Breinig-Pruitt v. Westfahl

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
BREINIG-PRUITT V. WESTFAHL
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).
AARON BREINIG-PRUITT, APPELLANT,
V.
KACIA WESTFAHL, APPELLEE.
Filed February 12, 2019. No. A-18-398.
Appeal from the District Court for Dawson County: JAMES E. DOYLE IV, Judge. Affirmed
as modified.
Bergan E. Schumacher, of Bruner Frank, L.L.C., for appellant.
No appearance for appellee.
MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
In this paternity action, Aaron Breinig-Pruitt appeals the order of the Dawson County
District Court awarding joint legal custody and primary physical custody of his minor son, Kobyn
Pruitt, to Kobyn’s mother, Kacia Westfahl. He also appeals the details of the parenting plan, child
support calculations, and the award of childcare expenses. We affirm the district court’s order
except that we resolve a scrivener’s error in the court’s order relating to the award of childcare
expenses.
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STATEMENT OF FACTS
PROCEDURAL AND UNCONTESTED FACTUAL BACKGROUND
In January 2013, Kobyn was born in Nebraska to Westfahl and Breinig-Pruitt.
Breinig-Pruitt, Westfahl, Kobyn, and Alexis (Westfahl’s daughter from a previous relationship)
lived together until July when Breinig-Pruitt and Westfahl ended their relationship. Westfahl then
moved to Colorado with the children.
Westfahl married Justin Westfahl in July 2014. From July of that year until the time of
trial, Westfahl lived with Justin, Alexis, and Kobyn. The only exception was a temporary period
when Justin and Westfahl were separated. Breinig-Pruitt married Lacey in May 2015. From May
2015 up to the time of trial, Breinig-Pruitt has lived with Lacey and, later, their child, Kash, who
was born approximately 3 months before the first day of trial.
On June 23, 2016, Westfahl filed a petition for allocation of parental responsibilities in
Sedgwick County, Colorado, claiming that Kobyn had been in her care since she and Breinig-Pruitt
separated in July 2013 and that Kobyn “has established a life here in Sedgwick County.” The
following day, Breinig-Pruitt filed a complaint in the Dawson County District Court alleging that
Kobyn was domiciled in Dawson County on the date both Westfahl’s petition and Breinig-Pruitt’s
complaint were filed. Breinig-Pruitt sought a determination of custody, parenting time, and child
support.
On July 12, 2016, the court held a hearing to set temporary orders. In connection therewith,
Breinig-Pruitt offered an affidavit alleging that Kobyn had split his time between Nebraska with
Breinig-Pruitt and Colorado with Westfahl, alternating approximately monthly since October
2013. The court determined that it could not rule until it conferred with the Colorado court, where
Westfahl had filed, to determine which state had jurisdiction.
On August 25, 2016, the Dawson County District Court conferred with the Colorado court,
with both parties present, regarding which court should exercise jurisdiction over the case. When
the judges stated that their understanding was that Kobyn had been back and forth between
Colorado and Nebraska and did not have a home state, the parties were invited to comment.
Westfahl responded, “I do agree with the statements that, yes, we were doing a month co-parent
and, then, back and forth.” The judges determined that the Nebraska court had jurisdiction in this
case because Kobyn did not have a home state and Breinig-Pruitt properly effected service first.
On October 20, 2016, the court held a scheduling hearing. The court noted that it had
received exhibits from the parties to support a temporary order. On November 8, the court filed an
order including scheduling, temporary custody, and temporary child support. The court ordered
the parties to alternate physical custody of Kobyn on a 2-week rotating basis. The court ordered
Breinig-Pruitt to pay $64 each month in child support.
