Watkins v. Watkins , 285 Neb. 693 ( 2013 )

Nebraska Advance Sheets
WATKINS v. WATKINS 693
Cite as 285 Neb. 693Tonda Sue Watkins, appellee, v.
Matt Daniel Watkins, appellant.
___ N.W.2d ___
Filed April 19, 2013. No. S-12-167.
1. Child Custody: Appeal and Error. Child custody determinations are matters ini-
tially entrusted to the discretion of the trial court, and although reviewed de novo
on the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court bases its decision upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
4. Child Custody. Ordinarily, custody of a minor child will not be modified unless
there has been a material change in circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such action.
5. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
6. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of
a statute, an appellate court must determine and give effect to the purpose and
intent of the Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
7. Statutes. If the language of a statute is clear, the words of such statute are the
end of any judicial inquiry regarding its meaning.
8. Child Custody: Convicted Sex Offender: Modification of Decree. Pursuant
to the plain language of Neb. Rev. Stat. § 43-2933(1)(b) and (3) (Reissue 2008),
when a person involved in a custody dispute is residing with someone who is
required to register as a sex offender under the Sex Offender Registration Act
as a result of a felony conviction in which the victim was a minor or as a result
of an offense that would make it contrary to the best interests of the child if the
person had custody, such cohabitation development shall be deemed a change in
circumstances sufficient to modify a previous custody order, unless the trial court
finds that there is no significant risk to the child and states its reasons in writing
or on the record.
9. Pleadings: Due Process. A court’s determination of questions raised by the
facts, but not presented in the pleadings, should not come at the expense of
due process.
Appeal from the District Court for Otoe County: Randall L.
R ehmeier, Judge. Affirmed.
Nebraska Advance Sheets
694 285 NEBRASKA REPORTS
Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
L.L.O., for appellant.
Mindy Rush Chipman, of Rush Chipman Law Office, P.C.,
L.L.O., guardian ad litem.
No appearance for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
P er Curiam.
NATURE OF CASE
Tonda Sue Watkins and Matt Daniel Watkins were divorced
in March 2005. According to the decree of dissolution of
their marriage, Tonda and Matt were awarded joint legal and
physical custody of their minor children, Brittni Watkins and
Cristian Watkins. Pursuant to the decree, the children reside
with Tonda for one-half of each week and with Matt for
one-half of each week. In June 2011, Matt filed an amended
complaint to modify the decree, seeking full custody of the
children. After a bench trial, the district court filed an order in
which it found in favor of Tonda and against Matt, declined to
modify the parenting plan, and dismissed the complaint.
Matt appeals, claiming that the district court erred when it
denied his request to modify custody. Because we do not find
error, we affirm the district court’s denial of Matt’s request for
modification of custody.
The attorney for the minor children claims in her appel-
late brief that the district court erred when it determined that
the issue of modifying the parenting plan was not before it.
Because the district court did not err in this ruling, we affirm.
STATEMENT OF FACTS
Tonda and Matt were married on February 25, 1996.
They have three children together: Ashley Watkins, born in
August 1992; Brittni, born in October 1999; and Cristian,
born in August 2001. Tonda and Matt were divorced in 2005.
The decree of dissolution of marriage awarded joint legal
and physical custody of the children to Tonda and Matt;
Nebraska Advance Sheets
WATKINS v. WATKINS 695
Cite as 285 Neb. 693it further provided that Tonda and Matt are to have equal
time with the children. The decree did not award child sup-
port to either Tonda or Matt. Since the entry of the decree,
Ashley has become emancipated, and therefore is not legally
affected by this case. Generally, Brittni and Cristian reside
Sunday morning through Wednesday evening with Tonda and
Wednesday evening through Sunday morning with Matt. This
case involves Matt’s attempt to modify the decree so that Matt
has full custody of Brittni and Cristian. After a bench trial,
the district court denied Matt’s request to modify the custody
arrangement set forth in the decree and dismissed the com-
plaint for modification.
