Smith v. Smith

386 N.W.2d 873, 222 Neb. 752, 1986 Neb. LEXIS 966
CourtNebraska Supreme Court
DecidedMay 16, 1986
Docket85-604
StatusPublished
Cited by13 cases

This text of 386 N.W.2d 873 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Smith, 386 N.W.2d 873, 222 Neb. 752, 1986 Neb. LEXIS 966 (Neb. 1986).

Opinion

Shanahan, J.

Janet K. Smith appeals an order of the separate juvenile court of Douglas County denying Janet’s request for an attorney fee and requiring Janet to pay part of a guardian ad litem fee and, also, granting her former husband, Joseph, biweekly supervised visitation with Smiths’ child.

On May 17, 1984, the district court for Douglas County entered a decree dissolving the marriage of Joseph and Janet. The decree granted Janet custody of their child, Jerry, age 11 years, and visitation rights to Joseph on the condition that Joseph and Jerry undergo psychiatric treatment. The dissolution decree also ordered Joseph to pay $200 a month as child support, $150 per month as alimony, and $500 as attorney fees. As part of Smiths’ property division, Janet received the parties’ marital dwelling, an equal share in a $63,000 joint bank *753 account, and various items of personal property. Joseph is an employee of the state Department of Roads and earns approximately $20,000 a year. Janet delivers phone books, which accounts for a yearly income of $3,000.

After the decree was entered Janet “actively discourage[d]” Jerry from visiting with his father, thus preventing Joseph from exercising his decreed right of visitation. On September 20, 1984, the district court, on its own motion, appointed a guardian ad litem for Jerry. Joseph subsequently sought enforcement of the decree, and, on December 24, 1984, the district court entered an order requiring Janet to “cooperate in providing [Joseph] reasonable visitation with [Jerry].” As a result of continuing problems with visitation, the guardian ad litem, on January 22,1985, filed a motion to transfer the case to the Douglas County Separate Juvenile Court, which motion was granted by the district court. See Neb. Rev. Stat. § 43-2,113 (Reissue 1984) (district court may, “with the consent of the juvenile judge,” transfer matters “arising under the provisions of Chapter 42, article 3, when the care, support, custody, or control of minor children under the age of eighteen years is involved”).

On March 15, 1985, the juvenile court heard arguments regarding Joseph’s alleged failure to pay the previously decreed alimony and attorney fee and Janet’s failure to cooperate in Joseph’s visitation of Jerry and to deliver personal property awarded to Joseph. Joseph and Janet also bickered over payment of the guardian ad litem fee and Janet’s request that Joseph pay an additional attorney fee. During proceedings before the juvenile court, Janet testified Joseph had beaten Jerry on numerous occasions and that Jerry was, as a result, afraid of being near his father. The guardian ad litem, however, noted only one incident where the father had allegedly struck the boy, and testified:

Well, your Honor, from all the conversations I have had with people related to Jerry, it is also my opinion that he is probably too scared to visit with his father right now and I believe that is through no fault of the father. That is from all the research that I have done. I see nothing in the father’s behavior that justifies this fear and it’s my *754 considered opinion from all the talking that I have done to all of the various people involved that this fear of the father comes from his mother because she is afraid of him and she conveys that fear to Jerry and he has learned that fear from her.

In a separate report the guardian ad litem noted that Joseph was “very sad at the loss of communication with his son.” The juvenile court also obtained services of a psychiatrist to examine Jerry and make recommendations regarding visitation. The psychiatrist observed that Jerry was “afraid of his father” and did not want “any visitation,” and recommended that, if instituted, visitation should “be for a short period in a neutral environment under supervision.” The juvenile court never interviewed Jerry or received testimony from Jerry regarding his desire to visit his father.

On July 9, 1985, the juvenile court ordered payment of a guardian ad litem fee of $840, requiring Janet to pay $240 of that fee; denied Janet’s request for an additional attorney fee; and granted Joseph visitation of Jerry every other Sunday from 10:30 a.m. to 12 noon at the Hanscom Park United Methodist Church, under the supervision of two adults.

Janet first claims the juvenile court erred in ordering her to pay $240 of the guardian ad litem fee and in denying Janet’s request for an additional attorney fee.

Initially, awarding an attorney fee in matters pertaining to marital dissolution is discretionary with a trial court and may depend on a variety of factors, including the amount of property divided and alimony granted, earning capacity of the parties, and general equities of each situation. See Brown v. Brown, 199 Neb. 394, 259 N.W.2d 24 (1977). “[T]he awarding of attorney fees in marriage dissolution cases [is a matter] initially entrusted to the sound discretion of the trial judge, which [matter], on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge’s discretion.” Guggenmos v. Guggenmos, 218 Neb. 746, 748-49, 359 N.W.2d 87, 90 (1984). The allowance, amount, and allocation of a guardian ad litem fee is also a matter within the initial discretion of a trial court, involves consideration of the equities and circumstances of each particular case, and will not *755 be set aside on appeal in the absence of an abuse of discretion by the trial court. See, Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983); Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961); cf. Guggenmos v. Guggenmos, supra.

Viewing the equities in this case, we note that, notwithstanding disparity in the parties’ earning capacity, Janet received a suitable property division under the decree and was granted alimony and child support. Services of the guardian ad litem and additional services by Janet’s attorney were prompted, to a great extent, by Janet’s own conduct in disrupting Joseph’s visitation. Under the circumstances of this case, the juvenile court did not abuse its discretion in denying Janet’s claim for an additional attorney fee and by requiring Janet to pay a portion of the guardian ad litem fee.

Janet also claims evidence does not show the ordered visitation is in the best interests of Jerry. Specifically, Janet maintains that, as a result of Jerry’s fear of his father, any visitation with his father is detrimental to Jerry’s well-being.

In Koch v. Koch, 219 Neb. 195, 196-97, 361 N.W.2d 548, 549 (1985), this court recently enunciated the rule governing visitation rights of a parent:

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Bluebook (online)
386 N.W.2d 873, 222 Neb. 752, 1986 Neb. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-neb-1986.