Bryant v. Bryant

28 Neb.App. 362

943 N.W.2d 742

Patrick G. BRYANT, Jr., appellee,

v.Stephanie R. BRYANT, appellant.

No. A-19-379.

Court of Appeals of Nebraska.

Filed May 12, 2020.

Stephanie R. Bryant, pro se.

Abbie J. Widger and Morgan C.H. Kristensen, of Johnson, Flodman, Guenzel & Widger, Lincoln, for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Stephanie R. Bryant appeals from the decree of dissolution of her marriage to Patrick G. Bryant, Jr., that was entered by the district court for Otoe County. On appeal, Stephanie challenges the district court's jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and its ultimate custody determination. For the reasons that follow, we affirm the decision of the district court.

BACKGROUND

On October 6, 2017, Patrick filed a complaint for legal separation in the district court for Otoe County. He alleged that both Stephanie and he had been residents of Nebraska since July 7, 2017, and that their children had been living with him from that date through the time of filing. Patrick further alleged that an emergency existed to warrant awarding him temporary custody of the children and that, without such an order, Stephanie would remove the children from Nebraska and "upend [their] stability." On the same date, Patrick filed motions for temporary custody and an ex parte order granting him temporary custody. He alleged that Stephanie had stated an intention to remove the children from Nebraska and had arrived at their school in Syracuse, Nebraska, expressing a desire to remove them. In his motion for temporary custody, he noted that no other custody determination enforceable under the UCCJEA had been entered in any other state. In support of his motions, Patrick filed an affidavit which detailed his reasons for seeking temporary custody. On October 10, the court entered an ex parte order granting Patrick temporary custody of the children and setting the matter for a temporary hearing.

On October 12, 2017, Stephanie filed a motion to vacate, motion to dismiss, and notice of hearing. She asserted that the district court lacked jurisdiction to make an initial child custody determination and that Illinois was the children's home state. On November 6, the district court entered an "Order for Hearing." In the order, the court recited that it had participated in a conference call with a judge from "the Twelfth Judicial Circuit Court, Will County, Illinois," pursuant to the UCCJEA, specifically Neb. Rev. Stat. § 43-1235(c) (Reissue 2016). The district court found that a proceeding had been filed in Illinois regarding custody of the minor children. As a result, the court ordered that a hearing be held on December 5 that would be conducted jointly with the Illinois court, the purpose of which would be to determine the appropriate forum state pursuant to the UCCJEA.

On December 5, 2017, the joint hearing under the UCCJEA was held. Stephanie appeared personally in Illinois with counsel, but was also represented by counsel in Otoe County. Patrick appeared personally in Otoe County with counsel, but was also represented by counsel in Illinois. The two courtrooms were connected telephonically for the hearing.

During the hearing, both courts acknowledged that Illinois was the children's home state for purposes of the UCCJEA. The hearing proceeded on the arguments of counsel in both states. Patrick argued that the Illinois court ought to find that Illinois is an inconvenient forum and decline jurisdiction, which would allow for the matter to be heard in Nebraska. Patrick argued that the parties had been planning a move to Omaha, Nebraska, for months before it actually occurred in July 2017. Patrick was retiring from his service with the U.S. Coast Guard, and he and Stephanie had agreed to utilize the military's moving services to move to Nebraska upon Patrick's retirement. He also argued that he had traveled to Nebraska prior to the move, in search of employment and for purposes of renting or purchasing a home for the family, and that he had secured both employment and housing in Nebraska. Patrick argued that Stephanie was aware of their plans to move to Nebraska, referencing a social media posting Stephanie made, which mentioned them making a " ‘transition back to Nebraska’ " facilitated by movers who were " ‘coming on July 5th. So change is coming, ready or not.’ " Patrick further argued that Illinois was an inconvenient forum because neither Stephanie nor he had any home or personal property in Illinois, both of their extended families lived in Nebraska, he had obtained employment in Nebraska, and their children had been enrolled in school in Syracuse since August 2017.

Stephanie, on the other hand, argued that there was a longstanding discussion between the parties whereby she expressed a desire not to move to Nebraska. She said that Omaha was "not a peaceful environment" and that it had "too many triggers" for her. Stephanie also alleged that Patrick had subjected her to physical domestic abuse. Additionally, Stephanie noted that the witnesses she would call at trial resided in Illinois.

