Nelson v. Nelson, No. S-02-252
| Decision Date | 06 February 2004 |
| Docket Number | No. S-02-512., No. S-02-252 |
| Parties | Deborah Lea NELSON, now known as Deborah Lea Nechkash, appellant, v. Terry Alan NELSON, appellee, and Arlene Nelson, paternal grandmother, and Jacqueline M. McKern and Herbert M. McKern, maternal grandparents, intervenors-appellees. |
| Court | Nebraska Supreme Court |
Andrew C. Sigerson, Omaha, of Blazek & Associates, P.C., L.L.O., for appellant.
Michael B. Lustgarten and Matthew A. Headley, Senior Certified Law Student, of Lustgarten & Roberts, P.C., for appellee-intervenor Arlene Nelson.
Diane L. Berger for appellees-intervenors Jacqueline M. McKern and Herbert M. McKern.
Deborah Lea Nelson, now known as Deborah Lea Nechkash, appealed from an order of the district court for Douglas County granting two separate petitions for grandparent visitation and from a subsequent order holding her in contempt for violation of the visitation order. The Nebraska Court of Appeals determined that the district court abused its discretion in ordering visitation and reversed, and remanded with directions to dismiss. The court also dismissed the appeal from the contempt order as moot. Nelson v. Nelson, Nos. A-02-252, A-02-512, 2003 WL 1798939 (Neb.App. Apr. 8, 2003) (). We granted the grandparents' petition for further review.
The following detailed summary of the testimony and procedural background of these cases is adopted substantially, and for the most part verbatim, from the opinion of the Court of Appeals.
A decree dissolving the marriage of Deborah and Terry Alan Nelson was entered in August 2001. Terry died a few weeks later. Deborah was awarded custody of their three children: Erica Brooke Nelson, born June 14, 1990; Alan James Nelson, born April 23, 1992, and Cullan Justin Nelson, born May 17, 1994. Deborah remarried on December 7, 2001.
Arlene Nelson, a widow, is the children's paternal grandmother, and Jacqueline M. McKern and Herbert M. McKern are the maternal grandparents. They filed separate petitions to intervene in the dissolution action, which petitions were granted. Arlene filed a petition for visitation on December 19, 2001, and the McKerns filed a similar petition on January 2, 2002. Deborah answered with general denials. A trial on both petitions was held on January 16.
Arlene testified that prior to her husband's death in 1993, Deborah, Terry, and the children came to Arlene's house "more than twice a week" and that she and her husband took them out to eat on "almost a weekly basis." There were also times during this period when the children spent the night with Arlene and her husband. After her husband's death and until approximately 3 years prior to the trial, Arlene saw the children on at least a weekly basis when she became their daycare provider. Arlene testified that she performed the following services in her role as daycare provider:
Arlene was the children's daycare provider for approximately 2 years.
Arlene testified that during the 2 years preceding the trial, the children spent the night at her house when Terry exercised his visitation rights and perhaps on a few other "sporadic" occasions. Arlene testified that she has had regular contact with the children since they were born, except for a period when Deborah would not allow the children or Terry to visit Arlene because of a dispute over money.
Arlene requested an order that she and the McKerns be allowed to share visitation with the children either Friday evening to Sunday evening once a month, or Saturday morning to Sunday evening every other weekend. She asked for court-ordered visitation, in part because she believed it would be her only contact with the children and the children's only contact with Terry's side of the family. Arlene testified that Terry's brother, sisters, and cousins no longer have contact with the children because "that's not allowed." Arlene did not have much contact with the McKerns but testified that she had previously involved them in functions at her home relating to the children.
On cross-examination, Arlene read an excerpt from a statement she had written during Deborah and Terry's divorce proceedings. It read:
Deborah Nelson is hard to get along with, destructive family person who cares little about the needs of her own children and/or other people. She wants no church affiliation for herself or her children. A drinker and lazy in all things. Puts herself first and has no family relationships because she has run out of people who will do for her. Manipulative to where she has damaged the lives of her own children. Deborah's only a biological mother, and has never provided a home atmosphere for the children or her husband. Deborah always had to be in control and center stage. Money is and always has been her goal.
The McKerns, the maternal grandparents, live on a farm near Council Bluffs, Iowa. Jacqueline testified that the children enjoyed visiting the farm and being with the farm animals. Other than a Christmas visit shortly before trial, the McKerns had not seen the children for more than a year. Jacqueline testified that prior to that visit, "there was not much contact at all," because the McKerns "were not talking" to Deborah.
Jacqueline testified that she has five other grandchildren. She feels that it is in the Nelson children's best interests to have ongoing contact with the rest of Deborah's side of the family. Jacqueline testified that Deborah does not have a relationship with any member of their family. While Jacqueline admits there is "some unhappiness between the family," she feels that she is able to be with the children "and not provide any negative feelings" to them.
On cross-examination, Jacqueline admitted that she had not asked Deborah for visitation with the children before seeking court-ordered visitation. After Deborah received notice that Jacqueline had petitioned for visitation rights, Deborah brought the children to see Jacqueline. Jacqueline admitted that on this occasion, she had a brief discussion with Deborah but did not acknowledge the children. On another occasion, in March 2000, Deborah called and asked Jacqueline to watch the children. Jacqueline refused, saying she did not want to be a babysitter. Jacqueline asked the court to award grandparent visitation to be shared with Arlene.
Herbert testified that he made the following statement to Terry at the time of the divorce proceedings:
Will testify that Terry is a better parent for the children. Terry has always worked overtime in the past and provided for the children. Deborah has had no family involvement with either Terry's family or her own family, except for her grandfather who she goes to for money. She has isolated herself from the kids and from family members. She put herself first and will never take responsibility for any wrongdoing by her. She needs to be in control at all times. Deborah has talked negative[ly] to Terry whenever she was in front of any family members, whether her family or Terry's family.
Deborah testified that she believed it was not in her children's best interests to have contact with their grandparents "at this time" because of the lack of relationship between the children and the grandparents in the past and the grandparents' "negative feelings" toward her and her new husband. She testified that she notices negative changes in her children's behavior after they visit their grandparents and that the children do not look forward to the visits. Deborah testified that she genuinely wishes that visitation were not a "vindictive thing" and that the grandparents actually wanted to see the children. She further stated that "if their motive is the right one and if the kids are in a safe environment and [the grandparents] are not trying to attack me or my husband or the kids, they just want to actually see them, then I would be willing [to allow visitation]."
Deborah characterized her relationship with Arlene as "on/off." Deborah testified that in 1996 and 1997, Arlene had "no relationship" with the children or with her. She stated that there was tension among Arlene, Terry, and herself due to an unrelated legal matter, and that money issues between Arlene and Terry "split them up." Deborah, Terry, and Arlene participated in several counseling sessions which did not succeed in improving their relationship. Deborah does not believe that Arlene had a beneficial relationship with the children during the period that she provided daycare for them. She testified that she ended this arrangement when the children reported that during an argument, Arlene "took a knife out of the drawer and said ['L]et's settle this between you.[']" Arlene did not address this incident in her testimony.
Deborah testified about the visit to the McKerns' home after she learned that they were seeking a visitation order. The visit occurred outside the house. When Deborah asked Jacqueline why she had not called, Jacqueline responded, "I should not have to." Jacqueline then told Deborah that she "was a bitter person" and that she was "not going to argue with [her]" and then walked back into the house. Deborah testified that she has never had a very good relationship with Herbert. Deborah's breakdown in her relationship with Jacqueline was caused in part because of her belief that she should not have to be the one making the effort...
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