Opinion
No. A-10-887.
08-16-2011
STATE EX REL. FRIEDRICHSEN v. BERGMEIER STATE OF NEBRASKA EX REL. TINA D. FRIEDRICHSEN, APPELLEE, AND TINA D. FRIEDRICHSEN, APPELLANT, v. JOSHUA L. BERGMEIER, APPELLEE.
Sean M. Reagan, of Reagan Melton Law Offices, L.L.P., for appellant. Christopher A. Furches, of Furches Law Offices, for appellee Joshua L. Bergmeier. No appearance for appellee State of Nebraska.
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 Buffalo County: John P. Icenogle, Judge. Affirmed.
Sean M. Reagan, of Reagan Melton Law Offices, L.L.P., for appellant.
Christopher A. Furches, of Furches Law Offices, for appellee Joshua L. Bergmeier. No appearance for appellee State of Nebraska.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Tina D. Friedrichsen appeals from the order of the Buffalo County District Court, which granted Joshua L. Bergmeier's complaint for modification of child custody. Because we find no abuse of discretion in the district court's decision, we affirm. Pursuant to Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
Tina and Joshua are the parents of Austin J. Friedrichsen, born in August 1998. On May 18, 1999, the district court entered an order finding that Joshua was Austin's father and ordering Joshua to pay child support to Tina in the amount of $191 per month.
In January 2006, the parties entered into a stipulation concerning custody, support, and visitation, which was approved by the court on January 27. Pursuant to the parties' stipulation, the court awarded Tina custody of Austin subject to reasonable and specific visitation with Joshua. The court set forth the details of the parenting time schedule as well as details concerning transportation to and from visits. At that time, Joshua was living in Grand Island, Nebraska, and Tina and Austin were living in Lincoln, Nebraska. Joshua's child support obligation was set at $217.50. On May 3, 2007, the district court suspended Joshua's child support obligation. Presumably, this resulted from Austin's removal from Tina's custody by the Nebraska Department of Health and Human Services (the Department) on February 27 due to unsanitary living conditions.
The State filed a petition in the separate juvenile court of Lancaster County, and the juvenile court placed Austin with Joshua on March 7, 2007, where he has resided since that time. The initial permanency plan in the juvenile court proceedings was reunification of Austin with Tina, but as time went on, the permanency plan changed to family preservation with Austin remaining in Joshua's care.
During the pendency of the juvenile court proceedings, Joshua filed a complaint for modification of custody in Buffalo County District Court, alleging that a material change in circumstances had occurred due to Austin's removal from Tina's home by the Department. Joshua also alleged that Tina had been physically and emotionally abusive to Austin and that she had engaged in the use of mood-altering substances. On August 5, 2009, the Buffalo County District Court found that it lacked jurisdiction to consider Joshua's complaint for modification because jurisdiction was vested in the juvenile court.
The juvenile court case was closed in December 2009, at which time the juvenile court found that Tina had corrected the conditions that led to Austin's out-of-home placement and adjudication. The court also noted that the permanency plan last adopted by the Department was family preservation with Joshua.
Joshua filed the present complaint for modification in the Buffalo County District Court on December 14, 2009, alleging the same material change in circumstances as set forth in his previous complaint. The district court entered an order awarding temporary custody to Joshua and established a parenting time schedule during the pendency of the modification proceedings. The district court heard Joshua's complaint for modification on August 9, 2010.
Tina resided in Lincoln with her boyfriend at the time of the modification hearing and testified that she had lived in numerous residences since Austin's birth. Tina has two other sons besides Austin—an older son born in December 1995 and a younger son born in August 2008. These two children each have different fathers, neither of whom are Tina's current boyfriend. Tina obtained her diploma through the GED program and has "some" college education. At the time of the hearing, Tina was employed as a certified nursing assistant, was working Monday through Friday from 6 a.m. to 2:30 p.m., and was earning $11.88 per hour. Tina acknowledged that law enforcement officers were called to her home in February 2007 due to "having a messy house," but she denied any knowledge of a report that she physically assaulted Austin's older half brother. Both her older son and Austin were removed from her home at this time and ultimately placed with their respective fathers. Tina also acknowledged that either the police or Child Protective Services had been called to her home prior to February 2007 but she was uncertain as to how many times that had occurred. Tina admitted that she was told by the Department that the children would be returned to her within a week if she cleaned up her house, but that as of the spring of 2008, her home was still cluttered and messy. Tina was initially granted only supervised visitation by the juvenile court, which supervision continued for a year. Tina agreed that when the juvenile action was dismissed, the permanency plan was for Austin to be placed with Joshua.
