Wible v. Wible

Decision Date18 September 1981
Docket NumberNo. 43780,43780
Citation310 N.W.2d 515,209 Neb. 708
PartiesDonna M. WIBLE, Appellee, v. Jerry C. WIBLE, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Child Custody. The test for determining custody, which has been reiterated by this court many times, is the best interests of the child.

2. Child Custody. In determining the question of who should have the care and custody of children upon the dissolution of a marriage, the paramount consideration is the best interests and welfare of the children.

3. Child Custody. Above all other considerations in determining the question of who should have custody of a minor child upon the dissolution of a marriage, the paramount consideration is the best interests and welfare of the child.

Michael N. Schirber of Schirber Law Office, P.C., Papillion, for appellant.

Robert A. Skochdopole and Daniel P. Chesire of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

Heard before KRIVOSHA, C. J., McCOWN, WHITE, and HASTINGS, JJ., and RICHLING, District Judge.

RICHLING, District Judge.

This is an action for dissolution of marriage. The parties were married on December 28, 1970. One child, Brandt Cameron, was born to this union on June 23, 1972. The parties were divorced in Johnson County, Kansas, on March 29, 1976. They were remarried on June 12, 1976. Later, the husband was assigned military duty as an Air Force physician at Offutt Air Force Base in Sarpy County, Nebraska. The parties took up residence in Sarpy County, Nebraska. Another child, Brandi Elise, was born to this union on August 15, 1977. The parties and the two children lived together until their separation in late 1979.

On November 16, 1979, Donna Marie Wible, the petitioner and appellee herein, filed her petition for dissolution of the marriage in the District Court of Sarpy County, Nebraska. On November 16, 1979, the district judge signed a temporary restraining order and an ex parte order granting temporary custody of the two minor children to the appellee. On November 26, 1979, Jerry Craig Wible, the respondent and appellant herein, filed his motion, with supporting affidavit, moving the court for an order awarding him the temporary care, custody, and control of the minor children. The record reflects that on November 30, 1979, the parties appeared by counsel, but not personally. The judge's docket entry recites: "Counsel stated that matters have been settled, all but custody issue, which is set for hearing January 8, 1980, at 1:30 p. m. Counsel to prepare Order and submit it to the Court." On December 6, 1979, a temporary order was signed and entered which provided that the temporary restraining order and temporary custody order entered on November 16, 1979, shall remain in full force and effect and that hearing as to the temporary custody was set for January 8, 1980. It made provision for temporary support and maintenance to be paid by the appellant to the appellee. The docket entry of January 2, 1980, showed that the trial was reset to February 6, 1980.

The docket entry of February 6, 1980, shows as follows: "This cause came on and the parties appeared with counsel. Trial was had. The Court finds that the marriage is irretrievably broken and is hereby dissolved. The parties have entered into a Property, Temporary child custody, child support, alimony and division of property agreement. The matter as to the permanent custody is set on or before August 4, 1980. Counsel to submit a proper decree incorporating the agreement reached between the parties."

The bill of exceptions discloses that the matter came on for hearing on February 6, 1980, at 4:40 p. m. The parties appeared personally and with counsel. The only evidence offered or received was the testimony of the appellee. She recited a barebones testimony combining fact and opinion sufficient to permit the court's dissolution of the marriage. The appellee was asked by counsel if the parties had reached an agreement as to the distribution of the assets. She replied, "I believe so." No inquiry was ever made of appellant concerning any proposed settlement. Counsel then proceeded to advise the court as to the terms and conditions of the agreement of the parties. Appellant's counsel stated: "Parties agree that the Court will enter an order with Court approval placing custody of the two children with the Court, possession in the petitioner, subject to reasonable visitation rights of the respondent, and will take the issue of permanent custody and possession under advisement until August 4, 1980. Petitioner agrees to immediately make arrangements to seek alcohol counselling from a psychiatrist .... And the Court will direct a home study ...." No evidence was offered as to the fitness or unfitness of either party to have the care and custody of the children. No evidence was offered as to the needs of the parties or the children or of the appellant's ability to pay.

A "Decree of Dissolution of Marriage" was signed and entered on February 22, 1980. The decree dissolved the marriage, approved the property settlement of the parties, and awarded the appellee alimony in the amount of $200 per month for a period of 36 months, said payments to terminate upon the death of either party or the remarriage of the appellee. The decree further provided: "Temporary custody of BRANDI ELISE WIBLE and BRANDT CAMERON WIBLE is hereby placed with the District Court of Sarpy County, Nebraska, and possession of said minor children is placed with the Petitioner subject to reasonable and liberal visitation rights on behalf of the Respondent at all reasonable times and places. It is further ordered that the Court will take under advisement the issue of permanent custody and possession which matter is hereby set for hearing on August 4, 1980, at 9:00 a. m., at which time both Petitioner and Respondent shall have the privilege to present evidence on the issue of permanent custody and possession of said minor children."

