Aguilar v. Schulte ( 2014 )

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[12] Because we have found that the juvenile court erred
in terminating Ricardo’s parental rights, we do not address
whether termination was in Gabriella’s best interests. An
appellate court is not obligated to engage in an analysis which
is not necessary to adjudicate the case and controversy before
it. In re Interest of Josiah T., supra.
CONCLUSION
Upon our de novo review of the record, we conclude that the
juvenile court erred in terminating Ricardo’s parental rights to
Gabriella because the State failed to adduce clear and convinc-
ing evidence of abandonment under § 43-292(1). Accordingly,
we reverse, and remand for further proceedings.
R eversed and remanded for
further proceedings.
Jose Aguilar, appellee, v.
Rachel Schulte, appellant.
___ N.W.2d ___
Filed June 10, 2014. No. A-13-541.
1. Child Custody. The requirement in Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012)
that a court make a specific finding of best interests before awarding joint cus-
tody of a child is inapplicable when the parents were never married.
2. Child Custody: Due Process. The due process jurisprudence regarding joint
custody under Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012) is incorporated into
parenting plan orders entered under the Parenting Act found in chapter 43 of the
Nebraska Revised Statutes.
3. Child Custody. When a court has determined that joint physical custody is, or
may be, in a child’s best interests but neither party has requested joint custody,
the court must give the parties an opportunity to present evidence on the issue
before imposing joint custody.
4. Child Custody: Due Process: Notice. Without notice that joint custody will be
considered, parties do not receive adequate due process in preparing for the cus-
tody hearing.
5. Paternity: Parental Rights: Child Custody: Notice. In a paternity case subject
to the Parenting Act where neither party has requested joint custody, if the court
determines that joint physical custody is, or may be, in the best interests of the
child, the court shall give the parties notice and an opportunity to be heard by
holding an evidentiary hearing on the issue of joint custody.
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6. Child Custody. The factual inquiry necessary to impose joint physical cus-
tody is substantially different from that required for making a sole custody
determination.
7. Child Custody: Evidence. The focus of evidence necessary for a determination
of joint custody focuses on the parents’ ability to communicate with each other
and resolve issues together.
8. Visitation. A court determines the nature and extent of visitation rights on a
case-by-case basis and may consider many factors and circumstances in each
individual case, such as the age and health of the child, the character of the non-
custodial parent, the place where visitation rights will be exercised, the frequency
and duration of visits, the emotional relationship between the visiting parent and
the child, the likely effect of visitation on the child, the availability of the child
for visitation, the likelihood of disrupting an established lifestyle otherwise ben-
eficial to the child, and, when appropriate, the wishes of the child.
9. ____. Although limits on visitation are an extreme measure, they may be war-
ranted where they are in the best interests of the children.
10. ____. Allowing a child time with grandparents is in the child’s best interests.
11. Courts. A court does not err in requiring one party to execute documents to com-
ply with the court’s order.
12. Judgments: Final Orders. Conditional judgments are ineffective and void.
13. Pretrial Procedure. Generally, the effect of a pretrial order is to control the sub-
sequent course of the action.
14. ____. Litigants must adhere to the spirit of the pretrial procedure and are bound
by a pretrial order to which no exception has been taken.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
James Walter Crampton for appellant.
Catherine Mahern, Nathaniel Romano, and Kathleen
Kennedy, Jayne Wagner, and Ajla Aljic, Senior Certified Law
Students, of Milton R. Abrahams Legal Clinic, for appellee.
Irwin, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Rachel Schulte appeals from the order of the Douglas County
District Court awarding her and Jose Aguilar joint physical
custody of their minor child and allowing Aguilar to travel out
of the country with the child. We find no abuse of discretion by
the district court and therefore affirm the court’s order.
