Vlasak v. Vlasak

BRIAN J. VLASAK, APPELLEE, v. JACQULYN M. VLASAK, NOW KNOWN AS JACQULYN M. CRAIG, APPELLANT.

No. A-17-207.

NEBRASKA COURT OF APPEALS

March 13, 2018

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: THOMAS A. OTEPKA, Judge. Affirmed as modified.

Jeff T. Courtney, P.C., L.L.O., for appellant.

Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O, for appellee.

MOORE, Chief Judge, and RIEDMANN, Judge, and INBODY, Judge Retired.

MOORE, Chief Judge.

I. INTRODUCTION

Pursuant to a decree of dissolution, Jacqulyn M. Vlasak, now known as Jacqulyn M. Craig, and Brian J. Vlasak were awarded joint legal and physical custody of their minor child. Subsequently, the parties sought to modify custody and Jacqulyn sought to remove the child from Nebraska to Nevada. Brian also filed a contempt action with respect to Jacqulyn's failure to pay certain childcare expenses. The district court for Douglas County denied Jacqulyn's request for removal and modified the decree to award physical custody to Brian. The court also denied Brian's application for contempt. Jacqulyn appeals, and Brian cross-appeals. For the reasons set forth herein, we affirm as modified.

II. BACKGROUND

The parties were married in July 2005. In March 2008, they adopted their daughter, Hailey, when she was 2 days old. The parties were divorced in October 2009. The decree awarded them joint legal and physical custody of Hailey. The court ordered Brian to pay Jacqulyn child support of $168.18 per month. The parties agreed to a parenting plan that was incorporated into the decree. Under the parenting plan, Jacqulyn had parenting time with Hailey every week from 8 a.m. Monday to 8 a.m. Wednesday; Brian had parenting time every week from 8 a.m. Wednesday until 8 a.m. Friday; and the parties alternated parenting time from 8 a.m. Friday until 8 a.m. Monday each week. The parenting plan provided each of the parties with "the right of first refusal" to provide care for Hailey during the other parent's parenting time "if the minor child requires any amount of care." The court ordered each party to pay 50 percent of childcare expenses incurred by either party due to the parties' employment or education. The party incurring the expenses was to provide receipts to the other party within 30 days of the expenses being incurred and the other party was to make payment of 50 percent of the costs within 30 days of receiving the receipts.

Both parties remarried following their divorce. Brian married Kristen Vlasak in May 2014. He and Kristen have a child together, who was 19 months old at the time of the modification trial. Jacqulyn married James Craig in December 2011. Jacqulyn and James have a child together, who was 3 years old at the time of trial. James also has children from a previous marriage, who were ages 18, 15, and 12 at the time of trial.

On March 9, 2016 Jacqulyn filed a complaint for modification and removal from the jurisdiction, seeking to modify physical custody and to remove Hailey from Nebraska to Las Vegas, Nevada. She alleged that since entry of the decree there had been material and substantial changes in circumstances warranting modification. Specifically, she alleged that James, a Federal Bureau of Investigations (FBI) special agent currently assigned to the Omaha, Nebraska Division, was being transferred to the Las Vegas Division in May; that although the parties had been awarded joint physical custody, she had remained Hailey's primary care giver; and that Hailey's hygiene needs were not being met when she was in Brian's physical possession. Jacqulyn asserted that the parties should continue to have joint legal custody, but she asked the court to award her primary physical custody. She also alleged that it was in Hailey's best interests to allow Jacqulyn to remove her from the jurisdiction.

Brian answered and filed a counterclaim, in which he sought sole legal and physical custody of Hailey. Brian alleged that there had been a material and substantial change in circumstances warranting modification of custody in that Jacqulyn intended to relocate to Las Vegas because of James' transfer and that Jacqulyn does not communicate with Brian in a business-like manner, has used excessive vulgar language, and joint custody is no longer workable.

In May 2016, Jacqulyn relocated to Las Vegas with James and their blended family, except for James' oldest child who had graduated from high school and remained in Omaha with her mother. Hailey remained in Omaha with Brian. On May 18, the district court entered a temporary order, awarding Brian temporary primary possession of Hailey until further order of the court. The court awarded Jacqulyn summer parenting time with Hailey in Las Vegas from July 1 to August 10.

