Ritter v. Ritter, 89-125

• Decision Date: 12 January 1990
• Docket Number: No. 89-125,89-125
• Citation: 234 Neb. 203,450 N.W.2d 204
• Parties: Susan Jane RITTER, Appellant and Cross-Appellee, v. Gary Douglas RITTER, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 204

450 N.W.2d 204

234 Neb. 203

Susan Jane RITTER, Appellant and Cross-Appellee, v. Gary Douglas RITTER, Appellee and Cross-Appellant.

No. 89-125.

Supreme Court of Nebraska.

Jan. 12, 1990.

Syllabus by the Court

1. Divorce: Appeal and Error. In an appeal involving an action for dissolution of marriage, the Supreme Court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

2. Divorce: Child Custody. Child custody in a proceeding to dissolve a marriage is a matter within the trial court's discretion.

3. Alimony: Appeal and Error. The Supreme Court evaluates the amount of alimony in reference to the factors contained in Neb.Rev.Stat. § 42-365 (Reissue 1988). For a decree pertaining to alimony, a court should consider, in addition to the specific criteria listed in § 42-365, the income and earning capacity of each party as well as the general equities of each situation. The ultimate test for determining correctness in the amount of alimony is reasonableness.

4. Divorce: Attorney Fees: Appeal and Error. An award of an attorney fee in a marital dissolution proceeding is a matter within the trial court's discretion, is reviewed de novo on the record, and will be affirmed on appeal in the absence of abuse of discretion.

5. Divorce: Child Custody: Guardians Ad Litem. Although a guardian ad litem may be appointed pursuant to Neb.Rev.Stat. § 42-358(1) (Reissue 1988) in a marital dissolution proceeding, such appointment is a matter within a trial court's discretion.

6. Divorce: Child Custody. When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child's parents, child custody is determined by parental fitness and the child's best interests.

7. Divorce: Child Custody. In a marital dissolution proceeding, child custody is denied to an unfit parent or a fit parent when the best interests of the child require such denial of custody.

8. Divorce: Child Custody: Words and Phrases. Parental unfitness, in relation to child custody in a marital dissolution proceeding, means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and 9. Divorce: Child Custody: Sexual Misconduct. Although a parent's extramarital conduct does not necessarily determine a child custody issue, such sexual conduct may be considered in determining custody of a minor child affected by a marital dissolution proceeding.

which has caused, or probably will result in, detriment to a child's well-being.

10. Divorce: Child Custody: Presumptions. When child custody must be decided in a marital dissolution proceeding, neither parent is presumed to be more fit than the other or granted custodial preference on the basis of gender.

11. Child Custody. In determining a child's best interests in custody matters, a court may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child.

12. Divorce: Child Custody. The time which a parent is able to devote to a child is a consideration in resolving a child custody question in a marital dissolution proceeding.

Mark S. Bertolini, of Bertolini, Schroeder & Blount, for appellant.

James E. Case, Plattsmouth, for appellee.

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

SHANAHAN, Justice.

In an appeal from the judgment entered by the district court for Cass County in a proceeding to dissolve the marriage of Susan Jane Ritter and Gary Douglas Ritter, neither party claims the court erred in the division of marital property. However, Susan Ritter contends that the district court erred in failing to (1) grant Susan the custody of the parties' child, Travis Ritter, rather than granting custody to Gary Ritter; (2) award more than $500 as an attorney fee for Susan's lawyer; (3) retain legal custody of Travis and grant physical custody of the child to Susan; (4) appoint a guardian ad litem for the minor, Travis; and (5) provide suitable visitation rights for Susan in view of Travis' custody granted to Gary. In his cross-appeal, Gary claims that the district court committed error in requiring Gary to pay alimony to Susan and in failing to order Susan to pay child support for Travis.

Before marrying Gary Ritter, Susan Hefner obtained an associate degree in home economics from Central College in McPherson, Kansas, and was the mother of Melissa Hefner, who was born on August 16, 1982. Susan married Gary on October 1, 1983. The Ritters lived with Melissa in a two-bedroom home in Murray, Nebraska, while Susan worked part time at the office of the Cass County treasurer in Plattsmouth and Gary farmed leased land and worked as a part-time janitor.

Within a few months of the marriage, the Ritters' marital relationship began to deteriorate rapidly. The couple fought frequently, usually about Susan's poor housekeeping, and quarreled about family finances. Gary prohibited Susan's driving the family car to visit friends, apparently because gasoline was high priced, and would not allow Susan to make long-distance phone calls. In his anger with Susan, Gary became withdrawn and indifferent toward Susan, but would give her no explanation for his moodiness. Susan felt that Gary was always angry, so that she constantly "walked on eggshells" when they were together. In August 1984, the Ritters sought professional marriage counseling When Susan was 6 months pregnant with Travis, Gary struck Susan during a dinner table dispute in the presence of Melissa. The Ritters' marital relationship seemed to improve with the birth of Travis on May 4, 1985. However, early in 1987, Gary threatened to leave with Travis and go to the home of Gary's parents in Pennsylvania. After a violent argument with Susan, who was pregnant with the couple's second child, Gary decided not to leave and remained in the Ritter house with Melissa, Travis, and Susan. The couple's second child, Jeffrey, was stillborn in February 1987. Sometime in June 1987, Gary and Susan decided to get a divorce, but, for financial reasons, continued to live together in Murray. On occasion, Gary would reprimand Melissa for certain things and would not correct or discipline Travis for the same conduct which was the basis for the reprimand of Melissa. Gary's farming activities required most of his time, which left Susan mainly responsible for rearing the children. During the fall of 1987, Susan frequently left the Ritter house and "escaped" to local bars to meet her friends, male and female, since there were no other places for her to meet with friends. In October, Gary moved from the family home. Shortly thereafter, Susan moved to an apartment in Plattsmouth where she lived with Melissa and Travis. Susan had an extramarital affair with a male friend and dated several other men, although neither Melissa nor Travis ever saw Susan with a boyfriend. Susan filed a petition for dissolution of marriage in November 1987.

from a certified counselor, Joyce Williams, who met frequently with the couple, but the marital problems persisted. Although Gary discontinued the counseling, Susan continued.

At the time of trial, Melissa was 6 years of age and Travis was 3 1/2. Although Susan Ritter had requested that the court appoint a guardian ad litem for Travis, the court declined to make such appointment. There was testimony concerning three irresolute events characterized as Susan's attempts to "harm herself." In 1984, Susan took a handful of Extra-Strength Tylenol, but sustained no adverse reaction. In 1986, she took a partial bottle of erythromycin, an antibiotic, for which she was taken to a hospital for a 2-hour observation. In 1987, Susan inflicted "scratches" with a razor blade on her wrist, but no medical attention was necessary. The marriage counselor, who had continued to counsel Susan after the divorce action was filed, indicated that Susan's "overall health" improved after marital stress was eliminated by the Ritters' separation. Similar observations were expressed by other witnesses. Williams, the counselor, verified the strong bond between Melissa and Travis and expressed the opinion that it was important that Travis be in Susan's custody with Melissa. Other witnesses bore out the extremely strong bond between Melissa and Travis.

Susan commenced full-time employment with the county treasurer's office on August 1, 1988, and described the day-care arrangements for Travis and Melissa while she worked. The children were at a day-care center from 8 a.m. until 5:15 p.m., when Susan came for the children after work and took the children to their home. Susan's parents, who reside in Plattsmouth, have a good relationship with Melissa and Travis and visit frequently with the children. Susan's gross earnings were $1,046 per month with net earnings of $907 monthly.

Gary testified that he worked in Omaha from 10:30 each weeknight...