90-0281

IN THE

SUPREME COURT OF NEBRASKA

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CAROL L. PETERSON,

Petitioner - Appellant and Cross-Appellee,

vs.

ROBERT G. PETERSON,

Respondent - Appellee and Cross-Appellant.

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APPEAL FROM THE DISTRICT COURT OF

YORK COUNTY, NEBRASKA

HONORABLE BRYCE BARTU

District Judge

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BRIEF OF APPELLEE and CROSS-APPELLANT

BRIEF ON CROSS APPEAL

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PREPARED AND SUBMITTED BY;

Bruce E. Stephens, #16668
Old York Plaza, Suite B
1100 Lincoln Avenue
P.O. Box 56
York, Nebraska 68467
(402) 362-3603

Christine P. Costantakos, #15795
1130 Commercial Federal Tower
2120 South 72 Street
Omaha, Nebraska 68124
(402) 397-5757

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INDEX

Statement of the Case.......................................................................................................1

Statement of Facts............................................................................................................2

Argument:

I. ONLY THOSE ISSUES ASSIGNED AS ERROR AND DISCUSSED IN THE BRIEF WILL BE CONSIDERED ON APPEAL.............................7

II. THE COURT PROPERLY FOUND A MATERIAL CHANGE IN CIRCUMSTANCES............................................................................................9

III. THE TRIAL COURT WAS CORRECT IN FINDING THAT APPELLANT'S RELIGIOUS BELIEFS HAVE CAUSED A DEFICIENCY OR INCAPACITY WHICH HAS PREVENTED OR WILL PREVENT PERFORMANCE OF A REASONABLE PARENTAL OBLIGATION IN REARING HER CHILDREN AND HAS CAUSED OR WILL RESULT IN DETRIMENT TO THE CHILDREN'S WELL-BEING............................................................................15

A. PHYSICAL DISCIPLINE..............................................................................16

B. BELIEFS WHICH ALIENATE THE CHILDREN FROM APPELLEE AND SIGNIFICANT FAMILY MEMBERS.............................18

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN PROHIBITING APPELLANT FROM DISCUSSINGHER RELIGIOUS BELIEFS WITH THE MINOR CHILDREN.........................22

CASES CITED

In re Interest of N.L.B., 234 Neb. 200, 450, N.W.2d 676 (1990)........................................................................................................................9

Federal Land Bank Of Omaha v. Victor, 232 Neb. 351, 440 N.W.2d 667 (1989)....................................................................................................9

Wells Fargo Ag. Credit Corp. v. Batterman, 229 Neb. 15, 424 N.W.2d 870 (1988)..............................................................................................9

Carman v. Gibbs, 220 Neb. 603, 371 N.W.2d 283 (1985)................................................9

Buchele v. Tuel, 204 Neb. 641, 284 N.W.2d 564 (1979)..............................................................................................................................12

Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 413 (1975)..............................................................................................................................12

Krueger v. Krueger, 211 Neb. 568, 319 N.W.2d 445 (1982)..........................................13

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Von Tersch v. Von Tersch, 235 Neb. 263, 455 N.W.2d 130 (1990)..............................................................................................................................14

LeDoux v. LeDoux, 234 Neb. 479, 452 N.W.2d 1 (Neb. 1990) ............................................................................................................15, 22, 23, 25

Burnham vs. Burnham, 208 Neb. 498, 304 N.W.2d 58 (1981)..................................15, 23

Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966).................................15, 23

OTHER CITATIONS

Revised Rules of the Supreme Court of the State of Nebraska

Rule 9E ..................................................................................................................8

Rule 9D(1)(d.)........................................................................................................9

CROSS-APPEAL

STATEMENT OF CASE ..............................................................................................25

PROPOSITION OF LAW..............................................................................................26

ARGUMENT

I. THE DISTRICT COURT ERRED IN NOT ORDERING THE PETITIONER TO PAY A REASONABLE SUM FOR THE CHILD SUPPORT OF THE THREE MINOR CHILDREN OF THE PARTIES.................................................................................................26

CASES CITED

Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988)........................................26, 27

Grace v. Grace, 221 Neb. 695, 308 N.W.2d 280 (1986)........................................26, 27

Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985)....................................26, 27

Bird v. Bird, 205 Neb. 619, 288 N.W.2d 747 (1980)..................................................29

OTHER CITATIONS

Nebraska Child Support Guidelines ......................................................................26, 27

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STATEMENT OF THE CASE

A Decree of Dissolution was entered on February 25, 1988 awarding custody of the three minor children of the parties to the Petitioner, Carol Peterson, subject to the Respondent's rights to visitation as specified in the Property Settlement Agreement. On October 25, 1988 an Application to Modify Decree as to Child Custody was filed on behalf of the Respondent. On December 22, 1988 an Amended Application to Modify Decree and Order concerning child custody was filed alleging a material change of circumstances in numerous respects. Lastly, it was alleged that it was in the best interests of the minor children of the parties that they be placed in the care, custody and control of the Respondent, Robert Peterson.

