Carroll v. Gould
| Decision Date | 18 December 2020 |
| Docket Number | No. S-20-264.,S-20-264. |
| Citation | 308 Neb. 12,952 N.W.2d 1 |
| Parties | Arleene E. CARROLL, appellee, v. Gabriel W. GOULD, appellee, and James Gould, appellant. |
| Court | Nebraska Supreme Court |
Kory L. Quandt, of Anderson, Bressman, Hoffman & Jacobs, P.C., L.L.O., for appellant.
Alan D. Martin, for appellee Gabriel W. Gould.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The paternal grandfather appeals from the district court's order denying his intervention, as a person standing in loco parentis, in a custody proceeding brought by the mother against the father. The complaint in intervention alleged that the child, then age 4, had lived in the grandfather's home since her birth until the filing of the complaint to intervene, though the mother and father sometimes resided with the child at the grandfather's home. The district court concluded that any in loco parentis status had been extinguished by virtue of a child support order issued more than a year prior, as well as through temporary custody orders placing the child with a parent, commencing approximately 2 months before the grandfather filed his complaint in intervention and 3 months before the court's ruling denying intervention. The grandfather argues on appeal that the court erred by, among other things, failing to limit its inquiry to the pleadings, assuming that the allegations of the complaint in intervention were true. We reverse, and remand with directions to allow the intervention.
The underlying action was commenced on November 25, 2019, when Arleene E. Carroll (Arleene) filed a complaint against Gabriel W. Gould (Gabriel) in the district court for Sarpy County to establish custody and parenting time with respect to their biological child, S.G., born in 2016. The child was born out of wedlock. A prior order was apparently entered on March 22, 2019, in a companion case by the same court, establishing Gabriel's paternity and his child support obligation.
Arleene's complaint alleged that S.G. had lived since birth with Arleene at an address on Leawood Drive in Sarpy County, Nebraska. Arleene alleged that she knew of no person not a party to the action who had physical custody of S.G. or who claimed to have custody or visitation rights with respect to her.
In her affidavit filed November 26, 2019, and found in the transcript, Arleene asserted that S.G. has resided with Arleene the entirety of her life. While the court at later hearings refers to this affidavit as exhibit 1, it is not in the bill of exceptions.
Arleene alleged further in the affidavit that Gabriel had only infrequent visitations with S.G., only once without her supervision, and had never asked for more visitation. Arleene expressed concern about Gabriel's living situation, drug use, and criminal history. She also described an incident on November 24, 2019, when Gabriel allegedly took S.G. without their mutual agreement and refused to return her unless Arleene took Gabriel to court.
Arleene moved for an ex parte order granting her immediate legal and physical custody of S.G. The court granted the requested ex parte order on November 26, 2019, giving law enforcement the power to assist Arleene in retrieving S.G. A hearing was set for December 6. There is no evidence in the record as to whether the November 26 ex parte order was ever carried out, but both Gabriel and the paternal grandfather, James Gould (James), assert on appeal that it was not.
On December 19, 2019, Gabriel filed a "JURISDICTIONAL CHALLENGE and Objection to Exparte Order." Gabriel claimed that Arleene did not live at the address where she claimed to live and had not, in fact, been S.G.’s primary caretaker. The Leawood Drive home was the residence of James and his wife. Gabriel alleged that Arleene had resided at James’ home "briefly" but, in September 2019, moved with her boyfriend to an address in Douglas County.
Gabriel asked for sole legal custody of S.G., an order determining child support, an order of mediation to establish parenting time, and sanctions against Arleene for "lying to the Court."
Arleene's counsel moved to withdraw.
On December 31, 2019, the court ordered the November 26 ex parte order to remain in effect as a temporary order and set the matter for hearing on January 31, 2020, on further temporary allowances. The court also ordered Gabriel and Arleene to participate in mediation.
Arleene's counsel was permitted to withdraw. Gabriel and James both assert on appeal that Arleene never took physical custody pursuant to either temporary order.
