Vorderstrasse v. Vorderstrasse

508 N.W.2d 872, 2 Neb. Ct. App. 256, 1993 Neb. App. LEXIS 444
CourtNebraska Court of Appeals
DecidedNovember 23, 1993
DocketNo. A-92-902
StatusPublished

This text of 508 N.W.2d 872 (Vorderstrasse v. Vorderstrasse) 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
Vorderstrasse v. Vorderstrasse, 508 N.W.2d 872, 2 Neb. Ct. App. 256, 1993 Neb. App. LEXIS 444 (Neb. Ct. App. 1993).

Opinion

Sievers, Chief Judge.

On September 16, 1992, the district court for Gage County, Nebraska, entered a dissolution decree dissolving the marriage of Tammie A. Vorderstrasse and Jarrod E. Vorderstrasse. The court retained legal custody of the parties’ daughter, Paige Marie, and awarded physical custody of Paige to Jarrod. Tammie appeals, asserting that the district court erred by retaining legal custody of Paige and by placing physical custody of the child with Jarrod.

At the outset, we note that the determination of child custody is a matter which is dependent upon the particular facts of each case. By necessity, the decision of a district court judge in awarding custody is somewhat subjective. Although the statutes and case law provide guidance, there is no magic formula which allows a court to plug in data and facts and receive back the perfect solution. We also believe that little good can come from memorializing the shortcomings of the parties in extensive and graphic detail. Accordingly, although we have comprehensively reviewed the evidence, we keep our factual summary purposefully brief.

Tammie and Jarrod were married on July 30, 1988. Their daughter, Paige, was born on October 20, 1990. Tammie also has a daughter, Ashley, from a prior relationship. The parties separated in December 1991. At that time, Tammie moved into an apartment with both Ashley and Paige. Jarrod was later granted temporary custody of Paige pending trial on the dissolution action. The parties saw a marriage counselor and attempted a reconciliation in April 1992 that lasted approximately 3 weeks.

Tammie and Ashley currently rent a one-bedroom house in Plymouth, Nebraska. Tammie is employed at Prosnip [258]*258Corporation and earns approximately $7.70 per hour. However, she receives no medical benefits through her employment. Much of the evidence with regard to Tammie centered on her relationship with another man, whom she described as her best friend. This relationship was a source of tension in the marriage and more so after the separation. There is no direct evidence that Tammie’s relationship with this man was harmful to Paige.

Jarrod and Paige currently live in a rented three-bedroom house in Fairbury, Nebraska. Jarrod is employed by Demster Industries in Beatrice, Nebraska. He is a high school graduate and has also earned a degree from Southeast Community College. He testified that he has a good relationship with his parents and grandparents, who live within 20 miles of him. Jarrod testified that he and Paige attend church on the weekends she is with him. Jarrod further testified that he believes in providing a stable home environment for his daughter.

There is evidence in the record that indicates Jarrod has had a problem with alcohol in the past. He has had at least two convictions of driving while intoxicated, the last occurring in 1989. Jarrod testified, however, that he does not believe he has an alcohol problem. He further testified that he currently drinks very little and that he never drinks and drives.

There is also evidence in the record that Tammie has been vindictive toward Jarrod since their separation. Tammie admitted that she told the guardian ad litem appointed to represent Paige that Jarrod was a drug user. However, the results of a drug test taken by Jarrod were negative. Tammie also sent a note to Jarrod that indicated with regard to the custody dispute that she was “going to start playing dirty to [sic] so be prepared.” Tammie also indicated in the note that if she did not get custody of Paige, Jarrod and his family would “never ever see Ashley again NEVER.”