On January 19, 1989 the Petitioner answered with a general denial and filed a counter-claim seeking a denial of visitation privileges in total, that the Respondent's visitation be reduced to every other weekend, that Petitioner be awarded sole ownership of the home of the parties and that the Petitioner receive an annual fee of 25% of the net profits from the Respondent's business. A motion to strike certain portions of the Petitioner's counter-claim was filed and partially sustained.

On September 1, 1989 a motion for mental exam, physical exam and appointment of expert was filed by the Respondent seeking a mental examination before Caryn S. Hacker, a certified master social worker, and that she be appointed an expert. In open Court the Petitioner stipulated and agreed that she and the three children would be interviewed and examined by Ms. Hacker although there were no minutes in the Court file.

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On January 19 and 24, 1990 the matter was tried. On January 31, 1990 the Court entered a decree of modification changing custody of the three children to the Respondent, awarding the Petitioner reasonable visitation at the home of the Petitioner's parents, crediting the Respondent for all child support ordered paid pursuant to the original decree and ordering Petitioner to abstain from any corporal punishment of the children or from making comments to the children with regard to her religious beliefs.

A motion for new trial was subsequently heard on March 15, 1990 alleging that the Trial Court erred in (1) finding a material change in circumstances, (2) finding that the Petitioner's use of corporal punishment and fear was for the purpose of forcing the obedience and submission of her children to the doctrines of her church, (3) finding that Petitioner's religious beliefs have caused a deficiency or incapacity which has prevented or will prevent performance of a reasonable parental obligation in rearing her children and has caused or will result in detriment to the children's well being, (4) ordering that custody be changed from Petitioner to Respondent and that such was an abuse of discretion and (5) ordering a total and complete ban on a parent's right to freedom of religious expression in regard to that parent's relationship with their minor children when a less restrictive order would suffice. The Appellant's brief, however, only addresses the issues of a material change of circumstance and preclusion of religious discussion.

STATEMENT OF FACTS

At the trial Cassie Peterson, an 11 year old child of the part-

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ies, testified that she was in the 5th grade. She had previously attended the York Public School system but in November of 1988 her mother withdrew her from that school and enrolled her in the York Christian Academy, which was operated in conjunction with the Good Life Pentecostal Church in York, Nebraska. Cassie testified that the York Christian Academy started classes at 8:30 a.m. and that school was out at 3:00 p.m. After lunch, however, the students would go to the park if it was nice or stay inside and play if it was not nice enough to be outside (167:16-169:15). The York Christian Academy did not have teachers but rather individuals that they called monitors that would try to help the students with the problems when they raised a flag at their cubical (170:9-11). At the school they would get demerits for such things as sharpening their pencil and going to the bathroom during work time or even getting up without permission (174:1-7).

In approximately January of 1989 Cassie was expelled from the York Christian Academy for not having a Christian attitude and picking up crayons during prayer (175:5-21). For having this bad Christian attitude and picking up crayons during prayer Cassie's mother, Carol Peterson, gave Cassie a "whippin" with a belt. This "whippin" started with being spanked by a belt for approximately two minutes (176:13-25). This stopped only after Cassie forced herself to stop crying. To do this she had to hold her breath (177:1-17).

After this two minute episode of being spanked with this belt the Appellant made Cassie write the definitions of rebellious and discipline down on paper and also a scripture. The scripture pertained to references about rebelliousness being a sin of witchcraft.

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Upon completion of this assignment the Appellant checked Cassie's work and found that there were 20 errors. The Appellant proceeded to hit Cassie, with the belt, once for each mistake that was made (178:16-20). The Appellant then forced the child to do the assignment again and found 10 more mistakes, which resulted in 10 more lashes with the belt (179:6-14). Again, the Appellant forced the child to do the assignment again and found three more mistakes and then proceeded to give her three more lashes with the belt (179:23-180:4). This left bruises on the child's buttocks. Cassie testified that the other children, even including their youngest child, William, was hit with a belt almost every day (184:24).

Cassie further testified that girls were not encouraged to go to college at the Good Life Pentecostal Church and that when she went back to the York Public School system when she went back to live with her father that she had a lot of trouble with her mathematics tables. Also, Cassie testified that Carol was reluctant to give the children medicine as necessary. Cassie further testified that sometimes she was scared of Carol (201:8-11).

The Appellee testified that he has had problems with visitation and that since the divorce there have been changes in the way Carol has reared the children. Since the divorce she has begun using objects to spank the children with instead of her hands. Before the divorce they were encouraged to get extra education and now they were being discouraged from that. Furthermore, the children were discouraged from relationships outside of the Good Life Pentecostal Church and that they were being taught that anyone outside of that group was of the devil and had demons in them. Before the divorce

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Mr. Peterson testified that the children were encouraged to express themselves but now were told that such was a sign of rebelliousness. Also, the children were not allowed to participate in extra-curricular interests that they had had before leaving the public school system.

