Date: 06-07-2022

Case Style:

COURTNEY L. CALLAHAN V. SPENCER W. GALAWAY

Case Number: A-21-629

Judge:

Francie C. Riedmann

RYAN C. CARSON

Court:

IN THE NEBRASKA COURT OF APPEALS

On appeal from The District Court for Buffalo County

Plaintiff's Attorney: Shane M. Cochran

Defendant's Attorney:

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Description:

Lincoln, NE - Paternity lawyer represented appellant with appealing the order establishing his paternity of the child.

Galaway and Callahan are the parents of a minor child born in December 2019. In May
2020, Callahan filed a complaint to establish Galaway’s paternity of the child and asked the court
to award her legal and physical custody of the child, subject to Galaway’s parenting time, and child
support. In a temporary order entered in June 2020, the district court awarded the parties joint legal
custody but granted physical custody to Callahan and parenting time to Galaway every other
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weekend from Friday evening until Sunday evening and every Wednesday evening from 5:30 until
7:30. Galaway was also ordered to pay temporary child support of $491 per month.
Trial on the issues of custody, parenting time, and child support occurred in May 2021.
The evidence established that Galaway and Callahan met in October 2018. Galaway moved in with
Callahan in her mother’s house shortly before the child was born. After the birth, Callahan took
12 weeks off of work for maternity leave, and Galaway took off the month of December. The
parties agreed that during that time, Galaway assisted with changing the child’s diapers and giving
her baths, but Callahan testified that she handled the majority of the parenting duties and that she
had been the child’s primary caregiver since her birth. Once Galaway returned to work in January
2020, he commuted approximately 90 minutes from Callahan’s home in Kearney to his job in
York. During that time, he also assisted in caring for Callahan’s older daughter, who was 8 years
old at the time of trial, including taking her to school in the mornings. The parties tried to make
their relationship work, but once they ended it in May 2020, Galway moved back to York while
Callahan remained in Kearney.
As the district court recognized in its order, the parties each acknowledged that there were
impediments to their relationship. Galaway fathered a child with another woman, and that child
was born in January 2020, approximately one month after the child he shares with Callahan was
born. Similarly, Callahan was involved with another man while she and Galaway were together,
and at the time of trial, she was in a relationship with that man. Despite these impediments, the
parties each testified that they have been able to communicate and work together for the sake of
their child. To this end, during the pendency of the case, they agreed to modify the court’s
temporary order such that Galaway had parenting time with the child every other Wednesday
evening through Sunday evening, and they agreed that that arrangement was working well.
At the time of trial, Callahan was working as a receptionist at a medical facility, Monday
through Friday from 8 a.m. until 5 p.m., earning $14.32 per hour. She owns a three bedroom home
in Kearney and lives with her current boyfriend and the minor child at issue here. She also shares
custody of her older child with the child’s father, who lives 4 blocks from her. She testified that
her boyfriend and the minor child get along well and that the minor child and her older daughter
are “best friends.” Callahan testified that the minor child follows her older daughter everywhere
she goes, and that the girls play together, take baths together, and are inseparable. They even
converted one bedroom at her house to a playroom because her older daughter wanted to share a
bedroom with the minor child.
Callahan was not opposed to Galaway having the minor child every other week in the
summertime, but she was concerned about when the child begins kindergarten. The parties agreed
that joint physical custody would not be feasible at that time because of the distance between them.
Callahan was asked why she opposed a week on, week off arrangement currently, and she
explained that she has observed her older daughter struggle with dividing time between her father
and Callahan, testifying that “it’s emotional” and that she feels like her older daughter “doesn’t
have a home” because she is switching back and forth so frequently. Therefore, she wanted the
child she shares with Galaway to feel like she has a place to call home.
At the time of trial, Galaway was living and working in York. He works as a mechanic and
shop manager at a transportation company earning $24 per hour. He generally works Monday
through Friday, 8 a.m. until 5 p.m., but his hours are flexible so he can take time off and make it
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up at another time if necessary. He also participates in stock car racing, and during racing season,
which occurs in the summer months, he races on Thursday and Saturday nights. The races are
family friendly, however, with other children present, and his mother testified that they purchased
ear muffs for the minor child so she can attend the races with Galaway’s family.
Galaway was living in a five bedroom house he purchased in late April 2020. He lives with
his younger child and the child’s mother, but they each testified that they are not romantically
involved and have separate bedrooms. He also has a roommate who lives in the basement of the
home. His younger child’s mother helps provide child care for the minor child when Galaway is
working because her work schedule does not frequently overlap with Galaway’s. Even though they
live together, Galaway pays her $255 per month pursuant to a temporary child support order.
