Hamit v. Hamit
| Decision Date | 02 June 2006 |
| Docket Number | No. S-05-245.,S-05-245. |
| Parties | Carl and Linda HAMIT, appellees, v. Tanya HAMIT, appellant. |
| Court | Nebraska Supreme Court |
James C. Bocott, of McCarthy, Moore & Hall, North Platte, for appellant.
Michael E. Piccolo, of Dawson & Piccolo, P.C., L.L.O., North Platte, for appellees.
Tanya Hamit, appellant and the mother of Wyatt and Garrett Hamit, appeals from the order of the district court for Lincoln County, which concluded that Nebraska's grandparent visitation statutes, Neb.Rev. Stat. §§ 43-1801 to 43-1803 (Reissue 2004), were not unconstitutional and awarded grandparent visitation to the children's paternal grandparents, Carl and Linda Hamit, appellees. In this appeal, we are called on to determine, in light of the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), whether Nebraska's grandparent visitation statutes are unconstitutional. We conclude that Nebraska's grandparent visitation statutes are not unconstitutional as applied to appellant, and we further conclude that the district court did not abuse its discretion in awarding grandparent visitation to appellees. We affirm.
Appellant married Jeremy Hamit (Jeremy) in October 1999. Appellant and Jeremy had two children, Wyatt, born on September 7, 2000, and Garrett, born on December 30, 2002.
Appellees are the parents of Jeremy. Appellees own and operate Wallace Flying Service, in Wallace, Nebraska. Jeremy and appellant worked for the flying service during their marriage. Jeremy was a pilot, and appellant was an office assistant. Their children, Wyatt and later Garrett, would accompany Jeremy and appellant to work and would be cared for by appellees when Jeremy and appellant were occupied. The grandchildren were also frequent visitors to appellees' home.
Following Garrett's birth, appellant filed for divorce from Jeremy. During the pendency of the divorce proceedings, Jeremy had custody of Wyatt and Garrett every other week. When Jeremy had custody, he would regularly bring the children to visit appellees, and appellees were actively involved in the care and nurturing of their grandchildren.
On April 4, 2004, prior to the divorce trial, Jeremy died in a plane crash. Following the death of Jeremy, appellees contacted appellant in an effort to continue visiting with their grandchildren. After an initial visit between appellees and the grandchildren, however, appellant did not respond to appellees' further attempts to schedule visitation.
On May 4, 2004, appellees filed their petition in the district court for Lincoln County seeking grandparent visitation pursuant to Nebraska's grandparent visitation statutes, §§ 43-1801 to 43-1803. Appellant opposed appellees' petition. During the pendency of the visitation proceedings, the district court awarded appellees temporary visitation with Wyatt and Garrett every other Saturday.
In appellant's amended answer, she challenged the constitutionality of Nebraska's grandparent visitation statutes. In the district court and on appeal, appellant claims that given the fundamental nature of her parental rights, the Nebraska grandparent visitation statutes violate her substantive due process rights guaranteed by the U.S. and Nebraska Constitutions.
On December 7, 2004, appellees' petition for visitation came on for trial. A total of 11 witnesses testified, and several exhibits were admitted into evidence. On January 7, 2005, the district court entered its order. The order is eight pages in length. The order recites numerous findings of fact and, in some cases, determines the credibility of witnesses. In its order, the district court concluded that Nebraska's grandparent visitation statutes were constitutional. The district court further determined that the evidence presented at trial "was overwhelming and established beyond any doubt, and certainly by clear and convincing evidence that each of the factors set forth in the Nebraska grandparent visitation statutes have been proven by [appellees]." The district court ordered the parties to comply with a specific visitation schedule, which granted appellees visitation with their grandchildren on the first Saturday of each month, from 9 a.m. to 7 p.m., and for 7 consecutive days in the summer. Appellant filed this appeal from the district court's order.
Additional facts will be set forth below where pertinent to our analysis.
On appeal, appellant assigns several errors. Appellant claims, renumbered and restated, that the district court erred (1) in concluding that Nebraska's grandparent visitation statutes were constitutional on their face and as applied to appellant and did not violate the due process provisions of the U.S. and Nebraska Constitutions; (2) in determining that appellees had attempted to reconcile their differences with appellant prior to seeking court-ordered visitation; and (3) in finding that there was clear and convincing evidence that there was a significant and beneficial relationship between appellees and the children, that it would be in the children's best interests for such a relationship to continue, and that the continuation of the relationship would not adversely impact appellant's relationship with the children, and in ordering grandparent visitation.
With respect to the second assignment of error regarding whether the parties attempted to reconcile their differences regarding visitation prior to appellees' seeking court-ordered visitation, we note that appellant's brief includes no argument regarding this assigned error. Errors that are assigned but not argued will not be addressed by an appellate court. Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006). Accordingly, we do not consider this assignment of error.
Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. In re Interest of Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006).
Determinations concerning grandparent visitation are initially entrusted to the discretion of the trial judge, whose determinations, on appeal, will be reviewed de novo on the record and affirmed in the absence of abuse of the trial judge's discretion. Nelson v. Nelson, 267 Neb. 362, 674 N.W.2d 473 (2004). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system. Id.
Appellant asserts that Nebraska's grandparent visitation statutes, §§ 43-1801 to 43-1803, are unconstitutional on their face and as applied, because, given her parental rights, they violate her substantive due process rights under both the U.S. and the Nebraska Constitutions. Relying upon the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), appellant claims that the grandparent visitation statutes are unconstitutional in that they fail to give adequate deference to a fit parent's decisions regarding the care, custody, and control of the parent's minor children and permit a court to order grandparent visitation over the objection of such parent. As discussed in the final section of our analysis, we conclude that the Nebraska grandparent visitation statutes as applied to appellant did not violate her substantive due process rights. Further, since there exists a set of circumstances under which the statutes are valid, §§ 43-1801 to 43-1803 are not unconstitutional on their face. We therefore conclude that the district court did not err when it rejected appellant's constitutional challenge.
Appellant's argument challenging the constitutionality of the Nebraska grandparent visitation statutes is based primarily upon the U.S. Supreme Court's decision in Troxel, in which the Court reviewed the constitutionality of the State of Washington's nonparent visitation statute that permitted "`[a]ny person' to petition a superior court for visitation rights `at any time,' and authorize[d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child.'" 530 U.S. at 60, 120 S.Ct. 2054 (quoting Wash. Rev.Code Ann. § 26.10.160(3) (West 1997)). The U.S. Supreme Court concluded that the Washington statute at issue was unconstitutional.
According to the Troxel opinion, the grandparents in Troxel, following the death of their son, had sought two weekends of overnight visitation per month, as well as 2 weeks of visitation each summer, with their two grandchildren with whom they had had a longstanding relationship. The children's mother did not oppose all visitation, but, rather, sought to limit visitation to 1 day per month. After a trial, the trial court ruled in favor of the grandparents, stating that "`it is normally in the best interest of the children to spend quality time with the grandparent.'" 530 U.S. at 69, 120 S.Ct. 2054. The mother appealed, and the Washington Court of Appeals reversed, concluding that the grandparents lacked standing to seek visitation under the Washington statute unless a custody action was pending.
The grandparents sought further review, which was granted by the Washington Supreme Court. The Washington Supreme Court affirmed...
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