Mr. Peterson further testified that Sadie was not only a straight A student in the 9th grade in the York Public School system, but was also in the accelerated program. When enrolled in the York Christian Academy, however, they placed her in the 8th grade (209:7-13).

Mr. Peterson also testified as to Carol's leaving the children home alone and the children's deteriorating hygiene, including the youngest child's, William's, toilet problems. Furthermore, the Appellant testified that the children had all become more withdrawn and timid since the divorce and that William Peterson was under weight for his age.

During cross-examination, Carol Peterson stated that she had offered to give Mr. Peterson custody of Cassie (233:23).

The Appellant's mother, Irene Brumbaugh, next testified that before the spring or summer of 1988 that the children seemed generally happy and that after that period of time the children became more and more quiet and withdrawn and visitation between her and her husband and the grandchildren became much less frequent (250:9). Mrs. Brumbaugh testified that the youngest child, William, sometimes acts afraid of them and that the children told her that the devil lived at her house (215:10). Mrs. Brumbaugh further testified that it is her opinion that Bob Peterson, rather than their daughter,

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should be granted the custody of the three children (267:19-25).

The Appellant, Carol Peterson, testified as to the times that she spent at work and at home and to the fact that she gives approximately twenty-five per cent of her income to the Good Life Pentecostal Church (296:7-11). The Appellant admitted giving the 43 lashes with the belt to Cassie (311:1-24).

There was extensive testimony from another witness, Deb Worman, concerning the doctrines and practices of the Good Life Pentecostal Church, which she was a member of for two-and-a-half years. She testified as to the fear that the group had about outsiders and that it was alright for the group to lie to outsiders as they would only be deceiving Satan.

Numerous teachers testified as to the changes that were observed in both Cassie and Sadie before and after leaving the York Public School system, and also for Cassie when she returned to the Public School system when she started living with her father. There was also the testimony of Rachel Boldt, who was a close friend of Sadie Peterson's. She testified as to the changes that she observed in Sadie after the divorce.

Caryn Hacker testified that she is a certified master social worker with a Masters of Science Decree in Social Work. She testified that the Good Life Pentecostal Church meets nine out of the ten criteria for a cult and that the effect that their exposure to the Good Life Pentecostal Church has had on the children and their relationships with their father and grandparents in particular and society in general. She testified that the environment and practices of the Good Life Pentecostal Church are not conducive to the healthy

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social development of the children or for their healthy psychological, emotional or intellectual development (461:5-462:14). Ms. Hacker testified that the practices and beliefs of the Good Life Pentecostal Church, as practiced by Carol Peterson, posed a substantial threat of harm to the children's physical and mental well being (480:19). She further testified that the practices of Carol Peterson and the Good Life Pentecostal Church puts the relationship of the Appellee with his children on very unstable ground and that over time the contacts with the children and Mr. Peterson would diminish (477:19-478:25).

At the motion for new trial the Court indicated that it "detected a real fear on the part of these children as they testified and that no one has a constitutional right to install (sic) that kind of fear, whether it be under the guise of religion or under the guise of torture or anything else in a child" (606:11-15).

ARGUMENT

I.

ONLY THOSE ISSUES ASSIGNED AS ERROR AND DISCUSSED IN THE BRIEF WILL BE CONSIDERED ON APPEAL.

Appellant's brief asserts numerous errors, many of which are cumulative and redundant. However, the assertions that the Court erred in finding the Appellant's use of corporal punishment and fear was for the purpose of forcing the obedience and submission of her children to the doctrines of her church and that the Trial Court erred in finding that the Appellant's religious beliefs have caused a deficiency or incapacity which has prevented or will prevent performance of a reasonable parental obligation in rearing her children

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and has caused or will result in detriment to the children's well being where not actually discussed in the brief. The Appellant does not challenge the allegation that removing the children from the York Public School system and placing them in the York Christian Academy represents a material change of circumstances. Nor does she challenge the allegation that denial of visitation was a material change of circumstances. The same is said for being deprived the benefits of society or that the Appellant was unable or unwilling to provide adequate financial care to the children or that it was in the children's best interests to change custody.

Since the Appellant is not challenging that it was in the children's best interests to change custody, the Appellant's argument fails. Appellant's assignments of error essentially boil down to whether there was a material change of circumstances and whether the Court's language regarding the Appellant's discussions of religion with the children can pass constitutional muster. Rule 9E of the Revised Rules of the Supreme Court of the State of Nebraska clearly states that a party presenting a case involving the Federal or State constitutionality of a statute must file and serve separate written notice thereof with the Supreme Court Clerk at the time of filing such parties brief. Furthermore, it states that if the Attorney General is not already a party to an action where the constitutionality of the statute is an issue, a copy of the brief assigning unconstitutionality must be served on the Attorney General and an appropriate proof of service filed with the Supreme Court Clerk. Although the Appellant's assertion regarding constitutionality is vague and uncertain, the Judge's actions were based upon statutory

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procedure and if the Appellant is arguing that this procedure is unconstitutional then it is the statutes which are inadequate and Appellant is therefore required to comply with Rule 9E. There is no indication that Appellant complied with that rule and Appellee questions the basis for standing to make such arguments.