A 2-day trial was held in September and December 2017. The following witnesses testified
on behalf of Breinig-Pruitt: Breinig-Pruitt; Lincey McDonald (Lacey’s sister); Judy Martin
(Lacey’s mother); Wendy Breinig (Breinig-Pruitt’s mother); Amber Taylor (Lacey’s friend); and
Ranae Lux (Kobyn’s preschool teacher and daycare provider). The following witnesses testified
on Westfahl’s behalf: Westfahl; her husband Justin Westfahl; and Dena Strick (Westfahl’s
mother).
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PARENTS’ TIME WITH KOBYN
Westfahl testified that, from January to July 2013, she stayed at home caring for Kobyn
and Alexis. She claimed that Breinig-Pruitt “rarely” gave Kobyn a bottle and that he changed
“maybe two or three” diapers that entire time. She testified that when Breinig-Pruitt got home from
work, he would kiss the children and go outside to play with the horses or work in the yard. During
a confrontation in July 2013, Westfahl testified that Breinig-Pruitt became “verbally and
emotionally abusive, started saying it was my fault -- my fault, I was the one that caused it. Um, I
didn’t love him.” Westfahl testified that when she called to ask her mother to come get her and the
children, Breinig-Pruitt told her “to take the ‘F’-ing brats and go; and that’s when he stormed out.”
Westfahl’s mother, Strick, testified that, during the phone call, she overheard Breinig-Pruitt make
that statement while screaming obscenities and calling Westfahl names. Westfahl testified that she
asked Breinig-Pruitt if he wanted to say goodbye to Kobyn, and he said no. Conversely,
Breinig-Pruitt denied yelling at Westfahl or telling her to take the “F”-ing brats and get out,
testified that he made a point to hold Kobyn before Westfahl left, and testified that he changed
many diapers and fed Kobyn many bottles.
The evidence in this case governing the time Kobyn spent with each parent varied
drastically. Westfahl testified that, after moving to Colorado, she sometimes visited
Breinig-Pruitt’s parents to allow them to have time with their grandson, Kobyn. Westfahl testified
that during a visit to Breinig-Pruitt’s parents over Halloween of 2013, she intended to allow Kobyn
to visit his father, however, Kobyn was asleep when Breinig-Pruitt arrived. According to Westfahl,
the first time that Breinig-Pruitt saw Kobyn after Westfahl moved to Colorado was at Kobyn’s
first birthday party, which was held while Westfahl and Kobyn visited Breinig-Pruitt’s parents.
Westfahl testified she allowed Breinig-Pruitt’s parents to see Kobyn every other weekend from
May 2014 until June of 2016, and did this by exchanging Kobyn at a mutually agreeable exchange
location. Westfahl said that, in February 2016, she found out that Kobyn had actually been staying
with Breinig-Pruitt for these weekend visits. During the last exchange before this case initiated in
approximately May 2016, Westfahl testified that Breinig-Pruitt picked up Kobyn at the exchange,
which Westfahl described as “odd.” According to Westfahl, this May 2016 exchange was the first
time that Kobyn spent more than a weekend in Nebraska since she moved to Colorado. She
testified that, before January 2016, it was almost always Breinig-Pruitt’s mother, father, or brother
who met her at exchanges to pick up or drop off Kobyn for his weekend visits with his
grandparents. She testified that from about January to June 2016, Breinig-Pruitt used very vulgar
language at the exchanges, she was scared to attend the exchanges by herself, and she would leave
the exchanges in tears.
Westfahl testified that around June 1, 2016, she called Breinig-Pruitt’s mother to ask if she
knew of any rental properties in the area. Westfahl testified she had separated from Justin and
planned to relocate because of her close relationship with Breinig-Pruitt’s parents. Before the end
of the scheduled visitation, Breinig-Pruitt texted Westfahl and requested to extend Kobyn’s
visitation due to an appointment with an eye doctor the following week and Westfahl agreed. Later,
when she texted and called to arrange to pick up Kobyn, Breinig-Bruitt would not set a day and
told her that she was not emotionally stable enough to care for Kobyn. Westfahl regained physical
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custody of Kobyn on June 27 after obtaining an “Ex Parte Warrant to Take Physical Custody of
Child” from a Colorado court.
