State ex rel. Dawn M. v. Jerrod M.

861 N.W.2d 755

State of Nebraska on behalf of Dawn M., a minor child, appellee

v. Jerrod M., appelleeandAmber M., appellant.

No. A–14–607

Court of Appeals of Nebraska.

Filed April 7, 2015

James A. Wagoner, Grand Island, for appellant.

Charles R. Maser for appellee Jerrod M.

Moore, Chief Judge, and Inbody and Pirtle, Judges.

Syllabus by the Court

1. Child Custody: Appeal and Error.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.

2. Child Custody.In addition to the statutory factors relating to the best interests of the child, a court making a child custody determination may consider matters such as the moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension, regardless of chronological age, and when such child's preference is based on sound reasons; and the general health, welfare, and social behavior of the child.

3. Modification of Decree: Child Custody: Evidence: Time.Evidence of a 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. The focus is on the best interests of the child now and in the immediate future, and how the custodial parent is behaving at the time of the modification hearing and shortly prior to the hearing is therefore of greater significance than past behavior when attempting to determine the best interests of the child.

4. Judgments: Words and Phrases.A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result.

5. Evidence: Appeal and Error.Where 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 court heard and observed the witnesses and accepted one version of the facts rather than another.

6. Appeal and Error.An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Pirtle, Judge.

INTRODUCTION

Amber M. appeals the custody determination, made by the district court for Howard County, which awarded primary physical custody of the minor child, Dawn M., to Jerrod M., subject to parenting time as provided in the parenting plan. The court also ordered Amber to pay child support to Jerrod and denied Amber's application to move out of the State of Nebraska with Dawn. For the reasons that follow, we affirm.

BACKGROUND

Dawn was born in November 2006 and shares a last name with her mother, Amber. Dawn's father, Jerrod, was not aware of Dawn's birth until a year or two later, when he was served with notice that he was named as her father in a paternity case. Jerrod has a criminal history and has been incarcerated for most of Dawn's life. Amber also has a criminal history, but has been incarcerated only for short periods of time.

Janet S., Amber's mother, provided a home and daily care for Dawn for most of Dawn's life. Amber resided with Dawn and Janet for periods of time, but not continuously. In the summer of 2012, Amber contacted Lori P., Jerrod's mother, to see if she would take care of Dawn, and Dawn was removed from Janet's home. Dawn spent the summer of 2012 and the 2012–13 school year with Lori at her home in Smith Center, Kansas. In September 2012, Amber signed a consent form giving Lori and her husband “physical care” of Dawn and the authority to consent to “any medical, dental, surgical, emergency treatment and/or [the] release of medical information” related to Dawn. Dawn returned to Janet's home with Amber after the end of the 2012–13 school year in Smith Center. Dawn's school records indicate she struggled in some areas in school in Smith Center and noted areas where she needed to improve.

In August 2013, Dawn began living with Jerrod, and on August 20, a temporary order was entered granting Jerrod temporary custody. Dawn has resided with Jerrod since that

time. Jerrod filed a motion to modify custody, parenting time, and child support on August 21. During the 2013–14 school year, Dawn attended Banner County School. She demonstrated some improvement, but had some trouble in certain areas, and Jerrod decided to hold her back to repeat the first grade.

In January 2014, Amber moved to Riverdale, Utah, to live with her boyfriend, who is now her fiance. Amber filed a complaint to modify on January 13, and she filed a request to move out of the state with Dawn on February 3. She had visits with Dawn 5 to 10 times at Janet's home between September and December 2013, and she has not seen Dawn in person since December 2013. Amber has missed scheduled visits, but she has spoken with Dawn on the telephone.

The parties' complaints regarding custody, child support, and parenting time, and Amber's request to move out of the state, were addressed at trial on June 2, 2014. The parties stipulated that there had never been a permanent order establishing custody or parenting time and that the trial was held for that purpose. The court was also tasked with deciding whether to modify the child support order and, if Amber was awarded custody, whether she would be allowed to move out of the state with Dawn.

The court found that neither parent had been consistently present in Dawn's life, but that Jerrod has had day-to-day contact with her and has provided consistent care for her for the 10 months preceding the hearing. The court was “greatly concerned” with Jerrod's past criminal history, especially his convictions for assaultive behavior. However, the court found there was no evidence that indicated Dawn had been abused or placed in a dangerous situation since she was placed with Jerrod. The court found that Jerrod was taking the appropriate steps toward stability and providing for Dawn, including maintaining steady employment and providing for her physical care and educational needs. Ultimately, the court found it was in Dawn's best interests that Jerrod be awarded custody, subject to Amber's parenting time as set forth in the parenting plan. The court also ordered Amber to pay child support in the amount of $71 per month starting July 1, 2014. The

court denied Amber's motion to move Dawn out of the State of Nebraska.

ASSIGNMENTS OF ERROR

Amber asserts the court abused its discretion in awarding custody to Jerrod.

Amber also asserts the district court erred in failing to make any specific findings that Dawn can be adequately protected from harm and in failing to impose any limits reasonably calculated to protect Dawn, because Jerrod was previously convicted of a charge of domestic assault. Amber asserts the court erred in denying her request to move out of the State of Nebraska with Dawn and in devising a parenting plan that she deems unworkable.

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. Collins v. Collins, 21 Neb.App. 161, 837 N.W.2d 573 (2013).

ANALYSIS

Jerrod's Assault Conviction.

Amber asserts the trial court erred by granting custody to Jerrod without making specific findings pursuant to Neb.Rev.Stat. § 43–2932 (Reissue 2008), as he had been previously convicted of domestic assault. She asserts the court's implicit findings that granting custody to Jerrod was appropriate does not satisfy the statute's requirement of explicit findings. She referred to Jerrod's previous charge for domestic assault against his estranged wife and asserted that the trial court failed to make written findings that Dawn would be adequately protected in Jerrod's care.

Neb.Rev.Stat. § 43–2929 (Cum.Supp.2014) states that a parenting plan shall serve the best interests of the child pursuant to Neb.Rev.Stat. §§ 42–364, 43–2923, and 43–2929.01 (Cum.Supp.2014). Section 43–2929(1)(a) and (b)(ix) provides that the parenting plan should assist in developing a restructured family that serves the best interests of the child by accomplishing the parenting functions and should include

“[p]rovisions for safety when a preponderance of the evidence establishes child abuse or neglect, domestic intimate partner abuse, unresolved parental conflict, or criminal activity which is directly harmful to a child.”

Section 43–2932 provides guidance for when limitations should be included in the parenting plan for the protection of the child or the child's parent. Section 43–2932(1)(b) states that if a parent is found to have engaged in any activity specified in subsection (1)(a), such as domestic intimate partner abuse, then “limits shall be imposed that are reasonably calculated to protect the child or child's parent from harm.” Section 43–2932(3) states that if a parent is found to have engaged in any activity specified in subsection (1), the court “shall not order legal or physical custody to be given to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under such subsection.”

Section 43–2923(2) states that when a preponderance of the evidence indicates domestic intimate partner abuse, the best interests of the child require a parenting and visitation arrangement that provides for the safety of the “victim...