Rule 9D(1)(d.) requires a separate and concise statement of each error a party contends was made by the Trial Court. The Rule specifically states that consideration of the case will be limited to errors assigned and discussed.

In the case of In re Interest of N.L.B., 234 Neb. 280, 450 N.W.2d 676 (1990), the Court ruled that the Supreme Court will only consider errors that are assigned and discussed, although the Court will note plain error in the record. Likewise, the Court held in Federal Land Bank of Omaha v. Victor, 232 Neb. 351, 440 N.W.2d 667 (1989) that to be considered by the Supreme Court, errors must be assigned and discussed in the brief. See also, Wells Fargo Ag. Credit Corp. v. Batterman, 229 Neb. 15, 424 N.W.2d 870 (1988).

Nor can vague reference be made in either the assignment of errors or the brief to get around such requirement. In Carman v. Gibbs, 220 Neb. 603, 371 N.W.2d 283 (1985) the Court explicitly ruled that errors encompassed in catchall assignments but not briefed, and those vaguely alluded to in the facts but not argued, will not be considered by the Supreme Court on appeal.

II.

THE COURT PROPERLY FOUND A MATERIAL CHANGE IN CIRCUMSTANCES.

The evidence in the record is replete with numerous references to changes in the children and their environment since the time of

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the divorce. Cassie Peterson, the 11 year old daughter of the parties, testified that after the divorce Carol would never give them medicine and said that they shouldn't worry until their temperature reached 105 degrees (200:6-7). Cassie also testified as to being given a "whippin" for two to three minutes with a leather belt because she had been expelled from the York Christian Academy for picking up crayons during prayer. This ceased only after Cassie was able to stop crying by holding her breath. After that segment she was then forced to write rebellious and discipline down and a scripture from the Bible pertaining to rebelliousness being a sign of witchcraft. There were 20 misspellings and punctuation errors in that assignment and she was then given 20 more "whippins" with the leather belt. She was then forced to do the assignment again, making ten mistakes, and being given ten more "whippins" After being once again forced to redo the assignment there were ten more mistakes and ten more "whippins". Finally she was given three more "whippins" after three more mistakes before she was finally able to do the assignment correctly. The Appellant asserts that because she took the child to Wendy's and got a "frosty" afterwards that everything was alright and that therefore this does not constitute abuse. This ridiculous contention only highlights the absurdity of her allegation that there was no material change in circumstances.

The Appellee testified as to his problems with visitation (203:4-205:11). Also, the Appellee testified that since the divorce there have been numerous changes, including: (1) the children being struck with objects now were as they were not before, (2) the children were no longer encouraged to get a higher education, (3) they

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were taken out of the public school and put in a school supposedly operating under Rule 13, (4) the children were discouraged from contact with children outside of the church, (5) Sadie was in the gifted program in the York Public School system but yet was put in a grade lower in York Christian Academy (209:1-13), (6) Sadie was involved in extra-curricular activities in the public school system but after enrolling in the York Christian Academy was no longer allowed to continue those activities (207:20-208:11), (7) Carol was spending less time with the children and the children's hygiene was deteriorating (211:6-219:9 and 215:20-216-5), (8) the children became more withdrawn and Sadie's relationship with Cassie and William (Willy) became less tolerant, (9) Willy began sleeping with his mother (220:12-15), (10) Sadie became the primary caretaker for the children and Sadie began fasting.

Irene Brumbaugh, the Appellant's mother testified that after the divorce the children became more quiet and withdrawn, that the children seemed afraid of them and that one of the children said that the devil lived at her house, that they were not involved in activities any longer and that Cassie seemed a lot happier since she began living with Bob. Linda Boldt, a Principal in the York Public School system, testified that Cassie's personal hygiene worsened after the divorce until she went back to live with Bob, and it then became better again. She further testified that when Cassie returned to the York Public School system after returning to live with Bob that she had trouble with her math tables. Jane Huff testified that Cassie was outgoing and carefree before the divorce but when she came back from the York Christian Academy she was withdrawn and

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again had troubles with math. Gene Robb testified that he was Sadie's teacher, family advisor and coach. He testified that after the divorce Sadie started withdrawing and isolating herself. Rachel Boldt testified that she was Sadie's good friend and that after the divorce Sadie no longer cared about college, did not seem happy anymore, and became withdrawn.

Any allegation by Appellant that there was no material change in the circumstances simply cannot stand after even a cursory review of the record.

