Nick E. Howard v. Laura C. Howard, now known as Laura C. Lorimer.

Nick E. Howard appeals from an order of the Hayes County District Court denying his application to modify the parties' decree of dissolution and award him custody of the parties' minor daughter, Casee. Finding that Nick failed to demonstrate that a material change in circumstances occurred justifying a modification of custody, we affirm.

STATEMENT OF FACTS

Nick and Laura C. Howard, now known as Laura C. Lorimer, were married on January 18, 1992, and Casee was born to the parties on August 12 of that year. The parties separated on February 17, 1994, and their marriage was dissolved by a decree entered on December 20. In the decree of dissolution, custody of Casee was awarded to Laura, with visitation being granted to Nick. Nick appealed to this court, and on October 10, 1995, we held that Casee's best interests required that a guardian ad litem be appointed to protect her welfare, that her legal custody be retained by the trial court, and that her physical custody remain with Laura. See Howard v. Howard, No. A-95-053, 1995 WL 595369 (Neb. App. Oct. 10, 1995) (not designated for permanent publication).On January 17, 1997, the parties and Casee's guardian ad litem entered into a joint stipulation in which it was stipulated and agreed upon that Casee's legal and physical custody should be placed with Laura, "subject to reasonable and liberal rights of visitation with Nick." The trial court approved the joint stipulation on January 21.

Nick filed a petition for modification of the decree of dissolution on March 26, 2003. In his petition, Nick alleged that "[t]here has been a material change in circumstances since the decree and subsequent order of January 21, 1999 [sic], which circumstances were not contemplated by the parties at the time said decree and order were entered." Specifically, Nick claimed that Laura, who had married Mark Lorimer after the dissolution of the parties' marriage, had recently separated from Mark and that she had "filed for, and obtained, a protection order against Mark . . . due to domestic violence . . . including domestic violence perpetrated in the presence of Casee." Nick also alleged that Laura, who had five children ranging in age from 13 months to 7 years old with Mark, required and expected Casee to "act as a babysitter for her five (5) young siblings." The petition claimed that Casee's responsibilities exceeded her capabilities and her maturity and "constitute[d] an abdication of parental responsibilities by Laura."

Nick's petition also claimed that Casee was doing poorly in school and was not receiving the guidance, assistance, nurturing, or attention from Laura that she needed. Nick also asserted that since the 1997 order, Laura had "generally neglected the welfare of Casee . . . in a variety of ways"; that Casee had "expressed a desire to reside" with him; and that Casee was "of an age of comprehension such that her opinion should be given consideration by the court." Nick also claimed that Laura denied him some of his court-ordered visitation with Casee and that it was "in the best interests of Casee . . . that her care, custody and control be placed with [Nick]."

On July 21, 2003, trial was held on Nick's petition to modify the decree of dissolution. Ronda Howard, Nick's mother, testified first. Ronda testified that she had observed two incidents in which Laura had left one or more of her small children in her van while she was not present. Ronda testified that Casee spends quite a bit of time with Ronda and her husband while Casee is visiting Nick, due to Nick's work schedule, and that Ronda was willing to continue taking care of Casee during Nick's work hours if the court gave Nick custody. Ronda also testified about a conversation she had with Laura within the year preceding the trial, in which Laura told Ronda that Laura was not concerned with providing anything for Casee, because Laura knew that Nick or Ronda and her husband would provide for Casee. On cross-examination, Ronda admitted that Nick often works 12 to 13 hours per day, although she said that his winter work hours are shorter. She also said that Casee had never had any friends visit while Ronda was caring for Casee. Finally, Ronda admitted that she and Casee had made a "pinky promise" about the trial, but Ronda said that she only asked Casee to tell the truth.