This case is somewhat complicated by the intertwining
relationships of the persons involved. Tonda is in a relation-
ship and residing with Corey Neumeister. At the time of trial,
Tonda and Corey had been living together for approximately
11⁄2 years. Matt is residing with his wife, Victoria Watkins,
formerly Victoria Neumeister. At the time of trial, Matt and
Victoria had been married for approximately 11⁄2 years, and
they have one child together, Braydon Watkins, who was 4
years old at the time of trial. Victoria was previously mar-
ried to Corey, but they are now divorced. While they were
married, Victoria and Corey had two children together: Joss
Neumeister, who was 7 years old at the time of trial, and
Conner Neumeister, who was 5 years old at the time of trial.
Corey is also the father of Clayton Neumeister, who was 10
years old at the time of trial.
Matt lives in a house near Nebraska City, Nebraska, with
Victoria, Joss, Conner, and Braydon, and with Brittni and
Cristian from Wednesday evening to Sunday morning. Tonda
lives in a house in the Nebraska City area with Corey, and with
Brittni and Cristian from Sunday morning through Wednesday
evening. Joss and Conner visit Tonda and Corey’s house on
Tuesdays and Thursdays and every other weekend. Clayton
was living with Tonda and Corey at the beginning of the
modification proceedings in this case; however, at the time
of trial, Clayton was living with his maternal grandparents
in Plattsmouth, Nebraska. There was considerable testimony
regarding Clayton’s behavioral issues.
Nebraska Advance Sheets
696 285 NEBRASKA REPORTS
On June 1, 2011, Matt filed an amended complaint to
modify the decree of dissolution of Tonda and Matt’s mar-
riage, seeking full custody of Brittni and Cristian. Matt alleged
that since the decree was entered, a material change occurred
affecting the welfare and best interests of Brittni and Cristian
in three respects: (1) Tonda was cohabitating with Corey, a
registered sex offender; (2) Corey’s son Clayton was under
the jurisdiction of the juvenile system and posed a threat to
the other members of the household, including Brittni and
Cristian; and (3) Tonda had been evicted from various resi-
dences and was unable to provide the necessary level of sta-
bility for Brittni and Cristian to remain in her custody. Tonda
denied these allegations in her answer to the amended com-
plaint to modify. Tonda had also filed a cross-complaint which
was later dismissed.
On June 27, 2011, the district court filed an order grant-
ing temporary relief in response to Matt’s amended com-
plaint requesting temporary relief. The court ordered that
Corey’s son Clayton shall not be present during any parenting
time exercised by Tonda with Brittni and Cristian. The court
overruled Matt’s request that Corey not be present during
Tonda’s parenting time; the court found “no significant risk
involving Brittni and Cristian residing in the same household
with [Corey].”
A 2-day bench trial was held on November 30, 2011, and
January 20, 2012, where testimony was heard and evidence
was offered and received. After trial, the district court filed an
order on February 6, described in greater detail in our analy-
sis. The court found in favor of Tonda and against Matt on
the issue of Matt’s seeking full custody of Brittni and Cristian
and dismissed the complaint. The court also found in favor of
Tonda and against Matt with respect to restrictions on Corey’s
and Clayton’s contact with Brittni and Cristian, and ordered
that the current restrictions are to apply until further order of
the court upon modification proceedings.
With respect to Corey, the court recognized in its order that
Corey is a registered sex offender and that Neb. Rev. Stat.
§ 43-2933(1)(b) (Reissue 2008) provides:
Nebraska Advance Sheets
WATKINS v. WATKINS 697
Cite as 285 Neb. 693No person shall be granted custody of, or unsupervised
parenting time, visitation, or other access with, a child
if anyone residing in the person’s household is required
to register as a sex offender under the Sex Offender
Registration Act as a result of a felony conviction in
which the victim was a minor or for an offense that would
make it contrary to the best interests of the child for such
access unless the court finds that there is no significant
risk to the child and states its reasons in writing or on
the record.
