Jones v. Jones

305 Neb. 615

941 N.W.2d 501

Mary A. JONES, appellant,

v.Curtis L. JONES, appellee.

No. S-18-093

Supreme Court of Nebraska.

Filed April 23, 2020

David V. Chipman, of Monzón, Guerra & Associates, Lincoln, for appellant.

Mark J. Krieger and Terri M. Weeks, of Bowman & Krieger, Lincoln, for appellee.

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

Stacy, J.

In this appeal from an order modifying custody, the primary question is whether there was sufficient evidence of a material change in circumstances affecting the best interests of the minor child. The Nebraska Court of Appeals found sufficient evidence to support modifying legal custody, but not physical custody.¹ It also found the evidence did not support the need for a safety plan addressing parental substance use. On further review, we reverse only that portion of the Court of Appeals' opinion pertaining to the modification of physical custody. In all other respects, we affirm.

I. BACKGROUND

Mary A. Jones and Curtis L. Jones were married in 2003 and had one son, Kasey Jones, born in December 2004. Mary filed for divorce in 2005. The parties eventually entered into a property settlement and custody agreement that resolved all disputes. At the final hearing in 2006, the court approved the parties' property settlement and custody agreement in its entirety and entered a consent decree that awarded Mary legal and physical custody of Kasey, subject to Curtis' reasonable parenting time. The parties did not agree to a set parenting time schedule, and the original decree did not establish one. Curtis was ordered to pay monthly child support of $550.

1. STIPULATED MODIFICATION OF CUSTODY

In 2011, Curtis filed a complaint to modify custody. He alleged there had been a material change in circumstances, in that Mary was no longer able to provide a stable and consistent environment for Kasey and the lifestyle in her home was no longer in Kasey’s best interests. Eventually, Mary and Curtis entered into a written stipulation agreeing there had been "a material change in circumstances necessitating a change in the custody and support obligations" without elaborating on the nature of the changed circumstances. In November 2011, the court approved the parties' stipulation and entered a modified decree awarding them joint legal and physical custody pursuant to a week-on-week-off parenting schedule. Curtis' monthly child support obligation was reduced to $500. One year later, pursuant to another joint stipulation of the parties, Curtis' child support obligation was reduced to $257.

2. 2016 COMPLAINT TO MODIFY

Curtis filed the instant complaint to modify in April 2016, alleging there had been a material change in circumstances warranting a change in the joint custody arrangement. His complaint generally alleged that residing with Mary 50 percent of the time was no longer in Kasey’s best interests because, since the last modification, Mary had failed to provide a stable and structured home for Kasey or properly care for his mental, physical, and educational well-being. Mary’s answer denied these allegations and included a counterclaim seeking to increase Curtis' monthly child support payments.

3. TRIAL

In August 2017, the court held a 2-day trial on Curtis' complaint to modify custody and Mary’s counterclaim to increase child support. As pertinent to the issues before this court on further review, the following evidence was adduced.

(a) Parties' Employment

When the parties divorced in 2006, Mary was working at a law firm. She resigned that position in 2007 to return to school, and in 2011, she earned a degree in paralegal studies. In November 2011, when the stipulated order modifying custody was entered, Mary was working part time as a paralegal and office manager. In 2012, she began working as a paralegal for a different attorney, earning $18 an hour, and it was during that period that the parties stipulated to a reduction in Curtis' child support obligation. Mary continued working in that position until 2014, when the attorney was suspended.

For the next 3 years, Mary was basically unemployed, and the testimony at trial provided no clear explanation for why she was unable to obtain employment. In the months leading up to trial, Mary applied for approximately 25 different jobs, and in May 2017, she began working 10 hours per week as a caregiver, earning $9 per hour. Two weeks before trial, Mary started a second temporary job, working part time for an attorney, entering client data into a legal software program.

Curtis has worked as a drywaller for the past 25 years. He currently owns his own drywall business and has a steady income. Curtis remarried in 2014, and his current wife has worked for the same employer for the past 23 years. Curtis has a flexible work schedule that allows him to take time off work when necessary.