Next, Casee was interviewed by the trial judge. Casee said that she had gone to school in Holdrege since preschool and that she had friends at her school. Casee told the court that she had her own room at Nick's house, but had to share a room with siblings at Laura's house. Casee said that "hopefully" Laura and Chuck Thompson, Laura's live-in boyfriend, were going to get married soon. She said that one of Chuck's daughters was "kind of like a sister," that Chuck was "a really nice guy," and that Casee thought it would be good when Laura and Chuck married. Casee testified that she "sometimes" helped Laura care for Casee's siblings and that Casee helped clean the house, do the laundry, do the dishes, and cook. Casee further said that she occasionally has driven a four-wheeler and a pickup at Nick's house. She said that Nick had cooked for her in the past, but that "it's been awhile since he cooked for [her]," and that Casee and Nick often ate at Ronda's house.

Casee told the court that she had a good time when she was at Nick's house and that she had chores to do when she stayed there. Casee also said that "[f]ifth grade was hard" and that she had a lot of homework. She said that she used to have a desk at Laura's house, but that it had to be placed in storage because the family moved into a smaller house. She said that Laura and Chuck helped her with her homework when she was with Laura and that Nick, Ronda, and Ronda's husband helped when Casee was with Nick. Casee further testified that neither Nick nor Laura spanked her. Casee then told the court about the "pinky promise" she made with Ronda. Casee said that she promised Ronda that Casee would "live with [her] dad." She also said that Ronda gave her "some descriptions of the questions [the judge was] going to ask." Casee also said that neither Nick nor Laura told her what to say. Casee told the court that she felt she was "in a trap" because, she said, "[w]hat I told my dad and them was I would come live with him."

When Casee was asked if she thought Laura gave her too much work to do, Casee responded that "[s]ometimes it gets hard," but when asked if she had too many chores at Nick's house, Casee said that "[e]verything is hard. That's just the way life is." Casee said that she did "good" in school and that her grades were "[s]ome A's, some B's and some C's. No D's and no F's." Casee said that Laura came to her school activities, but that sometimes Nick was not notified of the activities because Casee would forget to tell Laura about them. Casee testified that "things are pretty good the way they are," and she said that although Laura's current housing situation was "squashed," Laura planned on finding a bigger house.

Next, Daniel Fulmer, a friend of Mark, testified that he had observed an occasion when Laura had left her children alone in her van. Fulmer said that he observed Laura get out of the van and enter a gas station and that the van began to roll backward. Fulmer said that the van nearly rolled onto a busy highway, but stopped when it struck a curb. Fulmer also said that he had been informed by Mark of another incident when Laura had left her children alone in the van and the van began to roll, eventually running "up against the house in between two trees." Fulmer also testified about the state of Laura's home when she lived with Mark. Fulmer said that although the living room was clean, there was a pile of dirty clothes on the floor. Fulmer also testified that he heard Laura ask Casee to care for her siblings and that he observed Casee taking care of the other children. On cross-examination, Fulmer admitted that he was better friends with Mark than he was with Laura and that he was not familiar with Nick and had no occasion to see Nick with Casee.

Clettis Johnson, a former neighbor of Laura, testified next. Johnson recounted an incident he observed in which some of Laura's children ran out into the street and were nearly run over. Johnson testified that he notified the police about the incident. Johnson also told of another incident in which he nearly ran over one of Laura's children who had run out into the street. Johnson said that he went to Laura's home and asked her "if she knew that her children were out unsupervised." Johnson said that Laura did not appear aware that the child was in the street and that she was "very concerned." On cross-examination, Johnson admitted that he was friends with Mark, that he did not know Nick, and that he had never seen Nick interact with Casee.

Joyce Wissman, who previously had served as a babysitter for Laura's children, testified next. Wissman said that Casee "had responsibilities for the younger . . . children." Wissman said that Laura would ask Casee to go check on the younger children, but that Wissman was unaware if Casee could properly supervise the children. She also testified that Laura's home was "well cluttered" and that it was "not very clean." However, on cross-examination, Wissman testified that she had not been inside Laura's home for "probably . . . three years," that she had never seen Laura's current home, and that she had never seen Nick parenting Casee.