The district court followed this statute, stated extensive reasons
in writing as to why there was not a significant risk to Brittni
and Cristian, and concluded that
based on the evidence for the reasons herein stated, it
does not appear that there is a significant risk involving
either Brittni . . . or Cristian . . . to be in the same house-
hold with [Corey], provided, as agreed to by [Tonda], that
there be no unsupervised contact between Brittni . . . or
Cristian . . . and [Corey].
With respect to Clayton, the court determined that it appears
that Clayton does present some level of risk to Brittni and
Cristian. However, the court recognized that Clayton no longer
resides with Tonda and Corey. The court found,
based upon the concerns and apparent risk[,] that there
should be no contact between Brittni . . . and Cristian . . .
and Clayton . . . at this time. In the event that [Tonda]
continues to reside with [Corey] and/or they get married,
if at some point it is the intention to have Clayton return
home, a modification order will be necessary to modify
this no-contact provision.
The court further determined in its order that the issue of
changing the parenting plan, from splitting the week between
Tonda and Matt to a week-to-week schedule, was not prop-
erly before it. The court noted that Matt clearly testified
that if the court determined that Matt was not awarded sole
custody, he was not requesting and did not want the current
parenting time to be modified or changed. The court further
stated that Tonda was not requesting any such relief through
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698 285 NEBRASKA REPORTS
a pending counter-complaint. Accordingly, the court did not
address changing the parenting time schedule.
The court awarded attorney fees to the attorney representing
Brittni and Cristian, with Tonda and Matt each being respon-
sible for half of said fees. Tonda and Matt were ordered to pay
their own attorney fees.
ASSIGNMENTS OF ERROR
Matt appeals and claims generally that the district court
erred when it denied his amended complaint to modify custody
and dismissed his complaint.
The attorney for the minor children contends in her appellate
brief that the district court erred when it found that the issue of
modifying the parenting plan and the parenting time schedule
was not properly before it.
STANDARD OF REVIEW
[1,2] 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 determina-
tion will normally be affirmed absent an abuse of discretion.
See Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66(2011). An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, rea-
son, and evidence. Davis v. Davis, 275 Neb. 944, 750 N.W.2d
696 (2008).
[3] Statutory interpretation presents a question of law,
which we review independently of the lower court’s determi-
nation. Jeremiah J. v. Dakota D., 285 Neb. 211, 826 N.W.2d
242 (2013).
ANALYSIS
The District Court Did Not Err When
It Denied Custody Modification.
The decree awarded joint legal and physical custody of
Brittni and Cristian to Tonda and Matt. Matt claims for a
variety of reasons that the district court erred when it denied
his amended complaint to modify in which he sought full
custody. Relying on § 43-2933(1)(b) and (3), Matt primarily
Nebraska Advance Sheets
WATKINS v. WATKINS 699
Cite as 285 Neb. 693argues that Tonda’s cohabitation with Corey, a registered sex
offender, warrants a modification of custody. We determine
that the district court did not err when it determined that there
is no significant risk to the children and denied modification
of custody on this basis. Matt also contends that custody of
Brittni and Cristian should have been modified due to (1) the
presence of Clayton in Tonda’s home and (2) Tonda’s failure to
maintain a stable residence. We find no merit to these assign-
ments of error.
[4] 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 determina-
tion will normally be affirmed absent an abuse of discretion.
Latham v. Schwerdtfeger, supra. Ordinarily, custody of a minor
child will not be modified unless there has been a material
change in circumstances showing that the custodial parent is
unfit or that the best interests of the child require such action.
Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004).
These principles apply to the issues involving Clayton and
the stability of Tonda’s home. However, Matt’s assignment of
error based on the fact of Corey’s presence in Tonda’s home as
grounds for modification must also be analyzed under the stat-
utory framework found in § 43-2933 relating to a sex offender
residing in the home.