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BACKGROUND
Aguilar and Schulte are the biological parents of a son,
born in 2009. The parties never married, but Aguilar’s pater-
nity of the child was established by the court in December
2009, and he was ordered to pay child support. On March 24,
2010, Aguilar filed a complaint in the district court request-
ing joint custody of the minor child and reasonable parenting
time. The district court entered a temporary order granting
the parties joint legal custody and awarding primary physical
custody of the child to Schulte, subject to Aguilar’s parent-
ing time.
Through mediation, the parties were able to agree on a par-
tial parenting plan, including joint legal custody and holiday
parenting time, but they were unable to agree on physical cus-
tody, weekday parenting time, or vacation time. Trial was held
on these issues on March 6 and 7, 2013. Thereafter, the district
court entered an order finding that Aguilar and Schulte were
both fit and proper parents and awarding the parties joint legal
and physical custody of the minor child. The partial parent-
ing plan agreed upon by the parties was adopted by the court.
The court also allowed Aguilar to travel with the minor child
to Mexico during his parenting time, and it ordered Schulte to
cooperate in obtaining a passport for the child and executing
any documentation necessary for the child to travel internation-
ally. Schulte timely appeals to this court.
ASSIGNMENTS OF ERROR
Schulte assigns that the district court erred in (1) awarding
joint physical custody of the minor child, (2) ordering Schulte
to cooperate in obtaining the child’s passport and executing
the necessary documents for the child to leave and reenter the
United States, and (3) sustaining Aguilar’s objection to a certi-
fied copy of an arrest warrant for his arrest.
STANDARD OF REVIEW
Child custody determinations, and parenting time determi-
nations, are matters initially 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
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abuse of discretion. Hill v. Hill, 20 Neb. Ct. App. 528, 827 N.W.2d
304 (2013).
ANALYSIS
Joint Physical Custody.
Schulte argues that the district court erred in awarding
joint physical custody for two reasons. First, she claims the
court erroneously did not make a specific finding that joint
physical custody was in the child’s best interests as required
by Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012). Additionally,
she asserts that the court failed to satisfy procedural due proc­
ess because neither party requested joint physical custody
and the court failed to hold an evidentiary hearing on the
issue. In addressing Schulte’s claims, we look to State ex rel.
Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565 (2010),
for guidance.
[1] Amanda M. and Justin T. were the parents of a minor
child, and pursuant to a paternity action, the district court
awarded the parties joint legal and physical custody of the
child. On appeal, the Nebraska Supreme Court first determined
that because the parties had never married and the issues before
the trial court were custody and parenting functions, the action
was governed by the Parenting Act found in chapter 43 of the
Nebraska Revised Statutes, as opposed to the dissolution of
marriage statutes contained in chapter 42. Thus, the require-
ment in § 42-364 that a court make a specific finding of best
interests before awarding joint custody was inapplicable. See
State ex rel. Amanda M. v. Justin T., supra. Accordingly, the
court found no error in the district court’s failure to make a
specific finding of best interests. See id.
The same is true here. Aguilar and Schulte were never mar-
ried, and the action before the district court was solely to estab-
lish custody and parenting time of the minor child. Because
the Parenting Act controls the present case, we reject Schulte’s
argument that the district court was required to make a specific
finding that joint physical custody was in the minor child’s
best interests.
[2] In addition, we find that the issue of joint physical
custody was properly before the district court based on the
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language in Aguilar’s complaint. In State ex rel. Amanda M. v.
Justin T., supra, the Nebraska Supreme Court concluded that
the due process jurisprudence regarding joint custody under
§ 42-364 is incorporated into parenting plan orders entered
under the Parenting Act. As a result, whether custody and
parenting time is awarded in a paternity action or dissolu-
tion of marriage action, the due process analysis is the same.
See State ex rel. Amanda M. v. Justin T., supra. The Supreme
Court, therefore, relied on the rationale of Zahl v. Zahl, 273
Neb. 1043, 736 N.W.2d 365 (2007), to determine what pro-
cedures are required by due process standards before a court
can order joint physical custody. See State ex rel. Amanda M.
v. Justin T., supra.