Galaway requested joint physical custody of the minor child with a week on, week off schedule
until the child begins kindergarten. At that time, he would like primary physical custody so the
minor child and his younger child would be able to attend school together.
Galaway’s tax returns from 2017, 2018, and 2019 were received into evidence at trial. For
each of those years, he earned income beyond his full-time employment from side jobs such as
harvesting, auto repair, and snow removal. He acknowledged that he did not claim some of his
additional earnings, such as those from auto repair, on his tax returns because it was not a
significant amount of money. He also acknowledged that he receives sponsorships from racing,
but testified that he does not earn an income on racing and instead the sponsors cover certain costs
like new tires on his car, fuel, or race admission fees. He was asked whether he claimed any of the
sponsorships, either money or products, as income on his tax returns, and he responded that he had
not but that he was going to do so for the first time this year. He also explained that he typically
uses his vacation time from work to do some of his side jobs, but now that he has children, he is
not going to do the side jobs as often in order to spend time with his children and use his vacation
time to travel with his children.
The district court entered a written order after trial establishing Galaway’s paternity of the
minor child. The court found that both parties were fit parents who care about their child and
provide for her safety and well-being. Thus, the parties were awarded joint legal custody. The
court explained that while it carefully considered Galway’s request for joint physical custody, it
recognized the parties’ acknowledgment that this arrangement would not be feasible once the child
reaches school-age given the distance between Kearney and York. The court noted that the
evidence showed that Galaway had been actively involved in the child’s life and that he cares for
his daughter very much, but that Callahan had been the primary caretaker of the child since her
birth. Thus, the district court awarded primary physical custody to Callahan, finding that she was
best able, “however slight,” to continue to provide for the child’s emotional growth and well-being.
The court also reasoned that this arrangement was in the best interests of the child given her age,
the importance of fostering a relationship between the child and parents, and the need to maintain
stability for the child.
Galaway was awarded parenting time every other weekend from Thursday evening until
Sunday evening until the child begins kindergarten. At that time, Galaway is to have parenting
time every other weekend from Friday evening until Sunday evening with the option to extend his
parenting time if there is no school on Friday or the following Monday. For the summer, the court
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awarded the parties week on, week off parenting time. Holidays were also divided between the
parties.
With respect to child support, the district court found that Galaway earns $24 per hour or
a gross monthly income of $4,160 from his full-time employment. It recognized that he is ordered
to pay $255 per month in child support for his other child. The court noted Galaway’s testimony
that he works a variety of other jobs during the year, including auto repair and snow removal, and
noted that his tax returns reflect gross income of $52,939 in 2019; $54,422 in 2018; and $47,167
in 2017. Thus, the court found it appropriate to utilize the average of these incomes to arrive at a
gross annual income of $51,509 or a gross monthly income of $4,292. As a result, Galaway was
ordered to pay $542 per month in child support with a 50 percent abatement for June, July, and
August due to having joint custody during those months.
Galaway subsequently filed a motion for new trial or motion to alter or amend. The court
granted the motion in part, modifying the parenting plan to provide Galaway with parenting time
every other weekend from Wednesday evening through Sunday evening, consistent with the
parties’ agreed modification of the temporary order during the proceedings. His motions were
otherwise overruled. Galaway timely appeals.
ASSIGNMENTS OF ERROR
Galaway assigns that the district court erred in (1) failing to award the parties joint physical
custody of the child until she reaches kindergarten age, (2) failing to award primary physical
custody to him once the child reaches kindergarten age, and (3) its determination of child support
by failing to use a joint custody worksheet and its calculation of his income.
STANDARD OF REVIEW
In a filiation proceeding, questions concerning child custody determinations are reviewed
on appeal de novo on the record to determine whether there has been an abuse of discretion by the
trial court, whose judgment will be upheld in the absence of an abuse of discretion. Tyler F. v.
Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020).
While a paternity action is one at law, the award of child support in such an action is
equitable in nature. State on behalf of Andrew D. v. Bryan B., 22 Neb. App. 914, 864 N.W.2d 249
(2015). A trial court’s award of child support in a paternity case will not be disturbed on appeal in
the absence of an abuse of discretion by the trial court. Id.
ANALYSIS
Physical Custody.
In his first two assignments of error, Galaway challenges the district court’s decision
awarding primary physical custody of the child to Callahan, both now and once the child reaches
kindergarten age. He asserts that the court should have awarded joint physical custody now and
that he should have received primary physical custody once the child begins kindergarten. We find
no abuse of discretion in the district court’s decisions.
