Hickenbottom v. Hickenbottom

• Decision Date: 22 November 1991
• Docket Number: No. 90-1132,90-1132
• Citation: Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (Neb. 1991)
• Parties: Scott D. HICKENBOTTOM, Appellee, v. Judy L. HICKENBOTTOM, Appellant.
• Court: Nebraska Supreme Court

Page 8

477 N.W.2d 8

239 Neb. 579

Scott D. HICKENBOTTOM, Appellee, v. Judy L. HICKENBOTTOM, Appellant.

No. 90-1132.

Supreme Court of Nebraska.

Nov. 22, 1991.

Syllabus by the Court

1. Actions: Stipulations. Parties to litigation are bound by stipulations voluntarily made and are granted relief therefrom only under exceptional circumstances.

2. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a marriage

cannot control the disposition of minor children by agreement.

3. Parent and Child: Divorce: Words and Phrases. A stepfather is the husband of a child's mother by virtue of a marriage subsequent to that of which the child is the offspring; a husband who divorces the mother of such a child is no longer the child's stepfather.

4. Divorce: Courts: Jurisdiction: Minors. The only statutory authority conferred on district courts to deal with children in dissolution actions is that contained in Neb.Rev.Stat. § 42-364 (Reissue 1988).

5. Statutes. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning.

6. Statutes. When the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning.

7. Visitation: Appeal and Error. In a dissolution of marriage action, determinations concerning visitation with a minor 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, keeping in mind, however, that the trial judge observed and heard the witnesses and accepted one version of the facts rather than the other.

8. Divorce: Courts: Jurisdiction: Parent and Child: Visitation. Neb.Rev.Stat. § 42-364 (Reissue 1988) confers jurisdiction upon the district court in the course of dissolution proceedings to grant visitation rights to an ex-stepparent who stood in loco parentis to the former stepchild.

9. Divorce: Courts: Stipulations: Visitation. In dissolution proceedings the district court always has the power, based on the best interests of the child, to either approve or disapprove stipulations or agreements for visitation.

10. Divorce: Courts: Stipulations: Visitation. In dissolution proceedings the district court has a responsibility to make its own determination concerning matters of visitation, which responsibility cannot be forestalled by any agreements or stipulations of the parties.

Rita L. Melgares, of Qualley & Associates, Omaha, for appellant.

Phillip G. Wright, of Quinn & Wright, Omaha, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

In this dissolution of marriage action, the district court incorporated in its decree the stipulation of the parties that the petitioner-appellee husband, Scott D. Hickenbottom, have reasonable visitation with his former stepdaughter, a child born to the respondent-appellant wife, Judy L. Hickenbottom, on February 3, 1980, during an earlier marriage. The wife assigns the incorporation as error, asserting that she had rescinded the stipulation. We affirm.

The parties, who were married on May 18, 1984, produced two sons, one born on October 26, 1984, and the other on November 4, 1986. During the course of these proceedings, the parties executed a stipulation which made no provision for the younger boy, but gave the wife care, custody, and control of the older boy notwithstanding the fact he had been living with the husband. The stipulation also granted the husband reasonable visitation with the wife's daughter. At trial, the wife testified she had been coerced into signing the stipulation because the husband told her he would allow the older boy to live with her if she agreed that he, the husband, could have visitation with her daughter.

The record establishes that the husband had lived with his former stepdaughter since she was approximately 2 years old. According to him, the girl's biological father had no contact with her and had paid nothing toward her maintenance. The husband testified that he, on the other hand, enjoyed a father-daughter relationship with her ever since she has been old enough to talk, saying that the girl "has been my daughter...."

The husband also testified that he participated in raising his former stepdaughter in many ways. He disciplined her when she needed it, helped take care of her, cooked her meals, put her to bed, and attended her school plays and parent-teacher conferences. According to the husband, "[t]here was never reference to her as stepdaughter and she never referred to [him] as stepfather"; she calls him "daddy" and is known by his surname.

