State ex rel. Tyrell T. v. Arthur F.

STATE OF NEBRASKA ON BEHALF OF TYRELL T., A MINOR CHILD, APPELLEE, v. ARTHUR F., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE AND TYLETHA T., THIRD-PARTY DEFENDANT, APPELLANT.

No. A-12-1024

NEBRASKA COURT OF APPEALS

Filed August 20, 2013

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: JAMES T. GLEASON, Judge. Affirmed.

Scott M. Mertz, of Legal Aid of Nebraska, for appellant.

Wesley S. Dodge for appellee Arthur F.

PIRTLE and RIEDMANN, Judges, and MULLEN, District Judge, Retired.

PIRTLE, Judge.

INTRODUCTION

Tyletha T. appeals from an order of the district court for Douglas County awarding custody of Tyrell T. to Arthur F. Tyletha challenges the trial court's custody determination and the court's failure to make specific findings as to why it did not implement the parties' partial parenting plan. Based on the reasons that follow, we affirm.

BACKGROUND

Tyletha and Arthur are the biological parents of Tyrell, born in September 2006. The parties were never married and were not a couple when Tyrell was born. The State filed an action for paternity and child support against Arthur. In March 2007, the trial court entered an "Order for Support" finding that Arthur was Tyrell's biological father and ordering him to pay child support to Tyletha.

In September 2011, Arthur filed a motion to add Tyletha as a third-party defendant to the child support case, which was granted. He then filed an application to modify, alleging that there had been a substantial and material change in circumstances since the order for support was entered, specifically, that Tyletha had refused to allow visits between him and Tyrell since the entry of the order. Arthur requested that he be awarded custody of Tyrell.

In October 2011, the court entered an order awarding Tyletha temporary custody of Tyrell, subject to Arthur's parenting time.

In December 2011, Tyletha filed an answer and counterclaim in response to Arthur's application to modify, alleging that she should be awarded custody.

In a second temporary order, entered in January 2012, the trial court took legal custody of Tyrell, but placed physical custody with Tyletha. The court also dismissed a protection order that Tyletha had obtained against Arthur in September 2011.

Trial was held in April 2012 on Arthur's application to modify and on Tyletha's counterclaim. The State asked that child support be set according to the Nebraska Child Support Guidelines and stated that it had no position on the issue of custody. The State was excused and did not participate in the trial.

Tyletha testified that she has always been Tyrell's primary caregiver and that he has never lived with Arthur. Tyletha and Tyrell lived with Tyletha's father for a few months after Tyrell was born, but Tyletha has provided housing for Tyrell since then. She testified that she has been employed during most of Tyrell's life and was employed at the time of trial. She testified that when she is at work, Tyrell is either at her sister's house or in daycare.

Tyletha testified that in addition to Tyrell, she has one other child, who was born a few months before trial, and that she and the father of that child were still together as a couple, but were not living together. She testified that she was living with her two children and no other adults at the time of trial.

Tyletha was questioned about pictures she posted on her "Facebook" account on the Internet. She admitted that she had posted photographs of herself at "clubs" and that she does "go out" sometimes. She also admitted that men have posted comments about some of the photographs on her "Facebook" page. None of the pictures or comments were entered into evidence.

Tyletha was also asked about a statement she had on her "Facebook" account, which statement said that "[she] could never make someone a priority. To them, [she's] just an option." She explained that she meant "don't dedicate yourself to a person if you know they really don't like to - to them you're nobody. Like if you're nobody to somebody, they're not a big thing in your life." She also admitted that her "Facebook" page says "I'm a bad mother (expletive) all by myself. Look at me." Tyletha testified that those words are lyrics from a song that she liked.

Arthur was engaged at the time of trial and living with his fiance. Arthur's fiance has two children of her own, and they reside with her and Arthur. Arthur has two children from another relationship; the mother has custody of those children, and he has visitation with them every other weekend. Arthur testified that he has a good relationship with his other children's mother and that she often allows him visitation time in addition to the time set forth in the custody order.

