Fales v. Fales ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/08/2018 12:08 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
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FALES v. FALES
Cite as 25 Neb. Ct. App. 868
Samuel E. Fales, appellee, v.
Sandy L. Fales, appellant.
___ N.W.2d ___
Filed May 1, 2018. No. A-17-645.
1. Divorce: Appeal and Error. In actions for dissolution of marriage, an
appellate court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial judge.
2. Child Custody: Appeal and Error. In child custody cases, where the
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 judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
3. Words and Phrases. The acts of abuse defined in the Protection from
Domestic Abuse Act are those committed against household members
and include attempting to cause or intentionally and knowingly causing
bodily injury and placing, by means of credible threat, another person in
fear of bodily injury.
4. ____. Threatening to cause or actually causing bodily injury to a spouse
or former spouse qualifies as domestic intimate partner abuse.
5. 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 Loup County: M ark D.
Kozisek, Judge. Judgment vacated, and cause remanded for
further proceedings.
Sara K. Houston for appellant.
Nathan T. Bruner and Loralea L. Frank, of Bruner Frank,
L.L.C., for appellee.
R iedmann and Bishop, Judges, and Inbody, Judge, Retired.
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FALES v. FALES
Cite as 25 Neb. Ct. App. 868
R iedmann, Judge.
Sandy L. Fales appeals from the order of the district court
for Loup County which dissolved her marriage to Samuel E.
Fales and granted custody of their minor child to Samuel.
Sandy argues on appeal that the court abused its discretion in
awarding Samuel custody. Because the district court failed to
make special written findings as required by Neb. Rev. Stat.
§ 43-2932(3) (Reissue 2016), we vacate the district court’s
order and remand the cause for further proceedings.
FACTUAL BACKGROUND
Sandy and Samuel were married in 2010, and their child,
Samuel Ellis Wayne Fales (Ellis), was born in May 2012. The
parties separated in the spring of 2015, and Samuel filed for
dissolution of the marriage in June 2015. Each party requested
custody of Ellis. In a temporary order, the district court awarded
custody of Ellis to Sandy and granted Samuel parenting time of
every other weekend, as well as 1 week per month.
At the March 2017 trial, evidence was presented as to the
strengths and weaknesses of the parties relating to their fitness
for custody of Ellis. Samuel operates the family cattle ranch
with his father and brother. He has lived in the same family
home since he was 8 years old, and his father lives nearby.
He described a caring, involved extended family. Samuel testi-
fied that he provides a stable environment for Ellis and that he
plays with Ellis while ensuring that Ellis naps, reads, attends
church, and helps with household chores.
Sandy stated that she first moved to the ranch shortly after
the parties married in 2010 and that she has been the primary
caregiver for Ellis and her 12-year-old daughter from a previ-
ous relationship. Sandy obtained an associate of arts degree
in 2010 and has pursued a career as a photographer, although
her earnings have been nominal. Sandy initially testified that
Samuel permitted her to have few friends and would not allow
her to work outside the home. However, she later acknowl-
edged that the ranch itself was rural and secluded but that
Samuel allowed her to go places, purchasing a car for her to
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drive, and that she did, in fact, participate in activities. Sandy
said she ultimately decided to leave the marriage in June 2015
after concluding that the marriage was no longer working and
that she and Samuel were constantly fighting. She described
the feeling of “walking on eggshells,” stating that Samuel con-
tinually yelled at her and called her names.
Sandy does not have a close relationship with her extended
family. When she first left the family home, she had a number
of short-term living arrangements, including a safe house and
a home owned by the man with whom she was involved at the
time. She and Ellis stayed with her mother for about 30 days
before her mother asked her to leave, after which she stayed
for several weeks at yet another safe house. Sandy testified that
she now resides in Colorado Springs, Colorado, with Ellis and
her daughter. Sandy is working toward earning a bachelor’s
degree at a local university.
Sandy explained that she had left the family home intermit-
tently beginning in April 2015, returning on some weekends
for photography engagements and to see Ellis. At some point,
Samuel learned that Sandy had become involved with a man in
Colorado and planned a permanent move there. There is no dis-
pute that a serious domestic incident occurred during Sandy’s
last visit to the family home in June. Becoming enraged at
Sandy’s refusal to allow him to read texts on her cell phone,
Samuel smashed the cell phone; handcuffed Sandy, who had
emerged wet and naked from the shower; and restrained her
on a bed. Ellis witnessed some of this disturbing scene, and
after Samuel led Ellis out of the room, he returned to the bed-
room where he reached for a loaded shotgun and held it under
his chin while threatening suicide. The incident resulted in
Samuel’s misdemeanor convictions for third degree assault and
“[a]ttempt of a class 3A or 4 felony,” as well as a 1-year pro-
tection order against him as to Sandy. Samuel is still serving a
48-month term of probation.
