State ex rel. Andreasen v. Andreasen

STATE ON BEHALF OF HONORA ANDREASEN, A MINOR CHILD, APPELLEE, v. MICHAEL R. ANDREASEN, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,AND AHKESHIA K. HENLEY, THIRD-PARTY DEFENDANT, APPELLANT.

No. A-19-929.

NEBRASKA COURT OF APPEALS

August 18, 2020

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 Dodge County: GEOFFREY C. HALL, Judge. Affirmed.

Avis R. Andrews for appellant.

Linsey Moran Bryant and Shane J. Placek, of Sidner Law, for appellee Michael R. Andreasen.

PIRTLE, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

I. INTRODUCTION

In 2013, Michael R. Andreasen and Ahkeshia K. Henley entered into a stipulated custody order which awarded them joint legal custody of their minor child, Honora Andreasen, with physical custody awarded to Ahkeshia. In 2016, Michael filed a complaint to modify in the Dodge County District Court, seeking full custody of Honora as a result of receiving certified notice that Ahkeshia intended to remove Honora from Nebraska to Idaho without a court order or hearing. Ahkeshia filed a "Counter-Complaint" seeking full custody and permission to remove Honora from Nebraska to Idaho. After a trial, the district court denied Ahkeshia's removal request and awarded Michael sole physical custody. On appeal, Ahkeshia challenges the district court's denial of her request for removal, its calculation of child support, and its failure to award her attorney fees and costs. We affirm.

II. BACKGROUND

1. PRIOR CIRCUMSTANCES

The parties lived together for a period of time after Honora's birth in 2008. They separated in June 2010; the record does not reflect that they were ever married. In 2013, the district court entered a stipulated order awarding the parties joint legal custody of Honora, with primary physical custody awarded to Ahkeshia. Other details of that order and its corresponding parenting plan were discussed in State on behalf of Andreasen v. Andreasen, No. A-17-1195, 2019 WL 668519 (Neb. App. Feb. 19, 2019) (selected for posting to court website).

2. CIRCUMSTANCES UPON AHKESHIA'S REQUEST TOREMOVE HONORA TO IDAHO

(a) Parties' Filings and District Court's Temporary Order

On March 1, 2016, Michael filed a complaint to modify, alleging there had been a substantial and material change in circumstances, namely, that Ahkeshia provided certified notice around February 27 of her intent to remove Honora from Nebraska without a court order or hearing. He argued it was in Honora's best interests to remain in Nebraska and that he be granted full temporary and permanent custody of her, and that child support be modified. The State filed an answer on Honora's behalf to generally deny Michael's material allegations. After a hearing, the district court issued an order on March 23 awarding Michael temporary full custody of Honora, subject to Ahkeshia's temporary parenting time (every other weekend at the maternal grandmother's residence, and reasonable, liberal telephonic communication). The district court denied Honora's removal from Nebraska without its permission and suspended Michael's child support obligation as of March 31.

On April 5, 2016, Ahkeshia filed an "Answer and Counter-Complaint," denying Michael's material allegations. She sought full custody, revision of the parenting plan, leave to remove Honora to Idaho, and determination of each party's obligation for Honora's financial support. She alleged a modification of the stipulated order was warranted due to various reasons. She claimed that to obtain the temporary order Michael mischaracterized her move and their discussions and that her life changes necessitated her move.

(b) Trial

Trial took place on February 22, 2017. Evidence consisted of exhibits and testimony from each party as well as the testimony of Ahkeshia's mother, Joan Vignery, and Ahkeshia's fiance, Luis Velazquez.

Ahkeshia and Luis were longtime members of the U.S. Army Reserve. Luis was stationed in Fremont, Nebraska, from about the summer of 2010 until August 2014. During that time, Luis and Ahkeshia dated and they had their first child together (Honora's half-sister). Ahkeshia said she and Luis lived together from August 2011 to August 2013, and then separated. Ahkeshia then lived with her parents at their home in Fremont. Ahkeshia said she and Luis tried resolving their"differences" and "got back together" in November 2015. After Luis left Fremont, he was stationed in New Mexico and then became stationed in Idaho in March 2016. Ahkeshia, Luis, and Honora's half-sister moved to Idaho on March 15. Ahkeshia and Luis had another child (Honora's half-brother) in January 2017. Ahkeshia and Luis became engaged on February 14.

