Heistand v. Heistand
| Decision Date | 23 January 2004 |
| Docket Number | No. S-02-1412.,S-02-1412. |
| Citation | 267 Neb. 300,673 NW 2d 541 |
| Parties | BRIAN HEISTAND, APPELLEE, v. LORI HEISTAND, APPELLANT. |
| Court | Nebraska Supreme Court |
Kelly T. Shattuck, of Cohen, Vacanti, Higgins & Shattuck, for appellant.
T.J. Pattermann, of Smith Peterson Law Firm, L.L.P., for appellee.
Lori Heistand appeals from an order of modification entered by the district court for Douglas County in which physical custody of the parties' minor child was transferred from Lori to Brian Heistand. We conclude, based upon our de novo review, that the district court abused its discretion in so holding.
On January 17, 1991, the marriage of Lori and Brian was dissolved by a court in Missouri, where both had resided for more than 90 days prior to the commencement of the dissolution proceeding. At the time of the decree, the parties had one minor child, Abby, who was born on April 1, 1990. The decree provided for the parties to have joint legal custody of Abby and for Lori to have physical custody of Abby with reasonable rights of visitation for Brian.
In July 2000, Brian resided in Council Bluffs, Iowa, and Lori and Abby resided in Omaha, Nebraska. On July 3, Brian filed a petition for modification of child custody in the district court for Douglas County, alleging generally that there had been a material change in circumstances subsequent to the decree which necessitated a change in custody. Brian alleged that Lori's anticipated move out of the State of Nebraska was intended in part to deprive him of visitation rights and was not in Abby's best interests. Brian also alleged that Lori was "keeping company with persons of a questionable nature at this time." Lori filed an answer and cross-petition on July 17, generally denying Brian's allegations regarding custody and requesting an increase in child support.
Brian filed an amended petition on August 3, 2000, alleging that the district court continued to have jurisdiction over the modification proceeding despite the fact that Lori and Abby had moved to Kansas, because Nebraska had been Abby's home state at the time the action was commenced. On August 10, Lori filed an answer and cross-petition affirmatively alleging that Brian had failed to state facts sufficient to support modification of custody and that Nebraska lacked jurisdiction to determine custody because none of the parties were currently residing in Nebraska. After a hearing in October, Lori moved back to Omaha. The parties participated in court-ordered mediation and agreed to a parenting plan which was subsequently filed with the district court on March 19, 2001.
In the summer of 2001, Lori moved to the Kansas City, Missouri, area. The parties arranged for Abby to stay with Brian and attend school in Council Bluffs. The parties agreed that Lori would receive liberal visitation. Abby moved in with Brian on August 11 and started school in Council Bluffs on August 23. The parties arranged for Abby to visit Lori the weekend of September 14 to 17. When Brian called Lori on September 16 to make arrangements for Abby's return, Lori refused to return Abby and told Brian that Abby would be remaining with her.
On September 20, 2001, Brian filed a motion for injunctive relief seeking an emergency restraining order and enforcement of the settlement, with a hearing to be held on October 2. The petition prayed for an order enforcing the parties' settlement agreement and for Lori to return Abby to the court's jurisdiction. On September 26, the court entered an ex parte custody order ordering Lori to return Abby to Brian. Abby, however, remained with Lori.
On October 1, 2001, Lori filed a motion asking the court to conduct an in camera interview of Abby and requesting attorney fees. Lori alleged that Abby had informed her that she would not live with Brian or speak to him because of certain conduct on his part. An in camera review was held on October 2, at which time Abby clearly expressed her preference to stay with Lori. The district court ordered Abby to remain with Lori, vacated and set aside its ex parte custody order, and set trial for November 7.
Following trial, the district court entered an order on November 26, 2001, in which it first determined that it had properly assumed jurisdiction pursuant to Neb. Rev. Stat. § 43-1203 (Reissue 1998). The court declined to address Lori's cross-petition for an increase in child support, finding that the issue was not properly before the court because the Missouri decree had not been registered in Nebraska as required by Neb. Rev. Stat. § 42-746 (Reissue 1998). Regarding custody of Abby, the court stated:
Given all of the facts in this case, this Court finds that no change should be made in Abby's primary residence at this time. She has moved too many times already, including the move in September, 2001. It would not be in her best interests to further disrupt her school year. There are too many pressures put on Abby. The situation should be stabilized with a detailed visitation plan, the appointment of a guardian ad litem, and counseling for all concerned. There are simply too many uncertain elements in this case for this Court to say that material changes have occurred such as to justify placing sole custody in Brian Heistand.
The court further stated in its order that a guardian ad litem would be appointed and that
A guardian ad litem was appointed by separate order entered November 26, 2001. On August 8, 2002, Brian filed an application for hearing to determine custody, visitation, and child support. Trial on the application was held on November 1. Brian and Lori both testified, as did Lori's neighbor and coworker. The guardian ad litem testified in that capacity and as a court-appointed "expert witness."
On November 20, 2002, the district court entered an order of modification finding that "[i]t is in the best interests of Abby Leigh Heistand that her care, custody, control and possession be placed solely in petitioner Brian Heistand." Lori filed this timely appeal, which we moved to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
Additional evidentiary facts and procedural history will be incorporated in our analysis of the issues presented for appellate review.
Lori assigns, restated and reordered, that the district court erred in (1) failing to determine that the State of Nebraska was an inconvenient forum to make a custody determination in this matter; (2) allowing opinion testimony of the guardian ad litem as an improperly designated expert, pursuant to Neb. Evid. R. 706, Neb. Rev. Stat. § 27-706(1) (Reissue 1995); (3) failing to sustain objections to hearsay testimony offered by the guardian ad litem; and (4) finding that a material change in circumstances which was in the best interests of Abby existed, warranting a modification of the parties' decree of dissolution of marriage.
[1] When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's; however, when a determination rests on factual findings, a trial court's decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect. Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658 N.W.2d 40 (2003).
[2] An appellate court's review of the trial court's admission or exclusion of expert testimony which is otherwise relevant will be for an abuse of discretion. Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001).
[3] Child custody determinations 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. Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
Lori argues that the district court erred in failing to determine that the State of Nebraska was an inconvenient forum. Section § 43-1203(1) provides in relevant part that a Nebraska court has jurisdiction to decide child custody matters by initial or modification decree if:
Section 43-1203(3) provides that although physical presence of the child is desirable, it is not a prerequisite for jurisdiction to determine his or her custody.
Neb. Rev. Stat. § 43-1207(2) (Reissue 1998) provides that "[a] finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or...
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