Peister v. Eurek

30 Neb.App. 366

969 N.W.2d 134

Brian PEISTER, appellant,

v.Channing EUREK, appellee.

No. A-21-135.

Court of Appeals of Nebraska.

Filed November 9, 2021.

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant.

Jonathan Hendricks, of Dowding, Dowding, Dowding & Urbom, for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Channing Eurek gave birth to a daughter, Melanie J., in December 2012. Eurek subsequently met and became involved with Brian Peister in late 2013. They lived together for a period of time until August 2016, when their relationship ended. Peister continued to spend time with Melanie until Eurek ended his contact with Melanie in early 2020. Peister filed a complaint alleging to stand in loco parentis to Melanie and requesting parenting time. Following an evidentiary hearing, the Adams County District Court entered an order in which it found that Peister did not stand in loco parentis to Melanie and dismissed his complaint. Peister appeals from that order. We affirm.

BACKGROUND

FACTUAL HISTORY

Shortly after Melanie's birth in Wayne, Nebraska, in December 2012, Eurek moved with Melanie first to Loup City, Nebraska, and then in October 2013, the two moved to Kearney, Nebraska. After the move to Kearney, Eurek met Peister, and the two began a relationship in late 2013. In August 2014, the parties moved in together at a location in Kearney along with Melanie and an additional roommate. At the end of their lease in August 2015, the parties moved to a second location in Kearney and continued to live together until August 2016. During this 2-year period of cohabitation, Peister fostered a relationship with Melanie, assisting in her care and supervision outside of daycare hours when neither Eurek nor her parents were able to look after Melanie during evening hours and on weekends. After the move, the parties’ relationship began to deteriorate and eventually ended during the first half of 2016. When the parties’ lease expired in August 2016, the parties physically separated, and Melanie lived with Eurek.

Following a period of minimal contact, Eurek and Peister eventually reconnected in late 2016 and agreed to remain friends. Despite the end of their romantic relationship, Peister offered to continue to look after Melanie when needed. Eurek accepted Peister's offer, and Peister continued to watch over and spend time with Melanie when Eurek was working and could not have her parents take care of Melanie after daycare and on weekends. Additionally, Peister began sending checks to Eurek in late 2016 to help pay for Melanie's daycare and other expenses.

Eurek moved to Hastings, Nebraska, in January 2018, and Peister also moved to Hastings a few months thereafter. Shortly after moving, Eurek hired a nanny to assist in caring for Melanie during Eurek's 24-hour work shifts, and Peister's time with Melanie decreased as Eurek relied more on the nanny to care for Melanie. In the first half of 2018, Peister stopped sending checks to Eurek for Melanie's daycare. Peister's time with Melanie increased in January 2019, when the hired nanny moved away. Eurek hired a second nanny in February 2019, and Peister's time with Melanie was reduced to watching her approximately once per week. This arrangement continued until early 2020, when Eurek stopped asking Peister to look after Melanie.

JUNE 2020 COMPLAINT FOR PARENTING TIME

On June 8, 2020, Peister filed a "Complaint to Establish Custody and Visitation in Loco Parentis " in the district court. Peister's complaint initially named the individual believed to be Melanie's biological father as a defendant, but Peister dismissed this claim after he received notice that this individual was determined not to be Melanie's biological father as part of a separate action. Peister claimed that he had established a parent-child relationship with Melanie such that he stood in loco parentis and asked the district court to award him parenting time with Melanie. In her answer, Eurek argued that Peister did not stand in loco parentis to Melanie and that parenting time with Peister was not in Melanie's best interests.

The district court held a hearing on January 14, 2021. The parties offered exhibits and witness testimony, and Melanie also testified outside the presence of the parties. Additionally, Peister submitted a proposed parenting plan to the court. We now summarize the parties’ respective testimonies given at the hearing.

