Griepenstroh v. Proctor

Andrew Griepenstroh, appellee, v. Angela Proctor, formerly known as Angela Clark, appellant.

No. A-20-738

Court of Appeals of Nebraska

November 2, 2021

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 Otoe County: Julie D. Smith Judge.

Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.

W Gregory Lake, of Nebraska Legal Group, for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE JUDGE.

I. INTRODUCTION

Angela Proctor appeals from the order of the district court for Otoe County, which found her in contempt and imposed sanctions against her, and which modified the court's previous orders regarding custody, parenting time, and child support. Finding no abuse of discretion, we affirm.

II. STATEMENT OF FACTS

1. Paternity Order

Andrew Griepenstroh and Angela are the parents of a minor son, Drew, born in 2008. In 2011, an order was entered establishing paternity, custody, and parenting time. In 2015, an order was entered modifying the paternity decree. The 2015 order and parenting plan provided that Angela would have legal and physical custody, and it also provided that the parents would consult with each other regarding major decisions affecting Drew's development or well-being; were to make mutual medical and dental decisions for Drew, except under emergency circumstances; and would keep one another informed regard to his educational progress. The parenting plan provided that Andrew would have parenting time the first three weekends of each month from 6:30 p.m. Friday to 6 p.m. Sunday and summer parenting time every other week during June and July and the first week in August; it also specified a holiday parenting time schedule. The 2015 order required Andrew to pay $500 per month in child support and cash medical support of $126 per month (because health insurance was not available at a reasonable cost and/or not accessible at that time).

2. Complaint for Modification

On June 3, 2019, Andrew filed a complaint for modification, seeking sole legal and physical custody of Drew, or in the alternative, joint physical and sole legal custody, as well as the determination of a parenting plan, child support and division of childcare, extracurricular activities, and unreimbursed medical expenses, and attorney fees. Andrew alleged that since the entry of the previous order, the following material circumstances had occurred: Angela had not allowed the ordered parenting time, Drew had missed an excessive amount of school, Angela would not allow Drew to participate in extracurricular activities, Angela did not communicate with Andrew regarding Drew's medical or dental visits, and Angela was taking Drew to the doctor excessively. Andrew alleged that Drew's best interests required a change in the order regarding custody, support, and parenting time.

3. Andrew's Contempt Action and Other Pleadings

On July 23, 2019, Andrew filed a motion for order to show cause, alleging that Angela should be found in willful contempt of the 2015 order for failing to communicate with him and involve him regarding Drew's medical treatment, for failing to inform Andrew regarding Drew's school attendance, for failing to adhere to the parenting time provisions, and in failing to cooperate in telephone contact between Andrew and Drew.

On July 26, 2019, Angela filed an answer to Andrew's complaint and a counter-complaint for modification, in which she alleged that a material change in circumstances had occurred, that Andrew's parenting time should be suspended "due to [Andrew's] parenting abilities and the psychological/emotional needs of [Drew]," and that a mutually agreeable parenting plan as provided in the Parenting Act had not been developed. Angela also sought a modification of child support and contribution toward child related expenses, and attorney fees. Andrew, in his reply, denied the allegations of the counter-complaint.

At an October 8, 2019, hearing scheduled on Andrew's motion for contempt, Angela sought a continuance due to the unavailability of one of her witnesses (there had been a suggestion prior to the hearing that the witness might be in violation of Neb. Rev. Stat. § 28-711 (Reissue 2016) (obligation to report child abuse or neglect)). The district court found good cause to continue the hearing over Andrew's objection, and the show cause hearing was continued to October 21. The court also addressed a motion filed by Angela with respect to parenting time. The court ordered specific parenting time for Andrew "each Wednesday" from 5 p.m. to 8 p.m. and on Sunday, October 13, and Sunday, October 20, with the Sunday visits occurring from 8 a.m. to 5 p.m. These visits were to be supervised by Andrew's mother. The court also granted a request by Angela for a parenting evaluation.

