Burton v. Schlegel ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
BURTON V. SCHLEGEL
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).
DWAYNE BURTON, APPELLEE AND CROSS-APPELLANT,
V.
ALEXANDRA SCHLEGEL, APPELLANT AND CROSS-APPELLEE.
Filed May 24, 2016. No. A-15-761.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Kevin Ruser and Ryan P. Sullivan, of University of Nebraska Civil Clinical Law Program,
and Casey Steadman, Jake Harberg, Michael Mills, and Nick Glasz, Senior Certified Law
Students, for appellant.
Eddy M. Rodell for appellee.
INBODY, PIRTLE, and BISHOP, Judges.
BISHOP, Judge.
I. INTRODUCTION
Dwayne Burton brought this action against Alexandra Schlegel to establish paternity and
custody of Easton Burton, Schlegel’s minor son. Following a bench trial, the district court for
Lancaster County determined that Burton was Easton’s biological father and entered a decree
addressing custody, parenting time, child support, and childcare expenses, among other issues.
Schlegel appeals, and Burton cross-appeals. We affirm.
II. BACKGROUND
At an unspecified time prior to Easton’s birth, Burton and Schlegel began a relationship
while Burton was living in Utah and Schlegel was living in Wyoming. Schlegel became pregnant,
and the parties decided that Schlegel, and her three children from previous relationships, would
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move to Utah to live with Burton. During Schlegel’s pregnancy, either Burton accepted a job offer
in New Mexico or his job was transferred there, and Schlegel and her children moved with him.
Schlegel gave birth to Easton in New Mexico in December 2013. Shortly thereafter, Schlegel and
Burton’s relationship ended. In February 2014, Schlegel moved with Easton and her other children
to Lincoln, Nebraska, to live with her sister. Also in February, Burton returned to Utah, where he
subsequently married another woman, with whom he had previously had a daughter out of
wedlock.
On June 6, 2014, Burton initiated this action by filing a complaint to establish paternity
and custody. On December 15, the district court entered a temporary order awarding Schlegel
temporary custody of Easton, granting Burton 2 weeks of parenting time every 2 months, ordering
Burton to pay temporary child support of $350 per month, and directing the parties to equally share
all work-related childcare expenses.
A bench trial commenced on May 11, 2015. The parties’ proposed parenting plans were
received into evidence; we discuss the plans first to give context to the parties’ testimony that
follows.
Burton submitted a proposed parenting plan under which the parties would receive joint
legal custody of Easton, and Burton would receive physical custody. The plan proposed that
Schlegel would have 2 weeks of parenting time every 2 months until Easton began Kindergarten.
At that time, Schlegel would have parenting time during the summer break and spring break, and
on alternating holidays. Burton submitted an alternative parenting plan under which the parties
would receive joint legal and physical custody, with the parties exercising parenting time on a
“two month on/two month off” schedule. The alternative plan did not address parenting time after
Easton began school.
Schlegel submitted a proposed parenting plan under which she would receive legal and
physical custody of Easton. Under Schlegel’s plan, Burton would have 2 weeks of parenting time
every 2 months until Easton began preschool in January 2018. At that time, Burton would have 4
weeks of parenting time each summer; the summer parenting time would increase to 8 weeks once
Easton turned 8 years old and would continue through Easton’s minority.
We now summarize the parties’ testimony. Burton called Schlegel as his first witness. She
testified that she lived in Lincoln with Easton and her three other children--two sons and a
daughter--who ranged in age from 8 to 14. She opposed Burton’s proposed parenting plan under
which Burton would receive physical custody of Easton, because she had been Easton’s primary
caregiver since his birth. She also opposed Burton’s alternative parenting plan, because she
believed it would be inappropriate for a child as young as Easton to be away from his mother, his
primary caregiver, for 2 months at a time.
Schlegel admitted she had a pending charge for aggravated driving under the influence
(DUI). It was aggravated because her blood alcohol content was over 0.15. Schlegel’s license had
been revoked, and she was required to use an ignition interlock device to drive. Easton was with
Burton at the time of Schlegel’s DUI offense. Schlegel had no other arrests as an adult.
