Schriner v. Schriner
25 Neb. Ct. App. 165
| Neb. Ct. App. | 2017Background
- Parties divorced in Feb 2014; Cecil awarded legal and physical custody of two minor children; Sara granted limited midweek and alternating weekend parenting time and ordered to pay child support.
- Sara filed to modify parenting time in Dec 2014 alleging Cecil’s LEAD program travel and withholding of appointment/childcare information; Cecil counterclaimed alleging Sara’s hostile, alienating conduct toward the children and sought to restrict her parenting time and participation in appointments.
- Two-day modification trial (Mar & May 2016) produced conflicting testimony about exchanges, parental conduct at medical/dental visits, and effects on the children; pediatric dentist testified Sara’s presence escalates children’s behavior.
- District court found ongoing parental conflict and that Sara’s conduct was disruptive and alienating; it eliminated her Tuesday/Thursday visits, converted her weekends to every-other-week with an extra Sunday overnight, limited her participation in routine medical/dental/optometry/dermatology visits (notification post-visit by text/email), ordered anger-management counseling, and awarded Cecil $7,500 in attorney fees.
- Sara appealed, arguing evidentiary error, failure to find material change, improper reduction of parenting time, unlawful restrictions on appointment participation, improper counseling order, and improper attorney-fee award.
Issues
| Issue | Plaintiff's Argument (Sara) | Defendant's Argument (Cecil) | Held |
|---|---|---|---|
| Whether admission/exclusion of evidence and closing procedure were erroneous | Trial admitted unknown documents at bench and denied rebuttal; unfairly relied on witness assumptions | Documents were not entered as evidence; both sides had fair opportunity to argue; no abuse of discretion | No reversible evidentiary error; court acted within discretion on closing and did not rely improperly on evidence |
| Whether a material change in circumstances existed to justify modifying parenting time | Court made no explicit finding of material change; modification unjustified | Ongoing parental conflict and alienating conduct warranted change to reduce conflict and protect children | Implicit findings and record support a material change (ongoing conflict); modification affirmed |
| Whether court properly reduced Sara’s midweek parenting time and restructured exchanges | Reduction was improper; Sara sought overnights to reduce exchanges, not elimination | Midweek overnights would result in weekly home switching and instability; elimination reduces exchanges and conflict | Court did not abuse discretion; elimination of Tues/Thurs exchanges and restructuring to every-other-weekends with extra overnight appropriate |
| Whether court properly limited Sara’s participation/notification for routine medical and activity info | Parent has right to access and attend appointments; restrictions excessive | Sara’s conduct at appointments disrupts care and escalates child behavior; custodial parent has decision-making authority | Limitations were reasonable given evidence (dentist testimony); Sara still entitled to post-visit info and statutory access to records |
| Whether ordering anger-management counseling was proper | Order surprised Sara at closing; insufficient evidentiary basis | Evidence showed unresolved parental conflict and behavior harmful to children; counseling appropriate under Parenting Act | Court acted within discretion; counseling and second-level parenting education permissible to address unresolved parental conflict |
| Whether awarding $7,500 attorney fees to Cecil was proper | Modification not frivolous; Sara unable to pay | Sara’s repeated litigation and partial lack of success justify fees; customary factors support award | Fee award affirmed as not an abuse of discretion |
Key Cases Cited
- Flores v. Flores-Guerrero, 290 Neb. 248 (appellate review of custody is de novo but trial court’s factual custody determinations are upheld absent abuse of discretion)
- Robb v. Robb, 268 Neb. 694 (appellate courts give weight to trial judge’s witness observations where evidence conflicts)
- Garza v. Garza, 288 Neb. 213 (attorney-fee awards in dissolution/modification cases are discretionary and reviewed for abuse of discretion)
- Griffith v. Drew’s LLC, 290 Neb. 508 (erroneous admission of evidence in bench trial is harmless if properly admitted evidence supports findings)
- Peterson v. Peterson, 239 Neb. 113 (material change in circumstances defined for modification of dissolution decree)
- Fine v. Fine, 261 Neb. 836 (children’s best interests are the paramount consideration in parenting-time determinations)