Appellant makes much about the Appellee's concerns about Appellant's involvement in the church during the course of the divorce. In Buchele v. Tuel, 204 Neb. 641, 284 N.W.2d 564 (1979) the Court ruled that the judicial focus in matters relating to modification of custody is based upon what the trial court actually knew at the time of the entry of the decree and not on what the parties knew, or should have known, which was not produced at trial. Therefore, even if Appellant's argument would otherwise be persuasive, there is no showing that the Court was aware of the Appellee's concern.

Appellant's argument also fails because there was no testimony that the Appellant ever beat the children with a leather belt 43 times or more, after a two to three minute segment of continuous beatings with a belt, before the divorce or that the children where fasting or not given proper medical treatment or placed in a school environment that was substandard and inadequate.

As was stated in Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 113 (1975) the issue as to the changing of custody is within the trial court's discretion. It is interesting to note that Appellant

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cites Krueger v. Krueger, 211 Neb. 568, 319 N.W.2d 445 (1982). Appellant quotes the Court in Krueger as stating that "this Court has consistently held that a decree fixing custody of a minor child will not be modified unless there has been a change in circumstances indicating that that person having custody is unfit for that purpose or that the best interests of the child require such action." ID. at 573. What Appellant fails to note, however, is that the Court still modified the decree by placing the legal custody of the children with the Court and leaving physical custody with the mother. The Krueger case also stated that in determining who should have the care and custody of the minor children that the controlling consideration is the best interest and welfare of the children. Under the circumstances of that case the Court noted that there could be no question but what there had been a material change in the circumstances as to both of the parties.

Likewise, there is absolutely no question in this case that there was a material change in the circumstances. Appellant's brief also quotes the District Court's finding regarding the Appellant's adopting systems of corporal punishment and fear to force obedience and submission of her children to the doctrine of her church, that the Appellant's religious beliefs have caused a deficiency or incapacity which has prevented or will prevent performance of a reasonable parental obligation in rearing her children and has caused or will result in detriment to the children's well being, and that if she were allowed to continue her practice of corporal punishment and fear onto these children, it is obvious that such acts would not only have a deleterious affect upon the relationships between the

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Respondent and the children, but also upon the physical and mental well being of the children themselves. Either the Appellant is arguing that these are not material changes in circumstances, or she is stipulating that these things were present prior to the decree. Again, no argument is made in the brief that the Court erred in these findings.

Appellant cites Von Tersch v. Von Tersch, 235 Neb. 263, 455 N.W.2d 130 (1990) regarding the Appellant's choice of education for the children. Von Tersch is not dispositive of this case because it is not the educational choice that the Appellant made, alone, which justifies the change of custody. In Von Tersch there was not the record that there is in the case at bar concerning the discouragement of children in that school from attending further education, in being kicked out of school for picking up crayons during prayer, and not attending substantial hours as required by state law for educational instruction, or the physical abuse instituted upon the children. But even using the standard as applied in Von Tersch there has been an affirmative showing that the Appellant's parental decision has injured or harmed, or will jeopardize, the children's safety, well being and health, both physical and mental. Caryn Hacker's testimony substantially outlines the detriment to the children and the dangers that they are exposed to by their involvement in the Good Life Pentecostal Church and the York Christian Academy.

Appellant asserts that there are no findings set forth in the District Court's decree of modification regarding the Appellee's allegations that the Appellant had violated the Court's decree for denying the Appellee visitation as required, that the children were

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being deprived of the benefits of modern society by the Petitioner, or that the Appellant was unable or unwilling to provide adequate financial care to the children. In this regard it must be noted that the Appellant did not ask for specific findings of fact and therefore the Court was not required to do so.

III.

THE TRIAL COURT WAS CORRECT IN FINDING THAT APPELLANT'S RELIGIOUS BELIEFS HAVE CAUSED A DEFICIENCY OR INCAPACITY WHICH HAS PREVENTED OR WILL PREVENT PERFORMANCE OF A REASONABLE PARENTAL OBLIGATION IN REARING HER CHILDREN AND HAS CAUSED OR WILL RESULT IN DETRIMENT TO THE CHILDREN'S WELL-BEING.

The District Court was under a duty to consider whether the religious beliefs of Appellant threaten the health and well-being of Sadie Peterson, Cassie Peterson, and William Peterson. Indeed, the substance of Appellee's Petition to Modify as well as the great bulk of the evidence adduced at trial focused upon the adverse impact suffered by the Peterson children as a result of the Appellant's total subservience to, and her infliction on the children of, the practices and beliefs of the Good Life Pentecostal Church of York. Indeed, under the standards enunciated by this Court in LeDoux v. LeDoux. 234 Neb. 479, 452 N.W.2d 1 (Neb. 1990); Burnham v. Burnham, 208 Neb. 498, 304 N.W.2d 58 (1981); and Goodman v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966), the District Court was obligated to assess the impact of Appellant's religious beliefs in determining the best interests of the minor children.

The evidence at trial disclosed a radical shift in significant areas of the children's lives, as discussed more specifically below. The evidence stands uncontroverted in the record that this "radical

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shift" commenced with Appellant's involvement in her new religious beliefs and practices.

