Opinion
No. A-10-942
02-28-2012
COLT WILLIAM MONINGER, APPELLANT, v. DAWN LACEY ANDREWS, APPELLEE.
Dennis R. Ringgenberg, of Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett & Storm, P.C., for appellant. Brian B. Vakulskas, of Vakulskas Law Firm, P.C., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MONINGER V. ANDREWS
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 Dakota County: WILLIAM BINKARD, Judge. Affirmed.
Dennis R. Ringgenberg, of Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett & Storm, P.C., for appellant.
Brian B. Vakulskas, of Vakulskas Law Firm, P.C., for appellee.
IRWIN, MOORE, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Colt William Moninger appeals from an order of the district court granting the application of Dawn Lacey Andrews (Dawn) to modify custody of the parties' minor child, Isabelle Moninger, and denying Colt's application to move to New Mexico with Isabelle. On appeal, Colt challenges the court's finding that a material change of circumstances had occurred warranting a change in custody and the court's finding that it was in Isabelle's best interests to change custody from Colt to Dawn. Colt also challenges the court's decision to deny his request to move to New Mexico with Isabelle. For the reasons set forth herein, we affirm the district court's decision in its entirety.
II. BACKGROUND
These proceedings involve Isabelle, born in July 2003. Colt is Isabelle's biological father, and Dawn is Isabelle's biological mother. Colt and Dawn have never been married. At the time of Isabelle's birth, both Colt and Dawn were 15 years old and had just finished the eighth grade.
Immediately after Isabelle's birth, Dawn and Isabelle moved in with Colt and his parents, Doug and Johnette Moninger. Doug and Johnette agreed to help raise Isabelle by educating Colt and Dawn concerning parenting issues and by assisting them with caring for Isabelle on a daily basis.
Approximately 1 month after Isabelle's birth, Colt and Dawn's relationship ended. Dawn decided to move back in with her father. She also decided to leave Isabelle with Colt and his parents because she felt the Moningers' home was a better environment than she could provide for Isabelle. When she left the Moningers' home, Dawn was told that she could visit Isabelle any time.
For the first year of Isabelle's life, Dawn visited Isabelle often. However, as time passed, Dawn's visitations with Isabelle dwindled until sometime in 2005 or 2006, when Dawn stopped seeing Isabelle altogether.
After Dawn moved out, Colt continued to live with Isabelle at his parent's home. Although Doug and Johnette assisted Colt with Isabelle's care, Colt changed Isabelle's diapers, bathed her, put her to bed, and played with her. Colt was there for all of Isabelle's milestones.
In September 2005, Colt and Dawn entered into a stipulation concerning custody of Isabelle. They agreed that Colt would maintain physical custody of Isabelle subject to Dawn's visitation, which was to include every other weekend and Wednesday evenings. On September 9, the district court entered an order reflecting the terms of the parties' stipulation and granting Colt custody of Isabelle.
Shortly after the September 2005 order was entered, Colt got married and enlisted in the U.S. Air Force. He has been stationed in Albuquerque, New Mexico, since 2006. After Colt moved to Albuquerque, Isabelle continued to reside with Doug and Johnette in Nebraska. Colt speaks with Isabelle on the telephone often and sees her whenever he is able to return to Nebraska or whenever Johnette is able to bring Isabelle to New Mexico.
After the entry of the September 2005 custody order, Dawn continued to not exercise her visitation time with Isabelle. However, in December 2008, Dawn filed a complaint for modification of the custody order and a request for visitation with Isabelle. In her complaint, Dawn alleged that there had been a material change of circumstances since the entry of the September 2005 custody order in that (1) Isabelle no longer resided with Colt, but instead resided with Doug and Johnette; (2) Dawn was now employed, had recently had another child, and was ready to provide Isabelle with a safe, stable, and comfortable living environment; and (3) Doug and Johnette had refused to allow Dawn to exercise any of her court-ordered visitation for the previous 2 years. Dawn requested that she be granted custody of Isabelle. In addition, she asked that she be granted visitation time with Isabelle during the pendency of the action.
