State ex rel. Vanessa D. v. Kristopher D.

1

State of Nebraska on behalf of Vanessa D. & Noah D., minor children, appellee, v. Kristopher D., appellant.

Kristopher D., appellant, v. Kayla B., appellee.

Nos. A-21-635, A-21-636

Court of Appeals of Nebraska

February 22, 2022

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).

Appeals from the District Court for Boone County: Rachel A Daugherty, Judge. Affirmed.

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant

Justin D. Bignell, of Nebraska Department of Health and Human Services, for appellee State of Nebraska.

Brandi J. Yosten, of Yosten Law, L.L.C., for appellee Kayla B.

Moore Arterburn and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Welch, Judge.

INTRODUCTION

Kristopher D. appeals from the district court's order granting Kayla B. primary physical custody of the parties' three minor children, considering his earning capacity in determining his child support obligation, and in failing to divide the dependency tax exemptions between the parties. For the reasons herein, we affirm.

STATEMENT OF FACTS

Kristopher and Kayla are the parents of three minor children: Vanessa D., 13 years old; Noah D., 12 years old; and Kallum D., 9 years old. Kristopher and Kayla began dating in 2000 when Kayla was 15 years old and Kristopher was 19 years old. They remained together until 2018 with the exception of a short period of time when they split but later reconciled. The parties separated permanently in June 2018 following a physical altercation between Kristopher and Kayla's father which occurred in front of the parties' children. Since the parties' separation, the minor children have resided with Kayla.

In 2009, the district court entered an order establishing Kristopher's paternity of Vanessa and Noah and setting Kristopher's child support at $381 per month for the two children. The order did not address custody or parenting time.

In July 2020, the State filed a complaint seeking to modify the previously entered child support order to include Kallum, who Kristopher had recognized as his child by signing a notarized paternity acknowledgement in 2012. Kristopher filed a response seeking a credit for child support arrears which accumulated during the time that Kristopher and Kayla lived together because his "income was used to provide for the care and well-being of the entire family, including the three minor children."

In a separate case, Kristopher filed a complaint requesting a determination of paternity, custody, parenting time, and child support. Kayla filed an answer and cross-complaint seeking, inter alia, a determination of paternity as to Kallum, temporary and permanent custody of the three minor children, and child support. In his answer to Kayla's cross-claim, Kristopher requested either sole custody or joint legal and physical custody of the parties' children and the establishment of child support. These two cases were consolidated before the trial court and this court.

At the start of the trial, the State offered multiple exhibits including the signed paternity acknowledgement for Kallum both parties' employment verification letters which were used to prepare the State's proposed child support calculations, the State's proposed child support calculation using the parties' actual reported earnings, and the State's proposed child support calculation imputing each parent with a 40-hour workweek. Each of these exhibits were received for demonstrative purposes. In addition to the State's evidence, other evidence established that at the time of the trial, Kayla was employed as a patient care coordinator at a local health center typically working 4 days per week from 8 a.m. to 5 p.m. earning $13.50 per hour. Kayla provided the court with her 2020 tax return and a proposed child support calculation which was received for demonstrative purposes. Kristopher was currently employed in the concrete and carpentry industry earning $20 per hour working approximately 20 hours per week except in the summer when Kristopher testified that he receives a lot more hours working 12-hour days. Kristopher provided the court with his W2 forms from 2017, 2018, and 2019. Kristopher testified that he would like the court to enter an order dividing the tax dependency exemptions for the minor children on an equal basis. Kayla testified that she did not object to dividing the tax exemptions with Kristopher provided he was current with his child support obligation on December 31 of the applicable year.

The evidence adduced at trial established that prior to their 2018 separation, Kristopher and Kayla resided together with their children primarily in Nebraska. Since 2000, the parties lived together except for about 3 months, when they lived apart but "were still dating." According to Kristopher, he was the primary provider of financial support for the family and both parties provided daily care for the children.

After the parties' separated in 2018, the children resided with Kayla, who was their primary caretaker. Kristopher exercised visitation with the children every other weekend from 6 p.m. on Friday to 6 p.m. on Sunday despite the absence of a formal visitation plan. Although Kristopher testified that he had perhaps missed 1 or 2 days of parenting time, he had not cancelled visitation with the children. He further testified that he and the children call and text "all the time" and he pays their cell phone bills. During one part of his testimony, Kristopher admitted that he did not ask for additional time with the children, but elsewhere in his testimony he stated that he requested additional parenting time on a "number" of occasions but could not identify the last time that he did so.

At the time of the trial, the parties resided four blocks away from each other in Albion and both had family living in the area who regularly interacted with the children. Kristopher lived next door to his parents, and Kayla's parents, grandparents, and sister lived nearby.

Kristopher testified that he had a good relationship with his children, spending a great deal of time outside in the summer going to a nature preserve, going to the shooting range, or walking by the river. Kristopher stated that he generally had the children pack what they needed from Kayla's home because he could not afford to purchase additional items for the children due to his child support obligation. Kristopher stated that he did not have concerns regarding Kayla's parenting but believed that the parenting schedule should be alternating weeks due to the parties' close proximity.

Although Kristopher generally did not have concerns regarding Kayla's parenting, Kayla expressed concerns with Kristopher's violent behavior which occurred in front of the children. Kayla indicated that Kristopher assaulted her father in front of the children and that Kristopher had previous assault charges. Kristopher acknowledged that there had been times where he had become aggressive or intentionally damaged property in the children's presence, admitted to the 2018 physical altercation with Kayla's father, and admitted that he had punched the windshield of Kayla's car.

Kayla also expressed concern about Kristopher's substance use and the friends that he allowed to visit when the children were present. She stated that, before the parties' separation, Kristopher admitted to her that he had used methamphetamine and that "he smokes pot regularly." Kristopher stated that he and Kayla used methamphetamine in high school, but that he had not used it since that time and that he does not smoke marijuana when the children are in his care. Kayla further stated that the children have told her that Kristopher was drinking and driving while the children were in the car and had failed to buckle the children in seatbelts or car seats. She stated that although she reported these issues to law enforcement, no action was taken. Kayla further admitted that when she was 18 years old, she was convicted of attempted possession of oxycodone, attempted possession of Adderall, and attempted theft of both substances, which offenses had occurred when she was 16.

The parties generally agreed that their communication was poor which detrimentally affected their ability to co-parent. Kristopher stated that although Kayla used to provide him with details about the children's activities, events, and appointments, she had ceased doing so. However, he admitted that he had not contacted the children's school to obtain the children's schedules or to be placed on the school mailing list; that he had not attended any parent-teacher conferences for the last 3 years; and that he did not check the children's report cards, progress reports, or contact the children's teachers. Kristopher acknowledged that the children were enrolled in activities and stated that he had only missed a few of those competitions. Kayla testified that Kristopher did not attend the children's medical appointments. Kristopher testified that he did not know the names of the children's medical care providers, dentists, or therapists and was unaware when their last appointments took place.

In contrast, Kayla ensured that the children's medical and educational needs were met. According to Kayla, she enrolled the children in school and all three children did well academically, but Kallum has struggled with reading and has an Individualized Education Program (IEP) to assist him in that area. Kayla stated that she attended parent-teacher conferences, IEP meetings for Kallum, and the children's activities. She also scheduled and attended all the children's medical appointments. She described her relationship with her children as "great...