Breinig-Pruitt presented a significantly different version of his visitation with Kobyn.
Breinig-Pruitt testified that Kobyn’s first 6-week summer visitation with him occurred in 2014 and
that “up until the summer of 2016 [he] . . . had Kobyn two weeks here and there and, then, six
weeks in the summer.” He testified that he started picking up and dropping off Kobyn in 2014 and
he never attempted to deceive Westfahl on where Kobyn was staying when he visited Nebraska.
On cross-examination, Breinig-Pruitt was confronted with his statement from his affidavit stating
that he had Kobyn every other month. He stated that sometimes it was a month, and on redirect
said that they tried to simplify it for the affidavit. Breinig-Pruitt denied mistreating Westfahl at the
exchanges.
Strick, Westfahl’s mother, stated that after Westfahl moved to Colorado, Westfahl would
take Kobyn to visit Breinig-Pruitt’s parents and stay with Kobyn during the visit, but over time,
Strick stated that Westfahl would leave Kobyn with Breinig-Pruitt’s parents. Wendy,
Breinig-Pruitt’s mother, testified that the first time she had Kobyn for more than a weekend was
in the summer of 2014.
LIFE AT BREINIG-PRUITT’S HOME
Breinig-Pruitt testified he is a self-employed truck driver and works 40-50 hours per week
in summer and winter, 50-60 hours per week in the spring, and around 80 hours per week in the
fall during harvest. He testified that he adjusts his schedule when he has Kobyn and could and
would adjust his schedule to be home by 5 p.m. regularly if he were granted custody. Breinig-Pruitt
and his wife, Lacey, have a baby, Kash, who was born with hypoplastic left heart syndrome. Kash
has had surgeries and will require future surgeries, and may eventually need a heart transplant.
Lacey is a stay-at-home mother in order to care for Kash. Breinig-Pruitt testified that Lacey could
not testify because she was with Kash who was hospitalized in Omaha.
Breinig-Pruitt testified that when Kobyn is at Breinig-Pruitt’s home, he resides with
Breinig-Pruitt, Lacey, and Kash. Kobyn has his own room at Breinig-Pruitt’s home. Kobyn attends
a daycare that includes preschool activities. Lux, who is Kobyn’s preschool teacher and daycare
provider, testified that Breinig-Pruitt typically picks up and drops off Kobyn at daycare and is
always on time.
Breinig-Pruitt testified that during the week, Kobyn typically eats dinner with the family
at 6:30 or 7 p.m., reads a book or plays outside, gets a bath, and is in bed around 7 or 7:30 p.m. On
evenings when Kobyn is not in school, he is normally in bed by 8:30 p.m. When living at
Breinig-Pruitt’s house, Kobyn attends a weekly Bible class for children. Breinig-Pruitt testified
that he has taken Kobyn to the doctor, dentist, and to an eye doctor and that Kobyn’s
immunizations are current.
Both Breinig-Pruitt and Martin described Kobyn’s attachment to Kash. Martin testified that
when Kobyn leaves, he touches Kash and says “Good-bye, baby Kash, I love you so much.”
Breinig-Pruitt testified that when Kobyn leaves, he will cry and give Kash a kiss and say “I don’t
want to leave you, baby Kash.”
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Martin (Lacey’s mother) testified to the strong bond that Breinig-Pruitt and Kobyn share.
When asked what they like to do together, she responded “[a]nything with wheels or legs, cattle,
horses. He loves tractors, trucks, four-wheelers.” She described how if they are watching
television, Kobyn would crawl into Breinig-Pruitt’s lap and curl up, and they would hug and
whisper. Martin testified that she presumed, but did not know, if Breinig Pruitt introduces Kobyn
to people, and said that “if he doesn’t, Kobyn is going to introduce himself.” Martin testified that,
in addition to visits at her home, she also sees Breinig-Pruitt and Lacey with Kobyn at church, the
fair, hog wrestling, and horse shows. She testified that Breinig-Pruitt and Kobyn are close, and
that if Kobyn has a fit, Breinig-Pruitt “can talk him out of it.” She also testified that Breinig-Pruitt
takes Kobyn “everywhere.”