Two other former neighbors of Laura also testified on Nick's behalf. They indicated that Casee often appeared to be in charge of the younger children and that Laura would not be outside with the children when Casee was caring for them. On cross-examination, however, one of those neighbors testified that he could not "say [Casee and the children] weren't just outside playing." The other neighbor testified that Laura's yard was "kind of cluttered and everything was just dropped. . . . Nothing was ever picked up."

Next, Jean Berreckman, Casee's guidance counselor, testified. Berreckman testified that she was familiar with both Nick and Laura. Berreckman said that when Casee started fifth grade, she was "excited" and had a "really bubbly personality," but that throughout the year, Berreckman saw Casee's personality "decline a bit." She said that Casee felt "overworked by the school, maybe it was too hard for her." Berreckman said that Casee had 28 tardies during her fifth grade year and that Berreckman felt the tardies impacted Casee's school performance. Berreckman also said that Casee looked tired at school, lacked motivation, and sometimes looked as if she was not exercising good personal hygiene. Berreckman said that she shared her concerns with Nick and that Nick appeared interested in Casee's education. Berreckman also testified that Casee had received a referral from the school's speech pathologist suggesting Casee have some audiology testing done, but that the tests had yet to be performed. Berreckman did admit on cross-examination that many of the problems she saw in Casee she saw in many other fifth grade girls and that Casee was at "a difficult age for females." Berreckman also said that Laura had been to individual education program (IEP) meetings for Casee and that Nick had not been to these meetings. Berreckman also said that Nick had not requested any information about Casee's IEP.

Laura testified next. She first testified that she and Nick had been divorced for approximately 9 years and that she had married Mark in May 1995 and had divorced him in March 2003. Laura said that she was engaged to marry Chuck and that it would be her fourth marriage. Laura further noted that she currently lived in a two-bedroom home with Chuck, Casee, and her five other children. Laura said that when Chuck's children visit, Casee and one of Chuck's daughters must share a bed and that they share a bedroom with Chuck's son and one of Casee's half brothers. Laura further testified that Mark had assaulted her in the presence of some of the children, but that Casee was not present during the assault. Laura also said that a worker from the Nebraska Department of Health and Human Services had been concerned about the condition of the home Laura and Mark lived in and that the worker had inspected it three times.

On cross-examination, Laura said that her current housing situation was temporary and that she had found another home that she planned to "put a bid on." Laura also admitted that she occasionally asked Casee to take care of the younger children, but that it was for "ten-fifteen minutes, twenty at the most," and that often Casee volunteered to help take care of her siblings. Further, Laura said that Casee knew how to dial the 911 emergency dispatch service, that Laura always had a cellular telephone with her, and that there were always neighbors nearby if an emergency occurred. Laura also testified that while it may have appeared to others that the children were often outside unsupervised, Laura could see the children from inside the house. Laura testified that Casee occasionally had friends visit and that Casee often went to her friends' homes, as well. Laura also said that she remained in close contact with Casee's special education teacher and that Laura regularly attended meetings dealing with Casee's IEP. Laura noted that she used to tell Nick about the meetings, but that he never came to them, and that she stopped notifying him after he failed to attend. Laura further claimed that although she attended Casee's school functions, Nick did not attend. Laura did admit that her home was in a state of "organized clutter," but that it was not dirty. She also said that if the family moved, Casee would not have to switch schools.

Nick then testified in his own behalf. He claimed that he purchased Casee clothes and school supplies, that he and Casee had an "excellent" relationship, and that they were very affectionate with each other. Nick testified that he was concerned with Casee's performance in school, with the responsibilities she had for her siblings, with Laura's relationships with men, and with Laura's ability to provide adequate housing. He said that Laura's home was "a mess" and was "filthy." He further claimed that Laura had never informed him about Casee's IEP meetings or other school functions. Nick also testified that he loaned Laura money to help her purchase a furnace and a car and to get a car out of an impound lot. Nick claimed that Laura cut his visits with Casee short. He also recounted an incident in which he alleged that Laura and Chuck engaged in inappropriate sexual conduct in the presence of the children. He indicated that Chuck "was sitting down in the van and [Laura] had her pants undone and he had both hands down her pants." Nick did admit that Casee did not witness this incident, however. He claimed that it was in Casee's best interests to live with him because "her state of mind and all her welfare need to be met. And the love and appreciation would all be there."

