Hassenstab v. Hassenstab
| Decision Date | 23 September 1997 |
| Docket Number | No. A-96-571,A-96-571 |
| Citation | 570 N.W.2d 368,6 Neb.App. 13 |
| Parties | Carol Marie HASSENSTAB, Appellee, v. Thomas Kelly HASSENSTAB, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. 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 2. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action.
record and will be reversed upon an abuse of discretion.
3. Child Custody: Proof. The party seeking modification of child custody bears the burden of showing that a material change in circumstances has occurred.
4. Child Custody: Visitation. In determining a child's best interests in custody and visitation matters, Neb.Rev.Stat. § 42-364(2) (Cum.Supp.1994), provides that the factors to be considered shall include, but not be limited to, the following: (a) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (b) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (c) the general health, welfare, and social behavior of the minor child; and (d) credible evidence of abuse inflicted on any family or household member.
5. Child Custody. A court may consider other factors in determining a child's best interests in custody matters, including the moral fitness of the child's parents and the parents' sexual conduct.
6. Child Custody. The best interests of the minor child remain the court's paramount concern in deciding custody issues.
7. Child Custody: Evidence. In determining whether the custody of a minor child should be changed, the evidence of the custodial parent's behavior during the year or so before the hearing on the motion to modify is of more significance than the behavior prior to that time. What courts are interested in are the best interests of the child now and in the immediate future, and how the custodial parent is behaving now is therefore of greater significance than past behavior when attempting to determine the best interests of the child.
8. Child Custody: Proof. The Nebraska Supreme Court has repeatedly held, albeit not in the context of a homosexual relationship, that a parent's sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity.
9. Child Custody: Proof. Sexual activity by a parent, whether it is heterosexual or homosexual, is governed by the rule that to establish a material change in circumstances justifying a change in custody there must be a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity and that a change of custody is in the child or children's best interests.
Mark J. Milone and John A. Kinney, of Frost, Meyers, Guilfoyle & Govier, Omaha, for appellant.
Edith T. Peebles and Lisa M. Line, of Brodkey, Cuddigan & Peebles, Omaha, for appellee.
Thomas Kelly Hassenstab appeals from an order entered by the Douglas County District Court denying his application to modify custody from Carol Marie Hassenstab to him. For the reasons set forth herein, we affirm the order of the district court.
Thomas and Carol were married on September 13, 1986. One child was born of this marriage, Jacqueline A. Hassenstab, on March 28, 1986. On May 24, 1990, the Douglas County District Court entered an order dissolving the parties' marriage and awarding custody of Jacqueline to Carol with reasonable rights of visitation to Thomas.
On June 13, 1995, Thomas filed an "Application to Modify Decree of Dissolution of Marriage" requesting, among other things A trial on the application to modify and Carol's cross-petition was held on March 22, 1996. The evidence adduced at trial established that following the parties' divorce, Carol had been involved in a homosexual relationship. Additionally, Thomas testified to Carol's alleged suicide attempts which he contends occurred prior to and during the marriage. Carol testified that she attempted suicide on one occasion which was 7 years prior to the modification hearing and prior to the time that the dissolution decree became final. In describing the suicide attempt, Carol stated she "fell" out of a car traveling approximately 40 miles per hour. Additionally, the evidence did establish that Carol has sought counseling for several reasons, including her confusion over her sexual identity, but that she was not in counseling at the time of the modification hearing.
that the court modify the prior custody determination by awarding custody of Jacqueline to Thomas. Carol filed an answer which generally denied the allegations contained in Thomas' application to modify and also filed a cross-petition requesting an increase in child support and attorney fees.
The trial judge met with Jacqueline in the court's chambers prior to submission of the case for determination. During the meeting, Jacqueline expressed a desire to remain in her mother's custody.
The district court subsequently entered an order dismissing Thomas' application to modify, modifying the original dissolution decree to increase Thomas' child support obligation, and awarding Carol $1,250 in attorney fees. Thomas timely appealed to this court regarding the dismissal of his application to modify.
On appeal, Thomas contends that the district court erred in finding that no substantial and material change in circumstances had taken place since the entry of the dissolution decree showing that Carol was unfit to retain custody of Jacqueline or that Jacqueline's best interests required a modification of her custody to Thomas. Thomas does not appeal the court's order increasing his child support obligation or the award of attorney fees.
"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." Adrian v. Adrian, 249 Neb. 53, 56, 541 N.W.2d 388, 390 (1995).
Thomas contends that the district court erred in finding that no substantial and material change in circumstances had taken place since the entry of the dissolution decree that showed that Carol was unfit to retain custody of Jacqueline or that Jacqueline's best interests required a modification of her custody to Thomas.
Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996); Krohn v. Krohn, 217 Neb. 158, 347 N.W.2d 869 (1984). The party seeking modification of child custody bears the burden of showing that a material change in circumstances has occurred. Smith-Helstrom, supra; Krohn, supra.
In determining a child's best interests in custody and visitation matters, Neb.Rev.Stat. § 42-364(2) (Cum.Supp.1994), provides that the factors to be considered shall include, but not be limited to, the following:
(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
b) The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of the minor child; and
(d) Credible evidence of abuse inflicted on any family or household member.
Additionally, a court may consider other factors in determining a child's best interests in custody matters, including the moral fitness of the child's parents and the parents' sexual conduct. Smith-Helstrom, supra; Helgenberger v. Helgenberger, 209 Neb. 184, 306 N.W.2d 867 (1981). However, the best interests of the minor child remain the court's paramount concern in deciding custody issues. Smith-Helstrom, supra.
First, we address Thomas' contentions that Carol is an unfit mother by reason of her alleged suicide attempts, alcohol consumption, and other psychological difficulties as well as her failure to provide a stable home environment.
Kennedy v. Kennedy, 221 Neb. 724, 727-28, 380 N.W.2d 300, 303 (1986) (quoting Riddle v. Riddle, 221 Neb. 109, 375 N.W.2d 143 (1985)).
The evidence was that a suicide attempt occurred 7 years prior to the modification hearing and prior to the time that the dissolution decree became final in which Carol "fell" out of a car traveling approximately 40 miles per hour. Additionally, the evidence did establish that Carol has sought counseling for several reasons, including her confusion over her sexual identity, but that she was not in counseling at the time of the modification hearing.
With regard to Carol's alcohol...
To continue reading
Request your trial
-
Schrag v. Spear
...Hoins, 7 Neb.App. 564, 584 N.W.2d 480 (1998) (citing Kennedy v. Kennedy, 221 Neb. 724, 380 N.W.2d 300 (1986), and Hassenstab v. Hassenstab, 6 Neb.App. 13, 570 N.W.2d 368 (1997)). The focus is on the best interests of the child now and in the immediate future, and how the custodial parent is......
-
Berry v. Berry, No. E2004-01832-COA-R3-CV (TN 5/31/2005)
...App. 1990); Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980); Hollon v. Hollon, 784 So. 2d 943, 949 (Miss. 2001); Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb. Ct. App. 1997); M.P. v. S.P., 404 A.2d 1256 (N.J. Super. Ct. App. Div. 1979); Guinan v. Guinan, 477 N.Y.S. 2d 830 (1984); Conkel v......
-
Damron v. Damron
...any adverse affect upon children does not render homosexual parent unfit as matter of law to have custody); Hassenstab v. Hassenstab, 6 Neb. App. 13, 570 N.W.2d 368, 372-73 (1997) (affirming refusal to modify custody based on mother's homosexual relationship in absence of evidence child was......
-
Taylor v. Taylor
...to meet his burden of proof for a change of custody. The Nebraska Court of Appeals held to the same effect in Hassenstab v. Hassenstab, 6 Neb.App. 13, 570 N.W.2d 368 (1997). There, the appellate court affirmed a trial court and held that where there was no showing that the child was directl......
-
Advocacy for Nebraska Children With Gay and Lesbian Parents: a Call for the Best Interests of the Child to Be Paramount in the Case of Non-biological, Non-adoptive Parents
...209 Neb. at 188, 306 N.W.2d at 870. 76. 6 Neb. Ct. App. 13, 570 N.W.2d 368 (1997). 77. Hassenstab v. Hassenstab, 6 Neb. Ct. App. 13, 18, 570 N.W.2d 368, 372 (1997). 78. Hassenstab, 6 Neb. Ct. App. at 20, 570 N.W.2d at 373. 79. Id. 80. See Mair v. James, No. 1-00-016 (Neb. Ct. App. 2001) (ap......
-
Advocacy for Nebraska Children With Gay and Lesbian Parents: a Call for the Best Interests of the Child to Be Paramount in the Case of Non-biological, Non-adoptive Parents
...209 Neb. at 188, 306 N.W.2d at 870. 76. 6 Neb. Ct. App. 13, 570 N.W.2d 368 (1997). 77. Hassenstab v. Hassenstab, 6 Neb. Ct. App. 13, 18, 570 N.W.2d 368, 372 (1997). 78. Hassenstab, 6 Neb. Ct. App. at 20, 570 N.W.2d at 373. 79. Id. 80. See Mair v. James, No. 1-00-016 (Neb. Ct. App. 2001) (ap......