Flores v. Flores-Guerrero
| Decision Date | 27 February 2015 |
| Docket Number | No. S–14–224,S–14–224 |
| Citation | 859 N.W.2d 578 |
| Parties | Fabiola A. Flores, appellant, v. Manuel Flores–Guerrero, appellee |
| Court | Nebraska Supreme Court |
James Walter Crampton, Omaha, for appellant.
Jamie E. Kinkaid and Nancy R. Shannon, of Cordell & Cordell, P.C., Omaha, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman and Cassel, JJ.
1. Child Custody: Appeal and Error.An appellate court reviews child custody determinations de novo on the record, but the trial court's decision will normally be upheld absent an abuse of discretion.
2. Judgments: Words and Phrases.An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
3. Statutes: Appeal and Error.Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.
4. Words and Phrases.As a general rule, the use of the word “shall” is considered to indicate a mandatory directive, inconsistent with the idea of discretion.
5. Statutes: Appeal and Error.An appellate court will not read into a statute a meaning that is not there.
6. Child Custody.A child custody determination that does not comport with statutory requisites is an abuse of discretion.
7. Appeal and Error.An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Fabiola A. Flores (Fabiola) appeals from the order of the district court that awarded her and Manuel Flores–Guerrero (Manuel) joint physical custody of their minor children and placed legal custody with the court. She argues that the district court's order, which made no special written findings regarding
Manuel's conviction for third degree domestic assault, violated Neb.Rev.Stat. § 43–2932 (Reissue 2008). Given the evidence presented to the district court, we agree that it was an abuse of discretion for the district court to make a custody determination without complying with § 43–2932. Therefore, we vacate the order of modification and remand the cause for further proceedings consistent with this opinion.
An appellate court reviews child custody determinations de novo on the record, but the trial court's decision will normally be upheld absent an abuse of discretion. See Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination. Id .
The marriage of Fabiola and Manuel was dissolved by a decree entered on January 24, 2011. Fabiola was awarded sole legal and physical custody of the parties' two minor children subject to Manuel's reasonable rights of visitation. Manuel was ordered to pay child support. On May 5, per agreement of the parties, the divorce decree was modified to temporarily reduce Manuel's child support obligation.
On July 12, 2012, Manuel filed a complaint for modification of custody. He prayed for modification of the decree to award him sole custody of the children, subject to Fabiola's reasonable rights of visitation or, in the alternative, to award the parties joint legal and physical custody of the children.
Fabiola filed an amended answer and cross-complaint in which she asked the district court to leave custody with her but modify various provisions of the parenting plan related to visitation, extracurricular activities, the parties' obligations to notify each other when the children suffered from “significant
illnesses,” and proof of health insurance. She also asked for permission to remove the children to California.
In December 2013 and January 2014, a trial was held on Manuel's complaint and Fabiola's amended cross-complaint. The evidence adduced by Fabiola included certified copies of an order sentencing Manuel to probation for his convictions of terroristic threats and third degree domestic assault and the mandate of the Nebraska Court of Appeals which affirmed his convictions in a memorandum opinion in case No. A–10–964. Fabiola testified that she was the victim of these crimes.
At the end of the hearing, Fabiola brought § 43–2932 to the district court's attention. The court stated that it was “very familiar with that statute.” Immediately thereafter, the court orally entered its decision. On the issue of custody, it stated:
On February 11, 2014, the district court entered a corresponding written order. It found that both parties were “fit and proper persons to be awarded the physical custody of the minor children,” and it awarded them joint physical custody. The court also found that it was “in the best interest of the minor children that legal custody be placed with the Court.” On related matters, the court denied Fabiola's application for removal, recalculated Manuel's child support obligation, and ordered the parties to communicate only through e-mail or text messaging. The court also made other modifications related to expenses, extracurricular activities, and proof of health insurance.
Fabiola timely appeals. Pursuant to our statutory authority to regulate the dockets of the appellate courts of this state, we moved the case to our docket. See Neb.Rev.Stat. § 24–1106(3) (Reissue 2008).
Fabiola assigns, restated, that the district court abused its discretion in placing legal custody with the court, modifying the decree to provide for joint physical custody where there
was little evidence of cooperation between the parties, and granting the parties joint physical custody without making the written findings required by § 43–2932.
In the order from which Fabiola appeals, the district court modified the parties' divorce decree in numerous ways. The most significant modification made by the court was to child custody, both legal and physical. It is this modification of custody to which Fabiola assigns error.
The district court made substantial modifications to the parties' custody arrangement. Prior to the order of modification, Fabiola had legal and physical custody of the children. The children were in Manuel's care at only the following times: (1) during his parenting time, which occurred on Wednesdays and alternating weekends; (2) for several weeks over the summer; (3) during holiday visitation; and (4) when Fabiola would occasionally ask him to watch the children for her. In the order of modification, the district court changed this arrangement by taking legal custody of the children and awarding the parties joint physical custody, with each parent to “have possession of the minor children for alternating periods of seven consecutive days.” Thus, as a result of the district court's modification, Manuel gained joint physical custody where he had none before and Fabiola lost the sole legal and physical custody which she had been awarded in the divorce decree.
Fabiola argues that it was a violation of § 43–2932 for the district court to adopt this new custody arrangement without making special written findings regarding Manuel's conviction for third degree domestic assault. We agree.
Section 43–2932, found within Nebraska's Parenting Act, establishes certain requirements for the development of a parenting plan in cases where a parent is found to have committed child abuse or neglect, child abandonment, or domestic intimate partner abuse or to have interfered with the other parent's access to the child. This statute has potential applicability to
the instant case, because modification proceedings involving child custody require development of a parenting plan and are governed by the Parenting Act. See Neb.Rev.Stat. § 42–364(1) and (6) (Cum.Supp.2014) and Neb.Rev.Stat. § 43–2924(1) (Reissue 2008).
Section 43–2932 states:
Section 43–2932 imposes several obligations upon a court where a parent's commission of one of the listed actions is established by a preponderance of the evidence. Where “a preponderance of the evidence demonstrates” that a parent has committed one of the listed actions, a court must make
a determination to that effect. See § 43–2932(1)(a). Such a finding, in turn, obligates the...
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