Vesper v. Francis

Bruce M. Vesper, appellant, v. Dawn Francis, now known as Dawn Francis-Tharp, appellee.

No. A-21-009

Court of Appeals of Nebraska

August 24, 2021

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 Saunders County: Christina M Marroquin, Judge.

Avis R. Andrews for appellant.

Corey J. Wasserburger, of Johnson, Flodman, Guenzel & Widger for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Chief Judge.

I. INTRODUCTION

Bruce M. Vesper appeals from the order of the district court for Saunders County denying his application to modify custody, denying his request to change the minor child's surname, and denying his request for attorney fees. Based on the reasons that follow, we affirm.

II. BACKGROUND

1. Procedural Background

Vesper and Dawn Francis, now known as Dawn Francis-Tharp (Francis-Tharp), are the parents of Alexander David Francis, born in September 2011. The parties were never married, and Vesper is not listed on Alexander's birth certificate.

In November 2012, the district court entered an order determining that Vesper was Alexander's biological father and awarding sole legal and physical custody to Francis-Tharp, subject to Vesper's reasonable visitation. The court noted that Vesper and Francis-Tharp "do not cooperate well enough to support a joint custody arrangement." This court affirmed the order of the district court. See Vesper v. Francis, No. A-12-1168, 2013 WL 5530281 (Neb.App. Oct. 8, 2013) (selected for posting to court website).

In 2016, Vesper filed an application for modification of the custody order and a request that Francis-Tharp be found in contempt for failing to allow Vesper his parenting time. The district court denied both the application to modify and the application for citation for contempt. The court noted again that "[t]he relationship between the parties has been historically hostile and contentious." This court affirmed. See Vesper v. Francis, No. A-16-442, 2017 WL 582731 (Neb.App. Feb. 14, 2017) (selected for posting to court website.)

In September 2019, Vesper filed the instant application for modification of custody. He alleged that Francis-Tharp had failed to provide a stable environment for Alexander, that Francis-Tharp's marriage was detrimental to Alexander's welfare, that Alexander had received unexplained injuries while in Francis-Tharp's care, that Francis-Tharp failed to communicate with Vesper regarding Alexander, that Francis-Tharp had failed to properly supervise Alexander, and that both parties had experienced a change in income. Vesper requested sole legal and physical custody, a recalculation of child support, and costs and attorney fees. He also requested that Alexander's surname be changed to Vesper.

At the time of the trial, Vesper was entitled to parenting time every other weekend from Friday at 6 p.m. to Sunday at 5 p.m., and every Wednesday from 5 to 8 p.m. The court ordered that exchanges were to take place at the police station in Fremont at the start of Vesper's parenting time and at the sheriff's department in Wahoo at the end of his parenting time.

Trial was held on August 13, 2020.

2. Vesper's Testimony

At the time of trial, Vesper lived in Fremont, Nebraska, and was employed as a truck driver. He worked from 7:30 a.m. to 4 p.m. every weekday and from 7:30 a.m. to 11:30 a.m. on Saturdays. Vesper testified that he had been continuously employed since the prior modification proceedings and was current with his child support obligations.

Vesper testified that Francis-Tharp had moved several times since the previous trial. In 2016, she moved from Cedar Bluffs, Nebraska, to Ceresco, Nebraska; subsequently, Francis-Tharp moved again, this time to Prague, Nebraska. In January 2017, Francis-Tharp informed Vesper that she was moving back to Cedar Bluffs. Francis-Tharp moved for the final time in November 2018 to Hooper, Nebraska. Vesper testified that at some point following her relocation to Hooper, Francis-Tharp moved out of her home due to difficulties in her marriage. However, Francis-Tharp and her husband reconciled approximately a month later.

Vesper testified that Alexander had attended school in Cedar Bluffs from preschool through first grade and that he had completed second grade at Logan View public school in Hooper. At the time of trial, Alexander was preparing to enter third grade at Logan View. Vesper testified that if he were awarded custody, Alexander would resume school in Cedar Bluffs. According to Vesper, Alexander had several friends in Cedar Bluffs. He testified that in contrast, Alexander did not have as many friends or social opportunities at Logan View due to its rural location. Vesper testified that he took a "very active role" in Alexander's education because Francis-Tharp did not communicate with him.