Breinig-Pruitt testified that Kobyn always wants to be with him and is excited to see him
at exchanges. His mother, Wendy, testified that Breinig-Pruitt is teaching Kobyn to ride a bike,
and takes him to the store and “they will go to restaurants and stuff all the time, so he has a lot of
social interaction with people.” Wendy testified that “Kobyn likes Grandma until he sees daddy;
and, then, grandma’s nothing.”
Lux testified that Kobyn was excited when his dad came to pick him up. When she talked
with the kids about what they were grateful for, Kobyn said he was grateful for his dad and Lacey.
She testified that Kobyn is very close with Lacey and typically refers to her as “my Lacey.” Lux
also testified that Kobyn was making friends and mentioned three names of boys that “are the main
ones he tends to play with.” Lacey’s longtime friend Taylor testified that, when Kobyn and Lacey
are together, their interactions look like they are mother and son.
LIFE AT WESTFAHL’S HOME
After moving to Colorado, Westfahl moved in with her parents. Westfahl has lived in five
places since she moved to Colorado. She has also held about seven jobs since moving to Colorado.
On the second day of trial in December 2017, she was working about 20 hours per week earning
$10 per hour. This job allowed her to drop off Kobyn at preschool and to pick up Kobyn during
her lunch break and make him lunch. Westfahl testified that she was capable of working full-time
at $10 per hour, but she chose not to in order to spend more time with Kobyn. Although Westfahl
testified that a babysitter watches Kobyn during her afternoon work hours, no evidence was
adduced as to the cost of this babysitter or other childcare options. Justin works full time as a truck
driver. She further testified that the reason she wanted her husband to testify was because he had
seen firsthand how Breinig-Pruitt treated her at exchanges. Instead, when called, Justin never
testified to Breinig-Pruitt’s behavior during the exchanges. Justin testified exclusively to Kobyn’s
reaction to the exchanges and interaction with Breinig-Pruitt.
Westfahl established that when Kobyn is at Westfahl’s home, he resides with Westfahl;
Justin; and Kobyn’s 6-year-old half sister, Alexis. Kobyn has his own room when living with
Westfahl. Westfahl testified on the second day of trial in December 2017 that, on most weekdays,
Westfahl takes Alexis to school at 7:45 a.m. and takes Kobyn to preschool at 8:45 a.m. She works
from around 9 a.m. to noon, then picks up Kobyn, and takes him home for lunch. After lunch, she
has a babysitter watch Kobyn until she gets off work at 3 p.m. Strick (Westfahl’s mother) testified
that Kobyn eats supper around 6:30 p.m. and his bedtime in the summer is 8:30 p.m.
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On the first day of trial, in September, Strick testified that Kobyn was enrolled in preschool
in Colorado, but was not going to start until after the first day of trial. Justin testified that the
preschool did not want Kobyn to attend preschool and then be absent for 2 weeks while he was in
Nebraska. Justin also explained that Kobyn had developmental delays which had delayed the start
of his preschool education.
Justin testified that, in addition to attending preschool, Kobyn gets chances to play with
other children, that Kobyn makes friends easily, and that Kobyn had made friends with a girl in
the neighborhood who only speaks Spanish. Further, Westfahl testified that Kobyn has a
pediatrician in Colorado and she has identified a new eye clinic that will be available for Kobyn
to visit.