The Parenting Act, Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp.
2020), requires that all custody and parenting time arrangements be determined based on the best
interests of the child. State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692
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(2019); § 43-2923(6). When determining the best interests of the child in deciding custody, a court
must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the
commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on
sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible
evidence of abuse inflicted on any family or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse. State on behalf of Kaaden S. v. Jeffery T.,
supra; § 43-2923(6). The Parenting Act also provides that the best interests of a child require a
parenting plan that provides for a child’s safety, emotional growth, health, stability, physical care,
and regular school attendance and which promotes a child’s continued contact with his or her
families and parents who have shown the ability to act in the child’s best interests. State on behalf
of Kaaden S. v. Jeffery T., supra; § 43-2923(3).
In addition to considering these statutory factors, our case law instructs that when making
determinations as to the allocation of parenting time that is in a child’s best interests, a trial court
should also consider the parties’ ability to communicate on issues such as transportation,
homework, discipline, medical and dental appointments, and extracurricular activities. State on
behalf of Kaaden S. v. Jeffery T., supra. Other relevant considerations include stability in the
child’s routine, minimization of contact and conflict between the parents, and the general nature
and health of the individual child. Id.
No single factor is determinative, and different factors may weigh more heavily in the
court’s analysis depending on the evidence presented in each case. Id. The one constant is that in
any proceeding involving a child, the best interests of the child shall be the standard by which the
court adjudicates and establishes any custody, parenting time, visitation, or other access
determinations as well as resolution of conflicts affecting each child. Id.; § 43-2921.
Here, the district court found that both parties are fit parents who love and care for their
child, and we agree. Despite the circumstances of their romantic relationship with each other, they
have worked together to modify the temporary order and agreed to a parenting time arrangement
that worked for them, which is commendable. We also agree with the district court that both
parents have been actively involved in the child’s life but that Callahan has been more of the
primary caretaker, although that is due, in some part, to the distance between Kearney and York
both at the time the parties lived together and afterwards. We understand the district court’s
reasoning for granting Callahan primary physical custody as it relates to the child’s young age and
need for stability as well as the understanding that a week on, week off arrangement would not be
feasible once the child enters kindergarten. Thus, the court’s desire to begin a schedule now that
is more easily maintained into the future is reasonable. This is particularly true here where Callahan
expressed concern that the minor child would struggle in a joint physical custody arrangement as
she has seen with her older child. A desire to maintain more stability and consistency also supports
the court’s decision to continue primary physical custody with Callahan, instead of Galaway, once
the child enters kindergarten.
In short, although the district court could have awarded the parties joint physical custody
or awarded primary physical custody to Galaway when the child begins kindergarten, it elected
not to do so and explained its reasoning for those decisions. The question is not whether we would
have awarded the same physical custody arrangement as did the district court, but whether the
district court’s decision constitutes an abuse of its discretion. A judicial abuse of discretion exists
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when a judge, within the effective limits of authorized judicial power, elects to act or refrains from
acting, and 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. Boyer v. Boyer, 24 Neb. App. 434, 889 N.W.2d 832 (2017). It was within the court’s
discretion to find that the child’s best interests would be served by awarding primary physical
custody to Callahan both now and once the child begins kindergarten. We therefore affirm the
court’s decisions regarding physical custody.
Child Support.
Galaway alleges that the district court’s child support calculation was erroneous for two
reasons. He first claims that the court should have calculated child support using worksheet 3, the
joint physical custody worksheet, rather than the sole custody worksheet, because of the number
of days of parenting time he received. Additionally, he argues that the court should have utilized
his 2020 income for child support purposes instead of an average of his income over the previous
3 years. We disagree with both of his arguments.
In general, child support payments should be set according to the Nebraska Child Support
Guidelines. State on behalf of Emery W. v. Michael W., 28 Neb. App. 956, 951 N.W.2d 177 (2020).
Neb. Ct. R. § 4-212 (rev. 2011) of the child support guidelines sets forth the application of
worksheet 3 as follows:
When a specific provision for joint physical custody is ordered and each party’s parenting
time exceeds 142 days per year, it is a rebuttable presumption that support shall be
calculated using worksheet 3. When a specific provision for joint physical custody is
ordered and one party’s parenting time is 109 to 142 days per year, the use of worksheet 3