Vesper testified about ongoing communication issues between himself and Francis-Tharp, stating that in general, Francis-Tharp refused to speak with him about Alexander's care and needs. He also testified that the parties frequently experienced conflict with respect to the location of parenting time exchanges. Vesper testified that Francis-Tharp sometimes refused to allow him to exercise his parenting time. He testified that once when he failed to return Alexander at the scheduled time, Francis-Tharp denied his next visit. Another time, Francis-Tharp's husband was exposed to COVID-19, and Francis-Tharp did not permit Vesper his Wednesday evening visitation because the household was ordered to quarantine for 14 days.

Vesper presented evidence of physical injuries sustained by Alexander during Francis-Tharp's parenting time. These injuries included a black eye and "marks" along the length of Alexander's spine. Vesper testified that he did not find Francis-Tharp's explanation that Alexander received the black eye at school to be credible and that she did not answer his questions about the bruises. Vesper additionally testified about an incident in January 2018 where Alexander walked to school in 15 degree weather in an unbuttoned coat and with only one glove.

At the time of trial, Francis-Tharp was married to Adam Tharp. Vesper testified that Francis-Tharp and her husband had been involved in domestic altercations throughout their 6 or 7 years of marriage. He testified that Tharp had threatened him and made rude and vulgar comments toward him while in Alexander's presence. Vesper testified that his negative interactions with Tharp were frequent and often included threatening text messages. He testified that he was concerned about Alexander's safety while living with Tharp because he considered Tharp to be a "violent individual."

Vesper explained that he was requesting that Alexander's surname be changed because it would bring stability to the child's life. He testified that Alexander's surname was different from that of everyone living in Francis-Tharp's home. He testified that Francis-Tharp's older children shared their father's surname and that Francis-Tharp herself used only "Tharp" in social situations. He claimed that "the only reason why [Francis-Tharp] is keeping the Francis [surname] is to literally stop me from having my son's last name."

On cross-examination, Vesper admitted that Francis-Tharp did communicate with him, albeit only through text messages. Vesper testified that he treated Francis-Tharp with "respect and honesty." However, he admitted to sending messages which criticized Francis-Tharp's appearance and clothing as well as other messages which indicated sexual interest in Francis-Tharp. Vesper admitted that some of his communications were inappropriate. Vesper agreed that when it came to parenting time exchanges, he had sometimes inconvenienced Francis-Tharp in retaliation for prior incidents where he felt she had behaved similarly. He characterized himself as a "flexible person" when it came to co-parenting Alexander.

3. Francis-Tharp's Testimony

Francis-Tharp testified that in 2016, she moved from Ceresco to Prague because her landlord decided to sell the house she and Tharp had been renting. She then lived in Prague for less than a year while searching for a home in Cedar Bluffs, where she eventually moved. After living in Cedar Bluffs for nearly 2 years, Francis-Tharp and Tharp bought an acreage near Hooper.

Francis-Tharp testified that she and her children moved out of the Hooper residence in 2019 due to issues in her marriage; however, she resumed living with Tharp after a month.

On August 5, 2019, Francis-Tharp contacted law enforcement because Tharp was "acting really inappropriately" toward her. Following this incident, Francis-Tharp received a protection order against Tharp. She wrote in her application for the protection order that on August 5, Tharp had broken doors, thrown her belongings, and fired several gunshots outside the house. The application also stated that Tharp threatened suicide "on at least a weekly basis," that he refused to take medications to treat his mental illnesses, and that he had previously threatened to kill Vesper. Francis-Tharp later requested that the protection order be vacated, and her request was granted. She testified that Alexander was not present when the August 5 incident occurred.

Francis-Tharp testified that there were no longer any firearms stored in her home. She testified that Tharp had participated in anger management classes and was taking his prescribed medications. She further testified that she and Tharp had begun attending church and were in counseling with a pastor. Francis-Tharp stated that if Tharp ever behaved violently again, she would "absolutely...