Westerhold v. Dutton

28 Neb.App. 17

938 N.W.2d 876

Jeremy D. WESTERHOLD, appellant,

v.Jessica M. DUTTON, appellee.

No. A-19-166.

Court of Appeals of Nebraska.

Filed February 4, 2020.

Matthew M. Munderloh, of Johnson & Mock, P.C., L.L.O., Oakland, for appellant.

Douglas J. Stratton, of Stratton, DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O., Norfolk, for appellee.

Pirtle, Riedmann, and Welch, Judges.

Pirtle, Judge.

I. INTRODUCTION

Jeremy D. Westerhold appeals from an order of the district court for Thurston County finding him to be the biological father of Ledger W. Dutton; awarding custody of Ledger to Jessica M. Dutton, Ledger’s biological mother; and permitting Jessica to remove Ledger from Nebraska to Illinois. For the reasons that follow, we affirm.

II. BACKGROUND

Jeremy and Jessica met in August 2016 while they were employed at Ronnefeldt Farms, which is located just outside of Lyons, Nebraska. The two began dating soon after, moved in together, and were briefly engaged to be married. They ended their relationship in June 2017, while Jessica was pregnant. Jessica gave birth to Ledger in October 2017. On December 20, Jeremy filed a complaint to establish paternity, custody, parenting time, child support, and other related issues. Jeremy sought sole custody of Ledger or, in the alternative, liberal parenting time. Jeremy also sought an order of the court establishing his surname as Ledger’s surname. Jessica filed an answer and counterclaim admitting Jeremy is the biological father of Ledger and seeking sole legal and physical custody of Ledger.

On February 21, 2018, Jeremy and Jessica reached an agreement regarding provisions of a temporary order, and the district court approved and ordered the same. The temporary order granted Jeremy parenting time every other weekend and on Wednesday evenings of each week, provided that the parenting time was supervised by Jeremy’s parents. On May 9, the court entered a stipulated temporary order that lifted the supervision restriction on Jeremy’s parenting time. On July 27, Jessica filed an amended counterclaim requesting that "she be granted the opportunity to move [Ledger] to the Carthage, Illinois area." The matter was tried before the district court on October 22, 2018.

At trial, Jeremy testified that he has resided in Lyons for the last 19 to 20 years. He has spent the last 13 years raising hogs and is currently employed at Ronnefeldt Farms. Jeremy acknowledged that he is the biological father of Ledger.

Jeremy testified that although he signed an acknowledgment of paternity, recognizing that Ledger had been given the "Dutton" surname, he did not agree to the name on the date of trial or at the time he signed the document. He testified that he signed the document merely to acknowledge Ledger as his child and had hoped Ledger would be given the "Westerhold" surname. Jeremy further testified that Jessica previously mentioned a name change prior to Ledger’s being born, but that she said she probably would not go through with it, and that he did not find out until the morning Ledger was born that he would be given Jessica’s surname.

Jeremy testified that he first met Jessica in August 2016 after she had obtained employment at Ronnefeldt Farms through her mother, who was a manager there. Soon after, the two began dating, Jessica moved in with Jeremy, and they got engaged. They remained living together until June 2017. After Jessica moved out, she first moved in with her mother, who lived just outside of Lyons, and then to Pender, Nebraska. Jeremy testified that at the time of trial, he believed Jessica was no longer residing in Pender but was staying in Quincy, Illinois. He testified that he recalled the court previously denying Jessica’s request to move with Ledger to Illinois at an earlier hearing, but that she moved anyway and left Ledger in Nebraska with a friend of hers, Whitney Larson. Jeremy testified that he barely knew Larson and that he had discussed with Jessica the possibility of Ledger’s living with his parents for the time Jessica was living in Illinois before their next court hearing.

Jeremy testified that under a previous temporary order granting him supervised parenting time, his parents, Dan Westerhold and Tami Westerhold, were to supervise. Jeremy testified that Jessica did not want Ledger to stay with Jeremy’s parents for the month she was in Illinois and that they had talked about alternating 2 weeks in Lyons and 2 weeks with Jessica in Illinois, but he did not want to go 2 weeks without seeing Ledger.

