Ahrens v. Conley

563 N.W.2d 370, 5 Neb. Ct. App. 689, 1997 Neb. App. LEXIS 72
CourtNebraska Court of Appeals
DecidedMay 6, 1997
DocketA-96-1063
StatusPublished
Cited by6 cases

This text of 563 N.W.2d 370 (Ahrens v. Conley) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ahrens v. Conley, 563 N.W.2d 370, 5 Neb. Ct. App. 689, 1997 Neb. App. LEXIS 72 (Neb. Ct. App. 1997).

Opinion

Miller-Lerman, Chief Judge.

Corinne Ahrens appeals from the order of the district court for Hall County which granted, in part, Rodney Conley’s petition for modification of paternity decree. Specifically, Ahrens objects to the portions of the trial court’s order which granted Conley increased visitation and denied Ahrens’ motion for attorney fees. For the reasons recited below, we affirm.

BACKGROUND

The parties have one child, Whitney Ahrens, bom March 15, 1987. An initial order establishing paternity, support, and visitation was entered on November 2, 1988. Visitation by Conley was increased by modification thereto on November 28, 1994.

On June 28, 1996, Conley filed a petition for modification of paternity decree, seeking increased visitation and a modification of child support due to an “on-the-job injury” sustained in December 1995.

Following a hearing on September 12 and 13, 1996, the trial court entered its order on September 16, denying Conley’s request for modification of child support. No appeal has been taken from that portion of the order. The trial court granted Conley’s request for modification of visitation. The trial court increased Conley’s visitation with Whitney by directing that weekend visitation, set for every other weekend of the month, commence at 5:30 p.m. on Friday, rather than at 9 a.m. on Saturday; that Conley be granted visitation with Whitney on Wednesday evenings during the weeks he did not have weekend visitation; and that Conley have 2 weeks’ summer visitation with Whitney commencing with the summer of 1997, with written notice to Ahrens by May 1. Ahrens’ request for attorney fees was denied. Ahrens appealed that part of the order increasing visitation and denying her request for attorney fees.

*691 As noted above, the hearing on Conley’s petition for modification was conducted on September 12 and 13, 1996. Conley and Ahrens testified. Whitney was examined by the court with counsel present on September 13.

Conley testified generally that he is 44 years old and that he is trained in and has worked in the heating and air conditioning area. He was injured on the job in December 1995 and was unable to work until May 1996. During this period of temporary total disability, he was available for increased visitation, but the record indicates none was permitted by Ahrens. He is making plans to become self-employed, and as a result, he expects to have greater control over his work schedule, thereby facilitating increased visitation with Whitney. Conley testified that he has adhered to the visitation awarded him and that Ahrens will not vary the schedule or grant him additional time with Whitney. Conley stated that he and Whitney like to play with their dog; that Whitney has his own bedroom at Conley’s house; that there is a basketball hoop set up for Whitney in Conley’s shop; that Conley and Whitney like to fish, camp, and play catch; and that Conley hopes that Whitney will learn his father’s trade. Conley indicated that he is not satisfied with the court-ordered visitation.

Ahrens testified that she was opposed to increased visitation by Whitney with his father because the visits result in negative behaviors by Whitney upon his return to Ahrens. In this regard, she stated that after visitations with Conley, Whitney is disrespectful, talks back, and punches and kicks walls. Ahrens acknowledged that Whitney and Conley sometimes go to Conley’s mother’s home and that Ahrens does not object to this. Ahrens and Conley live near each other. Ahrens cares for children, including foster children who live in her home, for which she is paid. Ahrens was ambivalent about whether Whitney should speak with the trial judge, although she acknowledged that Whitney’s voice should be heard.

The trial judge examined Whitney with counsel present. In summary, Whitney indicated that he would like more time with Conley.

As noted above, the trial judge increased Conley’s visitation and denied Ahrens’ request for attorney fees. Ahrens appeals.

*692 ASSIGNMENTS OF ERROR

Ahrens assigns as error the trial court’s finding that there was a change of circumstances requiring that visitation be modified and the trial court’s denial of her request for attorney fees.

STANDARD OF REVIEW

An appellate court reviews proceedings for modification of a dissolution decree de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion. Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995); Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994). Issues surrounding children in filiation proceedings are treated, to the extent possible, like those of children bom in wedlock. See, State on behalf of Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580 (1993) (holding that out-of-wedlock child should be supported to same extent and manner as child bom in wedlock); Lancaster v. Brenneis, 227 Neb. 371, 417 N.W.2d 767 (1988) (holding that in filiation proceedings, questions concerning custody and visitation of child are resolved on basis of child’s best interests).

ANALYSIS

Modification.

In its order granting Conley increased visitation, the trial court noted that there had been “a change of circumstances concerning the schedule of [Conley] and the age of the child. Above all the controlling factor is the best interests of the minor child . . . .” Ahrens appeals from these findings.

Ahrens argues that the trial court erred in modifying visitation because there was no material change in circumstances. Ahrens further argues that Conley did not establish that increased visitation with Whitney was in Whitney’s best interests. Ahrens claims that Conley’s evidence shows simply that he was not satisfied with visitation. Ahrens argues that although Whitney is older, this is not good grounds for modification and that the fact that Conley and Whitney enjoy spending time is not a material change in circumstance. Ahrens argues that the fact that Conley will be self-employed suggests that he will have less time available for Whitney rather than more.

*693 In contrast, Conley claims that the evidence shows that his schedule has changed and that Whitney is older and that, taken together, there has been a material change in circumstances. Conley also notes that Whitney’s preferences are relevant. Conley argues that the record taken as a whole shows that increased visitation is in Whitney’s best interests. We agree with Conley that the order of increased visitation is in the best interests of Whitney.

Child visitation rights of a parent are considered and determined in relation to the best interests of the child. Huffman v. Huffman, 236 Neb. 101,

Related

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Nebraska Court of Appeals, 2020
Ritter v. Ritter
2016 ND 16 (North Dakota Supreme Court, 2016)
Young v. Young
2008 ND 55 (North Dakota Supreme Court, 2008)
Boyer v. Heimermann
238 S.W.3d 249 (Court of Appeals of Tennessee, 2007)
Rauch v. Rauch
590 N.W.2d 170 (Nebraska Supreme Court, 1999)

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Bluebook (online)
563 N.W.2d 370, 5 Neb. Ct. App. 689, 1997 Neb. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ahrens-v-conley-nebctapp-1997.