Opheim v. Opheim
A-15-1153
| Neb. Ct. App. | Oct 25, 2016Background
- Parents Daysha (mother) and Damon (father) divorced in 2009; mother awarded custody of daughters Oasis (b.2005) and Alexis (b.2006); father had parenting time and child support obligations.
- In 2014 Damon filed for modification alleging Daysha demonstrated erratic behavior, mental-health concerns, videotaping/harassing neighbors and school personnel, and that DHHS had removed the children from her care pending a juvenile proceeding.
- Trial evidence included neighbor testimony about aggressive/strange conduct and videotaping, teacher testimony about Daysha being banned from school property, DHHS intake/affidavit describing multiple reports and removal, and Damon's testimony about parenting and employment stability.
- Daysha testified pro se, denied or minimized incidents, claimed Damon influenced witnesses, and presented guardian ad litem testimony stating no concerns within limited observation contexts.
- The district court found a material change in circumstances, awarded Damon sole legal and physical custody, granted Daysha limited parenting time, and ordered Daysha to pay $167/month child support based on reported 2014 income of $15,000.
Issues
| Issue | Plaintiff's Argument (Daysha) | Defendant's Argument (Damon) | Held |
|---|---|---|---|
| Whether trial court erred by disregarding evidence/credibility | Court ignored or misweighed evidence and favored biased witnesses | Trial court properly credited testimonial and documentary evidence showing erratic behavior and impact on children | No error; appellate court defers to trial court on credibility and affirms |
| Exclusion/admission of evidence and hearsay rulings | Court wrongly excluded juvenile dismissal, mental-health warrant, and cautioned on hearsay | Court followed rules; exclusions were preserved correctly or harmless; pro se plaintiff failed to preserve some objections | No reversible error; failures to preserve or harmless; evidentiary rulings upheld |
| Validity of temporary (ex parte) custody order and procedure | Temporary order obtained improperly while Daysha hospitalized; lacked parenting plan | Temporary order was superseded by final custody order | Moot — temporary-order challenges resolved by final custody order; appellate court declines to address |
| Completeness of parenting plan (deployment contingency) | Order should include conditional plan if Damon is deployed | Deployment now speculative; Damon testified he changed jobs and deployment unlikely | No error; speculative future events should be addressed if and when they occur |
| Child support obligation | Daysha should be excused from paying because Damon caused her financial hardship | Child support calculated per guidelines using Daysha’s reported income | No abuse of discretion; court correctly applied Guidelines and declined to deviate |
| Best interests for custody modification | Daysha met children’s needs previously; father was less involved before | Mother’s behavior harmed children (police involvement, removal, videotaping, hitting), so change serves children’s welfare | Modification to award Damon sole custody was within trial court discretion and affirmed |
Key Cases Cited
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (2015) (custody determinations entrusted to trial court discretion; appellate de novo review but weight given to trial judge’s credibility findings)
- Schrag v. Spear, 290 Neb. 98 (2015) (appellate court may give weight to trial judge’s choice between conflicting testimony)
- Vogel v. Vogel, 262 Neb. 1030 (2002) (courts should not set conditional custody/visitation for speculative future events; better decided when event occurs)
- Pathammavong v. Pathammavong, 268 Neb. 1 (2004) (challenges to temporary custody orders are moot once final custody order replaces them)
- Incontro v. Jacobs, 277 Neb. 275 (2009) (child support should be set according to Nebraska Child Support Guidelines)