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Harlow v. Lewis4/5/2005
(Not Designated for Permanent Publication)
INTRODUCTION
David E. Harlow appeals from an order from the district court for Sarpy County modifying a decree of paternity by giving David and Michelle J. Lewis alternating primary care of their minor daughter, Skye S. Harlow, on a monthly basis. On appeal, David argues that the court erred in modifying the decree, given the court's finding that a material change in circumstances had not occurred. For the reasons set forth below, we reverse, and remand with directions.
BACKGROUND
David and Michelle are the parents of Skye, born August 7, 1997. On February 2, 1999, David filed a petition at law stating that Skye currently resided with him, requesting that the court determine that he is Skye's father, and seeking child support for Skye.
On October 22, 1999, a decree of paternity was entered, determining that David is Skye's father and awarding David permanent custody of Skye. Because Michelle's address was unknown at that time, the court did not order Michelle to pay child support.
On February 2, 2000, the court entered an order modifying the decree to award Michelle visitation with Skye and ordering Michelle to pay child support in the amount of $140 per month.
On May 3, 2001, the court modified the decree, pursuant to a joint stipulation by the parties, awarding David and Michelle joint custody of Skye, with primary possession awarded to David, subject to Michelle's visitation rights of two evenings during the week and every other weekend. The court continued to order Michelle to pay child support in the amount of $140 per month.
On May 16, 2002, Michelle filed a motion to modify the decree, seeking primary possession of Skye with reasonable visitation rights for David. Michelle stated that a material change in circumstances had occurred since the order of May 3, 2001, in that David regularly and excessively abuses alcohol and, when doing so, is verbally abusive in the presence of Skye. Michelle also alleged that David's employment is irregular due to his abuse of alcohol.
On July 18, 2002, David filed an answer and cross-petition. In that answer, David denied Michelle's allegations and requested that Michelle's motion be denied. In his cross-petition, David asked that Michelle's child support obligation be reviewed for consistency with the current Nebraska Child Support Guidelines.
On January 31, 2003, the court entered an order appointing a guardian ad litem for Skye.
On May 25, 2004, trial on Michelle's petition to modify was held. Gregory Pivovar, Skye's guardian ad litem, testified that he had interviewed David, Michelle, and Skye. Pivovar testified that David told him that David had recently moved in with his mother because his house had been foreclosed on. Pivovar testified that David stated that he was currently laid off from his job as an electrician.
Pivovar stated that he had viewed Skye's interaction with both Michelle and David. Pivovar testified that Michelle and Skye get along very well and seem very well bonded. Pivovar stated that the interaction between David and Skye was always appropriate and that Skye responds to any direction given to her by David. Pivovar also stated that Skye is very affectionate with David.
Pivovar stated that he viewed Michelle's prior residence and found that it was very appropriate and had a considerable amount of things for Skye. Pivovar testified that he had attempted to view David's residence, but was unable to catch David at home. Pivovar testified that David's life had become "a little bit unstable" since the last court proceeding, because Dav
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