State on behalf of Dawn M. v. Jerrod M. ( 2015 )

Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF DAWN M. v. JERROD M. 835
Cite as 22 Neb. Ct. App. 835
State of Nebraska on behalf of Dawn M.,
a minor child, appellee, v. Jerrod M.,
appellee, and Amber M., appellant.
___ N.W.2d ___
Filed April 7, 2015. No. A-14-607.
1. Child Custody: Appeal and Error. Child custody determinations are matters ini-
tially entrusted to the discretion of the trial court, and although reviewed de novo
on the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Child Custody. In addition to the statutory factors relating to the best interests
of the child, a court making a child custody determination may consider matters
such as the moral fitness of the child’s parents, including the parents’ sexual
conduct; respective environments offered by each parent; the emotional relation-
ship between child and parents; the age, sex, and health of the child and parents;
the effect on the child as the result of continuing or disrupting an existing rela-
tionship; the attitude and stability of each parent’s character; parental capacity
to provide physical care and satisfy educational needs of the child; the child’s
preferential desire regarding custody if the child is of sufficient age of compre-
hension, regardless of chronological age, and when such child’s preference is
based on sound reasons; and the general health, welfare, and social behavior of
the child.
3. Modification of Decree: Child Custody: Evidence: Time. Evidence of a custo-
dial parent’s behavior during the year or so before the hearing on the motion to
modify is of more significance than the behavior prior to that time. The focus is
on the best interests of the child now and in the immediate future, and how the
custodial parent is behaving at the time of the modification hearing and shortly
prior to the hearing is therefore of greater significance than past behavior when
attempting to determine the best interests of the child.
4. Judgments: Words and Phrases. A judicial abuse of discretion requires that
the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a
litigant of a substantial right and a just result.
5. Evidence: Appeal and Error. Where credible evidence is in conflict on a mate-
rial issue of fact, 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.
6. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Howard County: Karin
L. Noakes, Judge. Affirmed.
James A. Wagoner for appellant.
Charles R. Maser for appellee Jerrod M.
Decisions of the Nebraska Court of Appeals
836 22 NEBRASKA APPELLATE REPORTS
Moore, Chief Judge, and Inbody and Pirtle, Judges.
Pirtle, Judge.
INTRODUCTION
Amber M. appeals the custody determination, made by the
district court for Howard County, which awarded primary
physical custody of the minor child, Dawn M., to Jerrod M.,
subject to parenting time as provided in the parenting plan.
The court also ordered Amber to pay child support to Jerrod
and denied Amber’s application to move out of the State of
Nebraska with Dawn. For the reasons that follow, we affirm.
BACKGROUND
Dawn was born in November 2006 and shares a last name
with her mother, Amber. Dawn’s father, Jerrod, was not aware
of Dawn’s birth until a year or two later, when he was served
with notice that he was named as her father in a paternity case.
Jerrod has a criminal history and has been incarcerated for
most of Dawn’s life. Amber also has a criminal history, but has
been incarcerated only for short periods of time.
Janet S., Amber’s mother, provided a home and daily care
for Dawn for most of Dawn’s life. Amber resided with Dawn
and Janet for periods of time, but not continuously. In the
summer of 2012, Amber contacted Lori P., Jerrod’s mother, to
see if she would take care of Dawn, and Dawn was removed
from Janet’s home. Dawn spent the summer of 2012 and the
2012-13 school year with Lori at her home in Smith Center,
Kansas. In September 2012, Amber signed a consent form
giving Lori and her husband “physical care” of Dawn and the
authority to consent to “any medical, dental, surgical, emer-
gency treatment and / or [the] release of medical information”
related to Dawn. Dawn returned to Janet’s home with Amber
after the end of the 2012-13 school year in Smith Center.
Dawn’s school records indicate she struggled in some areas
in school in Smith Center and noted areas where she needed
to improve.
In August 2013, Dawn began living with Jerrod, and on
August 20, a temporary order was entered granting Jerrod
temporary custody. Dawn has resided with Jerrod since that
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF DAWN M. v. JERROD M. 837
Cite as 22 Neb. Ct. App. 835
time. Jerrod filed a motion to modify custody, parenting time,
and child support on August 21. During the 2013-14 school
year, Dawn attended Banner County School. She demonstrated
some improvement, but had some trouble in certain areas, and
Jerrod decided to hold her back to repeat the first grade.
