State v. Joseph B., A-17-920

STATE OF NEBRASKA ON BEHALF OF BROOKLYNN H., A MINOR CHILD, APPELLEE, v. JOSEPH B., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT,AND CHARLOTTE H., THIRD-PARTY DEFENDANT, APPELLEE,AND PHILIP B. AND MARIA B., INTERVENORS-APPELLEES.

STATE OF NEBRASKA ON BEHALF OF BROOKLYNN H., A MINOR CHILD, APPELLEE, v. JOSEPH B., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,AND CHARLOTTE H., THIRD-PARTY DEFENDANT, APPELLEE,AND PHILIP B. AND MARIA B., INTERVENORS-APPELLANTS.

No. A-17-920

No. A-17-944.

NEBRASKA COURT OF APPEALS

July 3, 2018

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).

Appeals from the District Court for Otoe County: MICHAEL A. SMITH, Judge. Affirmed.

Joseph B., pro se.

Philip B. and Maria B., pro se.

Michael Ziskey, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O., for appellee Charlotte H.

PIRTLE, RIEDMANN, and BISHOP, Judges.

BISHOP, Judge.

In case No. A-17-920, Joseph B. appeals the decision of the district court for Otoe County that awarded Charlotte H. custody of the parties' minor child, Brooklynn H., and denied him visitation with Brooklynn at the correctional facility where he is incarcerated. He also challenges the district court's ruling on his numerous motions.

In case No. A-17-944, Philip B. and Maria B. (Joseph's parents and Brooklynn's grandparents) appeal the amount of grandparent visitation time awarded to them by the district court.

We affirm the district court's decision in both appeals.

BACKGROUND

Joseph and Charlotte are the parents of Brooklynn, born in 2011. In January 2012, the State filed a complaint to establish paternity and support, alleging that Joseph was Brooklynn's biological father and should be required to pay child support. In October, the district court entered an order of support finding that Joseph was Brooklynn's father and ordering him to pay child support in the amount of $10 per month, noting he was incarcerated. The order did not address custody or parenting time.

In August 2012, following a jury trial, Joseph was convicted in Gage County, Nebraska, of first degree sexual assault, first degree false imprisonment, strangulation, and third degree domestic assault; he was subsequently sentenced to imprisonment for a total of 26 years 8 months to 41 years. In March 2016, he pled guilty in federal court to production and transportation of obscene material for distribution and was subsequently sentenced to imprisonment for 36 months, to be served consecutively to the sentence imposed by the State of Nebraska.

In January 2017, Joseph filed a complaint to modify the order of support, asking the court to provide him visitation with Brooklyn while he is incarcerated. In February, Charlotte filed a "Cross-Complaint to Modify Order," alleging that there was no existing custody order and asking the court to award her legal and physical custody of Brooklynn.

In May 2017, Philip and Maria filed a motion for leave to intervene in the matter for the purpose of establishing grandparent visitation with Brooklynn. After a hearing, the district court granted Philip and Maria leave to intervene in the proceedings. They then filed a "Counter Complaint for Modification," asking the court to award them grandparent visitation with Brooklynn every other weekend. They also asked the court to name them as "temporary guardians" in the event Charlotte is rendered unable to care for Brooklynn. In June, Joseph filed an answer stating that he was in favor of his parents' requests; Charlotte filed an answer opposing their requests and pointing out that the district court lacked jurisdiction over guardianships.

On June 12, 2017, Joseph filed a motion to compel discovery pursuant to Neb. Ct. R. Disc. § 6-337(3). He alleged that he had served interrogatories, requests for production of documents, and requests for admissions on Charlotte's attorney on March 27, but that most of the answers and responses to his discovery requests were "evasive or incomplete" and should be "treated as a failure to answer." In its June 14 order, the court said the motion to compel would be heard immediately prior to the commencement of trial on July 18, as there was not an earlier date available.

On June 22, 2017, Joseph filed a motion for the appointment of counsel and a motion to continue the trial until such time as discovery is completed. He noted that the motion to compel was set to be heard the same day trial was set, and that did not give him adequate time to prepare for trial. In its June 23 order, the court said both motions would be heard immediately prior to the commencement of trial on July 18, as there was not an earlier date available.

