Mann v. Rich

Gayle M ann , appellant , v .
lazell R ich , appellee .
755 N.W.2d 410
Filed July 22, 2008. 	No. A-07-1005.
1. Constitutional Law: Parent and Child. The relationship between parent and
child is constitutionally protected and thus cannot be affected without procedural
due process.
2. Constitutional Law: Due Process. Procedural due process includes notice to the
person whose right is affected by the proceeding, that is, timely notice reasonably
calculated to inform the person concerning the subject and issues involved in the
proceeding; reasonable opportunity to refute or defend against the charge or accu-
sation; reasonable opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation; representation by counsel, when
such representation is required by the Constitution or statutes; and hearing before
an impartial decisionmaker.
3. Service of Process: Notice. An informal, unsworn, and uncorroborated statement
that an opposing party was timely notified of a hearing does not provide sufficient
evidence to support a trial court’s finding of satisfactory proof of service.
Appeal from the District Court for Douglas County: J.
patRick M ullen, Judge. Reversed and remanded for further
proceedings.
Stephen D. Stroh and Ryan D. Caldwell, of Bianco, Perrone
& Stroh, L.L.C., for appellant.
Jill A. Daley, of Gallup & Schaefer, for appellee.
inbody, Chief Judge, and iRwin and caRlson, Judges.
iRwin, Judge.
I. INTRODUCTION
Gayle Mann appeals from an order of the district court of
Douglas County which modified a decree of paternity by giving
Lazell Rich custody of the parties’ minor children. On appeal,
Mann argues, among other things, that the district court erred in
finding that she had adequate notice of the modification hear-
ing. Upon our de novo review of the record, we find insufficient
evidence to establish that Mann received adequate notice of the
modification hearing. Accordingly, we reverse and remand for
further proceedings.
848 	16 NeBRASkA APPeLLATe RePORTS
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II. BACkGROUND
Mann and Rich are the parents of a child born October 21,
1998, and a child born November 29, 2000. On September 15,
2003, Mann filed a petition alleging that Rich is the biological
father of the two children and requesting that the court grant
custody of the children to Mann and order Rich to pay a reason-
able sum of child support.
On August 21, 2006, a decree of paternity was entered. In the
decree, the court determined that Rich is the father of the chil-
dren, awarded custody of the children to Mann subject to Rich’s
reasonable rights of visitation, and ordered Rich to pay child
support for the benefit of the parties’ children.
On December 11, 2006, Rich, proceeding pro se, filed a motion
requesting that the court modify the decree of paternity to grant
him custody of the parties’ minor children. The record indicates
that Mann filed an answer to Rich’s motion; however, a copy of
this answer is not included in our record.
On February 23, 2007, Rich filed a notice of hearing. The
notice stated that a hearing regarding a “custody change” was to
be held March 21 at 1:30 p.m. Rich signed the notice of hearing,
but did not include a certificate of service to establish that the
notice had been sent to Mann.
On March 21, 2007, the hearing on Rich’s motion to modify
the decree of paternity was held. At the modification hearing,
Rich appeared pro se and Mann did not appear. Prior to the evi-
dentiary portion of the hearing, the court noted that the notice
of hearing did not contain a certificate of service or any other
indication that it had been sent to Mann and asked Rich if he
had notified Mann of the hearing. Rich told the court that he had
mailed a copy of the notice of hearing to Mann’s home address.
Rich also stated that he had not otherwise informed Mann of the
hearing because she would not speak to him. After receiving this
information from Rich, the court made the following findings:
“Okay. This matter comes on for motion of change of custody
for . . . Rich. It does appear to me that sufficient notice was
given. . . . Mann, she is aware of these proceedings. She entered
her general denial to the motion. So we will proceed with the
hearing.” At that time, Rich offered the testimony of numer-
ous witnesses in support of his motion to modify the decree of
MANN v. RICh 	849
Cite as 16 Neb. App. 848

paternity. At the close of the evidence, the court took the matter
under advisement.
On April 16, 2007, prior to the court’s filing of an order
regarding Rich’s motion to modify the decree of paternity, Mann
filed a motion which asserted that she had not received notice
of the March 21 hearing. Mann’s motion requested the court to
“strike” from the record any evidence presented at the March
21 hearing.