There is also evidence in the record of an incident that occurred during Tammie and Jarrod’s attempted reconciliation. Tammie and Jarrod, along with Paige and Ashley, were traveling to Fairbury from Beatrice. Apparently, Jarrod was drinking a wine cooler in the car. When the parties stopped at a [259]*259gas station, Tammie went into the station and told the attendant that Jarrod was driving and was “drunk and obnoxious.” Tammie asked the attendant to notify the police. Tammie also gave the attendant her male friend’s phone number and asked that he also be called. The vehicle Jarrod was driving was subsequently stopped by police. The officer informed Jarrod that he had been reported for drinking and driving. However, Jarrod passed field sobriety tests and was allowed to drive home.

The record also indicates that Jarrod has a problem with his temper. Tammie testified that Jarrod’s temper was especially bad after he had been drinking. The record reflects that on two occasions after the parties were separated, Jarrod came to Tammie’s home to try to talk to her. On both occasions, Jarrod broke the lock on the door and entered Tammie’s home without her permission. However, Jarrod left on both occasions without further incident.

On appeal to this court, Tammie has assigned four errors. However, only two errors are discussed in Tammie’s brief. Only errors assigned and discussed in the appellant’s brief will be considered by an appellate court on appeal. Grote v. Meyers Land & Cattle Co., 240 Neb. 959, 485 N.W.2d 748 (1992); Neb. Ct. R. of Prac. 9D(1)d (rev. 1992). Tammie’s assignments of error properly before this court are that the district court erred (1) in retaining legal custody of the parties’ minor child and (2) in placing physical custody of the parties’ minor child with Jarrod.

Child custody determinations are matters initially entrusted to the discretion of the trial court, and on appeal, although the appellate court reviews these cases de novo on the record, the trial court’s determination will normally be affirmed in the absence of an abuse of discretion, keeping in mind, however, that the trial judge observed and heard the witnesses and accepted one version of the facts rather than the other. Hansen v. Hansen, 240 Neb. 31, 480 N.W.2d 204 (1992).

Tammie’s first assignment of error is that the district court erred by retaining legal custody of Paige. The district court stated in its decree of dissolution:

[W]ith respect to the custody of the minor child of the [260]*260parties, Paige Marie Vorderstrasse, born October 20, 1990, the Court finds sufficient concern with respect to both parties that legal custody of said child should remain with the Court; with respect to physical custody, the Court finds that such custody should be awarded to the respondent subject to rights of visitation by the petitioner
. . . That in awarding physical custody of the minor child, Paige, to the respondent, the Court has taken into account the actions of the parties one toward the other, the degree of vindictiveness shown by petitioner, the inclination of petitioner to use the child as a bargaining tool with respect to the parties [’] own personal difficulties, the degree and nature of care shown the child by each of the parties to the date of this decree and the association by the petitioner with another man both before and during the pendency of this proceeding.

Pursuant to Neb. Rev. Stat. § 42-364 (Cum. Supp. 1992), a district court may obtain and retain legal custody of a minor child and grant a parent physical custody of the child. Ensrud v.

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Related

Grote v. Meyers Land and Cattle Co.
485 N.W.2d 748 (Nebraska Supreme Court, 1992)
Benson v. Benson
206 N.W.2d 51 (Nebraska Supreme Court, 1973)
Miles v. Miles
438 N.W.2d 139 (Nebraska Supreme Court, 1989)
McDougall v. McDougall
464 N.W.2d 189 (Nebraska Supreme Court, 1991)
Hansen v. Hansen
480 N.W.2d 204 (Nebraska Supreme Court, 1992)
Ensrud v. Ensrud
433 N.W.2d 192 (Nebraska Supreme Court, 1988)
Beran v. Beran
450 N.W.2d 688 (Nebraska Supreme Court, 1990)
Bartlett v. Bartlett
225 N.W.2d 413 (Nebraska Supreme Court, 1975)
Christen v. Christen
422 N.W.2d 92 (Nebraska Supreme Court, 1988)

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Bluebook (online)
508 N.W.2d 872, 2 Neb. Ct. App. 256, 1993 Neb. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vorderstrasse-v-vorderstrasse-nebctapp-1993.