Arthur testified that he started spending time with Tyrell after it was established that he was his father. At first, he would go to Tyletha's home to see Tyrell, and then eventually, hestarted spending time with him at his own residence. He testified that in 2008, Tyrell stayed with him for 3 or 4 weeks because Tyletha was in jail.

Arthur testified that before Tyrell's kindergarten year began in fall 2011, Tyrell spent more than 50 percent of the summer with him. Tyletha disagreed with Arthur's testimony, stating that Arthur had Tyrell during the summer only every other weekend and at other various times at Arthur's request.

When the parties registered Tyrell for kindergarten, they agreed to enroll Tyrell in a school that was near Arthur's residence so that Arthur could take Tyrell to school and pick him up. The parties listed Arthur's residence as Tyrell's primary residence in the paperwork filed with the school, and Tyletha's residence was listed as a secondary residence. Arthur testified that he and Tyletha agreed that during the school year, Tyrell would stay with him every week from Sunday through Thursday and Tyletha would pick up Tyrell after school on Thursday and have him until Sunday. Tyletha denied that she had agreed to that arrangement.

Tyletha testified that Tyrell stayed with her the night before his first day of kindergarten and that she met Arthur in the morning and he took Tyrell to school. Arthur testified that he took Tyrell to school on his first day, but that Tyrell stayed with him the night before and not with Tyletha, as she claimed.

Less than 2 weeks into the school year, Tyrell got in trouble at school. Arthur was contacted by the school, and he picked up Tyrell early from school that day. Arthur testified that the school asked him to pick up Tyrell. Tyletha testified that the school did not request that Tyrell be taken home early. Arthur testified that he disciplined Tyrell for getting in trouble by spanking him over his clothes. Tyletha claimed that Arthur spanked Tyrell and grabbed him by his neck, choking him. Arthur denied choking Tyrell or otherwise abusing him. Tyletha called Child Protective Services, and she filed for a protection order against Arthur based on allegations that Arthur had abused Tyrell. The protection order was granted in September 2011. There were no charges filed against Arthur, and Child Protective Services found the allegations of abuse against Arthur to be unfounded. The court dismissed the protection order in January 2012.

Tyletha testified that despite her allegations that Arthur physically abused Tyrell, she had been letting Arthur have an extra overnight visit every week in addition to what was set forth in the temporary order.

After Tyrell got in trouble at school, Tyletha also took him out of the school he was in and registered him at another school close to where she lived. Tyletha did this without consulting Arthur.

Arthur testified that on the days he picks up Tyrell from school, Tyletha does not send Tyrell's bookbag with him to school. Arthur testified that he spoke with Tyrell's teacher about the issue, and as a result, the teacher now provides Tyrell with a folder for bringing home papers and books on days that Arthur picks him up. Arthur has also communicated with Tyrell's teacher about Tyrell's reading skills. Tyrell was behind on learning the words he needed to know before moving to first grade. The teacher provided Arthur with materials to help Tyrell practice his reading, and Arthur has worked with him. Arthur testified that he communicates with Tyrell's teacher a couple times per month. Arthur testified that he believes Tyrell's education should be a top priority and believes it is very important to Tyrell's success later in life.

At the time of trial, Tyrell had missed a few days of school at the direction of his doctor because he had impetigo, a contagious skin infection. Arthur testified that Tyrell has had impetigo numerous times, which he claimed was caused by Tyrell's being dirty. He also testified that Tyrell often has soiled underwear when he comes to his house. Tyletha testified that there was only one time that Arthur told her that Tyrell's underwear was soiled.

Arthur testified that he has concerns about Tyletha's parenting style and does not believe that she disciplines Tyrell. He testified that if Tyrell denies doing something that his teacher says he did, Tyletha believes Tyrell over the teacher. Arthur testified that Tyrell is never at fault in Tyletha's eyes and that she does not hold him accountable for what he does. Arthur testified that Tyletha's lack of discipline, especially when Tyrell gets in trouble at school, is the source of many arguments between them.

Arthur testified that Tyletha has used violence against him in the presence of Tyrell numerous times. At the time of trial, there were charges pending against Tyletha as a result of an altercation with Arthur in December 2011 in which she allegedly assaulted Arthur. There were no charges pending against Arthur as a result of the altercation. Tyletha...