Mark J. v. Darla B. ( 2014 )

Decisions of the Nebraska Court of Appeals
770 21 NEBRASKA APPELLATE REPORTS
CONCLUSION
In conclusion, we find that the trial court did not abuse its
discretion by allowing Michalski to testify as an expert over
Cox’s objection and allowing her testimony regarding strangu-
lation over his objection. Therefore, we affirm.
Affirmed.
Mark J., appellee, v. Darla B., formerly
known as Darla J., appellant.
___ N.W.2d ___
Filed February 11, 2014. No. A-13-394.
1. Modification of Decree: Appeal and Error. Modification of a dissolution decree
is a matter entrusted to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an abuse of discretion
by the trial court.
2. Divorce: Modification of Decree: Visitation. Visitation rights established by a
marital dissolution decree may be modified upon a showing of a material change
of circumstances affecting the best interests of the children.
3. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
4. Visitation. The party seeking to modify visitation has the burden to show a mate-
rial change in circumstances affecting the best interests of the child.
5. Visitation: Parent and Child. Visitation relates to continuing and fostering the
normal parental relationship of the noncustodial parent with the minor children of
a marriage which has been legally dissolved.
6. Visitation. The best interests of the children are primary and paramount consid-
erations in determining and modifying visitation rights.
7. Evidence: Appeal and Error. When the evidence is in conflict, an appel-
late 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.
8. Courts: Child Custody: Visitation. It is the responsibility of the trial court to
determine questions of custody and visitation of minor children according to their
best interests, which is an independent responsibility and cannot be controlled by
the agreement or stipulation of the parties or by third parties.
Appeal from the District Court for Garfield County: Karin
L. Noakes, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Decisions of the Nebraska Court of Appeals
MARK J. v. DARLA B. 771
Cite as 21 Neb. Ct. App. 770
Chris A. Johnson, of Conway, Pauley & Johnson, P.C., for
appellant.
John A. Wolf and Mark Porto, of Shamberg, Wolf, McDermott
& Depue, for appellee.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Inbody, Chief Judge.
INTRODUCTION
Darla B., formerly known as Darla J., appeals the order of
the Garfield County District Court modifying the decree dis-
solving her marriage to Mark J. and terminating her visitation
with the parties’ minor child, Jacey J.
STATEMENT OF FACTS
Darla and Mark’s marriage was dissolved by a decree of the
district court on May 17, 2005, in which Mark was awarded
custody of Jacey and Darla was awarded visitation. On May
4, 2009, Mark filed a petition for a modification of visita-
tion, alleging that visitation with Darla was “placing [Jacey]
in great harm” and requesting that visitation be returned from
unsupervised to supervised visitation at the recommendation of
Jacey’s psychologist and therapist. Darla denied the allegations
and filed a counterclaim seeking custody of Jacey.
In December 2009, the district court granted Darla specific
visitation and ordered that the visitation was to be supervised
until further order of the court. In 2010, Darla filed a motion
to terminate supervised visitation, alleging that she posed no
threat to Jacey and that there had been no issues with super-
vised visitation, while Mark filed a motion indicating that the
visitations needed to be more strictly supervised. In May 2010,
the district court denied Darla’s motion and ordered that all
other terms of visitation remain in effect.
In October 2010, Mark filed an application for termina-
tion of visitation, alleging that visitation between Darla and
Jacey was placing Jacey in great harm. The application indi-
cated that in June 2010, Jacey was taken to a Nebraska State
Patrol office by the individual supervising Darla’s visitation,
whereupon Jacey reported that she was being sexually abused
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by Mark, which report had led to the initiation of a juvenile
action. The petition further alleged that shortly thereafter,
Jacey recanted her statements and admitted that Darla had
coached her to make false statements by threatening and
intimidating Jacey. Mark’s petition indicates that the reports
of sexual abuse were unfounded. Darla denied the application
and requested that it be dismissed.
