Brandl v. Brandl

251 N.W.2d 155, 197 Neb. 778, 1977 Neb. LEXIS 1095

• Court: Nebraska Supreme Court
• Decided: March 2, 1977
• Docket: No. 40795
• Status: Published

Opinions

Clinton, J.

This is an appeal by the petitioner wife from an order of the District Court for Madison County modifying a previous order concerning child custody entered in an action for dissolution of marriage. By the order of modification the court awarded physical custody of the parties’ only child to the respondent husband ánnually during the period September 1st to May 31st and to the petitioner wife for the remainder of the year.

The question which is determinative of this appeal is whether the court in entering the order of modification was entitled to act summarily under the doctrine of Benson v. Benson, 190 Neb. 87, 206 N. W. 2d 51, or whether it should have acted after hearing and receipt of competent evidence in accordance with the doctrine laid down in the line of cases of which Erpelding v. Erpelding, 176 Neb. 266, 125 N. W. 2d 688, is one. Since those cases were decided, sections 42-347 to 42-379, R. R. S. 1943, have been enacted and former statutes repealed.

A summary of the procedural history of this case is useful. After 7 days of trial between April 15, 1975, and May 5, 1975, the court, on May 5, 1975, entered a decree of dissolution. On September 11, 1975, oral argument was heard and the court entered an order which, insofar as it is pertinent to the matter in issue on this appeal, was as follows: “The legal custody of Chris Brandi, the child of the parties, should be awarded to the Chief Probation Officer of the Second Probation District with the following directions.” The order then gave physical custody of the child to the wife for the period September 20, 1975, to March 1, 1976, and to the husband for the period March 1st to September 1st; thereafter alternating custody each 6 months. The order also provided that: “The legal custodian shall supervise both the petitioner and respondent and call to the attention of the court any acts of either inimical to the child’s best interests.”

On September 22, 1975, the husband filed an application for modification of the custody order in which he requested that he have physical custody from September 1st to May 31st and the wife have physical custody June 1st to August 31st each year.

On September 25, 1975, the wife filed a motion to strike the application to modify, alleging that there had been no change of circumstances since the original order. On October 17, 1975, a hearing, of sorts, was held. The motion to strike was overruled. The wife asked for time to file an answer to the application to modify. This was denied and the court entered the order from which, after the overruling of a motion for a new trial, this appeal was taken.

At the hearing of October 17, 1975, the husband offered an instrument entitled affidavit. No objection was made and it was received. The affidavit is unexecuted both as to signature and jurat. Another affidavit, identical as to contents but executed, is contained in a supplemental transcript. Even if this were to be considered competent evidence because unobjected to, it cannot be considered by us because it is not included in the bill of exceptions which consists simply of a short colloquy between the court and counsel and the unexecuted affidavit. The record of the earlier trial is not included in any bill of exceptions and we, of course, are in no position to make any judgment on the merits.

So far as we can determine from the scanty record before us, this case is unlike Benson v. Benson, supra, where the court itself retained custody of the children and where the case history justified summary action in the best interests of the children. Here the court appears to have been acting on a party’s motion to modify. It denied the party opponent an opportunity to respond. It acted upon incompetent evidence.

Section 42-364, R. S. Supp., 1974, provides: “When dissolution of a marriage or legal separation is decreed, the court may include such orders in relation to any minor children and their maintenance as shall be justified, including placing the minor children in court custody if their welfare so requires. Custody and visitation of minor children shall be determined on the basis of their best interests. Subsequent changes may be made by the court when required after notice and hearing.” Section • 42-356, R. R. S. 1943, provides: “Hearings shall be held in open court upon the oral testimony of witnesses or upon the depositions of such witnesses taken as in other actions. The court may in its discretion close the hearing and may restrict the availability of the evidence or bill of exceptions.” Under the provisions of section 42-357, R. S. Supp., 1974, the court, during the pendency of the action, is authorized to enter ex parte orders related to several matters, including “(3) determining the temporary custody of any minor children of the marriage.”

In the case before us the court itself did not retain custody in the order which it later modified, but placed that custody in a third person, the probation officer. Benson v. Benson, supra, appears not to be applicable in this instance. It is also clear that the court was not entering a temporary order.

As noted above, we express no view on the merits, but decide only the procedural questions presented. Since much time has elapsed since October 17, 1975, it is apparent that any order which is to be hereafter entered must depend upon the best interests of the child as indicated by current conditions as shown by competent evidence.

The cause is remanded for such further proceedings as either of the parties shall care to initiate. Each party shall pay his own costs in this court.

Remanded for further proceedings.