Roehrs v. Roehrs

Gerald D. Roehrs, appellee, v. Odessa O. Roehrs, appellant.

No. A-18-712

Court of Appeals of Nebraska

August 10, 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 Lancaster County: Robert R. Otte Judge.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Robert Wm. Chapin, Jr., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, JUDGE.

INTRODUCTION

Odessa O. Roehrs appeals the decree of the district court for Lancaster County which dissolved her marriage to Gerald D Roehrs, divided the marital estate, awarded custody of the parties' three minor children, and ordered child support. We find that the district court did not abuse its discretion in its custody order or decision not to award alimony to Odessa. Therefore, we affirm.

BACKGROUND

Odessa and Gerald were married in 2001, and three children were born during the marriage. Their daughter, Maegan Roehrs, was born in 2004, followed by a son in 2010 and another son in 2012. In July 2016, Gerald filed a complaint for dissolution of the marriage and requested the care, custody, and control of the children. Odessa filed an answer and also sought primary legal and physical custody of the children.

Trial was held over the course of several days beginning in July 2017 and ending in March 2018. The evidence established that Odessa and Gerald met when Gerald travelled to the Philippines, where Odessa lived. She came to the U.S. on a fiance visa in November 2001, and the parties were married in December. Gerald is 23 years older than Odessa, was married twice prior to his marriage to Odessa, and has two adult daughters from his first marriage. Odessa spoke only broken English when she moved to the U.S. Gerald taught her how to drive upon her relocation, and she obtained her driver's license in January 2002.

Odessa worked as a certified nursing assistant from 2002 through 2013. During that time, she attended college, earning a bachelor's degree in 2011, and ultimately earned a master's degree in Health Care Administration. She generally worked throughout the duration of the marriage, with only brief periods of unemployment. As of the end of trial, she was employed by the Department of Labor, earning $16.96 per hour. She was hired to work 40 hours per week, but her hours are flexible, and sometimes she works less than 40 hours because of the children's schedules.

The marital residence was located in Pleasant Dale, Nebraska. Odessa moved out for brief periods several times throughout the marriage. At the time of trial, Gerald remained in the marital residence in Pleasant Dale, and Odessa had been living in her own residence in Milford, Nebraska, since November 2016. The children attend school in Milford.

Odessa explained that she did not think joint or equal parenting time was in the children's best interests. She testified that she fears for the children's safety when they are with Gerald. She also did not believe that she would be able to get along with Gerald well enough to make joint decisions regarding the children. She acknowledged, however, that she and Gerald had been able to agree on decisions related to the children during the pendency of the divorce proceedings.

Gerald has worked as an HVAC technician for more than 30 years. At the time of trial, he was earning $28.78 per hour and generally worked 40 hours per week. He goes to work an hour late on his weeks with the children, however, because he drops them off at his adult daughter's house where the school bus picks them up.

Gerald acknowledged that he was seeking custody of the children. He explained that he thought he should have custody because he tends to keep the same job and has a secure home, he simply goes to work and goes home, and he is involved with the children's school and activities. He was asked whether he thought he would be able to discuss matters with Odessa and put their personal differences aside to discuss the children, and he said he would like to think they could do so.

The court appointed a guardian ad litem (GAL) for the minor children. The GAL testified at trial that after he was appointed, he discussed the case with the parties and visited with all three children. He ultimately visited with the children and the parties several times. He observed that the two younger children appeared to be clean, happy, and healthy. The GAL testified that he did not get the sense that Odessa and Gerald were unable to communicate regarding the children.

The GAL also spoke with Maegan on several occasions outside the presence of her parents. During those conversations, Maegan voiced concerns to him about her relationship with Odessa. The GAL explained that every time he met with Maegan, she expressed her opinion as to where she would like to live, and the most recent time he met with her, which occurred the same week as his testimony at trial, her statement on that matter was unsolicited. Maegan expressed fear and anxiety when discussing permanent placement with Odessa but not when discussing permanent placement with Gerald. The court asked the GAL whether he observed anything that suggested to him that continuing the week on/week off parenting plan was not appropriate, and the GAL responded, "With regard to the two boys, no. With regard to Maegan, her statements to me."

Odessa objected to many of the questions asked of the GAL relating to Maegan. At one point, the court asked Gerald's counsel if Maegan was going to testify, and he responded that he anticipated that Odessa would call Maegan to testify. Odessa's counsel indicated that although he included Maegan as a potential witness on his pretrial witness list, it was not his intention or preference to call her to testify. The court then indicated that Gerald's counsel could call her to testify and requested her presence in court later that afternoon.

Later, just prior to Maegan's testimony, Odessa objected to the court calling Maegan as its own witness. Gerald's counsel clarified that he was the one calling her to testify and indicated that she was also included on his pretrial witness list, as he included all witnesses who had been listed by Odessa. The GAL expressed his belief that it would be helpful for the court if Maegan could speak with the judge in camera and confided that at several of his meetings with Maegan she had asked for that opportunity. Maegan ultimately testified in camera where she was questioned by the court, with the parties' attorneys each permitted to briefly cross-examine her.

Maegan was 13, almost 14, years old and in eighth grade at the time she testified. Her grades in school are A's and B's. She was selected for a lead role in her school musical and also participates in choir, basketball, track, and art, plays the flute and ukulele, and is learning to play the drums. Maegan testified in camera and her testimony was sealed. We have reviewed her testimony, and without going into great detail, it is clear that she loves both of her parents and enjoys spending time with each of them. She described positives and negatives about her time at each parent's residence and expressed certain preferences. We will reference her testimony as necessary below to address the arguments raised on appeal.

After trial concluded, the district court entered a decree dissolving the parties' marriage and dividing the marital estate. The court awarded primary care, custody, and control of Maegan to Gerald. Odessa was to receive parenting time with Maegan every other week from Thursday evening through Monday morning, and alternating Wednesday evenings. The parties were awarded joint custody of the two younger children with a week on/week off schedule. The court also allocated holiday parenting time and granted Odessa extra parenting time with Maegan during the summer. Odessa was ordered to pay $173 per month in child support. The court declined to award alimony to either party.

After entry of the decree, Odessa filed a motion to alter or amend and a motion to set aside the judgment. The court clarified certain portions of the decree but generally denied the relief requested. Odessa timely appealed. We note that subsequent to Odessa filing a notice of appeal, the matter was stayed due to a bankruptcy filing. The bankruptcy stay having been lifted and each party having filed its brief on appeal, we now proceed to address the matters raised.

ASSIGNMENTS OF ERROR

Odessa assigns, renumbered, that the district court erred in (1) ordering compliance with a parenting plan that fails to comply with the Parenting Act and is so vague as to be unenforceable, (2) calling Maegan to testify and permitting her testimony, (3) failing to award her legal and physical custody of all three children, and (4) failing to award her alimony.

STANDARD OF REVIEW

In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion. Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018). When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Id.

ANALYSIS

Parenting Plan.

Odessa argues that the parenting plan that the district court implemented is too vague to comply with Nebraska law and to be enforceable. She points out that the decree...