(b) Parties' Substance Use

Both Mary and Curtis have a history of substance use. Mary denied any current substance use, but she admitted using controlled substances in the past. Mary testified that in 2011, she was being routinely drug tested and someone from the Nebraska Department of Health and Human Services lived in her home "[t]wenty-four hours a day for one year" to make sure she "stayed on the straight and narrow." It was during this time period that the parties agreed to change Mary’s primary physical custody of Kasey, and move to a joint legal and physical custody arrangement with week-on-week-off parenting time.

Curtis also admitted to abusing alcohol and using controlled substances during the parties' marriage. He testified that he stopped consuming alcohol when Kasey was about 2 years old and stopped using controlled substances shortly thereafter.

At trial, there was no evidence that either party is currently abusing alcohol or controlled substances. Both parties submitted to court-ordered testing for illicit drugs and alcohol, and the tests were negative.

(c) Mary’s Health

Mary testified that she has been diagnosed with "ADD/ ADHD," bipolar disorder, and Lyme disease. She also suffers from chronic back pain. In addition to taking prescribed medication for these conditions, Mary is prescribed an antidepressant and regularly treats with a mental health practitioner. There was no evidence that any of Mary’s health issues have directly impacted her ability to parent, nor did Mary testify that her health issues have interfered with her ability to obtain or keep stable employment.

(d) Parties' Housing

At the time of the stipulated modification in 2011, Mary lived in her own residence. At some point, her boyfriend moved in and helped pay the rent, but Mary admitted that he was not a good influence on Kasey. Her boyfriend used marijuana and was verbally, mentally, and physically abusive to Mary. Following an assault in 2014, Mary obtained a domestic abuse protection order against her boyfriend and he was removed from the residence.

In 2015, Mary was evicted from her residence. She lived with friends for a month or two after the eviction, then moved in with her adult daughter and lived there for another couple of months. Mary then moved again, living in a friend’s basement for about a month.

In the fall of 2015, Mary moved in with her adult son, Kash Wolff (Kash). She testified that because she had lost her job and lost her car, she "needed to rely on him for a while." Kash had a job and usually paid their rent and all of their monthly household expenses. Mary admitted that Kash had anger control issues and caused physical damage to their residence and to property within the residence, but Mary fixed what she could and did not believe Kasey noticed the damage. Mary described Kash as an alcoholic, admitted he used drugs, and testified that he frequently allowed his friends to live with them for weeks at a time. Mary admitted that some of Kash’s friends were not a good influence on Kasey and that she asked them to leave, but she testified that it was "hard" since Kash was "trying to be nice and give them a place to stay."

Mary described one time when she discovered Kash’s friend was storing stolen property, including a shotgun, in their garage. She called the police and reported the stolen property, and shortly thereafter, a bullet was shot into their residence and lodged in Mary’s headboard. Initially, Mary testified that Kash’s friend "shot at me because I turned him in," but later, she testified that "[i]t could have been somebody shooting a BB — or a gun back there at animals."

Mary lived with Kash for nearly 2 years, but about 2 months before the modification trial, they were evicted for nonpayment of rent. At the time of trial, Mary had moved back in with her adult daughter and her daughter’s boyfriend and minor child. Mary described her daughter’s home as a stable and structured environment, but admitted the living arrangement was temporary. It is undisputed that during Mary’s parenting time, Kasey lived wherever, and with whomever, Mary was living.

At the time of the custody modification in 2011, Curtis was still living in the same residence where he and Mary had lived during their marriage. In 2014, Curtis remarried and built a new home, where he currently lives with his wife, her two daughters, and Kasey.

(e) Child’s Testimony

Kasey was 12 years old at the time of trial. He testified in chambers with his parents' counsel present. The district court assured Kasey that his testimony would not be shared with his parents, and the parents' attorneys were similarly admonished. We have considered Kasey’s testimony as part of our de novo review, but we will not summarize it here other than to say it is clear that he loves both his parents and wants to spend time with both of them.

(f) Child’s Health and Welfare

The evidence at trial was undisputed that Kasey is a healthy, well-adjusted teenager who is involved in appropriate activities, has meaningful friendships, and is doing well academically. He spends quality time with both his parents and...