Sommer v. Sommer

                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      SOMMER V. SOMMER


  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).


                                  SEAN D. SOMMER, APPELLEE,
                                               V.

                               JENNIFER D. SOMMER, APPELLANT.


                           Filed October 27, 2020.    No. A-19-1141.


       Appeal from the District Court for Douglas County: JAMES M. MASTELLER, Judge.
Affirmed.
       Ryan M. Hoffman, of Anderson, Bressman, Hoffman & Jacobs, P.C., L.L.O., for appellant.
       Stephanie Weber Milone, of Milone Law Office, for appellee.


       MOORE, BISHOP, and WELCH, Judges.
       MOORE, Judge.
                                      I. INTRODUCTION
       Jennifer D. Sommer appeals from an order entered by the district court for Douglas County,
modifying a decree of dissolution by awarding physical custody of the parties’ two children to
Sean D. Sommer, awarding Jennifer parenting time, and ordering her to pay child support. For the
following reasons, we affirm.
                                      II. BACKGROUND
        Sean and Jennifer were married in March 1997 and four children were born to the marriage.
The parties’ two daughters are now adults and are not part of this appeal; the two minor sons are
the subject of the current custody dispute. On March 4, 2015, a decree of dissolution (nunc pro
tunc) was entered by the district court, dissolving Sean and Jennifer’s marriage. According to the
partial parenting plan submitted by the parties, they agreed to share legal custody of their four



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children but were unable to agree upon physical custody. The decree awarded Sean physical
custody of the parties’ daughters, who were still minors at the time, and awarded Jennifer custody
of the parties’ sons, Jacob and Tanner, each subject to parenting time of the other parent. Sean was
ordered to pay $487 per month as child support.
        On September 10, 2019, Sean filed a complaint to modify the decree, requesting he be
awarded custody of Jacob and Tanner. He alleged that substantial and material changes in
circumstances had occurred which were not within the contemplation of the parties at the time of
the decree, including, but not limited to, the parties’ sons’ behavior becoming increasingly out of
control including difficulties at school that include physical assaults of other students, ability to
participate in after school childcare, refusal to follow teachers’ instructions, attempts to run away
from school, suspension from after school childcare, disruptions in the classroom, vandalism of
the school, suspensions from school, threatening other students, hygiene issues, lack of health and
dental care, lying, shoplifting, and lack of friends. Jennifer filed an answer denying that a material
change in circumstances had occurred, and asserting a counterclaim, seeking modification of child
support. Trial was held on September 3. The following evidence was heard at trial.
        At the time of the divorce, Jacob was 7 years old, was in second grade at St. Pius/St. Leo
Catholic School, and had an Individualized Education Plan (IEP). Sean testified that Jacob was
having educational and behavioral issues prior to the divorce due to his learning disability. Jacob
was subsequently expelled for behavioral issues. Jacob then attended St. Bernard’s school, but was
again expelled due to behavioral issues. He then attended an alternative school called Behaven.
Jacob later was enrolled at Laura Dodge Elementary, until he was expelled and sent to Saddlebrook
Elementary where he attended until he completed elementary school. He now attends Morton
Magnet Middle School and is in the seventh grade. According to Jennifer, Jacob is doing “great”
at Morton although there are still issues; he is turning in his assignments, he is not talking back to
teachers like he used to, and is more focused on doing his homework in class time.
        Jennifer testified that Jacob’s primary learning disability is emotional disturbance and a
secondary speech language impairment. He was also diagnosed with oppositional defiant disorder
(ODD) and attention deficit hyperactivity disorder (ADHD). Jacob was prescribed medication for
his ADHD and ODD, but because of the side effects, Jennifer testified that she had Jacob stop
taking it, and that Jacob is doing better now.
        Sean testified that he attended some, but not all, IEP meetings and only attended some
parent teacher conferences. Behavior reports from Jacob’s third and fourth grade years at Laura
Dodge Elementary indicate that Jacob’s behavior included 28 reported incidents, including
refusing to attend class, refusing to follow directions, interrupting class, drawing on classroom
furniture, fighting with other students, threatening students and teachers, and lying to authority
figures. Sean testified that he had some difficulty getting information about how Jacob is doing at
middle school, although he learned from the school that he had already been tardy five times and
absent twice, and that his grades are mediocre. Sean compiled a timeline of incidents noting
Jacob’s recent issues, including an incident when Jacob brought a stink bomb to school.
        Jennifer testified that Tanner was born with a condition called XYY, which affects him
behaviorally causing aggression and anger issues. At the time of the divorce, Tanner was 5 years
old and in prekindergarten. Sean testified that Tanner’s enrollment in prekindergarten at the time
was due to developmental delays. Tanner attends Laura Dodge Elementary and is currently in the


