Sedam v. Hofacker

PHILLIP J. SEDAM, APPELLANT, v. SYDNI A. HOFACKER, NOW KNOWN AS SYDNI A. HAWN, APPELLEE.

No. A-19-089.

NEBRASKA COURT OF APPEALS

December 17, 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 Douglas County: J RUSSELL DERR, Judge. Affirmed.

John J. Maynard, of Chatelain & Maynard, for appellant.

Renee L. Mathias, of Schaefer Shapiro, L.L.P., for appellee.

PIRTLE, RIEDMANN, and WELCH, Judges.

RIEDMANN, Judge.

I. INTRODUCTION

Phillip J. Sedam appeals the order of the district court for Douglas County modifying the parenting plan between him and Sydni A. Hofacker, now known as Sydni A. Hawn. Phillip argues the district court abused its discretion by awarding sole custody of the parties' minor child to Sydni and allowing the child to relocate to Michigan. Upon our de novo review of the record, we affirm.

II. BACKGROUND

Phillip and Sydni are the biological parents of Emery, born in July 2014. They were never married. At the time Emery was born, the couple resided in Nebraska; however, according to Sydni, she returned to Michigan, where she was from and where her family resided, in March 2015. Phillip lived with her there until May 2015, at which time they returned to Nebraska. They returned to Michigan again in December 2015 and Phillip left in March 2016. At that time, the parties agreed to a parenting plan, whereby they shared legal and physical custody of Emery. The parenting plan provided that Emery would spend 7 consecutive weeks with Sydni in Michigan, and then 7 consecutive weeks with Phillip in Nebraska. The parties agreed to meet in Illinois to exchange custody. The district court adopted the parties' parenting plan in May 2016 and entered a subsequent order in July, approving the same plan.

In July 2017, Phillip filed a complaint to modify the parenting plan, seeking sole legal and physical custody of Emery. Sydni filed a counterclaim, seeking sole legal and physical custody of Emery, as well as seeking permission to remove Emery to Michigan. At a trial in August 2018, Phillip testified in his own behalf, and also had his grandmother, Constance Brewer, and his neighbor, Frank Yates, testify on his behalf. Sydni testified in her own behalf, and she adduced testimony from her boyfriend, Ryan Goschke.

Phillip was 24 years old at the time of trial and lived in Omaha in the same house as his grandmother, father, and Emery when he had custody. Brewer informed the court that her daughter-in-law lived with the family as well, and that Brewer paid the rent, bills, and did the grocery shopping for the family. Phillip was not working at the time of trial due to an accident that occurred in 2016; however, he testified that he had potential leads working at the Omaha zoo or as a security guard. A work restriction from his physician indicated Phillip had been released to return to work with restrictions in March 2018. Phillip also testified that Sydni moved to Michigan in early 2016, and the parties did not have an agreement or understanding about sharing parenting time with Emery when she moved.

Phillip and his witnesses indicated that they had concerns regarding Sydni's care of Emery. Phillip stated that he took Emery to the emergency room following her return from Sydni's care in April 2015 due to bruising he observed on her. (Our record indicates that this visit was made in November 2016). Phillip also informed the court Sydni had made posts on social media referencing marijuana use in the past. Additionally, Phillip was concerned about Sydni's past relationship with Calvin Bishop (the father of Sydni's son) because he was violent toward Sydni and was a known drug user. Phillip also expressed concern that Sydni's current boyfriend, Goschke, was crossing boundaries by being alone with Emery. Finally, Phillip stated that Sydni had sent him nude photos of herself along with sexually suggestive messages in order to gain sole custody of Emery.

Brewer testified that Emery is typically underweight, pale, and tired, on her return from Sydni's care and that she gets nervous and upset and throws up on the return trip to Sydni. Additionally, Brewer has noticed bruising on Emery multiple times when she has returned from Sydni's care, and she has taken Emery to the hospital three or four times upon her return from Sydni's care. Brewer further testified regarding concerning behaviors Emery displayed after returning from Sydni's custody such as gorging herself, hoarding food, and demonstrating purging techniques.

