Opinion
No. A-11-131.
10-25-2011
CHARITY A. KLEIN, APPELLANT, v. MARK A. KLEIN, APPELLEE.
J.K. Harker, P.C., L.L.O., for appellant. Leslie A. Christensen, of Family & Juvenile Law Omaha, Christensen & Madam-Campbell, P.C., L.L.O., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: J. PATRICK MULLEN, Judge. Affirmed.
J.K. Harker, P.C., L.L.O., for appellant.
Leslie A. Christensen, of Family & Juvenile Law Omaha, Christensen & Madam-Campbell, P.C., L.L.O., for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Charity A. Klein appeals from an order of the district court for Douglas County denying Mark A. Klein's complaint for modification and Charity's counterclaim for a custody change. Charity challenges the court's finding that there is no material change of circumstances warranting a change from the original decree and the finding that it is in the best interests of the children to remain in the custody of Mark. Based on the reasons that follow, we affirm.
BACKGROUND
The parties married on August 11, 2000, and had two children: a daughter, born in January 2002, and a son, born in September 2003. A decree of dissolution was entered on May 27, 2008, awarding Mark sole legal and physical custody of the minor children. The decree granted Charity scheduled visitation every Sunday at 5 p.m. through Wednesday morning with parenting time on Tuesday and Friday evenings on the weeks she did not have the children. The decree also ordered Charity to pay monthly child support in the amount of $780.
Mark filed a complaint to modify on March 3, 2009, seeking to modify Charity's parenting time and contact with the children. Mark alleged Charity refused to respect his position as the custodial parent and engaged in activities not in the best interests of the children. On April 16, Charity filed a counterclaim seeking a change in custody from Mark to Charity.
On April 9, 2010, Mark filed an ex parte motion to suspend overnight visitation and require all of Charity's contact with the children to be supervised. On April 14, Mark filed a motion for further temporary orders and to set a trial date, requesting supervised visitation upon the recommendation of a case manager for Child Protective Services. On April 22, Charity filed a motion for a psychological evaluation and a substance abuse evaluation applicable to both parties. On April 27, a hearing was held on the motions. Following the hearing, the court entered an order on May 10 requiring both parties to submit to psychological and drug testing. The court also limited Charity's established visitation to no fewer than two times per week, for not less than 20 hours, and ordered that her visits be supervised.
On October 20, 2009, Charity filed a motion for the appointment of a guardian ad litem or a "Rule 706 Expert." The court appointed Dr. John Troy as a "Rule 706 Expert" on October 20. Dr. Troy evaluated both parents, but failed to timely provide counsel with complete reports of Mark and the children. Mark filed a motion in limine on October 8, 2010, stating "any and all documentation from Dr. . . . Troy received by [Mark's] Counsel after October 8, 2010, shall not be received into evidence or considered by this Court insofar as it pertains to findings or recommendations not provided to [Mark's] Counsel after October 8." The court found that when reports "are so late they cannot effectively be responded to it really unfairly impinges upon the right of a party to present a case in a fair and effective way," and the motion was sustained. However, Dr. Troy was permitted to provide testimony at trial.
Trial on the complaint and counterclaim was held on October 14 and December 27 and 28, 2010. At the time of trial, Mark had been living with his girlfriend, Cheryl Flemming (Cheryl), for 2 years. Cheryl testified that she helps raise the children and that she has a great relationship with them. She said they do many things together, including shopping, playing games, cooking and baking, and going to the library. The children continue to reside with Mark in the family home and have attended the same school since the divorce. Mark changed to a day shift with the same employer to be able to pick the children up from school and be home with them all night.
Charity had been living with her fiance, Randy Reynolds (Randy), at the time of trial and had been for about 18 months. Randy and Charity have been a couple for about 4 years, and they share expenses, including items for the home and child support payments. Charity and Randy were living in a home Randy purchased in August 2009; Randy's father cosigned the loan and is listed with Randy on the deed. Charity, Randy, and the children read, play, go to the park, and try to get the son to ride his bike.
Mark believed some basic standards for the children were not being followed at Charity's home, including "sleeping in their own beds, in their own rooms without the TV going, set bedtimes, boundaries and structure." At one point, Charity, Randy, the children, and the dogs were all sleeping in bed together. Mark was also concerned that Charity kept the children out of school during the day, because she missed a holiday visitation period. Mark also had concerns about Charity's angry behavior in front of the children and about the children's reverting to bed-wetting, thumbsucking, and having nightmares after visits with Charity.
Since the divorce, Charity filed for bankruptcy, lost her job, and moved to Omaha, Nebraska. She currently receives unemployment, and child support is not deducted. Charity estimated at trial that she was about 7 months behind on her child support payments to Mark. Charity continued to look for new employment and estimated applying for more than 100 jobs in a 9-month period. Charity and Randy depend on Randy's income, and Charity helps Randy complete his second job, a newspaper delivery route.