Peister testified that while his relationship with Melanie was initially "just as a friendly figure," he over time "kind of just took the role for" being a father figure to her. He gave examples of how he spent time together with Melanie during the 2 years that he lived with her and Eurek, describing that he and Melanie would "watch TV together, play games together, [and] ride the trike together." He explained that he would watch over Melanie when Eurek was at work, pick Melanie up from daycare or other places, visit his parents with Melanie, and occasionally go on family vacations with Eurek and Melanie during this period. Regarding financial support, Peister recalled that he and Eurek pooled their money together to cover the cost of necessities for Melanie and had also established a joint bank account concurrent with their consolidation of certain debts. The parties each retained their own separate accounts in addition to this joint account.

After the end of the parties’ relationship and their physical separation in August 2016, Peister described that his relationship with Melanie "didn't change much at all" and "[t]he only thing that really changed ... was that there [were] two house-holds." He stated that he and Eurek coordinated their schedules such that he was taking care of Melanie "at least 40 percent of the time" in the same fashion he had while he lived together with Eurek. Peister testified that he kept a room at his home for Melanie and provided food, clothing, toys, and other items for when she stayed with him. Eurek typically brought Melanie to Peister's home in the evening after Melanie had already eaten and bathed, and Peister confirmed that he would spend around "a half hour to an hour with [Melanie] before bedtime" and some amount of time with her in the morning if she was going to daycare that day. Peister acknowledged that he would occasionally have his roommate or another friend pick up Melanie from daycare and help watch over her if Peister was working. Peister sent several checks to Eurek to help pay for Melanie's daycare from late 2016 until 2018. He affirmed on cross-examination that he stopped sending these payments in 2018 due to his dissatisfaction with the time he was allowed with Melanie. He said that Eurek did not involve him in Melanie's education and health care and that she did not notify him of any related expenses. He nonetheless attended Melanie's dance recitals and soccer games and practices.

Peister also drew attention to comments made by Eurek and Melanie indicating that he was a father figure to Melanie and to his own impressions of his role. Eurek had made several statements to Peister such as "I care about you as [Melanie's] dad." Peister recalled that Melanie would refer to him as "dad" on multiple occasions. He explained that the reason behind his decision to financially support Melanie—even after he and Eurek separated—was because he felt he "had a father relationship" with Melanie and that the same feeling led him to offer to provide for half of Melanie's expenses before he filed this action.

Conversely, Eurek described Peister's involvement with Melanie as "nothing outside of what [she] would consider a friend would do." Eurek testified that Peister had little or no involvement in parenting functions such as "changing diapers," "potty training," "[b]athing," "[p]utting Melanie to bed," "[g]etting up at night with Melanie," and "[g]oing to [Melanie's] doctor appointments." Eurek "would always stay home with [Melanie] if she was ill" and "would come home and take care of" Melanie if she became sick during her overnight work shifts. Eurek had Melanie attend daycare on week-days when she worked, and when she had to work weekend shifts, Melanie spent "probably 95 percent" of those weekends with Eurek's parents in Loup City. Peister would watch Melanie overnight during Eurek's weekday shifts if she "did not have any other child care when [she] was working during the week." Eurek testified that Melanie "would always be fed and bathed and put to bed before [she] had left for work" on those nights, including "tuck[ing] her in" before Eurek left. She agreed that Peister "would be responsible if [Melanie] woke up during the night."

Eurek stated that after the end of the parties’ romantic relationship, Peister "knew he was also [her] last option if [her] parents could not take care of Melanie."

Eurek recalled that beginning in the summer of 2017, Melanie would spend the majority of summers with Eurek's parents in Loup City, and she denied that Peister would have contact with Melanie or request time with her during the summertime. After she and Melanie moved to Hastings, Eurek hired a nanny to take care of Melanie when she was working, and Peister would take care of Melanie "[m]aybe one day a week." Eurek affirmed that Melanie would typically have eaten and been bathed before dropping her off with Peister during this period.

Although Peister's time with Melanie increased after the first nanny hired by Eurek moved in January 2019, Eurek testified that she became aware of issues such as Melanie "not getting to school on time or not being picked up after school or day-care" that coincided with Peister's time with Melanie. Eurek thereafter hired a second nanny in February 2019 to ensure that Melanie would be "getting the stuff that she needs." Eurek testified that Peister was not involved in decisions regarding Melanie's education and health care, noting that he had not been involved with...