In January 2014, Amber moved to Riverdale, Utah, to live
with her boyfriend, who is now her fiance. Amber filed a com-
plaint to modify on January 13, and she filed a request to move
out of the state with Dawn on February 3. She had visits with
Dawn 5 to 10 times at Janet’s home between September and
December 2013, and she has not seen Dawn in person since
December 2013. Amber has missed scheduled visits, but she
has spoken with Dawn on the telephone.
The parties’ complaints regarding custody, child support,
and parenting time, and Amber’s request to move out of the
state, were addressed at trial on June 2, 2014. The parties stipu-
lated that there had never been a permanent order establishing
custody or parenting time and that the trial was held for that
purpose. The court was also tasked with deciding whether to
modify the child support order and, if Amber was awarded
custody, whether she would be allowed to move out of the state
with Dawn.
The court found that neither parent had been consistently
present in Dawn’s life, but that Jerrod has had day-to-day
contact with her and has provided consistent care for her for
the 10 months preceding the hearing. The court was “greatly
concerned” with Jerrod’s past criminal history, especially his
convictions for assaultive behavior. However, the court found
there was no evidence that indicated Dawn had been abused
or placed in a dangerous situation since she was placed with
Jerrod. The court found that Jerrod was taking the appropri-
ate steps toward stability and providing for Dawn, including
maintaining steady employment and providing for her physi-
cal care and educational needs. Ultimately, the court found it
was in Dawn’s best interests that Jerrod be awarded custody,
subject to Amber’s parenting time as set forth in the parent-
ing plan. The court also ordered Amber to pay child support
in the amount of $71 per month starting July 1, 2014. The
Decisions of the Nebraska Court of Appeals
838 22 NEBRASKA APPELLATE REPORTS
court denied Amber’s motion to move Dawn out of the State
of Nebraska.
ASSIGNMENTS OF ERROR
Amber asserts the court abused its discretion in awarding
custody to Jerrod. Amber also asserts the district court erred
in failing to make any specific findings that Dawn can be ade-
quately protected from harm and in failing to impose any limits
reasonably calculated to protect Dawn, because Jerrod was
previously convicted of a charge of domestic assault. Amber
asserts the court erred in denying her request to move out of
the State of Nebraska with Dawn and in devising a parenting
plan that she deems unworkable.
STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Collins v. Collins, 21 Neb. Ct. App. 161, 837 N.W.2d 573 (2013).
ANALYSIS
Jerrod’s Assault Conviction.
Amber asserts the trial court erred by granting custody
to Jerrod without making specific findings pursuant to Neb.
Rev. Stat. § 43-2932 (Reissue 2008), as he had been previ-
ously convicted of domestic assault. She asserts the court’s
implicit findings that granting custody to Jerrod was appropri-
ate does not satisfy the statute’s requirement of explicit find-
ings. She referred to Jerrod’s previous charge for domestic
assault against his estranged wife and asserted that the trial
court failed to make written findings that Dawn would be
adequately protected in Jerrod’s care.
Neb. Rev. Stat. § 43-2929 (Cum. Supp. 2014) states that a
parenting plan shall serve the best interests of the child pursu-
ant to Neb. Rev. Stat. §§ 42-364, 43-2923, and 43-2929.01
(Cum. Supp. 2014). Section 43-2929(1)(a) and (b)(ix) pro-
vides that the parenting plan should assist in developing a
restructured family that serves the best interests of the child
by accomplishing the parenting functions and should include
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF DAWN M. v. JERROD M. 839
Cite as 22 Neb. Ct. App. 835
“[p]rovisions for safety when a preponderance of the evidence
establishes child abuse or neglect, domestic intimate partner
abuse, unresolved parental conflict, or criminal activity which
is directly harmful to a child.”
