Watkins v. Watkins
285 Neb. 693
| Neb. | 2013Background
- Divorce case awarding joint custody; amended petition sought full custody of Brittni and Cristian.
- Court held trial to modify custody; district court denied modification and dismissed modification claims.
- Statutory framework §43-2933 governs custody when a sex offender resides in the home; cohabitation with Corey (sex offender) triggers presumption against custody unless no significant risk is shown.
- Clayton’s presence and residence changes affected risk analysis; court found no significant risk and maintained no unsupervised contact.
- Parenting-plan modification was not properly before the court because no complaint to modify the parenting plan was filed.
- Court awarded fees; clarified the parenting-plan modification issue was not properly raised before it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cohabitation with a sex offender justifies custody modification | Matt argues Corey’s residence triggers §43-2933(1)(b). | Tonda contends no significant risk and no modification warranted. | No error; modification denied based on no significant risk. |
| Whether Clayton’s presence or past residence justifies modification | Matt asserts risk from Clayton warrants modification. | Court found no current residence with Clayton; no modification warranted. | Not an abuse of discretion; no modification based on Clayton. |
| Whether Tonda’s housing stability warranted modification | Matt claims instability supports modification. | Court found stability not materially changed. | No modification due to lack of material change. |
| Whether the court properly addressed the parenting-plan modification | Matt claims court should modify parenting plan. | No complaint to modify parenting plan; issue not properly before court. | Correct; parenting-plan modification not properly before district court. |
Key Cases Cited
- Latham v. Schwerdtfeger, 282 Neb. 121 (Neb. 2011) (custody decisions reviewed for abuse of discretion; de novo standard on record)
- Davis v. Davis, 275 Neb. 944 (Neb. 2008) (abuse of discretion standard in custody cases)
- Blaser v. County of Madison, 285 Neb. 290 (Neb. 2013) (statutory plain meaning; interpretive framework for statutes)
- Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291 (Neb. 2012) (plain meaning of statute governs)
- Zahl v. Zahl, 273 Neb. 1043 (Neb. 2007) (due process concerns when questions not pleaded are decided)