Tautfest v. Tautfest

338 N.W.2d 49, 215 Neb. 233, 1983 Neb. LEXIS 1250
CourtNebraska Supreme Court
DecidedAugust 26, 1983
Docket82-440
StatusPublished
Cited by7 cases

This text of 338 N.W.2d 49 (Tautfest v. Tautfest) 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
Tautfest v. Tautfest, 338 N.W.2d 49, 215 Neb. 233, 1983 Neb. LEXIS 1250 (Neb. 1983).

Opinions

Colwell, D.J.,

Retired.

Robert Wayne Tautfest, petitioner, appeals a child custody modification order awarding physical custody of his daughter, Amy Jo Tautfest, born March 10, 1978, to Henry and Judy Lambert, maternal grandparents. The original decree of October 8, 1979, awarded custody to the mother, Nancy Kay Tautfest, respondent-appellee.

A summary of the pleadings is necessary. On October 30, 1980, Robert filed his application for custody of Amy, alleging that she was in the custody and care of Henry and Judy Lambert, that there were changed circumstances of both parents, and that the best interests of Amy required awarding her custody to Robert. The prayer was for permanent custody. Robert served notice on Nancy and on Henry and Judy Lambert. Nancy’s answer denied the allegations and alleged that Robert was unfit, that Nancy and Amy lived with Nancy’s parents, Henry and Judy Lambert, and that for Amy’s best interests she should remain in that living environment. Nancy and the Lamberts filed their joint counterapplication alleging that Robert was unfit, that Nancy and Amy have lived in the Lambert home for an extended period, and that for Amy’s [235]*235best interests she should be left in that environment under their joint custody. The prayer was for joint custody and equitable relief. Robert filed no responsive pleading; the issues were tried as if he had filed a general denial, and we will so consider it. Robert made no objection to the Lamberts’ intervention; however, they are proper parties. Harris v. Harris, 151 Neb. 191, 36 N.W.2d 849 (1949).

The modification decree granted reasonable visitation to Nancy and particular visitation times to Robert. No findings were made as to fitness or change of circumstances of the parents. Nancy did not appeal, and no issue is made that her parental custodial rights are in conflict with the claims of her parents.

Robert assigns as error that (1) there was no evidence of either his unfitness or his forfeiture of parental rights and (2) the best interests of Amy would be served by awarding her custody to him.

There is little creditable dispute of the facts. Following the dissolution, Nancy established a home with Amy in Lincoln, Nebraska. She was employed. In July 1980 she began a live-in arrangement with Jerry Hollandsworth; at the insistence of the Lamberts, Amy went to live with them at their home, 4000 South 35th Street, Lincoln, Nebraska, where Amy remains. Robert continued his visitation privileges. Nancy regularly visited the Lambert home and assisted in Amy’s care until October 1980 when she and Jerry went to Las Vegas, Nevada, where they were married. They returned to Lincoln in December 1980.

Robert ceased making his $100 monthly child support payments in September 1980; the total delinquency was $1,700; he claimed that he deposited the child support money in a savings account for Amy, but this was not verified. The Lamberts have furnished all of Amy’s financial support. Nancy supported herself and Jerry. Nancy separated from Jerry and moved to the Lambert home in July 1981. [236]*236Nancy and Jerry were divorced in 1981. A child bom of that marriage was relinquished for adoption. The Lamberts own a four-bedroom home; Henry has a good work record as a tilesetter. Robert has a speech defect that limits his job opportunities; he has remarried. Neither Robert nor his wife has a record of regular employment. Robert’s parents help support them. Nancy relies upon the Lamberts for guidance and assistance in the rearing of Amy; however, she controls and supervises Amy’s needs and care. Mrs. Lambert testified, “Nancy takes full responsibility of Amy. She does all of Amy’s feeding, her bath. She gets along real good with all of us. We all work together with her . . . .” Nancy intends to complete some additional nursing training, and when she is able to support herself she will establish her own home with Amy. A custody investigator’s report dated June 22, 1981, recommended that the custody of Amy remain with the Lamberts. An update report of April 16, 1982, makes no recommendations; however, it confirms the evidence that Nancy assumed the care of her child and that she intended to move from the Lambert home.

“When dissolution of a marriage ... 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 the custody of the court or third parties .... Custody and visitation of minor children shall be determined on the basis of their best interests. Subsequent changes may be made by the court after hearing on such notice as prescribed by the court.” (Emphasis supplied.) Neb. Rev. Stat. § 42-364 (Reissue 1978).

We review these proceedings de novo, Neb. Rev. Stat. § 25-1925 (Reissue 1979), and reach independent conclusions on the issues presented. Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979).

“A decree fixing custody of minor children will not be modified unless there has been a change of circumstances indicating that the person having cus[237]*237tody is unfit for that purpose or that the best interests of the children require such action.” (Syllabus of the court.) Ahlman v. Ahlman, 201 Neb. 273, 267 N.W.2d 521 (1978).

We first consider Robert’s application. The evidence shows that there have been some changes in the circumstances of both parents since the dissolution decree; however, such evidence does not support a finding of either unfitness of either parent or forfeiture of rights, or that the best interests of Amy would be served by awarding her custody to Robert. Robert failed to pay child support, and except for a few months Amy has been living with her mother in the Lambert home where Amy received very good care and supervision, although the Lambert support and strong family guidance are factors. Robert’s application for custody was properly denied.

Robert’s appeal primarily objects to the award of physical custody to the grandparents, arguing that such is contrary to Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483 (1980). We conclude that it is not necessary to consider Nielsen; rather, we dispose of that issue on procedural grounds not assigned. Generally, this court only considers errors assigned and discussed; however, by statute and court rule we may note plain error not assigned. Neb. Rev. Stat. § 25-1919 (Reissue 1979); Neb. Ct. R. 9D(l)d (Rev. 1982); Cockle v. Cockle, 204 Neb. 88, 281 N.W.2d 392 (1979).

‘‘Under section 42-364, R. S. Supp., 1974, the trial court on its own motion may make subsequent changes or modifications in a decree of dissolution of a marriage in relation to any minor children and their maintenance when required, but only after notice to the parties and an opportunity, to be heard.” (Emphasis supplied.) Francis v. Francis, 195 Neb.

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Tautfest v. Tautfest
338 N.W.2d 49 (Nebraska Supreme Court, 1983)

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Bluebook (online)
338 N.W.2d 49, 215 Neb. 233, 1983 Neb. LEXIS 1250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tautfest-v-tautfest-neb-1983.