Joshua's affidavit submitted at the temporary hearing was received in evidence at the modification hearing for the limited purpose of receipt of the documents attached to the affidavit. The attachments included pictures taken of Tina's home in April 2008 in connection with the juvenile court case, the juvenile court order terminating its jurisdiction, and a court report from the Department dated December 7, 2009. The court report indicated that there had been numerous previous intakes concerning Tina and her children dating back to June 1999, all of which were found to be unsubstantiated except for the February 2007 case relating to Austin and his older half brother and another case relating to Tina's youngest child.
Joshua lived in Grand Island at the time of the hearing. He married his wife in May 2000, and they have two children. Joshua is employed by a communications company, for which he installs and services broadband technology. He earns $14.13 per hour.
Joshua testified that at the time Austin was placed in his care in February 2007, Austin's grades were in the D+ to C- range and his reading was below grade level. Austin did not exhibit any behavioral problems at the time he transitioned into Joshua's home, and Joshua described him as well-behaved at the time of the hearing. Joshua and his wife helped Austin with his homework and encouraged him to read. Austin was earning mostly A- grades at the time of the hearing with a 3.62 grade point average. When Austin was first placed with Joshua, he received counseling as ordered by the juvenile court, but Austin was no longer receiving counseling at the time of the modification hearing.
Joshua described his wife as being very supportive of Austin and testified that she encouraged Austin in his educational and extracurricular activities. Joshua had not observed any out-of-the-ordinary interactions between Austin and his half siblings, and he testified that they all appeared to get along well. Joshua makes time for Austin without his other children, helps him with his homework, and encourages him to try new things. Joshua believes that he and Austin have a good father-son relationship and that it would be in Austin's best interests to remain in his care. Joshua expressed some concerns about Austin's being returned to Tina's care, including concerns that the living conditions would again deteriorate in Tina's home, his education would be less supported, his former behavior issues might return, and he might be influenced by his older half brother into bad decisions.
Joshua's wife described her relationship with Austin as good, testifying that he was very receptive to coming to her with any questions he might have. She described Austin as well-behaved. Joshua's wife regularly assists Austin with his homework and attends his parent-teacher conferences. She was supportive of Joshua's request for custody and had no concerns about Joshua's care for Austin. She expressed similar concerns to those expressed by Joshua about Austin's being returned to Tina's custody.
The daycare provider for Austin and his father's other children testified that Joshua and his wife provided all requested items for Austin's time in daycare and that Austin was a well-behaved child. She testified further that the interactions she had observed between Joshua's wife and Austin appeared good and normal, that Austin appeared to be happy, and that he got along with his half siblings. She had not noted any concerns regarding Austin's care by Joshua and his wife.
Tina did not present further testimony in her own behalf, but the district court questioned her concerning her oldest child. In response to the court's questions, Tina testified that she did not have any concerns that her oldest child would be a poor influence on Austin. She described Austin and his older half brother as "best buds when they are together," stating that they "go ride bikes, and they don't get into trouble."
The court then questioned Austin, who testified that he got along all right with the other children in Joshua's house and did not have any concerns about living with Joshua and his wife. Austin also testified that he gets along with the other children in Tina's house and with Tina's boyfriend. Austin told the court what he does for fun at both of his parents' houses and about his extracurricular activities. Austin testified that he liked living in Grand Island "[s]omewhat" and that Lincoln was "all right" as a city. The court purposefully did not ask Austin to state a preference for living with one parent or the other because, based on Austin's testimony, the court concluded that it would be difficult for Austin to do that.
On August 13, 2010, the district court entered an order ruling on Joshua's complaint. The court found that the evidence reflected that the parties were both fit and competent parents. The court found that a material change in circumstances had occurred because Austin had been placed with Joshua for approximately 2½ years. The court further found that the stability and continuity of continued residence with Joshua along with Austin's increased academic performance weighed in favor of continuing his primary custody with Joshua. The court awarded primary physical custody of Austin to Joshua, subject to the parenting plan set forth in the order. The court ordered Tina to pay child support of $297 per month. Tina subsequently perfected her appeal to this court.