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fourth grade. He also has an IEP. Tanner’s IEP contained behavioral reports from first grade
showing that he had issues not following directions, name calling, threatening other students, and
climbing on classroom furniture. Sean testified that Tanner’s behavioral issues have worsened
from being disruptive and not listening to assaulting other children, being disrespectful, throwing
objects at teachers, running away from class, attempting to destroy property, and having to be
removed by security. The timeline compiled by Sean notes several additional incidents when
Tanner was disruptive by leaving class and physically injuring other students by hitting, kicking,
and throwing rocks. Sean testified that he has difficulty getting information from Jennifer
regarding the boys and she does not discuss their behavior difficulties or health issues with him.
         Cody Hays, the principal at Laura Dodge Elementary, testified that Jacob struggled
educationally and had behavioral issues. Jacob’s behavior was disruptive to his class and he was
frequently out of class. Because of behavioral issues, Hays testified that Jacob was suspended a
total of three times during fourth and fifth grade years for physical behaviors that impacted the
safety of other students and staff. Jacob was ultimately expelled from the school as they could not
meet his social-emotional needs. Hays testified that Tanner has struggled both educationally and
behaviorally at school, and has difficulty complying with directions, which keeps him out of class.
Hays also testified that Tanner had been suspended from school a total of eight times during his
second and third grade years for repeated behavioral violations that included aggression toward
other students. Tanner missed a week of school at the beginning of third grade as Jennifer was
attempting to get him enrolled in a different school, which was unsuccessful. Hays agreed that
Tanner had a learning disability. Hays indicated that there are other children with learning
disabilities at the school that don’t have the type of aggressive behavior such as Tanner exhibits.
         Hays contacted the parents on many occasions regarding the boys’ behavior. According to
Hays, Jennifer would be quite frustrated with their behavior and the responses with their behaviors.
When Jennifer talked to the boys over the phone in an effort to get their behavior under control,
that effort was unsuccessful “a lot of time.” When Hays contacted Sean, he was supportive and
tried to work with the boys. Hays observed Sean talking to the boys over the phone in an effort to
get their behavior under control, and Hays indicated that “there was a turnaround, a significant
turnaround in behavior.”
         The school recommended counseling for Tanner, and Jennifer independently set up
counseling for the boys, which Sean has not attended. However, at the time of trial, counseling for
the boys was “on hold” because their therapist was on maternity leave.
         Since the divorce, Sean has remarried and now lives in Plattsmouth with his wife and her
son. Sean is employed as a road patrol sergeant at the Cass County Sheriff’s Department, the same
place he was employed at the time of the decree. Sean’s work schedule rotates; one week he will
work 5 days, and the next week he will work 2 days. His work hours are from 2 p.m. to 2 a.m.
Sean also works part time at Walmart 1 day a week to supplement his income to help with his child
support obligation. Sean’s wife is employed at a data analytics company, and primarily works from
home. Sean’s wife provides health insurance for Jacob and Tanner through her employment.
         Sean testified that he had concerns with Jennifer’s care of the boys, including their
educational, hygiene, and medical needs. He also has concerns with the boys’ respect issues, and
lack of life skills. According to Sean, Jennifer failed to take the children to the dentist, and when
Sean took Tanner for an exam, he had enormous cavities which required four root canals. Jennifer


