State ex rel. Amanda M. v. JUSTIN T.
| Decision Date | 22 January 2010 |
| Docket Number | No. S-09-138.,S-09-138. |
| Citation | 279 Neb. 273,777 N.W.2d 565 |
| Parties | STATE of Nebraska ex rel. AMANDA M., appellee, v. JUSTIN T., defendant and third-party plaintiff, appellee, and Amanda M., third-party defendant, appellant. |
| Court | Nebraska Supreme Court |
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D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C., for appellant.
Jack W. Besse, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., for appellee, Justin T.
In this paternity action subject to the Parenting Act, the district court for Buffalo County awarded the appellant, Amanda M., and the appellee, Justin T., joint legal and physical custody of their minor child, Cloe T. Neither parent sought imposition of joint custody. At issue in this case is whether the trial court, in a paternity case, can properly award joint legal and physical custody of a minor child where neither parent has requested joint custody, without first holding an evidentiary hearing specifically on the issue of joint custody, Amanda, who sought sole custody, appeals. We conclude that the joint custody order was error, and we reverse the district court's judgment and remand the cause for further proceedings.
Amanda and Justin are the parents of Cloe. The parents were in a relationship for approximately 2 years. Their relationship ended when Cloe was around 9 months old. Amanda also has two other children. Prior to the relationship's end, Justin contends, he spent significant time with Cloe and Amanda's other children.
Since Cloe's birth, Amanda has been Cloe's primary caregiver. After the parents separated, Justin had weekly visitation with Cloe, which visits were supervised by Amanda.
Because Amanda is receiving state assistance, on August 26, 2008, the State of Nebraska filed a complaint under Neb. Rev. Stat. §§ 43-1401 through 43-1408 (Reissue 2008) to establish paternity and seek child support on behalf of Amanda and against Justin.
In response, Justin filed an answer and third-party complaint, seeking additional visitation with Cloe and adding Amanda as a third-party defendant. Justin did not seek sole or joint legal or physical custody of Cloe. Amanda responded to Justin's answer and also filed a cross-claim seeking sole custody of Cloe and the court's permission to remove Cloe from Nebraska so that Amanda could attend nursing school in Texas. Justin objected to the request for removal. Amanda argued that the move was necessary because in Nebraska, there is a 2-year waiting list for the nursing program she intends to pursue.
The trial court held a hearing over the course of 2 days. In a journal entry filed on January 8, 2009, the court awarded the parties joint physical and legal custody, granted Amanda permission to remove Cloe from Nebraska upon the condition that she first demonstrate to the court that she is enrolled in an educational program in Texas, directed Amanda to return Cloe to Nebraska upon completion of the educational program in Texas, established a visitation schedule to be in effect prior to Amanda's move to Texas, established a visitation schedule to be in effect after Amanda's return from Texas, ordered Justin to pay child support, and ordered Justin to reimburse Amanda for a portion of the daycare and health care expenses that she pays. Amanda appeals from this order.
Amanda claims, inter alia, that the trial court erred in (1) awarding joint legal and physical custody of Cloe without making a specific finding that joint legal and physical custody was in Cloe's best interests and (2) awarding joint legal and physical custody when neither party sought or agreed upon joint custody, in violation of Amanda's right to due process. Because our resolution of these assignments of error results in further proceedings in this case, we do not address additional assignments of error claimed by Amanda.
When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court. Allen v. Immanuel Med. Ctr., 278 Neb. 41, 767 N.W.2d 502 (2009). Statutory interpretation is a question of law. Id.
The Parenting Act Does Not Require the Trial Court to Make a Specific Finding That Joint Custody Is in the Best Interests of the Child.
Our analysis of Amanda's first assignment of error requires us to explain the interplay between the Parenting Act found in chapter 43 of the Nebraska Revised Statutes and the dissolution of marriage statutes found in chapter 42 as these acts apply to the issues in this case. In its order, the trial court awarded the parties joint legal and physical custody but did not make a specific finding that this arrangement was in Cloe's best interests.
For her first assignment of error, Amanda relies on Neb.Rev.Stat. § 42-364 (Reissue 2008), regarding custody in the context of marital dissolution, and claims that the trial court erred in ordering joint legal and physical custody in the absence of an explicit finding that joint legal and physical custody was in Cloe's best interests. Section 42-364 of the dissolution of marriage statutes requires that in dissolution cases, if the parties do not agree to joint custody in a parenting plan, the trial court can award joint custody if it specifically finds that it is in the best interests of the child or children.
Justin responds by arguing that because chapter 42 governs cases of marital dissolution, and this is an action under chapter 43 to establish paternity under the Parenting Act, the requirement in § 42-364 that a court make a specific finding of best interests before awarding joint custody is inapplicable. Although the preferred practice is for a court to declare the best interests of the child in custody decisions, given the plain language of the Parenting Act, we agree with Justin that the district court did not err when it did not make a specific finding of best interests in this case.
As an initial matter, we must determine whether the Parenting Act controls this case. We conclude that it does. Neb.Rev.Stat. § 43-2924 (Reissue 2008) of the Parenting Act provides:
The proceedings in this case were initiated by a complaint filed by the State pursuant to §§ 43-1401 through 43-1408, which allow recovery of child support for a child born out of wedlock when paternity of the child's father is established. Under § 43-2924(2), quoted above, such proceedings for establishing paternity are excluded from the Parenting Act unless certain conditions are met. Those conditions were met in this case.
In his answer to the complaint, Justin requested increased visitation and brought Amanda into the action as a third-party defendant. Amanda responded and sought sole custody. Joinder was allowed. Both parents became parties to the action, see § 43-2924(2), and the proceeding became one in which custody and parenting functions were at issue under § 43-1401. The Parenting Act applies, see § 43-2924(1), and subjects the parents to a parenting plan, see § 43-2924(2).
Having determined that the Parenting Act governs this case, we now turn to the requirements that the Parenting Act imposes on the trial court with respect to issues relative to parenting functions. Neb.Rev.Stat. § 43-2929 (Reissue 2008) lists the numerous issues which the parenting plan must resolve. For purposes of the instant case, we limit our discussion to the issues of custody. In this regard, § 43-2929 states:
Appellate courts give statutory language its plain and ordinary meaning and will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Rohde v. City of Ogallala, 273 Neb. 689, 731 N.W.2d 898 (2007).
In this case, the parents acknowledge that no parenting plan was presented to the court. Thus, based on the language of § 43-2929 and given the fact that custody became an issue in this case, the trial court was required to develop a parenting plan which "shall serve the best interests of the child." See § 43-2929(1). In developing a parenting plan, the trial court was required to determine, inter alia, the "legal custody and physical custody" of Cloe. See § 43-2929(1)(b)(i). See, also, Bhuller v. Bhuller, 17 Neb.App. 607, 767 N.W.2d 813 (2009) (...
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