A. PHYSICAL DISCIPLINE.

Prior to Appellant's involvement in the Good Life Pentecostal Church, Appellant and Appellee each disciplined the children with an occasional spanking (205:12-20). Subsequent to the divorce Decree and to the Appellant's joining the Good Life Pentecostal Church, Appellant newly adopted a system of corporal punishment consisting of beating the children with a leather belt or stick, sometimes to the point of bruising, and designed to "break the will of the child" (205:12-20; 579:14-20; 580; 305; 307; 308).

The rationalization for such a system of corporal punishment is found in certain verses of scripture selected by the leader of the Good Life Pentecostal Church and transmitted to its members, of which the Appellant is one:

"spare the rod, spoil the child," and "the blueing of the wound cleanseth away evil," and "if thou lovest thy child thou shalt beat him with a rod to deliver his soul from hell. And if thou beatest him with a rod, he surely shall not die"

(340:11-25; 341:1-7; 214:17-22). Appellant acknowledged that she spanked her children with a belt and a yard stick as a means of discipline, and that all three children are disciplined by the Appellant in this manner (305:6-25; 306; 307; 308; 184:10-25; 185:1-12).

The evidence is clear that Appellant frequently employed this system of corporal punishment upon the Peterson children, and that this system of punishment is inextricably linked to her religious beliefs. As described above, Cassie Peterson graphically described being beaten by her mother with a leather belt in a grueling session

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in which the Appellant alternated beatings with the child's writing out of Scripture verses (176:5-25; 177-181). The child testified that initially she was beaten continuously for "two minutes or so" and ultimately, was beaten to the point of bruising such that afterwards it hurt her to sit down (176L17-25; 180:23-25; 181:1-7) Both the Appellant and the child concurred that the incident which precipitated these beatings was the child's being sent home from classes at the York Christian Academy for failing to have "a really Christian attitude" and for "picking up ... crayons during prayer" (175:19-22; 308:20-25: 309:1-3) Indeed, Appellant's motivation for the beatings was her desire to punish and correct the "stubbornness and rebellion" which she perceived in her daughter and, to this end, Appellant also required the child to copy certain Scripture verses and dictionary definitions relating to "stubbornness" and "rebellion" (556:1-9; 178:1-7).

Appellant cannot seriously argue that the evidence does not support the District Court's finding that "the Petitioner has adopted systems of corporal punishment and fear to force obedience and submission of her children to the doctrine of her church" (Brief of Appellant, Page 7). It is beyond dispute that Appellant's employment of this system of corporal punishment, designed to "break the will" of the child is the product of her religious beliefs. It is immaterial that she applied this punishment in direct response to specific instances of what she considers disobedience, dishonesty and disrespect on the part of the children. The manner in which the Appellant now chooses to punish her children is extremely harsh, insensitive, inflexible and excessive and clearly constitutes

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abuse, no matter how well intended the Appellant's motivation. Caryn Hacker, a family therapist who evaluated the children and the Appellant and Appellee and who testified at trial, concurred that the Appellant's manner of punishing the children constituted "child abuse" and further concluded that the religious beliefs and practices as applied by the Appellant in this regard place the Peterson children at substantial risk of harm to their physical well-being (470:11-25; 471:1-20; 480:14-25; 481:1-5).

B. BELIEFS WHICH ALIENATE THE CHILDREN FROM APPELLEE AND SIGNIFICANT FAMILY MEMBERS.

Prior to Appellant's involvement in the Good Life Pentecostal Church, the Peterson children enjoyed a normal, healthy interaction with their father, the Appellee, and also with Irene Brumbaugh and Clay Brumbaugh, the maternal grandparents of the children. Indeed, the evidence at trial showed that the children and the Appellant visited the Brumbaughs on a regular basis, sometimes staying overnight, and shared holiday and birthday celebrations together (245:19-25; 246:1-14). Most significantly, the children appeared to be happy, comfortable, and not afraid of their father or their grandparents. Since Appellant's immersion into the Good Life Pentecostal Church, the frequency of visits between the children and the Brumbaughs became substantially reduced, and when the children did visit, Irene Brumbaugh observed them to be withdrawn, quiet and afraid (250:1-25; 251:5-8). Irene Brumbaugh related at trial that the children were afraid to come and visit because they believed "the devil lived at their house" (251:5-11).

Cassie Peterson testified that her mother told her that the

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Appellee, Irene and Clay Brumbaugh, "were going to hell" (184:2-7). That this prospect was frightening to the child herself is found in her testimony regarding the week in December, 1989, when Cassie left the Appellee's residence and went to stay with her mother:

"Q. During the week that you stayed with your mom, did you and your mother have any conversations about hell?"

