Bradshaw v. Frazier

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Antonio Bradshaw, appellee, v. Stephanie Frazier, appellant.

No. A-23-004

Court of Appeals of Nebraska

October 31, 2023

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 Douglas County: Horacio J Wheelock, Judge.

Andrew M. Ferguson, of Smith, Pauley, Slusky &Rogers, L.L.P. for appellant.

Kory L. Quandt and Ryan M. Hoffman, of Bressman, Hoffman, Jacobs & Quandt, P.C., L.L.O., for appellee.

PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, Judge

INTRODUCTION

Stephanie Frazier appeals the Douglas County District Court's order awarding joint legal and physical custody of her minor child to her and Antonio Bradshaw, the father of the minor child. Frazier argues that the district court abused its discretion by reinstating the case and in its award of joint legal and physical custody. Frazier also claims the district court demonstrated a personal bias and prejudice against her. After our review, we affirm.

BACKGROUND

The parties, who never married, are the biological parents of one child, a son born June 2018; however, Bradshaw was not named on the child's birth certificate. Frazier has one other minor child from a prior relationship. That child was 17 years old at the time of trial, and Frazier has full legal and physical custody of her. Bradshaw has two other sons from a prior relationship, in which he has joint physical and legal custody. The boys were 14 and 11 years old at the time of trial, and Bradshaw has physical custody of the boys every other week.

From the time their son was born until August 2020, Bradshaw and Frazier lived together and operated as a family unit. From August 2020 to July 2021, Bradshaw and Frazier no longer lived together, but Bradshaw would spend a substantial amount of time at Frazier's house and would often spend the night there for multiple nights at a time. He would spend from 2 to 7 days a week at Frazier's house with the minor child depending on how well he and Frazier were getting along. After July 2021, Bradshaw and Frazier ended their relationship, which led to fluctuations in Bradshaw's visitation time.

Bradshaw testified that after his relationship with Frazier ended, his visits were dictated by Frazier. Visits would mostly happen at her house. In September 2021, Bradshaw began a romantic relationship with another woman. Bradshaw testified that after Frazier found out he was dating another woman, she would not let him visit their child if he was going to be with his new girlfriend.

Frazier Gets Job in Las Vegas, Nevada.

In late 2021, Frazier began applying for jobs nationally and by the time of trial had received three separate job offers in Nevada. The first two offers were rescinded because Frazier was not living in Nevada at the time. The third offer was pending at the time of trial.

Frazier received notice of the third offer of employment on February 14, 2022. Her new job would pay $3,000 more annually than her current job, and she considered it a promotion from her current job with more opportunities for promotions. Frazier began planning to move, she signed a lease for a home in Nevada, and put her home in Nebraska up for sale.

Bradshaw testified that he did not want Frazier to move to Nevada with their minor child, but if she did, he wanted them to establish a parenting plan first. Frazier testified that at the time, she refused to establish a parenting plan prior to moving to Nevada, because she did not know what the minor child's school schedule would look like. Ultimately, this disagreement, along with a lack of visitation opportunities, led Bradshaw to file a complaint to establish custody and parenting time on February 24, 2022. Frazier sold her house in Nebraska and signed a lease on a home in Nevada in March. Shortly thereafter, she moved her belongings to the new home in Nevada.

Bradshaw discovered that Frazier moved to Nevada when he called the minor child one day in March 2022 and discovered them to be in the car. Frazier had also posted about the move on her social media accounts. Frazier stated she did not move to Nevada in March; she was only there for 4 days to take her belongings to the house she had leased because her home in Omaha had sold.

Temporary Orders and Request for Expedited Trial Date.

Bradshaw filed a motion for temporary relief on March 2, 2022, in which he asked the court for a "possession schedule" consistent with joint legal and physical custody of the minor child. Frazier also filed a motion for a temporary order, in which she asked the court to award her temporary sole custody with supervised visitation for Bradshaw. She also requested an order allowing her to remove the child to Nevada, an order that required Bradshaw to pay child support during the pendency of the case, for mutual and reciprocal restraining orders for her and Bradshaw, and an order that required Bradshaw to pay temporary attorney fees.