On cross-examination, Nick admitted that he had been married twice and that his second wife had sought a protection order against him. When asked whether he had ever sought anger management counseling, Nick said that he had not and that he "just sit[s] on" his anger. Nick also admitted that he was going through bankruptcy at the time of the trial and that the bankruptcy trustee had made a motion to dismiss Nick's case, "because there [were] allegations that [Nick was] trying to defraud creditors." When asked how often he takes Casee to see her friend who lives in Palisade, Nick responded, "When I get there." When Laura's attorney asked Nick what would happen if Casee were with him in the field at his farm and something happened to him, Nick said, "I die and go to heaven" and "[s]omebody will come find us." Nick also admitted that he allowed Casee to drive a pickup and a four-wheeler on his farm. He claimed that these things were not dangerous for Casee because "[s]he's a highly intelligent individual and understands everything." Nick also admitted that he had never contacted the school himself to find out about Casee's performance or school activities. Finally, when asked whether he had any concerns about Casee's having to switch schools if she lived with him, Nick said, "Oh, maybe losing her friends, but she don't have too many. Um, that's about all. Education is where it's at."

After Nick rested, Chuck was called to testify on Laura's behalf. He testified that he and Laura were looking at a house to purchase in Loomis. He denied that he and Laura had engaged in any inappropriate sexual conduct in front of the children. Next, Laura's mother testified that Laura and Casee's relationship was excellent and that Laura did not put Casee in charge of the younger children for inappropriate lengths of time. On cross-examination, Laura's mother said that it was important for Casee to arrive at school on time and with her homework completed and that it would be inappropriate for Laura to leave Casee in charge of the younger children for "half a day . . . or an hour." Finally, the babysitter employed by Laura was called to testify. The babysitter said that Laura was "a good mother," noting that Laura "always listens to [her children], she tries to be there for all of them."

After all the evidence was presented, the trial court entered its order and judgment on August 12, 2003, denying Nick's petition to modify custody. The court "review[ed] the evidence, the testimony of the witnesses, their credibility, and the statement of the minor child Casee." The court noted that it interviewed Casee and that while Casee "did express her desires," the court "discount[ed]" Casee's statements regarding her preference for living arrangements. The trial court found that Casee "was coached extensively by someone regarding talking with the court, was coached extensively regarding what to say, and even made to promise what it is she would tell the court about her preferences."

The court found Casee to be "very well spoken, obviously intelligent, and not at all displeased with the present situation living with [Laura]." The court did note that "[t]he financial situation of [Laura] is precarious, because of her work skills, or lack of work skills and the new relationship with another man, who is not the father of any of her children." However, the court found that "Casee . . . obviously has bonded well with her other siblings, and perceives her situation with the other siblings in a positive manner." While it was "obvious to the Court that [Nick] and his family clearly love . . . Casee, and in fact would be able to provide a more secure financial situation, a nicer home than [Laura], and more material possessions," the court noted that "[t]hose items alone are not sufficient to warrant a change in custody."

The court found that there was "no evidence presented . . . to show . . . an adverse effect" on Casee or "any effect on [Casee] as a result of the truths . . . and . . . the allegations contained in the Motion to Modify." The court specifically held that there was "no evidence of an abdication of parental responsibility by [Laura] concerning Casee" and that Casee "does help with her brothers and sisters, but the responsibilities do not exceed her capabilities, and in fact she appears to be thriving with regard to those responsibilities." While the court did note that "[t]here obviously have been some lapses in judgment when [Laura] left the minor children alone in a vechicle [sic], but those have been very few and very far between." Additionally, the court noted that while "[t]he allegations regarding a new paramour for [Laura] are true . . . there is no evidence, that demonstrates any adverse effect on Casee. To the contrary, Casee appears to enjoy the new arrangements, and appears to enjoy her time with the new man in [Laura's] life."

