Giandinoto v. Giandinoto
| Decision Date | 04 April 2017 |
| Docket Number | No. A-16-802.,A-16-802. |
| Parties | TAWNI R. GIANDINOTO, APPELLEE, v. STEVEN J. GIANDINOTO. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.
Phillip G. Wright for appellant.
Julie Fowler and Brendan M. Kelly, of Fowler & Kelly Law, L.L.P., for appellee.
Steven J. Giandinoto appeals the order of modification entered by the district court for Sarpy County on July 20, 2016, and the order denying Steven's motion for new trial.
The parties' marriage was dissolved in January 2014 and sole legal and physical custody of the parties' three minor children was granted to Tawni R. Giandinoto, subject to Steven's reasonable parenting time. Steven appealed the dissolution decree and this court entered a memorandum opinion, affirming the decisions of the district court on November 20, 2014.
The mandate was filed on February 26, 2015, and Steven filed a complaint to modify on February 27. Steven sought sole legal and physical custody, alleging a material change in circumstances had occurred warranting modification of the decree and a change in custody of the minor children.
Tawni filed an answer, denying Steven's allegations that a material change in circumstances had occurred. She filed an amended answer and counterclaim on August 13, 2015. In her counterclaim, she requested that Steven's parenting time be supervised because, she alleged, he used inappropriate psychological and verbal abuse to intimidate and coerce the children, and he made disparaging remarks about her in front of the children. She requested to retain sole legal and physical custody, subject to Steven's parenting time, and other relief including attorney fees and continued child support.
Trial was held in the district court for Sarpy County on June 1, June 2, and June 21, 2016.
Steven testified that he filed the complaint to modify because he was concerned about his children's academic performance and attendance, the lack of stability in Tawni's personal life and work schedule, and because Tawni interfered with his telephone contact with the children. He testified that he was concerned that the children were not receiving adequate dental care, and were overweight, presumably from a lack of physical activity. He is a dental hygienist and testified that he has only exercised weeknight visitation once since the original decree because of his work schedule and the time it would take to drive to Auburn and back from Omaha.
Tawni testified in response to Steven's allegations. She provided information regarding her work schedule as a nurse, her personal life, and how she addresses the children's social, educational and physical and mental health needs. She said that although she had previously told Steven he could contact the children "anytime," she expected that he would use his discretion to contact them "within normal hours." She testified that some of his communication with the children was late at night on school nights and she was concerned that it affected their academic performance.
Jacqueline Kelsay, testified that she is the principal at Calvert Elementary School in Auburn, the school attended by the two younger children. She stated that she was familiar with Tawni, but had no contact with Steven. She said that any parent can access information about their child's education through the school, either by requesting a mailing or accessing the website which includes the child's grades, attendance, and lunch account information, as well as the calendar of parent-teacher meetings and school activities. Kelsay testified after a certain number of days absent per semester the parent receives a letter from the school. Kelsay said Tawni received this letter on behalf of Kylan and Joren during the first semester, but that the boys had what was considered "average attendance," and their grades improved as the school year progressed. She attributed their academic performance to an increasingly strong work ethic, and said both boys' teachers were well satisfied.
The parties' oldest child, Brekkan testified in camera, with only the judge and the guardian ad litem present. Brekkan's testimony, as well as the court's specific findings regarding his testimony were sealed. The parties agreed that his testimony would be sealed, and neither party objected when they were informed that they would not have access to his testimony, or the court's specific findings with regard to his testimony.
The trial court's order specifically addressed the evidence presented at trial with regard to (1) the children's educational progress, (2) housing, (3) the children's mental health andwell-being, (4) visitation, (5) Tawni's personal behavior, (6) the children's dental and medical care, (7) Tawni's work schedule, and other miscellaneous factors. The Court found that, generally, Brekkan's testimony supported the court's findings.
The trial court found that based on the totality of the evidence presented, it was clear that the children were placed "squarely in the middle of their parents' conflict and are suffering from the effects thereof." The court determined that some changes had occurred since the entry of the decree, but ultimately found that no material change in circumstances had been proven, demonstrating that Tawni was unfit for continuing custody or that the best interests of the minor children would be best served by granting custody to Steven.
The court ordered the parenting plan attached to the January 22, 2014, decree would remain in full force and effect, except for modifications to the ordered telephonic and weekday visitation. The modifications included amending the provision for telephonic visitation to allow 10 to 30 minute calls between the hours of 6 p.m. and 9 p.m. four times per week, and changing the weekday parenting time from Wednesday to Thursday evening to accommodate Steven's work schedule. The court denied Tawni's request for supervised visitation and ordered that the child support calculation set forth in the original decree should remain in effect. The court ordered Steven to pay $10,000 toward Tawni's attorney's fees.
Steven filed a motion for new trial on August 1, 2016. After a hearing on August 15, the motion was overruled. Steven timely appealed. Tawni filed a notice with this court, affirmatively waiving her right to file a brief.
Steven asserts the district court erred and abused its discretion in: (1) awarding sole physical and legal custody to Tawni, (2) failing to properly calculate child support, (3) awarding Tawni a $10,000 attorney fee, and, (4) failing to grant a new trial. He also asserts the district court abused its discretion in failing to recuse itself.
Child custody determination are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
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. Id.
In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts over another. Id.
In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).
An appellate court will uphold a trial court's ruling on a motion for new trial absent an abuse of discretion. Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).
A motion to recuse for bias or partiality is initially entrusted to the discretion of the trial court and the trial court's ruling will be affirmed absent an abuse of that discretion. Dinges v. Dinges, 16 Neb. App. 275, 743 N.W.2d 662 (2008).
Custody of Minor Children.
Steven asserts the district court erred in awarding sole legal and physical custody to Tawni. He argues:
The undisputed facts show that the Appellee has failed these children in every category possible. As complained and proven by the Appellant, the Appellee continues to abuse the children, has allowed the children to miss a tremendous amount of school, the children are failing or doing poorly in school, are not motivated, are not cared for, missing dental treatments, have threatened suicide, have been exposed to inappropriate sexual behavior by their mother, their visitation with their father has been blocked and interfered with, their mother has lied to the authorities, and encouraged her children to lie to authorities, and filing a false protection order against Appellant.
Accordingly, he asserts that the trial court's decisions are contrary to the children's best interests and the trial court abused its discretion in failing to grant him custody. Steven argues that the district court applied the wrong legal standard in addressing "unfitness."
The legal principles governing modification of child custody are well settled. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Schrag v. Spear, supra. A material change in circumstances means the occurrence of something which, had it been known to the...
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