Schlegel also admitted that she had a pending case in juvenile court concerning her
14-year-old daughter. The case was set for an adjudication hearing on May 19, 2015. A copy of
the juvenile court petition was received into evidence; it alleged that Schlegel’s daughter was a
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child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014) in that she was in
significant need of mental health treatment or services, which Schlegel had failed to obtain.
Schlegel indicated she was not concerned about the case, because her daughter had been in
counseling when the case was filed. Schlegel clarified that her daughter had not been removed
from her custody and remained living with her.
Burton testified next. He lived in Utah with his wife, their 5-year-old daughter, and his
11-year-old stepson. Burton explained that he had been in a relationship with the woman who was
now his wife prior to being in a relationship with Schlegel. When he and Schlegel ended their
relationship, Burton rekindled his relationship with the woman who became his wife. Burton
testified that he assisted Schlegel in moving to Lincoln after their relationship ended, because he
believed it would be best for Schlegel’s other children if they lived there, apparently because they
would be closer to their fathers.
Burton testified that he was employed as an industrial construction manager. His
employment used to require a lot of travel, but he had acquired a different position with the same
company that no longer required him to travel.
Addressing the parenting time he had exercised with Easton, Burton testified that the first
period he spent alone with Easton was in February 2014 while Schlegel was transitioning to
Lincoln. After that, Burton was working on a project in Wyoming and attempted to have parenting
time with Easton. Before Schlegel would allow him to see Easton, she wanted him “to send text
messages and e-mails to [his] fiancee [sic] telling her that [he] never wanted to see her again and
that [he] was going to attempt to rekindle a relationship with . . . Schlegel.” She also wanted Burton
to give her $1,500 for an attorney. The parenting time did not take place. Burton later had 1 week
of parenting time while working on a project in Colorado; he could not remember the exact dates
of that visit.
Burton further testified that later in 2014, he had 9 days of parenting time around Labor
Day. He again had 9 days of parenting time in October. During the October parenting time, Easton
had to have emergency surgery for “intussusception.” Schlegel traveled to Utah while Easton was
in the hospital, and, according to Burton, she made inappropriate comments and threats while in
the hospital room with Burton and his wife. Burton also had parenting time in December
2014/January 2015, and during the last week of February and the first week of March. Burton’s
most recent parenting time had ended the Saturday before trial. Schlegel had not been cooperative
when it came to parenting time; for example, she had refused to meet Burton at the airport,
requiring him to rent a car to pick up Easton.
Burton believed that Easton’s emotional, physical, and developmental wellbeing would be
“greatly improved” if he resided in Utah. Burton explained that he was “a loving and attentive
father” and had “always done everything that [wa]s in the best interest of [his] child and gone far
and above anything that was ever asked or expected of [him].” He further explained that he and
his wife were building a new 5-bedroom house in Utah that was expected to be completed in
October 2015. The closest school would be Excelsior Academy, which the Utah Department of
Education rated as 1st in the state in science, 9th in mathematics, and 15th in language arts.
Burton’s wife was a stay-at-home mother and would care for Easton during the day until he entered
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preschool. Easton would have two sets of grandparents in Utah, as well as seven aunts and uncles
and eight cousins, all within a 20-minute drive.
Addressing his travel expenses associated with his parenting time, Burton testified that his
average travel costs for his prior two visits was approximately $1,000 per visit. He submitted an
exhibit detailing the specific costs. Burton would have to purchase a plane ticket for Easton once
he turned 2 years old in December 2015, which would increase the travel costs.
On cross-examination, Burton admitted he had a prior conviction of domestic violence
against his first wife, as well as a conviction of theft; both convictions were approximately 9 years
old. He also “voluntarily removed himself” from a situation “pending an investigation” into
possible child abuse regarding his stepson. The investigation was in the context of a custody
dispute between Burton’s wife and the stepson’s “adopted father.” He testified the investigation
was “unfounded.”
After Burton rested his case, Schlegel testified in her own behalf. She began living in
Lincoln at age 10 and attended high school there. Eventually, she moved to Wyoming with her
now ex-husband. Her relationship with Burton brought her to Utah and then to New Mexico, until
she returned to Lincoln in February 2014. According to Schlegel, she wanted to move to Utah with
Burton, but he insisted it would be better for Schlegel and her children to move to Lincoln where
Schlegel had family.
