Cary A. Wagner v. Justin D. Wagner

Omaha, Nebraska divorce lawyers represented the parties to a marriage dissolution action involving custody of a child.

Cary and Justin were married in 1997 and divorced in 2010. During the parties' marriage three children were born, two of which have reached the age of majority. The modification of custody and contempt actions only involve Kaitlyn, born in 2006.



The decree of dissolution awarded the parties joint legal custody of the children, and awarded Cary physical custody, subject to Justin's parenting time consisting of alternating weekends from Friday evening to Sunday evening and every Tuesday evening. Kaitlyn was 2 years old at the time the decree was entered.



In June 2015, an order of modification was entered which expanded Justin's parenting time to alternating weekends from Friday evening to Tuesday evening. Kaitlyn was 9 years old at the time of the June 2015 modification.



In May 2021, Justin filed a complaint for modification, seeking joint physical custody. Justin subsequently filed an amended complaint for modification in January 2022, asking for joint physical custody, "or such other physical custody as may be in the child's best interests." However, it was clear at trial that Justin was seeking sole physical custody of Kaitlyn.



In March 2023, Cary filed an affidavit and application for an order to show cause alleging Justin was in contempt of the court's orders. She alleged in part that Kaitlyn had been staying at Justin's home since June 23, 2022, and she had received no parenting time since then. The court issued an order to show cause why Justin should not be held in contempt for failing to comply with the provisions of the decree and June 2015 modification.



Trial on Justin's amended complaint for modification and Cary's contempt action was held in April 2023. At the time of the trial, Kaitlyn was almost 17 years old, and a junior in high school. She was an honor roll student and was involved in many activities, including show choir, art club, book club, drama club, school musical, and one act play. The activity she was most involved in and that required the most time was 4-H.



Kaitlyn testified that she first became involved in 4-H in the fifth grade, when she was around 10 years old. She became more involved in 4-H when she was in eighth grade. Her primary 4-H activity is showing goats at competitions, which primarily takes place in the summer months. She owns her own goats and Justin keeps them on his 3.5-acre farm where he has lived since 2016.



Kaitlyn also was a 4-H ambassador, which involved mentoring younger children who are just beginning their involvement in 4-H. The mother of two boys Kaitlyn mentored testified that based on her observations, it was clear Kaitlyn loved 4-H and her animals, as well as working with younger kids.



Much of the evidence at trial focused on the conflict that had arisen between Kaitlyn and Cary, much of which was related to Kaitlyn's increased involvement in 4-H. Kaitlyn testified that in the summer of 2021 and 2022, she and Cary had a dispute almost every time there was a 4-H show during Cary's parenting time about the show interfering with family time. Kaitlyn testified that the disputes resulted in the deterioration of her relationship with Cary.



Justin and Kaitlyn shared similar interests and both enjoyed the 4-H activities and taking care of animals. Kaitlyn believed that Cary did not like the 4-H activities because it was something that Kaitlyn and Justin enjoyed doing together. Kaitlyn testified she believed Cary resented the fact that she and Justin had become closer, which added to the conflict between Kaitlyn and her mom. Kaitlyn testified that as she was becoming closer to Justin, her relationship with Cary seemed to be getting worse. She felt like she could not have a good relationship with both parents.



Kaitlyn also testified that the 4-H activities were not important to Cary even though it was something Kaitlyn was heavily involved in and loved to do. She stated that when Cary attended 4-H shows, Kaitlyn got the impression she did not want to be there.



Kaitlyn recalled one incident in early 2022 when goats were born at Justin's acreage that she would later use in the 4-H shows. Kaitlyn wanted to go see the goats the day they were born, but Cary did not allow Kaitlyn to go. She did not get to see them for about 11 days. Justin recalled the incident and testified that the birth of the goats was a big deal to Kaitlyn and caused friction between Cary and Kaitlyn. Cary testified that she did not recall a time when Kaitlyn wanted to go see newborn goats at Justin's house and she told her she could not go.



Kaitlyn testified that sometime in 2019, toward the end of seventh grade, she started telling Justin she wanted to spend more time with him. She continued to express her desire to have more time with Justin up until the time he filed his complaint for modification in May 2021, as well as after. Kaitlyn testified that sometime in 2020, when she was in eighth grade, she began telling Cary that she wanted more time with Justin. According to Kaitlyn, Cary refused to discuss the topic of Kaitlyn spending more time with Justin.