Following a hearing on January 31, 2020, which is not in the record, the court modified the temporary order so that temporary physical custody of S.G. was given to Gabriel subject to Arleene's reasonable rights of parenting time as determined by the parties through mediation. The court ordered that medical costs and child support would remain as previously ordered.
That same date, James filed a complaint to intervene as a third-party plaintiff, claiming in loco parentis status. James asserted that S.G. had resided with him since her birth and that he had at all times assumed the obligations incident to the parental relationship.
James asserted in the complaint that it was his desire and intention to remain in an in loco parentis relationship with S.G. He asserted that he was a fit and proper person to have S.G.’s temporary and ongoing physical care, custody, and control. James further asserted that it was in S.G.’s best interests to continue to reside with James and to have James maintain an in loco parentis relationship with her.
In a separate motion filed the same day, James sought temporary legal and physical custody of S.G. during the pendency of the underlying proceedings.
Attached to the complaint and the motion were notices that a hearing was set for February 7, 2020.
On February 7, 2020, Gabriel filed a response to James’ motions. Gabriel objected to the motion to intervene and any change to the January 31 temporary custody order placing S.G. with Gabriel, though he did not specifically challenge the factual allegations made in the complaint to intervene.
Gabriel also asserted that he did not receive the motions in a timely manner and that an additional evidentiary hearing would be required if the court deemed it necessary to consider them.
At the February 7, 2020, hearing on the complaint to intervene, the court explained that it was focused on whether to allow James to intervene under in loco parentis. It would disregard James’ request for custody or parenting time until the question of intervention was settled.
Over Gabriel's objection, the court allowed James to submit an affidavit, which was entered into evidence as exhibit 2, for the purpose of the motion to intervene. James signed the affidavit, and a notary public also signed the affidavit as having been subscribed and sworn before the notary on February 5, 2020.
In the affidavit, James stated that S.G. had lived in his home since she was born up until Gabriel came to retrieve her on January 31, 2020, pursuant to the court's temporary order of custody.
James had "treated [S.G.] as if she were my own daughter." James averred that he had provided all of S.G.’s care, paid for her expenses, and fed and clothed her.
James elaborated that although Gabriel had lived with S.G. at James’ home immediately after she was born, Gabriel left when she was 4 months old. Since November 2016, Gabriel "has been absent from [S.G.’s] life," "occasionally" coming around to see her but for no more than a week at a time. Gabriel had "paid no support."
James stated that Gabriel has abused illegal drugs since high school and has "never had consistent living arrangements." James described that in November 2019, Gabriel indicated he wanted to be involved in S.G.’s life, but "he was continually late for visits, distracted on his phone, would leave visits early, or not show up at all."
James described that to his knowledge, Gabriel currently lived with his girlfriend in a room in a basement, which room he presumably was sharing with S.G. He noted that the last time he had visited where Gabriel lived, the home's owner refused to turn on the heat and, as a result, the basement was around 50 degrees. James also expressed concern that Gabriel had "money problems and may not be able to afford the food and care necessary for [S.G.]" Further, Gabriel and his "roommate" work nights, and James did not "know who cares for [S.G.] during the day."
As for Arleene, James averred that she also lived with S.G. at James’ home after S.G. was born. But "Arleen[e] has moved away on several occasions, often for many months at a time." According to James, she did so without warning and would leave S.G. and her other children at James’ house. James did not otherwise elaborate on how much time Arleene had spent living with S.G. in James’ home or when she lived there.
At the February 7, 2020, hearing, the court granted Gabriel leave to submit his own affidavit by February 11, which the court stated would be received as exhibit 3. The court explained it would disregard any hearsay, but would receive Gabriel's affidavit even if James had an objection to it; the court would receive it "in the same fashion" as it was receiving James’ affidavit.
Gabriel filed an affidavit on February 10, 2020. It is contained in the transcript. However, the bill of exceptions does not reflect the receipt of Gabriel's affidavit as an exhibit.
Gabriel averred in his affidavit that...
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