Both Westfahl and Justin testified that Westfahl and Kobyn have a strong relationship and
a healthy attachment. For example, Justin testified that Kobyn gets into arguments with Alexis
because he wants to be on Westfahl’s side of the car. Westfahl takes Kobyn on errands and
“everywhere because he won’t have it any other way.” Strick also testified that, before this case,
Kobyn and Alexis were inseparable. She testified that she participated in about 75 percent of the
exchanges which occurred before this case started which she described as “easily ten.” She stated
that, during those exchanges, Alexis was confused why she and Kobyn had to be separated and
Kobyn would cry.
Justin also described Kobyn and Alexis as “inseparable” and described that some of their
activities included riding bikes and playing in the sandbox. Justin testified that Kobyn also has “an
amazing relationship” with Westfahl’s parents, and sometimes works with his grandpa in the
garage. He testified that he would be worried for Kobyn’s mental well-being if Breinig-Pruitt were
awarded physical custody of Kobyn because it would take him away from Alexis; conversely,
Wendy testified that Alexis and Kobyn had a good relationship, but it was a typical brother and
sister relationship and they were not “super-close.”
Westfahl testified that Justin frequently spends time with Kobyn and that Kobyn loves
Justin. She testified that Justin sometimes transports Kobyn to school or wherever else he needs to
go. Justin testified that they use “learning care books” to work with Kobyn and Justin is helping
Kobyn learn things such as bones in the skeleton.
Justin testified that he was charged with sexual assault of a child, convicted of contributing
to the delinquency of a child and criminal mischief, and sentenced to 90 days in jail in 2009 or
2010. Justin has been convicted twice of driving under the influence and he has been convicted
once of driving under suspension. Further, in March 2015, Justin and Westfahl were charged with
child neglect and abuse to which Westfahl plead guilty. The children were removed from
Westfahl’s care for a period of time and placed with Strick. Justin testified the charges stemmed
from a situation in which Westfahl was at work and he had been up all night with Kobyn because
Kobyn was sick. Justin testified that when he fell asleep, Alexis and 2½-year-old Kobyn got
dressed in warm clothes and went into the front yard where they were eventually found by the
county sheriff. The district court was satisfied that Westfahl had little control over the situation
and had taken sufficient precautions to make sure a similar situation would not happen again.
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CHILD SUPPORT UNDER TEMPORARY ORDER
Westfahl testified that Breinig-Pruitt had been ordered to pay $64 per month in temporary
child support and that he was not current on child support. Breinig-Pruitt testified that he was
current. Neither Westfahl nor Breinig-Pruitt offered documentation to support their testimony.
District Court’s Order
On March 30, 2018, the district court awarded the parents joint legal custody of Kobyn but
granted sole physical custody of Kobyn to Westfahl. In reaching this determination, the district
court considered statutory factors as required as well as other factors allowed by the Supreme
Court. The district court considered the relationship of each parent to the child. The court found
that Westfahl “spent more time with the child during the earliest years of his life and because she
has determined to spend more of her time with the child instead of working.”
The district court considered the environment offered by each parent. The court noted
Justin’s convictions for contributing to the delinquency of a child and criminal mischief, but did
not mention any sexual assault charges. The court also discussed the time when Kobyn was found
playing unsupervised in the front yard and was removed from her home. The court concluded that
Breinig-Pruitt offered a more stable environment but found that this factor weighed marginally in
favor of Westfahl because “she is in her environment much more than is [Breinig-Pruitt] and is
present at the time when her children need her care as compared to [Breinig-Pruitt’s] availability.”
The district court also found that Westfahl would be more able to care for Kobyn’s
educational, social, and other needs because
the one important resource [Westfahl] has allocated more heavily towards the care of the
child than has [Breinig-Pruitt] is her allocation of time. [Westfahl] testified she has
arranged her work schedule and intends to continue to arrange her work schedule to allow
her to care for her children. [Breinig-Pruitt] on the other hand, works long hours . . . [his]
work takes him away from his child and he is therefore dependent upon others to care for
his child while he is away.
