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affirming refusal to modify custody based on mother's homosexual relationship in absence of evidence child was directly exposed to sexual activity or harmed by relationship
Summary of this case from Damron v. DamronOpinion
No. A-96-571.
Filed September 23, 1997.
1. Modification of Decree: Appeal and Error. The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion.
2. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action.
3. Child Custody: Proof. The party seeking modification of child custody bears the burden of showing that a material change in circumstances has occurred.
4. Child Custody: Visitation. In determining a child's best interests in custody and visitation matters, Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 1994), provides that the factors to be considered shall include, but not be limited to, the following: (a) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (b) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (c) the general health, welfare, and social behavior of the minor child; and (d) credible evidence of abuse inflicted on any family or household member.
5. Child Custody. A court may consider other factors in determining a child's best interests in custody matters, including the moral fitness of the child's parents and the parents' sexual conduct.
6. ___. The best interests of the minor child remain the court's paramount concern in deciding custody issues.
7. Child Custody: Evidence. In determining whether the custody of a minor child should be changed, the evidence of the 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. What courts are interested in are the best interests of the child now and in the immediate future, and how the custodial parent is behaving now is therefore of greater significance than past behavior when attempting to determine the best interests of the child.
8. Child Custody: Proof. The Nebraska Supreme Court has repeatedly held, albeit not in the context of a homosexual relationship, that a parent's sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity.
9. ___: ___. Sexual activity by a parent, whether it is heterosexual or homosexual, is governed by the rule that to establish a material change in circumstances justifying a change in custody there must be a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity and that a change of custody is in the child or children's best interests.
Appeal from the District Court for Douglas County: JAMES A. BUCKLEY, Judge. Affirmed.
Mark J. Milone and John A. Kinney, of Frost, Meyers, Guilfoyle Govier, for appellant.
Edith T. Peebles and Lisa M. Line, of Brodkey, Cuddigan Peebles, for appellee.
HANNON, MUES, and INBODY, Judges.
INTRODUCTION
Thomas Kelly Hassenstab appeals from an order entered by the Douglas County District Court denying his application to modify custody from Carol Marie Hassenstab to him. For the reasons set forth herein, we affirm the order of the district court.
STATEMENT OF FACTS
Thomas and Carol were married on September 13, 1986. One child was born of this marriage, Jacqueline A. Hassenstab, on March 28, 1986. On May 24, 1990, the Douglas County District Court entered an order dissolving the parties' marriage and awarding custody of Jacqueline to Carol with reasonable rights of visitation to Thomas.
On June 13, 1995, Thomas filed an "Application to Modify Decree of Dissolution of Marriage" requesting, among other things, that the court modify the prior custody determination by awarding custody of Jacqueline to Thomas. Carol filed an answer which generally denied the allegations contained in Thomas' application to modify and also filed a cross-petition requesting an increase in child support and attorney fees.
A trial on the application to modify and Carol's cross-petition was held on March 22, 1996. The evidence adduced at trial established that following the parties' divorce, Carol had been involved in a homosexual relationship. Additionally, Thomas testified to Carol's alleged suicide attempts which he contends occurred prior to and during the marriage. Carol testified that she attempted suicide on one occasion which was 7 years prior to the modification hearing and prior to the time that the dissolution decree became final. In describing the suicide attempt, Carol stated she "fell" out of a car traveling approximately 40 miles per hour. Additionally, the evidence did establish that Carol has sought counseling for several reasons, including her confusion over her sexual identity, but that she was not in counseling at the time of the modification hearing.
The trial judge met with Jacqueline in the court's chambers prior to submission of the case for determination. During the meeting, Jacqueline expressed a desire to remain in her mother's custody.
The district court subsequently entered an order dismissing Thomas' application to modify, modifying the original dissolution decree to increase Thomas' child support obligation, and awarding Carol $1,250 in attorney fees. Thomas timely appealed to this court regarding the dismissal of his application to modify.