Schlegel testified that when she returned to Lincoln, she first lived with her sister, but at
the time of trial she lived in a 5-bedroom rental home with her four children. She was in the process
of purchasing a 3-bedroom home to which she had plans to add a fourth bedroom. The mortgage
payment, including taxes and insurance, would be approximately $704 per month, which was less
than the approximately $950 per month she paid in rent.
Schlegel had worked as an accounting assistant at a company in Lincoln since October
2014. She earned between $22,000 and $24,000 per year. While Schlegel worked, Easton was in
daycare, which according to Schlegel, was a wonderful daycare that Easton loved. Schlegel had to
pay for daycare year-round, because Easton would lose his spot if she did not pay during his
absence.
Schlegel wanted to continue the same parenting time schedule that Burton had under the
temporary order. She explained that initially, 2 weeks of parenting time “felt like a very long time,”
but she understood that Burton and Easton needed to see each other. Schlegel agreed there had
been problems surrounding Burton’s parenting time, usually because of the hours that Burton
picked Easton up or dropped him off, or because of short notice.
Schlegel explained that she had some concerns with Burton’s parenting. Specifically, when
she and Burton lived together, Burton was rough physically when disciplining her two other sons.
At the conclusion of trial, the district court took the matter under advisement. On July 24,
2015, the court entered a written order in which it determined that Burton was Easton’s biological
father and granted Burton and Schlegel joint legal custody; granted Schlegel physical custody;
awarded Burton parenting time for the months of February, May, and August each year, plus
November or December on an alternating-year basis; ordered Burton to pay child support of $400
per month, a deviation of $235 below the guideline amount of support, based on Burton’s travel
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expenses associated with parenting time; and directed each party to be responsible for his or her
own work-related childcare expenses. The court adopted a parenting plan consistent with its order.
The court also noted that the parenting time schedule “may not work once the child is of
school-age.” The court indicated: “When the child reaches the age of five, he becomes school-age
which the Court deems a change in circumstances. At that time the parties may consider a change
to the parenting plan adopted by this order.” Schlegel timely appealed, and Burton cross-appealed.
III. ASSIGNMENTS OF ERROR
Schlegel assigns that the district court abused its discretion in (1) “granting Burton
month-long periods of parenting time every three months instead of two-week periods of parenting
time every other month and in not adopting a mirror image of the parenting time proposal
submitted by Burton for after Easton entered Kindergarten,” (2) holding that “Easton’s turning
five years old would constitute a material change of circumstances not within the parties’
anticipation,” (3) “awarding Burton a downward deviation from his child support obligation in the
amount of $235 per month,” and (4) “in requiring Schlegel to pay for all work-related child care
expenses instead of an amount in accordance with her obligor’s parental contribution.”
On cross-appeal, Burton assigns that the district court erred in granting sole physical
custody to Schlegel.
IV. STANDARD OF REVIEW
In filiation proceedings, on matters of custody, parenting time, and child support, an
appellate court reviews a trial court’s judgment de novo on the record to determine whether there
has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence
of an abuse of discretion. In such de novo review, when the evidence is in conflict, the appellate
court considers, and may give weight to, the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than another. Lancaster v. Brenneis, 227
Neb. 371, 417 N.W.2d 767 (1988).
V. ANALYSIS
1. SCHLEGEL’S APPEAL
As stated, Schlegel challenges the district court’s rulings on the issues of parenting time,
child support, and child care expenses. We address each issue in turn.
(a) Parenting Time
Schlegel argues the district court abused its discretion “by adopting a parenting plan that
results in Easton being separated from Schlegel, his primary caretaker, for one month out of every
three months during the year.” Brief for appellant at 9. She contends that this “unorthodox
parenting plan is not in the best interests of Easton, a young child who has not even entered school,
because it creates a situation resulting in emotional upheaval and a lack of stability.” Id. Schlegel
“does not dispute that Burton is entitled to approximately twelve weeks of parenting time per year
plus holidays, which is in line with” local rules, or that a traditional parenting time schedule is
impractical because of distance, but she contends the schedule adopted by the district court is
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“unworkable . . . and placed undue weight on ‘distance, cost of travel, and other circumstances.’”
Id. at 10.
Burton responds that the parenting time schedule adopted by the district court is reasonable.
He notes that it will require significantly less travel than the temporary parenting time schedule.
