Kiser v. Grinnell

WILL C. KISER, APPELLEE, v. ARIEL P. GRINNELL, APPELLANT.

No. A-16-477.

NEBRASKA COURT OF APPEALS

February 7, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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 Washington County: JOHN E. SAMSON, Judge. Affirmed.

Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for appellant.

James A. Adams, of Law Offices of James A. Adams, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and INBODY and PIRTLE, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

Ariel P. Grinnell appeals from an order of the district court for Washington County granting a motion for new trial by Will C. Kiser on the basis of newly discovered evidence and vacating its prior decree of paternity and custody. Finding no abuse of discretion by the court, we affirm.

II. BACKGROUND

Ariel and Will are the parents of one minor child, S.G., born in August 2011. The parties have never been married.

1. COMPLAINT FOR ESTABLISHMENT OF PATERNITY,CUSTODY, AND VISITATION

On January 7, 2014, Will filed a complaint for establishment of paternity, custody, and visitation rights. Will requested that the parties be awarded joint legal custody, with sole physical custody to Ariel subject to reasonable and liberal parenting time by Will. At the time of this complaint, Will resided in Westminster, Colorado and Ariel resided in Ft. Calhoun, Nebraska. On February 10, 2014, Ariel filed an answer and counterclaim, requesting that she be granted both sole legal and physical custody of S.G.

2. TEMPORARY ORDER

On July 10, 2014, the district court entered a temporary order awarding the parties temporary joint legal custody, with sole physical custody of S.G. granted to Ariel. The temporary order also established parenting time, child support, and the division of health care and daycare expenses. In August 2014, Will moved to Williston, North Dakota as the result of an employment based relocation.

3. MOTION FOR LEAVE TO AMEND COMPLAINT

On June 17, 2015, Will filed a motion for leave to amend complaint, alleging that Ariel fabricated and/or embellished allegations of physical and sexual abuse by Will against S.G. Will's motion was granted. On July 9, Will filed an amended complaint, requesting sole legal and sole physical custody be awarded to him, along with child support. In the alternative, Will requested joint legal and joint physical custody of S.G. with a reasonable parenting time schedule. Ariel filed an answer denying that such an award should be made.

4. MOTION TO COMPEL

On September 1, 2015, Will filed a motion to compel, seeking the address and phone number of Ariel's boyfriend, Taylor. In support of this motion, Will stated that he sent discovery requesting Ariel to provide contact information for every person with knowledge or information concerning this matter. This request took the form of Interrogatory No. 13, which stated "[p]lease state the name, current address and phone number of each and every person who has knowledge or information concerning the matters contained within the pleadings in this matter, specifying for each person listed what occurrence, events, facts or circumstances such person has knowledge or information." Ariel disclosed 13 different people, but did not identify or disclose her current boyfriend, Taylor. Will further alleged that he sent a letter to Ariel's counsel requesting disclosure of Taylor's contact information, with no success. Lastly, Will alleged that "the statements that (Ariel) has made to (Taylor) are admissible evidence" and "[i]t is believed that (Ariel) has made comments to (Taylor) about this pending custody case and about (Will) himself."

On September 8, 2015, a hearing was held on this motion to compel. The court directed that "the name, address, and telephone number" of Taylor be disclosed by Ariel to Will. A corresponding journal entry was filed on September 10. On September 9, Will's counsel filed a praecipe for subpoena for Taylor to appear at trial on September 14 and 15, 2015.

5. TRIAL ON AMENDED COMPLAINT

A trial on Will's amended complaint occurred on September 14 and 15, and November 20, 2015, and February 4, 2016. Beyond his own testimony, Will called 11 witnesses, including a child and family services specialist with Nebraska Health and Human Services, a police detective, a mental health therapist, a preschool teacher, a children's hospital records custodian, a pediatricnurse practitioner with Project Harmony Child Advocacy Center, and the parties' respective parents. Ariel testified on her own behalf, and called Will and his father for rebuttal, but did not call any additional witnesses. Will offered numerous exhibits into evidence during this trial, including child protective services reports, medical records, Ariel's journal, photographs, financial records, a proposed parenting plan, and child support calculations. Ariel offered several exhibits into evidence at trial, including photographs, text messages, financial records, a proposed parenting plan, and child support calculations.