ASSIGNMENTS OF ERROR
On appeal, Thomas contends that the district court erred in finding that no substantial and material change in circumstances had taken place since the entry of the dissolution decree showing that Carol was unfit to retain custody of Jacqueline or that Jacqueline's best interests required a modification of her custody to Thomas. Thomas does not appeal the court's order increasing his child support obligation or the award of attorney fees.
STANDARD OF REVIEW
"The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion." Adrian v. Adrian, 249 Neb. 53, 56, 541 N.W.2d 388, 390 (1995).
DISCUSSION
Thomas contends that the district court erred in finding that no substantial and material change in circumstances had taken place since the entry of the dissolution decree that showed that Carol was unfit to retain custody of Jacqueline or that Jacqueline's best interests required a modification of her custody to Thomas.
[2, 3] Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996); Krohn v. Krohn, 217 Neb. 158, 347 N.W.2d 869 (1984). The party seeking modification of child custody bears the burden of showing that a material change in circumstances has occurred. Smith-Helstrom, supra; Krohn, supra.
In determining a child's best interests in custody and visitation matters, Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 1994), provides that the factors to be considered shall include, but not be limited to, the following:
(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
(b) The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of the minor child; and
(d) Credible evidence of abuse inflicted on any family or household member.
[5, 6] Additionally, a court may consider other factors in determining a child's best interests in custody matters, including the moral fitness of the child's parents and the parents' sexual conduct. Smith-Helstrom, supra; Helgenberger v. Helgenberger, 209 Neb. 184, 306 N.W.2d 867 (1981). However, the best interests of the minor child remain the court's paramount concern in deciding custody issues. Smith-Helstrom, supra.
First, we address Thomas' contentions that Carol is an unfit mother by reason of her alleged suicide attempts, alcohol consumption, and other psychological difficulties as well as her failure to provide a stable home environment.
"[I]n cases of this nature, it appears to us that in determining whether the custody of a minor child should be changed, the evidence of the 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. What we are interested in is the best interests of the child now and in the immediate future, and how the custodial parent is behaving now is therefore of greater significance than past behavior when attempting to determine the best interests of the child."
Kennedy v. Kennedy, 221 Neb. 724, 727-28, 380 N.W.2d 300, 303 (1986) (quoting Riddle v. Riddle, 221 Neb. 109, 375 N.W.2d 143 (1985)).
The evidence was that a suicide attempt occurred 7 years prior to the modification hearing and prior to the time that the dissolution decree became final in which Carol "fell" out of a car traveling approximately 40 miles per hour. Additionally, the evidence did establish that Carol has sought counseling for several reasons, including her confusion over her sexual identity, but that she was not in counseling at the time of the modification hearing.
With regard to Carol's alcohol consumption and throwing loud parties, the record contains no evidence that Jacqueline has ever observed Carol in an intoxicated state or that Carol's alcohol consumption has adversely affected Jacqueline or endangered the child in any way. Furthermore, although Carol and Jacqueline have changed residences approximately four times and Carol has had several different roommates since the divorce decree was entered in 1990, there is no evidence that the change of residences has been harmful to Jacqueline. To the contrary, Carol testified that each move resulted in improved living conditions and that Jacqueline has never had to change schools because of the moves. Thus, based upon the evidence, Thomas has not shown that the above factors were a material change in circumstances requiring a change of custody.
Second, we address Thomas' concerns over the effect that Carol's homosexuality has on Jacqueline. The Nebraska Supreme Court has repeatedly held, albeit not in the context of a homosexual relationship, that a parent's sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity. Smith-Helstrom, supra; Kennedy, supra; Krohn, supra (where there was no showing that children were exposed to sexual activity or otherwise damaged, mother could retain custody of children). See, also, Anderson v. Anderson, 5 Neb. App. 22, 554 N.W.2d 177 (1996). Thus, the issue is whether this rule is to be applied in the context of a homosexual parent.
