree upon a resolution that is in the best interests of [the child]." In the event Glenn and Meaghann were "unable to agree," they were to follow the protocols set forth in the agreement for "Dispute Resolution Regarding Child Custody." In full, paragraph 4.2 provided:
Modification of Physical Custody. Upon a material and significant change in circumstance of either party, or in the needs or interests of [the child], either party may request a modification to the physical custody of [the child]. Upon such a request, the parties will discuss the modification in good faith and attempt to agree upon a resolution that is in the best interests of [the child]. If either party believes the terms of this Agreement related to custody are not in [the child's] best interest at a future time, the parties may discuss negotiation of a modification of custody in good faith and attempt to agree upon a resolution that is in the best interests of [the child]. If the parties are unable to agree, they shall follow the protocols for Dispute Resolution Regarding Child Custody set forth herein.
In turn, paragraph 4.4, entitled "Dispute Resolution Regarding Child Custody," stated that in the event the parties were unable "to resolve the dispute through several discussions on their own, they agree to meet with a mutually agreed upon mediator or facilitator, or they will meet with an expert in the field of the dispute (physician, teacher, etc.) to gain more information and advice."
But if they were unable to reach an agreement by these means, either party could petition a court for relief, with the court to apply the "then-governing legal standard to such a request for modification of custody":
In the event the parties are unable to reach an agreement through this dispute resolution process, including agreements related to modifications in the physical custody schedule as provided in Paragraph 4.1 and 4.2 supra , either party may petition a court of competent jurisdiction for relief, provided however that any court of competent jurisdiction shall apply the then-governing legal standard to such a request for modification of custody.
The decree did not set forth any other future contingencies relevant to physical custody. In paragraph 14.15, entitled "Construction of this Agreement," it was agreed that because both parties and their counsel participated in drafting the agreement, no provision shall be interpreted for or against a party merely because the party or that party's legal representative drafted the provision. On appeal, Glen asserts that he was not represented by counsel in forming the custody agreement. And the decree sets forth on the signature page that Glen represented himself pro se. The signature page demonstrates that Meaghann, in contrast, was represented by counsel.
In December 2017, Glen filed a complaint to modify the decree by awarding the parties joint physical custody of the child. A prior complaint to modify filed in February 2017 had been dismissed for lack of prosecution in November 2017.
Glen asserted in the complaint that since the time of the decree, there had been material changes in circumstances warranting modification. As relevant here, Glen specifically alleged as material changes in circumstances the move to Omaha, the parties’ incomes, and Meaghann's failure to abide by the decree's provisions relating to parenting time while the child was in daycare or to abide by provisions of joint legal custody relating to involving Glen in educational, medical, and religious decisions. Further, the complaint alleged that both parties’ work schedules had changed, including a significant change to Glen's "prior deployment schedule" as a current active duty service member.
Meaghann denied the allegations of material changes in circumstances. She alleged that they were all known and taken into consideration at the time of the decree. Meaghann alleged that she had fully complied with the provisions of the decree and that any failure to comply with the parenting plan was solely based on Glen's actions.
The court ordered settlement negotiations or mediation, which were unsuccessful, and a modification hearing was held.
Glen's attorney argued at the hearing that there was a material change of circumstances and that it was against public policy for the custody...
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