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Gatzemeyer v. Knihal

Court of Appeals of Nebraska

May 8, 2018

Carolyn Gatzemeyer and Robert Gatzemeyer, appellees.
v.
Jennifer L. Knihal, appellant.

         1. Visitation: Appeal and Error. Determinations concerning grandparent visitation are initially entrusted to the discretion of the trial judge, whose determinations, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion.

         2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but 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.

         3. Visitation: Parental Rights: Proof. A court can order grandparent visitation only if the petitioning grandparent proves by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship.

         4. Evidence: Words and Phrases. Clear and convincing evidence means that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.

         5. Trial: Evidence: Appeal and Error. An appellate court will consider the fact that the trial court saw and heard the witnesses and observed their demeanor while testifying, and will give great weight to the trial court's judgment as to credibility.

         6. Visitation: Parental Rights. Although the Nebraska grandparent visitation statutes recognize the interests of the child in the continuation of the grandparent relationship, under Nebraska's grandparent visitation statutes as a whole, the best interests of the child consideration does [25 Neb.App. 898] not deprive the parent of sufficient protection because visitation will not be awarded where such visitation would adversely interfere with the parent-child relationship.

          Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed.

          Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P, for appellant.

          Michael B. Lustgarten and Britt H. Dudzinski, of Lustgarten & Roberts, PC, L.L.O., for appellees.

          Moore, Chief Judge, and Pirtle and Arterburn, Judges.

          Pirtle, Judge.

         INTRODUCTION

         Jennifer L. Knihal appeals from an order of the district court for Douglas County granting Carolyn Gatzemeyer and Robert Gatzemeyer grandparent visitation with Knihal's two children. Based on the reasons that follow, we affirm.

         BACKGROUND

         On July 22, 2016, the Gatzemeyers filed a complaint for grandparent visitation seeking court-ordered visitation rights with their grandchildren, Michael Gatzemeyer and Maya Gatzemeyer. Knihal filed an answer opposing the complaint. During the pendency of the proceedings, the trial court awarded the Gatzemeyers temporary visitation with Michael and Maya, which visitation consisted of one overnight visit every other weekend.

         The children's parents are Knihal and Kevin Gatzemeyer, the Gatzemeyers' son, who is now deceased. Knihal and Kevin were married in November 2004. Michael was born in 2004, and Maya was born in 2006. Knihal and Kevin separated in November 2008 and divorced in July 2010. Based on the parenting plan, Knihal and Kevin had joint physical custody [25 ...


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