In June 2011, Matt filed an amended complaint to modify
custody, primarily because Tonda is cohabitating with Corey,
who is a registered sex offender. Matt contends that pursu-
ant to § 43-2933, Tonda should not have custody of Brittni
and Cristian and, instead, he should have full custody of
the children.
Section 43-2933(1)(b) provides:
No person shall be granted custody of, or unsupervised
parenting time, visitation, or other access with, a child
if anyone residing in the person’s household is required
to register as a sex offender under the Sex Offender
Registration Act as a result of a felony conviction in
which the victim was a minor or for an offense that would
make it contrary to the best interests of the child for such
access unless the court finds that there is no significant
Nebraska Advance Sheets
700 285 NEBRASKA REPORTS
risk to the child and states its reasons in writing or on
the record.
Section 43-2933(3) provides that “[a] change in circumstances
relating to [the above-quoted] section is sufficient grounds for
modification of a previous order.”
[5-7] We have not previously interpreted § 43-2933. Statutory
language is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous. Blaser v. County of Madison, 285 Neb. 290, 826
N.W.2d 554 (2013). In discerning the meaning of a statute,
we must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language of
the statute considered in its plain, ordinary, and popular sense.
Id. If the language of a statute is clear, the words of such stat-
ute are the end of any judicial inquiry regarding its meaning.
Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291,
818 N.W.2d 600 (2012).
[8] Pursuant to the plain language of § 43-2933(1)(b) and
(3), when a person involved in a custody dispute is residing
with someone who is required to register as a sex offender
under the Sex Offender Registration Act as a result of a felony
conviction in which the victim was a minor or as a result of
an offense that would make it contrary to the best interests of
the child if the person had custody, such cohabitation develop-
ment shall be deemed a change in circumstances sufficient to
modify a previous custody order, unless the court finds that
there is no significant risk to the child and states its reasons in
writing or on the record. Thus, in applying § 43-2933, a dis-
trict court must first determine whether there is an individual
residing in the household who is required to register under the
Sex Offender Registration Act and, if so, whether the offense
triggering the registration requirement is due to a felony con-
viction in which the victim was a minor, whether the offense
triggering the registration would make it contrary to the best
interests of the child whose custody is at issue, or whether
the offense does not meet either of these two descriptions. If
the district court finds the offense to be a felony involving a
minor victim or an offense contrary to the best interests of the
Nebraska Advance Sheets
WATKINS v. WATKINS 701
Cite as 285 Neb. 693child, § 43-2933(1)(b), there is a statutorily deemed change of
circumstances, § 43-2933(3), and custody shall not be granted
to the person who resides with the sex offender unless there is
a finding by the district court that the circumstances present no
significant risk. In sum, taken together, § 43-2933(1)(b) and (3)
create a statutory presumption against custody being awarded
to the person residing with a sex offender who committed the
described offenses, but the presumption can be overcome by
evidence. The foregoing analysis applies to this case, and the
district court followed this framework.
In this case, the evidence shows that subsequent to the
decree, Tonda resided with Corey, a registered sex offender.
At the time of trial, Tonda had resided with Corey for approxi-
mately 11⁄2 years and Corey was in his ninth year of a 15-year
registration. The record shows that the offense triggering reg-
istration was based on Corey’s having pleaded guilty to the
misdemeanor of attempted rape of a 14-year-old girl when he
was 21 years old. Corey’s requirement that he register as a sex
offender is not the result of a felony conviction in which the
victim was a minor; however, in its order, the district court
implicitly found that Corey is required to register as a sex
offender because of an offense that would make it contrary to
the best interests of the children if Tonda was allowed custody
of, visitation with, or other access to the children. We find no
error with respect to this finding. Because Matt established
that Tonda resided with a sex offender, the statute provides
that a change of circumstances sufficient for modification has
occurred, and it is presumed under the statute that Tonda may
not have custody, unsupervised parenting time, visitation, or
other access to Brittni and Cristian. As we have noted, this pre-
sumption can be overcome if the district court finds, based on
the evidence, that there is no significant risk to the children and
states its reasons in writing or on the record, § 43-2933(1)(b).
