Stuhr v. Stuhr
Decision Date | 13 March 1992 |
Docket Number | No. S-91-159,S-91-159 |
Citation | 481 N.W.2d 212,240 Neb. 239 |
Parties | Galen C. STUHR, Appellee, v. Catherine L. STUHR, now known as Catherine L. Myers, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Divorce: Appeal and Error. In an appeal involving an action for dissolution of marriage, an appellate 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 appellate 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. Waiver: Words and Phrases. Waiver is the voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person's conduct.
3. Divorce: Child Custody: Stipulations. Parties in a proceeding to dissolve a marriage cannot control the disposition of minor children by agreement.
4. Child Custody: Evidence: Stipulations. A determination of the best interests of a child or children includes a judicial decision based on evidence, not exclusively on a parental stipulation for disposition of a question concerning the parties' child or children.
5. Child Custody: Parental Rights. In the absence of a statutory provision otherwise, in a child custody controversy between a biological or adoptive parent and one who is neither a biological nor an adoptive parent of the child involved in the controversy, a fit biological or adoptive parent has a superior right to custody of the child.
6. Child Custody: Parental Rights. A court may not, in derogation of the superior right of a biological or adoptive parent, grant child custody to one who is not a biological or adoptive parent unless the biological or adoptive parent is unfit to have child custody or has legally lost the parental superior right in a child.
Terrance A. Poppe and Gregory C. Damman, of Hecht, Sweet, Morrow, Poppe & Otte, P.C., Lincoln, for appellant.
Hal W. Anderson, of Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, for appellee.
Catherine L. Myers, formerly Catherine L. Stuhr, the biological and noncustodial mother of Ashton Martin, appeals from the decision of the district court for Seward County, which denied Catherine Myers' application to change Ashton Martin's custody, previously granted to Galen C. Stuhr under a decree dissolving the Stuhr marriage. Galen Stuhr is neither the biological nor the adoptive father of Ashton Martin, who was born in 1985, but was the child's stepfather as a result of Catherine and Galen Stuhr's marriage in 1986.
In 1988, when the Stuhr marriage was dissolved, custody of Ashton Martin was disposed of by the district court's decree, which incorporated Stuhrs' "Property Settlement and Custody Agreement," namely, the provision that Ashton Martin's custody was placed with Galen Stuhr, subject to reasonable visitation by Catherine Stuhr. The custody agreement also stated that Catherine and Galen Stuhr
specifically agreed that the terms and provisions of this Property Settlement Agreement and Custody Agreement of the parties, specifically relating to the custody of Ashton L. Martin, shall be subject to modification by the Court, upon the petition of either party, upon the showing of a material change of circumstances indicating that such modification is in the best interest of said minor child [and that] in the event of the death of either party during the minority of such child, that the surviving party shall be entitled to custody.
Ashton Martin has lived with Galen Stuhr since 1986.
In May 1990, Catherine Myers filed an application to obtain custody of Ashton Martin and, for such modification of the custody provision in the dissolution decree, alleged that "there has occurred a material ... change of circumstances," such as Catherine Myers' completion of treatment for alcohol and chemical dependency; hence, a change of custody was in the best interests of Ashton Martin.
At the November 27, 1990, hearing for change of child custody, the evidence centered on events after the dissolution decree in 1988.
At the time of the dissolution decree, Catherine Myers was receiving treatment for alcohol and chemical dependency, and she continued treatment until April 1989, when she eliminated her alcohol and chemical dependency and no longer required any form of treatment or counseling for substance abuse. To visit Ashton Martin, Catherine Myers drove from her home in Kansas to Galen Stuhr's home at Seward and frequently returned to Kansas with Ashton for periods ranging from a few days to a couple of weeks.
In December 1989, Catherine married Jeff Myers, a police officer in El Dorado, Kansas, and moved into a three-bedroom house with Jeff Myers and his son, Justin, a child by Jeff Myers' former marriage. At the time of the custody hearing, Catherine Myers was pregnant and had an expected due date in May 1991. According to Jeff, Ashton and Justin consider each other brothers and have a good relationship. Jeff Myers approves of Catherine's decision to seek Ashton Martin's custody. Over the past several years, Catherine Myers has held various jobs from time to time, but at the time of the hearing was occupied with her activities in the Myers home and has indicated her intention to remain at home with Ashton, Justin Myers, and the new Myers baby.
Galen Stuhr is married to Teri J. Stuhr. Ashton Martin lives with Galen, Teri, and Teri's three children. Galen Stuhr expressed his love for Ashton, who is "like a son." Additionally, Catherine Myers acknowledged that Galen has been a good "father" and has done a good job raising Ashton.
As Galen and Teri Stuhr are both employed by Walker Manufacturing in Seward, a licensed day-care provider attends to Ashton while Galen and Teri are at work; otherwise, Galen and Teri Stuhr provide all child care for Ashton, who is a well-adjusted child, does well in school, and gets along well with Teri Stuhr's three children.
In its order on the custody question, the court stated:
The circumstances of both of the parties to this action have changed significantly since the entry of the decree herein on February 24, 1988. Each maintains and can provide an appropriate home environment for Ashton L. Martin and both have appropriate parenting perspectives. Each has improved his or her lifestyle.
However, significant changes in the circumstances of the parties do not result in an automatic change of custody of a minor child. The change must be in the best interest of the child--not the party.
[Galen Stuhr] has provided the only home to Ashton L. Martin that he has ever known and stability in the life of a minor child is very important and a factor that cannot be overlooked. Petitioner has been and remains a suitable parent.
Considering all the facts and circumstances of the relative positions of these parties and of the minor child this Court cannot conclude that it is in the best interest of Ashton L. Martin to change custody.
Catherine Myers' assignments of error may be distilled as follows: (1) The district court abused its discretion by failing to properly consider Catherine Myers' superior right as Ashton Martin's biological mother, who is fit to have child custody, and (2) the district court abused its discretion in failing to grant Catherine Myers the custody of Ashton Martin.
In an appeal involving an action for dissolution of marriage, an appellate 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 appellate 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. See, Huffman v. Huffman, 236 Neb. 101, 459 N.W.2d 215 (1990); Schulze v. Schulze, 238 Neb. 81, 469 N.W.2d 139 (1991); Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990).
Waiver of Parental Right.
Galen Stuhr contends that Catherine Myers "waived" her parental rights when she executed the custody agreement incorporated into the dissolution decree and thereby lost not only her parental superior right to the custody of Ashton Martin, but also lost her right to even seek a change in child custody.
"[W]aiver is the voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person's conduct." State v. Kennedy, 224 Neb. 164, 170, 396 N.W.2d 722, 726 (1986). See, also, Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977); Mousel v. Daringer, 190 Neb. 77, 206 N.W.2d 579 (1973).
As we have stated repeatedly: "[P]arties in a proceeding to dissolve a marriage cannot control the disposition of minor children by agreement." Hickenbottom v. Hickenbottom, 239 Neb. 579, 582, 477 N.W.2d 8, 11 (1991). Accord, Hicks v. Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986); Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980); Koser v. Koser, 148 Neb. 277, 27 N.W.2d 162 (1947). "A determination of the best interests of a child or children includes a judicial decision based on evidence, not exclusively on a parental stipulation for disposition of a question concerning the parties' child or children." Schulze v. Schulze, 238 Neb. at 86-87, 469 N.W.2d at 143.
Judicial authority and responsibility to determine custody of minor children legally affected by a marital dissolution action is expressed in Neb.Rev.Stat. § 42-364 (Reissue 1988), namely:
When dissolution of a...
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