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stated that she did not take Tanner for regular doctor visits unless he is sick, because he had
behavioral problems at doctor visits. Sean also testified that there were several times when the
boys would arrive at his house with dirt on them and in unwashed clothes. Sean was concerned
with the boys’ life skills and indicated that Tanner at nearly 10 years old still did not know how to
tie his shoes. Sean’s wife testified that they had to create rules for Jacob and Tanner, which
included things like shutting the bathroom door while using the bathroom, flushing the toilet,
washing their hands, and cleaning up after a meal, which she believed were basic expectations for
boys their age. Sean testified that when the boys are with him, they attend nonprofit events and
participate in community events such as parades and fundraisers. Jennifer also acknowledged that
the boys have friends in Sean’s neighborhood, but do not have friends in her neighborhood.
        Sean testified that if he were to be awarded custody, he would enroll the boys in parochial
school in Plattsmouth, take the boys to church, attend events in the community, and teach the boys
to be good citizens. Both Sean and his wife testified that they discipline the boys through time
outs, lost privileges, and reminders of the house rules, which normally resulted in good behavior
with a few exceptions where Jacob has lied or been disrespectful. Jennifer opposed the boys
attending Catholic school in Plattsmouth. Sean testified that his main concern was gaining custody
in order to get his children under control. Sean indicated he did not want any child support from
Jennifer; rather, he would like to see her “get her life together.”
        The parties’ daughter, Amanda, age 20 at the time of trial, testified that the boys have issues
with not listening at both Sean’s and Jennifer’s houses, and that both parents essentially respond
by raising their voice and giving them “a look” which generally corrects the behavior. According
to Amanda, the boys “immediately” correct their behavior in response to Sean’s discipline.
        Under the decree, Sean was awarded an overnight weekday visitation and 2 weeks of
summer visitation with Jacob and Tanner. At the time of trial, Sean was not exercising his
overnight weekly visitation and had only exercised a full week of summer vacation in 1 year since
the decree. Sean testified that he does exercise his parenting time every other weekend. Sean did
exercise the midweek visitation after the decree was entered when he lived in an apartment near
Jacob’s school, but since moving to Plattsmouth, he felt it was unfair to require them to drive an
hour each direction when they would only have a few waking hours to spend together.
        Jennifer has continued to reside in the former marital residence in Omaha since the divorce.
Tiffany and Amanda, the parties’ two adult daughters, live with Jennifer, as well as Jacob, Tanner,
and Tiffany’s fiance and son. Since the entry of the decree, Jennifer filed for bankruptcy twice.
There was also a period of time where Jennifer’s home loan on the marital residence was in arrears,
and a foreclosure was started. Jennifer completed a loan modification in the month prior to trial
and therefore avoided foreclosure.
        Jennifer testified that since the decree was entered, she has held approximately five or six
jobs, but currently works for a security company and provides security at a meatpacking plant.
Jennifer works from 6 a.m. to 2 p.m. Monday through Friday and occasionally works Saturdays.
A copy of one of Jennifer’s recent paystubs showed that Jennifer earned $10 per hour, working 80
hours in a 2-week pay period. Because of Jennifer’s hours, Amanda is responsible for taking Jacob
and Tanner to school.
        Jacob testified very briefly. He was 12 years old and had just started seventh grade at the
time of his testimony. Jacob said that things were going “good” at school, although he had recently


