Farr v. Newton

• Decision Date: 27 September 1991
• Docket Number: No. 90-631,90-631
• Citation: 474 N.W.2d 683,239 Neb. 179
• Parties: Jaime Alan FARR, Appellee, v. Nancy Cheryl NEWTON, formerly known as Nancy Cheryl Farr, Appellant.
• Court: Nebraska Supreme Court

Page 683

474 N.W.2d 683

239 Neb. 179

Jaime Alan FARR, Appellee, v. Nancy Cheryl NEWTON, formerly known as Nancy Cheryl Farr, Appellant.

No. 90-631.

Supreme Court of Nebraska.

Sept. 27, 1991.

Syllabus by the Court

1. Modification of Decree: Child Custody. A decree of dissolution awarding custody of a minor child will not be modified unless there has been a change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

2. Modification of Decree: Appeal and Error. The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion.

3. Trial: Appeal and Error. An abuse of discretion takes place when a trial court's ruling is untenable such that it deprives a party of a substantial right and just result.

4. Modification of Decree: Child Custody. When a party obtains a divorce by default and facts existing at the time of the decree that affect the custody and best interests of the children are not called to the attention of the court, upon proper motion for modification, the trial court, in its discretion, may consider such facts in determining whether a change in circumstances has occurred.

Michael N. Schirber, of Schirber Law Offices, P.C., Papillion, for appellant.

Michael B. Kratville, of Kratville Law Offices, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

BOSLAUGH, Justice.

The respondent, Nancy Cheryl Newton, formerly known as Nancy Cheryl Farr, has appealed from the June 7, 1990, order of the district court denying her application to modify the decree dissolving the marriage of the parties so as to give her custody of their minor child.

The parties were divorced on September 16, 1988. The decree placed custody of the parties' minor child, Alex Reno Farr, who was born on November 13, 1985, with the petitioner, Jaime Alan Farr. The respondent was to have visitation with Alex as the parties mutually agreed, but if the parties were unable to agree on visitation, a specific schedule was set forth in the decree.

On October 17, 1989, the respondent filed an application to modify the decree, requesting custody of Alex and child support. The matter was heard on April 26, 1990.

At the hearing, the respondent attempted to present evidence regarding her fitness as a parent at the time of the decree. The petitioner's objections to that evidence were sustained. The respondent offered to prove that at the time of the decree, the reasons the parties agreed to the petitioner's custody of Alex were that the respondent was abusing alcohol, staying out late, and being unfaithful to the petitioner.

The respondent testified that at the time of the decree, she was not represented by legal counsel, was not employed, and did not have a permanent place of residence. Following the divorce, the respondent lived in Idaho until she moved to Lowville, New York, in February 1989. She has been employed in Lowville as an office worker for a car dealership since March 1989. She was earning $240 a week gross at the time of the hearing.

In May 1989, the respondent remarried. Her husband works at a paper mill, and in 1989, the couple had a joint adjusted gross income of approximately $33,000.

The respondent and her husband live in a two-bedroom apartment. There is an elementary school within walking distance, and there are children in the neighborhood with whom Alex can play. While the respondent is at work, her husband or his mother cares for Alex.

In February 1989, the petitioner had suggested the respondent should take custody of Alex because he did not have enough time to spend with Alex. The petitioner was planning to attend graduate school and thought it would be a good idea if Alex lived with the respondent during the school year and visited with him during the summer. The petitioner suggested they have an attorney draw up papers changing custody and that they split the attorney fees.

In August 1989, the petitioner informed the respondent he was voluntarily separating from the U.S. Air Force and wanted the respondent to take Alex for the summer because of her good job and nice home. The petitioner was having a difficult time supporting Alex and felt guilty because he was not able to spend time with Alex, and he knew the situation would deteriorate when he started attending graduate school full time.

In September 1989, the petitioner changed his mind about sending Alex to live with the respondent because petitioner was concerned his father would turn his back on him if he gave up custody.

After the respondent filed her application to modify custody, the petitioner interfered with prearranged visitation rights. The respondent was compelled to file a motion for visitation, and the trial court granted the respondent's motion, allowing her the 10-week period previously agreed to by the parties.

The respondent presented a variety of witnesses who testified that she and Alex have a warm and loving relationship. No witness had seen the respondent abuse alcohol or drugs, and the respondent testified that she no longer has the problems that she had when she agreed to the petitioner's custody of Alex in September 1988.

From the entry of the decree to the time of the hearing, the petitioner had possession of Alex 44 weeks, the respondent had possession of Alex 31 weeks, and the petitioner's father had possession of Alex 7 weeks. During the extensive periods of time the respondent had possession of Alex, the petitioner vacationed outside the country and made two trips to Colorado to ski.

The petitioner testified that after the divorce, he worked full time in the Air Force and attended college full time, too. He graduated from college in December 1989 with a B.S. degree in biology from the University of Nebraska at Omaha. He was scheduled to separate from the Air Force on May 28, 1990, and planned to move to Oregon for the summer and then move to College Station, Texas, to attend a graduate program in veterinary science at Texas A & M University on a full-time basis. He would be receiving a minimum of $10,000 in grants and would not be employed full time. He planned to have Alex in day care while he attended classes.

The petitioner and Alex spend time outside playing when the weather permits. Petitioner expects to have more time for activities such as attending the zoo or a football game when he moves to Texas.

Tom Haley, a licensed psychologist who has known Alex since his birth, testified on behalf of the petitioner. He testified that the petitioner and Alex have a strong, positive relationship and that Alex would be "devastated" by a change of custody. Haley was impressed with the petitioner's method of disciplining Alex.

Haley had not evaluated Alex professionally. His opinion was based on his personal observations.

Haley and the petitioner's mother work together. They have been friends for 5 years and are involved romantically and sexually.

Janet Rush, the respondent's sister, was called in rebuttal to Haley's testimony. She related an incident that occurred in November or December 1988 when she, the petitioner, and Alex were traveling from York, Nebraska, to Omaha. Alex was misbehaving, and the petitioner was driving. The petitioner told Alex to stop misbehaving or he would pull the car over. Alex continued to misbehave, and the petitioner threatened to leave the child on the side of the road.

The trial court found that there had not been a change in circumstances affecting Alex's best interests and left custody with the petitioner. The respondent was ordered to have possession of Alex for 3 months every summer. The trial judge made these findings on the record following the hearing and instructed petitioner's attorney to draft an order containing the judge's findings. He also instructed that the parties work something out regarding Christmas visitation; however, nothing regarding visitation at Christmas appears in the order of June...