Boamah-Wiafe v. Rashleigh
| Decision Date | 25 July 2000 |
| Docket Number | No. A-99-689.,A-99-689. |
| Citation | 614 N.W.2d 778,9 Neb. App. 503 |
| Parties | Daniel BOAMAH-WIAFE, appellant, v. Carol RASHLEIGH, appellee. |
| Court | Nebraska Court of Appeals |
Kelly T. Shattuck, of Cohen, Vacanti & Higgins, Omaha, for appellant.
Karen L. Vervaecke, Omaha, for appellee.
Daniel Boamah-Wiafe filed an application to modify child support and custody. Specifically, Daniel sought full custody of his two minor children, subject to visitation by their mother, Carol Rashleigh, as well as an order terminating his child support payments and requiring Carol to pay child support. Carol cross-petitioned for an adjustment to Daniel's child support and for attorney fees. The trial court dismissed Daniel's application for failing to meet his burden of proof. The court slightly modified child support and granted Carol's request for attorney fees.
Daniel appeals, alleging, inter alia, that the trial court erred in (1) excluding certain testimony; (2) failing to deviate from the Nebraska Child Support Guidelines, based on Daniel's voluntary support of an adult child; (3) awarding attorney fees; and (4) declaring that the award of attorney fees was nondischargeable in bankruptcy. We find that (1) Daniel did not make an offer of proof to preserve his right to appeal the exclusion of testimony; (2) Daniel's legal duty to support his minor children cannot be mitigated by his voluntary support for an adult child; (3) the record does not support the trial court's award of $4,000 in attorney fees, but it does support the allowance of $1,000, and we modify the allowance of attorney fees to that amount; and (4) the determination that the award is not dischargeable in bankruptcy should be stricken from the order.
Daniel and Carol are the parents of Arthur Y. Boamah-Wiafe, born October 18, 1988, and Linda A. Boamah-Wiafe, born September 7, 1990. In 1994, the trial court ordered that the parties have joint custody over the children with physical custody in Daniel and visitation by Carol. On April 1, 1996, the court found a material change of circumstances had occurred and modified custody and child support, to wit, Carol received sole custody of the children subject to visitation by Daniel. Further, the April 1 order required Daniel to pay $825 per month in child support.
On October 3, 1997, Daniel filed an application to modify custody and child support. Daniel's application alleged that (1) Carol had refused him visitation and telephone contact with the children; (2) the children's behavior and hygiene deteriorated while in Carol's custody; (3) Carol failed to spend adequate time with the children, who were consequently left in the care of their maternal grandparents for extended periods of time; (4) Carol failed to pay her share of court-ordered child-care expenses; (5) Carol failed to notify Daniel of important events occurring in the children's lives, including but not limited to the children's baptism; (6) the children were being physically abused by Carol and her relatives; and (7) Carol had failed to provide for the children's medical and dental needs. For these reasons, Daniel sought full custody of the children subject to visitation by Carol, a termination of his child support obligation, and an order for child support from Carol.
Carol responded by denying Daniel's allegations, except that she did admit that she did not inform Daniel of the children's baptism. Carol also filed a cross-petition seeking sanctions and attorney fees—alleging that Daniel had filed this and other actions for the purpose of harassing her— and a recalculation of child support based on the fact that Daniel's son from a previous relationship, Daniel Boamah-Wiafe, Jr. (Dan Jr.), had turned 19 years of age.
On February 26, 1998, the guardian ad litem, who was appointed on December 30, 1997, made a motion for the court to require that Daniel's visitation be supervised or in the alternative that Daniel be ordered to remain in the presence of the children at all times during visitation with him. The guardian's motion stemmed from her investigation into a "knife" incident occurring at Daniel's house. According to the guardian, Dan Jr. initiated pretend knife fights with the children using actual knives from the kitchen. The record does not show that the trial court ruled upon this motion or entered any order thereupon. Due to Daniel's anger over the guardian's motion, he refused to see the children and had virtually no contact with them for the 13 months prior to the trial on his application.
The trial on Daniel's motion and Carol's cross-petition occurred on April 20, 1999. Carol appeared with counsel, and Daniel appeared pro se. This case is yet another clear example of the difficulty created for everyone when a party represents himself or herself. Of course, any litigant has the right to do so, but everyone involved suffers when a pro se litigant enters the courtroom with no knowledge or understanding of procedure, the rules of evidence, the burdens of proof, or the substantive law pertinent to the case. We will not further summarize the evidence here, because the record shows that Daniel presented no evidence which was relevant to the issues raised by the pleadings. Carol offered evidence on her cross-petition, and we will discuss her evidence below as it applies to the issues now on appeal.