                                                 -4-
been in trouble for bringing a stink bomb to school. Jacob described the activities that he does at
both parent’s houses as well as what happens at each house when he gets in trouble, which includes
having privileges taken away and the use of time out. When asked by the judge whether he
understood why he was testifying, Jacob indicated that he didn’t know why he was there. When
asked by the judge whether he had anything he wanted to say, Jacob testified that Jennifer’s house
is quiet at night, but that sometimes Sean’s wife yells at night at Sean’s house.
        Upon examination by Jennifer’s attorney, Jacob indicated that he likes staying at both
Jennifer and Sean’s houses. Jacob also testified that he would like to spend more time with his
dad. When asked what he would think about changing schools, Jacob stated “that would kind of
make me upset” because “I’d lose all my friends.”
    The district court entered an order modifying custody, awarding Sean sole physical custody
and awarding Jennifer parenting time on alternating weekends and one weeknight. Jennifer was
ordered to pay child support of $217 per month for two children, and $55 per month for one child.
Jennifer appeals.
                                III. ASSIGNMENTS OF ERROR
       Jennifer assigns that the district court abused its discretion by modifying its prior order to
award Sean sole physical custody, limiting her parenting time, and ordering her to pay child
support.
                                  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. Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695
(2017). A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and denying just results in matters
submitted for disposition. State on behalf of Ryley G. v. Ryan G., 306 Neb. 63, 943 N.W.2d 709
(2020).
        When 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. Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
                                          V. ANALYSIS
                                  1. MODIFICATION OF CUSTODY
       Jennifer assigns that the trial court abused its discretion in modifying the decree by
awarding Sean sole physical custody of their two minor children. Jennifer argues that Sean did not
demonstrate a material change of circumstances, the district court failed to give proper weight to
Jacob’s opinion regarding where he wanted to reside, Sean failed to exercise his parenting time,
and that even if Sean proved a material change in circumstances, he failed to show that
modification was in the minor children’s best interests. Jennifer also argues that it was error to
allow a “nonparent to parent the minor children.”




                                                -5-
                               (a) Material Change in Circumstances
        Ordinarily, custody of a minor child will not be modified unless there has been a material
change in circumstances showing either that the custodial parent is unfit or that the best interests
of the child require such action. Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020). This
showing has been described as a two-step process: First, the party seeking modification must show
a material change in circumstances, occurring after the entry of the previous custody order and
affecting the best interests of the child. Id. Next, the party seeking modification must prove that
changing the child’s custody is in the child’s best interests. Id.
        A material change in circumstances is the occurrence of something which, had it been
known to the dissolution court at the time of the initial decree, would have persuaded the court to
decree differently. Id. The Nebraska Supreme Court has also explained that if a change in custody
is to be made, it should appear to the court that the material change in circumstances is more or
less permanent or continuous and not merely transitory or temporary. Id.
        In its order in this case, the district court found:
        [T]here have occurred substantial and material changes in circumstances not within the
        contemplation of the parties at the time which, in the best interest of the parties’ minor
        children, warrant modification of that decree including, but not limited to, the parties’ sons’
        behavior becoming increasingly out of control including difficulties at school that include
        physical assaults of other students, ability to participate in after school child care, refusal
        to follow teachers instructions, attempts to run away from school, suspension from after
        school child care, disruptions in the classroom, vandalism of the school, suspensions from
        school, threatening other students, school tardiness, missing school, hygiene issues, and
        lack of health and dental care.

         Jennifer first argues that the court abused its discretion in finding that a material change in
circumstances occurred. Jennifer asserts that the children suffered from disabilities that cause their
behavioral issues, which issues existed at the time the decree was entered. Jennifer further argues
that although Jacob had behavior issues in elementary school, he is doing better in middle school.
And, she argues that Tanner’s behavior has not changed since the initial decree. In response, Sean
asserts that Jennifer failed to provide proper parental care and discipline for the boys, therefore
causing their worsening behavioral issues. Sean points to the evidence that there was an increase
in behavioral issues while the boys remained in Jennifer’s custody. Sean also points to the evidence
about Jennifer’s failure to obtain proper dental care for the boys.
         In our review of the record, and giving deference to the trial judge who heard and observed
the witnesses, we cannot say that the district court abused its discretion in finding that there was a
material change in circumstances since the entry of the decree, particularly as it relates to the boy’s
increasing behavioral problems at school.
                                        (b) Jacob’s Preference
        Jennifer next argues that the district court abused its discretion in failing to properly
consider Jacob’s opinion as to where he wanted to reside. Nebraska law explicitly provides that a
court shall consider “[t]he 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.”