Despite financial difficulties, Randy and Charity have made improvements to the home, including redecorating the children's rooms, adding televisions, and installing an aboveground pool for the children's use. Charity said that at her home, the children now have a set bedtime, the television is not left on all night, the son does not have nightmares, and the daughter does not suck her thumb.
The court heard evidence regarding the daughter's allegations that "Cheryl was touching her private parts and rubbing and poking her" in April 2010. A case manager for Child Protective Services testified regarding the investigation into the daughter's allegations of sexual abuse against Cheryl. The case manager stated that the daughter initially reported the abuse, and then recanted, saying "she made it up because she wanted to live with [Charity] and that Cheryl never did that to her." The case manager noted that Mark successfully completed a safety evaluation and that Child Protective Services closed the sexual abuse case after determining the allegations were unfounded.
Both parents have stated concerns about inappropriate discipline by the other parent or their significant other. Mark was concerned that Randy locked the son in the basement of his home in the dark and held him over a railing. Charity was worried that Cheryl and Mark removed beloved items from the children as punishment without clearly stating the reason or the lesson the children were supposed to learn.
Mark, Cheryl, Charity, and Randy all denied or explained the circumstances surrounding the other's concerns. Randy denied locking the son in the basement and said he held the son over the stairs as part of a game, but let him down when he became afraid. Cheryl and Mark detailed one incident when the daughter's blanket and doll were taken away because the daughter had placed a nail in one of Cheryl's chocolates in an attempt to hurt her. The intended lesson was it is not right to interfere with another's belongings and that Cheryl could have been hurt. Cheryl said she has never physically disciplined the children and the most severe discipline she has administered is telling them to stand in the corner for 5 to 10 minutes. Mark also stated he has never seen Cheryl physically discipline the children. The children's therapist testified that she has not heard anything that would cause her concern about inappropriate discipline occurring in Mark's home by either Mark or Cheryl, or about Cheryl's relationship with the children. Further, the children express love for both of their parents.
Charity's future sister-in-law supervised Charity's visits with the children following the May 2010 order. During these visits, she listened for conversations about topics that were unacceptable such as the current case and the alleged sexual abuse. She said that the children appear happy with Charity and that Charity never speaks negatively about Mark. She said that at times she had to redirect discussions with the children, particularly the daughter, about unacceptable topics, suggesting the daughter talk to her counselor about her frustrations.
Charity's future sister-in-law brought her own three children to each supervised visit, and they all ate meals and planned activities with Charity, Randy, and the children during visits. Randy said that it was a hardship to feed everyone and that the number of people involved made it difficult to plan activities outside of the home during visits.
The order for supervised visitation also limited Charity's ability to volunteer at and visit the children's school. Prior to this order, Charity helped with "book buddies" and projects for teachers. She no longer received e-mails from the school and was no longer allowed to chaperone school trips or enter school property.
Randy and Charity stated concerns that Mark is not enrolling the children in activities to learn and develop with other kids. Mark said that the children are not enrolled in extracurricular activities because they need to focus on schoolwork and because the expense is prohibitive. However, to help the children develop physically, they "run around outside, play, wrestle, jump on the trampoline, go to the park, and swim." Mark said that he has not acted as a room parent or teacher's aide or otherwise volunteered at the children's school because he works the day shift. However, he is in regular contact with the children's teachers and has not missed any parent-teacher conferences.
The final order following the trial restored the visitation granted to Charity under the original decree and reinstated Charity's parental role at the children's school. Supervised visits ended December 28, 2010, following the decision of the trial court.
ASSIGNMENTS OF ERROR
Charity assigns that the trial court erred in (1) finding Charity had produced insufficient evidence to establish there was a material change of circumstances sufficient to warrant a modification of custody of the children and (2) determining it was in the best interests of the children to remain in the legal and physical custody of Mark.
STANDARD OF REVIEW
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 determinations will normally be affirmed absent an abuse of discretion. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007).
A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving the litigant of a substantial right and a just result. Markovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
ANALYSIS
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 child require such action. Vogel v. Vogel, 262 Neb. 1030, 627 N.W.2d 611 (2002). Charity asserts that the custody of the children should be modified because there is a material change of circumstances, and the present arrangement is not in the children's best interests.
Material Change of Circumstances.
In the case at bar, Charity argues the trial court abused its discretion when it determined there was no material change of circumstances sufficient to warrant a modification of custody.
