Dyke v. Dyke

Ryan J. Van Dyke, appellant, v. Amaris Z. Van Dyke, appellee.

No. A-21-795

Court of Appeals of Nebraska

December 27, 2022

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: Stefanie A Martinez, Judge.

Philip B. Katz and Catherine Dunn Whittinghill, of Gross, Welch Marks & Clare, P.C., L.L.O., for appellant.

Patrick A. Campagna, of Campagna Law, P.C., L.L.O., for appellee.

Moore Bishop, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

I. INTRODUCTION

In 2013, the Sarpy County District Court entered a decree dissolving the marriage of Ryan J. Van Dyke and Amaris Zephyr Van Dyke (Zephyr, appellee's preferred name). Pursuant to the decree, Zephyr was awarded sole legal and physical custody of the parties' two children subject to Ryan's parenting time, and Ryan was ordered to pay child support.

In 2019, Zephyr filed a complaint to modify the decree and Ryan filed a counterclaim, both seeking a modification of custody and child support. As relevant here, the district court modified certain provisions of the custody and parenting time provisions and modified child support. On appeal, Ryan claims that the district court judge had a conflict of interest and should have disqualified herself. He further challenges certain findings made by the court and its decision not to increase his parenting time. We affirm.

II. BACKGROUND

Ryan and Zephyr were married in 2002. They have two children: Austin Van Dyke, born in 2007; and Luke Van Dyke, born in 2010.

1. Decree of Dissolution

In May 2013, the district court entered a decree dissolving the parties' marriage. As relevant here, the court found that Ryan suffered from bipolar disorder. During the marriage, Ryan's condition was not controlled, resulting in various acts of abuse perpetrated by Ryan toward Zephyr, leading to the issuance of a protection order against him. Additionally, Zephyr had post-traumatic stress disorder due to the conditions under which she lived prior to the parties' separation and the ongoing abuse she suffered. Ryan's condition became better controlled by medication and counseling after the parties' separation, but his treatment providers warned that his condition would not go away and it was necessary for him to, at a minimum, continue with medication for the remainder of his life to avoid relapsing into a manic state. There were no current concerns about Ryan's ability to provide proper care for his children. The court awarded Zephyr sole legal and physical custody of the parties' children subject to Ryan's parenting time which included every other weekend from 5 p.m. on Friday to 8 a.m. on Monday, every Wednesday evening from 4 p.m. to Thursday at 8 a.m., specified holidays, and 2 uninterrupted weeks each summer. Ryan was ordered to pay $1,023 per month in child support for the two children.

The district court also ordered Ryan to inform Zephyr of the name and contact information for any psychiatrist or psychologist from whom he was receiving treatment; continue treatment with a psychiatrist and, if recommended by a psychiatrist, any other mental health professional; take all medications as prescribed by his psychiatrist; and sign a release of information to his psychiatrist, psychologist, or any other mental health treatment professionals authorizing them to notify Zephyr if, at any time, Ryan missed a recommended appointment, did not follow recommendations regarding ongoing therapy or counseling, did not take medications as prescribed, or if the treatment provider believed Ryan constituted a danger to his children or was not capable of providing adequate care while they were with him.

2. Current Modification Action

(a) Pleadings, Pretrial Motions, and Orders

On August 20, 2019, Zephyr filed a complaint to modify the decree of dissolution as it related to the children. Zephyr alleged that since the entry of the decree there had been a material and substantial change in circumstances including but not limited to the following: Ryan obsessively focused on certain issues related to the children's health and well-being and repeatedly expressed those obsessive thoughts to Zephyr, the children directly, and to the children's therapist. Ryan engaged in a pattern of questioning the children on various topics regarding Zephyr, their activities, and their therapy sessions. Ryan threatened to pick up the children when it was not his scheduled parenting time and had shown up at certain events to follow the children around. Ryan instructed the children that they were not allowed to discuss certain issues with their therapist. Ryan engaged in a pattern of obsessively texting, emailing and sometimes calling Zephyr. Ryan engaged in a pattern of obsessively emailing the children's medical professional. Ryan disparaged Zephyr to the children's medical professionals and obsessively argued that the children were not receiving adequate nutrition or exercise. Ryan's behavior led to the children's therapist, who had been involved for nearly 8 years, to suggest that she would no longer provide therapy. Ryan persistently delayed scheduling his summer parenting time, making it difficult to visit Zephyr's family out of state. Ryan was specifically ordered to sign a release for his mental health professionals to notify Zephyr if certain situations arose and it had been more than 5 years since Zephyr received any communication from those professionals. And Ryan refused to allow one of the children to take medication as suggested by his medical professional.

Zephyr sought an order of modification which, at a minimum, prohibited Ryan from: having any contact with the children's medical professionals other than in the case of an emergency, communicating with Zephyr other than through "Our Family Wizard" or similar online application, communicating with or threatening and intimidating the children's medical professionals, and disparaging Zephyr or the children's medical professionals to the children or in any way suggesting that the children not participate in therapy. She also asked that the order: restrict Ryan's parenting time to a therapeutic setting until such time as the district court could be assured that Ryan's obsessive conduct no longer posed a danger to the children, require Ryan to designate his preferred summer parenting time schedule at an earlier time and through a specific format to eliminate his ability to negatively impact Zephyr's out of state travel with the children, and state that Ryan should not interfere with the children taking medication as prescribed to them by their medical professionals. Additionally, Zephyr sought a modification of Ryan's child support obligation due to his increase in income since the entry of the decree. On August 21, 2019, Zephyr filed a motion for a temporary order seeking temporary relief as to some of the concerns noted.

On October 17, 2019, Ryan filed an answer and counterclaim. In his counterclaim, Ryan sought joint legal and joint physical custody of the children. Ryan alleged that since the entry of the decree there had been a material and substantial change in circumstances in that his mental health diagnosis had significantly improved and that the provisions in the decree requiring him to provide a release of information regarding his mental health treatment were no longer necessary. He also asked that child support be modified in accordance with a joint custody determination pursuant to the Nebraska Child Support Guidelines.

On October 24, 2019, the district court, following an October 2 hearing and its review of submitted affidavits, entered a temporary order prohibiting Ryan from: having any contact with the children's medical professionals other than in the case of an immediate emergency, communicating with Zephyr in any form other than "Our Family Wizard," and disparaging Zephyr and/or the children's medical professionals to the children. The court also ordered that Ryan's parenting time with the children would be through therapeutic supervision until further order of the court.

On December 6, 2019, Ryan filed a motion to terminate the temporary order and reinstate his parenting time. Ryan claimed that absent emergency circumstances it was not legally appropriate to amend the parenting time via temporary order because a change in the established parenting time was one of the underlying issues to be determined by the district court within the modification action. He further alleged that if there was a justified reason to have supervised parenting time in place, it was no longer appropriate because the provider for the supervised parenting time reported that both Ryan and the children enjoyed their visits and Ryan had behaved appropriately when with the children. Following a hearing, the district court denied Ryan's motion on December 16. Ryan filed a second motion to terminate the temporary order and reinstate his parenting time on March 27, 2020, but the court denied that motion following a hearing on April 8.

On June 3, 2020, Ryan filed a motion for a child custody evaluation, alleging that it would be of assistance to the district court in determining the best interests of the children pertaining to issues of physical custody and parenting time, as well as in addressing the status of each party's mental health relevant thereto. He asked that Dr. Glenda Cottam, a licensed psychologist, be appointed to perform the custody evaluation. On June 23, the court granted Ryan's motion and appointed Dr. Cottam to conduct the evaluation and stated that she would be considered an expert witness for Ryan.

On October 19, 2020, with permission from ...