On July 5, 2017, Joseph filed a motion for leave to amend his complaint so that he could request that the court name Philip and Maria temporary guardians in the event that Charlotte is unable to care for Brooklynn. He also wanted to ask the court to change Brooklynn's surname.

The matter came on for hearing on July 18, 2017. Joseph, acting pro se, appeared telephonically. Philip and Maria appeared pro se. Charlotte appeared with counsel. Prior to the start of trial, the court denied Joseph leave to file an amended complaint, and denied his motions for the appointment of counsel, to compel, and to continue trial. The matter then proceeded to trial and testimony was adduced, as will be discussed later in our analysis.

In its order filed on August 2, 2017, the district court awarded legal and physical custody of Brooklynn to Charlotte after finding that she was a fit and proper person to be awarded custody and that the custody award was in the child's best interests. The court ordered that Brooklynn shall not visit Joseph while he is incarcerated, but that visitation at some future date would not be precluded when there was evidence that the child would not be adversely affected. Joseph was awarded telephone parenting time with Brooklynn "at reasonable times as agreed upon by the parties." Finally, the court awarded Philip and Maria grandparent visitation with Brooklynn every other week from Friday at 5:30 p.m. until Sunday at 5 p.m., and also provided them visitation with Brooklynn on Father's Day.

Joseph's "Motion for New Trial and Motion to Alter or Amend" was denied. However, Charlotte's motion to reconsider the length of the grandparent visitation was granted, and the court amended its order to award grandparent visitation every other weekend from Saturday at 5:30 p.m. until Sunday at 5 p.m.; the remainder of the prior order remained in effect.

Joseph, acting pro se, appeals in case No. A-17-920. Philip and Maria, acting pro se, appeal in case No. A-17-944. The two appeals were consolidated for briefing and disposition.

ASSIGNMENTS OF ERROR

Joseph claims the trial court erred by (1) denying his motion for leave to amend his complaint, (2) denying his motion to compel discovery, (3) denying his motion to continue, (4) finding Charlotte a fit and proper parent for the care and custody of Brooklynn, (5) denying him visitation with Brooklynn while he is incarcerated, and (6) denying his motions for new trial and to alter or amend. Philip and Maria claim the trial court erred by amending its order to reduce their grandparent visitation time.

STANDARD OF REVIEW

Child custody and parenting time 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. See State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208 (2016).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

LEAVE TO AMEND

Permission to amend pleadings is addressed to the discretion of the trial court; absent an abuse of discretion, the trial court's decision will be affirmed. Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014). Generally, leave to amend a party's pleading shall be freely given when justice so requires. Id.

Trial took place on July 18, 2017. Prior to proceeding with the trial, the court addressed Joseph's motion for leave to amend the complaint. Joseph explained that he would like to be able to amend his complaint because he wanted his parents to be "standby guardians" in the event "something happened." Joseph also wanted to change Brooklynn's last name. Charlotte's counsel objected, noting that guardianship issues cannot be addressed by the district court. Charlotte did not have an objection to Joseph amending his complaint regarding the name change, but was not prepared to have that issue tried that day. The court overruled Joseph's motion to amend as to both requests. The district court stated it did not have jurisdiction over guardianships. And as for the name change, the court noted the case had been set for trial for some time and an amendment "at this late date" would require a continuance, and it was in the best interests of the child that they proceed on custody.

The district court did not abuse its discretion when it denied Joseph leave to amend his complaint to have his parents named "standby guardians" because, as it noted, the district court does not have jurisdiction over guardianships. See Neb. Rev. Stat. § 24-517(2) (Reissue 2016) (county court shall have "[e]xclusive original jurisdiction in all matters relating to the guardianship of a person, except if a separate juvenile court already has jurisdiction over a child in need of a guardian, concurrent original jurisdiction with the separate juvenile court in such guardianship").

As for leave to amend the complaint to request that Brooklynn's last name be changed, justice did not require that leave be given. The issues currently...