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Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019). While the wishes of a child are not
controlling in the determination of custody, if a child is of sufficient age and has expressed an
intelligent preference, the child’s preference is entitled to consideration. Id.
        The district court did not specifically mention Jacob’s testimony in its written order.
However, in our de novo review of the record, we note that Jacob was not asked, nor did he state,
where he preferred to live. Jacob did respond that he would be “kind of” upset to change schools.
Given the number of schools that Jacob has attended during his elementary years, his position is
certainly understandable. However, Jacob also expressed a desire to spend more time with his
father and that he liked living in both parents’ houses. Based on our review of Jacob’s testimony,
and considering his age of 12 years, we do not find an expressed preference to guide us in this
custody determination. We cannot say that the district court abused its discretion in failing to give
weight to Jacob’s testimony.
                              (c) Failure to Exercise Parenting Time
        Jennifer argues that Sean should not be awarded custody because he has not exercised the
full amount of parenting time allotted to him. Jennifer cites to cases in which a parent has failed to
exercise visitation on numerous occasions or had no contact with the children for several months
as the basis for denying an award of custody. See, Hoins v. Hoins, 7 Neb. App. 564, 584 N.W.2d
480 (1998) (finding no material change in circumstances relating to mother’s lifestyle; noting
father also had female guests overnight and failed to exercise visitation rights on several
occasions); Boamah-Wiafe v. Rashleigh, 9 Neb. App. 503, 614 N.W.2d 778 (2000) (affirmed
denial of father’s request to change custody for failure to show material change in circumstances;
noting father had virtually no contact with children for 13 months prior to trial). We find those
cases to be distinguishable. While Sean did not always exercise his midweek overnight parenting
time or all of his summer parenting time, he routinely exercised his weekend parenting time every
other week. And, as we determined above, Sean met his burden of proving a material change in
circumstances, unlike the cases noted above.
        Jennifer further argues that Sean did not attend all of the IEP meetings, doctor
appointments, and activities of the children. Sean, on the other hand, presented evidence of his
attending to the childrens’ dental needs, his attendance at some of the IEP meetings, his
communication with the children’s schools, and his difficulty in obtaining information about the
children from Jennifer. We find no abuse of discretion in the court’s failure to penalize Sean for
not exercising the full amount of parenting time given his work schedule and the boys’ activities.
                                          (d) Best Interests
        Jennifer argues that Sean failed to prove that modification of custody was in the children’s
best interests.
        When determining the best interests of the child in the context of custody, a court must
consider, at a minimum, (1) the relationship of the minor child to each parent prior to the
commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on
sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible
evidence of abuse inflicted on any family or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse. Jones, supra. Other relevant considerations