In October 2011, Darla filed a complaint for contempt,
alleging that Mark had cut off all visitation between her and
Jacey, in violation of the court’s previous orders. A hear-
ing was held on the complaint for contempt, after which the
court found that there was insufficient evidence to hold Mark
in contempt.
At trial, Mark testified that since the parties separated,
there had been a long history of manipulation on Darla’s part
and problems with allegations of Mark’s sexually abusing
Jacey. Mark recounted several occasions of Darla’s reporting
to law enforcement that Mark was abusing Jacey, which reports
resulted in Jacey’s being removed from Mark’s custody while
he was investigated. Each time, the allegations came back
unfounded. Mark testified that Jacey recanted the allegations of
sexual abuse she made in 2010.
Mark admitted that he had stopped visitation between Darla
and Jacey based upon the advice of a psychologist. Thereafter,
supervised visitations were ordered, and Mark explained that
Jacey began coming home from visitations with Darla with
tape recorders and cell phones given to her by Darla, with
which, Jacey explained, Darla had told her to record what
was going on at Mark’s home. On another occasion, Jacey
began receiving notes left by Darla in Jacey’s locker at her
high school.
Jacey took the stand and testified that she was 13 years old
and attended high school. Jacey testified that she lived with
Mark and her stepmother and siblings. Jacey testified that one
of the supervised visitation workers, Darla’s husband, and a
family friend took her to the State Patrol office, where she told
the State Patrol that Mark had sexually abused her. Jacey testi-
fied that Darla told her on several occasions to tell the lie and
that she complied because she was scared of Darla, who had
Decisions of the Nebraska Court of Appeals
MARK J. v. DARLA B. 773
Cite as 21 Neb. Ct. App. 770
threatened to kill her and her family members. Jacey testified
that Darla would give her a note at visitations and tell her to
memorize the note “so [Jacey] could say it.” Jacey testified
that she eventually told the truth that Mark had not hurt her
and that Darla had told her to make the accusations. Jacey
explained that visitations with Darla “go okay,” but that she no
longer wanted to have visitation with her because she wanted
“a normal life.”
Darla’s current husband, Tim B., testified that he saw Jacey
during her visitations with Darla, beginning in 2008. Tim tes-
tified that Darla and Jacey’s relationship was good and that
Darla and Jacey had fun together. Tim described Jacey as fun-
loving and outgoing and said Darla and Jacey are very similar.
Tim testified that he was very surprised at Jacey’s testimony in
court, because Jacey always referred to Darla as “[M]om” and
usually referred to Mark as only “Mark” and not “[D]ad.” Tim
testified that Darla is very upset at not being able to see Jacey
and that he and Darla still attend Jacey’s activities, but keep
their distance.
Tim testified that in the week before he and Darla took
Jacey to the State Patrol office, Jacey had not directly told
Darla and him what was going on with Mark, but was giving
them hints such as telling them that Mark was showering with
her and threatening her by putting a gun to her head. Tim tes-
tified that Jacey told them Mark had threatened to kill Darla,
Jacey, and Tim. Tim testified Jacey made statements that Mark
had shaved her legs and that she was afraid. Tim testified that
on the day they went to the State Patrol office, Jacey indicated
that she was ready to tell the truth, but that Darla did not want
her to go because Darla was afraid. Tim testified that Jacey’s
testimony about the note and what happened on that day was
not accurate and that no note was given to Jacey. Further, Tim
testified that there was no discussion in the vehicle about what
Jacey should report to law enforcement.
A friend of Tim and Darla’s testified that he traveled with
Tim, Jacey, and the supervised visitation worker to take Jacey
to speak with the State Patrol. The friend testified that he had
been aware there was a possibility that at some point during
one of Jacey’s visits, they would take her to law enforcement.
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The friend testified that he was aware of Darla’s and Tim’s
concerns about sexual abuse for several months. He testified
that Jacey was not given a note to review and that they did not
stop on the way to the State Patrol office. He explained that on
the way, Jacey was happy and acted normally.
