Stevens v. Kimmerling ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STEVENS V. KIMMERLING
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).
MICHAEL P. STEVENS, APPELLEE,
V.
KATHERINE R. KIMMERLING, APPELLANT.
Filed October 16, 2018. No. A-17-1179.
Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.
James H. Hoppe for appellant.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.
PIRTLE, RIEDMANN, and WELCH, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
Katherine R. Kimmerling appeals the order of modification entered by the district court for
Lancaster County that awarded the parties joint physical custody of their two children with a week
on, week off rotation. Finding no merit to Kimmerling’s arguments, we affirm.
II. BACKGROUND
Michael P. Stevens and Kimmerling are the biological parents of two children: Abbey,
born in 2008, and Jay, born in 2010. Stevens and Kimmerling were never married, and in 2011, a
decree of paternity was entered naming Stevens as the children’s biological father. The parties
agreed to a parenting plan that awarded them joint legal custody of the children, with primary
physical custody to Kimmerling and parenting time with Stevens every other weekend.
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Additionally, each parent was allotted two uninterrupted weeks of parenting time during the
summer. The court also ordered Stevens to pay $475 per month in child support.
At the time the parenting plan was entered into, Stevens was a graduate assistant and Ph.D.
student in Lincoln, Nebraska, and Kimmerling was living in Omaha, Nebraska. Stevens’ limited
income and job restrictions, including mandatory office hours and research hours, made it difficult
for him to travel back and forth from Lincoln to Omaha to see the children.
Subsequently, Stevens graduated from the university, and accepted a research position at
the school. Stevens’ job with the university is salaried and provides him with flexible work hours,
allowing Stevens to spend more time with his children. Stevens’ higher salary also allows him to
pay additional child support, beyond the amount in the paternity decree. Additionally, Stevens has
since married and his wife has two biological children. The couple has a five-bedroom house in
Lincoln, where they live with Stevens’ two stepchildren.
Kimmerling remained in Omaha with Abbey and Jay until the spring of 2016 at which time
she married and moved to Lincoln. Kimmerling, who has a Master’s Degree in community
counseling, lives just 1.7 miles from Stevens’ home. Kimmerling’s husband has two children who
reside with them at their home in Lincoln.
Stevens and Kimmerling have generally had a cordial relationship; however, the two have
had some difficulties communicating. Communication issues exist regarding the children’s
taekwondo classes and which school the children would attend.
In light of the difficulty in communicating effectively with Kimmerling, as well as his
improved living conditions, Stevens filed a complaint for modification seeking to modify the
parenting plan.
At the modification hearing, Stevens stated that his desire was to have more time with
Abbey and Jay in order to be a dad to them, help them with homework, and help them grow up in
general. Stevens testified that his improved financial and living situation, as well as the close
proximity between Stevens and Kimmerling, amounted to a material change of circumstances and
that the parenting plan should be modified to reflect those changes. Stevens argued that the court
should accept his proposed “2/5/2/2/5” custody split, which would become a week on, week off
arrangement once the children’s school year ended.
Kimmerling testified that Stevens was a good father and had the children’s best interest at
heart, and that he deserved more parenting time. Kimmerling objected, however, to Stevens’
proposed parenting plan, arguing that it would create too many transitions between homes for the
children. Kimmerling proposed a modified parenting plan calling for a “10/4 split,” which would
extend Stevens’ weekend parenting time to 4 days instead of 2 days and limit the number of
transitions the children would have to one a week.
After hearing the testimony of the witnesses and viewing the evidence presented, the
district court entered an order adopting Stevens’ proposed week on, week off parenting plan. The
district court specifically found that there had been a material change of circumstances, and
modification of the original parenting plan was in the best interest of the children. Kimmerling
timely appealed.
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III. ASSIGNMENTS OF ERROR
Kimmerling assigns, restated, that the district court erred when it found that there had been
a material change in circumstances effecting the best interests of the minor children, and thereby
ordering the parties to share joint physical and legal custody on a week on, week off schedule.
IV. STANDARD OF REVIEW
Child custody determinations are matters initially entrusted to the discretion of the trial
court, and although reviewed de novo on the record, the trial court’s determination will normally
be affirmed absent an abuse of discretion. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id. A
judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable
insofar as they unfairly deprive a litigant of a substantial right and a just result. Id. When evidence
is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of facts rather than another. Keig v.
Keig, 20 Neb. Ct. App. 362, 826 N.W.2d 879 (2012).
V. ANALYSIS
1. CHANGE OF CIRCUMSTANCES
Kimmerling claims that the court did not specify the material change in circumstance which
led to its decision. We disagree. In its modification order, the court specifically identified four
areas of change which resulted in a material change in circumstances warranting modification:
proximity of the parties, income of the parties, marital status of the parties, and the ages of the
children.