                                                -7-
include stability in the child’s routine, minimization of contact and conflict between the parents,
and the general nature and health of the individual child. Id. No single factor is determinative, and
different factors may weigh more heavily in the court’s analysis, depending on the evidence
presented in each case. Id. The one constant is that the child’s best interests are always the standard
by which any custody or parenting time determination is made. Id.
         Here, the record shows that Sean and Jennifer both have a positive relationship with the
boys. Jacob testified that he liked staying with both Sean and Jennifer. Further, as discussed above,
there is no evidence as to the desires of the children, other than Jacob testifying that he might be
upset if he had to change schools. Further there is no evidence of abuse or neglect in either home.
Thus, we turn to the general health, welfare, and social behavior needs of the boys.
         As we have discussed above, the general health, welfare, and social behavior of the boys
would be better served with Sean as the custodial parent. Although both boys do have various
disorders leading to behavioral problems, there is at least some evidence that the boys are more
responsive to Sean’s discipline. Further, Sean has demonstrated that he has attended to the dental
needs of the children when Jennifer failed to do so. Although Sean works overnight approximately
14 days out of the month, he is able to be home for the boys during the mornings on his work days,
he will work his weekend shifts when the children are with Jennifer, and his wife is able to work
from home to provide care when Sean is at work.
         Thus, the factors regarding the boys’ best interests weigh in favor of Sean. Sean
demonstrated that he is in the better position to handle the boys’ behavioral needs and provide a
stable environment. Therefore, we find that the district court did not abuse its discretion in finding
that it is in the children’s best interests to award Sean physical custody.
                         (e) Allowing Nonparent to Parent Minor Children
        Jennifer argues that the district court abused its discretion in allowing Sean’s wife to parent
the children a majority of the time. Jennifer cites to the parental preference doctrine to assert that
her right to custody trumps any interest Sean’s wife has to the parent-child relationship. See,
Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008). That doctrine has no
application here since custody of the children was not awarded to Sean’s wife. Jennifer’s argument
seems to be that if Sean is awarded custody, the children will be in his wife’s care more than his.
However, the record shows that Sean’s work schedule will allow him to spend significant time
with the children, and that he will work his weekend shifts when the children are with Jennifer for
her parenting time. Sean testified that his wife would only be responsible for caring for the boys
on the two weeknights he works, totaling eight nights per month. The assistance of a stepparent in
caring for minor children is certainly not unusual. We reject this argument.
                                         2. CHILD SUPPORT
       Jennifer also argues that the district court abused its discretion in awarding Sean child
support. She points to Sean’s testimony at trial that he would agree to a downward deviation from
the Nebraska Child Support Guidelines, such that Jennifer not be required to pay child support.
       In general, child support payments should be set according to the Nebraska Child Support
Guidelines. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018). However, a court may deviate
from the guidelines if its application in an individual case would be unjust or inappropriate. Id.


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Deviations from the guidelines must also take into consideration the best interests of the child or
children. Id.
        Here, the district court determined that Jennifer had an earning capacity of $13.00 per hour,
since she voluntarily left employment where she was earning that wage. The court then imputed
Jennifer’s gross monthly income, based upon 40 hours per week, at $2,253.33. Using Sean’s gross
monthly income at the time of trial of $5,763.47, the child support calculation resulted in Jennifer’s
share for two children at $517 per month. However, the court went on to find, that at the suggestion
of Sean and for the benefit of Jennifer, a downward deviation from the guidelines was warranted,
and in the minor children’s best interests, because the parties shall split equally all expenses
incurred in behalf of the minor children. The court then set Jennifer’s child support obligation for
two children at $217 and for one child at $55. Thus, Jennifer received a substantial reduction in
her child support obligation as a result of the court’s deviation from the guidelines. The main
principle behind the child support guidelines is to recognize the equal duty of both parents to
contribute to the support of their children in proportion to their respective net incomes. See Neb.
Ct. R. § 4-201. We can find no abuse of discretion in the district court’s award of child support
from Jennifer to Sean.
                                   3. LIMITING PARENTING TIME
        Jennifer assigned that the district court erred in limiting her parenting time. However,
Jennifer did not argue this assigned error in her brief. To be considered by an appellate court, an
alleged error must be both specifically assigned and specifically argued in the brief of the party
asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). Therefore, we
need not address whether the district court erred in limiting Jennifer’s parenting time.
                                        VI. CONCLUSION
       In conclusion, the district court did not abuse its discretion in awarding Sean physical
custody of the boys, in determining Jennifer’s parenting time, or in awarding Sean child support.
                                                                                       AFFIRMED.




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