Citta v. Facka

• Decision Date: 10 April 2012
• Docket Number: No. A–11–549.,A–11–549.
• Citation: 19 Neb.App. 736,812 N.W.2d 917
• Parties: Jason M. CITTA, appellant, v. Tricia J. FACKA, appellee.
• Court: Nebraska Court of Appeals

19 Neb.App. 736

812 N.W.2d 917

Jason M. CITTA, appellant,

v.Tricia J. FACKA, appellee.

No. A–11–549.

Court of Appeals of Nebraska.

Filed April 10, 2012.

Syllabus by the Court

[19 Neb.App. 736]1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

2. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

3. Actions: Paternity: Child Support: Equity. While a paternity action is one at law, the award of child support in such an action is equitable in nature.

4. Paternity: Child Support: Appeal and Error. A trial court's award of child support in a paternity case will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

6. Jurisdiction: Appeal and Error. Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue of jurisdiction sua sponte.

7. Child Custody. When a parenting plan has not been developed and submitted to the court, the court shall create the parenting plan in accordance with the Parenting Act.

8. Rules of the Supreme Court: Pretrial Procedure: Evidence. Under Neb. Ct. R. Disc. § 6–336(a), matters are deemed admitted unless, within 30 days after service of the request, the party to whom the request is directed serves a written answer or objection.

9. Rules of the Supreme Court: Pretrial Procedure. Under Neb. Ct. R. Disc. § 6–336, if the request for admission seeks information that is permissible under Neb. Ct. R. Disc. § 6–326, the request can ask a party to admit facts in dispute, the ultimate facts in a case, or facts as they relate to the law applicable to the case.

10. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc. § 6–336 is self-enforcing, without the necessity of judicial action to effect an admission which results from a party's failure to answer or object to a request for admission.

11. Rules of the Supreme Court: Pretrial Procedure: Evidence: Proof. A party that seeks to claim another party's admission, as a result of that party's failure to respond properly to a request for admission, must prove service of the request for admission and the served party's failure to answer or object to the request and must also offer the request for admission as evidence.

12. Rules of the Supreme Court: Pretrial Procedure. If the necessary foundational requirements are met and no motion is sustained to withdraw an admission, a trial court is obligated to give effect to the provisions of Neb. Ct. R. Disc. § 6–336 which require that the matter be deemed admitted.

13. Rules of the Supreme Court: Pretrial Procedure: Proof. Admitted facts under Neb. Ct. R. Disc. § 6–336 serve to limit the proof at trial.

14. Child Custody. Child custody is a judicial determination and is never to be regarded as a merely evidentiary matter.

15. Child Custody. The technical rules of civil procedure cannot apply with equal force in a child custody case as in other civil cases, because the sole determining factor in a child custody case must be the best interests of the child.

16. Child Custody: Courts. A trial court has an independent responsibility to determine questions of custody of minor children according to their best interests, which responsibility cannot be controlled by an agreement or stipulation of the parties.

17. Child Custody: Courts. Admissions made by a party's failure to answer requests for admissions, like agreements made by a party, cannot circumvent the court's duty to independently assess a child's best interests in determining the child's custodial arrangement.

18. Child Custody. While an unwed mother is initially entitled to automatic custody of the child, the issue must ultimately be resolved on the basis of the fitness of the parents and the best interests of the child.

19. Divorce: Child Custody: Public Policy. It is sound public policy to keep siblings together when a marriage is dissolved, but the ultimate test remains the best interests of the children.

20. Child Custody. When deciding custody issues, the court's paramount concern is the child's best interests.

21. Rules of the Supreme Court: Child Support. In general, child support payments should be set according to the Nebraska Child Support Guidelines.

22. Rules of the Supreme Court: Child Support. The Nebraska Child Support Guidelines provide that in calculating child support, a court must consider the total monthly income of both parties.

[19 Neb.App. 738]23. Attorney Fees: Appeal and Error. A party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the NebraskaSupreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees.

24. Paternity: Child Support: Attorney Fees: Costs. Attorney fees and costs are statutorily allowed in paternity and child support cases.

25. Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case.

Terrance O. Waite, North Platte, and Patrick M. Heng, of Waite, McWha & Heng, for appellant.

Kim M. Seacrest, of Seacrest Law Office, P.C., L.L.O., for appellee.

IRWIN, SIEVERS, and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Jason M. Citta appeals from the order awarding Tricia J. Facka custody of the parties' child. Although we conclude that the court erred in not deeming as admitted Citta's requests for admission upon Facka's failure to respond, the issue of child custody cannot be controlled by unanswered requests for admission. We find no abuse of discretion by the court in its award of custody or its calculation of child support. Accordingly, we affirm.

BACKGROUND

The parties, who never married, are the biological parents of a son, born in January 2009. On January 27, Citta filed a complaint to establish paternity, visitation, and child support. Citta alleged that he was a fit and proper person to be awarded permanent custody of the child.

On March 11, 2011, Citta mailed to Facka's counsel requests for admission, interrogatories, and requests for production of documents. On May 2, Citta filed a motion to deem Facka's requests for admission as admitted pursuant to Neb. Ct. R. Disc. § 6–336 (Rule 36) because Facka had failed to respond to the requests within 30 days. On that same date, Citta filed a motion to compel Facka to fully and completely answer the interrogatories and requests for production of documents. On May 16, the court held a hearing and addressed various motions. The following colloquy ensued:

[Citta's counsel]: Also pending is a motion to compel and deem requests for admissions admitted.

[Facka's counsel]: And I can have those to [Citta's counsel] by the end of the day.

[Citta's counsel]: That doesn't take care of the request for admissions. I do have affidavits showing that we've served those, there's been no response, no reason to even know what the controversy is despite letters from me saying good faith efforts to resolve this short of a motion to compel.

THE COURT: On the motion for requests for admissions, as long as the party comes forward eventually and says we'll answer them, that's good enough; and they are deemed admitted, so answer them.

[Facka's counsel]: Your Honor, actually I can have them to him by the end of the day.

THE COURT: That would be just great.

The court received an affidavit of Citta's counsel in support of the motion to deem requests for admission as admitted. The attorney stated that the requests were mailed to Facka's counsel on March 11, that Citta's counsel sent an April 26 letter to Facka's counsel inquiring about the status of answers, and that Citta's counsel had received no response as of May 12. Citta's counsel attached to his affidavit the requests for admission—which showed a March 11 certificate of service on Facka's counsel at the correct address—and the April 26 letter to Facka's counsel which stated in part that “[w]e need to have your client's response within the next week in order to avoid the necessity of filing a [m]otion to [c]ompel.” The requests for admission asked Facka to admit, among other things, that Citta was a fit and proper parent to the child, that Citta was more than capable of taking care of the child, and that it was in the best interests of the child for physical custody to be granted to Citta. The record does not contain any written ruling by the court on the motions.

The district court conducted a trial on May 25, 2011. It received Facka's responses to Citta's requests for admission, interrogatories, and requests for production. Facka's responses were signed May 12, but they apparently were not produced to Citta until May 16.

Citta lives in North Platte, Nebraska. Facka moved out of Citta's home in late August or early September 2008. She has lived in Sutherland, Nebraska, since November 2009. Citta testified that he was not consulted prior to Facka's move and that Facka told him that where she was going to be living was none of his business.

Each party had concerns about the other. One...