Lindblad v. Lindblad

309 Neb. 776

962 N.W.2d 545

Nathan M. LINDBLAD, appellant,

v. Jessica N. LINDBLAD, appellee,andNorman A. McConnell and Cheri B. McConnell, intervenors-appellees.

No. S-20-400.

Supreme Court of Nebraska.

Filed July 30, 2021

Jeffrey A. Gaertig, of Smith, Schafer, Davis & Gaertig, L.L.C., for appellant.

Jessica N. Lindblad, pro se.

Jeffrey B. Hubka, of Hubka & Hubka, Beatrice, for intervenors-appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Stacy, J.

In 2018, the district court modified the custody and parenting time provisions in a dissolution decree after finding the mother was not properly caring for the parties’ young child and was using controlled substances. The order of modification gave custody to the father and required the mother's parenting time to be supervised by the maternal grandparents. In 2019, the father sought to modify the order again, requesting to suspend the mother's supervised parenting time indefinitely because of her continued substance use. The district court denied the modification, finding there had been no material change in circumstances affecting the best interests of the child. In a separate order, the court granted the maternal grandparents’ complaint for grandparent visitation. The father appeals from both orders.

The primary issues on appeal are whether the mother's continued substance use and related arrests presented a material change in circumstances sufficient to support modification and whether the grandparents satisfied their burden of proof regarding grandparent visitation. Because our de novo review reveals no abuse of discretion in denying the requested modification or allowing grandparent visitation, we affirm.

I. BACKGROUND

Nathan M. Lindblad and Jessica N. Lindblad were married on a date which is unclear from our record. In 2013, a daughter, F.L., was born to the marriage. In November 2016, the parties divorced. Although the dissolution decree is not in our record, other evidence indicates the decree awarded Jessica physical custody of F.L., subject to Nathan's regular parenting time.

1. 2018 MODIFICATION

Sometime after the decree was entered, Nathan filed a complaint to modify, seeking a change in F.L.’s custody. That complaint is not in our record, but the basis for seeking modification is apparent from the face of the court's modification order, which was entered February 9, 2018. That order found there had been a material change in circumstances affecting the best interests of F.L., in that Jessica was no longer providing a safe, nurturing environment for the child. The court made a specific finding that Jessica had not been properly caring for F.L., and it recited that Jessica had obtained a drug and alcohol evaluation and a mental health evaluation, but had not complied with the treatment recommendations. Jessica had also been involved in dating relationships with men who physically assaulted her, and the court found she demonstrated a pattern of poor decisionmaking by continuing to have contact with one of her abusers and attempting to conceal it.

The modification order granted Nathan primary legal and physical custody of F.L., and it awarded Jessica supervised parenting time on alternating weekends from Friday at 6 p.m. until Sunday at 6 p.m. and on every Tuesday and Wednesday from 4 to 7:30 p.m. The court ordered Jessica's parenting time to be supervised by F.L.’s maternal grandparents. The modification order included a provision discouraging requests to modify Jessica's parenting time "until such time as she has completed both drug/alcohol and mental health counseling ... and has demonstrated the ability to maintain sobriety for a significant period of time thereafter."

2. COMPLAINT TO MODIFY AND EX PARTE ORDER SUSPENDING VISITATION

Approximately 15 months later, in May 2019, Nathan filed another complaint to modify, this time asking that Jessica's parenting time be suspended indefinitely. His complaint alleged there had been a material change in circumstances affecting the best interests of F.L., in that Jessica had been arrested and charged with several drug offenses since the last modification. The complaint alleged that Jessica's most recent arrest occurred at a sports facility immediately following F.L.’s youth soccer game. Based on these events, Nathan alleged Jessica had "deliberately and knowingly exposed [F.L.] to narcotics" during her parenting time and was no longer "a fit and proper person to have parenting time."

Along with the complaint to modify, Nathan filed a motion requesting an ex parte order immediately suspending Jessica's parenting time; the motion was supported by Nathan's affidavit and the affidavit of the officer who arrested Jessica after the soccer game. Nathan's affidavit recited that Jessica had been arrested after the soccer game and that Jessica knew her purse contained methamphetamine while she was holding F.L. on her lap. The officer's affidavit stated that Jessica was approached by officers in the parking lot after the soccer game and advised of an active arrest warrant for driving under suspension and no proof of insurance. Jessica was carrying a purse at the time, and she gave officers consent to look inside it. When they did, they found what later tested positive for methamphetamine. Jessica was arrested on the warrant and for possession of a controlled substance and possession of drug paraphernalia.

