Worm v. Worm

573 N.W.2d 148, 6 Neb. Ct. App. 241, 1997 Neb. App. LEXIS 170
CourtNebraska Court of Appeals
DecidedDecember 9, 1997
DocketA-97-075
StatusPublished
Cited by27 cases

This text of 573 N.W.2d 148 (Worm v. Worm) 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
Worm v. Worm, 573 N.W.2d 148, 6 Neb. Ct. App. 241, 1997 Neb. App. LEXIS 170 (Neb. Ct. App. 1997).

Opinions

Miller-Lerman, Chief Judge.

Sharon L. Worm appeals from the December 18, 1996, order of the district court for Sarpy County denying her petition to modify the decree of dissolution of May 1,1995, dissolving her marriage to Vernon A. Worm, Jr. In her petition to modify, Sharon sought to terminate the parental rights of Vernon to their only child, Elizabeth, bom February 1, 1987. The trial court declined to terminate Vernon’s parental rights under Neb. Rev. Stat. § 42-364(7) (Cum. Supp. 1994). Sharon appeals, claiming that clear and convincing evidence shows that Vernon had abandoned Elizabeth and that termination of Vernon’s rights is in Elizabeth’s best interests. For the reasons recited below, we affirm.

BACKGROUND

On February 14, 1996, Sharon filed a petition to modify the decree of dissolution entered May 1, 1995, dissolving her mar[243]*243riage to Vernon. The record shows that the decree awarded Sharon custody of Elizabeth and that the decree ordered Vernon to pay $460 per month in child support. The decree also allowed Vernon the following visitation with Elizabeth: every other weekend, every other Wednesday evening, alternating major holidays, visits on special occasions, and 3 to 5 weeks of summer visitation. The decree contains other provisions not relevant here.

In her petition to modify the decree, Sharon alleged that Vernon owed more than $4,000 in back child support, that he had left the state without leaving an address or phone number, and that he had failed to exercise his visitation rights since July 1995.

In an affidavit also filed on February 14, 1996, Sharon detailed Vernon’s last visitation with Elizabeth. Sharon stated that the visit occurred from July 6 through July 29, 1995. Sharon stated further that Elizabeth told, her that during the visit, Vernon took Elizabeth to the horseraces with his girl friend and her children and that Vernon’s girl friend’s 15-year-old daughter drove them home, because Vernon and his girl friend were too intoxicated to drive. Sharon attested also that Elizabeth said that Vernon and his girl friend smoked continuously around Elizabeth, even though Elizabeth is asthmatic, and that Vernon refused to give Elizabeth her allergy medication. Finally, Sharon stated in the affidavit that Elizabeth told her that Vernon did not prepare meals, that there was only beer in the refrigerator, and that Elizabeth was required to sleep with Vernon’s girl friend’s 13-year-old son, either on the floor or in a bed.

In her petition to modify the decree, Sharon alleged that Vernon’s conduct constituted abandonment and that such abandonment was a material change in circumstances, warranting the modification of the decree. Sharon asked the court to terminate Vernon’s parental rights to Elizabeth or, alternatively, to modify the decree, restricting Vernon’s visitation.

The record shows that Sharon attempted to personally serve Vernon with a copy of the modification petition at his last known address and at his last known place of employment and that Vernon could not be found. On March 20, 1996, Sharon [244]*244filed a motion for leave to serve Vernon by publication, which was granted on March 29. An affidavit included in the record shows that the notice of the petition to modify the divorce decree was published in The Papillion Times on April 4, 11, 18, and 25. In accordance with Neb. Rev. Stat. § 25-520.01 (Reissue 1995), copies of the notice were sent to Vernon’s last known address and his last known place of employment. Copies were also sent to Vernon’s mother, two of his brothers, and a sister.

In a motion filed June 18, 1996, pursuant to § 42-364(7), Sharon asked the court to transfer the modification proceedings to the juvenile court for Sarpy County or, alternatively, to determine that the district court was the more appropriate forum. After hearing, the court found that the district court was the more appropriate forum and appointed a guardian ad litem to protect Elizabeth’s interests.

On December 3, 1996, a hearing was held on Sharon’s petition to modify the decree. Sharon, her attorney, and the guardian ad litem were present. Vernon did not appear, nor was he represented by counsel. Sharon testified. Sharon stated that Vernon ceased paying child support in November 1995 and offered exhibit 1, a copy of a printout of Vernon’s child support payment history, which appears to be a copy of a court record. Sharon testified that Vernon is an alcoholic and that he is drunk most of the time.

Sharon testified further that Vernon last exercised his visitation rights in July 1995 and that Elizabeth had told her that during this visit, Vernon’s girl friend’s 13-year-old son was in charge of watching Elizabeth. Sharon testified also that Elizabeth said that there was nothing to eat at Vernon’s house, that the only thing in Vernon’s refrigerator was beer, and that Elizabeth was required to sleep in the same bed as Vernon’s girl friend’s 13-year-old son.

In her testimony, Sharon acknowledged that Vernon had left four or five messages on her answering machine in the last year. In the first message, left on December 1, 1995, Vernon stated that he was leaving town and told Elizabeth “to take care of herself.” Sharon testified that in another message, Vernon asked them to call him, although he did not leave a phone number. Sharon testified that she does not have Vernon’s phone number, [245]*245nor does she know to where he has moved. Sharon testified that Vernon last left a message in June 1996, after the petition to modify had been filed. Sharon stated that she recently changed her phone number because she was getting a lot of late night phone calls and a lot of hangups. Sharon stated that other than these phone calls, Vernon had not made any attempt to contact Elizabeth and had not sent Elizabeth any cards or gifts.

Sharon testified that in her opinion it is in Elizabeth’s best interests to terminate Vernon’s parental rights. She testified that she feared that Vernon would take Elizabeth away from her if he returned and that she feared that Elizabeth would be in danger and unable to take care of herself if Vernon did so.

In argument to the court, the guardian ad litem indicated that she was unsure as to whether termination of Vernon’s parental rights was warranted, although she did state that Elizabeth’s relationship with her mother provides Elizabeth with the stability she needs and that Elizabeth is in need of permanency and closure.

The court took the matter under advisement. In an order filed December 18, 1996, the court declined to terminate Vernon’s parental rights and denied the petition to modify. The court found that clear and convincing evidence did not exist to support the finding that Vernon had abandoned Elizabeth, nor did the evidence support a finding that termination of Vernon’s parental rights would be in Elizabeth’s best interests. The court noted that Vernon had had very minimal contact with Elizabeth, that he had not paid child support since November 1995, and that Vernon had not seen Elizabeth since July 1995. The court noted, however, that Vernon had attempted to maintain contact with Elizabeth by calling and leaving messages. The court found that termination would be premature and that it remained to be seen whether Vernon could rehabilitate himself.

Sharon appeals.

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Bluebook (online)
573 N.W.2d 148, 6 Neb. Ct. App. 241, 1997 Neb. App. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worm-v-worm-nebctapp-1997.