[3] In Zahl v. Zahl, supra, both parents in a marital dis-
solution action sought sole custody of their minor child. After
holding a general custody hearing, the trial court awarded
the parties joint legal and physical custody. On appeal, the
Nebraska Supreme Court held that when a court has deter-
mined that joint physical custody is, or may be, in a child’s
best interests but neither party has requested joint custody, the
court must give the parties an opportunity to present evidence
on the issue before imposing joint custody. Id.
The Zahl court observed:
Generally, procedural due process requires parties whose
rights are to be affected by a proceeding to be given
timely notice, which is reasonably calculated to inform
the person concerning the subject and issues involved
in the proceeding; a reasonable opportunity to refute
or defend against a charge or accusation; a reasonable
opportunity to confront and cross-examine adverse wit-
nesses and present evidence on the charge or accusation;
representation by counsel, when such representation is
required by constitution or statute; and a hearing before
an impartial decisionmaker.
273 Neb. at 1052, 736 N.W.2d at 373.
[4] In determining that the parties in Zahl v. Zahl, supra,
had not received adequate due process, the court noted that
joint physical custody must be reserved for cases where, in the
judgment of the trial court, the parents are of such maturity
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that the arrangement will not operate to allow the child to
manipulate the parents or confuse the child’s sense of direc-
tion and will provide a stable atmosphere for the child to
adjust to, rather than perpetuating turmoil or custodial wars.
Therefore, because the factual inquiry for awarding joint
custody was substantially different from that for an award
of sole custody, without notice that joint custody would be
considered, the parties did not receive adequate due process
in preparing for the hearing on custody and were entitled to a
new hearing. Id.
[5] The court in State ex rel. Amanda M. v. Justin T., 279
Neb. 273, 777 N.W.2d 565 (2010), relied on the reasoning set
forth in Zahl v. Zahl, supra, to conclude that in a paternity case
subject to the Parenting Act where neither party has requested
joint custody, if the court determines that joint physical cus-
tody is, or may be, in the best interests of the child, the court
shall give the parties notice and an opportunity to be heard by
holding an evidentiary hearing on the issue of joint custody.
Failure to do so results in reversible error. See State ex rel.
Amanda M. v. Justin T., supra.
In the present case, the requirements of due process were sat-
isfied because Aguilar’s complaint provided notice to Schulte
that Aguilar was asking the court to consider joint custody. His
complaint read:
[Aguilar] and [Schulte] are fit and proper persons to be
awarded the temporary and permanent care, custody and
control of the minor child of the parties and it is in the best
interest of the minor child that [Aguilar] and [Schulte] be
awarded joint temporary and permanent custody, subject
to the reasonable parenting time of the other party.
He asked that the court grant “temporary and permanent
joint legal custody of the minor child with reasonable parent-
ing time for both parties” and “[a]ll other just and equitable
relief” as determined by the court. Aguilar clarified at trial
that he was intentionally not asking for sole custody because
he believed Schulte had an equal right to parent their son.
We therefore conclude that Aguilar requested joint physical
custody and that the district court did not err in considering
the issue.
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[6,7] Having concluded that the issue of joint physical cus-
tody was properly before the district court for consideration,
we next determine whether the evidence supports an award of
joint custody based upon a de novo review of the record. The
factual inquiry necessary to impose joint physical custody is
substantially different from that required for making a sole cus-
tody determination. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d
365 (2007). While Zahl v. Zahl does not identify exactly what
type of evidence is necessary for a determination of joint
custody, subsequent cases make it apparent that the focus is
on the parents’ ability to communicate with each other and
resolve issues together. See, Kamal v. Imroz, 277 Neb. 116, 759
N.W.2d 914 (2009); Coffey v. Coffey, 11 Neb. Ct. App. 788, 661
N.W.2d 327 (2003); Vesper v. Francis, No. A-12-1168, 2013
WL 5530281 (Neb. App. Oct. 8, 2013) (selected for posting to
court Web site).