On May 4, 2010, the district court filed a temporary order awarding Dawn visitation with Isabelle. The court ordered that such visitation would take place every Saturday. The court also ordered that the first two Saturday visitations would be supervised, but that after that, Dawn was entitled to unsupervised visitation with Isabelle.
On June 16, 2010, approximately 1 month after Dawn was awarded visitation time with Isabelle, Colt filed an application to relocate to New Mexico with Isabelle. In his application, Colt alleged that he was a senior airman in the U.S. Air Force and was stationed in Albuquerque. He alleged that he believed it was in Isabelle's best interests to move to New Mexico to be with him. In addition, he alleged that his parents were also relocating to New Mexico.
In August 2010, a trial was held on Dawn's request to modify the September 2005 custody order and Colt's request to relocate to New Mexico with Isabelle. At the trial, both Dawn and Colt presented evidence concerning their past and present relationships with Isabelle and their current circumstances.
Dawn testified that she is currently employed full time as a phlebotomist. In addition, she works 1 weekend per month as a part of the Army Reserves. She is engaged to her longtime boyfriend, and they live together in his parent's basement. At the time of the trial, they planned to start building their own home in the spring of 2011. In addition, they planned on marrying in September 2013. Dawn and her boyfriend have a daughter who was born in September 2008. At trial, Dawn was pregnant with their second child and was due to give birth in December 2010.
Dawn admitted that she had previously gone 4 years without seeing Isabelle. She also admitted that during this time, she did not send Isabelle any cards, letters, or gifts. However, Dawn also testified that Colt and his parents hindered her efforts to see Isabelle. She testified that the Moningers would not answer her telephone calls or their door when she rang the doorbell. At one point, she even called the police, but was told that law enforcement would not get involved because it was a "civil matter."
Dawn testified that since May 2010, she has exercised her weekly visitation with Isabelle. She testified that visits were going "good" and that she and Isabelle have fun, but that Isabelle is hesitant with Dawn at the beginning of each visit. Isabelle has hidden from her and clung to the Moningers' necks in order to avoid going on the visitations. Dawn testified that she believes the situation is difficult for Isabelle.
Dawn testified that she believes that Isabelle should stay in Nebraska and live with her. She indicated that if she is awarded custody of Isabelle, she would continue to facilitate a relationship between Isabelle, Colt, and his parents.
Colt testified that he continues to be employed by the U.S. Air Force and to reside in Albuquerque. He testified that he was still married to his wife; however, she moved back to Nebraska in May 2009. She testified that Colt filed for a divorce in April 2010. Colt and his wife have a son, who was born in October 2008. Colt has not seen their son since July 2009. His wife testified that even though Colt has been back in Nebraska on various occasions in the last few years, he has never come to her home to visit their son.
Colt testified that he speaks with Isabelle every day and spends all of his "leave" time with her. Isabelle also comes to visit him a few times a year. In fact, in 2009, Isabelle was enrolled in the first grade in New Mexico and completed part of the school year there before returning to Nebraska with Doug and Johnette. Colt testified that Isabelle is very attached to his parents, especially Johnette, and that Isabelle wants to return to New Mexico when Doug and Johnette move there.
After the trial, the district court entered a detailed order granting Dawn's request to modify custody of Isabelle. The court awarded custody of Isabelle to Dawn subject to Colt's reasonable rights of visitation. The court denied Colt's request to relocate Isabelle to New Mexico.
Colt appeals from the district court's order here.
III. ASSIGNMENTS OF ERROR
Colt alleges that the district court abused its discretion in granting Dawn's application to change custody of Isabelle from Colt to Dawn and in denying his application to move to New Mexico with Isabelle.
IV. ANALYSIS
1. STANDARD OF REVIEW
Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determinations will normally be affirmed absent an abuse of discretion. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007).