Based on these affidavits, the court issued an ex parte order suspending Jessica's parenting time pending an evidentiary hearing. After that hearing, the court entered a temporary order reducing Jessica's supervised parenting time to 4 hours each Wednesday, to be supervised by "Better Living Counseling Services or [a] similar agency." The temporary order required Jessica to pay the costs of such supervision, and it expressly conditioned each visit upon Jessica's passing a drug screen and submitting to a search of her person.

3. GRANDPARENT INTERVENTION AND TEMPORARY AGREEMENT

A few months later, the maternal grandparents intervened in the modification action to file a complaint seeking grandparent visitation with F.L. The parties agreed to a consolidated trial on Nathan's complaint to modify and the grandparents’ complaint for visitation.

Before trial occurred, Nathan and the grandparents mediated a temporary agreement under which the grandparents would have regular visitation with F.L. for 5 hours every other Sunday afternoon. The mediated agreement provided that Jessica would not be present during the grandparents’ temporary visitation. The court entered a temporary order consistent with the parties’ mediated agreement.

4. TRIAL EVIDENCE

In May 2020, the consolidated trial was held. Jessica appeared pro se, and all other parties appeared with counsel. Nathan's complaint to modify was tried first, followed by the grandparents’ complaint for visitation. As pertinent to the issues on appeal, the following evidence was adduced.

(a) Nathan

Nathan testified that he and his current wife have four children between them, ranging in age from 4 months to 10 years.

Nathan stated he filed the complaint to modify because Jessica had drugs in her purse at the soccer game and F.L. was playing "at least within two f[ee]t" of the purse. He admitted the grandparents were at the soccer game supervising F.L.’s interactions with Jessica. Nathan testified that after the game, he was walking with F.L. to his vehicle when he saw police officers approaching Jessica. Nathan saw what was happening and took steps that prevented F.L. from seeing Jessica's arrest. Nathan testified that was Jessica's third arrest for drug possession.

Nathan admitted he was aware, before the 2018 custody modification, that Jessica had a problem with drug use. But he testified the problem was "not getting better" and he was particularly concerned about Jessica's most recent arrest at F.L.’s soccer game because drugs were found in Jessica's purse and F.L. had been near the purse. Nathan admitted that F.L. had not been present during Jessica's other arrests. In response to a question from the court, Nathan testified that the only time he thought F.L. was in danger was when Jessica was arrested at the soccer game; Nathan did not believe F.L. had ever been in danger when the grandparents were supervising Jessica's parenting time.

Nathan asked the court not to reinstate Jessica's parenting time until she demonstrated the ability to maintain sobriety. He proposed that Jessica's parenting time be suspended altogether until her pending criminal cases were resolved.

Thereafter, Nathan proposed a phased parenting plan under which Jessica would initially have supervised parenting time at an agency like Better Living Counseling Services (Better Living), where she could be screened for drugs. Assuming that went well, Nathan proposed that Jessica's parenting time could progress to being supervised by the grandparents, and eventually progress to being unsupervised.

With respect to the grandparents’ complaint for visitation, Nathan agreed that F.L. had a significant beneficial relationship with her maternal grandparents, and he testified that he wanted that relationship to continue. But Nathan opposed a set visitation schedule with the grandparents, and instead, he preferred to have discretion as to when F.L. would see her grandparents, similar to the discretion Nathan exercised with respect to his own parents. Nathan did not think the temporary grandparent visitation schedule agreed to by the parties had been working well with his family's busy schedule, explaining:

The weekends are when we have the time to spend with our family.... With sporting events and stuff, I just — it's not fair, like, okay, we are going to a sporting event and [F.L.] has to stay back because she has to go see grandma and grandpa instead of staying in a motel and swimming and she misses out on family functions.

Nathan also testified that sometimes F.L. "[did not] listen" after she returned from...