Franklin M. v. Lauren C.

310 Neb. 927

969 N.W.2d 882

FRANKLIN M., appellee,

v.LAUREN C., appellant.

No. S-21-442.

Supreme Court of Nebraska.

Filed February 11, 2022

Meghan E. Wolf, of Saathoff Law Group, P.C., L.L.O., for appellant.

Amber D. Ayres, of Morris Law, L.L.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Lauren C. appeals the order of the district court for Douglas County which established the paternity of Franklin M. as to the parties’ two children and decided issues regarding custody and child support. Lauren claims that the district court erred when it denied her request to remove the children to Iowa and when it failed to comply with statutory requirements to make special written findings regarding her allegations of domestic intimate partner abuse. We conclude that the district court erred as a matter of law when it applied an improper standard regarding removal. We also conclude that the court failed to make the special written findings required by statute after it found abuse to have occurred and that in the absence of such findings, the court erred when it awarded shared legal and physical custody to Franklin. We therefore vacate the order and remand the cause for further proceedings in which the district court should reconsider its custody decision by applying the proper standard and making the required findings.

STATEMENT OF FACTS

In November 2019, Franklin filed a complaint for paternity, custody, and support in which he sought to establish custody and support for two children he had with Lauren. Franklin alleged that he and Lauren had never been married but that two children, one born in 2013 and one born in 2016, were born during the term of their relationship. Franklin alleged that he had acknowledged paternity of both children and that his name appeared on their birth certificates. Franklin requested that he be awarded temporary and permanent custody of the children and that child support be ordered in accordance with the guidelines.

In a separate motion seeking an ex parte order which was supported by an affidavit, Franklin alleged that in January 2018, he and Lauren had agreed to a parenting time schedule in which the two shared physical custody of the children. He further alleged that Lauren had recently informed him that she was moving from her home in Omaha, Nebraska, to Akron, Iowa, and that she intended to move the children with her. Franklin alleged that a move to Iowa was not in the children's best interests, and he therefore requested that he be awarded sole legal and physical custody. He further alleged that Lauren planned to move the children soon, and he therefore requested an order preventing removal of the children to Iowa and awarding him temporary legal and physical custody. The same day Franklin filed the motion, the district court entered an ex parte order in which it ordered that the children not be removed from Nebraska by either parent without the court's consent. The court, however, made no order regarding custody on that day.

Lauren thereafter filed an answer and counterclaim in which she admitted portions of Franklin's complaint, including his acknowledgment of paternity. Lauren, however, denied allegations supporting Franklin's request that he be awarded sole custody and child support. For her counterclaim, Lauren alleged that she was fit to be awarded joint legal and primary physical custody of the children. She requested that she be awarded such custody and child support. She further alleged that she had obtained employment and had developed a support system in Iowa, and she therefore requested permission to remove the children from Nebraska to Iowa. Lauren also filed a motion for a temporary order allowing her to remove the children to Iowa during the pendency of this case. The district court again ordered that neither party remove the children from Nebraska without a court order.

The matter came before the court for trial on April 26, 2021. Both parties testified at the trial, and both called other witnesses. Because the assignments of error on appeal involve Lauren's request for removal and her allegations of domestic intimate partner abuse, the discussion below focuses on those aspects of the evidence.

Franklin presented testimony by (1) his girlfriend, (2) a woman who described herself as a godmother to Franklin and to the children and who lived with Franklin and his girlfriend, and (3) a neighbor of Franklin. Franklin's girlfriend and his godmother both testified that they helped care for the children, particularly when Franklin was at work. The neighbor also testified that her daughters regularly babysat the children. All three women generally testified that Franklin had a good relationship with the children and that the children had friends in the neighborhood and appeared to be happy living in Omaha.

Franklin also testified. With regard to Lauren's request to remove the children to Iowa, Franklin testified that he opposed the move, because he wanted to be a father to his children and the move would inhibit his ability to do so. He testified that it was a 2-hour drive to where Lauren planned to move in Iowa and that he wanted the children to be closer in case of an emergency or in case they needed him for anything when it was not his parenting time. Franklin testified that the children had an established pediatrician in Omaha. He also testified that he wanted the children to attend a bilingual Catholic school in Omaha because it was important to him both that they learn Spanish and that they have religious training. He testified that he was concerned that if the children lived part of their time with him in Omaha and part of their time with Lauren in Iowa, it would limit their ability to take part in extracurricular activities at school. Franklin testified that he had family in Omaha with whom he wanted the children to spend time and that he would support the children spending time with Lauren's parents, who lived in Omaha. Franklin also testified that although Lauren claimed that she still lived in Omaha, he believed that she was already primarily residing in Iowa. He testified that Lauren had proposed that if the children moved with her to Iowa, Franklin's parenting time would be reduced from 50 percent of the time to every other weekend. On cross-examination, when asked whether he had ever slapped, pushed, or threatened Lauren or hit her with an open hand, Franklin replied, "No."

Franklin finally called Lauren as a witness. With regard to removal, Lauren testified that she was engaged to be married and that she wished to relocate to Iowa to live with her fiance and to work operating hog farms that her fiance had inherited. She testified that Omaha was still her residence but admitted that she frequently spent time at the farms in Iowa. Lauren testified that if she were allowed to remove the children to Iowa, she would enroll them in the public school there and the children would have more consistency and stability if Franklin's parenting time was every other weekend and the children could be in Iowa all weekdays during the school year. She testified that in Iowa, they would be residing in a close-knit community which included the family of her fiance. She testified that the children got along well with her fiance and that they had spent time on the farm.

During cross-examination by her own counsel, Lauren testified that coparenting with Franklin was "[v]ery difficult" because he often refused to take her phone calls and would not negotiate or compromise on matters. She testified that when she and Franklin were together, their relationship was "very toxic, very negative," that the relationship was "abusive, both physically and verbally," and that "[t]here was lots of fighting in the home." When asked whether Franklin had ever "assaulted" her, "laid hands on" her, and "shoved" her, she answered, "Yes." Lauren testified that she had a scar on her face from an incident in which she went "to the hospital to get stitches in [her] eyebrow when [Franklin] beat [her] up when [one of the children] was three months and [the child] was in [her] arms." When asked whether she had concerns with Franklin's being around her, she replied, "That would depend. I mean, possibly." She testified that Franklin had been controlling during the relationship and that she believed he was trying to maintain control of her through the children.

After Franklin rested his case, Lauren called two witnesses—her mother and her fiance. Lauren's mother testified that she believed that the children enjoyed going to Iowa and that if they moved to Iowa, it would be "good for them" because it was a "positive" and "stable environment." She also testified that after Lauren and Franklin ended their relationship, Lauren told her that Franklin had been "abusive and controlling of her" and that one time, "she had gone to the hospital." Lauren's fiance generally testified that he got along well with the children and that he and Lauren would be able to provide a stable home for the children if she were permitted to move the children to Iowa.

After the hearing, the district court issued a decree in which it found, inter alia, that Franklin and Lauren were the biological parents of the two children. The court determined that it was in the children's best interests that Franklin and Lauren be awarded joint legal custody and joint physical custody. The court approved a parenting plan that generally provided for 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 decree also addressed issues of child support, health insurance, health care expenses, tax exemptions, education expenses, and attorney fees and costs. Further detail on subjects not at issue on appeal are not provided herein. Issues on appeal relate to Lauren's request to remove the children to Iowa...