Aguilar testified that he and Schulte have communicated
well with respect to certain aspects of parenting and jointly
set boundaries and agreed upon things such as “bedtime,”
“nap time,” and “timeouts” for discipline. They also agreed
on their son’s current daycare provider and agreed to share the
cost of it proportionally. Aguilar testified that he thinks he and
Schulte have done a “marvelous” job raising their son so far.
The record reveals, however, that communication has not been
perfect. For example, Aguilar had to pay for an emergency
room visit for their son because Schulte would not share his
Medicaid number or Social Security number. Schulte doubts
this emergency room visit ever occurred. Despite this, when
asked if he thought he would be able to continue to work with
Schulte in splitting time with their son, Aguilar replied, “Of
course.” Aguilar noted that he and Schulte have taken their
son to the doctor together on several occasions, for example,
when he had tubes put in his ears and when he had surgery on
his finger.
Although the parties have not communicated effectively
100 percent of the time, the record indicates that they have
successfully communicated on issues of primary importance.
They appear to have been able to reach an agreement on major
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decisions regarding their son; therefore, we find no abuse of
discretion with respect to the district court’s order of joint
physical custody.
Travel to Mexico.
Schulte contends that the district court erred in allowing
Aguilar to travel with the minor child to Mexico. She claims
the court improperly placed the burden on her to prove why
such travel should not be allowed.
[8,9] A court determines the nature and extent of visitation
rights on a case-by-case basis and may consider many factors
and circumstances in each individual case, such as the age and
health of the child, the character of the noncustodial parent, the
place where visitation rights will be exercised, the frequency
and duration of visits, the emotional relationship between the
visiting parent and the child, the likely effect of visitation on
the child, the availability of the child for visitation, the likeli-
hood of disrupting an established lifestyle otherwise beneficial
to the child, and, when appropriate, the wishes of the child.
Walters v. Walters, 12 Neb. Ct. App. 340, 673 N.W.2d 585 (2004).
Although limits on visitation are an extreme measure, they
may be warranted where they are in the best interests of the
children. Id.
[10] Based on the evidence presented at the hearing, the
district court did not abuse its discretion in refusing to limit the
location where Aguilar’s parenting time with the child could
take place. Although Schulte expressed concerns for the child’s
safety if he was to travel to Mexico, there was no evidence
that Aguilar would place the child in a dangerous situation.
The district court concluded, and the evidence supported the
conclusion, that Aguilar is a fit and proper parent who appro-
priately cares for his child. Schulte testified at trial that Aguilar
is a responsible father, and she has no complaints about his
parenting. Aguilar said that he remains close to his parents,
despite the distance, and speaks to them daily via telephone,
“Skype,” or text message. He said they have met his son
through photographs, Skype, and telephone calls. Allowing the
child time with his grandparents is in the child’s best interests.
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See Nelson v. Nelson, 267 Neb. 362, 674 N.W.2d 473 (2004)
(generally, strong and healthy relationship with grandparents is
in best interests of children).
Because we find no error in allowing Aguilar to travel with
the child to Mexico, we also conclude that the court did not
abuse its discretion in ordering Schulte to cooperate in obtain-
ing the child’s passport and executing the necessary documents
for the child to travel out of the country.
[11] This court has previously upheld a trial court’s order
requiring a parent to execute documents to fulfill a separate
portion of the court’s order. See Coffey v. Coffey, 11 Neb.
App. 788, 661 N.W.2d 327 (2003). In Coffey, the mother
of the parties’ children initially had control over investment
accounts for the children’s college education expenses. A
subsequent district court order of modification placed cus-
tody of the child with the father and provided that the father
would have control of the children’s accounts. The mother
was ordered to execute any necessary documents to transfer
her control of the accounts to the father. On appeal, because
the trial court’s modification order awarded custody to the
father, we found no error in the portion of the order granting
the father control of the children’s accounts and requiring
the mother to cooperate in transferring control. Similarly in
the present case, because Aguilar was properly allowed to
travel to Mexico with the child, we find no error in the por-
tion of the order requiring Schulte’s cooperation in securing
documents to ensure that the child is able to leave and reenter
the country.