Samuel subsequently sought treatment from a clinical thera-
pist, who was a licensed independent mental health practi-
tioner. She treated him with cognitive therapy. The therapist
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testified that the disintegration of the marriage triggered in
Samuel post-traumatic stress disorder from earlier childhood
trauma, as well as a depressive episode. However, she testi-
fied that Samuel had made excellent progress. She described
Samuel as a “respected rancher” in the community. She stated
that he was now “extremely stable” and that she was very
confident he could deal with life changes. The therapist opined
that Samuel is “an excellent parent [and] deserves the right to
parent his child.”
Samuel asserted that Ellis’ health regularly deteriorated
while in Sandy’s care and that he often took Ellis to doctor
appointments following Ellis’ time with Sandy. Samuel testi-
fied that Ellis lost weight after Sandy first took him from the
family home and that he regained some of the weight while in
Samuel’s care. Ellis had a recurrent rash on his upper lip from
excess moisture on his lip for extended periods. Ellis’ family
physician diagnosed him with impetigo and regularly treated
him for a number of common ailments, such as rashes, cough,
elevated temperature, colds, and fever. Nonetheless, the physi-
cian stated that he could not attribute poor parenting as the
cause of Ellis’ several visits with the physician.
The district court found that both parents were fit and that
both had developed a strong bond with Ellis. However, the
court noted that Ellis required medical intervention about one-
half of the times that Samuel exercised his parenting time,
which was after Ellis spent time with Sandy. While acknowl-
edging that these medical problems did not necessarily imply
failure on Sandy’s part, the court found that Samuel was more
attentive to Ellis’ personal hygiene and physical needs. The
court pointed to Ellis’ weight loss while with Sandy, his recur-
ring impetigo, and an incident with head lice, as well as a
picture of Ellis’ exhibiting long, dirty fingernails and toenails,
which the court deemed a reflection on the lack of attention to
Ellis on Sandy’s part.
Turning to the evidence of domestic abuse, the court
noted that the June 2015 incident, while not the sole inci-
dent between the parties, “was by far the worst.” The court
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summarized other instances in which Samuel had thrown,
broken, or burned things and otherwise acted inappropriately.
The court found that there was credible evidence of abuse
inflicted by Samuel on Sandy, but no credible evidence of
child abuse or neglect.
The court stated that both parents are capable of parenting
Ellis and had the emotional maturity and financial ability to
raise Ellis and tend to his physical, emotional, and educational
needs. However, the court found that Samuel provided the
more stable environment. The court noted that Samuel and
his family provide a loving, nurturing environment for Ellis,
while Sandy has no close family ties and any friends she has in
Colorado are new with no known ties to Ellis. The court con-
sidered Ellis’ relationship with Sandy’s daughter and concluded
that, given the difference in age and sex, separating the half
siblings would not have a detrimental effect on Ellis.
The court rejected Sandy’s contention that she initially left
Ellis with Samuel because he would not permit her to take
Ellis. The court found that Sandy left Ellis with Samuel as “a
matter of convenience rather than a product of threats.” The
court further noted that Sandy’s move over 400 miles away
has impacted Samuel’s ability to visit with Ellis and that, in so
doing, Sandy had “placed her own agenda ahead of Ellis” with
little regard for the move’s effects on the strong relationship
between Samuel and Ellis.
In awarding custody of Ellis to Samuel, the court consid-
ered the fact that Samuel had committed domestic intimate
partner abuse. However, the court noted that Samuel had
continued counseling to deal with the issues, which may have
led to the incident of abuse, and that now “[h]e deals with
the breakdown of the parties’ marriage in a more mature and
reasonable manner.” The court also considered the lack of
credible evidence of child abuse or neglect by either party and
pointed to Sandy’s own parenting plan that suggested the par-
ties meet for visitation exchanges in person, which the court
felt indicated that she was not greatly concerned about contact
with Samuel. Because those exchanges would be in a public
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place, the court concluded that the parenting plan contained
reasonable limits calculated to protect Sandy from harm. The
parenting plan limited communication between the parties to
email or text unless otherwise agreed, and it prohibited them
from speaking negatively about the other parent or inquiring
about the other’s personal affairs through Ellis.
Sandy has timely appealed from this order.
ASSIGNMENT OF ERROR
Sandy asserts that the district court erred in awarding Samuel
sole legal and physical custody of Ellis.
STANDARD OF REVIEW
[1] In actions for dissolution of marriage, an appellate
court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial
judge. Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d
266 (2017). This standard of review applies to the trial court’s
determinations regarding custody, child support, division of
property, alimony, and attorney fees. Id. A judicial abuse of
discretion exists if the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposi-
tion. Id.
[2] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Schrag v. Spear, 290 Neb. 98, 858
N.W.2d 865 (2015).
ANALYSIS
[3,4] Sandy argues that awarding custody to Samuel con-
stituted an abuse of discretion because Samuel had committed
domestic intimate partner abuse against her. She asserts that
the district court failed to make the special written findings
required under § 43-2932(3) before custody is awarded to a
parent who has threatened an intimate partner with imminent
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Cite as 25 Neb. Ct. App. 868
bodily injury. Domestic intimate partner abuse includes “an
act of abuse as defined in section 42-903.” See Neb. Rev.