The Illinois court found that it was clear for months that both parties planned to move to Nebraska and that Stephanie did not indicate an unwillingness to move "until the last minute." The court further found that there was no evidence of forum shopping or evidence that the children were removed from Illinois for any improper purpose. Accordingly, the Illinois court determined that it would grant Patrick's motion to dismiss based on inconvenient forum with the understanding that the Nebraska court would accept jurisdiction of the matter. The Nebraska court accepted jurisdiction. There is no indication in the record that any appeal was taken in Illinois from the dismissal of the case there.

Stephanie filed a motion for temporary custody on December 5, 2017. Patrick filed a similar motion for temporary custody on December 7, shortly after the UCCJEA hearing. The court heard arguments on both parties’ motions on December 12. It awarded the parties temporary joint legal custody and awarded temporary physical custody to Patrick. It awarded Stephanie parenting time every Wednesday from 5 to 8 p.m. and every other weekend from 6 p.m. on Fridays to 6 p.m. on Sundays. The court also ordered Stephanie to pay temporary child support of $472 per month.

On July 12, 2018, Patrick filed an amended complaint for dissolution of marriage. On November 28, counsel for Stephanie was allowed to withdraw. Stephanie has proceeded as a self-represented litigant since that time and continues in that capacity on appeal. Trial was held on February 7 and March 7, 2019. The evidence revealed that the parties were married on November 14, 2009, while Patrick was an active duty member of the Coast Guard. At that time, the parties lived on Martha's Vineyard, Massachusetts. Their son, John B., was born in September 2010. John has had severe food allergies and recurrent eczema throughout his life. Patrick was later transferred to Manistee, Michigan, where their daughter, Cora B., was born in May 2012. The family thereafter moved to Bolingbrook, Illinois, again on account of a military transfer. Although Stephanie had previously worked in pharmaceutical sales, she described herself as being a stay-at-home "military mom" once John and Cora were born.

Patrick planned to retire from the Coast Guard in April 2017, after which the family planned to move to Omaha. Stephanie mailed a Christmas card in December 2016 that said it would be the family's last Christmas in Illinois and that they looked forward to returning to Nebraska. Patrick described the move to Nebraska, where both parties were originally from and still had family members, as a "fresh start" for them. Patrick further testified that Nebraska remained his official state of residence throughout his military career. One of Patrick's aunts testified that she attended Patrick's retirement party and discussed with Stephanie their plans to move to Nebraska. His aunt testified that Stephanie described the move as a nice opportunity for John and Cora to be closer to their cousins and other family members. Nevertheless, Patrick characterized Stephanie as having a "flavor of the week" when discussing where they would move upon his retirement, because she would mention returning to Michigan or Massachusetts alongside discussions of moving to Nebraska.

Patrick's mother, Sharon Wellenshiek, helped Patrick find a home in Omaha that the family could rent, and Patrick entered into a lease on a suitable home. Wellenshiek said that she knew that Patrick had applied for a position with the Omaha Fire Department, and Patrick testified that he was also in talks regarding a construction job in Omaha at that time.

After postponing the move twice over the course of 3 months, Patrick arranged for military movers to be at their Illinois home on July 7, 2017. Patrick also arranged for Wellenshiek, and a friend of hers, Nancy Hauschild, to help with the move, and they arrived on July 4. Wellenshiek said that she also spoke with Stephanie before arriving at the home and described a call with her in which she was "hysterical and — and kind of yelling over the phone and crying." When Wellenshiek and Hauschild arrived at the home, they discussed with Stephanie when the movers would arrive and Wellenshiek went to work washing and folding laundry and watching after John and Cora. Meanwhile, Hauschild helped prepare meals for the family while they were packing.

Stephanie stayed at home that evening while Patrick, John, Cora, Wellenshiek, and Hauschild went to a fireworks show. When they returned, the stacks of clothing that Wellenshiek had washed and folded were strewn about the floor, and toys were strewn about the basement. Stephanie acknowledged that she had strewn the clothing and toys around the house, and she told Wellenshiek that she had wanted to do more. There were...