The district court found that the stability of character weighed in favor of Westfahl. The
court noted that each had strengths and weaknesses, but “[t]he factor bearing on the character of
each parent which tips the balance in [Westfahl’s] favor was the evidence of the effort
[Breinig-Pruitt] and his allies made to mislead the court in the determination of the contact between
the child and Nebraska and the demeanor evidence.” The district court did not mention any
testimonial inconsistency on Westfahl’s part. Finally, the district court indicated there was
evidence that “the separation of the child from his half sister has had an adverse impact upon the
child.”
The court ordered Breinig-Pruitt to pay $353 in monthly child support, to provide medical
insurance for Kobyn, and to provide 50 percent of Kobyn’s childcare expenses “incurred and
actually paid by [Westfahl] to an unrelated third party for the care of the minor child while
[Westfahl] is at work.” That same paragraph of the order stated that, “[w]ithin five days of his
receipt of such document, [Breinig-Pruitt] shall reimburse [Westfahl] for 74 percent of such costs.”
Breinig-Pruitt now appeals.
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ASSIGNMENTS OF ERROR
Breinig-Pruitt contends that the district court abused its discretion (1) in failing to grant
him sole legal custody of Kobyn; (2) in failing to grant him sole physical custody of Kobyn; (3) in
limiting his telephone contact with Kobyn; (4) in calculating child support; and (5) in ordering him
to pay childcare expenses.
STANDARD OF REVIEW
In a filiation proceeding, questions concerning child custody determinations are reviewed
on appeal de novo on the record to determine whether there has been an abuse of discretion by the
trial court, 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 court heard and observed the witnesses and accepted one version of the
facts rather than another. State on behalf of Kaaden S. v. Jeffery T., 26 Neb. Ct. App. 421, 920 N.W.2d
39 (2018); Derby v. Martinez, 24 Neb. Ct. App. 17, 879 N.W.2d 58 (2016).
ANALYSIS
JOINT LEGAL CUSTODY
Breinig-Pruitt contends that the district court abused its discretion by failing to award him
sole legal custody of Kobyn. He argues that the district court erred in awarding joint legal custody
despite acknowledging that the parents’ level of communication was insufficient to support a joint
physical custody arrangement.
“Joint legal custody” is defined as “mutual authority and responsibility of the parents for
making mutual fundamental decisions regarding the child’s welfare, including choices regarding
education and health.” Neb. Rev. Stat. § 43-2922(11) (Reissue 2016). Neb. Rev. Stat. § 42-364(3)
(Reissue 2016) provides:
Custody of a minor child may be placed with both parents on a joint legal custody or joint
physical custody basis, or both, (a) when both parents agree to such an arrangement in the
parenting plan and the court determines that such an arrangement is in the best interests of
the child or (b) if the court specifically finds, after a hearing in open court, that joint
physical custody or joint legal custody, or both, is in the best interests of the minor child
regardless of any parental agreement or consent.
Section 42-364 applies to custody disputes in paternity actions. State on behalf of Maddox S. v.
Matthew E., 23 Neb. Ct. App. 500, 873 N.W.2d 208 (2016).
“We acknowledge that courts typically do not award joint legal custody when the parties
are unable to communicate effectively. However, a trial court’s decision to award joint legal or
physical custody can be made without parental agreement or consent so long as it is in the child’s
best interests.” Id. at 516, 873 N.W.2d at 218. For example, in Kay v. Ludwig, 12 Neb. Ct. App. 868,
686 N.W.2d 619 (2004), this court upheld the trial court’s determination of joint legal custody
despite the mother’s testimony regarding great difficulties in communicating with the father.