In this case, the district court did so find and stated its reasons
in writing.
The district court stated in its order that there was no evi-
dence that Corey had any incidents involving inappropriate
sexual contact other than the offense that occurred approxi-
mately 10 years prior that resulted in Corey’s being required to
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702 285 NEBRASKA REPORTS
register as a sex offender. The court also stated in its order that
Victoria, who was previously married to Corey, was aware of
Corey’s conviction prior to their marriage. The court noted that
Victoria and Corey had two children together and that Corey
has visitation with those children.
The district court noted the parties’ oldest child, Ashley,
who was emancipated at the time of trial, testified that when
she lived with Tonda and Corey, she did not have any issues
or problems with Corey, and that Corey had made no inap-
propriate advances toward her. Ashley testified that she had
no concerns about Corey. The district court noted Brittni tes-
tified that she generally likes Corey and that Corey has not
done or suggested anything inappropriate to her. The district
court noted that Tonda testified that she has not witnessed any
inappropriate contact or language between Corey and Brittni
or Cristian. The district court noted Tonda testified that she
had not allowed unsupervised contact between Corey and the
children and that she would not allow unsupervised contact in
the future.
Based on these facts, the district court found that there is
not a significant risk involving Brittni or Cristian being in the
same household as Corey, and ordered that there continue to
be no unsupervised contact between Brittni or Cristian and
Corey. Thus, although there is a statutory presumption that
Tonda would not have custody, unsupervised parenting time,
visitation, or other access to Brittni and Cristian due to Corey’s
presence in Tonda’s household, the district court provided suf-
ficient reasons supported by the record that Brittni and Cristian
were not at significant risk and that the best interests of Brittni
and Cristian did not require modification. We believe that the
district court made a thorough and careful evaluation of the
evidence and did not abuse its discretion in reaching its conclu-
sion. Upon our de novo review, we determine that the district
court did not err when it denied Matt’s request for a modifica-
tion of custody on this basis.
Matt also asserts that Corey’s son Clayton would pose a
risk to Brittni and Cristian if Clayton returned to reside in
Tonda and Corey’s home and that the district court erred when
Nebraska Advance Sheets
WATKINS v. WATKINS 703
Cite as 285 Neb. 693it denied his request for modification on this basis. When the
modification proceedings began, Clayton was residing in Tonda
and Corey’s home. However, at the time of trial, Clayton was
a ward of the state and had been removed from Tonda and
Corey’s home.
In its ruling, the district court determined that there was a
potential risk posed by Clayton to Brittni and Cristian, and
ordered that there should be no contact between Clayton and
Brittni or Cristian. The district court further ordered that if
Tonda and Corey intend to have Clayton live in their home in
the future, a modification proceeding should be filed because
an order would be necessary to modify this no-contact provi-
sion. Based on the fact that Clayton is not currently residing
with Tonda and Corey, there has not been a material change
in circumstances warranting modification of custody, and the
district court did not err when it denied Matt’s request for
modification on this basis.
Matt further argues that he should have full custody of
Brittni and Cristian because Tonda is unable to provide them
with the proper level of stability. Matt points to the fact that
Tonda has changed residences eight times since Tonda and
Matt were divorced in 2005 and that several of her changes
in residence were the result of eviction proceedings. The
record indicates that Tonda had failed to pay rent and failed
to properly maintain some of the rental properties in which
she resided.
With regard to the level of stability Tonda can provide to
the children, the district court stated that although the evidence
creates some concern, it is not sufficient to establish a material
change of circumstances warranting a change of custody. Upon
our de novo review of the record, we determine that the district
court did not abuse its discretion in making this determination
and denying a change of custody on this basis.
