Watkins v. Watkins
| Decision Date | 19 April 2013 |
| Docket Number | No. S–12–167.,S–12–167. |
| Citation | 829 N.W.2d 643,285 Neb. 693 |
| Parties | Tonda Sue WATKINS, Appellee, v. Matt Daniel WATKINS, Appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 693]1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a questionof law, which an appellate court reviews independently of the lower court's determination.
4. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.
5. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
6. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
7. Statutes. If the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.
8. Child Custody: Convicted Sex Offender: Modification of Decree. Pursuant to the plain language of Neb.Rev.Stat. § 43–2933(1)(b) and (3) (Reissue 2008), when a person involved in a custody dispute is residing with someone who is required to register as a sex offender under the Sex Offender Registration Act as a result of a felony conviction in which the victim was a minor or as a result of an offense that would make it contrary to the best interests of the child if the person had custody, such cohabitation development shall be deemed a change in circumstances sufficient to modify a previous custody order, unless the trial court finds that there is no significant risk to the child and states its reasons in writing or on the record.
9. Pleadings: Due Process. A court's determination of questions raised by the facts, but not presented in the pleadings, should not come at the expense of due process.
Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O., Plattsmouth, for appellant.
Mindy Rush Chipman, of Rush Chipman Law Office, P.C., L.L.O., guardian ad litem.
No appearance for appellee.
Tonda Sue Watkins and Matt Daniel Watkins were divorced in March 2005. According to the decree of dissolution of their marriage, Tonda and Matt were awarded joint legal and physical custody of their minor children, Brittni Watkins and Cristian Watkins. Pursuant to the decree, the children reside with Tonda for one-half of each week and with Matt for one-half of each week. In June 2011, Matt filed an amended complaint to modify the decree, seeking full custody of the children. After a bench trial, the district court filed an order in which it found in favor of Tonda and against Matt, declined to modify the parenting plan, and dismissed the complaint.
Matt appeals, claiming that the district court erred when it denied his request to modify custody. Because we do not find error, we affirm the district court's denial of Matt's request for modification of custody.
The attorney for the minor children claims in her appellate brief that the district court erred when it determined that the issue of modifying the parenting plan was not before it. Because the district court did not err in this ruling, we affirm.
Tonda and Matt were married on February 25, 1996. They have three children together: Ashley Watkins, born in August 1992; Brittni, born in October 1999; and Cristian, born in August 2001. Tonda and Matt were divorced in 2005. The decree of dissolution of marriage awarded joint legal and physical custody of the children to Tonda and Matt; it further provided that Tonda and Matt are to have equal time with the children. The decree did not award child support to either Tonda or Matt. Since the entry of the decree, Ashley has become emancipated, and therefore is not legally affected by this case. Generally, Brittni and Cristian reside Sunday morning through Wednesday evening with Tonda and Wednesday evening through Sunday morning with Matt. This case involves Matt's attempt to modify the decree so that Matt has full custody of Brittni and Cristian. After a bench trial, the district court denied Matt's request to modify the custody arrangement set forth in the decree and dismissed the complaint for modification.
This case is somewhat complicated by the intertwining relationships of the persons involved. Tonda is in a relationship and residing with Corey Neumeister. At the time of trial, Tonda and Corey had been living together for approximately 1 1/2 years. Matt is residing with his wife, Victoria Watkins, formerly Victoria Neumeister. At the time of trial, Matt and Victoria had been married for approximately 1 1/2 years, and they have one child together, Braydon Watkins, who was 4 years old at the time of trial. Victoria was previously married to Corey, but they are now divorced. While they were married, Victoria and Corey had two children together: Joss Neumeister, who was 7 years old at the time of trial, and Conner Neumeister, who was 5 years old at the time of trial. Corey is also the father of Clayton Neumeister, who was 10 years old at the time of trial.
Matt lives in a house near Nebraska City, Nebraska, with Victoria, Joss, Conner, and Braydon, and with Brittni and Cristian from Wednesday evening to Sunday morning. Tonda lives in a house in the Nebraska City area with Corey, and with Brittni and Cristian from Sunday morning through Wednesday evening. Joss and Conner visit Tonda and Corey's house on Tuesdays and Thursdays and every other weekend. Clayton was living with Tonda and Corey at the beginning of the modification proceedings in this case; however, at the time of trial, Clayton was living with his maternal grandparents in Plattsmouth, Nebraska. There was considerable testimony regarding Clayton's behavioral issues.
On June 1, 2011, Matt filed an amended complaint to modify the decree of dissolution of Tonda and Matt's marriage, seeking full custody of Brittni and Cristian. Matt alleged that since the decree was entered, a material change occurred affecting the welfare and best interests of Brittni and Cristian in three respects: (1) Tonda was cohabitating with Corey, a registered sex offender; (2) Corey's son Clayton was under the jurisdiction of the juvenile system and posed a threat to the other members of the household, including Brittni and Cristian; and (3) Tonda had been evicted from various residences and was unable to provide the necessary level of stability for Brittni and Cristian to remain in her custody. Tonda denied these allegations in her answer to the amended complaint to modify. Tonda had also filed a cross-complaint which was later dismissed.
On June 27, 2011, the district court filed an order granting temporary relief in response to Matt's amended complaint requesting temporary relief. The court ordered that Corey's son Clayton shall not be present during any parenting time exercised by Tonda with Brittni and Cristian. The court overruled Matt's request that Corey not be present during Tonda's parenting time; the court found “no significant risk involving Brittni and Cristian residing in the same household with [Corey].”
A 2–day bench trial was held on November 30, 2011, and January 20, 2012, where testimony was heard and evidence was offered and received. After trial, the district court filed an order on February 6, described in greater detail in our analysis. The court found in favor of Tonda and against Matt on the issue of Matt's seeking full custody of Brittni and Cristian and dismissed the complaint. The court also found in favor of Tonda and against Matt with respect to restrictions on Corey's and Clayton's contact with Brittni and Cristian, and ordered that the current restrictions are to apply until further order of the court upon modification proceedings.
With respect to Corey, the court recognized in its order that Corey is a registered sex offender and that Neb.Rev.Stat. § 43–2933(1)(b) (Reissue 2008) provides:
No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if anyone residing in the person's household is required to register as a sex offender under the Sex Offender Registration Act as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.
The district court followed this statute, stated extensive reasons in writing as to why there was not a significant risk to Brittni and Cristian, and concluded that
based on the evidence for the reasons herein stated, it does not appear that there is a significant risk involving either Brittni ... or Cristian ... to be in the same household with [Corey], provided, as agreed to by [Tonda], that there be no unsupervised contact between Brittni ... or Cristian ... and [Corey].
With respect to Clayton, the court determined that it appears that Clayton does present some level of risk to Brittni and...
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