Aguilar v. Schulte

• Decision Date: 10 June 2014
• Docket Number: No. A–13–541,A–13–541
• Parties: Jose Aguilar, appellee, v. Rachel Schulte, appellant.
• Court: Nebraska Court of Appeals

22 Neb.App. 80

848 N.W.2d 644

Jose Aguilar, appellee,

v.Rachel Schulte, appellant.

No. A–13–541

Court of Appeals of Nebraska.

Filed June 10, 2014

Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Affirmed.

James Walter Crampton for appellant.

Catherine Mahern, Nathaniel Romano, and Kathleen Kennedy, Jayne Wagner, and Ajla Aljic, Senior Certified Law Students, of Milton R. Abrahams Legal Clinic, for appellee.

Irwin, Riedmann, and Bishop, Judges.

Syllabus by the Court

1. Child Custody. The requirement in Neb.Rev.Stat. § 42–364 (Cum.Supp.2012) that a court make a specific finding of best interests before awarding joint custody of a child is inapplicable when the parents were never married.

2. Child Custody: Due Process. The due process jurisprudence regarding joint custody under Neb.Rev.Stat. § 42–364 (Cum.Supp.2012) is incorporated into parenting plan orders entered under the Parenting Act found in chapter 43 of the Nebraska Revised Statutes.

3. Child Custody. When a court has determined that joint physical custody is, or may be, in a child's best interests but neither party has requested joint custody, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody.

4. Child Custody: Due Process: Notice. Without notice that joint custody will be considered, parties do not receive adequate due process in preparing for the custody hearing.

5. Paternity: Parental Rights: Child Custody: Notice. In a paternity case subject to the Parenting Act where neither party has requested joint custody, if the court determines that joint physical custody is, or may be, in the best interests of the child, the court shall give the parties notice and an opportunity to be heard by holding an evidentiary hearing on the issue of joint custody.

6. Child Custody. The factual inquiry necessary to impose joint physical custody is substantially different from that required for making a sole custody determination.

7. Child Custody: Evidence. The focus of evidence necessary for a determination of joint custody focuses on the parents' ability to communicate with each other and resolve issues together.

8. Visitation. A court determines the nature and extent of visitation rights on a case-by-case basis and may consider many factors and circumstances in each individual case, such as the age and health of the child, the character of the noncustodial parent, the place where visitation rights will be exercised, the frequency and duration of visits, the emotional relationship between the visiting parent and the child, the likely effect of visitation on the child, the availability of the child for visitation, the likelihood of disrupting an established lifestyle otherwise beneficial to the child, and, when appropriate, the wishes of the child.

9. Visitation. Although limits on visitation are an extreme measure, they may be warranted where they are in the best interests of the children.

10. Visitation. Allowing a child time with grandparents is in the child's best interests.

11. Courts. A court does not err in requiring one party to execute documents to comply with the court's order.

12. Judgments: Final Orders. Conditional judgments are ineffective and void.

13. Pretrial Procedure. Generally, the effect of a pretrial order is to control the subsequent course of the action.

14. Pretrial Procedure. Litigants must adhere to the spirit of the pretrial procedure and are bound by a pretrial order to which no exception has been taken.

Riedmann, Judge.

INTRODUCTION

Rachel Schulte appeals from the order of the Douglas County District Court awarding her and Jose Aguilar joint physical custody of their minor child and allowing Aguilar to travel out of the country with the child. We find no abuse of discretion by the district court and therefore affirm the court's order.

BACKGROUND

Aguilar and Schulte are the biological parents of a son, born in 2009. The parties never married, but Aguilar's paternity of the child was established by the court in December 2009, and he was ordered to pay child support. On March 24, 2010, Aguilar filed a complaint in the district court requesting joint custody of the minor child and reasonable parenting time. The district court entered a temporary order granting the parties joint legal custody and awarding primary physical custody of the child to Schulte, subject to Aguilar's parenting time.

Through mediation, the parties were able to agree on a partial parenting plan, including joint legal custody and holiday parenting time, but they were unable to agree on physical custody, weekday parenting time, or vacation time. Trial was held on these issues on March 6 and 7, 2013. Thereafter, the district court entered an order finding that Aguilar and Schulte were both fit and proper parents and awarding the parties joint legal and physical custody of the minor child. The partial parenting plan agreed upon by the parties was adopted by the court. The court also allowed Aguilar to travel with the minor child to Mexico during his parenting time, and it ordered Schulte to cooperate in obtaining a passport for the child and executing any documentation necessary for the child to travel internationally. Schulte timely appeals to this court.

ASSIGNMENTS OF ERROR

Schulte assigns that the district court erred in (1) awarding joint physical custody of the minor child, (2) ordering Schulte to cooperate in obtaining the child's passport and executing the necessary documents for the child to leave and reenter the United States, and (3) sustaining Aguilar's objection to a certified copy of an arrest warrant for his arrest.

STANDARD OF REVIEW

Child custody determinations, 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. Hill v. Hill, 20 Neb.App. 528, 827 N.W.2d 304 (2013).

ANALYSIS

Joint Physical Custody.

Schulte argues that the district court erred in awarding joint physical custody for two reasons. First, she claims the court erroneously did not make a specific finding that joint physical custody was in the child's best interests as required by Neb.Rev.Stat. § 42–364 (Cum.Supp.2012). Additionally, she asserts that the court failed to satisfy procedural due process because neither party requested joint physical custody and the court failed to hold an evidentiary hearing on the issue. In addressing Schulte's claims, we look to State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565 (2010), for guidance.

Amanda M. and Justin T. were the parents of a minor child, and pursuant to a paternity action, the district court awarded the parties joint legal and physical custody of the child. On appeal, the Nebraska Supreme Court first determined that because the parties had never married and the issues before the trial court were custody and parenting functions, the action was governed by the Parenting Act found in chapter 43 of the Nebraska Revised Statutes, as opposed to the dissolution of marriage statutes contained in chapter 42. Thus, the requirement in § 42–364 that a court make a specific finding of best interests before awarding joint custody was inapplicable. See State ex rel. Amanda M. v. Justin T., supra. Accordingly, the court found no error in the district court's failure to make a specific finding of best interests. See id.

The same is true here. Aguilar and Schulte were never married, and the action before the district court was solely to establish custody and parenting time of the minor child. Because the Parenting Act controls the present case, we reject Schulte's argument that the district court was required to make a specific finding that joint physical custody was in the minor child's best interests.

In addition, we find that the issue of joint physical custody was properly before the district court based on the language in Aguilar's complaint. In State ex rel. Amanda M. v. Justin T., supra, the Nebraska Supreme Court concluded that the due process jurisprudence regarding joint custody under § 42–364 is incorporated into parenting plan orders entered under the Parenting Act. As a result, whether custody and parenting time is awarded in a paternity action or dissolution of marriage action, the due process analysis is the same. See State ex rel. Amanda M. v. Justin T., supra. The Supreme Court, therefore, relied on the rationale of Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), to determine what procedures are required by due process standards before a court can order joint physical custody. See State ex rel. Amanda M. v. Justin T., supra.

In Zahl v. Zahl, supra, both parents in a marital dissolution action sought sole custody of their minor child. After holding a general custody hearing, the trial court awarded the parties joint legal and physical custody. On appeal, the Nebraska Supreme Court held that when a court has determined that joint physical custody is, or may be, in a child's best interests but neither party has requested joint custody, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody. Id.

The Zahl court observed:

Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker.

273 Neb. at 1052, 736 N.W.2d at 373.

In determining that the parties in Zahl v. Zahl, supra, had not...