Schroeder v. Schroeder

CLAYTON B. SCHROEDER, APPELLEE, v. MARIA A. SCHROEDER, NOW KNOWN AS MARIA A. MICHAELIS, APPELLANT.

No. A-16-067.

NEBRASKA COURT OF APPEALS

April 11, 2017

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 Douglas County: PETER C. BATAILLON, Judge. Affirmed.

Benjamin E. Maxell, of Katskee, Suing & Maxell, P.C., L.L.O., for appellant.

Matthew Stuart Higgins and, on brief, Brandie M. Fowler, of Higgins Law, for appellee.

PIRTLE, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

INTRODUCTION

Maria A. Schroeder, now known as Maria A. Michaelis (Michaelis), and Clayton B. Schroeder (Schroeder) were divorced in June 2006; they share custody of their daughter. These parents have returned to the district court for Douglas County numerous times for the purpose of modifying their divorce decree or to allege violations of the decree by the other party. The present matter arises from both parties' attempt to modify their custody arrangement. Relevant to this appeal, the district court left in place their joint legal and physical custody arrangement, but with the modification that Schroeder would have final decisionmaking authority if the parties could not agree on matters, such as participation in sports and other activities. Michaelis appeals that portion of the order. We affirm.

BACKGROUND

Since their last modification in January 2013, Schroeder and Michaelis have had equal parenting time with their daughter, Lexi, who was 11 years old at the time the present matter went to trial in August and October 2015. The evidence from trial revealed the following.

Schroeder has parenting time every Monday and Tuesday; Michaelis has parenting time every Wednesday and Thursday. The parties alternate the weekends. Both Schroeder and Michaelis are physicians, and both have remarried and have children with their current spouses. Over the many years since their divorce, the parties have been unwilling to set aside their personal grievances with one another for the sake of their daughter. Schroeder will not make eye contact with Michaelis, even when Lexi is present, and responds to Michaelis' questions in as few words as possible. Michaelis sees this as disrespectful and an attempt to undermine her relationship with Lexi.

On the other hand, Michaelis has enrolled Lexi in a number of different sports, and the practices and games for the various sports often occur during Schroeder's parenting time, and he resents this. As a result, Schroeder has not taken Lexi to practices or games, and in fact, he has attended only one softball game out of 40 in the year preceding trial, and a couple basketball games in the two years preceding trial. And while Michaelis saw Lexi being part of a team as a way for her to meet friends and get physical activity, Schroeder had a different attitude. When asked if he thought watching his daughter's athletic events was good family time, Schroeder answered, "Do I think it's good family time to watch my daughter kick dirt on a field and get to bat two times over three hours? No, I think that's a bad use of family time." Schroeder's opinion was that Lexi could be in one major sport per year, and then she could rotate year to year so that she would not be focused on one sport. Schroeder's idea for Lexi's involvement with sports was, "One year try volleyball, the next year try basketball, the next year try softball. That's what we're doing for our other children in our house." Michaelis perceived Schroeder as undermining her parenting by not taking Lexi to activities, and by not communicating with her (Michaelis). Michaelis would offer to pick Lexi up for her games and bring her home when it was Schroeder's parenting time, but Schroeder would simply respond, "We have plans." Lexi missed a number of practices and games when in Schroeder's care. Michaelis felt that Lexi's "sporadic participation" is "a headache for everyone, but especially Lexi. I feel like she gets stressed because she wants to be a member of the team . . . and then she feels like she's letting down her teammates. She's not able to get into the swing of things with her team."

Michaelis agreed that "the whole reason we're here today" is that she believes "in a certain set of activities and a certain set of ways to raise a child," and Schroeder "believes in a certain set of activities and a certain way to raise a child." Michaelis also believed "in including [Schroeder] in knowing about what his daughter's doing" and he does not do the same. Besides the disagreements regarding Lexi's involvement in sports, and in addition to a church confirmation issue which was resolved by the end of trial, Michaelis and Schroeder were unable to agree on where Lexis should go for high school. Michaelis wants her to go to Elkhorn, Schroeder wants her to go to a parochial school.

