Yeutter v. Barber, 011921 NECA, A-19-993

Docket NºA-19-993
Opinion JudgeWELCH, JUDGE
Party NameKristen K. Yeutter, appellee, v. Jesse D. Barber, appellant.
AttorneyMatthew Stuart Higgins, of Higgins Law, for appellant. Donald L. Schense, of Law Office of Donald L. Schense, for appellee.
Judge PanelMoore, Chief Judge, and Bishop and Welch, Judges.
Case DateJanuary 19, 2021
CourtCourt of Appeals of Nebraska

Kristen K. Yeutter, appellee,

v.

Jesse D. Barber, appellant.

No. A-19-993

Court of Appeals of Nebraska

January 19, 2021

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 Sarpy County: Nathan B. Cox, Judge.

Matthew Stuart Higgins, of Higgins Law, for appellant.

Donald L. Schense, of Law Office of Donald L. Schense, for appellee.

Moore, Chief Judge, and Bishop and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE

INTRODUCTION

Jesse D. Barber appeals the Sarpy County District Court order modifying the visitation and child support portions of an earlier paternity decree. For the reasons set forth herein, we affirm in part and in part reverse and remand with directions.

STATEMENT OF FACTS

Barber and Kristen K. Yeutter are the parents of Jace C. Barber, born in 2014. In June 2017, Barber filed a complaint for modification of the parties' paternity decree seeking, among other things, joint legal and joint physical custody of Jace; specific parenting times of the parties including appropriate times and numbers for telephone access; and a transition plan to include the time and places for transfer of Jace, method of communication or amount and type of contact between the parties during transfers, and duties related to transportation of Jace during transfers. On July 24, Yeutter filed an answer and cross-complaint for modification seeking, among other things, sole legal and physical custody of Jace; child support, health insurance, and childcare expenses; that any parenting time awarded to Barber be supervised; and requested that such amounts be awarded retroactively. On July 26, the district court entered an order granting Barber temporary visitation from "Saturday, one week from 9:00 a.m. to 5:00 p.m.; Sunday the following week, from 9:00 a.m. to 5:00 p.m."

At the time of the March 2019 trial, Jace was 4 years old. Yeutter testified that she has been Jace's sole financial provider and she has nurtured him and taken care of him on a daily basis. Yeutter works full time as a registered nurse and director of nursing earning $86, 000 at the time of trial, which had increased from $66, 000 when the proceedings were initiated.

Yeutter testified that she has never received any child support from Barber. Jace attends daycare and preschool costing $600 per month. Barber paid half of work-related childcare from January 1, 2017, until his incarceration on November 20, 2018. Since that time, Yeutter has paid the entire costs associated with work-related childcare.

At the time of trial, Barber had been convicted of the first-degree sexual assault of Yeutter's daughter and had been sentenced to 10 to 12 years' imprisonment. Barber's affidavit, which was admitted as an exhibit, set forth that prior to his incarceration, he was employed as a carpenter earning $2, 500 per month. However, Barber's mother testified that Barber had been employed as a deck builder earning $18 per hour. Yeutter testified that Barber had been making $20 per hour plus side jobs. After Barber's incarceration on November 20, 2018, his monthly income was reduced to $30.

Barber's mother testified that she has power of attorney over Barber's financial affairs; she is familiar with the extent of Barber's financial estate; and that Barber does not own any real estate, automobiles, or personal property valued at over $50 except a couch that might exceed that amount. However, she admitted that she and her husband paid off the $5, 040 loan on Barber's Dodge SUV which was still listed in Barber's name.

Barber's mother testified that Barber was actively involved in Jace's life prior to Barber's incarceration, always exercised the visitation he was allowed, and petitioned for additional visitation. Barber's mother also testified that she visits Barber weekly at the Nebraska State Penitentiary and that: When we visit him, there are other inmates there that have their children there and get to interact, and it breaks his heart. My son cries when he watches them. It's heart wrenching.

I'm trying to keep him informed of what's going on, you know, and any bit of interaction that we have with our grandson, and I mean it's hard for him. I feel it is necessary so he doesn't just totally lose 5 years of [Jace's] life, but it's hard on him. And he can't . . . talk to him.

Yeutter testified that Jace is not aware that Barber is incarcerated and that she is reluctant to be involved in communications between Jace and Barber because of Barber's criminal activity, which resulted in Barber's incarceration. However, Jace still communicates with his paternal grandparents via Facetime and has had two day-long visits with them. Yeutter opined that it might be reasonable to have Jace's paternal grandparents facilitate Jace's communication with Barber. Yeutter testified: My thoughts are that . . . due to the nature of [Barber's] crime and the fact that [his crime] involves a child of mine, any communication with Jace and [Barber] take place while Jace is with his [paternal] grandparents. And any letters can be sent to [Barber's] mom and . . . any photos [of Jace] can be sent [to Barber] by his mom, because Jace will continue to have a relationship with his grandparents.

However, Yeutter was not willing to commit to any specific visitation schedule with Jace's paternal grandparents as she was taking things "day by day," nor was she willing to commit to "any kind of relationship" between Jace and Barber. Yeutter was willing to send photos of Jace, send photos of grade reports once Jace starts school to Barber's mother, and agreed to show Jace any letters and cards sent to him by Barber.

In September 2019, the Sarpy County District Court entered a modification decree in which it found that Barber failed to meet his burden establishing a material change of circumstances; however, the court found that Yeutter did meet her burden of establishing a material change of circumstances due to Barber's November 2018 sentencing to 10 to 12 years' imprisonment for first degree sexual assault. The court awarded Yeutter legal and physical custody of Jace; ordered Barber to pay $50 per month in child support starting on January 1, 2019; and ordered Barber to pay retroactive child support of $516 per month from August 1, 2017, to December 1, 2018. The parenting plan attached to the court's modification decree set forth, in pertinent part: Because the noncustodial parent is in custody with the Nebraska Department of Corrections for the next five to six years, the court has created this Parenting Plan, pursuant to the requirements of the Nebraska Parenting Act. . . . .

The Court is not aware of any facts that would make the noncustodial parent an unfit or improper person to be involved in the parenting of the minor child(ren). However given the noncustodial parent's inability to actively participate in these proceedings due to his incarceration, the court is uncertain of the noncustodial parent's ability or willingness to be actively involved in the parenting of the minor child(ren). As such, the court has set forth the general parenting plan detailed below. . . . .

2. The noncustodial parent may have parenting time with the minor child(ren) during the following times: each weekend, each holiday (including all secular and religious holidays), and each summer,...

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