Taylor was not called by counsel for either party at trial. There is no record of Taylor being deposed by Will's counsel or any additional subpoenas being issued for Taylor. Will testified at the conclusion of trial that he and his counsel were unable to get the subpoena to appear at trial served upon Taylor. No return of service documents were included in the record.

We need not include in the background a recitation of all of the evidence adduced at trial, except to note that Kiser produced testimony attempting to show that Grinnell had made false allegations against him concerning abuse of S.G.

6. DECREE OF PATERNITY AND CUSTODY

On February 19, 2016, the court issued a decree of paternity and custody. The court awarded Ariel sole legal and physical custody of the minor child, finding such was in the best interest of the child, subject to reasonable and liberal parenting time with Will.

The court addressed the extensive testimony during trial regarding the physical and sexual abuse allegations directed at Will. The court made the following factual findings:

On or about March 8, 2015, (Ariel) observed a change in the behavior of the minor child shortly after picking her up from her monthly visitation with her father. (Ariel) and her mother described the problems they observed with the minor child's behavior such as nightmares, regression in potty training, and a more subdued personality after visits with her father. After consulting with a family friend in the healthcare industry, (Ariel) and her mother decided they needed to take the minor child to Children's Hospital emergency room to have her examined for the unusual behavior and hygiene issues they were observing. The hospital personnel advised that there were no signs of abuse or assaultive behavior or other serious health issues.

In addition to the March 8, 2015 visit to Children's Hospital, (Ariel) also presented the child, to various investigatory bodies, for abuse assessments on or about March 17, 2015, April 6, 2015, and April 16, 2015. No safety threats were identified by the investigatory personnel despite (Ariel's) various claims of physical and sexual abuse.

In following up on the unusual behavior of the minor child, (Ariel) also had the child examined by an experienced mental health pediatric therapist to provide counseling for the child's regression in potty training, nightmares, and general changes in the child's behavior which (Ariel) and mother observed. The therapist began her consultation with the minor child on or about March 26, 2015 and has had regular consultations with the child since that date.

The court subsequently addressed Will's argument in response to such allegations of abuse and resulting treatment as follows:

(Will) argues that (Ariel's) proclivity to subject a three year old child to multiple physical exams and interviews by investigatory bodies shows poor judgment on behalf of (Ariel) and a conspiracy by her family to restrict (Will's) access to the child. The Court found the maternal grandmother and grandfather to be credible witnesses in regard to what they saw and heard from (S.G.) and that there was not a maternal family conspiracy. It is possible, however, that (Ariel) overreacted to some of the child's physical conditions/bruises and to the statements and behavior of the minor child. Moreover, some of the events described by (Ariel) may have been somewhat embellished by her. With that said, the Court cannot say that the record is devoid of any facts which taken together, could not have created a reasonable suspicion, at the time, of something untoward happening while the child was with (Will). Even though, as indicated above, the abuse claims were investigated and no safety threats rising to the level of child abuse were found, the Court finds there were some visible marks on the child and some unusual behavior exhibited and statements made by the child which could lead to a reasonable suspicion. For instance, (i) there was a facial bruise which itself was not too alarming but must be considered in the totality of events; (ii) the child did regress in potty training; (iii) the child was suffering from nightmares (which the therapist has not been able to establish causation); and (iv) lastly there were somewhat unusual statements and actions made by the child. For example, during a forensic interview on March 17, 2015 at Project Harmony, the child did state that she had touched her father's penis - (Will) denied the child inappropriately touched him. In addition, shortly after the 2015 Easter visit with her father, the child exhibited unusual physical behavior which caused the preschool teacher to make a report to the public authorities. Moreover, the maternal grandparents observed the child acting out motions which mimicked male masturbation.

The court proceeded to...