Olson v. Olson

27 Neb.App. 869

937 N.W.2d 260

Andrew J. OLSON, appellee,

v.Kirsti M. OLSON, appellant.

No. A-18-1210.

Court of Appeals of Nebraska.

Filed December 10, 2019.

Eddy M. Rodell, Lincoln, for appellant.

Steffanie J. Garner Kotik, Lincoln, for appellee.

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

Pirtle, Judge.

I. INTRODUCTION

Kirsti M. Olson appeals from the order of the district court for Polk County entered on November 26, 2018. The order dissolved her marriage to Andrew J. Olson and awarded the parties joint legal custody of their minor child, Lukas Olson. The court awarded Andrew physical custody of Lukas and granted him permission to remove Lukas from Nebraska to Minnesota.

For the reasons that follow, we affirm in part, and in part reverse and vacate.

II. BACKGROUND

Kirsti and Andrew married in April 2003 in Minneapolis, Minnesota, and later separated in 2007 or 2008 (we note there was inconsistent testimony as to the precise year). The parties had one child by marriage, Lukas, who was born in 2004. Soon after the parties separated, Kirsti moved back to Nebraska with Lukas, who was then almost 4 years old. Throughout the separation, Lukas resided with Kirsti in Nebraska, with her and Andrew attempting to work out summer and holiday visits for Lukas in Minnesota with Andrew.

Andrew filed a complaint for dissolution of the parties’ marriage in the district court for Polk County in August 2017. The complaint requested dissolution of marriage, division of property, and custody of Lukas. At the time of the complaint, Andrew had continued to reside in Minnesota and no prior custody determination had been made. While the complaint did not specifically state such, Andrew also sought to remove Lukas from the State of Nebraska. In September 2017, Kirsti filed an answer and counterclaim seeking both temporary and permanent custody of Lukas, child support, and alimony. The matter was tried before the district court on November 20, 2018.

At trial, because Kirsti was self-represented, the minor child, Lukas, then 14 years old, testified in chambers with only the judge and the court-appointed guardian ad litem present. Lukas testified that he had been attending middle school in Lincoln, Nebraska, since the second half of the previous school year and was previously involved in cross country, track, and soccer until he stopped due to foot injuries. Lukas further testified that he usually earned grades of A’s and B’s in school. Prior to attending middle school in Lincoln, Lukas attended elementary school in Osceola, Nebraska; was temporarily homeschooled by Kirsti until near the end of his fifth grade year; and then remained in public school while living in Osceola.

Lukas previously lived with his mother and grandparents but later moved with Kirsti to his uncle’s home in Columbus, Nebraska, when he was 13 years old, where he briefly attended seventh grade. He testified that his mother had been unemployed and staying home because she was "sick most of the time" before she saved up enough money for an apartment and found a job. At that point, Kirsti and Lukas moved to Lincoln where they remained up until trial.

Lukas testified that he lived with his younger half brother (who is not Andrew’s biological son) and that the two would "fight a lot," but he would often let him into his room "so that he [could] watch videos on YouTube using [Lukas’] hot spot." Lukas noted that while living with his mother, he did not have internet, which made it difficult for him to do his homework. Lukas said that he would often call his father, Andrew, in order to get help with his homework and that Andrew provided him with a cell phone and "hot spot." Lukas had his own room at his mother’s home, and he said that he would likewise have his own bedroom at his father’s house and that there would "probably be more space there."

Lukas testified that when he stayed at his father’s house, it was the two of them and his father’s fiance, Carla Perdew (Carlie); occasionally, one of Carlie’s children from a previous marriage would also be there. At his father’s house, Lukas played games, ate out often, and visited his grandparents and cousins whom he did not see often. Lukas testified that he had several family members in Nebraska, including two uncles, cousins, and his maternal grandparents, whom he "[got] along with ... great."

Lukas further testified that both his parents had spoken negatively about each other, but he more frequently heard negative comments from his mother. He noted that this made him "feel really bad for [his] dad and just [made him] feel really uncomfortable." He also testified that he frequently called his father on his cell phone and that sometimes when he got mad at his mother, she would take his cell phone away to prevent him from talking poorly about her to his father. On one occasion, Lukas overheard a discussion about a previous conversation where his mother threatened his father that she would not bring Lukas to visit without receiving money from him for travel expenses for her, Lukas, and Lukas’ younger half brother.

