Opinion
No. A-12-351
01-08-2013
Michael Mead, of Law Offices of Whelan, Scherr, Glen, Goding & Mead, P.C., L.L.O., for appellant. J. Bruce Teichman for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Adams County: TERRI S. HARDER, Judge. Affirmed.
Michael Mead, of Law Offices of Whelan, Scherr, Glen, Goding & Mead, P.C., L.L.O., for appellant.
J. Bruce Teichman for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Tyler Leon Jachetta appeals an order of the district court for Adams County, Nebraska, dissolving his marriage to Mintha Lee Jachetta and awarding custody of the parties' minor children to Mintha. On appeal, Tyler challenges the court's custody determination. We find no reversible error, and we affirm.
II. BACKGROUND
The parties' marriage was dissolved by a decree entered on February 27, 2012. The decree included an award of custody of the parties' two minor children to Mintha, established a parenting time schedule, and established Tyler's child support obligation.
The primary subject of the testimony and evidence adduced at trial was custody and the best interests of the children. Each party adduced testimony from numerous witnesses and substantial evidence in support of its claim for custody of the children. Inasmuch as this testimony was largely conflicting and required the trial court to make credibility determinations, and inasmuch as we recognize below that deference may be paid to the trial court in such a circumstance, there is no need to iterate all of the substantial testimony and evidence here.
III. ASSIGNMENTS OF ERROR
Tyler's assignments of error challenge the district court's determination that the children's best interests would be served by awarding custody to Mintha.
IV. ANALYSIS
Tyler asserts on appeal that the district court erred in the weight and credibility given to Mintha's witnesses and evidence. He asserts that the court erred in finding that awarding her custody was in the best interests of the children. He also asserts the witnesses and evidence he adduced demonstrated that he would be the more stable parent and that custody with him would be in the best interests of the children. We find no abuse of discretion by the trial court.
An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006); Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Pohlmann v. Pohlmann, 20 Neb. App. 290, ___ N.W.2d ___ (2012). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, and alimony. See id. An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or its action is clearly against justice, conscience, reason, and evidence. Pohlmann v. Pohlmann, supra; Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005).
When custody of minor children is an issue in a proceeding to dissolve the marriage of the children's parents, child custody is determined by parental fitness and the children's best interests. Marcovitz v. Rodgers, 267 Neb. 456, 675 N.W.2d 134 (2004); Pohlmann v. Pohlmann, supra.
In essence, this is a case where the parties have presented conflicting evidence concerning each other's parenting and decisionmaking abilities. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Id. In fact, in contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court's determination is affirmed or reversed on appeal. Pohlmann v. Pohlmann, supra. See Marcovitz v. Rodgers, supra.
In this case, the bill of exceptions includes approximately 600 pages of testimony and argument. Each party presented substantial evidence concerning the parties' parenting abilities and potential deficiencies. Tyler's arguments on appeal are, essentially, assertions that the trial court erred in its weighing of this evidence and in the credibility determinations that were essential to the court's ultimate custody determination. Indeed, Tyler's brief on appeal consists primarily of witness-by-witness assertions that amount to challenges to credibility and weight to be given to testimony.
Given all of the evidence, our standard of review, and deference to the trial court's observation of the witnesses, we cannot find that the district court abused its discretion in awarding custody of the children to Mintha. There is sufficient evidence in the record to support that decision. We find Tyler's assignments of error to the contrary to be meritless. We affirm the district court's order.
AFFIRMED.