A clinical psychologist testified that she had twice evalu-
ated Darla and, in the past, had conducted counseling sessions
with her. She testified that the evaluations were completed in
November 2003 and January 2013. She explained that in 2013,
Darla requested a psychological evaluation because Darla
was concerned about an upcoming court date and visitation.
The clinical psychologist concluded that Darla did not meet
the criteria for any specific clinical diagnosis and was not in
need of any further counseling. She testified that the evalua-
tion did not provide any specific information regarding risk
to a child. She further explained that there was no indication
of sociopathic or antisocial personality features which would
indicate mistruths and that there was no evidence of depres-
sion or anxiety.
Erika Williams, a family support and supervised visita-
tion worker, testified that she began supervising visits with
Darla and Jacey in December 2009 and continued through
June 2010, which end coincided with a trip to the State Patrol
office with Jacey, Tim, and Tim and Darla’s friend. Williams
testified that as a supervised visitation worker, she has the
responsibility to make sure that the child remains safe during
the visit.
Williams testified that Darla was always prepared for Jacey’s
visits and was always accommodating of Jacey’s activities.
Williams described Darla as involved and active with Jacey
during the visits. Williams testified that on two occasions in
2010, Jacey had told her that something was going on between
her and Mark and also that Mark had shaved Jacey’s legs,
although Williams later testified that June 2010 was the first
time she had heard about allegations regarding Mark and that
any other incident she had heard about, she heard about from
Darla. Williams testified that on June 29, 2010, Jacey told
Williams that because of the incident of Mark’s shaving her
legs, she wanted to go speak with law enforcement. Williams
Decisions of the Nebraska Court of Appeals
MARK J. v. DARLA B. 775
Cite as 21 Neb. Ct. App. 770
testified that Jacey was never given a note to study as to what
she should say and also that on the way to the State Patrol
office, they did stop at a gas station, as Jacey had testified,
but that Jacey did not get out of the vehicle. Williams submit-
ted her visitation records as an exhibit, but testified that the
records from June 29 had gone missing and that she did not
know where they were. On cross-examination, Williams testi-
fied first that the group did not stop at a gas station on the way
to the State Patrol office and later that she did not remember if
they had or not.
Several of Darla’s friends testified on her behalf, each indi-
cating that Darla and Jacey had a close relationship and loved
each other. Many of those friends testified that they observed
no hesitation or fear in the relationship between Darla and
Jacey, and none had ever heard Darla threaten or speak poorly
to Jacey.
Darla testified that there have been problems with her and
Mark’s relationship regarding Jacey. Darla testified that Mark
made it difficult for her to see Jacey and that he refused her
visitation on several occasions. Darla explained that after so
many refusals, she initiated a contempt proceeding, and that
she had since agreed to other visitation options.
Darla testified that in 2003, she walked in on Jacey, who
was 4 years old at the time, fondling herself and that Jacey
said “she was doing what her daddy does.” Darla testified
that upon the recommendation of a lawyer, she took Jacey
to a child advocacy center where Jacey was interviewed, but
that she did not specifically discuss with the center’s person-
nel what Jacey had said. In 2005, Darla testified, Jacey told
her that Mark had “used a Barbie leg and put it [into Jacey’s]
bottom.” Darla testified that another lawyer told her to go to
Iowa to talk to someone in connection with this incident and
that Jacey was interviewed, but not taken into protective cus-
tody. In 2010, as set forth above, Jacey was taken to a State
Patrol office for allegations regarding Mark. Darla did not go
with Jacey on that occasion because she did not like the idea
of Jacey’s going to the State Patrol office, because Jacey had
already reported Mark on three occasions and the blame ended
on Darla. Darla explained that over the years, Jacey had told
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her that Mark was shaving her legs and would refer to Mark as
only “Mark” and not “[D]ad.”
Darla testified that Jacey was very happy and excited prior
to leaving with Tim and Williams to go make the report to
law enforcement. Darla testified that she had not given Jacey
a note providing things to say and had never told Jacey what
to report. Darla further testified that she had never threatened
Jacey with bad consequences and had not threatened Mark or
his family. Darla testified that Jacey was removed from both
Darla’s and Mark’s homes for several weeks and that a juvenile
case was initiated, although it was later dismissed and Jacey
was placed back in Mark’s custody.