A. Yes.

Q. Would you tell the judge what your mother said to you about going to hell?

A. She said that if you don't get baptized in Jesus' name and the Holy Ghost, you were going to hell.

Q. That bother you, Cassie?

A. Yes.

Q. Did it scare you?

A. Yes.

Q. Did she say anybody else was going to hell?

A. Yes.

Q. Who?

A. Dad and grandma, grandpa.

Q. How did that make you feel?

A. I felt like I wanted to get them into the church.

Q. Which church?

A. The Good Life Pentecostal."

(183:16-25; 184:1-10).

In addition, Cassie Peterson testified that a precipitating factor in her decision to go and stay with her mother for a week in December of 1989 was that her six-year old brother, William (who then resided with the Appellant), would say things to her suggesting she was going to go to hell for doing certain things, such as wearing pants. In the words of Cassie: "I guess it just got to me" (182:25). The child testified that her first preference was to live with the Appellee, but she would live with her mother but only out of fear of going to hell (189:13-22).

Furthermore, Appellee testified to an incident when he attempted to take all three children to his church, the Methodist Church, for services, and Sadie Peterson began to cry, beg and plead with

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him not to make her enter that church. Appellee described her as "very scared. She was desperate" (218:17). Appellee went on to explain that the children are afraid of his church because they have been led by the Appellant to believe that his church is "the daughter of the great whore", i.e., an institution "created by the devil" (218:18-25; 219:1-4). Appellee also observed Cassie Peterson to be "very confused" about which way to think regarding the Appellee's church and the messages she has received from Appellant (219:4-17).

While Appellant may believe that others who are not members of her church are doomed to damnation or are influenced by the devil, her exhortations to the children that their father and their grandparents are going to hell and are "of the devil" for lack of association with Appellant's church, only have instilled fear in the children and have served to alienate them from their father and grandparents. The psychic burden thrust upon the children by virtue of Appellant's obsession with hell and the devil have spawned only confusion, fear, and anguish in the children at the prospect of having significant family members consigned to eternal damnation.

Therapist Caryn Hacker concluded that if the children remained in the custody of the Appellant, this factor of the fear generated in the children by the Appellant would eventually cause contact between the children and their father, and contact between the children and their grandparents to diminish (478:13-25; 479:23-25; 480:1-14). In essence, the effect of the Appellant's beliefs upon the children would be to place the children in a position of "having to choose" relationships with family members based upon religious factors (477:19-25; 478:1-13). While Appellee respects Appellant's

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right to select and maintain her own religious beliefs, Appellee submits to this Court that the children are entitled to access to and enjoyment of both of their parents and other significant family members, free from the tactics of fear and intimidation employed by one parent. From beginning to end, Appellant's beliefs have been designed to frighten, coerce and bend the children into conformity with Appellant's own religious system, heedless of the detriment and strain suffered by the children in their relationships with their father and other family members.

Appellant's contention that "the custodial parent usually has the right to control the religious training of his child," is not at issue in this case. What is at issue are whether the Appellant's beliefs threaten the health and well-being of the Peterson children. The evidence is abundantly clear that the religious beliefs and practices of the Appellant in the past have had an overall adverse impact upon the children in the following ways:

1) use of fear to alienate the children from their father and other significant family members who do not belong to Appellant's church;

2) physical abuse, (bruising and excessive beating of the children) to "break their wills;"

3) Producing chaos, fear, confusion and discomfort in the children regarding their father and other family members who are characterized as "going to hell" and "filled with the devil," and regarding their father's church (Methodist) as an institution "created by the devil;"

4) isolation of the children from old friends and from forming associations with others who are not members of Appellant's church and from engaging in activities (social or recreational) that are not sanctioned by Appellant's church.

Therapist Hacker concluded that the environment and practices of

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Appellant's church are not conducive to the healthy social, psychological, and intellectual development of the Peterson children and that Appellant's beliefs and practices, as applied, constitute a threat to the physical, mental and emotional well-being of the children (461:5-14; 462:4-15; 480:14-25; 481:1-24).

The District Court was correct in finding that the Appellant's "religious beliefs have caused a deficiency or incapacity which has prevented or will prevent performance of a reasonable parental obligation in rearing her children and has caused or will result in detriment to the children's well-being" (T50).

IV.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN PROHIBITING APPELLANT FROM DISCUSSING HER RELIGIOUS BELIEFS WITH THE MINOR CHILDREN.

The right to practice religion freely does not include liberty to expose the child to ill health. LeDoux v. LeDoux, supra. There is little doubt, from the great weight of the evidence adduced at trial, that the Appellant's religious beliefs and practices, as to which the children have been exposed, have had an adverse impact upon the immediate and temporal well-being of the children. Moreover, in the professional assessment of therapist Caryn Hacker, Appellant's religious beliefs and practices pose a substantial threat of harm to the future physical, emotional, and intellectual health and well-being of the children. With the exception of the physical beatings of the children, the singularly most destructive force levied upon the children by the Appellant has been her religious exhortations of them, verbally manipulating them by means of fear and intimidation.