Section 43-2932 provides guidance for when limitations
should be included in the parenting plan for the protection of
the child or the child’s parent. Section 43-2932(1)(b) states that
if a parent is found to have engaged in any activity specified in
subsection (1)(a), such as domestic intimate partner abuse, then
“limits shall be imposed that are reasonably calculated to pro-
tect the child or child’s parent from harm.” Section 43-2932(3)
states that if a parent is found to have engaged in any activity
specified in subsection (1), the court “shall not order legal or
physical custody to be given to that parent without making
special written findings that the child and other parent can
be adequately protected from harm by such limits as it may
impose under such subsection.”
Section 43-2923(2) states that when a preponderance of the
evidence indicates domestic intimate partner abuse, the best
interests of the child require a parenting and visitation arrange-
ment that provides for the safety of the “victim parent.”
In the present case, the domestic abuse was between Jerrod
and a third party. While it is true that Jerrod was convicted of
domestic assault, the conviction was the result of an incident
with Jerrod’s estranged wife. There is no evidence that the
incident involved Amber. Section 43-2932(3) refers to protec-
tion of “the child and other parent” when a parent has engaged
in domestic abuse. Accordingly, we conclude that § 43-2932
applies to instances where domestic abuse occurred between
the parents of the child or children at issue, where it is neces-
sary to ensure that there is no future domestic abuse to the
“other parent.”
If there has been no domestic intimate partner abuse
between the parents, there is no reason to include provisions
to protect the child or the other parent. There is no allega-
tion that Amber was abused or that there was any violence
involved when transferring the child for visits. Accordingly,
§ 43-2932 is inapplicable, and it was not necessary for the
court to make specific written findings pursuant to the statute
Decisions of the Nebraska Court of Appeals
840 22 NEBRASKA APPELLATE REPORTS
before awarding Jerrod custody. This assignment of error is
without merit.
Award of Custody to Jerrod.
Amber asserts the trial court erred in awarding custody of
Dawn to Jerrod. According to § 43-2923(1), the best interests
of the child require a parenting arrangement which provides
for a child’s safety, emotional growth, health, stability, and
physical care and regular and continuous school attendance and
progress. In determining custody and parenting arrangements,
the court shall consider the best interests of the minor child,
which shall include, but not be limited to, consideration of the
foregoing factors listed in § 43-2923(6):
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronologi-
cal age, when such desire and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member . . . and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
[2] In addition to the statutory factors relating to the best
interests of the child, a court making a child custody determi-
nation may consider matters such as the moral fitness of the
child’s parents, including the parents’ sexual conduct; respec-
tive environments offered by each parent; the emotional rela-
tionship between child and parents; the age, sex, and health
of the child and parents; the effect on the child as the result
of continuing or disrupting an existing relationship; the atti-
tude and stability of each parent’s character; parental capac-
ity to provide physical care and satisfy educational needs of
the child; the child’s preferential desire regarding custody if
the child is of sufficient age of comprehension, regardless of
chronological age, and when such child’s preference is based
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF DAWN M. v. JERROD M. 841
Cite as 22 Neb. Ct. App. 835
on sound reasons; and the general health, welfare, and social
behavior of the child. Collins v. Collins, 21 Neb. Ct. App. 161, 837
N.W.2d 573 (2013).
Amber asserts that in light of Jerrod’s history of criminal
activity and his lack of involvement in Dawn’s life prior to
2013, Jerrod is not the proper party to have custody of Dawn.
She asserts additional facts in support of her position, includ-
ing the following: Jerrod did not acknowledge paternity until a
case was filed against him in 2007, and Dawn does not share
his last name. Jerrod did not regularly pay child support after it
was ordered in November 2008. While Dawn was in Amber’s
custody, three attempts to facilitate visitation with Jerrod were
unsuccessful. At the time of trial, Jerrod did not have a driver’s
license as a result of a driving under the influence conviction
in 2011. Amber asserts the trial court disregarded these facts
and other “disabilities” which would inhibit Jerrod’s ability to
provide for Dawn in the future.
[3] In Schrag v. Spear, 22 Neb. Ct. App. 139, 849 N.W.2d 551
(2014), reversed on other grounds 290 Neb. 98, 858 N.W.2d
865 (2015), this court considered the behavior of a parent
in a case where modification of child custody was at issue.