The paternity order was entered 7 years prior to the modification when the children were
approximately 1 year old and 2 years old. At that time, the parties agreed to a parenting plan. They
agreed that both parties were fit and proper persons to be awarded the care, custody, and control
of the minor children. They further agreed that it was in the best interests of the minor children
that the parties be awarded joint legal custody. As to physical custody, the parties agreed that
Kimmerling would have primary custody and that Stevens would have parenting time every other
weekend from Friday at 5:30 p.m. until Sunday at 5:30 p.m. The parties would meet halfway on
the weekends to exchange the children.
The agreed upon parenting plan was entered into at a time when Stevens was living in
Lincoln in a two-bedroom apartment and Kimmerling was living in Omaha. Stevens was a full
time student with mandatory office hours as a graduate assistant and had little income. He testified
that his schedule, combined with his financial situation, prevented him from traveling freely to
Omaha. The circumstances have changed significantly in the last 7 years, as more fully discussed
below. Therefore, the court did not abuse its discretion in determining that a material change in
circumstance had occurred.
Ordinarily, custody of a minor child will not be modified unless there has been a material
change in circumstances showing that the custodial parent is unfit or that the best interests of the
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child require such action. Schrag v. Spear, supra. A material change in circumstances means the
occurrence of something, which, had it been known by the court at the time of the initial decree,
would have persuaded the court to decree differently. Id. The best interests of the children are the
primary and paramount considerations in determining and modifying parenting time. State on
behalf of Maddox S. v. Matthew E., 23 Neb. Ct. App. 500, 873 N.W.2d 208 (2016).
The party seeking modification of child custody bears the burden of proving a change in
circumstances. Schrag v. Spear, supra. The party seeking modification must show a material
change in circumstances, occurring after the entry of the previous order and affecting the best
interests of the child. Next, the party seeking modification must prove that changing the child’s
custody is in the child’s best interests. Adams v. Adams, 13 Neb. Ct. App. 276, 691 N.W.2d 541 (2005).
The district court was correct in finding that there had been a material change of
circumstances. It pointed to four areas of change which had occurred since the initial parenting
plan was entered: the proximity of the parties, the income of the parties, the marital status of the
parties, and the ages of the children. We will discuss each change in turn.
(a) Proximity of Parties
When the parties entered into the initial parenting plan, Stevens lived in Lincoln, while
Kimmerling lived in Omaha, with a distance of nearly 70 miles between the two. Presently, the
parties live only 1.7 miles apart, as Kimmerling recently moved to Lincoln with Abbey and Jay.
The closer distance allows more accessibility to the children, a condition which did not exist at the
time of the original parenting plan. A significant move may be a change of circumstances
warranting modification, depending upon other evidence. See Kenner v. Battershaw, 24 Neb. Ct. App.
58, 879 N.W.2d 409 (2016). And we have upheld a district’s court’s modification of a parenting
plan based upon a change in the distance between the parent’s residences. See, id.; Bohnet v.
Bohnet, 22 Neb. Ct. App. 846, 862 N.W.2d 99 (2015).
With Stevens and Kimmerling living so close, the parents can divide parenting time
without disrupting the children’s school schedule or extracurricular activities. Shortening the
distance between Stevens and Kimmerling, from 70 miles to just 1.7 miles, coupled with other
evidence, meets the standard for a material change of circumstances.
(b) Income of Parties
Stevens’ financial resources have significantly increased. At the time the initial parenting
plan was entered into, Stevens was a graduate assistant and a Ph.D. student on a very limited
income. Presently, Stevens is fully employed at the university and has a “pretty good income.”
Stevens’ financial limitations at the time the initial parenting plan was entered into prevented him
from seeing Abbey and Jay as much as he wanted to, and prevented him from having a comfortable
living arrangement for his children in Lincoln. Stevens’ increased income has allowed him to
purchase a home with his wife that has plenty of room for the children, as well as room for Stevens’
stepchildren.
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(c) Marital Status of Parties
At the time the initial parenting plan went into effect, both Stevens and Kimmerling were
single and living alone. At the time of trial, both Stevens and Kimmerling were married. The home
life, regardless of whether it is at Stevens’ home or Kimmerling’s, is dramatically different than
what it was at the time the initial parenting plan took effect. Both Stevens and Kimmerling are
now married and have stepchildren living in the home that provides an additional family dynamic
that did not previously exist. These stepchildren are of similar ages as Abbey and Jay, allowing
both children to grow up with stepsiblings at each home.