The district court heard Andrew's contempt motion on October 21 and 22, 2019. The court received various exhibits offered by the parties, including copies of text messages exchanged by the parties, attorney fee affidavits, school attendance reports for Drew, and a written statement from Drew's therapist. The court heard testimony from the parties, Andrew's mother and his girlfriend, and Drew's therapist. The court also heard in camera testimony from Drew. Drew's testimony has been sealed, and while we have reviewed and considered his testimony in our de novo review of the record, we will not recount it here. At the close of Andrew's evidence, Angela made a motion for directed verdict, and the court granted her motion with respect to the allegations about her failure to communicate about school absences and medical issues, holiday parenting time, and telephone calls with Drew. The court found that Andrew had presented enough evidence with regard to the denial of his parenting time to avoid Angela's motion for directed verdict. Accordingly, we have only summarized below the evidence with respect to that issue.

Andrew lives about five houses away from Angela and her husband. Andrew stopped receiving his regular weekend parenting time with Drew in April 2019. He also confirmed that he did not receive his holiday or summer parenting time and that Drew had not gone on a Colorado family vacation trip with Andrew, a trip which Drew had gone on in previous years. Andrew did not know of anything particular that prompted the cessation of his parenting time, although he referenced allowing Drew to miss parenting time on a few occasions to spend time with his half-brothers and cousins, which then "turned into a lot more times," despite Andrew's efforts to "get him to come over." He also testified about an instance in March when he and his girlfriend went bowling with Drew, which was the first time Drew met the girlfriend, but according to Andrew, they all had fun. Text messages between the parties reflect that Angela informed Andrew that she was not sending Drew on the Colorado trip with Andrew based on how "it has affected [Drew] mentally" and the fact that Drew "wouldn't eat and was not sleeping due to the anxiety of it."

Andrew testified about his four supervised visits with Drew in the 2 previous weeks, describing them as "great" and later as having "been fine." Andrew testified that the night before his testimony, he had been visited by law enforcement and accused of child abuse (based on a bruise on Drew's arm and Drew's statement that Andrew hit him). Andrew denied hitting Drew. Andrew offered as an exhibit Drew's attendance records he received from Drew's school, documenting that Drew had 48.875 absences during the 2018-2019 school year. Reasons for the absences documented on the exhibit include "not feeling well," "fever," "diarrhea," "flu," "stomach ache," "appendix?," "vomiting [sic]," "migraine," "concussion," "headache," leaving for various doctor appointments, "refusing to come to school," and "absent per mom." When asked about his awareness of Drew's medical conditions, Andrew testified, "I guess he has ADHD and [is] allergic to everything and trees and cats and whatever else." Andrew did not know the names of Drew's medications, but he agreed that Drew takes "an ADHD medication" and "some sort of sleeping medication." He also testified that Drew had seen various therapists, some of whom Andrew had met. When asked about the anticipated testimony of Drew's current therapist, Andrew again denied ever abusing Drew, stating, "I've never even spanked him."

In their testimony, Andrew's mother and his girlfriend both denied ever seeing Andrew physically abuse Drew. Andrew's mother confirmed that she and her family have almost always taken a summer vacation and that Drew had always gone with them prior to 2019.

Before her testimony, the district court advised Drew's therapist, Jenina Lepard, of her right not to testify. Lepard began seeing Drew near the end of July 2019, after Angela contacted her and expressed concerns about Drew having anxiety and anger issues. Lepard had been seeing Drew weekly since July 23. She testified that Angela had been present during all of her sessions with Drew at Drew's request. Lepard testified to her belief that Drew suffered from those issues (anxiety and anger), indicating Drew had repeatedly expressed having anxiety upon seeing Andrew. She felt medication was necessary to help treat Drew's issues, and she testified that his medication was not just for his anxiety, but also for "migraines, immune deficiency ADHD, allergies." She testified that Drew reported to her that Andrew had struck him or been otherwise physically abusive on multiple occasions and that this was a frequent topic during her sessions with Drew. According to...