We noted that Nebraska courts have held that evidence of a
custodial parent’s behavior during the year or so before the
hearing on the motion to modify is of more significance than
the behavior prior to that time. Id. The focus is on the best
interests of the child now and in the immediate future, and
how the custodial parent is behaving at the time of the modi-
fication hearing and shortly prior to the hearing is therefore
of greater significance than past behavior when attempting to
determine the best interests of the child. Id. See, also, Hoins
v. Hoins, 7 Neb. Ct. App. 564, 584 N.W.2d 480 (1998). Although
this case is not a modification, as permanent custody had not
been previously decided, the standard for determining a child’s
best interests remains the same in an initial custody determina-
tion. § 43-2923. See, also, Schrag v. Spear, supra; Collins v.
Collins, supra.
Amber’s recitation of the above facts is supported by the
record. However, the record also shows that Jerrod had made
significant changes in his life and demonstrated a willingness
Decisions of the Nebraska Court of Appeals
842 22 NEBRASKA APPELLATE REPORTS
to provide for Dawn in the months preceding the custody hear-
ing. It is true that he was incarcerated off and on throughout
Dawn’s life and that he was not involved in her day-to-day
care until he gained temporary custody in 2013. However, the
record shows he was not made aware of his paternity until
he was served in prison with notice of a paternity case filed
against him. Jerrod testified that his driver’s license had been
revoked, but that he was eligible at the time of the hearing to
get it reinstated. The record shows that since August 2013,
he has provided a safe and stable home and cared for Dawn’s
educational, emotional, and physical needs. He moved from
St. Paul to Harrisburg, Nebraska, to pursue a job opportunity
and is the head foreman at a mill. Through this job, Jerrod was
given housing for his family free of charge in a five-bedroom
home and was scheduled to become eligible for insurance ben-
efits after 6 months of employment.
Prior to this case, Dawn was in Amber’s custody, but a
significant portion of her life was spent with her maternal and
paternal grandmothers. The record shows that Amber resided
with Dawn at times, but that at other times, she was left in
the care of Janet, Amber’s mother, or Lori, Jerrod’s mother.
Amber asked Lori to care for Dawn in Smith Center from
September 2012 to June 2013, because Amber was having
problems with the father of her youngest two children. During
that time, Amber provided Lori and her husband a power of
attorney to make decisions on Dawn’s behalf. Jerrod testified
that he had some contact with Dawn while she resided with
his mother. Dawn was nervous at first, but then warmed up to
him. Jerrod testified that he was told numerous times by Amber
and her family that he was not welcome in Dawn’s life. Janet
testified that Jerrod was, in fact, welcome, but that he had
not taken advantage of opportunities to see Dawn. However,
Janet’s credibility was brought into question when she denied
making a “Facebook” entry stating that she had “raised that
girl [Dawn] from birth,” and a copy of the alleged entry was
entered into the record.
After Jerrod gained temporary custody of Dawn in August
2013, Amber did not attend all of the scheduled visitation
times. Both Amber and Jerrod testified that there were times
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF DAWN M. v. JERROD M. 843
Cite as 22 Neb. Ct. App. 835
Amber was scheduled to pick up Dawn for visits, but that she
failed to do so. Amber’s last visit with Dawn was in December
2013, and since that time, she had only had telephonic contact
with her. Amber asserts that Jerrod caused the visitation lapses
between November and December 2013, because he moved
from St. Paul to Harrisburg. However, the record shows that in
January 2014, Amber moved with her two youngest children,
Dawn’s half siblings, to Utah to live with her fiance, a distance
far more likely to significantly affect visitation than a move
within the State of Nebraska.
Jerrod testified that Dawn got behind in her schoolwork
while she resided in St. Paul and that she had made marked
improvement while attending Banner County School after
moving to Harrisburg. Notwithstanding that improvement,
Dawn was to be held back in first grade for the 2014-15 aca-
demic year. The trial court found that Jerrod had made a “dif-
ficult and mature decision” which demonstrated a commitment
to Dawn’s education and showed that he was acting in her
best interests.
[4,5] A judicial abuse of discretion requires that the reasons
or rulings of a trial judge be clearly untenable, unfairly depriv-
ing a litigant of a substantial right and a just result. Collins v.