(d) Ages of Children
Finally, the children are no longer toddlers. While the children’s advanced age alone may
not be enough upon which to base a modification, when coupled with the other changes the district
court identified, it is a factor to consider. At the time the initial parenting plan was entered into,
Abbey was 2 years old and Jay was nearly 1 year old. At the time of the modification hearing,
Abbey was 8 years old and Jay was 7 years old. They are very active and involved in multiple
extracurricular activities, such as taekwondo and swimming. Because the parties live so close to
one another, they can each be involved in the children’s activities, as each parent can attend
practices and meets.
The advanced age of the children, when coupled with the other material changes that the
district court noted, adequately supports the district court’s determination that there was a material
change of circumstances.
The district court did not abuse its discretion in determining that material changes of
circumstances existed. Moreover, each of the material changes of circumstances affect the best
interest of the children as discussed below.
2. BEST INTERESTS OF CHILDREN
Before custody of children may be modified based upon a material change in
circumstances, it must be shown that the modification of custody is in the best interests of the
children. Schrag v. Spear, supra. In determining custody and parenting arrangements, the court
must consider the best interests of the minor child which includes (1) the relationship of the minor
child to each parent prior to the commencement of the action; (2) the desires and wishes of the
minor child; (3) the general health, welfare, and social behavior of the minor child; (4) credible
evidence of abuse inflicted on any family or household member; and (5) credible evidence of child
abuse or neglect. Neb. Rev. Stat. § 43-2923(6) (Reissue 2016).
In addition to the statutory best interest factors, a court making a child custody
determination may consider matters such as the moral fitness of the child’s parents, including the
parents’ sexual conduct; the respective environments offered by each parent; the emotional
relationship between child and parents; the age, sex, and health of the child and parents; the effect
on the child as the result of continuing or disrupting an existing relationship; the attitude and
stability of each parents’ character; and the parental capacity to provide physical care and satisfy
the educational needs of the child. Schrag v. Spear, supra. The best interests of the child require a
parenting arrangement which provides for a child’s safety, emotional growth, health, stability, and
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physical care and regular and continuous school attendance and progress. Donscheski v.
Donscheski, 17 Neb. Ct. App. 807, 771 N.W.2d 213 (2009).
Here, the district court found that modifying the parenting plan, allowing a week on, week
off of parenting time between Stevens and Kimmerling, was in the best interests of Abbey and Jay.
Although the district court did not articulate its reasoning, a review of the record reveals no abuse
of discretion.
The record indicates that both Stevens and Kimmerling have provided loving homes for
Abbey and Jay. Further, each parent agrees that the other has the children’s best interests at heart.
Although there have been minor communication difficulties between Stevens and Kimmerling
regarding the children’s taekwondo classes and school, Stevens and Kimmerling generally get
along cordially. In fact, Kimmerling agreed that Stevens deserved additional parenting time,
beyond the every other weekend he received under the initial parenting plan. The main
disagreement between the parties is whether Stevens’ proposed week on, week off schedule is
better than Kimmerling’s proposed 10/4 schedule.
When examining the statutory factors of § 43-2923, both Stevens and Kimmerling are
indistinguishable. Both seemingly have a good relationship with Abbey and Jay; there is no
evidence in the record that Abbey and Jay prefer one parent over the other; and there is no evidence
of abuse of any kind. Moreover, it appears that both parents adequately provide for the general
health, welfare, and social behavior of the children. Each home has stepsiblings for Abbey and Jay
to interact with, each parent provides meals and support to the children, and each parent is as
involved as possible in the children’s lives.
Further, when examining the additional factors set out in Schrag v. Spear, supra, Stevens
and Kimmerling are again indistinguishable. Each parent has married and can provide a stable
home for Abbey and Jay. Nothing in the record indicates any moral issues regarding either parents’
ability to raise the children. The only point of contention over the proposed week on, week off plan
comes from Kimmerling’s assertion that it would cause too many transitions for the children.
However, under the week on, week off plan, the children would have one transition a week, on
Friday evenings at 6 p.m. This is the same time period that Abbey and Jay had been reporting to
Stevens’ home under the original parenting plan; therefore, the transition will already be familiar
for the children. Additionally, the children will have the weekend to adjust to the new home before
attending school on Monday morning.
Finally, even under Kimmerling’s proposed plan, the children would have a transition
every 10 days, but this transition would likely occur during the week, thus disrupting the children’s
school routine. Under either proposed routine the children would face a transition to the other
parent’s home once a week. With each parent appearing to be adequate and capable caregivers,
and little to separate the homes of the respective parents, it cannot be said that the district court
abused its discretion in determining that Stevens’ proposed week on, week off plan was in the
children’s best interests.
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VI. CONCLUSION
Upon our de novo review of the record, we find no abuse of discretion in the district court’s
order finding a material change of circumstance that affects the children’s best interests. We
therefore affirm the court’s order adopting Stevens’ proposed parenting plan.
AFFIRMED.
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