He further maintains that the “[m]onth long blocks of parenting time . . . will allow Easton to build
a bond with his father.” Brief for appellee at 10.
A parenting plan, which is required to apportion parenting time, must serve the best
interests of the child. Neb. Rev. Stat. § 43-2929(1) (Cum. Supp. 2014). In considering the minor’s
best interests, the court is guided by Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2014). The statute
first lists five requirements for the best interests of the child, including a “parenting arrangement
and parenting plan or other court-ordered arrangement which provides for a child’s safety,
emotional growth, health, stability, and physical care and regular and continuous school attendance
and progress for school-age children.” § 43-2923(1). Also among the first five requirements is that
“the child’s families and those serving in parenting roles remain appropriately active and involved
in parenting with safe, appropriate, continuing quality contact between children and their families
when they have shown the ability to act in the best interests of the child and have shared in the
responsibilities of raising the child.” § 43-2923(3).
The statute also includes a non-exhaustive list of factors the court is to consider, including
the relationship of the minor child to each parent prior to the commencement of the action or any
subsequent hearing; 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; the
general health, welfare, and social behavior of the minor child; credible evidence of abuse inflicted
on any family or household member; and credible evidence of child abuse or neglect or domestic
intimate partner abuse. § 43-2923(6). Other relevant non-statutory factors include the age and
health of the child, the character of the noncustodial parent, the place where parenting time will be
exercised, the frequency and duration of visits, the likely effect of parenting time on the child, the
availability of the child for parenting time, and the likelihood of disrupting an established lifestyle
otherwise beneficial to the child. See Aguilar v. Shulte, 22 Neb. Ct. App. 80, 848 N.W.2d 644 (2014).
Generally, a reasonable parenting time schedule is one that provides a satisfactory basis for
preserving and fostering a child’s relationship with the noncustodial parent, and the determination
of reasonableness is to be made on a case-by-case basis. State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). Where, as here, the parents reside in
different states hundreds of miles apart, preservation of the familial relationship between the minor
child and the noncustodial parent is an important objective. Id. Of course, the frequency and the
total number of days of parenting time and the distance traveled and expense incurred go into the
calculus of determining reasonableness. Maranville v. Dworak, 17 Neb. Ct. App. 245, 758 N.W.2d 70
(2008).
Although Schlegel contends that month-long periods of parenting time four times a year is
unreasonable, while 2 weeks of parenting time every 2 months would have been reasonable, there
is little evidence in the record to support this contention. Schlegel testified that she opposed
Burton’s alternative proposed parenting plan under which the parties would have had joint physical
custody on an alternating 2-month basis, because she believed it would be inappropriate for a child
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as young as Easton to be away from his mother, his primary caregiver, for such long periods.
Otherwise, there was no evidence to suggest that it would not be in Easton’s best interests to spend
extended periods of parenting time with his father.
Specifically, Schlegel did not present testimony from a psychologist or other expert
explaining Easton’s developmental needs or opining that extended periods of parenting time would
be detrimental to a child Easton’s age. Moreover, there was no evidence that Easton had difficulty
adjusting to the temporary parenting time schedule (2-week blocks every 2 months), or that there
was reason to believe he would have difficulty adjusting to a schedule with longer periods of
parenting time. Although Schlegel testified that initially, 2 weeks of parenting time “felt like a
very long time,” she also understood that Burton and Easton needed to see each other.
We note that although Schlegel has been Easton’s primary caregiver since birth, this is not
a situation in which Easton is being subjected to extended periods of parenting time with a father
he does not know. The district court found that Burton “has attempted to remain part of the minor
child’s life and appears to be responsible and concerned for [Easton] and interested in his
relationship with him.” The evidence supports this determination. Burton lived with Schlegel and
Easton for approximately the first 2 months of Easton’s life, and following the end of Schlegel and
Burton’s relationship, he visited Easton a number of times for periods between 9 days and 2 weeks.
Burton has already put forth significant effort to build a relationship with Easton, and the
permanent parenting time schedule will permit him to strengthen that relationship. It is only
because Easton is not yet school-age that Burton is able to exercise extended periods of parenting
time throughout the year.
We also note that, while undoubtedly each transition from Lincoln to Utah and back will
be a significant adjustment for Easton as well as his parents, the parenting time schedule adopted
by the district court will require fewer exchanges of the child per year than the temporary schedule.