When specifically asked if he had an opinion on where he wished to live, Lukas testified that he would like to live with his father during the school year and visit his mother on holidays and during the summer. He noted that he thought his father could "support [him] just a little bit better than Mom can," had a more stable income, and did not yell at him. Lukas then stated that he thought living with his mother was "hazardous" because she was a "hoarder" and the home was dirty with clutter and animal waste. He testified that the cats had urinated on his mattress, on his clothes, and in his closet, and that he often could still smell it. On one occasion, Lukas went to school and when another student mentioned a smell, Lukas smelled his coat and discovered there was cat urine on it. Lukas testified that the environment at his father’s house was "[v]ery clean" and that he was not nervous about switching schools because he had "already done it like two times."

Andrew testified that he had resided in Minnesota since he was 17 and that he remained there throughout his entire marriage to Kirsti. Andrew testified that during his marriage to Kirsti, she gave birth to two children, but that only Lukas was his biological son. Around 2008, Kirsti and Andrew separated but remained legally married. Andrew testified that he was employed by the Federal Reserve Bank of Minneapolis where he had worked in technical support for the last 7 years. He worked overnights Thursday through Sunday, and most of his work was done from home with one required office visit approximately every 3 weeks. Andrew testified that despite his work schedule, he would nevertheless be available to Lukas in the evenings if granted custody. Andrew’s pay was between $23 and $24 per hour, and he worked 40 hours per week.

Andrew testified that he provided health insurance for Lukas, that he voluntarily provided financial support to Kirsti for Lukas, that he and his parents had paid for most of Lukas’ involvement in extracurricular activities, and that he and his parents exclusively paid for travel expenses for Andrew to see Lukas.

As to his relationship with Lukas, Andrew testified that he spoke with Lukas frequently on the cell phone and that they "certainly communicate every week." When Lukas would visit, the two would "take [the] dog out," visit family, go to movies, and play games. Andrew noted that if Lukas were to come reside with him, there would be opportunities to participate in activities such as taekwondo and soccer, and that he would provide the finances and share information regarding any competitions or events with Kirsti.

Andrew testified that he had several family members living nearby, including his parents, who had a close relationship with Lukas and were "always glad to see him" when he visited. He also noted that Lukas’ relationship with Carlie was also good. Andrew went on to testify about his home, that he and Carlie kept the place very clean, and that Lukas would have his own room there.

Andrew testified that he had concerns about Lukas’ health with Kirsti because her apartment was "unsanitary" and that he believed her parenting style was "almost dictatorship in style." Andrew believed that Kirsti’s use of chores as punishment was not healthy. Andrew testified that up until recently, he was unaware of most medical updates with Lukas, including discussion of the possibility Lukas may have attention deficit disorder. He also had not been given access to resources to check on Lukas’ progress in school.

Andrew testified that there had been many instances where Kirsti had attempted to limit Lukas’ communication with him and that she often required Lukas to talk on speakerphone so she could hear what the two talk about. He noted that Lukas was free to contact Kirsti while visiting him.

On cross-examination, Andrew denied ever agreeing that Carlie’s child from a previous marriage and Lukas would "never meet again" after an "incident" when Lukas was 6 years old. He further denied ever making a death threat to his previous ex-wife. He testified that he had in fact made Kirsti aware of his attention deficit disorder diagnosis as a child despite Kirsti’s insistence that he had only told her about it recently. Andrew further clarified previous statements regarding his relationship with his sister in stating that they were "not extremely close, [but] we're not distant." Andrew denied any current recreational drug use. He further explained that he had removed toxic relationships from his life and had friendships with coworkers. Andrew denied that Carlie ever used drugs or had a drug conviction. He further denied ever counseling Lukas to "bad mouth" Kirsti. Andrew denied ever neglecting family events to play video games. He also denied signing a document giving up parental rights to his child from a previous marriage.

Andrew went on to testify that he wanted to...