Eicke v. Eicke

NIKKI EICKE, APPELLEE, v. KODY EICKE, APPELLANT, AND WILLARD COX, APPELLEE.

No. A-20-081.

NEBRASKA COURT OF APPEALS

March 30, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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: JAMES M. MASTELLER, Judge. Affirmed in part as modified, and in part reversed and remanded.

Leta F. Fornoff and Melissa Lang Schutt, of Fornoff & Schutt Law Office, for appellant.

Michael S. Kennedy, of Kennedy Law Firm, P.C., L.L.O., for appellee.

BISHOP, ARTERBURN, and WELCH, Judges.

ARTERBURN, Judge.

INTRODUCTION

Kody Eicke appeals from a decree of dissolution entered by the district court for Douglas County which decree dissolved his marriage to Nikki Eicke, awarded sole legal and physical custody of their three children to Nikki, and ordered Kody to pay $1,355 per month in child support. Kody alleges error with respect to the court's award of custody to Nikki, the terms of the parenting plan, its child support calculation, its order requiring Nikki to provide health insurance coverage for the children and not properly calculating what credit should be accorded to her, its order requiring him to pay 50 percent of unreimbursed health care expenses without Nikki paying the first $480 per child per year, and its order requiring Kody to pay 50 percent of all child care, education, extracurricular, and extraordinary expenses. Upon our de novo review of the record, we find that the district court erred in calculating Kody's child support obligation, in ordering Kody to pay 50 percent of all education, extracurricular, and extraordinary expenses, and in ordering Kody to pay 50 percent of all unreimbursed health care expenses for the children without requiring Nikki to pay the first $250 per child per year. We remand the matter for a new child support calculation and to modify the decree with respect to nonreimbursed health care costs for the children and its order requiring Kody to pay 50 percent of all education, extracurricular, and extraordinary expenses. We affirm the district court's order in all other respects.

BACKGROUND

Nikki and Kody were married in December 2016 but had been involved in a longer relationship. Three children were born from their relationship: the parties' oldest son was born in 2003 and the two younger children were born in 2013 and 2015, respectively. Nikki has a son from a prior marriage who was 18 years old at the time of trial. The parties separated in February 2019. Trial occurred on November 13, 2019. At that time Nikki was pregnant with her fifth child and was due to give birth in March 2020. The father of this child was Nikki's current significant other, Willard Cox. Nikki currently resides with Cox along with the three children she shares with Kody.

On April 22, 2019, Nikki filed a complaint for dissolution of marriage. In the complaint, she specifically requested that the marriage be dissolved, that the marital assets and debts be equitably divided, that she be awarded sole legal and physical custody of the parties' children, and that she be awarded child support. On May 24, Kody filed an answer and counterclaim. Kody specifically requested that joint legal and physical custody be awarded.

Both parties requested temporary orders during the pendency of the dissolution proceedings. The court entered a temporary order on July 15, 2019, awarding the parties joint legal and physical custody where Kody would receive parenting time Monday through Friday from 6 a.m. until 3 p.m. and alternating weekends. The temporary order also directed Kody to sell the marital home and to allow Nikki access to the home to retrieve her personal property. The court entered another temporary order on September 16, 2019, changing Kody's parenting time to include every weekend and every Wednesday evening.

At trial, the evidence presented by both parties focused primarily on custody of the parties' children, the division of marital assets and debt, and the proper amount of child support to be paid by Kody. In this appeal, neither party challenges the district's court decisions concerning the division of property. As such, our recitation of the evidence presented at the trial focuses only on that evidence relating to custody and child support.

Nikki sought sole legal and physical custody. Kody sought joint legal custody for all three children. However, he sought sole physical custody of the parties' oldest son. For the two younger children, he proposed joint physical custody where the parties would follow an alternating week-on, week-off schedule.