While Ledger was with Larson, Jeremy maintained the same visitation schedule as before and would provide the transportation to pick Ledger up from daycare and drop him off with Larson. On two occasions, Jessica took Ledger to Illinois for a period of 5 days, but never interfered with the parenting time that had been arranged for Jeremy. Jeremy testified that he never agreed to have Ledger travel to Illinois for that time because he did not believe it was in Ledger’s best interests to travel that much.

In October 2018, leading up to trial, Ledger spent 2 weeks with Jeremy’s parents at the beginning of the month, and Jessica had him since then. Jeremy was able to maintain his parenting time under the temporary order, and additionally until 8 p.m. every evening.

Jeremy testified that between Ledger’s birth in October 2017 and January 2018, he spent approximately 20 hours total with Ledger, despite requesting more time with him. He testified that he had discussed with Jessica having more time with Ledger, but the two never agreed on anything. Jeremy testified that Jessica would never allow him to spend time alone with Ledger and that she would only permit a few hours at a time. In February, Jeremy was granted specific parenting time consisting of Wednesday evenings and every other weekend pursuant to a temporary order. The supervision aspect was lifted in May.

Jeremy testified that Jessica has another child from a previous relationship, Rhett Dutton, who was a few months old when Jeremy first met Jessica. When Jessica moved in with Jeremy, Jessica’s brother and Rhett also moved in. Jeremy testified that he would take Rhett to daycare before he went to work each day and would often watch him while Jessica napped. Jeremy would dress Rhett, change his diaper, and provide a bottle for daycare if needed because Jessica had an earlier start to her shift. Jeremy would also feed, bathe, clothe, and change Rhett during the evenings. Occasionally, Jessica would leave Rhett alone in Jeremy’s care.

Jeremy testified that the night Jessica moved out, he had left work and began taking care of Rhett. He first took Rhett to Jessica’s parents’ home, then to his own parents’ home where apparently eight people were having a bonfire, and then to his home, where Jeremy put Rhett to sleep. Jeremy then fell asleep, and when he woke up at 11 p.m., Jessica, her brother, and Rhett were gone. Jeremy testified that he had consumed two beers that night. He noted that he did not have any discussion with Jessica before she left and that they had not discussed her reasons for leaving.

Jeremy further testified that he was aware that Jessica wrote in an affidavit that while the two were living together, he would at times consume alcohol from the time he woke up until he went to bed. He denied ever doing so. Jeremy indicated that he obtained a substance abuse evaluation due to Jessica’s concerns about his alcohol use. He testified that he was honest in reciting his history of alcohol use and that no treatment recommendations were provided.

Jeremy testified that he does not drink alcohol presently and has not done so since August 25, 2017. He testified that he chose to stop consuming alcohol for the well-being of Ledger and their relationship. Jeremy admitted that Jessica at times would tell him to stop drinking while they were living together but that she nevertheless permitted him to care for Rhett. Jeremy indicated that his alcohol use has very rarely caused him to be late for work, and not at all within the previous 2 years since Ledger was born. Jeremy testified that he went to South Dakota to "get sober," despite not participating in a formal treatment program, and did come back sober.

Jeremy testified that his parents live in Lyons, his grandmother lives in Pender, and he has other extended family in the Valley-Omaha area in Nebraska. He testified that during their relationship, Jessica would occasionally talk to him about how frequently she moved as a child. He also testified Rhett has lived at four different addresses with Jessica since he was born.

Jeremy testified that he believes awarding him custody of Ledger would be in Ledger’s best interests because he provides more structure and stability, he does not plan on moving, and his parents live just "two houses down" from his home. Jeremy further testified that he has had the same employer for the last 13 years, despite brief periods where he did not work. Jeremy testified that although both his parents work full time, they would still have time to watch Ledger when necessary.

Jeremy indicated that he ordinarily goes to work and then goes home, but occasionally will spend time with his friends, who both have children and families of their own. Jeremy testified that he works an average of 114 hours every 2 weeks, but it varies.

Jeremy testified that he does not agree with Jessica’s decision to move with Ledger to Illinois because he wants to create a bond with him, watch him grow up, and help him with school and because the distance would not be good for their relationship. He testified that he would like structure for Ledger and that Jessica moves a lot. Jeremy noted that the night before trial, Jessica had mentioned to him that she was going to move to Hebron, Nebraska, if she was not permitted by the court to move to Illinois.

Jeremy testified that if he is awarded custody, he plans on continuing to live in Lyons and work at Ronnefeldt Farms and would not...