On May 31, 2016, Brian filed an application for an order to show cause, alleging Jacqulyn should be held in contempt due to her failure to reimburse Brian for childcare costs incurred on behalf of Hailey.

Trial on all matters was held before the district court on September 7 and 8, 2016. Jacqulyn testified on her own behalf and presented testimony from her brother, her parents, and James. Brian testified on his own behalf and presented testimony from one of Hailey's teachers, his father, and Kristen. The court received various documentary, photographic, and other exhibits.

James has a bachelor's degree in business information systems, a master's degree in management, and at the time of trial, he was a student at a law school "on track to get a master's in legal studies." James is employed as a special agent for the FBI. He began working for the FBI in August 2005 in Omaha as an information technology specialist. In August 2008, he underwent training and became a special agent, assigned to the Omaha division as a counterterrorism agent, where he also worked in cybercrime. James testified that if he had remained "a cyber agent" in Omaha, he would not have advanced. In 2014, James began training to become a technically trained agent, which he described as "another opportunity or job classification" that has "great promotion potential." James believed that he had to transfer away from Omaha to obtain a position as a technically trained agent and to further advance his goal of becoming a supervisory special agent. According to James, when he began training as a technically trained agent, there were already some technically trained agents working in the Omaha Division of the FBI. Since a new technically trained agent was hired in 2015, bringing the total to three for the Omaha Division, James believed it unlikely that a position in Omaha would become available soon. James admitted that his position in Omaha would not have been eliminated and that he was in no danger of being laid off, fired, or demoted.

Upon his transfer to Nevada, James' rate of pay increased by $162 per year based on a change in locality pay. Additionally, Nevada does not have state income tax which resulted in a $500 increase in his monthly paychecks after the transfer. James had been compensated at the "GS-13, step four" pay grade in Omaha. Shortly before trial, his pay grade was changed to "GS-13, step five," which increased his annual salary by about $2,100. He admitted that he would have had this same pay grade increase if he had stayed in Omaha because the change was based on "time and service" with the FBI and not the transfer to Nevada.

James' current position in Nevada is not considered a promotion, but he believes that he will have the opportunity to advance in the Las Vegas division. James will have to be in the position of a technically trained agent in Nevada for at least a year before becoming eligible for a promotion into the position of supervisory special agent. If promoted to supervisory special agent, he would be able to work in that capacity for seven years, after which he would either be promoted to an assistant agent in charge or be demoted. James had not received any notice that he would be eligible for promotion or that a position was coming available as of the date of trial. James made the application to transfer to Nevada before he or Jacqulyn did any research with regard to schools, living conditions, homes, activities, or other factors relating to the children's interests. Jacqulyn testified, however, that if they had discovered that "the living conditions were awful for [their] kids," they would not have moved to Nevada.

James and Jacqulyn purchased a residence in Summerlin, Nevada, with five bedrooms, four and a half bathrooms, and a swimming pool. Their previous residence in Nebraska was of similar size. According to James, the Nebraska residence was in the La Vista area and was in a "nice" neighborhood. He described their Nevada neighborhood as "very family-oriented," with many children Hailey's age living there. James and Jacqulyn researched the schools in the Summerlin area, primarily over the internet and through discussion with James' future Nevada coworkers. They liked what they learned about the Nevada schools. Jacqulyn has had contact with the school Hailey would attend if allowed to move to Nevada. She testified that she was familiar with "the rating or grades" that this school has, and knowing that information, she is not concerned about the school.

Before moving to Nevada in May 2016, Jacqulyn was employed at a hospital in Omaha as a pediatric nurse. She had the ability to set her schedule and chose to work a 7 p.m. to 7 a.m. shift three times per week for an average of 36 hours per week. Her hourly rate of pay prior to the move was $28.68 per hour. After moving to Nevada in May 2016, she found employment at a Summerlin hospital as a pediatric nurse and worked the same schedule as in Omaha. Her hourly pay rate in Nevada was initially about $10 more per hour...