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Randy S. v. Nicolette G.

Supreme Court of Nebraska

March 8, 2019

Randy S., appellee,
Nicolette G., appellant.

         1. Child Custody: Appeal and Error. 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.

         2. Judgments: Words and Phrases. 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.

         3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         4. Trial: Judges: Presumptions: Appeal and Error. An appellate court presumes in a bench trial that the judge was familiar with and applied the proper rules of law unless it clearly appears otherwise.

          Appeal from the District Court for Washington County: John E. Samson, Judge. Affirmed.

          Mark J. Milone and Michael W. Milone, of Koukol & Johnson, L.L.C., for appellant.

          Edmond E. Talbot III, of Talbot Law Office, P.C., L.L.O., for appellee.

          Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Papik, J.

         This appeal arises out of paternity proceedings involving Nicolette G., Randy S., and their daughter Eleanor G. Nicolette [302 Neb. 466] appeals the order of the district court that awarded sole legal and physical custody of Eleanor to Randy.

         Nicolette's primary argument on appeal rests on her contention that she proved at trial that Randy had committed child abuse under Nebraska law. She argues that under such circumstances, the district court was required by statute both to impose sufficient limitations on Randy's custody and parenting time to protect Eleanor and to make special written findings that Eleanor would be protected by such limitations. She contends the district court did neither. Nicolette also contends that the district court generally abused its discretion in its award of custody, parenting time, and child support. Upon our de novo review of the record, we find no reversible error, and therefore, we affirm.


         Paternity Proceeding.

         Nicolette and Randy agree that they are the parents of Eleanor. Eleanor was born in 2014. Nicolette and Randy have never married one another, but they did live together with Eleanor until October 2016, when Randy initiated paternity proceedings.

         Randy's operative complaint sought a paternity determination, sole legal and physical custody, and child support. In her operative answer and counterclaim, Nicolette sought a paternity determination, sole physical custody, joint legal custody, and child support. In accordance with the parties' stipulation, in November 2016, the district court entered a temporary order providing for a parenting time cycle of two weekdays with Randy, three weekdays with Nicolette, and alternating weekends and major holidays. The matter proceeded to trial in January 2018.

         General Evidence Regarding Parties and Their Relationship With Eleanor.

         The evidence at trial showed that both Nicolette and Randy have been active caregivers for Eleanor, both contributing their [302 Neb. 467] time, efforts, and money. Nicolette and Randy both described strong, positive relationships with Eleanor. Both parties also have supportive families.

         Nicolette testified that she has degrees in culinary arts and general studies, focusing on nutrition, healthcare, and restaurant management. As of the date of trial, Nicolette had spent 3 months working full time for a nonprofit organization focusing on literacy. Previously, she had held various jobs in the retail and service industries. At the time of trial, Nicolette resided with her parents in Omaha, Nebraska, where Eleanor has her own bedroom. Nicolette testified that within weeks, she would move to her own two-bedroom apartment in Omaha, where Eleanor would have her own bedroom.

         Randy had completed high school and one semester of community college. At the time of trial, Randy owned and operated a business installing electronic accessories in cars, something he had done for 12 years. He had also previously done intermittent construction work and sold roofing materials, gutters, and siding. Randy testified that at the time of trial, he resided in Blair, Nebraska, where he owns a home in which Eleanor has her own bedroom. Nicolette presented evidence of unsafe conditions that existed in Randy's home at the time they separated in October 2016, including unfinished and exposed electrical outlets and an open staircase without a railing, leading from the first to the second floor. Randy presented evidence that he had fixed the unsafe conditions after he filed suit.

         Randy's Alcohol Use.

         The district court heard evidence about Randy's alcohol use. In general, the evidence showed that Randy, who has a family history of alcoholism, drank heavily while Nicolette lived with him, but since she had moved out in October 2016, his drinking had diminished.

         Nicolette testified that when she lived with Randy after Eleanor's birth, he drank alcohol daily. He would come home from work with the odor of alcohol on his breath and continue [302 Neb. 468] to drink throughout the evening. Nicolette stated that he would start with beer and progress to cocktails. According to Nicolette, when Randy used alcohol, he had red eyes, poor balance, and slurred speech; was confused; repeated himself "a lot"; and "didn't seem to have a care in the world." Nicolette stated that the more Randy drank, the more irritable he would become. If she tried to advise him to slow down or stop drinking, he would "get mean" and critical. Nicolette testified that Randy's drinking affected his ability to care for Eleanor. She said he became "very inattentive, he was on his cell phone a lot."

         Nicolette testified that after Eleanor was born, she had observed Randy "drink to excess" and then drive at least once or twice a week, and "[m]ore frequently" than "once or twice" when Eleanor was in the car. According to Nicolette, Randy turned down Nicolette's offers to drive and did not stop driving with Eleanor in the car when he was "in that condition." Randy's mother testified that she had observed Randy parent Eleanor while he was intoxicated. She denied knowing whether Randy had driven while intoxicated with Eleanor in the car. She stated, "[H]aving a beer and being intoxicated, you know, if I'm not counting I don't know."

         Nicolette testified that both she and Randy had consumed alcohol while on a boat with Eleanor and that Randy had operated the boat while drinking, with Eleanor on board. Nicolette offered photographs purporting to show Randy operating a boat while drinking, with Eleanor as a passenger. However, either Randy is not operating the boat in the photographs or it is indiscernible whether the beverages he is holding are alcoholic. Randy's mother admitted that she had observed Randy consuming alcoholic beverages "while boating" and had warned him about it more than once, but that she did not recall whether Eleanor was present on the boat while Randy was drinking.

         Randy admitted to being a heavy drinker when he and Nicolette were together. He claimed he used alcohol to cope [302 Neb. 469] with Nicolette, with whom he found it difficult to get along. He defined heavy drinking as consuming more than six beers a day, 6 out of 7 days per week. Randy admitted that before Nicolette left, he had cared for Eleanor while intoxicated. He denied being intoxicated or "under the influence of alcohol" when driving with Eleanor in the car, but he admitted to driving with her after he had consumed "[a] drink, maybe two, over the course of three, four hours."

         Randy and his family testified that Randy had changed his drinking habits and attitude since filing the paternity suit. Randy's stepmother testified that if she saw Randy drink at all, he would have only one beer and tell others he was not drinking because he had Eleanor. Randy's brother testified that he saw Randy once or twice a week. According to Randy's brother, before Eleanor was born, Randy was a regular drinker who "drank quite a bit." However, after breaking up with Nicolette, Randy's drinking had "changed a lot" and he no longer seemed depressed. Randy's brother stated that Randy does not drink more than one or two beers in Eleanor's presence.

         Randy testified that since he and Nicolette separated, he had not been intoxicated while caring for Eleanor. According to Randy, since the separation, he usually consumed only one or two drinks at a time, except for the occasional social event. Randy maintained that 2 or 3 days per week, he does not consume alcohol at all. On the other days, he may have "a couple of drinks" after work. He stated that ...

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