In sum, while we are cognizant of Schlegel’s concerns that extended periods away from
his primary caregiver may not be the most desirable situation for a 2½-year-old child, we cannot
say the court abused its discretion under the circumstances. Without evidence to substantiate
Schlegel’s concerns over the impact of extended periods of parenting time on Easton’s wellbeing,
the district court had little guidance on this matter. Ultimately, the court adopted a parenting time
schedule that essentially was a compromise between Schlegel’s proposed parenting plan and
Burton’s alternative proposed parenting plan. While the extended periods away from Schlegel may
not be ideal, they will allow Burton to strengthen his relationship with Easton during his early
years.
(b) Parenting Time When Easton Reaches School Age
In her first and second assignments of error, Schlegel addresses the issue of parenting time
when Easton reaches school age. She contends the court abused its discretion by “not adopting a
mirror image of the parenting time proposal submitted by Burton for after Easton entered
Kindergarten,” as well as by holding that “Easton’s turning five years old would constitute a
material change of circumstances not within the parties’ anticipation.” Brief for appellant at 3. We
address these issues together.
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Schlegel argues that for an event to qualify as a material change of circumstances sufficient
to justify a modification to a parenting plan, the event must have been something the parties did
not contemplate at the time the parenting plan was entered. She contends that the parties and the
district court knew that Easton would reach school age in the not-distant future, and the court
should have entered a parenting time schedule to go into effect at that time. She maintains the court
“‘kick[ed] the can down the road,’” thereby forcing the parties to incur additional court costs and
attorney fees in the near future. Id. at 12.
Burton responds by citing the rule that conditional judgments, which are dependent upon
the occurrence of uncertain future events, are void. He further argues that although it is known that
Easton will at some point enter school, it is unknown where the parties will be residing or what
their circumstances will be at that time. He contends that requesting a parenting time schedule to
go into effect when Easton attends school is “asking the Court to look into the future and decide
what will be best for Easton” at that time. Brief for appellee at 11.
The “void conditional judgment rule” cited by Burton does not apply here for two reasons.
A “conditional judgment” is one that purports to be final but that is dependent upon the occurrence
of uncertain future events. Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006). When
a judgment is dependent upon the happening of a future event that is “not an unknowable or
uncertain future event,” it is not a conditional judgment. See Simons v. Simons, 261 Neb. 570, 577,
624 N.W.2d 36, 41 (2001) (child support order that commenced upon father’s release from prison
was not a conditional judgment). As both parties acknowledge, Easton’s school attendance is not
an unknown or uncertain future event.
Moreover, the Nebraska Supreme Court has held that “the void conditional judgment rule
does not extend to actions in equity or to equitable relief granted within an action at law.” Strunk
v. Chromy-Strunk, 270 Neb. at 934, 708 N.W.2d at 837. Issues of custody and parenting time
arising within an action to establish paternity fall within the district court’s general equity
jurisdiction. Blecha v. Blecha, 257 Neb. 543, 599 N.W.2d 829 (1999). A court acting under its
equity jurisdiction may enter a conditional judgment where it is necessary and equitable to do so.
Strunk v. Chromy-Strunk, supra.
Since the void conditional judgment rule did not prohibit the court from entering a
parenting time schedule to become effective once Easton reaches school age, the question is
whether the court abused its discretion by not entering such a schedule.
In Strunk v. Chromy-Strunk, supra, the Nebraska Supreme Court explained that in Vogel
v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002), it erroneously applied the void conditional
judgment rule to conditional child custody provisions in a dissolution decree “without considering
the general propriety of applying such a rule in equity.” Strunk v. Chromy-Strunk, 270 Neb. at 933,
708 N.W.2d at 836. Although the court clarified that the void conditional judgment rule does not
apply in equity, it further explained that the conditional custody provisions in Vogel had been
undesirable for reasons other than their conditional nature. Strunk v. Chromy-Strunk, supra.
Specifically, the court indicated that “it was unnecessary and unwise to speculate as to the best
interests of the child under changed circumstances.” Id. at 934, 708 N.W.2d at 837. In other words,
“‘[t]he impact of . . . potential events on the children’s best interests and the proper judicial
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response to the potential events . . . [would be] better assessed at the time of their occurrence.’”