The parties' oldest son, who was 15 years old at the time of trial, testified in chambers without the parties present. It appears from our record that the parties agreed that his specific testimony would not be shared with the parties. As such, we will not recount it in detail, but we will consider it in our review. During his testimony, Kody conceded that he does not have a good relationship with the parties' oldest son. However, Kody believed that he is able to connect with the parties' oldest son better than anybody else can. Kody explained that their son was diagnosed with depression which Kody also has.

Nikki testified that Kody is "abusive" to the children. She explained that Kody routinely calls the children "stupid," a phrase which, according to her, has been repeated by the younger children. The parties' daughter suffered injuries while being in Kody's custody. In one incident, the daughter hurt herself on a trampoline resulting in a gash on her head. Nikki testified to another incident where their daughter ran into a saw and had a cut on her face. She conceded on cross-examination that she did not investigate these incidents, take their daughter to the doctor, nor report these incidents to the authorities. Nikki asserted and Kody conceded that he had used physical discipline including hitting the children in the back of the head in the past. He explained he did so because that is "how [he] was raised[,]" but that he has been attempting to change his parenting style which has helped his relationship with his oldest son. Kody also conceded using profanity on a routine basis toward the children including calling them profane names. Nikki testified that she disciplines the children by using time-outs and taking things away from them. However, Nikki also testified that she does not believe that parents "should have to make somebody do something they don't want to do." For example, she testified that when their oldest son did not want to see Kody during Kody's parenting time under the temporary order, there were times she did not require him to see Kody.

The oldest son and Nikki both testified that Kody's house is very messy. According to Nikki, while she and Kody were married, Kody did not clean their home. She moved out of the home in February 2019. Upon being given access to the home in May and June 2019, she took pictures of the home's interior. The photos showed that there were moldy bowls and dirty dishes in the kitchen and trash scattered about the house. However, she conceded on cross-examination, that when she moved out of their home, she left both her oldest son and the parties' oldest son with Kody. Nikki currently resides with Cox in a two-bedroom apartment. She testified that the apartment is clean.

The parties' oldest son testified that when he is at Kody's house, he has to share a room with his brother. However, when he is at Cox's apartment, he generally sleeps on the couch in the living room. Nikki explained in her testimony that at Cox's apartment, she shares a bedroom with Cox and the two boys share a bedroom. The parties' daughter sleeps on the couch or on a toddler bed. She also testified that sometimes their daughter chooses to sleep on the floor. She testified that they are currently looking for a larger home but had not found one.

The evidence indicated that the oldest son has had at least 15 absences from school from August 2019 to November 2019. The testimony of the oldest son and Nikki indicates that these absences occurred either because he was sick or because he was attending doctor's appointments. Due to these absences, it was unclear whether he would receive credit for his schoolwork for the year. When the oldest son is sick, he vomits five or six times per day and the sickness lasts for three to four days at a time. Shortly before trial he underwent testing including a colonoscopy, endoscopy, or an ultrasound to determine what was causing his symptoms.

The oldest son has been diagnosed with depression and was prescribed antidepressants. Kody believes that the oldest son is happier at home when he takes his antidepressants. But he has not recently seen his son take his antidepressants. Nikki testified on rebuttal that a pediatrician recommended that the oldest son cease taking antidepressants because the pediatrician believedthe antidepressants were making him sick. Kody has not talked with Nikki about their oldest son's antidepressants because "everything turns into an argument" between them.

Nikki agreed that communication between her and Kody has been difficult since they separated. She explained that when she has attempted to call Kody, he does not answer the phone; nor does he respond to text messages that she sends him. She testified that she has had difficulty communicating with Kody about scheduling medical appointments. According to her, Kody would not respond to messages or phone calls about these appointments. She conceded on cross-examination that she did not give Kody advance notice of the most recent medical procedures involving their oldest son.

Nikki testified that she was seeking sole legal custody because she believes that she can make the best decisions for the children. She explained that throughout the relationship, she was the...