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Flores v. Flores-Guerrero

Supreme Court of Nebraska

February 27, 2015

FABIOLA A. FLORES, APPELLANT,
v.
MANUEL FLORES-GUERRERO, APPELLEE

Page 579

[Copyrighted Material Omitted]

Page 580

Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.

Judgement vacated, and cause remanded for further proceedings.

James Walter Crampton for appellant.

Jamie E. Kinkaid and Nancy R. Shannon, of Cordell & Cordell, P.C., for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 581

Wright, J.

NATURE OF CASE

Fabiola A. Flores (Fabiola) appeals from the order of the district court that awarded her and Manuel Flores-Guerrero (Manuel) joint physical custody of their minor children and placed legal custody with the court. She argues that the district court's order, which made no special written findings regarding [290 Neb. 249] Manuel's conviction for third degree domestic assault, violated Neb. Rev. Stat. § 43-2932 (Reissue 2008). Given the evidence presented to the district court, we agree that it was an abuse of discretion for the district court to make a custody determination without complying with § 43-2932. Therefore, we vacate the order of modification and remand the cause for further proceedings consistent with this opinion.

SCOPE OF REVIEW

An appellate court reviews child custody determinations de novo on the record, but the trial court's decision will normally be upheld absent an abuse of discretion. See Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). 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. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).

Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination. Id.

FACTS

The marriage of Fabiola and Manuel was dissolved by a decree entered on January 24, 2011. Fabiola was awarded sole legal and physical custody of the parties' two minor children subject to Manuel's reasonable rights of visitation. Manuel was ordered to pay child support. On May 5, per agreement of the parties, the divorce decree was modified to temporarily reduce Manuel's child support obligation.

On July 12, 2012, Manuel filed a complaint for modification of custody. He prayed for modification of the decree to award him sole custody of the children, subject to Fabiola's reasonable rights of visitation or, in the alternative, to award the parties joint legal and physical custody of the children.

Fabiola filed an amended answer and cross-complaint in which she asked the district court to leave custody with her but modify various provisions of the parenting plan related to visitation, extracurricular activities, the parties' obligations to notify each other when the children suffered from " significant [290 Neb. 250] illnesses," and proof of health insurance. She also asked for permission to remove the children to California.

Page 582

In December 2013 and January 2014, a trial was held on Manuel's complaint and Fabiola's amended cross-complaint. The evidence adduced by Fabiola included certified copies of an order sentencing Manuel to probation for his convictions of terroristic threats and third degree domestic assault and the mandate of the Nebraska Court of Appeals which affirmed his convictions in a memorandum opinion in case No. A-10-964. Fabiola testified that she was the victim of these crimes.

At the end of the hearing, Fabiola brought ยง 43-2932 to the district court's attention. The court stated that it was " very familiar with that statute." Immediately thereafter, the court orally entered its decision. On the issue of custody, it stated: " The Court's going to take legal custody of the children in the Court. I'm going to ...


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