Darla explained that after that time, Jacey responded differ-
ently to Darla; for example, instead of grinning at Darla when
she came to Jacey’s activities, Jacey would glare at her and
did not wave. Darla testified that these actions were because
of Mark, who had always tried to keep Jacey away from her.
Darla testified that she had supervised visitations with Jacey
and that the visitations went “[g]reat.” Darla testified that none
of the visits were bad but that in the fall of 2012, she had to
stop visitations because paying for supervision was expensive.
Darla testified that Jacey began to cut visits short because
of her activities. Darla testified that Mark “guards” Jacey at
activities, not allowing her to be near Darla. Darla requested
that the supervised visitation be terminated, and she submitted
a proposed parenting plan for visitation.
Darla testified that she wanted to take Jacey to Hawaii, but
that she did not communicate in any way to Jacey that she
was going to kidnap her and take her to Hawaii to hide. Darla
admitted that she sent Jacey home with a tape recorder and a
cell phone. Darla explained that in the summer of 2010, Jacey
asked Darla for a cell phone so she could text and call Darla
whenever she wanted to. Darla further explained that the tape
recorder was given to Jacey before any of the court orders, in
the spring of 2009, because Jacey wanted to have it to record
what happened in the bathroom in order to prove what hap-
pened. Darla testified that she did not like the idea, but even-
tually gave in. The tape recorder was not returned to Darla,
and she did not receive any recordings.
Decisions of the Nebraska Court of Appeals
MARK J. v. DARLA B. 777
Cite as 21 Neb. Ct. App. 770
Darla testified that on one occasion, she went into Jacey’s
school and left her a note in her locker, which note Darla
explained was a Thanksgiving card. Darla also testified that
she had asked others to put cards in Jacey’s locker on other
occasions. Darla testified that she believed Jacey was lying
when she testified that she no longer wanted visitation with
Darla and that Jacey also lied about Darla’s giving her a note
which told her what to say at the State Patrol office.
The district court entered an order modifying the dissolu-
tion decree, finding that there had been a material change of
circumstances since the entry of the decree, such that the rela-
tionship between Darla and Jacey had deteriorated and Jacey
no longer wished to have contact with Darla. The court found
that Jacey was 13 years old and had admitted that when she
was 9 or 10, Darla convinced her to report that Mark had sex­
ually abused her after Darla made “various threats” to Jacey.
The court found that there was evidence that Darla coached
Jacey and gave her a note to memorize before reporting to law
enforcement. The court noted that Darla had denied threaten-
ing or coaching Jacey, but found that her testimony was eva-
sive, contradictory, and misleading. The court found that Darla
had demonstrated an ability and inclination to secretly and
inappropriately communicate with Jacey without the knowl-
edge of the court, Mark, the school system, and the visitation
supervisor. The court found that Jacey had matured since the
reports of abuse, had attended therapy, and was doing well in
her current placement. The court found that Jacey was getting
along with her siblings and had a close relationship with Mark
and her stepmother. The court found that the “mental anguish
and distress this child has suffered since her parent[s’] separa-
tion and divorce due to the actions of her mother [are] extreme
and abusive.”
The court ordered that visitation with Darla was not in
Jacey’s best interests and modified the decree by disallow-
ing any further visitation between Darla and Jacey. The court
ordered that should Jacey desire contact or parenting time
with Darla, it may occur at Mark’s discretion, with conditions
which may include that any such visitation be supervised or
that it occur in or near the city in which they live and which
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must include that Jacey be given the authority to end the visit
at any time.
ASSIGNMENT OF ERROR
Darla assigns, consolidated and rephrased, that the district
court abused its discretion by terminating her visitation rights.
