947 N.W.2d 578
Neb. Ct. App.2020Background
- Parties entered a 2014 Paternity Decree awarding joint legal and physical custody of son Macklin; decree set child support at $515/month and incorporated a two-week rotating Parenting Plan.
- The Parenting Plan required Olander to provide transportation for exchanges except weekends, and the Paternity Decree (separately) gave Olander’s mother a right of first refusal every fourth Saturday when Olander was at work.
- In 2018 Olander sought modification (health insurance, more consistent parenting time, and revised support); at trial parties agreed on several items (Olander to provide health insurance, use 2017 taxes, divide expenses, vacation/extracurricular rules).
- The district court changed Olander’s parenting time to run weekly from Tuesday evening to Thursday morning, adopted a Modified Parenting Plan that altered the transportation clause and changed the right‑of‑first‑refusal schedule, and set child support at $349/month.
- McPhillips moved to vacate, claiming (among other things) unilateral changes to transportation and right‑of‑first‑refusal, and that child support was miscalculated; the court set an evidentiary hearing on support for March 6, 2019, but no transcript of that hearing exists in the record.
- The Court of Appeals: affirmed the parenting‑time change and the inclusion of the right‑of‑first‑refusal, but reversed the child‑support determination (no record of the evidentiary hearing) and the transportation change, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (McPhillips) | Defendant's Argument (Olander) | Held |
|---|---|---|---|
| Whether court erred by changing Olander’s parenting time to Tue evening–Thu morning weekly | Change unfairly altered her schedule; court should have reciprocally moved her start time | Change provides weekly consistency for child and avoids chaotic Wednesday morning exchanges | Affirmed — court did not abuse discretion; child’s best interests and need for stability supported change |
| Whether child support calculation was proper (including health insurance credit) | Court miscalculated support; Olander was not providing stated insurance and no reliable premium evidence | Olander claimed he provided/arranged insurance and support was properly recalculated | Reversed and remanded — an evidentiary hearing occurred off‑record; vacate support order and require on‑the‑record hearing on income and insurance |
| Whether transportation clause was lawfully modified to require parent beginning time to provide exchange transport | Transportation language was changed unilaterally without agreement or evidentiary support | Olander contends parties agreed to modify transportation prior to trial | Reversed — record contains no agreement or evidence justifying change; restore original transportation clause |
| Whether right‑of‑first‑refusal clause (Olander’s mother) was improperly added | Nunc pro tunc Parenting Plan superseded original decree; right should not have been included | Right originated in the Paternity Decree and carried over; parties treated it as operative | Affirmed — inclusion of the right was proper (court found it flowed from the Paternity Decree) |
Key Cases Cited
- Anderson v. Anderson, 290 Neb. 530 (2015) (domestic matters and child‑support determinations lie within trial court discretion)
- Schriner v. Schriner, 25 Neb. App. 165 (2017) (parenting time reviewed de novo on record but trial court’s factual discretion is upheld absent abuse)
- Eric H. v. Ashley H., 302 Neb. 786 (2019) (modification of parenting plan requires a material change affecting the child’s best interests)
- Gerdes v. Klindt’s, 247 Neb. 138 (1995) (absence of a verbatim record of an evidentiary hearing requires vacatur and remand)
- Presle v. Presle, 262 Neb. 729 (2001) (same principle regarding evidentiary‑hearing record)
- Lockenour v. Sculley, 8 Neb. App. 254 (1999) (same principle regarding necessity of on‑the‑record evidentiary proceedings)
- State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500 (2016) (reinforces standard of review for parenting time determinations)