It was the court's finding that "both parties have done very well in the care and upbringing of [Casee], as is shown in her conversation with the Court, her demeanor, and in her responses to questions." Ultimately, the court held:

[T]here is no change of circumstances with regard to the situation of [Laura] that would require the Court to change custody, and indeed once the credibility of the parties was taken into account, the statements made, the Court finds that there is no change of circumstances that would warrant the Court in changing custody of [Casee]. The Court further finds that the best interests of [Casee] do not require a change of custody.

Nick has timely appealed to this court.

ASSIGNMENT OF ERROR

Nick alleges that the district court abused its discretion when it failed to award him custody of Casee.

STANDARD OF REVIEW

Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Kumke v. Kumke, 11 Neb. App. 304, 648 N.W.2d 797 (2002).

A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.

ANALYSIS

Nick alleges that the district court's decision to deny his petition to modify custody of Casee was an abuse of discretion. "Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court." Kumke v. Kumke, 11 Neb. App. at 309, 648 N.W.2d at 801. "Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action." Tremain v. Tremain, 264 Neb. 328, 334, 646 N.W.2d 661, 666 (2002). Nick does not allege that Laura is an unfit parent to Casee. Therefore, we must assess whether Nick has shown that there has been a material change in circumstances and that giving him physical custody of Casee is in her best interests.

"The party seeking modification of child custody bears the burden of showing a change in circumstances." Id. "A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently." Id.

The factors that must be considered in custody and visitation matters are detailed in Neb. Rev. Stat. § 42-364(2) (Reissue 1998), which provides:

In determining custody arrangements and the time to be spent with each parent, the court shall consider the best interests of the minor child which shall include, but not be limited to:

(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 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; and

(d) Credible evidence of abuse inflicted on any family or household member.

It has also been held that, in addition to the factors listed in § 42-364(2),

a court may consider other factors in determining a child's best interests in custody matters, including the moral fitness of the child's parents and the parents' sexual conduct, the attitude and stability of each parent's character, and the parental capacity to provide physical care and satisfy educational needs of the child.

Hoins v. Hoins, 7 Neb. App. 564, 567, 584 N.W.2d 480, 483 (1998). "However, the best interests of the minor child remain the court's paramount concern in deciding custody issues." Hassenstab v. Hassenstab, 6 Neb. App. 13, 17, 570 N.W.2d 368, 372 (1997).

The evidence adduced at trial suggests that Casee had a good relationship with both Nick and Laura. Casee's testimony indicated that she loved both Nick and Laura and enjoyed spending time with each of them. Further, the evidence tended to show that Casee was generally healthy, that her social behavior was appropriate, and that she had friends and hobbies she enjoyed. Her conversation with the trial court proved that she was very capable of carrying on an intelligent conversation. Although Nick could provide more financial security and a larger home, the evidence did not prove that Casee's welfare was being neglected. Although there is some evidence in the record to suggest that both Nick and Laura have been in abusive relationships in the past, there is no indication that either party has ever abused Casee; in fact, Casee testified that neither Nick nor Laura spanked her or physically disciplined her.

The trial court "discount[ed]" Casee's statements regarding her preference for living arrangements, because the court was "convinced that [Casee] was coached extensively by someone regarding talking with the court, was coached extensively regarding what to say, and even made to promise what it is she would tell the court about her preferences." Thus, although Casee did indicate that her preference may be to live with Nick, the trial court did not take that into account when it made its decision. Casee's conversation with the trial court did indeed suggest that she had discussed her testimony with Ronda and that Casee may have made promises regarding her testimony. Because the trial court was able to hear and observe Casee, we accord the court's assessment of Casee's credibility on this issue great weight, and we are therefore unable to say that it was an abuse of discretion for the trial court to disregard Casee's testimony regarding her preference for living arrangements.