The decree further ordered a home study conducted by the Sarpy County Child Protective Services, with its report being made to the court and available to counsel.

The decree further ordered the appellee to immediately make arrangements for and seek alcoholic abuse counseling from a medically certified psychiatrist, said psychiatrist to submit a report to the court which would be made available for examination by counsel.

Although the decree provided for custody of the children in the court and that hearing would be had on permanent custody on August 4, 1980, the decree made provision for the payment of child support in the amount of $300 per month per child, and stated: "Said payments are to continue until said minor children respectfully (sic), attain their age of majority, marry, die, enter the armed services of the United States, or otherwise are emancipated or subject to further Order of the Court."

On July 24, 1980, the following docket entry was made by the court: "This cause came on and further hearing set August 26, 1980, at 9:30 a. m. Entry to counsel."

The record discloses that on August 26, 1980, counsel for both parties met with the court in chambers. The court advised counsel for appellant that counsel for appellee wished to make a motion in limine. Whereupon, counsel for the appellee stated: "(T)he petitioner moving the Court in limine to make a pre-hearing ruling limiting the evidence to be heard on the question of fitness of either party for custody of children from the date of February 6, 1980, the date of the decree of dissolution of marriage, to present date. And in support thereof shows to the Court on February 6, 1980, all parties appeared for trial. That at that time there was an agreement made between the parties and accomodation (sic), if you will, concerning custody of children; the whole matter before the Court, that is it involved the child support, property settlement and the alimony. All of those were agreed upon by the parties.

"The Court was fully informed of the issues before the parties, and both parties knew the circumstances of the marriage at the time of the decree...."

The court then inquired of counsel for the appellant if he had any objection to the motion. In response, counsel for the appellant stated: "Yes, the respondent does oppose that motion. Rather than sit here and give the distorted, self-serving rendition of what happened on February 6th, I have asked the court reporter to just mark the Transcript of Proceedings from that date; would certainly speak for itself...." Whereupon, the court sustained appellee's motion in limine.

The matter proceeded to hearing. However, rather than the appellee proceeding with her evidence, the court required the appellant to proceed, thus placing on him the burden of proof. The appellant had subpoenaed and available nine witnesses. The first witness was called. Because of objections and the court's ruling, not only was little evidence elicited but the appellant was prevented from making an offer of proof because of the sustained motion in limine.

Even though the appellant was limited because of the court's ruling on the motion in limine, the record discloses as follows. Not long after the parties had separated, the appellee met one Captain Richard Marmon in "about...

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5 cases
  • Gerber v. Gerber
    • United States
    • Nebraska Supreme Court
    • June 12, 1987
    ...Rev.Stat. § 42-364 (Reissue 1984) (custody determination); Moeller v. Moeller, 215 Neb. 360, 338 N.W.2d 749 (1983); Wible v. Wible, 209 Neb. 708, 310 N.W.2d 515 (1981). After our de novo review of the record and in view of the conflicting evidence presented to the trial court, we are unable......
  • Moeller v. Moeller, 82-509
    • United States
    • Nebraska Supreme Court
    • September 30, 1983
    ...v. Moninger, 202 Neb. 494, 276 N.W.2d 100 (1979); Broadstone v. Broadstone, 190 Neb. 299, 207 N.W.2d 682 (1973); Wible v. Wible, 209 Neb. 708, 310 N.W.2d 515 (1981); Neb.Rev.Stat. § 42-364 (Reissue 1978). In determining the best interests of the child, " ' "this court will give weight to th......
  • Shaffer v. Shaffer, 88-714
    • United States
    • Nebraska Supreme Court
    • April 21, 1989
    ...§ 42-364 (Reissue 1988) (custody determination); Moeller v. Moeller, 215 Neb. 360, 338 N.W.2d 749 (1983); Wible v. Wible, 209 Neb. 708, 310 N.W.2d 515 (1981). Determinations as to the custody of and visitation with minor children in a dissolution of marriage case are matters initially entru......
  • Ogle v. Lincoln Real Estate, Inc.
    • United States
    • Nebraska Supreme Court
    • September 18, 1981
  • Request a trial to view additional results

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