In June 2022, Kaitlyn began living with Justin exclusively after she and Cary had a disagreement about Kaitlyn's participation in an upcoming 4-H show. Cary told Kaitlyn that she was not going to allow her to participate in the show because she wanted to have "family time." The dispute resulted in Kaitlyn refusing to return to Cary's home at the end of Justin's parenting time.



Kaitlyn testified that leading up to June 2022, she told her dad on multiple occasions that she did not want to go back to her mom's house and wanted to stay with him. Justin told her how important it was to have both parents in her life. She stated that her dad acknowledged her feelings yet still encouraged her to have a relationship with Cary.



Kaitlyn testified that after she stopped going to Cary's house, Justin continued to encourage her to have a relationship with Cary. He encouraged her to have coffee with Cary, text her, and respond to her texts.



Kaitlyn testified that there were other things in addition to 4-H that contributed to the deterioration of her relationship with Cary. She does not feel respected at Cary's home and felt that her two older siblings were more important to Cary than she was. Kaitlyn testified she felt criticized by Cary and her older siblings for wanting to spend more time with Justin. In addition, Kaitlyn and Cary started going to family therapy in January 2023 and Kaitlyn testified Cary was late for a number of these appointments which made her feel like Cary did not respect her and did not want to attend therapy with her.



Kaitlyn testified that her last face to face visit with Cary, other than family therapy, was in December 2022. She stated that even though she had not been having parenting time with Cary, she was still having somewhat regular text communication with her.



Kaitlyn testified that at her dad's house she is responsible for taking care of her animals which includes fixing pens and fences, carrying water buckets, and cleaning pens. The animals require daily care and taking care of them is hard work. Preparing the goats for a 4-H show is also a lot of hard work. Kaitlyn explained that her increased involvement in 4-H and work with the animals is partially because she wants to become a veterinarian after high school. She testified that Cary knows she wants to become a veterinarian but still does not like her involvement in 4-H.



Kaitlyn testified that she feels more comfortable and at ease at Justin's home than at Cary's home. It is easier for her to do her homework and do the things that need to be done to keep up with her school and activities. Kaitlyn feels that she has open communication with Justin and that he knows her well. Kaitlyn also feels that Justin is supportive of her and understands her. She does not feel that way about Cary.



Justin testified that prior to filing his May 2021 complaint for modification, Kaitlyn frequently brought up her desire to spend more time with him. Justin observed that Kaitlyn was frustrated about this issue. Justin encouraged Kaitlyn to talk to Cary about her desire for more time with him. He also testified that Cary's conflict over Kaitlyn's involvement in 4-H was also something that kept coming up. Justin testified that leading up to his May 2021 filing, Cary had been complaining about Kaitlyn's level of involvement in 4-H. Those complaints by Cary continued throughout the pendency of this modification case. Justin testified that Kaitlyn enjoyed 4-H, and he believed it had a positive impact on her and was good for her.



Justin also testified that prior to filing his May 2021 complaint for modification, he communicated with Cary about the possibility of Kaitlyn spending more time with him. Cary's response was that it was not in Kaitlyn's best interest and she refused to discuss it further.



Justin testified that although his amended complaint for modification asked the court to award custody based on best interests, he was seeking sole custody. He stated that he filed the amended complaint because the relationship between Kaitlyn and Cary had deteriorated further. When Kaitlyn would have conversations with Cary she seemed "more distraught, more frustrated, more upset, visibly upset." Kaitlyn's involvement in 4-H continued to be a source of contention with Cary.



Justin testified that leading up to Kaitlyn refusing to go back to Cary's house, he had to pressure Kaitlyn to go back to Cary's at the end of his parenting time. He stated that she resisted going back on a regular basis.



Justin testified that he has seen changes in Kaitlyn since she had been living with him. He believes she is more relaxed, comfortable, calmer, and happier.



According to Justin, things appear to have gotten worse between Kaitlyn and Cary since June 2022. Kaitlyn is frustrated when she leaves the family therapy sessions with Cary, and sometimes is crying.



Justin testified that at some point after the parties' divorce, he and Cary's two oldest children, Jackson and Abigail, minors at the time, refused to spend parenting time with him, just as Kaitlyn was now doing with Cary. Justin's relationship with Jackson and Abigail continued to be strained at the time of trial. He testified that when Jackson and Abigail stopped going to parenting time with him, Cary represented to Justin that it was Jackson and Abigail's choice and that Justin should support it.



