Zahl v. Zahl, S-06-1123.

CourtSupreme Court of Nebraska
Citation736 N.W.2d 365,273 Neb. 1043
Docket NumberNo. S-06-1123.,S-06-1123.
PartiesJustin B. ZAHL, Appellant, v. Trisha A. ZAHL, Appellee.
Decision Date20 July 2007

Claude E. Berreckman, Jr., of Berreckman & Berreckman, P.C., Cozad, for appellant.

R. Bradley Dawson, North Platte, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HEAVICAN, C.J.

NATURE OF CASE

This marital dissolution action presents issues related to an order of joint physical custody for the parties' minor child. When ordering joint custody under Neb. Rev.Stat. § 42-364(5) (Cum. Supp. 2006), a district court must specifically find that joint custody is in a child's best interests. The district court failed to make that finding in the dissolution decree. Further, because neither party had requested joint physical custody, the evidence presented at trial was limited to which parent should have sole custody. We conclude that under this circumstance, the court must conduct a separate hearing on joint physical custody before ordering such, and that its order must specifically find that joint physical custody is in the child's best interests.

BACKGROUND

Justin B. Zahl and Trisha A. Zahl were married in July 2004. At the time of their marriage, Trisha was in a custody dispute concerning her older son from a previous marriage.

Justin and Trisha's son, Jace Zahl, was born 3 months premature in June 2004 and suffered from respiratory problems. Trisha was unemployed at the time of Jace's birth and did not begin working again until Jace was 8 months old. Trisha testified that she was Jace's primary caregiver during this time. Justin's job as a locomotive engineer on runs from North Platte, Nebraska, to Marysville, Kansas, required him to be absent approximately six times each month for approximately 36 hours per trip.

The parties separated in March 2005, shortly after Trisha returned to work. By that time, Trisha had obtained sole custody of her older son, who was 3 years older than Jace. For a while, Justin and Trisha informally agreed to share custody of Jace and, according to Trisha's testimony and the guardian ad litem's report, had approximately equal custody time. When Justin was gone for his job, Trisha had custody and took Jace to daycare while she was working. Justin had custody when he was at home.

In May 2005, Justin filed a complaint for dissolution, seeking permanent custody and control of Jace. Trisha filed an answer and a counterclaim for dissolution, also seeking sole custody. Neither party requested joint custody. In June, the court granted Trisha's ex parte request for temporary custody. Trisha continued to allow Justin to have custody while she was at work when he was in town.

After a hearing in October 2005, however, the court awarded temporary custody to Justin. The court did not give specific reasons in its order for the change. Trisha was granted visitation on Tuesday nights and every other weekend. After Justin was awarded temporary custody, one or both of Justin's parents, who lived 12 to 15 miles away, would come to stay with Jace when Justin was called in to work so that Jace's schedule would not be disrupted and Jace would not have to be moved. Justin normally had 1½ hours' notice in which to report to work.

The guardian ad litem filed a report in December 2005 and later filed a supplemental report on July 14, 2006, approximately 1 week before trial. The guardian ad litem was originally concerned about Justin's having so many of his relatives care for Jace while he was absent for work, rather than allowing Jace to spend more time with Trisha. But in the supplemental report, the guardian ad litem concluded that with the assistance of his family, Justin had been able to provide stability and a close family setting in his own residence. Also, in the first report, the guardian ad litem suggested that joint custody might be a way for both parents to maintain an equal and substantive role in caring for Jace. However, in the second report, the guardian ad litem concluded that although joint custody would be the most beneficial to Jace if his parents cooperated better, they did not get along well enough to carry out such a plan. The guardian ad litem ultimately recommended that the court maintain custody with Justin.

By the time of trial in July 2006, Justin had been Jace's primary custodian for close to 10 months, and Jace was 25 months old. Justin testified that he and Trisha did not get along or communicate well, and he admitted that he did not advise Trisha of Jace's medical appointments. But he maintained that he had cooperated with Trisha on visitation and had informed her of Jace's medical needs for visitation purposes.

Justin testified that he had worked about six trips per month to Kansas during the past 8 months. He also testified that he was usually able to make some of his trips coincide with Trisha's weekend visitation and overnight visitation during the week so that he had 4 to 6 days at a time to be at home with Jace. Justin also stated that if his parents should become unavailable, he would find another job within the railroad. He admitted that he thought it was more appropriate for his parents to be raising Jace than for Trisha to do so. Both of Justin's parents testified that Justin was a good father.

Trisha testified that she had just started a new job as a clerk for the sheriff's office, working 9 a.m. to 5 p.m., Monday through Friday. Dr. Lisa Jones, a psychologist hired by Trisha to evaluate Trisha's relationship with her children, as well as her parenting skills, testified at trial. Jones stated that she had observed Trisha with her sons for approximately 1½ hours in her office and during a sporting event when Trisha did not know she was being observed.

Jones had also reviewed or conducted additional testing. Jones opined that Trisha was a high-functioning parent who interacted affectionately and positively with her children and set appropriate limits. Jones also concluded that Jace was bonded to his older half brother. Trisha's friend, brother, and mother also testified that Trisha was close to her sons and parented appropriately and that her sons were bonded.

Trisha also testified that Justin had not been actively involved in Jace's care during the first 8 months of Jace's life. Trisha testified that after they separated, she and Justin had equal custody time until Justin began "laying off" of work and keeping Jace for several days at a time, prompting Trisha to seek a custody order. Trisha testified that when she had temporary custody, she continued to allow Justin to have about the same custody arrangement, but that after Justin obtained temporary custody, he did not reciprocate and refused to talk to her about additional visitation time.

Trisha also stated that Justin did not keep her informed of Jace's medical appointments or details of his upbringing, including daycare arrangements. Trisha did not believe Justin would work to maintain her relationship with Jace if he were granted sole custody. Trisha stated that if she were granted custody, she would continue to give Justin custody while she was working if he were in town and also that she would cooperate on a joint custody schedule if definite custody times were outlined.

After trial, the court ordered the parties to submit proposals for joint custody arrangements and delayed determining custody until it could review the feasibility of the proposals. In this order, the court stated that a child's best interests were normally served by having one parent make decisions and having one place the child calls home, but that a child's confusion caused by multiple children from multiple marriages should be minimized. The court found that both parties were manipulative and did not get along except that they recognized the other as a fit parent and sought the best interests of Jace. "[A]lthough hesitant," the court stated that it would "overcome its reluctance to determine that joint custody is the proper remedy and allow the parties to submit a proposal in regard to a joint custody arrangement."

Justin's proposal offered to expand Trisha's every-other-weekend visitation to Monday morning and to give Trisha an opportunity to pick up Jace when Justin was called in to work. Trisha proposed that the parties each have custody for 2 week-days and alternate Wednesdays and weekends on a weekly basis.

After reviewing proposals from the parties and the guardian ad litem's reports the court ordered joint custody in the dissolution decree but did not adopt either party's proposal. Instead, it decreed that the parties would have alternate weeks of custody, from Friday to Friday. The dissolution decree was focused on specific custody arrangements, and the court did not discuss Jace's best interests. Justin timely appeals.

ASSIGNMENTS OF ERROR

Justin assigns that the district court erred in ordering joint custody of Jace and failing to award Justin sole custody.

STANDARD OF REVIEW

In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion.1

An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.2 A child custody determination that does not comport with statutory requisites is an abuse of discretion.3

Whether a decision conforms to the law is by definition a question of law.4 Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the court below.5

ANALYSIS

Justin contends that the court erred in ordering joint...

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