Adams v. Adams

• Citation: 13 Neb. App. 276,691 N.W.2d 541
• Decision Date: 18 January 2005
• Docket Number: No. A-04-228.,A-04-228.
• Parties: James Merle ADAMS, appellee, v. Amy Sue ADAMS, now known as Amy Sue Fox, appellant.
• Court: Nebraska Court of Appeals

691 N.W.2d 541

13 Neb. App. 276

James Merle ADAMS, appellee, v. Amy Sue ADAMS, now known as Amy Sue Fox, appellant.

No. A-04-228.

Court of Appeals of Nebraska.

January 18, 2005.

Terrance A. Poppe and Nick Froeschl, of Morrow, Poppe, Otte, Watermeier & Phillips, P.C., Lincoln, for appellant.

David W. Rowe, of Kinsey, Ridenour, Becker & Kistler, L.L.P., Lincoln, for appellee.

INBODY, Chief Judge, and IRWIN and CARLSON, Judges.

INBODY, Chief Judge.

INTRODUCTION

Amy Sue Adams, now known as Amy Sue Fox, appeals from the judgment of the Lancaster County District Court denying her petition for modification of child custody. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

Amy and James Merle Adams were married on June 9, 1984. Two children were born to them during the course of the marriage: Mandi Adams, born on September 24, 1984, and Whitney Adams, born on May 7, 1987. The parties' marriage was dissolved on February 2, 2000, and the parties agreed at that time that James should have sole physical custody of both daughters, subject to Amy's rights of visitation. The parties agreed to share legal custody, and Amy agreed to pay $50 per month in child support to James.

On March 25, 2002, Amy filed a petition to modify the custody of Whitney. James filed a cross-petition for increased child support on April 5. The matter came on for trial on July 2, but prior to completion of the trial, both parties orally moved to dismiss their respective petitions.

On February 27, 2003, Amy filed another petition to modify Whitney's custody. In her petition, she alleged that James did not adequately provide for Whitney's daily needs and necessities of life, that his lifestyle and living arrangements were not appropriate for Whitney, that Whitney desired to live with Amy, and that it was in the best interests of Whitney to have her custody be awarded to Amy. James again filed a cross-petition for increased child support. Amy filed a motion for temporary custody of Whitney on August 12, and that motion was denied on August 29. James filed a motion for an order to show cause. The motion alleged that despite the district court's denial of Amy's motion for temporary custody, Amy was "willfully and contumaciously violating the [dissolution] Decree. For weeks, [Amy] has been exercising sole physical custody over ... Whitney [and] refusing to return sole physical custody to [James]." The motion requested that the court order Amy to "show cause why [Amy] should not be found in contempt" and to comply with the court's denial of her motion for temporary custody. On November 13, Amy was ordered to show cause why she should not be found in contempt, and at a hearing on January 8, 2004, "the parties informed the court that Whitney was spending more time with James." Although it did not do so explicitly, the district court, it appears by implication, declined to find Amy in contempt.

A hearing on Amy's second petition to modify was held on January 14, 2004. Whitney was called as Amy's first witness. She testified that she was in the 11th grade and that she had a "B" average in school. Whitney also testified that she worked 25 to 30 hours per week at a restaurant. Whitney said that she felt that Amy's house was her home, that Amy's house was only four blocks from James' house, and that she preferred to live with Amy. Whitney said that when she stays at James' house,

I go to sleep anywhere — usually 11:30 when I get home from work and I wake up at 6:00 and I go to [Amy's] because that's where all my stuff is and it is easier that way and I leave for school around 7:15 and I go to school and then I come back home around 2:30 and I go to work at 5:30 and then go back to [James'] at 11:30.

Whitney testified that when she goes to Amy's house after school and spends the afternoon there, she often watches television with Amy. Whitney also testified that Amy is the parent who takes her shopping or to the doctor and that if she needs to discuss personal issues, Amy is the parent in whom she confides.

Whitney further testified that her schedule conflicted with James' schedule so that they did not see each other very often. She said that she is often asleep when James gets home and that she leaves in the morning before James wakes up. She also said that if she eats breakfast, it is at Amy's house, and that she eats dinner at Amy's house as well. When asked why she thought it would be better if she lived with Amy, Whitney said that Amy is "home when I'm home and it is just — I think it would be a lot easier because me sleeping at [James'] and going to [Amy's], I think it is pointless for me to do that." Whitney also testified that her curfew is the same at both Amy's house and James' house and that she has basically the same chores at each house. Whitney indicated that neither Amy nor James puts restrictions on her visitation time with the other parent.