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Here, Breinig-Pruitt argues that the district court abused its discretion because the court
“acknowledged that the ‘level of communication between the parents is not sufficient to support a
joint physical custody arrangement’ yet still awarded a joint legal custody arrangement.” Brief for
appellant at 7. However, in determining that a joint physical custody arrangement was not a good
fit here, the district court first noted that the evidence weighed against a joint physical custody
arrangement because of the distance between the parties’ homes and the difficulties that would be
encountered when Kobyn began elementary school. Further, although Breinig-Pruitt testified that
he and Westfahl have difficulty making decisions together regarding Kobyn, the only actual
disagreement regarding Kobyn’s upbringing that he could identify was Kobyn’s religious
education. Based upon our review of the record, including but not limited to the clear evidence
that both parents love and care deeply for Kobyn, and giving weight to the fact that the trial court
heard and observed the witnesses and accepted one version of the facts rather than another, we
find that the district court did not abuse its discretion in awarding the parents joint legal custody.
PHYSICAL CUSTODY
Next, Breinig-Pruitt contends that the district court erred in failing to award him sole
physical custody of Kobyn. Custody of a minor child is determined by the child’s best interests.
Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988). The best interests of a child requires:
(1) 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;
....
(3) 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;
....
(6) In determining custody and parenting arrangements, the court shall consider the
best interests of the minor child, which shall include, but not be limited to, consideration
of the foregoing factors and:
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) 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;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member. . . .
and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.
Neb. Rev. Stat. § 43-2923 (Reissue 2016). In determining the best interests of a child, courts may
also consider the respective environments offered by each parent, the effect on the child as the
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result of continuing or disrupting an existing relationship, and the attitude and stability of each
parent’s character. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).
Both Breinig-Pruitt and Westfahl are married and have children who are close to Kobyn.
Both parents are in good health and Kobyn appears to be in good health except for an issue with
his eyesight, which is being attended to by both parents. Kobyn appears to be socially adjusted and
developing appropriately which can be attributed, in no small part, to Westfahl’s care of Kobyn.
We further note that, although Brenig-Pruitt makes much of the alleged “child abuse” allegation,
the district court, and this court, are satisfied that the circumstances were largely out of Westfahl’s
control and are unlikely to recur. Further, in its order, the court emphasized its reliance upon its
observation of the parties’ demeanor during their testimony in reaching a decision in this case. The
court stated:
The factor bearing on the character of each parent which tips the balance in [Westfahl]’s
favor was the evidence of the effort [Breinig-Pruitt] and his allies made to mislead the court
in the determination of the contact between the child and Nebraska and the demeanor
evidence. In this regard, the demeanor evidence was quite important. In determining all the
issues in this case, but most particularly the factor of the attitude and stability of each
parent’s character, the court considered the demeanor of the witnesses while testifying. In
particular, the court considered the manner in which each witness composed answers to
questions, the time each witness took to respond to the questions, including the hesitation
or readiness with which answers were given, the directness of the answers, the tone and
pitch of voice used, the emphasis placed on words, earnestness and zeal displayed, facial
expressions, the eye movements of the witness, furtive or meaningful glances, shrugs,
yawns, self-possession or embarrassment, the witness’ air of candor or seeming levity,
voice quality and the bearing of each witness. The demeanor evidence weighted in
[Westfahl]’s favor.
In our de novo review, we may give weight to the fact the trial court heard and observed
the witnesses and accepted one version of the facts rather than another. See State on behalf of
Kaaden S. v. Jeffery T., 26 Neb. Ct. App. 421, 920 N.W.2d 39 (2018). Here, the district court’s order
goes to great length to make extensive and specific findings regarding each parties’ demeanor
during their testimony, which the cold record before this court does not reflect. This court places
weight in the district court’s observation of the witnesses and its consideration of their demeanor.
Based upon our review of the record, and giving weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts rather than another, we find that the
district court did not abuse its discretion in awarding Westfahl primary physical custody of Kobyn.
TELEPHONE CONTACT
Breinig-Pruitt assigns that the district court abused its discretion in limiting his telephone
contact to 15 minutes 3 days per week between 7 and 8 p.m. when there was no evidence that
either parent abused telephone contact.
