Reinmuth v. Reinmuth

JUSTIN L. REINMUTH, APPELLANT, v. ALYSSA K. REINMUTH, APPELLEE.

No. A-18-1042.

NEBRASKA COURT OF APPEALS

December 10, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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 Scotts Bluff County: ANDREA D. MILLER and DEREK C. WEIMER, Judges. Affirmed.

Sterling T. Huff, Attorney at Law, P.C., L.L.O. for appellant.

Lindsay R. Snyder, of Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl, and Snyder, P.C., for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

MOORE, Chief Judge.

INTRODUCTION

Justin L. Reinmuth appeals from the order of the district court for Scotts Bluff County dissolving his marriage to Alyssa K. Reinmuth. On appeal, he assigns error to certain temporary and pretrial orders, the decision allowing Alyssa to file a late counterclaim shortly before trial, certain evidentiary rulings, the award of joint legal and physical custody, the court's determination of child support, and the court's determination of the marital estate. For the reasons set forth herein, we affirm.

BACKGROUND

Parties.

Justin and Alyssa were married in 2007. A son was born to the parties in 2012. Alyssa has a daughter from a prior relationship, born in 2004, who was subsequently adopted by Justin. We have referred to these two children individually herein as "the parties' son" and "the parties' daughter," respectively, and collectively as "the parties' children." Justin also had children prior to the parties' marriage, an older daughter who is no longer a minor and a second daughter (almost the same age as the parties' daughter) who resided with the parties but who is not affected by the custody and child support proceedings at issue. We refer to her herein as "Justin's daughter" and discuss her only as necessary to our discussion of issues affecting the parties' children. Justin and Alyssa separated in June 2017.

Pleadings.

On June 8, 2017, Justin filed a complaint in the district court, seeking dissolution of his marriage to Alyssa. In addition to a division of the marital estate, Justin sought both temporary and permanent sole legal and physical custody of the parties' children.

Alyssa did not file an answer and counterclaim until July 9, 2018. In it, she requested joint legal and physical custody of the parties' children. Also, on that same date, Justin filed a motion to strike and motion for judgment on the pleadings. On July 17, Alyssa filed a motion to file the answer and counterclaim out of time. On July 24, the district court entered an order granting Alyssa's motion, denying Justin's motion, and allowing Justin "the appropriate period of time to respond," which he subsequently did. In his reply, Justin specifically denied Alyssa's assertion that the parties were fit and proper persons to have joint legal and physical custody of the parties' children.

Temporary Proceedings.

On June 8, 2017, Justin filed a motion for ex parte temporary custody of the parties' children pursuant to Neb. Rev. Stat. § 42-357 (Reissue 2016). He also requested an order temporarily excluding Alyssa from the marital residence. The district court granted Justin's motion on that same date, granting Justin sole temporary custody of the parties' children and ordering Alyssa's temporary exclusion from the residence with the order to remain in effect until the motion for temporary custody could be heard by the court.

On June 12, 2017, Justin filed an amended motion for temporary orders, requesting among other things, temporary legal and physical custody of the parties' children with temporary parenting time for Alyssa and temporary child support. At the hearing on Justin's motion, the district court received various affidavits, including affidavits from Justin, Justin's daughter, Alyssa, and Alyssa's friend Eli Arellano. In his affidavit, Justin generally detailed the discovery by his daughter and the parties' daughter of Alyssa's marijuana use and her extramarital affair and his concerns about these issues. In her affidavit, Alyssa admitted that the "marijuana, lotion, and pipe" turned over to law enforcement in June by Justin were hers, but she asserted that they had been purchased in Colorado for use in relieving her back pain and had never been used around anyof the children. She also admitted to having a relationship with Arellano, but she asserted none of the children had met Arellano and that she had not discussed the relationship in their presence. In her affidavit, Alyssa requested joint legal and physical custody of the parties' children.