Phillip testified regarding communication issues he and Sydni had. Phillip stated that Sydni violated the parenting plan by failing to allow him to have communication with Emery during her parenting time. Additionally, the parties were able to communicate only over social media. Phillip also stated that Sydni does not keep him updated on Emery's medical matters while she is in Michigan, and he is not listed on Emery's medical records there, which prevents him from obtaining her medical information. On the other hand, Phillip testified that he keeps Sydni updated on Emery's medical concerns while he has custody.

Phillip and his witnesses testified that he had a positive relationship with Emery. Phillip stated that he would take Emery for nature walks, fishing, to the zoo, and museums. Yates testified that Phillip was an "outstanding" father, and Brewer described him as "excellent." Phillip also indicated that he researched schools for Emery to attend, and selected a preschool which was located at the Omaha zoo and was less than four blocks from his home.

On cross-examination, Phillip admitted that he was last employed in March 2018, when he worked at an auto shop for less than 3 months, and prior to that he had been employed at a different auto shop for less than 5 months. Phillip's income for 2017 was only $1,072. He admitted that there were multiple occasions where he could not afford gas to transport Emery for Sydni's parenting time. Phillip further admitted that he was found to be in contempt of court for failing to return Emery to Sydni in 2016. He explained that he filed a protection order on behalf of Emery due to bruising he observed on her and believed that he did not have to return Emery to Sydni until a hearing was held on the protection order; however, he was still found to be in contempt.

Sydni was called as a witness by Phillip and also testified in her own behalf. Her testimony disputed much of Phillip's. Sydni stated that she resided in Michigan when the initial parenting plan was agreed to and had resided in Michigan for the preceding 8 years, with the exception of about 2 years when she was living in Nebraska. Sydni testified that she lived in Michigan with Goschke, Emery, and her son. She also lives very close to her mother and her grandmother, as well as other members of her extended family. Sydni stated that she worked at a restaurant, had been there for 3 years, and had an opportunity to move into a management position, which would increase her income.

Sydni informed the court that she was never in a relationship with Bishop (despite him fathering her son), but he would stay at her apartment occasionally. Although Bishop broke Sydni's finger in an altercation at one point, she ended her relationship with him after that. Bishop lived in Oregon at the time of trial and she did not have contact with him. He was not listed on her son's birth certificate and she did not have a parenting plan in place with him. Sydni admitted to smoking marijuana at the end of 2014, but stated she had not used the drug since then, and she denied creating social media posts referencing drug use. She explained that she "reposted" the social media posts of which Phillip complained more than 2 years before trial. Sydni also refuted Phillip's allegation that she abused Emery and testified that the bruising on Emery's back occurred when she fell while playing.

Sydni acknowledged that she and Phillip do not communicate well and that they do not know how to communicate respectfully with one another. She relayed instances in which Phillip had called for welfare checks when Emery was in Sydni's care, which turned out to be unfounded. Sydni admitted to sending nude photographs to Phillip, but stated that the conversation in which she allegedly offered sex for custody of Emery was initiated by Phillip. Sydni indicated that sending the messages to Phillip was "the stupidest thing" she had ever done and that she only did so to get custody of Emery. She also testified that when Emery was with her, she had a set routine and was enrolled in an early start school program.

Sydni explained the circumstances surrounding Phillip's order of contempt. She stated that although Phillip filed a protection order on behalf of Emery, a hearing was held in July 2016 which dismissed the protection order, and Phillip subsequently failed to return Emery to her. Sheemphasized that there was no doubt that the protection order had been dismissed, yet Phillip failed to return Emery.

Goschke testified that he had been in a relationship with Sydni for more than a year. He indicated that he loves Emery, but insists that she call him Ryan. He does not encourage her to call him dad because he believes it is important that she maintain her relationship with Phillip.

After hearing the testimony and evidence, the district court ordered that it was in Emery's best interests that Sydni be awarded legal and physical custody of Emery. The court found that Emery had a good relationship with both parents, was in good health, and was well cared for by both parents. It noted that there was not credible evidence of abuse of Emery by either parent. The court emphasized that Sydni had her own home which was appropriate for Emery and that Emery would live in the same home as her half brother...