Blank v. Blank
930 N.W. 2d 523, 303 Neb. 602 (2019)
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Rule of Law:
A trial court may award joint physical custody sua sponte if the parties had reasonable notice the issue would be considered and an opportunity to be heard. To trigger the Nebraska Parenting Act's requirement for special written findings regarding domestic abuse, the evidence must show both an act of abuse causing or attempting to cause bodily injury and a pattern or history of such abuse.
Facts:
- Marissa Renee Blank and Caleb Robert Blank were married in 2011 and had two children, born in 2011 and 2014.
- Marissa testified that she was the children's primary caretaker during the marriage.
- Caleb testified that the parties shared childcare responsibilities equally when both were home.
- During a past disagreement, Caleb admitted to having "open hand smacked" Marissa.
- Approximately two to three years before the trial, Caleb punched two holes in a basement wall after an argument while the children were upstairs.
- Marissa admitted to kicking a hole in a door out of frustration while watching their son.
- After separating, both Marissa and Caleb began new relationships and moved into new homes with their partners.
Procedural Posture:
- Marissa Blank filed a complaint for dissolution of marriage against Caleb Blank in Nebraska district court (trial court).
- Marissa initially filed a proposed parenting plan requesting legal custody.
- Caleb later filed a proposed parenting plan, signed by both parties, requesting joint legal and physical custody.
- Caleb filed a motion for temporary orders seeking joint custody.
- Following a hearing, the district court entered a temporary order awarding Marissa temporary legal and physical custody.
- A trial was held on the remaining issues, including permanent custody.
- The district court entered a final decree of dissolution, awarding the parties joint legal and physical custody.
- Marissa Blank (appellant) appealed the district court's decree to the Nebraska Supreme Court, with Caleb Blank as the appellee.
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Issue:
Does a trial court violate a party's due process rights by awarding joint physical custody when neither party made it their primary request at trial, but the issue was raised in pretrial filings and addressed with evidence and argument at trial?
Opinions:
Majority - Funke, J.
No. A trial court does not violate due process by awarding joint custody where the parties had reasonable notice and an opportunity to be heard on the issue. Here, Caleb had requested joint custody in a proposed parenting plan and a motion for temporary orders, putting Marissa on notice. Furthermore, Marissa's counsel questioned her at trial about a "shared custody arrangement," and she testified against it, demonstrating she had an opportunity to present evidence on the matter. The court also held that the evidence of a single slap and a separate incident of punching a wall did not constitute "domestic intimate partner abuse" under the statute, which requires both an act of abuse and a "pattern or history" of such behavior. Finally, the court found no abuse of discretion in awarding joint custody, as there was sufficient evidence the parties could cooperate for the children's best interests.
Concurring - Miller-Lerman, J.
No. While the evidence was sufficient to find an act of abuse, it did not require special findings. I disagree with the majority's conclusion that Caleb's "open hand smack" was not an act of abuse under the statute; I believe it clearly was an attempt to cause bodily injury. However, I concur in the judgment because the statute also requires a "pattern or history" of abuse to trigger the need for special written findings, and there was no evidence of such a pattern in the record.
Concurring - Papik, J.
No. The statutory text unambiguously requires both an act of abuse and a pattern of abuse. The definition of domestic intimate partner abuse under § 43-2922(8) has two distinct elements connected by the word "and": (1) an act of abuse and (2) a pattern or history of abuse. To interpret a single act as satisfying both elements would render the "pattern or history" requirement superfluous. Because the record contains no evidence of a pattern or history, the statute's requirement for special findings was not triggered.
Analysis:
This case clarifies two key aspects of Nebraska family law. First, it refines the due process notice standard from Zahl v. Zahl, establishing that pretrial filings and discussion of an issue at trial are sufficient to allow a court to rule on it, even if it is not the parties' final requested relief. Second, and more importantly, the court's interpretation of Neb. Rev. Stat. § 43-2922(8) sets a significant precedent by requiring proof of both a specific act of abuse and a separate pattern or history of abuse. This creates a higher evidentiary threshold for a party seeking the special protections afforded by the statute in custody disputes involving domestic violence.
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