On May 21, 1999, the trial court issued an order delineating its findings and conclusions. The trial court dismissed Daniel's motion, finding it completely without merit. It slightly modified the child support due when there is only one child to be supported, but that issue is not appealed. However, the trial court granted Carol's cross-petition with respect to attorney fees and ordered Daniel to pay $4,000. Daniel has now perfected this appeal with counsel.
Daniel alleges that the trial court erred by (1) prohibiting Daniel from calling certain witnesses for allegedly not providing their names in discovery, (2) incorrectly stating the standard for modifying custody, (3) prohibiting a lay witness from testifying as to the children's best interests, (4) deciding the case before all the evidence was submitted, (5) denying Daniel the opportunity to present evidence to rebut the presumption of using the standard calculations in the Nebraska Child Support Guidelines, (6) awarding attorney fees without taking evidence on the amount or the reasonableness of the same, and (7) declaring that an award of attorney fees was nondischargeable in bankruptcy.
In Groseth v. Groseth, 257 Neb. 525, 529, 600 N.W.2d 159, 164 (1999), the Nebraska Supreme Court stated:
(Citation omitted.)
"In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the rules, not judicial discretion, except in those instances when judicial discretion is a factor involved in the admissibility of evidence." State v. McManus, 257 Neb. 1, 4, 594 N.W.2d 623, 626 (1999).
"An abuse of discretion occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition." Stumpf v. Nintendo of America, 257 Neb. 920, 923, 601 N.W.2d 735, 738 (1999).
Daniel's first five assignments of error are without merit for two reasons. First, each is individually contrary to the record or the law as discussed below. Second, Daniel utterly failed in meeting his burden of proof at trial. He simply did not provide evidence relevant to the issues raised by his application, and thus he could not and did not satisfy his burden of proof.
Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action.... The party seeking modification of child custody bears the burden of showing that a material change in circumstances has occurred.
(Citations omitted.) Hoins v. Hoins, 7 Neb.App. 564, 567, 584 N.W.2d 480, 483 (1998). The record clearly shows that Daniel did not show that a material change of circumstances had occurred and that either Carol was unfit or it was in the children's best interests to modify custody. In fact, the record shows that Daniel had virtually no contact with the children for the 13 months prior to trial. We turn now to the individual reasons why Daniel's assignments of error must fail.
First Assignment of Error.
At the beginning of the trial, Carol objected to Daniel's witnesses, who were waiting to testify, on the ground that she had requested their names in interrogatories and that Daniel had not provided any names in response. Daniel asserted that he had provided the names of some of the witnesses. The trial court then asked Daniel to produce a copy of his answers to Carol's interrogatories, which Daniel was unable to do. However, Carol did provide a copy, and it listed Dan Jr. as a witness. The trial court stated that Dan Jr. would be allowed to testify, but the other witnesses would not.
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which...
To continue reading
Request your trial
-
Harrison v. Harrison
...fee not to be unreasonable, then that fee would not be untenable or an abuse of discretion. See id. See, also, Boamah-Wiafe v. Rashleigh , 9 Neb. App. 503, 614 N.W.2d 778 (2000) (if contents of record, i.e., pleadings, introduced discovery documents, time spent in court as shown by court re......
-
McDonald v. Del Mcdonald
...court, whose determinations in these matters are reviewed de novo on the record for an abuse of discretion. See Boamah–Wiafe v. Rashleigh, 9 Neb.App. 503, 614 N.W.2d 778 (2000). See, also, Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009). The trial court's discretion to award child s......
-
Radmanesh v. Radmanesh
... ... Waldbaum , 171 Neb. 625, 107 ... N.W.2d 407 (1961); Moore v. Bauer , 11 Neb.App. 572, ... 657 N.W.2d 25 (2003); Boamah-Wiafe ... Waldbaum , 171 Neb. 625, 107 ... N.W.2d 407 (1961); Moore v. Bauer , 11 Neb.App. 572, ... 657 N.W.2d 25 (2003); Boamah-Wiafe v. Rashleigh ... ...
-
Lawson v. Pass
...not dischargeable in bankruptcy because dischargeability is a question of federal law and not state law. Boamah-Wiafe v. Rashleigh, 9 Neb. App. 503, 614 N.W.2d 778 (2000), citing In re Kline, 65 F.3d 749 (8th Cir.1995); In re Williams, 703 F.2d 1055 (8th Cir.1983). In Boamah-Wiafe, we found......