The South Dakota Supreme Court, in Van Driel v. Van Driel, 525 N.W.2d 37 (S.D. 1994), held that a custodial parent's homosexual relationship does not render that parent unfit or require an award of custody to the other parent absent a showing that the custodial parent's conduct has had some harmful effect on the children and that a change of custody is in the child's or children's best interests. We agree that sexual activity by a parent, whether it is heterosexual or homosexual, is governed by the rule that to establish a material change in circumstances justifying a change in custody there must be a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity and that a change of custody is in the child or children's best interests.
In some cases, courts of other jurisdictions have denied custody and liberal visitation to a homosexual parent. However, these cases involved situations where the children have been exposed to the parent's homosexual activity or where, for other reasons, placing the children in the homosexual parent's custody was not in the children's best interests. For example, in Hall v Hall, 95 Mich. App. 614, 615, 291 N.W.2d 143, 144 (1980), the appellate court affirmed the trial court's placement of the minor children with the father rather than with the homosexual mother where the evidence established that, given a conflict, the mother would "unquestionably choose the [homosexual] relationship over the children."
In In re Marriage of Wiarda, 505 N.W.2d 506, 508 (Iowa App. 1993), the appellate court affirmed the trial court's grant of custody of the minor child to the father where "[i]t appears from the record that [the mother's] relationship with her [female] friend has not had a calming effect upon either the children or upon the difficult problems of the breakup of this marriage" and "[i]t is certain that [the mother's] friend's presence in this matter has caused twelve-year-old Sarah certain anxieties and, from Sarah's viewpoint, has contributed to the continued breakdown of the relationship between [the mother and father]."
In Chicoine v. Chicoine, 479 N.W.2d 891 (S.D. 1992), the appellate court reversed the lower court's grant of liberal visitation to a homosexual mother where the evidence showed that the mother had allowed the minor children to get into bed to sleep with the mother and her lover, sometimes when the mother was not clothed. Further, the evidence established that when one of the children entered the mother's bedroom to find the mother and her lover in an intimate position, the mother did not stop the sexual act to comfort her son. Likewise, in Wolff v. Wolff, 349 N.W.2d 656 (S.D. 1984), the appellate court reversed the award of custody of a minor child to the homosexual father where the evidence showed that some homosexual acts had been performed in the presence of the son and that the father allowed the person involved in those acts to babysit the minor child.
The case at bar is distinguishable from the aforementioned cases because, although there was evidence that Carol and her partner would engage in sexual activity at times when Jacqueline was in Carol's residence and that Jacqueline was generally aware of her mother's homosexual relationship, there was no showing that the daughter was directly exposed to the sexual activity or that she was in any way harmed by the homosexual relationship between Carol and her partner. Because the evidence in the case at bar simply does not establish any harmful effect on Jacqueline because of Carol's homosexual relationship, there has been no showing of a material change of circumstances.
Furthermore, the evidence does not establish that Jacqueline's best interests require a change of custody. At the trial, Jacqueline was described as a happy, self-assured, and confident child. Thomas characterized Jacqueline as "a very loving, fun, special daughter." He further stated that she is "very, very happy, very joyful, very spirited." Other witnesses testified that Jacqueline is dressed in clean clothes which are appropriate for the weather, she is well-kept, and her hair is combed. The record further reflects that Jacqueline is a "B" student and has few discipline problems.
REQUEST FOR ATTORNEY FEES
Carol has filed a motion requesting that attorney fees be awarded to her for the cost of prosecuting this appeal. The award of attorney fees in a dissolution action involves consideration of such factors as the nature of the case, the amount involved in the controversy, the services performed, the results obtained, the length of time required for preparation of the case, the skill devoted to preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services. Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996); Venter v. Venter, 249 Neb. 712, 545 N.W.2d 431 (1996). Considering these factors, an award of attorney fees toward Carol's cost of defending this appeal is warranted. Consequently, Carol's request for attorney fees is granted in the amount of $1,000.
CONCLUSION
In sum, Thomas has failed to meet his burden of proving a material change of circumstances necessitating a change of Jacqueline's custody. Therefore, the order of the district court is affirmed.
AFFIRMED.