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State v. Arthur F.

Court of Appeals of Nebraska

August 20, 2013

State of Nebraska on behalf of Tyrell T., a minor child, appellee,
v.
Arthur F., defendant and third-party plaintiff, appellee, and Tyletha T., third-party defendant, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Douglas County: James T. Gleason, Judge.

Scott M. Mertz, of Legal Aid of Nebraska, for appellant.

Wesley S. Dodge for appellee Arthur F.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

INTRODUCTION

Tyletha T. appeals from an order of the district court for Douglas County awarding custody of Tyrell T. to Arthur F. Tyletha challenges the trial court's custody determination and the court's failure to make specific findings as to why it did not implement the parties' partial parenting plan. Based on the reasons that follow, we affirm.

BACKGROUND

Tyletha and Arthur are the biological parents of Tyrell, born in September 2006. The parties were never married and were not a couple when Tyrell was born. The State filed an action for paternity and child support against Arthur. In March 2007, the trial court entered an "Order for Support" finding that Arthur was Tyrell's biological father and ordering him to pay child support to Tyletha.

In September 2011, Arthur filed a motion to add Tyletha as a third-party defendant to the child support case, which was granted. He then filed an application to modify, alleging that there had been a substantial and material change in circumstances since the order for support was entered, specifically, that Tyletha had refused to allow visits between him and Tyrell since the entry of the order. Arthur requested that he be awarded custody of Tyrell.

In October 2011, the court entered an order awarding Tyletha temporary custody of Tyrell, subject to Arthur's parenting time.

In December 2011, Tyletha filed an answer and counterclaim in response to Arthur's application to modify, alleging that she should be awarded custody.

In a second temporary order, entered in January 2012, the trial court took legal custody of Tyrell, but placed physical custody with Tyletha. The court also dismissed a protection order that Tyletha had obtained against Arthur in September 2011.

Trial was held in April 2012 on Arthur's application to modify and on Tyletha's counterclaim. The State asked that child support be set according to the Nebraska Child Support Guidelines and stated that it had no position on the issue of custody. The State was excused and did not participate in the trial.

Tyletha testified that she has always been Tyrell's primary caregiver and that he has never lived with Arthur. Tyletha and Tyrell lived with Tyletha's father for a few months after Tyrell was born, but Tyletha has provided housing for Tyrell since then. She testified that she has been employed during most of Tyrell's life and was employed at the time of trial. She testified that when she is at work, Tyrell is either at her sister's house or in daycare.

Tyletha testified that in addition to Tyrell, she has one other child, who was born a few months before trial, and that she and the father of that child were still together as a couple, but were not living together. She testified that she was living with her two children and no other adults at the time of trial.

Tyletha was questioned about pictures she posted on her "Facebook" account on the Internet. She admitted that she had posted photographs of herself at "clubs" and that she does "go out" sometimes. She also admitted that men have posted comments about some of the photographs on her "Facebook" page. None of the pictures or comments were entered into evidence.

Tyletha was also asked about a statement she had on her "Facebook" account, which statement said that "[she] could never make someone a priority. To them, [she's] just an option." She explained that she meant "don't dedicate yourself to a person if you know they really don't like to - to them you're nobody. Like if you're nobody to somebody, they're not a big thing in your life." She also admitted that her "Facebook" page says "I'm a bad mother (expletive) all by myself. Look at me." Tyletha testified that those words are lyrics from a song that she liked.

Arthur was engaged at the time of trial and living with his fiance. Arthur's fiance has two children of her own, and they reside with her and Arthur. Arthur has two children from another relationship; the mother has custody of those children, and he has visitation with them every other weekend. Arthur testified that he has a good relationship with his other children's mother and that she often allows him visitation time in addition to the time set forth in the custody order.

Arthur testified that he started spending time with Tyrell after it was established that he was his father. At first, he would go to Tyletha's home to see Tyrell, and then eventually, he started spending time with him at his own residence. He testified that in 2008, Tyrell stayed with him for 3 or 4 weeks because Tyletha was in jail.

Arthur testified that before Tyrell's kindergarten year began in fall 2011, Tyrell spent more than 50 percent of the summer with him. Tyletha disagreed with Arthur's testimony, stating that Arthur had Tyrell during the summer only every other weekend and at other various times at Arthur's request.

When the parties registered Tyrell for kindergarten, they agreed to enroll Tyrell in a school that was near Arthur's residence so that Arthur could take Tyrell to school and pick him up. The parties listed Arthur's residence as Tyrell's primary residence in the paperwork filed with the school, and Tyletha's residence was listed as a secondary residence. Arthur testified that he and Tyletha agreed that during the school year, Tyrell would stay with him every week from Sunday through Thursday and Tyletha would pick up Tyrell after school on Thursday and have him until Sunday. Tyletha denied that she had agreed to that arrangement.