Breinig-Pruitt misconstrues the language of the parenting plan. The parenting plan does
not limit his telephone contact with Kobyn to 15 minutes three times per week; it requires Westfahl
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to allow him at least 15 minutes of telephone contact with Kobyn during the specified hour three
times per week. The parenting plan does not prohibit Breinig-Pruitt from calling outside of the
designated time periods and requesting to speak to Kobyn provided that such requests are
reasonable and not disruptive. In response to Breinig-Pruitt’s complaint that the parenting plan
includes specific times for telephone contact between himself and Kobyn, we recognize and
acknowledge that some specific details need to be set forth in order to prevent future disputes. The
district court did not abuse its discretion by including, in the parenting plan, specific minimum
times for telephone contact between Breinig-Pruitt and Kobyn.
CHILD SUPPORT
Breinig-Pruitt contends that district court erred in using $1,617 as the earning capacity for
Westfahl because there is no evidence in the record to support that figure. Instead, he claims the
court should have used $1,733 as Westfahl’s earning capacity.
If applicable, earning capacity may be considered in lieu of a parent’s actual, present
income and may include factors such as work history, education, occupational skills, and job
opportunities. Neb. Ct. R. § 4-204. Earning capacity should be used to determine a child support
obligation only when there is evidence that the parent can realize that capacity through reasonable
efforts. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
Westfahl testified that she was working about 20 hours per week making $10 per hour and
that she was capable of working full-time at $10 per hour, but she chose not to in order to spend
more time with Kobyn. The record further established that $9.33 was the minimum wage in
Colorado at that time of the trial.
The district court calculated Westfahl’s earning capacity at $1,617, based upon a 40-hour
workweek at $9.33 per hour. Even if the court would have imputed a 40-hour workweek to
Westfahl earning $10 per hour, this would have made her earning capacity $1,733 per month. The
court chose to use Westfahl’s earning capacity instead of her actual, present income in determining
child support, and chose to use Colorado’s minimum wage instead of the slightly higher hourly
wage that Westfahl was earning in her part-time job. Neither choice was an abuse of discretion.
CHILDCARE EXPENSES
Breinig-Pruitt contends that there was no evidence of childcare expenses adduced during
the trial and, therefore, he should not have been ordered to pay for childcare expenses.
Additionally, he notes that the order sets forth that he is to provide 50 percent of Kobyn’s childcare
expenses, but in the same paragraph of the court’s order it states that he is to reimburse Westfahl
for 74 percent of the childcare costs.
Neb. Ct. R. § 4-214 provides:
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
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(worksheet 1, line 6) and shall be added to the basic support obligation computed under
these guidelines.
Here, the evidence established that Westfahl is employed part-time and that childcare is
sometimes necessary for Kobyn during her work hours. The guidelines provide that childcare
expenses due to either parent’s employment or education and expenses shall be allocated to the
obligor parent in an amount determined by the court, so long as the court does not exceed the
proportion of the obligor’s parental contribution. See Anderson v. Anderson, 290 Neb. 530, 861
N.W.2d 113 (2015). Thus, the district court did not abuse its discretion in allocating 50 percent of
these childcare expenses to Breinig-Pruitt. However the requirement that Breinig-Pruitt reimburse
Westfahl for 74 percent of such costs appears to be a scrivener’s error and is modified to require
him to reimburse Westfahl 50 percent of the childcare costs incurred and actually paid by Westfahl
to an unrelated third party for the care of the minor child while Westfahl is at work.
CONCLUSION
In sum, we find no abuse of discretion on the part of the district court but we modify the
portion of the court’s opinion in which a scrivener’s error required Breinig-Pruitt to reimburse
Westfahl for 74 percent of her childcare costs for Kobyn. That portion of the district court’s order
shall be modified to require a 50-percent reimbursement.
AFFIRMED AS MODIFIED.
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