Id., quoting Vogel v. Vogel, supra.
Although the present case does not involve a conditional custody order like that in Vogel,
the same considerations are applicable here. While Easton’s school attendance is not an unknown
or uncertain future event, the question of what will be in his best interests at that time is unknown.
By the time Easton reaches school age, Burton will have been exercising his month-long periods
of parenting time for over 3 years, and it would be very difficult for the court at this time to predict
how that arrangement will affect Easton. Furthermore, the parties’ lives before and after Easton’s
birth involved frequent and significant changes, and it is reasonable to suspect that their
circumstances will be different in 3 years. Given the significant distance between the parties and
their history of frequent change, we cannot say the court acted unreasonably in declining to predict
what will be in Easton’s best interests when he reaches school age. In many cases, courts may not
be justified in reserving the issue of school-age parenting time for future determination. Under the
circumstances of this case, however, we agree with Burton that the district court did not abuse its
discretion in doing so.
We also disagree with Schlegel that the court’s order violates the general rule that a change
in circumstances which was within the contemplation of the parties at the time of the decree is not
a material change in circumstances for purposes of modification of a decree. See McDonald v.
McDonald, 21 Neb. Ct. App. 535, 840 N.W.2d 573 (2013). The intent underlying that rule is that a
proceeding to modify a decree is not a retrial of the original case nor a review of the original
decree. See Wagner v. Wagner, 224 Neb. 155, 396 N.W.2d 282 (1986). The phrase “change of
circumstances” should not be mechanically construed. Marez v. Marez, 217 Neb. 615, 350 N.W.2d
531 (1984).
While the district court was aware that Easton will reach school age in a few years, it
essentially reserved ruling on what parenting time schedule will be in Easton’s best interests at
that time. Under these circumstances, addressing the issue in a future modification proceeding will
not constitute “a retrial of the original case [or] a review of the original decree.” Wagner v. Wagner,
224 Neb. at 157, 396 N.W.2d at 283. To hold otherwise would be to apply the phrase “change of
circumstances” mechanically and in a manner contrary to the rule’s purpose. As we explained
above, given the parties’ history of frequent change, the court acted reasonably in reserving the
issue of school-age parenting time.
We also point out that the parenting plan adopted by the court contains provisions enabling
the parties to minimize any court costs or attorney fees they may incur when addressing changes
to the parenting time schedule when Easton reaches school age. The plan provides that “[t]o resolve
future changes or conflicts regarding parenting functions, parenting time, or this Plan, the parties
shall first seek solutions through mutual agreement, without the need for judicial intervention, . . .
and if unsuccessful, then through the mediation process outlined in the Nebraska Parenting Act.”
Although the parenting plan requires court-approval before any modifications to the plan will be
incorporated “into the court order,” the parties will incur little to no expense if they are able to
resolve any changes to the parenting time schedule through mutual agreement.
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(c) Downward Deviation of Child Support
Schlegel next argues the court abused its discretion in deviating from the guideline amount
of child support by $235 per month, or more than one-third, based on Burton’s travel expenses.
She contends that Burton “took significant affirmative action to bring these travel expenses upon
himself,” including moving to Utah and encouraging her to move to Lincoln. Brief for appellant
at 14. She argues that Burton’s documented travel expenses were elevated and that, at most, the
deviation should be $100 per month.
Generally, child support payments should be set according to the Nebraska Child Support
Guidelines, which are applied as a rebuttable presumption. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013); Neb. Ct. R. § 4-203 (Rev. 2011). A deviation in the amount of child
support is allowed whenever the application of the guidelines in an individual case would be unjust
or inappropriate. Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013). Deviations from the
guidelines must take into consideration the best interests of the child. Id.; § 4-203.
The guidelines specifically address the type of deviation at issue here: “Any documented
substantial and reasonable long-distance transportation costs directly associated with visitation or
parenting time may be considered by the court and, if appropriate, allowed as a deviation from the
guidelines.” Neb. Ct. R. § 4-210. Only reasonable transportation expenses may reduce or abate a
child support obligation, however. Pearson v. Pearson, supra. A custodial parent has some fixed
and constant expenses in raising children, and these expenses do not decrease during extended
periods of parenting time with the noncustodial parent, or simply because transportation costs
significantly increase. Id. A court should consider the impact of increased travel expenses on both
parents in light of the best interests of the child. Id.