Tyletha testified that Tyrell stayed with her the night before his first day of kindergarten and that she met Arthur in the morning and he took Tyrell to school. Arthur testified that he took Tyrell to school on his first day, but that Tyrell stayed with him the night before and not with Tyletha, as she claimed.

Less than 2 weeks into the school year, Tyrell got in trouble at school. Arthur was contacted by the school, and he picked up Tyrell early from school that day. Arthur testified that the school asked him to pick up Tyrell. Tyletha testified that the school did not request that Tyrell be taken home early. Arthur testified that he disciplined Tyrell for getting in trouble by spanking him over his clothes. Tyletha claimed that Arthur spanked Tyrell and grabbed him by his neck, choking him. Arthur denied choking Tyrell or otherwise abusing him. Tyletha called Child Protective Services, and she filed for a protection order against Arthur based on allegations that Arthur had abused Tyrell. The protection order was granted in September 2011. There were no charges filed against Arthur, and Child Protective Services found the allegations of abuse against Arthur to be unfounded. The court dismissed the protection order in January 2012.

Tyletha testified that despite her allegations that Arthur physically abused Tyrell, she had been letting Arthur have an extra overnight visit every week in addition to what was set forth in the temporary order.

After Tyrell got in trouble at school, Tyletha also took him out of the school he was in and registered him at another school close to where she lived. Tyletha did this without consulting Arthur.

Arthur testified that on the days he picks up Tyrell from school, Tyletha does not send Tyrell's bookbag with him to school. Arthur testified that he spoke with Tyrell's teacher about the issue, and as a result, the teacher now provides Tyrell with a folder for bringing home papers and books on days that Arthur picks him up. Arthur has also communicated with Tyrell's teacher about Tyrell's reading skills. Tyrell was behind on learning the words he needed to know before moving to first grade. The teacher provided Arthur with materials to help Tyrell practice his reading, and Arthur has worked with him. Arthur testified that he communicates with Tyrell's teacher a couple times per month. Arthur testified that he believes Tyrell's education should be a top priority and believes it is very important to Tyrell's success later in life.

At the time of trial, Tyrell had missed a few days of school at the direction of his doctor because he had impetigo, a contagious skin infection. Arthur testified that Tyrell has had impetigo numerous times, which he claimed was caused by Tyrell's being dirty. He also testified that Tyrell often has soiled underwear when he comes to his house. Tyletha testified that there was only one time that Arthur told her that Tyrell's underwear was soiled.

Arthur testified that he has concerns about Tyletha's parenting style and does not believe that she disciplines Tyrell. He testified that if Tyrell denies doing something that his teacher says he did, Tyletha believes Tyrell over the teacher. Arthur testified that Tyrell is never at fault in Tyletha's eyes and that she does not hold him accountable for what he does. Arthur testified that Tyletha's lack of discipline, especially when Tyrell gets in trouble at school, is the source of many arguments between them.

Arthur testified that Tyletha has used violence against him in the presence of Tyrell numerous times. At the time of trial, there were charges pending against Tyletha as a result of an altercation with Arthur in December 2011 in which she allegedly assaulted Arthur. There were no charges pending against Arthur as a result of the altercation. Tyletha admitted that she has been convicted of over 10 charges since Tyrell was born in September 2006.

Following trial, the court entered an "Order of Modification" awarding Arthur legal and physical custody of Tyrell, subject to Tyletha's reasonable rights of visitation. The court found that since the entry of the March 2007 "Order for Support, " there had been a material change of circumstances to warrant a modification of custody. The changes found by the court were that "[Tyletha] has relinquished parenting to family members and her instability in maintaining personal relationships which instability is a detriment to [Tyrell]." Tyletha was awarded visitation every other weekend and every Wednesday evening. The trial court awarded the parties alternating holidays.

ASSIGNMENTS OF ERROR

Tyletha assigns that the trial court erred in (1) finding that she had relinquished parenting to family members and that her instability in maintaining relationships was a detriment to Tyrell, (2) finding that it was in the best interests of Tyrell to award Arthur custody, and (3) failing to make specific findings as to why the partial parenting plan was not in the best interests of Tyrell.

STANDARD OF REVIEW

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. State on behalf of Keegan M. v. Joshua M., 20 Neb.App. 411, 824 N.W.2d 383 (2012). 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 court heard and observed the witnesses and accepted one version of the facts rather than another. Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).