STANDARD OF REVIEW
[1] Modification of a dissolution decree is a matter entrusted
to the discretion of the trial court, whose order is reviewed de
novo on the record, and which will be affirmed absent an abuse
of discretion by the trial court. Metcalf v. Metcalf, 278 Neb.
258, 769 N.W.2d 386 (2009); Rouse v. Rouse, 18 Neb. Ct. App.
128, 775 N.W.2d 457 (2009).
ANALYSIS
Darla has alleged five assignments of error, all of which
revolve around her contention that the district court abused its
discretion by modifying the dissolution decree to terminate her
parental visitation with Jacey. Specifically, the district court
modified the dissolution decree by terminating any further
visitation by Darla with Jacey, unless Jacey wished to have
visitation, at which time it would be allowed at Mark’s discre-
tion. In making this modification, the district court found that
Darla and Jacey’s relationship had deteriorated as a result of
Darla’s forcing Jacey to lie, by threats and manipulation. The
court further found that Darla was engaging in secret commu-
nication with Jacey.
[2-4] Visitation rights established by a marital dissolution
decree may be modified upon a showing of a material change
of circumstances affecting the best interests of the children.
Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001). A material
change in circumstances means the occurrence of something
which, had it been known to the dissolution court at the time
of the initial decree, would have persuaded the court to decree
differently. Donscheski v. Donscheski, 17 Neb. Ct. App. 807, 771
N.W.2d 213 (2009). The party seeking to modify visitation has
the burden to show a material change in circumstances affect-
ing the best interests of the child. See Schulze v. Schulze, 238
Neb. 81, 469 N.W.2d 139 (1991).
Decisions of the Nebraska Court of Appeals
MARK J. v. DARLA B. 779
Cite as 21 Neb. Ct. App. 770
[5,6] Visitation relates to continuing and fostering the nor-
mal parental relationship of the noncustodial parent with the
minor children of a marriage which has been legally dissolved.
Walters v. Walters, 12 Neb. Ct. App. 340, 673 N.W.2d 585 (2004).
The best interests of the children are primary and paramount
considerations in determining and modifying visitation rights.
Fine v. Fine, supra.
The record indicates that the testimony adduced at trial
presented the court with two completely contradictory sto-
ries. On one hand, the testimony of Darla and her witnesses
indicates that Darla and Jacey have a normal, happy, and
healthy mother-daughter relationship. Darla testified that she
had never forced Jacey to lie about allegations of sexual abuse
and had never threatened Jacey to force her to make said alle-
gations. On the other hand, Jacey testified that Darla forced
her to memorize statements regarding sexual abuse to report
to law enforcement and threatened her if she did not. Jacey
testified that she wants to have a “normal” life and does not
want any further contact with Darla because of her actions
and manipulation.
[7] When the evidence is in conflict, an 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. Edwards v. Edwards, 16 Neb.
App. 297, 744 N.W.2d 243 (2008). We give weight to the
district court’s findings, and particularly the district court’s
determination that Darla’s testimony was evasive, contradic-
tory, and misleading.
The primary material change in circumstances in this case
revolves around Darla’s manipulation and failure to follow
court orders. The record indicates that Darla has secretly
placed notes in Jacey’s locker and, on numerous occasions
over the past several years, has facilitated or directly reported
allegations that Mark has sexually abused Jacey, all of which
reports have been investigated and determined to be unfounded
and which in the meantime resulted in Jacey’s being taken
out of both parents’ homes and temporarily placed into foster
care. At trial, Jacey, who was 13 years old, testified that she
had reported to the State Patrol that Mark had sexually abused
Decisions of the Nebraska Court of Appeals
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her, but admitted that it was a lie and that she had been forced
by Darla to tell that lie. Jacey described how Darla secretly
gave her a note and threatened her to force her to memorize its
contents or face the possibility of Darla’s hurting Jacey or her
family. This has resulted in extreme distress and confusion for
Jacey and in the quick deterioration of her relationship with
Darla, so much so that Jacey testified that she no longer wishes
to have any contact with Darla.