Burton documented his travel expenses for the parenting time he exercised in December
2014/January 2015 and in February/March 2015. His total cost for the December/January
parenting time, which involved flying to Nebraska, renting a car to drive to Utah and back with
Easton, then flying home to Utah, was $1,280.35. His total cost for the February/March parenting
time, which involved two roundtrip flights and a rental car in Omaha to pick up and drop off
Easton, was $998.95. The exhibit Burton submitted documenting these expenses indicated that the
cost of one of the flights for the first trip was increased because a storm delayed his flight, requiring
him to purchase a ticket for a costlier flight, and the costs of the flights for the second trip were
increased because the parenting time was arranged on short notice.
Although Schlegel contends the elevated travel costs should not have been considered for
purposes of calculating a deviation from the guidelines, the court’s deviation did not come close
to compensating Burton for the elevated travel costs. Under the court’s order, Burton will exercise
parenting time four times per year. The deviation of $235 per month in child support amounts to
$2,820 per year, or $705 per visit. Burton’s documented travel expenses averaged approximately
$1,140 per visit, which suggests the court took into consideration the fact that the documented
travel costs were elevated. Furthermore, Burton testified that after Easton turned 2 years old in
December 2015 (a date which has now passed), he would have to purchase a plane ticket for
Easton, thereby increasing his travel expenses. Considering all of the evidence, the court did not
abuse its discretion in awarding the deviation of $235 per month.
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We also cannot accept Schlegel’s contention that a deviation was not warranted because
Burton’s own actions resulted in the distance between him and Easton. The evidence was that
Burton had strong ties to Utah and located there for legitimate reasons, and the same can be said
for Schlegel’s relocation to Lincoln. These considerations do not render the court’s deviation from
the child support guidelines unreasonable.
(d) Allocation of Work-Related Childcare Expenses
Schlegel’s final argument is that the court abused its discretion by failing to allocate a
portion of her work-related childcare expenses to Burton. She notes that Burton incurs no childcare
expenses because his wife stays at home. She also notes that her percent contribution from
worksheet 1, line 6, is 30.82%, while Burton’s is 69.18%; she contends she should have to pay no
more than 30.82% of the childcare expenses.
The child support guidelines provide a court with some discretion as to the amount it orders
an obligor to contribute toward childcare expenses. Freeman v. Groskopf, 286 Neb. 713, 838
N.W.2d 300 (2013). The guidelines provide:
Childcare expenses are not specifically computed into the guidelines amount and are to be
considered independently of any amount computed by use of these guidelines. Care
expenses for the child for whom the support is being set, which are due to employment of
either parent or to allow the parent to obtain training or education necessary to obtain a job
or enhance earning potential, shall be allocated to the obligor parent as determined by the
court, but shall not exceed the proportion of the obligor’s parental contribution (worksheet
1, line 6) and shall be added to the basic support obligation computed under these
guidelines.
Neb. Ct. R. § 4-214. Worksheet 1, line 6, represents each party’s monthly net “percent
contribution” of the parties’ combined monthly net income.
A problem with Schlegel’s argument is that she presented no evidence of her actual
childcare expenses. In Freeman v. Groskopf, supra, the Nebraska Supreme Court explained that
without knowing the actual cost of the childcare, it is nearly impossible for a court to exercise its
discretion in allocating the childcare expenses in an appropriate manner. Here, without any
evidence of the childcare costs Schlegel actually incurs, the district court did not abuse its
discretion in failing to allocate any of the costs to Burton. See id. (because custodial parent did not
provide evidence of actual cost of childcare, district court did not abuse its discretion in failing to
order noncustodial parent to contribute to childcare expenses).
Furthermore, Schlegel’s contention that she cannot be ordered to pay a greater percentage
of the childcare expenses than her percent contribution from worksheet 1, line 6, is misplaced.