The trial court considered the evidence from both parties and determined there was no material change of circumstances sufficient to warrant a permanent limitation of parenting time or a modification of custody from one parent to the other. Since the original decree, there have been few changes to the children's homelife or routine. The children have continuously resided in the marital home and attended the same school. Mark has maintained his job and switched to a shift that allows him to spend more time with the children. Mark continues to arrange counseling for both children to support emotional health and build coping skills. Mark also monitors his children's schoolwork and regularly attends parent-teacher conferences.
Comparatively speaking, there have been fewer changes at Mark's home than at Charity's. Since the decree, Charity lost her job and moved to Omaha to live in Randy's home. She now collects unemployment and has fallen behind on her child support. However, these circumstances have not prevented Charity from providing a suitable home or care for her children. She has demonstrated her love for the children and her willingness to care for them and help them develop. The trial court determined, and we agree, that Charity and Randy complied with the terms of the supervised visitation and that it is no longer necessary. As Charity's original, unsupervised visitation schedule has been reinstated, she is no longer prevented from volunteering at the school and monitoring the children's progress.
Charity cites Walton v. Walton, 220 Neb. 625, 371 N.W.2d 292 (1985), where the court noted that the emotional disturbance of a child while with the custodial parent and the subsequent improvement in the child's care while in the custody of the noncustodial parent will justify a change of custody.
While it appears that the children are disturbed by the divorce of their parents, the evidence presented is not sufficient to establish the disturbance is caused by the environment at one home or the other. The district court concluded the children are "drowned in emotions" because of the terrific and emotional position of being caught in the middle of their parents without a way out. At the time the daughter made allegations against Cheryl, the children's visitation with Charity was shortened and completely supervised. It appears the allegations were the product of the daughter's desire to live with or spend more time with Charity. There is no evidence that the sexual abuse did in fact occur or that the daughter's emotional disturbance was the product of time spent with Mark; therefore, a change in custody is not justified. Rather, the court urged the parties to be positive, flexible, and generous with one another, and suggested focusing on effective communication for the benefit of the children.
Based upon the evidence provided, neither parent is unfit, nor is there sufficient evidence of a material change of circumstances to warrant a change of custody from one parent to the other.
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 determinations will normally be affirmed absent an abuse of discretion. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving the litigant of a substantial right and a just result. Markovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
In this case, Charity did not allege that Mark was an unfit parent. In fact, she stated at trial that if their roles were reversed, she would want Mark to "have just as much involvement as me." Charity petitioned for sole custody simply because she and Mark have difficulty communicating. Following the trial court's ruling, Charity's regular, unsupervised visitation was restored and she now shares largely the same parenting time as Mark. Though she was not awarded sole custody, the court gave her essentially what she asked for--the ability to parent her children in cooperation with Mark. We find the reason or rulings of the trial court were not clearly untenable, unfairly depriving Charity of a substantial right and a just result.
Best Interests of Minor Children.
Charity asserts a change of custody is in the best interests of her minor children because the present arrangement is so deleterious and unreasonable as to justify such alteration.
For actions involving child custody, parenting time, and visitation under Neb. Rev. Stat. § 42-364 (Cum. Supp. 2010), the court considers the best interests of the children as defined in Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2010) of the Parenting Act. The Parenting Act provides that a child's best interests require provisions for a child's safety, emotional growth, health, stability, physical care, and regular and continuous school attendance and progress. Adults are required to remain appropriately active and involved in parenting with safe, appropriate, and quality contact between children and their families. The Parenting Act also emphasizes the need to minimize the potentially negative impact of parental conflict on the children.
Within the boundaries of the trial court's order, both parents may remain involved in the lives of their children and work together for the best interests of the children. Both parents demonstrated their interest in spending time with the children and helping them to develop physically and mentally. Both have demonstrated an interest in the children's education, and Charity is now free to volunteer and remain involved with the children's school.
Charity's primary assertion is that the children deeply dislike Cheryl and that they are subject to inappropriate discipline in Mark's home. Mark, on the other hand, asserts that he and Cheryl use appropriate discipline and communication with the children, an assertion that is supported by the children's counselor. 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. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004). See In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).
Both parties presented evidence that the children are loved and given affection by their parents and their parents' significant others. At trial, Dr. Troy presented testimony that the children tend to favor Charity, but that they love both parents. This fact alone does not mean it is in the children's best interests to live primarily with Charity.
Ultimately, it is in the best interests of the children to return to and maintain the parenting time established in the original decree. As the trial court stated, "kids need the finality and closure and acceptance of what the situation is," and once this issue is settled, the parties can attempt to maintain some normalcy.
CONCLUSION
We conclude that the district court did not err in dismissing Charity's counterclaim for custody, as there was no material change of circumstances sufficient to modify the custody arrangement, and that it is in the children's best interests to maintain the custody arrangement in the original decree.
AFFIRMED.