ASSIGNMENT OF ERROR
Tina asserts that the district court erred in finding that a material change of circumstances existed warranting a change in custody of the parties' minor child. We note that in the "Summary of Argument" section of Tina's brief, she also asserts error with regard to the calculation of child support; however, Tina has not included an assignment of error concerning child support nor has she argued any error in this regard. Alleged errors must be specifically assigned and specifically argued in order to be considered by an appellate court. Nygren v. Nygren, 14 Neb. App. 1, 704 N.W.2d 257 (2005). Accordingly, we do not consider Tina's reference to error in the calculation of child support.
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 determination will normally be affirmed absent an abuse of discretion. Mann v. Rich, 18 Neb. App. 849, 794 N.W.2d 183 (2011). A judicial abuse of discretion exists when 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 disposition. Gary's Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d 249 (2011).
ANALYSIS
Tina asserts that the district court erred in ruling that a material change of circumstances existed warranting a change in custody of the parties' minor child.
Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004). The party seeking modification of child custody bears the burden of showing a change in circumstances. Id. A material change in circumstances means the occurrence of something which, had it been known at the time of the initial decree, would have persuaded the court to decree differently. Donscheski v. Donscheski, 17 Neb. App. 807, 771 N.W.2d 213 (2009).
Tina first argues that no material change of circumstances occurred because her involvement with the Department, including the commencement of a juvenile court proceeding, was foreseeable. Tina asserts that since Joshua referenced in his affidavit the numerous reports to the Department since 1999, this information was within the contemplation of the parties at the time they entered into the stipulation concerning custody in January 2006 and further precluded Joshua from asserting this information as the basis of a material change in circumstances in the modification proceeding. However, neither Joshua nor the district court relied upon these earlier investigations in support of a finding of a material change in circumstances. Rather, it is clear that the material change in circumstances arose after the January 2006 stipulation and order when Austin was removed from Tina's home. There is nothing in the record to suggest that the 2007 removal and ensuing juvenile court proceedings were within Joshua's contemplation when he previously agreed to Tina's having custody of Austin.
Next, Tina argues that even if her involvement with the Department constitutes a material change in circumstances, the fact that the custody order being modified was entered into by stipulation of the parties is of some significance. She notes that in the 2006 stipulation, the parties agreed that Tina was a fit and proper person to have custody of Austin. She draws our attention to the proposition that a consent decree is usually treated as an agreement between the parties and is accorded greater force than ordinary judgments and ordinarily will not be modified over objection of one of the parties. Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998). However, orders concerning child custody are always subject to review and modification. See, Neb. Rev. Stat. § 42-366(7) (Reissue 2008); Deterding v. Deterding, 18 Neb. App. 922, 797 N.W.2d 33 (2011) (parties in proceeding to dissolve marriage cannot control disposition of matters pertaining to minor children by agreement). And, Joshua did not assert in the modification proceeding that Tina was unfit; rather, he argued that Austin's best interests required that his custody be modified. Further, the district court found that Tina was a fit parent, basing its decision instead on Austin's best interests. Thus, Joshua's agreement in 2006 that Tina was a fit parent does not preclude a finding of a material change in circumstances since that time.
In our de novo review, we conclude that the district court did not abuse its discretion in finding that a material change in circumstances had occurred and that custody with Joshua was in Austin's best interests. Austin was removed from Tina's home in February 2007 due to unsanitary conditions in the home. Tina failed to correct these conditions for at least another year, precluding reunification between her and Austin. In the court report contained in the record, the caseworker reports that although Tina had corrected the conditions in her home that brought her to the Department's attention, the Department had concerns regarding the length of time it had taken Tina to correct the conditions leading to Austin's adjudication. The caseworker noted that although Austin had expressed a preference to live with Tina, he appeared to be happy and healthy living with Joshua. The Department's recommendation at the closure of the juvenile case was that permanency be maintained for Austin and that he continue to live with Joshua. Austin was placed in Joshua's home in March 2007 and had lived continuously in Joshua's home for almost 3½ years at the time of the modification hearing. During that time, he improved his grades in school, became involved in extracurricular activities, and did not exhibit any behavioral issues. The record shows that Joshua has provided a stable environment for Austin and that Austin has no complaints about living with Joshua. The court did not abuse its discretion in determining that a material change in circumstances had occurred and that a modification of custody to place Austin with Joshua was in Austin's best interests.
CONCLUSION
The district court did not abuse its discretion in finding that a material change of circumstances existed warranting a change in custody of the parties' minor child.
AFFIRMED.