Sandy Wagner is Justin's wife. Sandy described Kaitlyn as a hard worker, who loves being outside with the goats, dogs, chickens, and cats. She testified that Kaitlyn spends a lot of time with her dad doing the activities she enjoys. Sandy testified that she has seen changes in Kaitlyn since she started living with her and Justin. She is more energetic and smiles more than she used to. Sandy testified Kaitlyn is also less insecure.



Sandy testified that she encouraged Kaitlyn to have a relationship with Cary. And according to Kaitlyn, Sandy does not say negative things about Cary.



Cary testified that she was not sure when Kaitlyn began her involvement in 4-H but that her involvement intensified in the 2 years leading up to trial. She stated that her complaint about Kaitlyn's 4-H activity is that she is not consulted on anything related to it. She also testified that she is treated like an outsider at the 4-H shows but does her best to be there to support Kaitlyn.



Cary testified that Kaitlyn does not come up to her when she sees Cary at a show; she must approach Kaitlyn.



Cary testified that she had discussions with Kaitlyn about spending more time with Justin both before and after Justin filed his complaint for modification in May 2021. She stated that she discussed the possibility of Kaitlyn spending more time with Justin in the summer. Cary testified she knew how important spending more time with Justin was to Kaitlyn. Cary also agreed that Kaitlyn is mature and intelligent when she speaks her mind.



Cary testified that when Kaitlyn did not return to her home in June 2022, she contacted Justin and insisted that Kaitlyn return home. She testified that Justin told her that he would not force Kaitlyn to return to Cary's home and he was honoring Kaitlyn's wishes. Cary testified that it is wrong for Justin to not insist that Kaitlyn go to Cary's house for her custody time. However, Cary admitted that when Abigail was 17 years old, she refused to spend parenting time with Justin. Cary told him that Abigail had her own thoughts and feelings. She also told him that if he could not accept that Abigail wanted to stay with her, that was something he needed to deal with himself.



Cary believed that Justin had wrongfully influenced Kaitlyn's testimony and pressured her to testify against Cary. She felt that Kaitlyn had been "corrupted" by Justin. Cary also testified that she believed Justin's hatred of her impacted his decision to file for modification of custody. She stated the complaint for modification was a "relentless, vengeful filing."



Following trial on the modification and contempt action, but before the court entered its order, Cary filed a second affidavit and application for an order to show cause (second contempt action) on June 26, 2023, alleging that since her previous contempt filing, she had still not received any parenting time. She also alleged that since the conclusion of trial on April 6, Justin had failed to take Kaitlyn to her therapist and had only taken her to two family counseling sessions.



On July 10, 2023, the trial court entered an "Order to Modify Decree and Order Re: Contempt" regarding Justin's amended complaint for modification and Cary's first contempt action. The court found that there had been a material change in circumstances that warranted a modification of custody and that it was in Kaitlyn's best interests to have the custody arrangement modified. The court awarded Justin sole physical custody of Kaitlyn. It also found that each party should pay his or her own attorney fees. Regarding Cary's first contempt action, the court found she failed to prove by clear and convincing evidence that Justin had willfully violated the custody provisions of the decree and denied her affidavit and application to show cause.



On August 8, 2023, Cary filed a notice of appeal from the July 10 "Order to Modify Decree and Order Re: Contempt." On August 11, the trial court entered a "Dismissal of Application for Show Cause," dismissing Cary's second contempt action, finding it no longer had jurisdiction due to Cary's August 8 notice of appeal. Cary timely filed an appeal from that decision. As previously noted, Cary's two appeals have been consolidated for our consideration.



ASSIGNMENTS OF ERROR



Cary assigns the trial court erred in: (1) finding Justin proved the occurrence of a material change in circumstances to warrant a modification in physical custody, (2) finding that Kaitlyn's desire to reside with Justin was based on sound reasoning and the decision was not made in haste, (3) finding that Cary failed to show by clear and convincing evidence that Justin was willfully

violating the decree, (4) finding that each party should pay their own attorney fees, and (5) finding that it did not have jurisdiction to hear a contempt action while the present matter was on appeal.



STANDARD OF REVIEW



Modification of a judgment or decree relating to child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and will be affirmed absent an abuse of discretion. Mann v. Mann, 316 Neb. 910, 7 N.W.3d 845 (2024). The award of attorney fees in an action for modification of a marital dissolution decree is reviewed under the same standard. Id. But 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. Id.



In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed is reviewed for abuse of discretion. Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.

Affirmed