A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Colling v. Colling, 20 Neb.App. 98, 818 N.W.2d 637 (2012).

ANALYSIS

Custody Determination.

Tyletha's first two assignments of error challenge the trial court's award of custody to Arthur. In regard to the custody determination, we first note that the trial court treated the custody determination as a modification of custody. The court stated in its order that a "Decree of Paternity and Custody" had been ordered in March 2007, and in that order, the court provided that Tyletha would have the care, custody, and support of Tyrell and that Arthur was responsible for child support. It then found that a "material change in circumstances" existed to warrant a modification of that order.

There is no "Decree of Paternity and Custody" in the record before us, only the "Order for Support" entered in March 2007. The "Order for Support" found that Arthur was Tyrell's father and ordered him to pay child support to Tyletha. It did not include a custody determination and did not set forth a visitation schedule for the noncustodial parent. There have been no other orders, except for temporary orders during the pendency of this case, that have established custody. Accordingly, the custody decision in the instant case was actually an initial determination.

Thus, we need not determine whether there was a material change of circumstances to warrant a modification of custody. We need only focus on whether awarding custody to Arthur was in Tyrell's best interests. See Neb. Rev. Stat. § 42-364(1)(b) (Cum. Supp. 2012) (decision to award custody of minor child must be based upon best interests of child). In determining the best interests of a minor child, the court should consider the following factors:

(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member. . . .
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.

Neb. Rev. Stat. § 43-2923(6) (Cum. Supp. 2012).

In addition to these factors, the Nebraska Supreme Court has previously held that in determining a child's best interests, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).

In making its custody determination, the trial court found that Tyletha had relinquished parenting to family members and that her instability in maintaining personal relationships was a detriment to Tyrell. Tyletha argues that there was no evidence to substantiate either of these findings.

In regard to the finding that Tyletha relinquished parenting to family members, the evidence showed that Tyletha's relatives and others assisted her at times in providing care for Tyrell, and also assisted in picking up Tyrell after visitations with Arthur or from daycare or school.

Tyletha testified that her sister used to watch Tyrell while she was at work, but that during the pendency of this case, Tyrell was in daycare when she was working until he started kindergarten. Tyletha testified that if she could not pick up Tyrell from daycare because she was working late, she had his teachers, daughters of his teachers, or her sister pick him up.

Tyletha's father testified that he takes care of Tyrell any time Tyletha needs him to and has also helped with taking Tyrell to Arthur's.

Arthur's mother testified that during the time that her house was used as the exchange location for Tyrell, Tyletha usually did not pick up Tyrell herself, but had other people pick him up. She testified about one occasion where an individual whom she had never met came to her house to pick up Tyrell. Arthur's mother testified that Tyletha had not told her that someone new was picking up Tyrell. Because Arthur's mother did not know the individual, she did not let the individual take Tyrell.

We conclude that although there is evidence that Tyletha received assistance from family members and others in caring for and transporting Tyrell, this does not amount to a relinquishment of parental rights. The assistance from relatives and others most often occurred when Tyletha was working. It cannot be held against Tyletha that she needed help from others in caring for Tyrell because she was working so she could financially provide for Tyrell. Accordingly, the evidence does not support a finding that Tyletha had relinquished her parental rights to family members as the trial court found.

The trial court also found that Tyletha's instability in maintaining personal relationships was a detriment to Tyrell. We conclude that the evidence is lacking to support this finding as well.

The only evidence of Tyletha's personal relationships was that at the time of trial, Tyletha had recently had her second child. She and the father were still together as a couple, but were not living together. There was no testimony about other relationships Tyletha has had or how other relationships have negatively affected Tyrell.

There was also evidence about statements and photographs on Tyletha's "Facebook" page. However, Tyletha explained the statements and said the photographs were pictures of her dressed up and out at "clubs." None of the pictures or the specific comments posted about the pictures were presented at trial. This limited evidence did not provide any insight into Tyletha's personal relationships.

There is little to no evidence to support the trial court's finding that Tyletha's instability in maintaining personal relationships was detrimental to Tyrell. Accordingly, the record lacks evidence to support either of the trial court's findings which formed the basis of the trial court's custody determination.

However, we conclude that there is evidence in the record to support a determination that awarding custody to Arthur is in Tyrell's best interests. Such evidence includes Arthur's testimony that Tyletha has used violence against him in the presence of Tyrell numerous times. At the time of trial, there were charges pending against Tyletha as a result of an altercation with Arthur in December 2011 in which she allegedly assaulted Arthur.