Having considered the record and the bases asserted by
Matt to support his request to change from joint to full cus-
tody in his favor, we cannot say that the district court erred
when it denied the request and dismissed Matt’s complaint to
modify custody.
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704 285 NEBRASKA REPORTS
The Issue of Modifying the Parenting
Plan Was Not Properly Before
the District Court.
The attorney for the children contends in her appellate brief
that the district court erred when it determined that modifi-
cation of the parenting plan was not before it. The attorney
for the children contends that she had standing to assert this
error based on various rationales, including Neb. Rev. Stat.
§ 42-358(6) (Reissue 2008), which provides that “[a]ny person
aggrieved by a determination of the court may appeal such
decision . . . .” Because the substance of the error asserted by
the attorney for the children is wholly without merit, we need
not resolve the standing issue.
Neb. Rev. Stat. § 42-364(6) (Cum. Supp. 2012) pertains to
modifications of parenting plans and requires that “[p]roceed-
ings to modify a parenting plan shall be commenced by filing a
complaint to modify” and states that such actions are governed
by the Parenting Act. In this case, no complaint to modify the
parenting plan was filed, and therefore, the issue of modify-
ing the parenting plan was not properly raised before the dis-
trict court.
For completeness, we note that Matt testified that if the
custody issue he raised was not determined in his favor, he
did not want the parenting plan to be modified. In his appel-
late brief, Matt asserts that he was not given notice, that he
was not prepared to resist modification of the parenting plan at
the hearing, and that if he had been made aware that the issue
would be considered by the court, he may have presented addi-
tional evidence.
[9] This situation bears a similarity to Zahl v. Zahl, 273
Neb. 1043, 736 N.W.2d 365 (2007). In Zahl, we held in the
context of a marital dissolution action, that due process was
violated when the trial court sua sponte awarded joint custody
when neither of the parties had requested joint custody and did
not have notice that joint custody would be an issue before
the court. See, also, State ex rel. Amanda M. v. Justin T., 279
Neb. 273, 777 N.W.2d 565 (2010) (extending holding in Zahl
to paternity case where neither party requested joint custody).
In Zahl, we stated that a “court’s determination of questions
Nebraska Advance Sheets
LOZIER CORP. v. DOUGLAS CTY. BD. OF EQUAL. 705
Cite as 285 Neb. 705raised by the facts, but not presented in the pleadings, should
not come at the expense of due process.” 273 Neb. at 1053,
736 N.W.2d at 373.
In the present case, the amended complaint filed by Matt
sought to modify custody and to award full custody to him.
Although Brittni and Cristian expressed a preference during
the custody hearing for a schedule in which they would stay
with their parents by alternating 1 week at a time, no com-
plaint to modify the parenting plan to this or other effect was
filed. See § 42-364(6). The district court correctly observed
that the issue of modifying the parenting plan was not properly
before it.
CONCLUSION
The district court did not err when it denied Matt’s amended
complaint to modify custody, in which he sought full custody
of the children. Furthermore, the district court did not err when
it observed that the issue of modifying the parenting plan was
not properly before it. Thus, we affirm.
Affirmed.
Miller-Lerman, J., participating on briefs.
Lozier Corporation, appellant, v. Douglas County
Board of Equalization, appellee.
___ N.W.2d ___
Filed April 19, 2013. Nos. S-12-322 through S-12-324.
1. Taxation: Judgments: Appeal and Error. An appellate court reviews decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, an appellate court’s inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is not arbitrary, capricious,
or unreasonable.
3. Taxation: Appeal and Error. An appellate court reviews questions of law aris-
ing during appellate review of decisions by the Tax Equalization and Review
Commission de novo on the record.
4. Taxation: Statutes. The plain language of Neb. Rev. Stat. § 77-5013(2) (Cum.
Supp. 2012) focuses on whether a mailing is properly placed in the mail, rather
than on whether the Tax Equalization and Review Commission receives it.