On April 20, 2007, a hearing was held regarding the allega-
tions in Mann’s motion. At the hearing, Mann again asserted that
she had not received notice of the hearing. She requested that
the court disregard the evidence presented at the March 21 hear-
ing and allow the parties to proceed with discovery and pretrial
mediation in accordance with local court rules.
After hearing Mann’s arguments, the court informed her that
“Rich has sworn under oath that he sent to notice [sic] . . . Mann
at the residence she resided at for several years prior to the hear-
ing.” The court went on to find:
The trial will not be held again as the request has been
made. There is enough brought to my attention that I think
in light of the inadequate following of the rules leading up
to trial, and at least the possible lack of notice, all though
[sic] frankly, it’s my belief she got the letter and she didn’t
open it. That’s exactly what I think happened, but that’s
speculative at this point. But that was certainly my belief
on the day of trial. here’s what I’ll do. I’m going to allow
the trial to be reopened. I will allow . . . Mann to induce
evidence. however, I will not allow any of witnesses that
were called and testified to be recalled and re examined,
so if there’s evidence to be induced, it will [have to be] by
other witnesses called on the day of trial. There will be no
requirement regarding methodation or other matters since
we are in the middle of trial in that record.
In accordance with the court’s findings, on June 29, 2007,
another hearing was held regarding Rich’s motion to modify the
decree of paternity. At that hearing, Mann offered the testimony
of Rich and herself. At the close of the evidence, the court issued
an order modifying the decree of paternity and granting Rich
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custody of the parties’ minor children subject to Mann’s reason-
able rights of visitation. Mann appeals from this order.
III. ASSIGNMeNTS OF eRROR
Mann assigns as error the court’s finding that she received
adequate notice of the March 21, 2007, hearing, the court’s
determination that she not be permitted to cross-examine wit-
nesses who testified at the March 21 hearing, the court’s denial
of her motion for new trial, the court’s failure to follow local
court rules, and the court’s decision to award custody of the par-
ties’ children to Rich.
IV. STANDARD OF ReVIeW
Child custody determinations are initially entrusted to the dis-
cretion of the trial court, and although reviewed de novo on the
record, the trial court’s determination will normally be affirmed
absent an abuse of discretion. Wild v. Wild, 15 Neb. App. 717,
737 N.W.2d 882 (2007).
Determination of whether procedures afforded an individual
comport with constitutional requirements for procedural due
process presents a question of law, regarding which an appellate
court is obligated to reach its own conclusions independent of
those reached by the trial court. Conn v. Conn, 13 Neb. App.
472, 695 N.W.2d 674 (2005).
V. ANALYSIS
We first address Mann’s assignment of error that the court
erred in finding that she received adequate notice of the March
21, 2007, hearing, as this issue is dispositive of this appeal.
Mann argues that there was insufficient evidence to support the
court’s finding that she had adequate notice of the hearing. In
her brief, she asserts, “Rich failed to include a Certificate of
Service on the Notice of hearing. . . . Further, . . . Rich failed
to file a Proof of Service in lieu of the Certificate of Service.
his testimony alone would not satisfy his burden unless it
[was] compl[e]mented with other facts.” Brief for appellant
at 15.
We agree that the district court erred in finding that Mann had
received adequate notice of the March 21, 2007, hearing. We
MANN v. RICh 	851
Cite as 16 Neb. App. 848

find insufficient evidence in the record to establish that Mann
received any notice of this hearing. Accordingly, we reverse
the district court’s order modifying the decree of paternity and
remand the case for further proceedings.
[1,2] The relationship between parent and child is constitu-
tionally protected and thus cannot be affected without proce-
dural due process. State ex rel. Grape v. Zach, 247 Neb. 29, 524
N.W.2d 788 (1994). Procedural due process includes notice to the
person whose right is affected by the proceeding, that is, timely
notice reasonably calculated to inform the person concerning
the subject and issues involved in the proceeding; reasonable
opportunity to refute or defend against the charge or accusation;
reasonable opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required
by the Constitution or statutes; and hearing before an impartial
decisionmaker. Id.
In this case, Rich filed a motion requesting a modification of
the decree of paternity. Specifically, Rich requested the decree
be modified to award him custody of the parties’ minor children.