Collins, 21 Neb. Ct. App. 161, 837 N.W.2d 573 (2013). Where
credible evidence is in conflict on a material issue of fact, 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. It is clear that
the court considered the factors involved in determining paren-
tal fitness and the child’s best interests when deciding the issue
of permanent custody. We find the trial court did not abuse its
discretion in granting custody to Jerrod.
Removal From State of Nebraska.
[6] Amber asserts the trial court abused its discretion
in denying her motion to remove Dawn from the State of
Nebraska to live with her, her fiance, and Dawn’s younger
half siblings in Utah. Having found that the trial court did not
err in finding Jerrod was the appropriate parent to have cus-
tody of Dawn, we need not address this assignment of error.
Decisions of the Nebraska Court of Appeals
844 22 NEBRASKA APPELLATE REPORTS
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d
868 (2013).
Parenting Plan.
Amber asserts the parenting plan created by the court is
“unworkable” and punishes her for moving out of the state.
She states the court gave her “use-it-or-lose, alternating week-
end visits when the court knows the distance barriers and lack
of license to transport by [Jerrod].” Brief for appellant at 14.
She also states that the plan is contrary to the Parenting Act,
but does not provide any legal authority or reasoning to support
her conclusion.
The parenting plan Amber proposed at the custody hear-
ing allowed for extended summer visitation each year from
June 1 to August 1, with extended time over the holidays.
Jerrod testified that the proposed plan was reasonable and that
he would be open to Amber’s receiving the same proposed
visitation time if he were granted custody. He also testified that
he was willing to meet Amber halfway between Harrisburg and
Amber’s residence in Utah to transfer Dawn. Jerrod testified
that Dawn would like to play softball and that he would like
her to be able to do so during the summer holidays, if it does
not interfere too much with summer parenting time.
In the parenting plan, the trial court ordered a visitation
schedule which consists of alternating weekends, alternat-
ing holidays, and an extended time period over the summer,
which is typical of many parenting plans. The court’s plan
provides that Christmas is defined as the time after the child
is excused from school until December 27. The New Year’s
holiday begins on December 27 and ends the evening before
Dawn is scheduled to return to school. This allows both par-
ents to have an extended period with the child during the holi-
day season. The court-ordered plan granted Amber 6 weeks
of parenting time during the summer, which does not greatly
differ from the approximately 8 weeks of parenting time she
provided for in the proposed plan.
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF DAWN M. v. JERROD M. 845
Cite as 22 Neb. Ct. App. 835
Presumably, Amber’s assessment that the plan is “unwork-
able” stems from her inability to see Dawn on alternating
weekends, because Amber resides in Utah. The court acknowl-
edged that Amber’s residence in Utah would make it unlikely
that she would exercise her weekend parenting time on a regu-
lar basis, yet it still provided the possibility for her to use that
time if she were so inclined. The record shows that Amber’s
mother and stepfather reside in St. Paul and that the father of
her two youngest children presumably still resides in or around
Kearney, Nebraska. These factors, in addition to Dawn’s con-
tinued presence in Nebraska, may make Amber more likely
to return to Nebraska occasionally on weekends. The ordered
schedule actually allows Amber the potential for more time
with Dawn during the school year than her own proposed plan,
which did not allow for weekend visitation during the school
year, except on holidays.
A judicial abuse of discretion requires that the reasons or
rulings of a trial judge be clearly untenable, unfairly depriv-
ing a litigant of a substantial right and a just result. Collins v.
Collins, 21 Neb. Ct. App. 161, 837 N.W.2d 573 (2013). Upon our
review of the record, we find the trial court did not abuse its
discretion in creating the ordered parenting plan.
CONCLUSION
After our de novo review of the record, we conclude that
the trial court did not abuse its discretion in granting custody
to Jerrod and that the court was not obligated to make specific
written findings that Dawn and Amber would be adequately
protected from harm. Having found that granting custody in
favor of Jerrod was appropriate, we need not address Amber’s
assignment of error regarding the removal of Dawn from the
State of Nebraska. We find the trial court did not abuse its dis-
cretion in the creation of the ordered parenting plan.
Affirmed.