The husband further testified that he and his former stepdaughter have a mutual loving relationship and that they are quite attached to each other. The girl has been included in the husband's prior visitations with the parties' two boys in activities wherein the four have participated together as a family.

The wife admitted that the three children had "done activities together" and that her daughter likes the husband, but would not go so far as to say the daughter was fond of him.

When asked why she objected to the husband having visitation with the girl, she replied:

First of all, it's not his child. It's just been me and [the daughter], we have our own life, he has his own life. I just want to get on with it. I don't want him coming and going when he pleases, you know. She was already abandoned, left--I wouldn't say abandoned, but left by one father. I don't need it by a second father. I won't tolerate it from him. And his harassment, I won't tolerate it.

She also said she objected to the husband's "womanizing around," but this complaint is not elaborated upon.

The evidence persuaded the district court judge that it would be in the girl's best interests to visit with the husband. In so concluding, he noted that the only reasons advanced by the wife for a contrary result had nothing to do with the child's best interests but, rather, relied on the husband's lack of a blood relationship with the child and the wife's desire to get on with her own life without the husband.

We begin by observing that the wife is confused as to her right to rescind the stipulation she executed. As we recently reaffirmed, the parties to litigation are bound by stipulations voluntarily made and are granted relief therefrom only under exceptional circumstances. White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987). See, also, State v. Wells, 197 Neb. 584, 249 N.W.2d 904 (1977); Martin v. Martin, 188 Neb. 393, 197 N.W.2d 388 (1972). There is nothing in this record which demonstrates either the existence of the type of exceptional circumstances which would justify granting relief from the stipulation or that she entered into it other than voluntarily. It is obvious that she at one time during the course of the litigation made the judgment that in order not to have to litigate the issue of custody of the parties' older son, she would agree to give the husband the right to visit her daughter. Such a quid pro quo does not constitute coercion. The fact is that the wife simply changed her mind; a change of mind is not such an exceptional circumstance as to justify relief from a stipulation.

However, the wife's confusion in this regard is unimportant because, as she correctly argues, the parties in a proceeding to dissolve a marriage cannot control the disposition of minor children by agreement. Hicks v. Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986); Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980); Koser v. Koser, 148 Neb. 277, 27 N.W.2d 162 (1947). More is said later in this opinion about the factors to be considered when determining visitation issues.

A stepfather is the husband of a child's mother by virtue of a marriage subsequent to that of which the child is the offspring; thus, a husband who divorces the mother of such a child is no longer the child's stepfather. Kogon v. Ulerick, --- Va.App. ---, 405 S.E.2d 441 (1991). Therefore, the threshold question in this case is whether the district court had jurisdiction to grant the husband, as the ex-stepparent the right to visit his former stepdaughter. Of the handful of jurisdictions which have examined this issue, most have concluded, on a variety of theories, that under appropriate circumstances, an ex-stepparent is entitled to visitation with a former stepchild.

Pennsylvania was apparently the first jurisdiction to examine the matter. In Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977), the Pennsylvania Superior Court held that an ex-stepfather could not be denied the right to visit his former stepchildren just because he lacked any blood relationship to them. In so holding, the court stated at 378 A.2d at 881:

Clearly, a stepfather and his young stepchildren who live in a family environment may develop deep and lasting mutual bonds of affection. Courts must acknowledge the fact that a stepfather (or stepmother) may be the only parent that the child has truly known and loved during its minority. A stepparent may be as devoted and concerned about the welfare of a stepchild as a natural parent would be. Rejection of visitation privileges cannot be grounded in the mere status as a stepparent.

The Spells court discussed the status of one who may " 'put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption....' " Id. According to the court at 378 A.2d at 882:

A stepfather who lives with his spouse and her natural children may assume the status "in loco parentis". We may expect that a bond will develop between stepparent and stepchild; we, therefore, should protect that relationship by conferring rights of visitation. The departure of a stepfather from the home would no more destroy the love...