The evidence adduced at trial further indicated that neither Nick nor Laura has had great success in crafting long-term relationships with the partners of his or her choosing. However, there is minimal evidence to prove that either Nick or Laura is morally unfit. Further, with the exception of Nick's testimony regarding an incident of inappropriate sexual conduct he claimed to have observed between Laura and Chuck, there was no evidence of either parent's sexual conduct. Moreover, both Laura and Chuck denied that there was any inappropriate sexual conduct on their behalf in the presence of the children. The record further suggests that both parents are employed and relatively stable and that while Laura's housing at the time of trial was barely adequate, both she and Chuck testified that it was temporary.

The record does indicate that Casee had a somewhat problematic fifth grade year. Berreckman testified that Casee's personal hygiene suffered, that she often appeared tired and distracted, and that her grades suffered. However, the record does indicate that while Casee did receive some C's and D's, she did not fail any of her classes; further, since only Casee's fifth grade report card was entered into evidence, we are unable to tell how much Casee's academic performance has suffered. Berreckman also admitted that the problems that she saw in Casee were problems encountered by numerous fifth grade girls and that Casee's age was "a difficult age for females." Additionally, in the trial court's conversation with Casee, the court found her to be "very well spoken" and "obviously intelligent."

In his brief, Nick points to numerous reasons why he believes Casee's interests would be best served by her being placed in his custody. Nick claims that the trial court's finding overlooks the "undisputed evidence of Mark['s] abuse of Laura, Laura's aggression which escalated the situation, Laura's lack of judgment in not simply walking out of the house, Casee's exposure to [Laura's] injuries . . . and the children's subsequent exposure to and fear of Mark['s] driving by and calling the home." Brief for appellant at 41-42. However, we note that while it is true that Laura was assaulted by Mark, the record indicates that she took appropriate measures to protect herself and her children after Mark abused her. She did not stay in the abusive situation, but, rather, filed for and obtained a protection order against Mark and filed for divorce soon after the abuse occurred. Additionally, there is some evidence in the record that Nick has engaged in abusive behavior in the past. Thus, we do not find Mark's abuse of Laura to weigh in favor of removing Casee from Laura's custody.

Nick also alleges that the trial court's refusal to grant him custody of Casee "overlooks the undisputed evidence of Laura's inability to provide Casee with adequate housing, including a bed of her own and appropriate sleeping arrangements, heat, transportation, clothing and school supplies." Brief for appellant at 41. The record does in fact reflect that Laura has had some financial difficulties and that the housing she had at the time of trial was barely adequate. In fact, the trial court did note that the "financial situation of [Laura] is precarious, because of her work skills, or lack of work skills and the new relationship with another man, who is not the father of any of her children." The court further noted that Nick "would be able to provide a more secure financial situation, a nicer home than [Laura], and more material possessions." However, the court also correctly provided that "[t]hose items alone are not sufficient to warrant a change in custody." "A court cannot deprive a parent of the custody of a child merely because the parent has limited resources or financial problems." Gomez v. Savage, 254 Neb. 836, 850, 580 N.W.2d 523, 533 (1998).

In its order denying Nick's petition to modify, the trial court found:

[T]here is no change of circumstances with regard to the situation of [Laura] that would require the Court to change custody, and indeed once the credibility of the parties was taken into account, the statements made, the Court finds that there is no change of circumstances that would warrant the Court in changing custody of [Casee].

The court also held that Casee's best interests did not require awarding her custody to Nick. Based on our de novo review of the record, we are unable to say that the district court abused its discretion when it found no material change in circumstances that would warrant changing Casee's custody. Thus, we find that Nick's assignment of error is without merit.

CONCLUSION

We find that the district court did not abuse its discretion when it denied Nick's request to award custody of Casee to him. Thus, we affirm the order of the district court.

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Click the case caption above for the full text
of the Court's opinion.

Affirmed in favor of Defendent.

Jean Berreckman, Casee's guidance counselor.

Unavailable

Reported by L. Hargraves