859 N.W.2d 578
Neb.2015Background
- Fabiola and Manuel divorced in 2011; the decree awarded Fabiola sole legal and physical custody of two children; Manuel had visitation and child support obligations.
- Manuel filed to modify custody in July 2012 seeking sole or joint custody; Fabiola opposed and sought to keep custody and to relocate to California.
- Trial occurred December 2013–January 2014; evidence included certified conviction and mandate showing Manuel’s conviction for third-degree domestic assault (terroristic threats also noted), and Fabiola testified she was the victim.
- At the close of evidence, the district court orally placed legal custody with the court and ordered joint physical custody on alternating one-week periods; a written order adopted those changes without special written findings.
- Fabiola appealed, arguing the court violated Neb. Rev. Stat. § 43-2932 by awarding custody without making the statute’s required written findings after a parent’s commission of domestic intimate partner abuse was established by the greater weight of the evidence.
Issues
| Issue | Plaintiff's Argument (Fabiola) | Defendant's Argument (Manuel) | Held |
|---|---|---|---|
| Whether § 43-2932 applied given evidence Manuel committed domestic intimate partner abuse | Manuel’s conviction and Fabiola’s testimony show he committed domestic intimate partner abuse, so § 43-2932 applies | § 43-2932 shouldn’t apply because the conviction occurred before the divorce decree | Held: § 43-2932 applies; conviction established domestic intimate partner abuse by the greater weight of the evidence and timing relative to the decree does not limit the statute’s application |
| Whether the district court was required to make the determinations and impose limits under § 43-2932 before awarding custody | The court was required to determine that abuse occurred, impose limits, and make special written findings before awarding legal or physical custody to Manuel | The court did not need to follow § 43-2932 because the conviction predated the decree (and/or court discretion over custody) | Held: The statute uses mandatory "shall"; the court was required to follow § 43-2932’s procedures and make special written findings before awarding custody |
| Whether awarding joint physical custody and placing legal custody with the court without required findings was an abuse of discretion | Awarding joint custody without complying with § 43-2932 was unlawful and an abuse of discretion | The district court was within its discretion to order joint custody and place legal custody with the court | Held: The failure to comply with § 43-2932 rendered the custody determination an abuse of discretion; the modification was vacated and remanded |
| Scope of remedy and further proceedings | Vacate and remand so the court can comply with § 43-2932 on retrial/reevaluation | Opposed to reversal (urged affirmance) | Held: Entire modification order vacated (other changes flowed from custody change); remand for further proceedings complying with § 43-2932, including special written findings if any custody is awarded to Manuel |
Key Cases Cited
- Kamal v. Imroz, 277 Neb. 116 (review of custody determinations is de novo on the record)
- Watkins v. Watkins, 285 Neb. 693 (abuse of discretion definition)
- City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848 (definition of preponderance/greater weight)
- Wayne G. v. Jacqueline W., 288 Neb. 262 ("shall" denotes mandatory duty)
- State v. Smith, 267 Neb. 917 (definition of threatening in criminal context)
- State v. Molina, 271 Neb. 488 (criminal conviction establishes conduct beyond a reasonable doubt)
- Zahl v. Zahl, 273 Neb. 1043 (custody determinations must comply with statutory requisites)
- Kerford Limestone Co. v. Nebraska Dept. of Rev., 287 Neb. 653 (do not read into a statute meaning not there)
- Millennium Laboratories v. Ward, 289 Neb. 718 (appellate courts need not reach unnecessary issues)