We note that there are other circumstances in which courts
order parties to cooperate and do what is necessary to comply
with the court’s order. For example, in a dissolution of mar-
riage action, the trial court ordered the parties to execute any
and all documents necessary or proper to fulfill the terms and/
or requirements of their property settlement agreement. See
Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008). And in
child custody cases, the Nebraska Supreme Court has upheld
orders requiring one parent to execute a waiver of tax exemp-
tions in favor of the other parent. See, Hall v. Hall, 238 Neb.
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686, 472 N.W.2d 217 (1991); Babka v. Babka, 234 Neb. 674,
452 N.W.2d 286 (1990).
Schulte also claims that the district court’s order coerces her
into consenting that the child travel to Mexico. Specifically,
she argues that if Mexican law requires a parent’s consent in
order for a child to enter the country, the district court’s order
becomes “trickery” because she would not be voluntarily con-
senting. Brief for appellant at 11. Schulte does not indicate
whether Mexican law does, in fact, require parental consent,
nor is there such evidence in the record.
[12] Without knowing whether Schulte’s consent is required
before the child can enter Mexico, we cannot conclude that the
district court’s order forces her to provide consent. A judgment
from the district court or this court that orders Schulte to pro-
vide her consent if Mexican law requires it would constitute
a conditional judgment, which would be ineffective and void.
See Garcia v. Platte Valley Constr. Co., 15 Neb. Ct. App. 357, 727
N.W.2d 698 (2007) (judgments that are dependent upon occur-
rence of uncertain future events, or conditional judgments, are
wholly ineffective and void because they lead to speculation
and conjecture as to what their final effect may be). Because
there is no evidence that Schulte’s permission is required in
order for the child to enter Mexico, we reject this argument and
affirm the district court’s decision.
Evidentiary Objection.
Schulte also asserts that the district court erred when it sus-
tained Aguilar’s evidentiary objection to a certified copy of a
warrant for his arrest. At trial, Schulte offered into evidence a
certified copy of a warrant for Aguilar’s arrest. Aguilar’s coun-
sel objected to the exhibit because it had not been provided
to her prior to trial pursuant to the court’s pretrial order. The
court sustained the objection. Schulte now argues that compli-
ance with the pretrial order was not possible because she only
acquired the exhibit the morning of trial.
[13,14] Generally, the effect of a pretrial order is to control
the subsequent course of the action. Hillcrest Country Club
v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 44 (1990).
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Litigants must adhere to the spirit of the pretrial procedure
and are bound by a pretrial order to which no exception has
been taken. Cotton v. Ostroski, 250 Neb. 911, 554 N.W.2d
130 (1996).
We agree with Schulte that the certificate attached to the war-
rant was dated March 6, 2013, the day trial began. However,
the warrant itself was issued on January 10, nearly 2 months
before trial began. Thus, Schulte had plenty of time prior to
the day of trial to notify Aguilar of the existence of the warrant
and her intention to offer it at trial. Accordingly, we find no
error in the district court’s decision to exclude the exhibit from
evidence at trial.
CONCLUSION
We conclude that the district court did not abuse its dis-
cretion in awarding the parties joint custody of their minor
child. We also find no abuse of discretion in the court’s deci-
sion allowing Aguilar to travel to Mexico with the child, and
Schulte was properly ordered to cooperate in obtaining a pass-
port and the necessary travel documents for the child. Finally,
the district court did not err in sustaining Aguilar’s objection to
the certified copy of the arrest warrant. Accordingly, we affirm
the decision of the district court.
Affirmed.