Stattler v. Davenport

KARI L. STATTLER, APPELLEE, v. BRYSON P. DAVENPORT, APPELLANT.

No. A-18-841.

NEBRASKA COURT OF APPEALS

March 31, 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 Phelps County: TERRI S. HARDER, Judge. Affirmed.

Joel Bacon and Tara L. Gardner, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for appellant.

Bergan E. Schumacher, of Bruner, Frank & Schumacher, L.L.C., for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Kari L. Stattler and Bryson P. Davenport had two minor children in the course of their 14-year relationship. Following a trial focused primarily on custody of the children, the Phelps County District Court awarded the parties joint legal custody, with physical custody awarded to Kari. Bryson was ordered to pay child support. Bryson appeals the district court's order as to physical custody and child support. Finding no abuse of discretion by the district court, we affirm.

II. BACKGROUND

Kari and Bryson are the parents of two minor children: Kinley Davenport (born 2010; age 8 at the time of trial) and Kyler Davenport (born 2013; age 4 at the time of trial). Kari and Bryson never married. Before January 2017, Kari lived in Lincoln, Nebraska, with Bryson, Kinley, Kyler, and Kalee (Kari's daughter from a different relationship; age 19 at the time of trial).

In January 2017, Kari's father unexpectedly died. For about 2 months, Kari traveled back and forth between Lincoln and Holdrege, Nebraska, where Kari's mother, Helen Geihsler, lived. Kari helped with finances, paperwork, and caring for Helen. Kari had been living at Helen's home in Holdrege since January, and decided to relocate there in March when she secured a job at a daycare nearby in Kearney, Nebraska. Kinley and Kyler remained living with Bryson in Lincoln. It was a "very hard decision" for Kari to decide she would primarily live in Holdrege, but in time she accepted that she "needed to stay close" to Helen, and her relationship with Bryson was "pretty unhealthy." She did not bring the children with her, in part, because she thought it was good for Kinley to stay in school. Aside from Kari and Helen, a 52-year-old disabled man named "Gary" "from Mosaic" also lived at Helen's home and had done so for about 6 or 7 years as part of a program that supported disabled individuals. Kalee moved out of Bryson's home around February, and by the time of trial she had relocated to Holdrege and also lived in Helen's home. Kari said her relationship with Bryson was "back and forth" for "quite some time from well before [she] left [Lincoln]."

On January 2, 2018, Kari filed a complaint to establish paternity, custody, and child support, alleging that Bryson was the father of Kinley and Kyler. In February, Bryson filed an "Answer and Cross-Complaint"; under his "Cross-Complaint," Bryson admitted he was the father of Kinley and Kyler, asserted that they had resided with him in Lincoln since birth, and that he was fit to have custody of them. He also filed a motion for an order granting him temporary custody of the children and for temporary child support.

After a hearing, the district court entered a temporary order in March 2018. It found it was in the best interests of the minor children to remain in the temporary custody of Bryson. It found it was not in the best interests of Kinley for her to transfer to the Holdrege School District in the middle of the spring semester and that, as to Kyler, the Nebraska Supreme Court "has made it clear it does not approve of siblings being separated except in rare cases." And, Kari had her "hands [full] . . . with employment and caring for her seriously ill mother and a handicapped man." Kari was ordered to pay temporary child support of $300 per month beginning in June because she had been "paying the bills over the winter as [Bryson had] been seasonally unemployed." The June and July child support would be reduced by 50 percent "when [Kari] exercises her summer [parenting time]." Parenting time provisions were set forth, including alternating weekend and holiday parenting time. The order directed that Kari "shall have the children for the months of June and July 2018," with Bryson receiving alternating weekends.

Trial took place on August 1, 2018. Kari and six other witnesses testified on Kari's behalf. Bryson and his mother, Sherry Morgan, testified on Bryson's behalf. Numerous exhibits were received into evidence. We will discuss the evidence in our analysis where relevant to the issues on appeal. At the conclusion of trial, the district court stated:

All right. I am aware that we're approximately two weeks from most school districts probably in the state commencing this school year. And so let me just speak to custody at this point because I'm pretty clear in my mind as to what I'm going to do.

I think this is a case that I often refer to as nobody doubted that you could but you didn't kind of case. I think this is clearly a case where until January of '17 mom was the one who did the heavy lifting. Not that dad didn't do anything. Nobody is -- I'm notcertainly saying that. But [Bryson's counsel] talked about a division of responsibilities; and I don't think it was a very even division, if that is what it was.

It's clear to me that mom was the primary caregiver. I think it would be in the best interest[s] of these children to be with mom.

It granted "custody" to Kari, starting August 10. There was no distinction between legal and physical custody, something noted in the later order. The remaining matters were taken under advisement.

On August 7, 2018, the district court entered an order, finding that Bryson was the father of Kinley and Kyler. It stated that the parties were awarded "joint care custody and control of the minor children," with "physical care custody and control" awarded to Kari subject to Bryson's parenting time set forth in an attached parenting plan (alternating weekend parenting time and mostly alternating holidays; and summer parenting time during June and July for Bryson, subject to Kari's alternating weekend parenting time on the same terms Bryson followed the rest of the year).

Starting in September 2018, Bryson was ordered to pay child support of $638 per month for both minor children (reducing to $439 for one child), subject to an automatic 50-percent abatement during June and July each year unless Kari submitted an objection stating that Bryson failed to exercise his summer parenting time. Bryson was ordered to pay 57 percent of employment- or education-related daycare expenses. Other matters such as cash medical support, health insurance and unreimbursed medical expenses, and tax deductions were set forth in the order. The costs of the action were charged to Kari. Each party had to pay their own attorney fees.

Bryson appeals.

III. ASSIGNMENTS OF ERROR

Bryson claims, consolidated and restated, the district court erred in not awarding sole physical custody of the children to him rather than Kari, and therefore also erred in ordering him to pay child support.

IV. STANDARD OF REVIEW

Child custody and child support determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. See, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015); State on behalf of Fernando L. v. Rogelio L., 299 Neb. 329, 907 N.W.2d 920 (2018). An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Schrag v. Spear, supra. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.

V. ANALYSIS

1. CHILD CUSTODY

Bryson claims the district court abused its discretion by awarding physical custody of Kinley and Kyler to Kari. He disputes both the district court's legal analysis and its custody determination based upon the evidence in this case.

When deciding custody issues, the court's paramount concern is the child's best interests. Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012). Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) states, in pertinent part:

In determining custody and parenting arrangements, the court shall consider the best interests of the minor child, which shall include, but not be limited to, consideration of the foregoing factors and:

(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;

(c) The general health, welfare, and social behavior of the minor child;

(d) Credible evidence of abuse inflicted on any family or household member . . . ; and

(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.

Other pertinent factors include the moral fitness of the child's parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and parental capacity to provide physical care and satisfy educational needs of the child. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).

(a) District Court's Legal Analysis

Bryson asserts that the district court "made it clear that the only factor it had considered was which parent was the primary caregiver before January 2017." Brief for appellant at 14. Bryson...