Broadstone v. Broadstone, 38734

• Decision Date: 01 June 1973
• Docket Number: No. 38734,38734
• Citation: 207 N.W.2d 682,190 Neb. 299
• Parties: Connie Kay BROADSTONE, Appellee, v. Gehling William BROADSTONE, Appellant.
• Court: Nebraska Supreme Court

Page 682

207 N.W.2d 682

190 Neb. 299

Connie Kay BROADSTONE, Appellee, v. Gehling William BROADSTONE, Appellant.

No. 38734.

Supreme Court of Nebraska.

June 1, 1973.

Syllabus by the Court

1. In determining the question of who should have the care and custody of children upon the dissolution of a marriage, the paramount consideration is the best interests and welfare of the children.

2. In cases involving determinations of child custody, the findings of the trial court, both as to an evaluation of the evidence and as to the matter of custody, will not be disturbed unless there is a clear abuse of discretion.

3. The fixing of child support and alimony rests in the sound discretion of the court and, in the absence of an abuse of discretion, will not be disturbed.

Peter B. Beekman, Falls City, for appellant.

Wiltse & Halbert, Falls City, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

WHITE, Chief Justice.

The principal issue involved in this case is the determination of the custody of two minor adopted children, aged 6 and 7 years. The District Court, under the 'no fault' marriage dissolution statute, sections 42--347 to 42--379, R.S.Supp., 1972, found the marriage irretrievably broken, entered a decree accordingly, placed the legal custody of the two children in the county welfare director, and the physical custody of the two children to the petitioner Connie Kay Broadstone, subject to the supervision of the county welfare director, entered child support judgment against the respondent in the sum of $85 per month per child, divided the property of the two parties, and awarded costs and attorney's fees. We affirm the judgment and order of the District Court.

No issue is presented as to the dissolution of the marriage and we go to the issue of the custody of the children. The parties were married on February 24, 1962, aged 18 and 23 years, and adopted the two children. The respondent works for the railroad. The record reveals that until October of 1969 the couple had a normal happy marriage. Broadstone received a severe head injury in October of 1969 which resulted in a continuing medical problem and treatment. Mutual difficulties and problems have arisen since that time.

The evidence shows that the respondent is employed as a brakeman and conductor for the Missouri Pacific Railroad. His working hours are irregular and at odd times of the day. His work also takes him out of town quite a bit, and although he testified he was willing to make arrangements for the care of the children during his absence, it is clear a major factor in the trial court's determination was that this type of life would not be conducive to a stable home life for the children. There is also evidence as to the effect of Broadstone's injury and medication upon his conduct. At times his talk was slurred and he acts like he was drugged. At times he has had trouble keeping his car on the road. On the other hand, there is conduct on the part of the petitioner, such as attempting to commit suicide, and irregular habits of life, which give rise to an inference that the care of these children should be carefully supervised. The record contains considerable evidence of emotional problems of both the parties. Both have undergone psychiatric treatment quite recently and the respondent is still under a doctor's care and taking quite extensive medication. It is clear that these difficulties arose subsequent to the disruption and problems involved in Broadstone's serious head injury in October of 1969. In evidence is a letter from Broadstone's own doctor which states that, in his opinion, although both parties have received psychiatric care for emotional problems, both were physically and emotionally capable of continuing to care for the children. The trial court's findings in this respect are amply supported by the evidence.

In determining the question of who should have the care and custody of children upon the dissolution of a marriage, the paramount consideration is the best interests and welfare of the children. Lanz v. Lanz, 189 Neb. 578, 203 N.W.2d 761; Phillips v. Phillips, 188 Neb. 89, 195 N.W.2d 160. The statutes also wisely provide for a continuing power of the trial court to control the custody, and change it if necessary, in the best interests of children. Sections 42--351 and 42--364, R.S.Supp., 1972, specifically provide that in a proper case the court may place the minor children in the court's custody if their supervision and continuing welfare shall so require. We observe that we are dealing with two children of tender years here, aged 6 and 7 years. While there is no presumption that either parent is entitled to custody of their children, the natural relationship of mother and child, and the needs of children of tender years, usually indicates or compels that the physical...