to calculate support is at the discretion of the court. . . . For purposes of these guidelines, a
“day” shall be generally defined as including an overnight period.
Galaway attempts to calculate the number of days of parenting time he received, estimating
that the number “gets very close to the 142-night threshold for a rebuttable presumption” as a basis
for his argument that support should be calculated using worksheet 3. Brief for appellant at 33.
What is missing, however, is a specific provision for joint physical custody. Under both scenarios
outlined in § 4-212, use of worksheet 3 arises not only based upon the number of days of parenting
time each parent receives, but also when the court orders “a specific provision for joint physical
custody.”
We recognize that where a parenting plan effectively establishes a joint physical custody
arrangement, courts will so construe it, regardless of how prior decrees or court orders have
characterized the arrangement. See State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019). In prior cases, we have looked past the labels used by the trial court when
describing the physical custody arrangement and have focused instead on the actual terms of the
parenting plan adopted by the court, and where the child is spending roughly the same amount of
time at each parent’s residence, allowing both parents to exert continuous blocks of parenting time
for significant periods of time, we have found those arrangements meet the statutory definition of
joint physical custody. See id. Thus, it is the court’s allocation of parenting time that drives the
physical custody label, not the other way around. Id.
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Here, however, we do not find that the arrangement the district court ordered meets the
statutory definition of joint physical custody, nor does Galaway argue that it does. Although he
receives parenting time Wednesday through Sunday every other week, that amounts to a 4 day
block out of every 14 days, whereas Callahan received the other consecutive 10 days of that time
period. The arrangement in this case, therefore, is properly classified as primary physical custody
with Callahan. Accordingly, because there is no specific provision for joint custody, the court did
not err in failing to use worksheet 3 to calculate child support.
Galaway additionally argues that the court erred in averaging his income over a several
year period in order to calculate his income for child support purposes. He asserts that instead, the
court should have used his 2020 income, which he claims more accurately depicts his actual
income.
The child support guidelines provide that in calculating the amount of child support to be
paid, the court must consider the total monthly income, which is defined as income of both parties
derived from all sources, except all means-tested public assistance benefits which includes any
earned income tax credit and payments received for children of prior marriages and includes
income that could be acquired by the parties through reasonable efforts. Marshall v. Marshall, 298
Neb. 1, 902 N.W.2d 223 (2017); Neb. Ct. R. § 4-204 (rev. 2020).
The Nebraska Supreme Court has not set forth a rigid definition of what constitutes income,
but instead it has relied upon a flexible, fact-specific inquiry that recognizes the wide variety of
circumstances that may be present in child support cases. Marshall v. Marshall, supra. Thus,
income for the purposes of calculating child support is not necessarily synonymous with taxable
income. Id. We take this flexible approach in determining a person’s income for purposes of child
support, because child support proceedings are, despite the child support guidelines, equitable in
nature. Id. The child support guidelines provide that in the event of substantial fluctuations of
annual earnings of either party during the immediate past 3 years, the income may be averaged to
determine the percent of contribution of each parent. Gress v. Gress, 274 Neb. 686, 743 N.W.2d
67 (2007).
In the present case, Galaway argues that his 2020 earnings more accurately reflect his
income because his 2017, 2018, and 2019 tax returns include additional earnings from side jobs
that he testified he will no longer be working. Galaway did not testify that he was not going to do
side jobs at all; rather, he was asked whether it would be fair to say that he was “not going to do
those side jobs as much because [he was] going to spend more time with [his] kids,” and he agreed
that that would be a fair statement. Similarly, with respect to snow removal specifically, he
explained that typically he would receive a call asking if he was available to do snow removal
work in the winter, and now, if he has his children, he “won’t be as available as [he has] been” to
do snow removal work.
Galaway also admitted that he receives sponsorships from racing and that he has not yet
claimed those as income for tax purposes. There was no evidence presented as to the value of the
sponsorships.
We note that Galaway’s pay from his full-time employment of $24 per hour equates to a
monthly income of $4,160, and thus, the difference between that amount and the income utilized
by the district court of $4,292 is $132 per month. Given this slight difference combined with the
evidence that he may continue working side jobs on occasion and that he has unaccounted for
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sponsorships, we do not find that the district court abused its discretion in calculating Galway’s
income for child support purposes.

Outcome: The district court did not abuse its discretion in awarding primary physical custody of the parties’ minor child to Callahan or in its calculation of child support. We therefore affirm the court’s order.

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