State on behalf of Natalya B. & Nikiah A. v. Bishop A.
A-16-368
| Neb. Ct. App. | Jan 31, 2017Background
- Parents Mimi B. (custodial) and Bishop A. (noncustodial) of two children; children made allegations of physical/sexual abuse years earlier but no criminal or juvenile charges followed.
- 2012 custody order awarded custody to Mimi and adopted a "step-up" parenting plan requiring therapeutic/family therapy and therapist approval to advance visitation.
- Bishop sought modification in 2014, alleging he had no contact with the children and the therapeutic visits never occurred; court ordered therapy for Bishop and supervised visitation could begin after therapy.
- Multiple temporary orders followed; court repeatedly authorized supervised/therapeutic visitation but few or no visits occurred because supervisors were not approved or visits were prevented.
- Trial evidence included testimony from therapists, a counselor who had not met Bishop, Bishop’s testimony about completing therapy, and counsel’s recommendations; the district court found a material change in circumstances, ordered gradual therapeutic parenting time, and temporarily suspended child support until parenting time resumed.
Issues
| Issue | Plaintiff's Argument (Mimi) | Defendant's Argument (Bishop) | Held |
|---|---|---|---|
| Whether district court erred in denying directed verdict on modification (material change) | No material change occurred; original plan (therapist control) should stand | There was a material change: Bishop had no contact and therapeutic visits never happened | Denial affirmed — court properly found the step-up plan unlawfully delegated judicial authority and modification was warranted |
| Whether granting any parenting time is in the children’s best interests | Children fear Bishop; evidence shows therapy professionals opposed contact; visitation would harm them | Gradual supervised therapeutic reintroduction is safest and in long-term best interests; Bishop completed therapy and seeks supervised reintroduction | Affirmed — court did not abuse discretion in ordering cautious, therapist-supervised, incremental parenting time |
| Whether district court relied on improperly admitted evidence (Dr. Blum letter) | Court referenced an exhibit that was ruled inadmissible; findings therefore unsupported | Bishop had other admissible, cumulative evidence (stipulated therapy, testimony) supporting same points | No reversible error — any erroneous reliance was harmless because properly admitted evidence was cumulative and sufficient |
| Whether temporarily suspending child support was an abuse of discretion | Suspending support harms children and rewards Bishop; Mimi contends she was not the barrier to visitation | Suspension compensates Bishop for inability to exercise court-ordered visitation and reflects both parties’ conduct; suspension limited and temporary | Affirmed — suspension from Dec 2015 to Sept 2016 was within court’s discretion given history and lack of visitation |
Key Cases Cited
- Floerchinger v. Floerchinger, 883 N.W.2d 419 (Neb. 2016) (custody determinations reviewed de novo but district court discretion respected)
- Schrag v. Spear, 858 N.W.2d 865 (Neb. 2015) (appellate courts may give weight to trial judge’s witness observations)
- Arens v. NEBCO, Inc., 870 N.W.2d 1 (Neb. 2015) (directed verdict standard)
- Mark J. v. Darla B., 842 N.W.2d 832 (Neb. App. 2014) (court cannot delegate custody/visitation decisions to parties or third parties)
- Deacon v. Deacon, 297 N.W.2d 757 (Neb. 1980) (same principle on nondelegation of visitation authority)
- Griffith v. Drew’s LLC, 860 N.W.2d 749 (Neb. 2015) (erroneous admission in bench trial not reversible if other evidence supports findings)
- Worth v. Kolbeck, 728 N.W.2d 282 (Neb. 2007) (cumulative evidence doctrine)
- Stekr v. Beecham, 869 N.W.2d 347 (Neb. 2015) (child support modification reviewed for abuse of discretion)
- Wilson v. Wilson, 399 N.W.2d 802 (Neb. 1987) (framework for reasonable parenting time schedules)