Stecker v. Stecker, 40626
| Decision Date | 08 December 1976 |
| Docket Number | No. 40626,40626 |
| Citation | 247 N.W.2d 622,197 Neb. 164 |
| Parties | Donna STECKER, Appellee, v. Jack STECKER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. There is a presumption the trial court, trying a case without a jury, in arriving at a decision, would 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, where there is material, competent, and relevant evidence admitted sufficient to sustain the judgment of the trial court.
2. Upon a trial de novo in this court, incompetent, irrelevant, and immaterial evidence offered in the original trial, which was admitted over proper objections by the adverse party, will be disregarded by this court.
3. The discretion of the trial court with respect to awarding or changing the custody of minor children is subject to review, but the determination of the court will not ordinarily be disturbed unless there is a clear abuse of discretion or it is clearly against the weight of the evidence.
Russell, Colfer, Lyons & Wood, William W. Lyons, Thomas F. Colfer, McCook, for appellant.
Mousel & Burger, P.C., McCook, for appellee.
Heard before SPENCER, BOSLAUGH and CLINTON, JJ., and HAMILTON and WINDRUM, District Judges.
This is an appeal from a decree dissolving the marriage of the parties.
The parties were married August 29, 1971. To the union was born one child, Sean Michael Stecker, on August 2, 1972.
Trial on the merits was held on July 28, 1975, at the conclusion of which, the District Court requested the 'Social Services Unit' make an investigation of the circumstances of the minor child and the parties and report to the court in writing. The report was duly furnished the court, whereupon a further hearing was had before the court on August 20, 1975. The report requested was received into evidence over the objection of appellant. Prior to its receipt each of the parties was given an opportunity to examine same. The District Court thereafter decreed the marriage dissolved. The decree disposed of all other items germane to the action, including the custody of the child, Sean. The custody of the child was awarded appellee, under the supervision of certain welfare agencies, subject to extensive visitation rights awarded appellant. Appellant duly filed a motion for new trial attacking only the decision as to custody. On September 19, 1975, appellant filed a motion to modify final decree. Hearing was had thereon on November 14, 1975. Prior thereto, the Nemaha County division of public welfare had been requested to investigate the new residence of appellee and to compose a written report thereof. Said report was received into evidence over objection by appellant. Both parties had been given an opportunity to examine same. The court continued the matter and requested that another investigation of appellee's situation be made in Nemaha County. On January 7, 1976, a final hearing was held. The third investigative report was received into evidence without objection. The motion of appellant to modify was sustained to the extent that legal custody of Sean was vested in the Hitchcock County division of public welfare with courtesy supervision by the Nemaha County division of public welfare. Physical possession was awarded appellee with extensive visitation rights vested in appellant. A motion for a new trial as to this hearing was duly filed on January 17, 1976, and was duly overruled.
The only issue presented on appeal concerns the propriety of the custody award, as originally ordered and thereafter, partially modified.
Appellant complains of the reception into evidence of the three written reports of various social service agencies. The court announced that it did not rely on the first. A perusal of the second indicates it furnished nothing of value, thus the reason the court ordered a third investigation. The written report of the third investigation was examined by both parties and received in evidence without objection. This entire question of investigative reports in actions for dissolution of marriage was discussed in Schuller v. Schuller, 191 Neb. 266, 214 N.W.2d 617, and Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111. It would serve no useful purpose to discuss the matter further herein, except to say that the last report was...
To continue reading
Request your trial
-
Husen v. Husen
...upon any of the erroneously admitted evidence. See, In re Interest of S.S.L., 219 Neb. 911, 367 N.W.2d 710 (1985); Stecker v. Stecker, 197 Neb. 164, 247 N.W.2d 622 (1976). The trial court reached the correct conclusion. Respondent also argues that the trial court erred in applying Neb.Rev.S......
-
Nixon v. Harkins
...immaterial evidence admitted over proper objection. In re Interest of S.S.L., 219 Neb. 911, 367 N.W.2d 710 (1985); Stecker v. Stecker, 197 Neb. 164, 247 N.W.2d 622 (1976). Obviously, in order for us to determine what competent evidence is before us, we must first resolve the issues presente......
-
Barber v. Barber
...sufficient to sustain the trial court's judgment. See, Murdoch v. Murdoch, 200 Neb. 429, 264 N.W.2d 183 (1978); Stecker v. Stecker, 197 Neb. 164, 247 N.W.2d 622 (1976). We also reject this assignment of This leads us to what is perhaps the principal contention voiced by Charles in his brief......
-
Smith v. Smith
...offered in the original trial, which was admitted over proper objections by the adverse party, will be disregarded. Stecker v. Stecker, 197 Neb. 164, 247 N.W.2d 622 (1976). Assuming without deciding that some of the guardian ad litem's testimony and reports may contain evidence which is ina......