Whitney next testified that while Amy does not say derogatory things about James, James "[s]ometimes" says derogatory things about Amy. Whitney acknowledged that Amy has had problems with drinking in the past, but asserted that she had not seen Amy or Amy's husband, Bill Fox, drink in nearly 2 years. She said that Amy assisted her financially on occasion and that James did "[n]ot really" help her financially.

On cross-examination, Whitney admitted that at the time of Amy and James' divorce in 2000, Whitney wanted to live with James "because [Amy] was drinking." However, Whitney claimed that her preference changed "[a]fter a couple of months with living with [James]." Whitney testified that as recently as May 2002, Amy was drinking heavily, would black out occasionally, and would argue with Bill. Whitney said that Amy and Bill had been in physical altercations during which Amy was injured. Whitney also testified that Amy went to alcohol abuse treatment in May 2002. Whitney admitted that she had disobeyed the district court's temporary custody order by staying at Amy's house on nights she was to spend at James' house, but she indicated that she would abide by the court's decision regarding Amy's petition. Whitney also admitted that James allowed liberal visitation to Amy. On redirect examination, Whitney testified that she had no concerns about living with Amy and Bill and that if her custody were placed with Amy, she could still see James regularly.

Amy testified that she was 42 years old and that she had been married to Bill for 1 1/2 years. She said that she was employed by Lincoln Public Schools as a cafeteria manager and that she worked from 7 a.m. to 1:15 p.m., Monday through Friday. She testified that she thought it was in Whitney's best interests to live with her because Amy is "home all the time [and Whitney] is a girl. We understand each other. I feel I can provide a better home for her. I don't think that [James] doesn't love her. I just don't think there is enough time there and I feel she's 16 and needs supervision." Amy admitted that she was an alcoholic, but that she had not used alcohol since April 19, 2002, and that she had been to an alcohol abuse treatment program. When asked how she dealt with her alcoholism, Amy said that she has "a great support system at home. [Bill] is also an alcoholic. He no longer drinks either. We do a lot — a little bit of reading with our AA books and my family."

Amy further testified that Whitney does her homework at Amy's house and that Amy and Whitney discuss Whitney's scholastic decisions together. Amy said that in the afternoons when she spends time with Whitney, they "usually sit and visit for a little bit or watch TV." Amy testified that Whitney generally eats her evening meal at Amy's house and that Amy cooks the evening meal. When asked whether there were additional reasons why she felt it was in Whitney's best interests to live with her, Amy said that "we need closure on this. It's been real hard on her and if her grades have been struggling or maybe not as good as they have been, she's been going through an emotional thing and, um, I feel like I can give her a more stable environment." Amy also said that she would not restrict Whitney's contact with James. Amy testified that Whitney is a mature girl who has given considerable thought to her living arrangements.

On cross-examination, Amy admitted that James allowed Whitney to visit Amy "pretty much whenever she wanted." Amy further admitted that she suffers from obsessive-compulsive disorder and that she takes medication to control it. She said that she had suffered from bulimia in the past, but not in the past 10 years. When asked whether James was "generally a pretty decent father," Amy replied that James "loves his children very much."

James testified that he lived four blocks from Amy and that he worked from 8 a.m. to 5 p.m., Monday through Friday. When asked why he thought it was important that he retain physical custody of Whitney, James replied that he "worr[ied] about Whitney's safety until she's out of high school. I've seen history from [Amy and Bill] showing violence and drinking and other behaviors that Whitney seems to be picking up." James did admit that he had not witnessed any questionable behavior by Amy or Bill in the past 1 1/2 years, but that he was concerned about the possibility that they could begin drinking again, because he had "seen Amy relapse once already." When asked again for his primary reasons for wanting to maintain physical custody of Whitney, James said that his "main reason is I love [Whitney] very much and I miss her when I don't get to see her. Secondly, I worry about her safety, yes, until she gets out of high school and she's able to be on her own." On cross-examination, James did admit that he is occasionally at his girl friend's house when Whitney gets off work at 11:30 p.m. When asked whether it would "make sense [for him to] be home at 11:30 so [Whitney] doesn't come home to an empty house," James replied that he is "home...