Tyletha admitted that she has been convicted of over 10 charges since Tyrell was born in September 2006. Her convictions in 2006 included driving under suspension (twice), no valid registration, and negligent driving. In 2007, she was convicted of driving under a revoked license, failure to appear, damage to property, and disorderly conduct. In 2010, she was convicted of driving under suspension.

When Arthur disciplined Tyrell after he got in trouble at school, Tyletha called Child Protective Services, alleging that Arthur physically abused Tyrell; obtained a protection order against Arthur; and removed Tyrell from his school so that Arthur would not be able to help take Tyrell to school and pick him up. The allegations against Arthur were determined to be unfounded, and the protection order was dismissed. Despite Tyletha's continued belief that Arthur had abused Tyrell, she had been letting Arthur have an extra overnight visit every week in addition to what was set forth in the temporary order.

The evidence shows that Arthur has an active interest in Tyrell's education. He communicates with Tyrell's teacher a couple times per month and has worked with Tyrell to improve his reading skills. Arthur testified that he believes Tyrell's education should be a top priority and believes it is very important to Tyrell's success later in life.

The parties clearly do not get along and have limited communication with each other. Their disdain for each other escalates when they are present at the same place. As one would expect, given their contempt for each other, the parties' testimony is conflicting on many issues. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Pohlmann v. Pohlmann, 20 Neb.App. 290, 824 N.W.2d 63 (2012). In fact, in contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court's determination is affirmed or reversed on appeal. Id.

Based on our standard of review, and giving deference to the trial court's observation of the witnesses, we find that the evidence supports a determination that awarding custody to Arthur is in Tyrell's best interests. Accordingly, the district court did not abuse its discretion in awarding custody of Tyrell to Arthur.

Partial Parenting Plan.

Tyletha also assigns that the trial court erred in failing to make specific findings as to why the parties' partial parenting plan was not in the best interests of Tyrell. There was testimony that the parties had mediated a partial parenting plan that covered parenting time for holidays. Rather than adopt the partial parenting plan, the court ordered that the parties would alternate parenting time for the major holidays.

Tyletha argues that pursuant to § 43-2923(4), which is part of the Parenting Act, the court was required to provide its reasons as to why the partial parenting plan was not in Tyrell's best interests. Specifically, § 43-2923(4) provides in part: "If the court rejects a parenting plan, the court shall provide written findings as to why the parenting plan is not in the best interests of the child."

At trial, Arthur testified that he and Tyletha mediated a parenting plan that covered parenting time for the holidays. Arthur presented an exhibit titled "Partial Parenting Plan" which Arthur testified reflected how he would like to have parenting time divided for the holidays. The court asked if the exhibit was a mediated partial plan, to which Tyletha's counsel responded "no" and stated that Tyletha had objected to it in writing. The trial court noted that there was no indication in the record from the conciliation court that there was a mediation between the parties, that there was a mediated plan, or that there was an objection to a plan. Arthur's counsel then offered the exhibit into evidence, and Tyletha's counsel objected on the ground that the exhibit was not an authorized parenting plan, but a proposal. The court received the exhibit, over Tyletha's objection, as illustrative of what Arthur's testimony would be with regard to his proposal for a parenting plan.

Tyletha also offered an exhibit titled "Partial Parenting Plan" into evidence. At the time it was offered, Tyletha's counsel stated that neither Tyletha's exhibit nor Arthur's have been finalized with the conciliation court. The exhibit was received for the same purpose that Arthur's exhibit was received.

The only difference between the two exhibits in regard to holidays was that one stated Christmas Day was unresolved and that the other stated Tyletha will spend specific Christmas Day hours with Tyrell every year. Neither exhibit indicates the parties' approval by signature or otherwise.

The court did not provide any reasons for not adopting the "Partial Parenting Plan" offered by either party. However, before a court must provide written findings as to why a parenting plan is not in the best interests of the child, there must be an agreed-upon parenting plan. See § 43-2923(4). In this case, there was no agreed-upon parenting plan presented to the court. The partial plans offered by both parties were offered as an aid to the court, and Tyletha's counsel admitted that the exhibits offered by the parties were not finalized, but, rather, were proposals. Therefore, it was not necessary for the court to provide written findings as to why a nonexistent parenting plan was not in Tyrell's best interests. This assignment of error is without merit.

CONCLUSION

We conclude that the trial court did not abuse its discretion in awarding custody of Tyrell to Arthur and did not err in failing to make specific findings as to why the parties' partial parenting plan was not in the best interests of Tyrell. Accordingly, the judgment of the trial court is affirmed.

Affirmed.


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