Michael owned a home in Kennard, Nebraska, where he had lived for about 10 years. In March 2016, Michael started his own limited liability company. He installed "low voltage electronics and security systems" and "whole house audio." He worked Monday to Friday, 8 a.m. to 5 p.m.; he made his own schedule. Michael traveled to different Nebraska cities and was "on call wherever people need[ed] service." Michael also worked as a subcontractor for a different company. Regarding the time since Ahkeshia moved, Michael usually dropped Honora off at school before work and then picked her up at about 5 p.m. to 5:15 p.m. after work. Honora's school had a free afterschool program until 5:45 p.m. After picking up Honora, she and Michael usually went to the grocery store and then went home and were finished with dinner by 8:30 p.m. Michael encouraged Honora to call Ahkeshia after dinner and tried to have Honora in bed by 9 p.m.

Since March 2016, Michael had gone to "parent/teacher conferences," "PTA meetings," "Daddy/Daughter dances," and other activities with Honora such as "Family Fun Night." (Ahkeshia admittedly had not stayed in touch with Honora's school since moving to Idaho.) Michael said he had attended "parent/teacher conferences" prior to entry of the temporary order as well. Michael indicated Honora had been enrolled in swimming, but at the time of trial she was not signed up for any activities. Michael took Honora to the zoo, the pumpkin patch, and the park, and they kayaked during the summer. Michael occasionally allowed Honora to spend weekends with Ahkeshia's parents; Joan said Michael would let her have Honora for a weekend or up to at least 4 days, "[p]robably about twice a month." Michael and Honora frequently spent time with other extended family in Nebraska, too.

Ahkeshia worked an evening shift as an area supervisor at a clothing retail store in Idaho and expected to continue working that shift for at least 2 months. After that, she expected to work during the daytime. The extent of Ahkeshia's Army service was one weekend per month plus 2 weeks every year; Luis attended the same sessions. Ahkeshia said there were a couple months out of the year where she "may" serve 3 or 4 days per month but usually it was 2 days per month. The monthly training typically took place in Twin Falls, Idaho. Ahkeshia received advanced notice of the date and location for the yearly 2-week training; in 2017, it was to occur in August in Virginia. Ahkeshia indicated the wife of another service member in their unit watched their children during the time that she and Luis were away from home for their 2-week training. Luis and Ahkeshia acknowledged that they could be deployed at any time.

Luis was a main supervisor of over 100 soldiers. He expected the position to last for 3 to 5 years (he had already held the position for almost 1 year by trial). Luis anticipated retiring in about 5 years. It was "possible" he might reach retirement before he would have to move again. His seniority did not provide him any control over the time he would have to move, but he could refuse to move one time. Luis had two other teenage children from a prior marriage who lived in Texas. Luis denied that he anticipated moving close to those children upon retirement. Luis' normal work hours were Monday through Friday, 8:30 a.m. to about 4:30 p.m. Concerning Ahkeshia's night shift at the store, Luis said he worked in a building with only four coworkers and could bring hischildren to work with him during times he and Ahkeshia both worked. He could also work from home sometimes. Luis and Ahkeshia did not use childcare for their children; Ahkeshia said they would do so once her store shift changed.

Luis and Joan described Ahkeshia as a "great" or "wonderful" mother. Luis and Ahkeshia indicated they equally shared parenting responsibilities. If Honora moved to Idaho, Ahkeshia intended to enroll her in a "Girl Scouts" troop (Honora had never been involved in that before). Ahkeshia said Honora enjoyed hiking and visiting a lake when she visited Idaho in the summer of 2016; Michael agreed that Honora liked outdoor activities. Idaho also had a "YMCA" for indoor activities and the family could visit Boise, Idaho, on the weekends. Ahkeshia made sure to "take care of [her] children very well," paid attention to their schooling, and made sure they "mind[ed] [their] manners." She believed in discipline but not in a "harsh" way; she indicated she also believed in homemade meals and schedules. Michael and Luis had met during exchanges before; Michael did not have any complaints regarding Luis' care of Honora, and Luis supported Michael as Honora's father.

Other trial evidence is discussed below, as relevant to the issues on appeal. At the end of trial, the district court took the matter under advisement.

(c) District Court's Modification Order, Ahkeshia'sMotion for New Trial, and First Appeal

The district court entered an "Order of Modification" on August 3, 2017. It denied Ahkeshia's request for removal and sustained Michael's request for sole physical custody of Honora; the parties retained joint legal custody. Ahkeshia was ordered to pay $330...