Betz v. Betz
| Decision Date | 27 March 1998 |
| Docket Number | No. S-97-621,S-97-621 |
| Citation | 254 Neb. 341,575 N.W.2d 406 |
| Parties | Amy J. BETZ, Appellee, v. William J. BETZ, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Child Custody: Visitation: Appeal and Error. Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the trial judge, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.
2. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
3. Child Support. The proper amount of child support is determined not necessarily by a parent's earnings, but by a parent's earning capacity.
4. Guardians Ad Litem: Attorneys at Law. A guardian ad litem may be an attorney, but an attorney who performs the functions of a guardian ad litem does not act as an attorney and is not to participate in the trial in an adversarial fashion such as calling or examining witnesses or filing pleadings or briefs.
5. Divorce: Guardians Ad Litem: Attorneys at Law: Minors. An attorney appointed under Neb.Rev.Stat. § 42-358 (Cum.Supp.1996) is an advocate for the minor child and is not a guardian ad litem.
6. Attorney and Client: Conflict of Interest. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm ought to be called as a witness on behalf of his or her client, the lawyer shall withdraw from the conduct of the trial and his or her firm, if any, shall not continue the representation in the trial.
7. Guardians Ad Litem: Attorneys at Law: Minors. Even though there is no clear statutory statement of what a guardian ad litem is, the duties and responsibilities of a guardian ad litem are not coextensive with those of an attorney who represents a minor.
8. Divorce: Courts: Guardians Ad Litem: Attorneys at Law: Minors. We hold prospectively that from June 1, 1998, forward, when making an appointment of a guardian ad litem or an attorney to represent the interests of the minor pursuant to Neb.Rev.Stat. § 42-358 (Cum.Supp.1996) in forums other than the juvenile court, the appointing court, in the order making the appointment, shall specify whether the person appointed is to act as a guardian ad litem or as an attorney pursuant to § 42-358.
Joseph S. Daly and Kelly K. Brandon, of Sodoro, Daly & Sodoro, Omaha, for appellant.
Van A. Schroeder, of Bertolini, Schroeder & Blount, Bellevue, for appellee.
This appeal arises out of a petition for dissolution of marriage filed by appellee, Amy J. Betz, against appellant, William J. Betz. The district court for Sarpy County, Nebraska, granted custody of the couple's minor child, Emma Betz, to appellee, and appellant filed this appeal. Appellant further appeals the district court's calculation of proper visitation and child support. On our own motion, we removed the matter to this court under our authority to regulate the caseloads of the Nebraska Court of Appeals and this court. We affirm the decision of the district court.
Appellant and appellee were married in July 1994 in Council Bluffs, Iowa. Over the course of their 3-year marriage, the couple encountered numerous problems, which they attempted to resolve. In August 1996, however, appellee filed for divorce. The marriage produced one child, Emma. On its own motion, the district court appointed Attorney Michael Heavey as guardian ad litem.
At trial, appellee testified that following the birth of the minor child, she was the family's primary caregiver as appellant was usually at the bar the couple ran for 12 hours a day, 7 days a week. Appellee further testified that appellant provided almost no care for the minor child prior to the dissolution of their marriage as he was always at work. Appellee testified that appellant often came home from the bar smelling of alcohol and that he would then go to sleep until 1:30 p.m. the next day, a mere hour before he had to go back to the bar to work. Appellee further testified that following the parties' separation, on several occasions appellant was inebriated when he was to have visitation with the minor child. On four occasions, appellee was forced to take the minor child to day care, rather than leave the minor child with appellant because she felt he was too drunk to care for her. Testimony corroborative of appellee's testimony was given by the couple's day-care provider, by appellee's mother, and by appellee's Alcoholics Anonymous sponsor.
Appellant testified that he had a good relationship with the minor child and that he was better suited to care for her than appellee because his schedule allowed him to be free during the day. As such, the minor child could be with a parent during the day rather than in day care. Furthermore, appellant testified that it would be problematic for him to see the minor child on another visitation schedule due to his work schedule at the bar.
Gary N. Lehmer, the couple's marriage counselor, testified that both parents seemed fit and proper parents. Lehmer further testified that it was his experience that children should spend as much time with both parents as possible. He concluded by stating that the child would be better off being placed with a parent than with a babysitter. On cross-examination, however, Lehmer admitted that this was a general proposition and that it was not specifically tailored to appellant and appellee's situation.
At the close of appellant's case in chief, appellant attempted to call the guardian ad litem to testify that the minor child would be better served by giving custody to appellant. Heavey, the guardian ad litem, had cross-examined witnesses on behalf of the minor child throughout the course of earlier testimony. The court sustained appellee's objection to Heavey's testimony on the basis that the appointment of the attorney created an attorney-client relationship between the minor child and Heavey which would be violated by his testimony. Appellant then attempted to enter Heavey's report into evidence to which appellee objected, and the court sustained the objection on hearsay grounds. Heavey's report stated his opinion that joint custody be awarded if the parties could so agree but, if not, that custody go to appellee with appellant having priority over any other day-care providers.
The court then granted the petition for dissolution and awarded custody to appellee. The trial judge expressed his belief that the current system of visitation was in the best interests of the child because the child had become accustomed to the schedule during the parents' separation. The court then awarded appellee child support in the amount of $638 per month, based upon appellant's military pension and his earning capacity.
Appellant assigns as error that the trial court (1) abused its discretion in refusing to allow the court-appointed guardian ad litem to testify and in awarding appellee custody of the parties' minor child, (2) abused its discretion in its award of visitation to appellant, and (3) abused its discretion in calculating the parties' respective monthly income and child support.
Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the trial judge, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Palmer v. Palmer, 249 Neb. 814, 545 N.W.2d 751 (1996). Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the
court below. Abboud v. Papio-Missouri River [254 Neb. 345] NRD, 253 Neb. 514, 571 N.W.2d 302 (1997); Bank of Papillion v. Nguyen, 252 Neb. 926, 567 N.W.2d 166 (1997); State ex rel. City of Elkhorn v. Haney, 252 Neb. 788, 566 N.W.2d 771 (1997); Brown v. Wilson, 252 Neb. 782, 567 N.W.2d 124 (1997). The proper amount of child support is determined not necessarily by a parent's earnings, but by a parent's earning capacity. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996).
The fact that in this case the court-appointed guardian ad litem also participated in the trial by performing the functions of an attorney points to the confusion that has existed between the role of a guardian ad litem and the role of a court-appointed attorney.
A court, under its inherent equitable powers, may appoint a guardian ad litem. A guardian ad litem may or may not be an attorney. The guardian ad litem's duties are to investigate the facts and learn where the welfare of his or her ward lies and to report these facts to the appointing court. These reports to the court, whether in written form or testimony by the guardian ad litem, including hearsay, shall be subject to the Nebraska rules of evidence. A guardian ad litem may be an attorney, but an attorney who performs the functions of a guardian ad litem does not act as an attorney and is not to participate in the trial in an adversarial fashion such as calling or examining witnesses or filing pleadings or briefs. If the guardian ad litem feels that he or she needs an attorney, the guardian ad litem should apply to the appointing court for permission to retain an attorney to represent the guardian ad litem.
An attorney appointed under Neb.Rev.Stat. § 42-358 (Cum.Supp.1996) is an advocate for the minor child and is not a guardian ad litem. The court-appointed attorney shall act as the attorney for the minor child, but shall...
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