From Michaelis' perspective, Schroeder "[j]ust makes everything harder than it needs to be." Michaelis felt it was necessary for Schroeder to communicate with her about Lexi's schooling and extracurricular activities. And apparently to minimize the tensions between Michaelis and Schroeder regarding telephone time while Lexi is in Schroeder's care, Michaelis purchased a cellular phone for Lexi on her 11th birthday. After Lexi took the phone to Schroeder's house, Michaelis received an email from Schroeder saying he was not going to allow Lexi to have the phone at his house.

As to what material circumstances had occurred since January 2013 when the parties had last modified their decree, Michaelis said that "[e]mails and phone calls have gotten worse." She claimed Schroeder seldom answered her voice mails, "maybe 1 out of 10, or 1 out of 20, and he doesn't ever pick up the phone when I call." In addition to the communication being "less and less," Michaelis also stated that

[t]he interactions have been more negative on [Schroeder's] behalf. I don't get responses about important things that are coming up in Lexi's life such as communication [about] her middle school and high school. Choices that we need to be making together . . . She's getting older. She needs to be in more activities and she's going to be in more activities and there's going to be more decisions to be made and I need to be the one that makes those.

Michaelis testified that Lexi would not be able to participate in sports much longer "because she's getting to that age where she can't miss half and be part of these teams." She would only be able to participate in activities where sporadic attendance was acceptable, such as swimming lessons, or other lessons here and there. Michaelis stated, "[Lexi] won't be a part of athletics, which is hugely important in my opinion."

Michaelis had a number of witnesses testify on her behalf. Lexi's former fifth grade teacher talked about Lexi being "a very good student," and he discussed Michaelis being "very involved" at the school, helping two to three times per month in his classroom. The children's ministry and education coordinator from Michaelis' church spoke about knowing Lexi since she was a baby; she also talked about how Michaelis volunteered as a Sunday school teacher. The coordinator observed the Michaelises to be a happy family. Another witness, the mother of one of Lexi's friends, said she knew Michaelis through the elementary school and Girl Scouts, and that Michaelis and Lexi "have a positive relationship that's loving."

Michaelis' final witness, an owner and director of a volleyball academy, talked about the various program options offered at her business, and how Lexi started in one of their programs in the fall of 2011 when Lexi was in second grade. The owner said Lexi seems to enjoy volleyball and she gets involved, and "she's got a smile on her face, she's always trying to get better, she's always very receptive to information, very coachable." The owner said the first league Lexi entered, she missed practices 60 to 70 percent of the time, and would "have to kind of catch up and find out what was going on[.]" The owner knew Lexi was not there because she was at her father's; Lexi would tell her this. The owner had 36 years of volleyball background, including coaching high school and college volleyball. She has coached a couple thousand players during that time, ages kindergarten to 18. Girls can eventually advance to club or select teams; "the trendright now is right around fourth or fifth grade year they start looking." The owner observed Lexi to not "seem as excited or happy" when she first arrives after not being there for a week and "she feels like she's behind and she's catching up. Once she feels she's caught up, her mood changes." Finally, the owner opined, "I think volleyball right now is a very important part of what [Lexi] does and who she is and what she wants to be . . . and when I see her walk in the door and she's happy and she enjoys being there and she wants to be social and friendly I think volleyball for her right now is important."

Schroeder testified that Michaelis calls "most every night that Lexi's in my possession." With regard to Lexi's various athletic activities, Schroeder stated, "For the last three years, I've gotten the schedule of games and practices after Lexi is signed up and enrolled and she's been meeting with the team already." Schroeder did not appreciate that he was not included in the planning to see if he had time available "[b]ecause we have a pretty significant fall schedule ourselves." At the end of the first semester of Lexi's fifth grade year, Schroeder unenrolled Lexi from some dance classes because Lexi was not doing well at school. "[A]t the same time [Michaelis] enrolled her in basketball." Schroeder took extra time to help Lexi with homework and by the end of fifth grade, Lexi did really well, but Schroeder said this "was because we took the time at our...