After a hearing was held on March 29, 2022, the district court denied Frazier's temporary motion to remove the child to Nevada. The district court ordered Bradshaw and Frazier to engage in settlement negotiations and return in 2 weeks.

At the end of the 2 weeks, the district court held another hearing on April 12, 2022. It awarded the parties temporary joint legal and physical custody of the minor child, on a "2-2-3" schedule in which each parent would have physical custody for two regular weekdays and the parents would alternate 3-day weekends. The parties were ordered to split relevant costs, such as childcare expenses.

On May 12, 2022, Frazier filed a motion for counseling and to set a trial date, in which she requested an order that allowed her to enroll the minor child into counseling. She also requested an expedited trial date in part because Bradshaw had refused to pay daycare and other expenses.

Dismissal Due to Lack of Prosecution and Removal of Child to Nevada.

On June 27, 2022, both parties received a notice of intent to dismiss. The notice provided that each party had 30 days to submit a completed proposed scheduling order (PSO) to the court or the case would be dismissed for lack of prosecution. The notice also clarified that if the case was dismissed, the court assigned to the case could reinstate it at its discretion. It provided instructions on how a party could reinstate the case.

Also on June 27, 2022, the district court filed an order that allowed Frazier to enroll the minor child into counseling. The order noted a hearing was held in chambers and was not placed on the record. It set another status hearing for August 9, at which time a trial date was to be assigned.

On August 2, 2022, neither party had filed a PSO, so the case was dismissed, despite the August 9 hearing date currently scheduled. On August 3, Frazier took the minor child to Nevada, and testified that when she left for Nevada the second time, she had no intention of returning to Nebraska. Frazier testified that she had no plan of leaving for Nevada prior to the dismissal; rather, she only began preparing to move once she found out the case was dismissed. August 3 was supposed to be Bradshaw's parenting day; however, he would not see the minor child again until August 15.

On August 5, 2022, Frazier filed a verified complaint in the Family Division of the Clark County District Court in Nevada. In her complaint, Frazier stated that the Nevada court had emergency jurisdiction over her minor child because Bradshaw had abandoned him. She requested the Nevada court grant her sole legal and physical custody with reasonable visitation for Bradshaw at Frazier's discretion.

Also on August 5, 2022, Bradshaw filed a motion to reinstate the case. Frazier objected, arguing that the notice clearly set forth a procedure and steps necessary to maintain the case, yet Bradshaw failed to abide by that procedure. Since the case was dismissed, Frazier had moved to Nevada and through local counsel, filed a separate case there. She stated that reinstatement of the Nebraska case would "cause extreme prejudice" because the statute of limitations had now run on Bradshaw's original action.

Case Reinstated.

The district court held a hearing on the motion to reinstate on August 9, 2022, and immediately reinstated the case. It ordered Frazier to return the minor child to Nebraska by 6 p.m. the next day and indicated if Frazier failed to do so, contempt proceedings would begin. It also awarded Bradshaw sole legal and physical custody over the minor child. The district court admonished Frazier, stating,

If the minor child is not returned to the State of Nebraska, then we will immediately start contempt actions, at which case I will - and I will not hesitate and using the full authority and power of this Court to make sure at that point that Stephanie Frazier is held accountable for her actions. I have not seen a more deceitful underhanded and fraudulent domestic case in my seven years of practice. This is appalling the laws of the State of Nebraska and the laws of this country have been shame fully [sic] disregarded by these actions.

In response to a motion to reconsider, the court extended the child's return date to August 15, 2022, but denied any further relief. Despite the district court's order, Frazier did not timely return the minor child to Bradshaw. Bradshaw called Frazier on August 15 and she informed him that she believed she was to return the child the next day. Bradshaw contacted the police and Frazier eventually brought their minor child to Bradshaw's residence that evening.

After Frazier returned the minor child to Bradshaw, Bradshaw allowed Frazier to...