Wecker v. Branting

GARY E. WECKER, APPELLEE, v. JAIMIE L. BRANTING, APPELLANT.

No. A-19-296.

NEBRASKA COURT OF APPEALS

February 25, 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 Madison County: JAMES G. KUBE, Judge. Affirmed in part, and in part reversed and remanded with directions.

Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher, Klutman & Valorz, for appellant.

Sharon E. Joseph, of Joseph Law Office, for appellee.

MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Jaimie L. Branting appeals from the order of the Madison County District Court establishing custody, parenting time, and child support in this paternity case. For the reasons set forth herein, we affirm in part, and in part reverse and remand with directions.

II. STATEMENT OF FACTS

In November 2015, Branting gave birth to Colby J. Wecker. Branting and Gary E. Wecker signed an acknowledgement of paternity the day after Colby's birth and 2016 DNA testing established a 99.99998 percent probability that Wecker was Colby's father.

At the time of Colby's birth, Branting and Wecker lived together in Norfolk and worked for the same employer. After Wecker and Branting ceased cohabitating, Wecker stated that the parties split parenting time with Wecker's parenting time based upon his work schedule. Wecker testified this arrangement worked initially, but as time went on, Branting started arriving late to their drop-offs, she would not have Colby dressed appropriately for the weather, and she started telling Wecker that "she wasn't going to bring Colby to [him], she was just going to keep him."

In January 2017, Wecker filed a complaint for the establishment of paternity, custody, child support, and other related matters after Branting started withholding Colby from his agreed-upon parenting time. In May, the district court entered a temporary order granting the parties joint legal and physical custody of Colby with parenting time for each party incorporating Wecker's work schedule. Additionally, the court ordered Wecker to pay $50 per month in temporary child support. This order was later amended to increase Wecker's temporary child support obligation. Trial in this matter was held in October 2018. Witnesses at trial included Wecker; Branting; Deann Wecker, Wecker's ex-wife; Jeremy Smith, Branting's fiance; Jennifer Williams, who watches Colby on the evenings when Wecker had to work overnight shifts; and Jocelyn Boruch, Branting's mother.

Branting testified that, in July or August 2016, she and Colby moved out of Wecker's home into her parents' home in Osceola, Nebraska. After a few months, they moved in with Branting's fiancé, Jeremy Smith, but then moved back in with Branting's parents for a few months in the summer of 2017. Branting and Colby then moved back in with Smith and they had been living together since that time. In January 2018, Branting, Colby, and Smith moved into a home in Shelby, Nebraska, which they continued to occupy at the time of the October trial. Branting acknowledged that Smith owns the home and that she is not a co-owner. The home has four bedrooms, Colby has his own room, and the home has rooms for Colby's toys.

Branting testified that when she was living with Wecker, she was Colby's primary caregiver. She further testified that if Colby was sick, she, not Wecker, would stay home to care for Colby. Branting also expressed concern regarding a heart condition that Wecker had when they were together. She stated:

When [Wecker] and I were together, this medicine that he would take . . . would slow down his heart so much that he would fall asleep and sometimes he would be asleep for five minutes, sometimes it would be two hours. And sometimes in the night he wouldn't wake up when Colby would be crying so I would get up with Colby.

When the parties met, Branting was employed at the same place as Wecker as an ethanol operator in training. Branting quit this position shortly after Colby's birth. Since that time, she has had three jobs. She was employed at one position for 1½ years, then moved on to full-time employment at a plumbing and utility company earning $12.50 per hour. She is currently employed working from home as a secretary for Smith's trucking company. Smith testified that although Branting does not receive a salary, she has access to the checkbook and credit cards to "get whatever she needs."

Wecker testified that he has been employed as an ethanol operator for the past 6 years, has been living in his home for 2 years, and has lived in Norfolk for 40 years. Wecker testified that his health coverage for just himself was $110 per month and with Colby, the health coverage expense increased to $313 per month. Wecker provided further information regarding health, dental, andvision expenses which were received into evidence in exhibit 19 and which will be discussed in more detail in the analysis section of this opinion.

