Matschullat v. Matschullat
A-16-1058
| Neb. Ct. App. | Jun 20, 2017Background
- Parties divorced in 2010; original decree awarded joint legal and physical custody of two children. 2011 stipulated modification awarded Danielle sole legal and physical custody and set parenting time (every-other-weekends during school year; alternating weekly summer custody) and limited noncustodial summer phone contact; Kristopher ordered to pay $600/month support.
- Kristopher filed to modify custody in 2015 seeking joint legal and physical custody and more parenting time, arguing improved communication, greater parenting participation, remarriage, job flexibility, and the children’s wishes.
- Danielle opposed, citing Kristopher’s 2010 criminal convictions (assault and witness tampering), instances where Kristopher allegedly limited the children’s access to him, and alleged undermining of her authority; she disputed any material change.
- The district court found a material change based largely on the older child Sierra’s expressed desire for more time with her father, but declined to transfer legal or physical custody; it increased Kristopher’s school-year parenting time (from 2 to 4 days per 14-day block, a 10/4 schedule), modified summer time to four continuous weeks for Kristopher (with Danielle a weekend during that period), changed the phone provision to a guaranteed weekly 15-minute Wednesday call, and raised child support to $898/month.
- Kristopher appealed, assigning error to (1) denial of joint custody, (2) reduction of summer parenting time, (3) limitation on telephone contact, and (4) the child support calculation.
Issues
| Issue | Kristopher's Argument | Danielle's Argument | Held |
|---|---|---|---|
| Denial of joint legal/physical custody | Improved communication, stable remarriage, job flexibility, children’s wishes justify joint custody (week-on/week-off) | Ongoing hostility/distrust, past convictions, and Danielle’s primary-care stability support maintaining sole custody | Affirmed: court did not abuse discretion; increased parenting time instead of changing custody (child best interests favored more time, not joint custody) |
| Reduction/alteration of summer parenting time | Court improperly removed at least two weeks of his prior summer time (should remain alternating weeks) | Four continuous weeks gives richer, full-time experience and may promote better sharing and parental perspective | Affirmed: change reasonable—continuous 4-week block benefits child/father relationship and net parenting time increased overall yearly |
| Limitation on telephone contact | Court’s weekly 15-minute requirement unreasonably restricts daily contact; should allow daily calls/texts | New order guarantees a weekly call but does not prohibit other communications; prior order had stricter limits | Affirmed: provision guarantees a weekly call and does not bar other phone/text/email contact; not restrictive as argued |
| Child support calculation | Court miscomputed taxes/self-employment (clerical/unchecked box), producing incorrect support figure—court should correct worksheet | Court explained income determination and used figures supported by exhibits; appellant provided no specific showing of error | Affirmed: appellant failed to identify a clear error; court’s income finding and support computation not shown to be abused discretion |
Key Cases Cited
- Vogel v. Vogel, 262 Neb. 1030 (2002) (child’s wishes are entitled to consideration though not controlling)
- Robb v. Robb, 268 Neb. 694 (2004) (factors for custody determinations including effect of disrupting existing relationship)
- Citta v. Facka, 19 Neb. App. 736 (2012) (child’s best interests are paramount in custody decisions)
- Kamal v. Imroz, 277 Neb. 116 (2009) (joint custody inappropriate when parents cannot effectively communicate)
- Klimek v. Klimek, 18 Neb. App. 82 (2009) (no abuse of discretion in denying joint custody where parental communication was poor)