While Darla clearly made bad decisions that resulted in
numerous attempts to detrimentally interfere with Jacey and
Mark’s relationship, we find that the district court’s modifica-
tion of the dissolution decree is inequitable. The district court
modified the decree to disallow Darla any parenting time. We
affirm this portion of the district court’s order. However, the
court further determined that if Jacey wished to have contact or
parenting time with Darla, such may occur at Mark’s discretion
and in accordance with any terms and conditions which Mark
“deems are in [Jacey’s] best interest.” This is an unlawful del-
egation of the district court’s responsibility.
[8] It is the responsibility of the trial court to determine
questions of custody and visitation of minor children accord-
ing to their best interests. This is an independent responsibility
and cannot be controlled by the agreement or stipulation of the
parties or by third parties. See, Deacon v. Deacon, 207 Neb.
193, 297 N.W.2d 757 (1980), disapproved on other grounds,
Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002);
Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d
40 (1978).
In Deacon, the Supreme Court reversed an order which
granted a psychologist the authority to effectively determine
visitation and to control the extent and time of such visita-
tion, concluding that such an order was “not the intent of the
law and is an unlawful delegation of the trial court’s duty.
Such delegation could result in the denial of proper visitation
rights of the noncustodial parent.” Id. at 200, 297 N.W.2d at
762. As authority for its conclusion, the Deacon court cited
Lautenschlager. In Lautenschlager, the court observed:
The rule that custody and visitation of minor children
shall be determined on the basis of their best interests,
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MARK J. v. DARLA B. 781
Cite as 21 Neb. Ct. App. 770
long established in case law and now specified by statute,
clearly envisions an independent inquiry by the court.
The duty to exercise this responsibility cannot be super-
seded or forestalled by any agreements or stipulations by
the parties.
201 Neb. at 743-44, 272 N.W.2d at 42. The Supreme Court
in Deacon specifically took note that the reasoning of
Lautenschlager was being extended to third parties.
The reasoning of Deacon has, in turn, been applied in sev-
eral contexts. In Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d
192 (1988), the Supreme Court disapproved of a district court
order in a divorce proceeding authorizing a child custody
officer to control custody of a minor child and the visitation
rights of the parents and found it was a delegation of judicial
authority unauthorized in Nebraska law. In In re Interest of
Teela H., 3 Neb. Ct. App. 604, 529 N.W.2d 134 (1995), this court
held that the order of a juvenile court granting a psychologist
the authority to determine the time, manner, and extent of a
parent’s visits with a minor child was an improper delega-
tion of judicial authority. In doing so, we cited, inter alia, In
re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992).
In the latter case, the Supreme Court held that it was plain
error for a juvenile court to require that a parent participate
in a particular support group on a regular basis and follow
all directions of a counselor. Id. The In re Interest of D.M.B.
court emphasized, “It is the court’s duty, not that of counselors,
Department of Social Services workers, social workers, child
protection workers, or probation officers to fix the terms and
limitations of a rehabilitation provision.” 240 Neb. at 362, 481
N.W.2d at 914-15.
We are aware that a custodial parent, by the nature of
most custody circumstances, exercises significant control over
a noncustodial parent’s visitation rights, but that does not
include carte-blanche authority as to parental visitation and
contact. We conclude that the district court abused its discre-
tion by determining that if Jacey wished to have contact or
parenting time with Darla, such may occur at Mark’s discretion
and in accordance with any terms and conditions which Mark
“deems are in [Jacey’s] best interest.” Therefore, we remand
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782 21 NEBRASKA APPELLATE REPORTS
this matter to the district court for the purpose of holding a
hearing within 30 days of the mandate for entry of an order in
conformity with this opinion. Furthermore, we order that Jacey
be appointed a guardian ad litem to assist Jacey in the future in
determining matters related to whether or not it is in her best
interests to renew visitation with Darla.
CONCLUSION
For the reasons set forth above, we affirm in part, and in part
reverse the decision of the district court and remand the cause
for further proceedings consistent with this opinion.
Affirmed in part, and in part reversed and
remanded for further proceedings.