Stat. § 43-2922(8) (Reissue 2016). The acts of abuse defined
in the Protection from Domestic Abuse Act are those commit-
ted against “household members” and include “[a]ttempting to
cause or intentionally and knowingly causing bodily injury”
and “[p]lacing, by means of credible threat, another person in
fear of bodily injury.” See Neb. Rev. Stat. § 42-903(1)(a) and
(b) (Reissue 2016). Spouses and former spouses are considered
household members. See § 42-903(3). Thus, threatening to
cause or actually causing bodily injury to a spouse or former
spouse qualifies as domestic intimate partner abuse.
Through Sandy’s testimony and exhibits showing Samuel’s
misdemeanor convictions for third degree assault and “[a]ttempt
of a Class 3A or 4 felony,” she was able to show that Samuel
had committed domestic intimate partner abuse. That evidence
was not disputed by Samuel.
Section 43-2932(1)(b) provides in part: “If a parent is found
to have engaged in any activity specified by subdivision (1)(a)
of this section, limits shall be imposed that are reasonably
calculated to protect the child or child’s parent from harm.”
Section 43-2932(3) provides:
If a parent is found to have engaged in any activity speci-
fied in subsection (1) of this section, 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.
The parent found to have engaged in the behavior speci-
fied in subsection (1) of this section has the burden of
proving that legal or physical custody, parenting time,
visitation, or other access to that parent will not endanger
the child or the other parent.
When a parent has committed domestic intimate partner abuse,
as happened in this case, the obligations of § 43-2932 are
mandatory. See Flores v. Flores-Guerrero, 290 Neb. 248, 859
N.W.2d 578 (2015).
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FALES v. FALES
Cite as 25 Neb. Ct. App. 868
In the instant case, the district court found that “there is
credible evidence of abuse inflicted by Samuel on Sandy
as that term is defined at §42-903.” In contrast, the court
found “no evidence that Samuel ever acted inappropriately
with Ellis. His anger was directed at Sandy and never toward
Ellis.” In awarding custody to Samuel, the court stated that it
had considered Samuel’s domestic intimate partner abuse. The
court noted:
[Samuel] has counseled and continues counseling dealing
with issues that may have lead [sic] to the circumstances
of the domestic abuse. He now deals with the breakdown
of the parties’ marriage in a more mature and reasonable
manner. The court further considers that there has been
no credible evidence of child abuse or neglect of Ellis
by either party. [Sandy’s] own Parenting Plan suggests
that the parties meet in Sterling, Colorado for visitation
exchanges, implying no great concern on her part of
further domestic abuse or the need for an intermediary.
Meeting in a public place will most likely prevent [Sandy]
from being subject to any further abuse. Limitations on
the purpose and method of communication will decrease
the potential for conflict. The court finds that the limits in
the Parenting Plan are reasonably calculated [to] protect
[Sandy] from harm.
The court explicitly found that (1) Samuel had neither
abused nor neglected Ellis and, in fact, was consistently a
stable and loving parent to him, and (2) adequate protections
were made for Sandy’s protection. Sandy argues, however,
that the absence of special written findings that Ellis can be
adequately protected from harm constitutes an abuse of discre-
tion. We agree.
As set forth above, the order explicitly addresses the pro-
tection of only Sandy; it does not include any special written
findings that Ellis can be adequately protected from harm.
Section 43-2932(3) requires the court to make special writ-
ten findings as to the child and other parent. The Nebraska
Supreme Court has stated that this obligation is a mandatory
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Cite as 25 Neb. Ct. App. 868
directive. See Flores v. Flores-Guerrero, supra. Failure to
make such findings precludes the court from awarding legal or
physical custody to Samuel. See id.
Because the district court failed to comply with the statu-
tory requirement, its award of custody to Samuel constitutes
an abuse of discretion. See id. Therefore, we vacate its custody
determination and remand the cause for further proceedings on
the complaint. If Samuel is awarded any type of custody, the
district court’s order must include special written findings that
Ellis and Sandy can be adequately protected by any limitations
on custody, parenting time, and visitation that the court finds
necessary. See § 43-2932(3).
[5] In addition to her concerns about statutory compliance,
Sandy argues more generally that the district court wrongly
concluded that Ellis’ best interests were served in award-
ing custody to Samuel. However, our decision to reverse the
district court’s order because it was not in compliance with
§ 43-2932(3) obviates the need to consider this argument. An
appellate court is not obligated to engage in an analysis that
is not necessary to adjudicate the case and controversy before
it. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d
578 (2015).
CONCLUSION
Because of the district court’s failure to make special writ-
ten findings in compliance with § 43-2932(3), we vacate the
district court’s order awarding custody to Samuel and remand
the cause for further proceedings consistent with this opinion.
Judgment vacated, and cause remanded
for further proceedings.