This request clearly related to Mann’s relationship with her two
minor children, and as a result, Mann was entitled to procedural
due process. As a part of that due process, Mann was entitled
to timely notice of the March 21, 2007, hearing. Rich did file
a notice of hearing indicating that a hearing on his motion was
to be held on March 21. however, the notice of hearing did not
indicate on its face whether Rich provided Mann with timely
notice of the hearing. Because there is no proof of service on the
face of the notice of hearing, we examine the record to deter-
mine if there is any other proof sufficient to establish that Mann
did, in fact, receive notice of the hearing.
The local court rules for the Fourth Judicial District outline
acceptable means of providing to the court proof of service for
any pertinent court document required to be served on an oppos-
ing party. We take judicial notice of these local rules because
they were properly filed with the Clerk of the Nebraska Supreme
Court. See Ramsier v. Ramsier, 227 Neb. 746, 419 N.W.2d 871
(1988). Rules of Dist. Ct. of Fourth Jud. Dist. 4-2(I) (rev. 2005)
provides, in part:
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Proof Of Service Of Papers. except as otherwise provided
by statute or by order of the court, proof of service of any
pleading, motion, or other paper required to be served shall
be made by: (1) a certificate showing the name and address
of any party on whom service was had; (2) written receipt
of the opposing party; (3) affidavit of the person making
service; (4) return of the county sheriff; or (5) other proof
satisfactory to the court.
We find no evidence in the record to establish that Rich
provided to the court proof of service of the notice of hearing
through a certificate showing Mann’s name and address, writ-
ten receipt from Mann, an affidavit from Rich, or return of the
county sheriff. Because there is no evidence of any of these
acceptable forms of service of process, we examine the record
to determine whether Rich presented any other proof of service
which would be “satisfactory” to the court pursuant to local
rule 4-2(I)(5).
Upon our de novo review of the record, we do not find sat-
isfactory proof of service of the notice of hearing. The record
demonstrates that the only “proof” of service came in the form
of Rich’s statement to the court that he had mailed a copy of the
notice of hearing to Mann at her last known address. While the
district court characterizes Rich’s comments as being “sworn
under oath,” we find nothing in the record indicating that Rich
was under oath at the time that he discussed the service of
process with the court. Rather, the record demonstrates that the
statements which transpired between the court and Rich were
made somewhat informally prior to the start of the March 21,
2007, hearing. Rich did not offer any other “proof” to establish
that he sent the notice of hearing to Mann, pursuant to the dis-
trict court’s local rule 4-2(I)(5).
[3] Rich’s informal, unsworn, and uncorroborated statements
do not provide sufficient evidence to support a trial court’s
finding of satisfactory proof of service. In light of local court
rule 4-2(I)(5), which requires some proof of service which is
“satisfactory” to the court, and in light of the important custo-
dial issues at stake at the March 21, 2007, hearing, we find that
Rich’s unsworn statements that he mailed the notice of hearing
to Mann did not sufficiently establish that Mann’s due process
MANN v. RICh 	853
Cite as 16 Neb. App. 848

right to timely notice was satisfied. Without sufficient proof that
Mann was afforded procedural due process, we find that the dis-
trict court erred in finding that Mann received adequate notice
of the March 21 hearing and in permitting the hearing to con-
tinue without Mann being present. We reverse the court’s order
modifying the decree of paternity and remand the case back to
the district court for a new hearing on Rich’s motion to modify
the decree of paternity.
Because we find insufficient evidence to establish that Mann
was provided with timely notice of the March 21, 2007, hearing
and we remand the case for further proceedings, we decline to
address Mann’s remaining assignments of error. See Wagner v.
Union Pacific RR. Co., 11 Neb. App. 1, 23, 642 N.W.2d 821,
841 (2002) (“[a]n appellate court is not obligated to engage in
an analysis which is not needed to adjudicate the case and con-
troversy before it”).
VI. CONCLUSION
Upon our de novo review of the record, we find insufficient
evidence to establish that Mann received notice of the hearing
on Rich’s motion to modify the decree of paternity. We find that
Mann was not afforded procedural due process, and we reverse
the order of the district court which modified the decree of
paternity and remand the case for a new hearing on the issue of
custody of the parties’ minor children.
R eveRsed and ReManded foR
fuRtheR pRoceedinGs .
david e. lawson , appellant , v .
bRenda lawson , appellee .
753 N.W.2d 863
Filed July 22, 2008. 	No. A-07-1158.
1. Modification of Decree: Appeal and Error. Modification of a dissolution decree
is a matter entrusted to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an abuse of discretion
by the trial court.
854 	16 NeBRASkA APPeLLATe RePORTS