A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving the litigant of a substantial right and a just result. Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
2. MODIFICATION OF CUSTODY
Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). On appeal, Colt alleges that the district court erred in modifying the parties' previous custody arrangement. Specifically, he argues that the court erred in finding a material change of circumstances had occurred warranting a change in custody and in finding that it was in Isabelle's best interests to award Dawn custody.
(a) Material Change of Circumstances
The party seeking modification of child custody bears the burden of showing a material change in circumstances. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004). 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.
In her complaint for modification, Dawn alleged that there had been a material change of circumstances since the entry of the September 2005 custody order in that (1) Isabelle no longer resided with Colt, but instead resided with Doug and Johnette; (2) Dawn was now employed, had recently had another child, and was ready to provide Isabelle with a safe, stable, and comfortable living environment; and (3) Doug and Johnette had refused to allow Dawn to exercise any of her court-ordered visitation for the previous 2 years.
In the district court's order, it specifically found that "there has been a substantial and material change in the circumstances surrounding the placement of custody of Isabelle since the court's order of September 9, 2005." However, the court did not explicitly indicate what constituted the material and substantial change in circumstances. The court did iterate the many changes in Isabelle's life since September 2005.
In September 2005, Isabelle resided with Colt and Colt's parents. At that time, Colt took care of Isabelle's daily needs with the assistance of his parents. In 2006, Colt moved to Albuquerque and left Isabelle behind with his parents. At the time of trial in August 2010, Isabelle continued to reside in Nebraska with Doug and Johnette and Colt continued to reside in Albuquerque. It is clear from the record that Doug and Johnette are now solely responsible for Isabelle's daily needs.
In September 2005, Dawn was a high school student who did not spend much, if any, time with Isabelle. Now, Dawn is employed full time, is engaged to be married to her longtime boyfriend, and has another child, with a third child on the way. She has a stable life and is ready and willing to be a parent to Isabelle. She has resumed visitation with Isabelle and has tried very hard to reintegrate herself into Isabelle's life.
Given all of the changes in the parties' lives since September 2005, and especially given Isabelle's new living situation, we cannot say that the district court abused its discretion in finding that there has been a substantial and material change in circumstances since the court's previous order in September 2005.
(b) Best Interests
Next, we turn to whether the material change of circumstances that has occurred since the September 2005 custody order is such that Isabelle's best interests require a change in custody. In its order, the district court found that "it is in the best interests of Isabelle that her care, custody and control be awarded forthwith to [Dawn]." The district court then modified the previous custody order such that Dawn was awarded custody of Isabelle. In awarding custody to Dawn, the district court focused on evidence presented at trial which demonstrated that Colt had been absent from Isabelle's daily life for the previous 4½ years and that Dawn had recently become involved in Isabelle's life again and had demonstrated long-term stability in her personal and professional life.
On appeal, Colt argues that the district court abused its discretion in finding that it is in Isabelle's best interests to grant Dawn custody of Isabelle. Colt asserts that it is in Isabelle's best interests to remain in his custody because Dawn has not been a consistent part of Isabelle's life and because Isabelle is attached to Colt and his parents as her primary caregivers.
When deciding custody issues, the best interests of the minor children are the court's paramount concern. See Hassenstab v. Hassenstab, 6 Neb. App. 13, 570 N.W.2d 368 (1997). The best interests inquiry has its foundation in both statutory and case law. Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585 (2004). Statutory law directs courts to consider the best interests of the minor children in determining custody arrangements and time to be spent with each parent. See Neb. Rev. Stat. § 42-364(1) and (2) (Cum. Supp. 2010).
In determining the best interests of a child, a court can look to the relationship of the child with each parent; the general health, welfare, and social behavior of the child; the moral fitness of the parents; the respective environments each parent offers; the emotional relationship between the child and the parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and the capacity of each parent to provide physical care and to satisfy the needs of the child. See McDougall v. McDougall, 236 Neb. 873, 464 N.W.2d 189 (1991). Consideration of each of these factors requires an understanding of the parents' and the child's history, in addition to an awareness of their current circumstances.