On June 19, 2017, the district court entered an order awarding Justin temporary legal and physical custody of the parties' children. The court awarded Alyssa parenting time every other weekend from 6 p.m. on Friday until 6 p.m. Sunday and during the weeks when she did not have weekend parenting time from 6 p.m. Tuesday until 8 a.m. Thursday. The court ordered Alyssa to pay temporary child support of $1,048 per month and excluded her from the marital residence.

On July 13, 2017, Justin filed a motion seeking modification of the temporary orders. He alleged that since the entry of the previous order there had been a material change in circumstances in that Alyssa had sent him numerous text messages threatening to harm herself and commit suicide. He stated that his attorney had sent a letter to Alyssa's attorney to inform her that her parenting time was being suspended until the matter could be addressed by the district court. Justin asked the court to require a reasonable form of supervision by a third party during Alyssa's parenting time, reduce her parenting time to accommodate the supervision, and require her to participate in and complete a mental health evaluation, including a drug and alcohol evaluation, pursuant to Neb. Ct. R. Disc. § 6-335.

On July 28, 2017, the district court heard Justin's motion as well as a motion to enforce parenting time (not contained in our record) filed by Alyssa. The court again received the various affidavits offered by the parties. Issues raised in these affidavits, in addition to Alyssa's suicide threats and the issues raised at the previous hearing, included issues with the behavior of the parties' son during parenting time exchanges, the sexual relationship of the parties' daughter and an "eighteen plus year old" while at a church camp, and other behavioral issues with the parties' daughter. In his affidavit, Justin indicated that he had scheduled an appointment for the parties' daughter with an individual counselor and that he intended to visit with the counselor to develop a plan to address parenting time transitions for the parties' son as well. We note that one of the affidavits included attached discovery responses in which Alyssa denied that she was willing to grant Justin sole legal or physical custody of the parties' children but admitted that she would be willing to share joint legal custody. In her affidavit, Alyssa admitted that she had sent Justin text messages insinuating that she might engage in self-harming behavior. She stated that while doing so had been "very immature" of her, the messages were the result of her frustration with Justin due to parenting time issues.

On August 3, 2017, the district court entered an order denying Justin's request to have Alyssa's parenting time with either of the parties' children supervised; however, the court suspended Alyssa's overnight parenting time with the daughter until counseling had commenced and the court had been advised of the progress being made. The court ordered that the daughter be returned to Justin by 10 p.m. on the nights Alyssa had overnight parenting time with the son and that the daughter be returned for parenting time with Alyssa at 8 a.m. the following morning. The court denied Justin's request for a mental health examination of Alyssa, but it ordered that the parties' children engage in counseling with a licensed mental health practitioner to address issues related to parenting time and custody. Finally, the court ordered the parties to cooperate fully with any law enforcement investigation related to the allegations involving the parties' daughter.

On November 8, 2017, Justin filed another motion to modify the temporary orders. In this motion, he alleged that a "more traditional Wilson v. Wilson" parenting time schedule with no overnights would be in the children's best interests in that it would allow both children to participate in parenting time with Alyssa together and "in a more uniform fashion." Justin asked that Alyssa be given parenting time from 9 a.m. to 8 p.m. on Saturday and Sunday every other weekend, with no overnights, and that the midweek parenting time on "the off week" be eliminated. Justin alleged that Alyssa had not cooperated with family counseling regarding the minor children and that it would be "more stable" for the children, the daughter in particular, to not have the school week interrupted.

Alyssa filed two motions in November 2017, a motion asking the court to approve family therapy between her and the parties' children with Tracy Campbell (a different therapist than the one already providing therapy for the children) and a motion to reinstate her overnight visitation with the parties' daughter.

Following an evidentiary hearing, the district entered an order on November 21, 2017. The court found that a new family counselor was necessary, stating the initial counselor "regardless of the reason" had not engaged in family therapy with both parents. The court found that the evidence showed that counseling was "critical to the reestablishment" of the relationship between Alyssa and the parties' children. The court appointed Campbell to perform family therapy, ordered that the parties would have equal access to her for counseling, and ordered the parties to alternate taking the...