Wecker testified that Branting had conversations with him about Smith and that Smith was abusive and had a drinking problem. When Branting arrived to an exchange with a black eye she stated that "the guy that she lived with had hit her" and Wecker testified that it was clear that she was referring to Smith. Branting testified that there are no domestic violence issues between herself and Smith and that she lied when she told Wecker that there was. Branting also admitted telling Wecker that she was moving out of Smith's home "quite a few times" but she did not actually do so. She also told Wecker that she was going to move in with someone named "Mike" but she did not do so.

Both parties expressed concerns with the parenting of the other party. Wecker expressed concerns with Branting's failure to dress Colby appropriately for the weather; driving Colby without a car seat; bringing Colby to parenting exchanges in pants soaked with urine and feces; and Colby arriving for visits with bruises, burns, and "bad rashes." Williams also testified that it is "very common" for Colby to have injuries, such as burns and scrapes, when he returns from Branting's home. Branting testified that Colby returned from visits with Wecker with diaper rash which she treated with Desitin or baby powder. She also complained of one instance where Wecker had changed one of Colby's doctor's appointments without her knowledge, but Wecker testified that he only rescheduled the appointment after Branting had missed Colby's medical appointment to have his heart murmur checked and to have his immunizations, so he rescheduled, and took Colby to that appointment.

Wecker testified to two specific incidents in which Colby was returned from visits with Branting with sores on his tongue and where Colby was injured by a 55-gallon drum which resulted in injuries to Colby's right eye. In response, Branting acknowledged not taking Colby to the doctor for the sores, instead choosing to stop giving Colby "Sunny D" and switching him to milk and water. As to the injuries caused by the 55-gallon drum, which caused scratches and swelling underneath Colby's right eye, Branting testified that "[h]e was helping me clean the shop at our house and there was a 55-gallon drum and he was rolling it along on the floor, and he tumbled over the top of it and basically face-planted into the concrete." Branting stated that she believes in taking children to the doctor "if it's something serious enough." Branting further admitted that after Colby touched a wood burning stove while under her supervision, Colby developed a burn with blistering open sores which Branting treated with Neosporin and decided to forgo taking him to the doctor despite the fact that she was aware that there was a possibility for infection. She stated that on the occasion when she returned Colby to Wecker with either a wet or poopy diaper, they had either been at the river or the pool and she had forgotten the diaper bag with extra pull-ups and baby wipes. She testified that she informed Wecker of the accident and that she had forgotten the diaper bag at home, so she was unable to change Colby at the exchange location.

The parties testified extensively regarding a disagreement concerning parenting time which involved a snowstorm on January 22, 2018. Specifically, during Wecker's parenting time with Colby, Branting learned of warnings of an impending snowstorm. In response, Branting corresponded with Wecker, inquiring if Wecker would return Colby a day early due to the impending snowstorm, but Wecker refused. Wecker was then unable to return Colby to Branting on time the following day due to hazardous road conditions which had closed roads, but he returnedColby the next day after roads were open. Following that incident, Wecker testified that Branting would state that she was not going to return Colby "because it's snowing out." On another occasion, Branting told Wecker that she would not bring Colby because he was sick. One of the texts to Wecker stated "[Colby]'s been puking. I am not going to run him around when he's sick. You got him an extra day last week anyways." However, Wecker testified that once Branting brought Colby to the exchange, Colby was not sick.

Wecker also testified that Branting was 20 minutes late to an exchange in July 2018 so he texted her to ask if she would be there soon, to which she replied that she was taking her 10 days of summer time with Colby so she would not be bringing him. He responded that she was supposed to provide him with 30 days' notice but Branting stated that her "daughter will be coming back and we have plans so [Colby] will stay with me and I will keep him for my ten days." Branting admitted that she did not give Wecker 30 days' notice for her 10 days of 2018 summer visitation. She stated that her daughter was originally scheduled to return in August, but...