Section 4-214 contains no mandatory language that childcare expenses must be allocated based
upon the percentages attributed to each party under the child support guidelines; instead, it
provides a cap on the percentage of such costs that an “obligor” can be ordered to pay. Specifically,
it provides that childcare expenses “shall be allocated to the obligor parent as determined by the
court, but shall not exceed the proportion of the obligor’s parental contribution.” (Emphases
added.) § 4-214. The “obligor parent” is the parent obligated to pay child support under the
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guidelines. See Neb. Ct. R. § 4-219 (“[u]nder no circumstances shall there be an increase in support
due from the obligor solely because of an increase in the income of the obligee”). In this case,
Burton is the obligor, and Schlegel is the obligee. Accordingly, her percentage of childcare
expenses is not limited to the proportion of her parental contribution.
2. BURTON’S CROSS-APPEAL
On cross-appeal, Burton’s only argument is that the district court abused its discretion in
awarding physical custody to Schlegel. Burton notes his significant efforts to build a relationship
with Easton, his financial stability, and the evidence of the quality of life Easton would have in
Utah. Burton also relies upon Schlegel’s pending DUI case and the pending juvenile case
concerning Schlegel’s daughter, as well as Schlegel’s lack of cooperation with parenting time.
Generally, when a court is determining custody, it is to consider the same non-exhaustive
list of best interest factors from § 43-2923 that we enumerated above in our discussion of parenting
time. As with parenting time, the custody arrangement adopted by the court must serve the best
interests of the child, § 43-2929(1), and provide for the child’s safety, emotional growth, health,
stability, and physical care. § 43-2923.
Furthermore, where a child is born out of wedlock to parents living in separate states, and
there has been no prior custody determination, Nebraska’s removal jurisprudence does not apply;
the issue is not whether one or the other of the parents is free to relocate with the child, but, rather,
which parent should be awarded permanent custody of the child as a matter of initial judicial
determination. See State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d
749 (2004); Shandera v. Schultz, 23 Neb. Ct. App. 521, 876 N.W.2d 667 (2016); Coleman v. Kahler,
17 Neb. Ct. App. 518, 766 N.W.2d 142 (2009). Nevertheless, it is proper in such a case to give some
consideration to the “removal” factors from Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d
592 (1999), to the extent they apply, including: (1) each parent’s motives for seeking or opposing
the move; (2) the potential that the move holds for enhancing the quality of life for the children
and the custodial parent; and (3) the impact such a move will have on contact between the children
and the noncustodial parent, when viewed in the light of reasonable parenting time. Coleman v.
Kahler, supra.
The evidence in the present case revealed that neither parent was unblemished. Schlegel
had a pending DUI case and a pending juvenile case regarding her 14-year-old daughter. The
outcomes of those cases are not disclosed in the record; while Schlegel indicated she was not
concerned about the juvenile case, she did not suggest that she had any intentions of fighting the
DUI charge, which notably was her only criminal charge as an adult.
However, Burton had his own history, including convictions for domestic violence and
theft. He also admitted that he “voluntarily removed himself” from a situation “pending an
investigation” into possible child abuse regarding his stepson. He expressed his belief that the
investigation was “unfounded.”
Yet, these aspects of the parents’ backgrounds did not indicate that either of them was unfit
to have physical custody of Easton. Rather, the record suggested that Burton and Schlegel were
caring, loving parents to Easton and were eager to have a strong relationship with him and to look
out for his best interests. Undoubtedly, the evidence with the greatest ramifications for Easton’s
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best interests concerned the long distance between the parties. Because of the distance, the court’s
custody decision was bound to have a significant impact on the relationship between Easton and
the noncustodial parent.
Given that Schlegel had been Easton’s primary caregiver since his birth, and nothing
indicated Schlegel had been anything but a loving and nurturing mother, the district court did not
abuse its discretion in awarding Schlegel physical custody. If the court had placed physical custody
with Burton, or even granted the parties joint physical custody, Easton would have been separated
from his mother for longer periods of time throughout the year than he will be separated from her
under the current parenting time schedule. While the evidence indicated Burton may have been
more financially stable than Schlegel and was building a large home in Utah, this does not mean
that separating Easton from his mother, who had been his primary caregiver since birth, was in his
best interests. Regardless, the evidence also indicated that Schlegel had stable employment and
was doing her best to provide a stable life for her children, including purchasing a home.
Considering all of the evidence, the court’s decision to grant Schlegel physical custody was not an
abuse of discretion.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court for Lancaster
County.
AFFIRMED.
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