Schuller v. Schuller

• Decision Date: 07 February 1974
• Docket Number: No. 39045,39045
• Parties: Sandra K. SCHULLER, Appellant, v. Francis C. SCHULLER, Appellee.
• Court: Nebraska Supreme Court

Page 617

214 N.W.2d 617

191 Neb. 266

Sandra K. SCHULLER, Appellant, v. Francis C. SCHULLER, Appellee.

No. 39045.

Supreme Court of Nebraska.

Feb. 7, 1974.

Syllabus by the Court

1. In determining the issue of child custody, the paramount consideration is the best interests and welfare of the children.

2. In a divorce action the case is to be tried de novo in the Supreme Court on the issues presented on appeal.

3. In determining the meaning of a 'trial de novo' in the Supreme Court, it is settled law that this court, in reaching its own findings, will give weight to the fact that the trial court observed the witnesses and their manner of testifying, and accepted one version of the facts rather than the opposite.

4. In cases involving determinations of child custody, the findings of the trial court both as to evaluation of evidence and as to the matter of custody, will not be disturbed on appeal unless there is a clear abuse of discretion shown.

5. There is a presumption that the court, trying a case without a jury, in arriving at a decision, will consider such evidence only as is competent and relevant, and the Supreme Court will not reverse a case so tried because other evidence was admitted, when there is material, competent, and relevant evidence admitted sufficient to sustain a judgment of the trial court.

6. Generally, the admission of incompetent or irrelevant evidence is not reversible error, where the cause is tried to the court without a jury.

7. Upon a trial de novo in the Supreme Court, incompetent, irrelevant, and immaterial evidence offered in the original trial, which was admitted over proper objection by the adverse party, will be disregarded by this court.

Hotz, Byam & Kellogg, William J. Tighe, Omaha, for appellant.

Michael J. Mooney, McCormack, Cooney & Mooney, Omaha, for appellee.

Heard before WHITE, C.J., BOSLAUGH, McCOWN, and NEWTON, JJ., and STUART, District Judge.

WHITE, Chief Justice.

In this divorce case the District Court granted a divorce to the petitioner, Sandra K. Schuller, and gave custody of the three minor children to the respondent father, Francis C. Schuller. The petitioner appeals. We affirm the judgment of the District Court.

In determining the issue of child custody, the paramount consideration is the best interests and welfare of the children. § 42--364, R.S.Supp., 1972; Broadstone v. Broadstone, 190 Neb. 299, 207 N.W.2d 682; Lanz v. Lanz, 189 Neb. 578, 203 N.W.2d 761. Secondly, in a divorce action the case is to be tried de novo in this court on the issues presented on appeal. Lienemann v. Lienemann, 189 Neb. 626, 204 N.W.2d 170; Upah v. Upah, 175 Neb. 606, 122 N.W.2d 507. We are required to make independent conclusions of fact without reference to the conclusion or judgment reached in the District Court. Our review on appeal is not restricted by the fact that there may be some evidence in support thereof. § 25--1925, R.R.S.1943. In determining the meaning of a 'trial de novo' in this court, it is settled law that this court, in reaching its own findings, will give weight to the fact that the trial court observed the witnesses and their manner of testifying, and accepted one version of the facts rather than the opposite. Magill v. Magill, 114 Neb. 636, 209 N.W. 241; Jones v. Dooley, 107 Neb. 162, 185 N.W. 307; Dvorak v. Kucera, 130 Neb. 341, 264 N.W. 737; O'Brien v. Fricke, 148 Neb. 369, 27 N.W.2d 403. In cases involving determinations of child custody, such as the present case, the findings of the trial court, both as to evaluation of evidence and as to the matter of custody, will not be disturbed on appeal unless there is a clear abuse of discretion shown. Phillips v. Phillips, 188 Neb. 89, 195 N.W.2d 160; Martin v. Martin, 188 Neb. 393, 197 N.W.2d 388; Oberg v. Oberg, 188 Neb. 316, 196 N.E.2d 371.

We summarize the assignments of error. The petitioner asserts as error the reception by the trial court of two items of evidence. The first is a report made by the public welfare division of Sarpy County, Nebraska. This report was requested by the trial judge pursuant to statutory authorization. The petitioner made no objection after being advised by the trial court that it intended to make such an investigation. Citing Dier v. Dier, 141 Neb. 685, 4 N.W.2d 731, the petitioner now contends that such report contained hearsay, conclusions, and opinions, and that because of the introduction of the report in evidence it deprived the petitioner of her right of cross-examination and due process. We do not reach this question under the record presented in this case. The statute clearly authorizes the trial court, since the children are wards of the court, to make an independent investigation of the living conditions and the environment and care of minor children. It contemplates that in a proper case such a report may be taken into consideration and given weight by the trial judge. It follows that the trial court, in such a case, should submit its report to counsel for examination and further hearing where it forms a basis for the conclusions and judgment entered as to the disposition of the children. In this case the District Court found that he did not rely upon the objectionable parts of the report, and it is the settled law of this state that there is a presumption that the court, trying a case without a jury, in arriving at a decision, will consider such evidence only as is competent and relevant, and the Supreme Court will not reverse a case so trial because other evidence was admitted, when there is material, competent, and relevant evidence admitted sufficient to sustain a judgment of the trial court. Koehn v. Koehn, 164 Neb. 169, 81 N.W.2d 900. Generally, the admission of incompetent or irrelevant evidence is not reversible error where the cause is tried to the court without a jury. Gray v. Hartman, 181 Neb. 590, 150 N.W.2d 120; Abel v. Southwest Cas. Ins. Co., 182 Neb. 605, 156 N.W.2d 166; Richardson v. Doty, 25 Neb. 420, 41 N.W. 282; In re Estate of Enyart, 100 Neb. 337, 160 N.W. 120; Eden v. Klass, 165 Neb. 323, 85 N.W.2d 643. We have recently held that upon a trial de novo in this court, incompetent, irrelevant, and immaterial...