It is clear from the record that Dawn has not been a consistent figure in Isabelle's life. After Isabelle's first year, Dawn stopped visiting Isabelle on a regular basis, and eventually stopped visiting her at all for a 4-year period. While there is conflicting evidence concerning why Dawn was absent from Isabelle's life for such an extended period of time, the parties appear to agree that this absence seriously affected Dawn and Isabelle's relationship. Dawn admitted that when she resumed visits in May 2010, Isabelle was very hesitant with her and seemed afraid to leave the Moningers' home with Dawn. In addition, there was evidence that Isabelle does not refer to Dawn as "mom," even though she understands their relationship.
Despite the current obstacles in Dawn and Isabelle's relationship, Dawn indicated that she is committed to becoming a constant, dependable part of Isabelle's life again. Evidence presented at trial demonstrated that Dawn has a stable personal and professional life and that she is capable of being a parent to Isabelle. Dawn is currently raising her second child and, at the time of trial, was pregnant with her third child. Dawn testified that if she was awarded custody, she would facilitate Isabelle's relationship with Colt and with Colt's parents.
Colt has been a relatively consistent figure in Isabelle's life, in that he helped to provide her daily care for the first 4 years of her life and after that time has had regular contact with her. However, Colt has not been Isabelle's primary caregiver for some time. When he moved to New Mexico in 2006, he left Isabelle behind with his parents. Since that time, Isabelle has been raised by Doug and Johnette. As a result, Isabelle is very attached to Doug and Johnette and they are very attached to her. In fact, during Doug's testimony, he referred to Isabelle as his daughter, and there was other evidence that Isabelle refers to Johnette as "mom-mom."
Despite the length of time that has passed since Colt moved to Albuquerque, he has not made any serious attempts to move Isabelle to live with him; and what little attempts he has made to reunite with Isabelle on a permanent basis always involve his parents moving to Albuquerque with Isabelle to help care for her. In fact, Colt did not file a motion to relocate with Isabelle until June 2010, 1 month after the district court granted Dawn visitation with Isabelle.
In the district court's order, it found that the evidence demonstrated that if Colt retained custody of Isabelle, that it would be his parents, and not Colt, that actually cared for her on a daily basis. Based on our de novo review of the evidence, we agree with the district court's factual finding. Colt has simply not demonstrated that he is ready or able to be a parent to Isabelle at this time. Although Doug and Johnette have taken very good care of Isabelle, they are not Isabelle's biological parents.
Under the parental preference principle, a parent's natural right to the custody of his or her children trumps the interest of strangers to the parent-child relationship and the preferences of the child. Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008). Although the question present in every child custody case is the best interests of the child, a court cannot overlook or disregard that the best interests standard is subject to the overriding recognition that the relationship between parent and child is constitutionally protected. Id. The right of a parent to the care, custody, and management of his or her children is considered one of the most basic rights of man. Id.
Dawn is Isabelle's biological mother. Despite her past shortcomings, Dawn is now ready and willing to be a parent to Isabelle. While we recognize that this is a very difficult situation for Isabelle to be placed in, given her relationship with Dawn and her relationship with Doug and Johnette, we must consider the application of the parental preference principle in making a determination concerning custody of Isabelle.
Given all of the evidence presented and given the tenets of the parental preference principle, we conclude that the district court did not abuse its discretion in finding that it is in Isabelle's best interests to grant custody to Dawn. We affirm the order of the district court modifying the September 2005 custody order by granting custody to Dawn.
3. REMOVAL OF ISABELLE TO NEW MEXICO
In his brief to this court, Colt also argues that the district court erred in failing to allow removal of Isabelle from Nebraska to his current residence in New Mexico. Given our finding above, that the district court did not err in modifying the original custody order to award Dawn custody of Isabelle, we do not reach this assigned error.
V. CONCLUSION
We conclude that the district court did not abuse its discretion in finding that a substantial and material change in circumstances had occurred since the entry of the original custody order in September 2005 or in finding that awarding custody of Isabelle to Dawn is in Isabelle's best interests. Accordingly, we affirm the order of the district court in its entirety.
AFFIRMED.