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The District Court, in its Decree of Modification, placed custody of the three children with Appellee, Robert Peterson. This Court has long upheld the right of a custodial parent to control the religious training of a child. LeDoux v. LeDoux, supra; Burnham v.Burnham, supra; and Goodman v. Goodman, supra. Appellee is a member of the Methodist Church and ostensibly, will want to raise the children in that religion. He has encountered difficulties in the past when attempting to take the children to his church (218:3-25). Appellant has described Appellee's church to the children as "the daughter of the great whore," i.e., and instrument "created by the devil" (218:20-25; 219:1-4). The instant case presents a more polarizing situation than was ever found in LeDoux where select beliefs and practices of the religion of the non-custodial parent were in contravention of the beliefs and practices of the religion of the custodial parent. Appellant admits that her religion is wholly unreconcilable with that of the Appellee (Brief of Appellant, Page 9). Indeed, Appellant herself declares in her Brief:

"Under the Appellant's belief, those not adhering to the word of God as set forth in the Bible are lost, and it is the responsibility of the members of her faith to bring these person into 'God's, Kingdom.' Under the doctrine of the Appellant's church, the Appellee and the parents of the Appellant were 'lost."' (Brief of Appellant, Page 9) (Emphasis added.)

It is clear that Appellant not only rejects Appellee's religion in toto, but more significantly, she acknowledges that she is mandated by her church to actively bring non-believers into "God's Kingdom" (301:20; 302:7; Brief of Appellant, Page 9). Given the fact that Appellant perceives Appellee and her own parents as "lost," how could she not regard the Peterson children, also, as "lost," once

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placed in the custody of the Appellee? Under the beliefs of Appellant's own church, which condemns outright the Appellee's church, Appellant must necessarily attempt to recruit the children into her own religion. In so doing, there is no reason to believe that she would refrain from employing her church's tenets of fear and intimidation as she has so often done before.

Appellee submits to the Court that children are impressionable, especially to the strongly-expressed convictions of their parents, and the Peterson children are no exception. The evidence adduced at trial abundantly illustrates that as a result of Appellant's religious discussions with the children, the children have been thrown into states of fear, chaos, confusion and alienation from their father and other significant family members. The District Court wisely included in its Decree of Modification a clause prohibiting the Appellant from discussing her religion with the children to reduce the fear and instability and stress upon the children surrounding this issue and also to ensure that the Appellee's right to control the religious training of the children will be meaningful. It is clear from the record that the first and only concern in her life is her religious beliefs. It is also clear that this "religion" to which Appellant belongs believes very strongly in fear, coercion and intimidation. When combining these two factors with the fact that this group has no qualm with lying to outsiders since they believe themselves to simply be deceiving the devil, (350:4-7) it becomes evident that the Appellant would have continued to do whatever she could to keep these children under the influence of the organization to which she belongs, including using fear and intimi-

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dation on the children and interfering with Appellee's right, as the custodial parent, to raise the children in a different religious atmosphere. The Decree of Modification in this regard was narrowly tailored in compliance with the requirements set forth in LeDoux, supra. Given the evidence in this case and the intolerant nature of Appellant's religious beliefs, Appellee submits that there is no "less restrictive" means to accomplish the legitimate ends regarding the children's well-being in connection with the Appellant's right of visitation. The District Court did not abuse its discretion in so prohibiting Appellant from religious discussion with the children during visitation, and did not violate Appellant's constitutional rights.

In conclusion, the Appellant respectfully requests the Court to affirm so much of the District Court's ruling as pertains to Appellant's appeal and award the Appellee a reasonable attorneys fee for said appeal.

BRIEF ON CROSS-APPEAL

STATEMENT OF CASE

(a)      Nature of the Case

See the statement of the case in the Appellee's portion of the brief.

(b)     The Issue Tried before the Court

The issue tried before the Court was the issue as to child support to be paid by the Appellant when custody was changed to the Appellee.

(c)     How the Issue Was Decided

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The Trail Court's decree did not address the issue as to child support to be paid by Appellant.

(b) Scope of the Supreme Court's Review

De novo on the record, affirmed in the absence of an abuse of discretion.

Proposition of Law

I.

The amount of child support ordered in a dissolution of marriage action is initially left to the sound discretion of the trial court and is reviewed de novo on the record by the Supreme Court and is affirmed in the absence of an abuse of discretion.

Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988)

Grace v. Grace, 221 Neb. 695, 308 N.W.2d 280 (1986)

Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985)

II.

The Nebraska Child Support Guidelines were enacted to recognized the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes and even in very low income cases, a minimum support of $10 to $50 per month should be set.

Nebraska Child Support Guidelines

ARGUMENT

I.

THE DISTRICT COURT ERRED IN NOT ORDERING THE PETITIONER TO PAY A REASONABLE SUM FOR THE CHILD SUPPORT OF THE THREE MINOR CHILDREN OF THE PARTIES.

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The introduction to the Nebraska Child Support Guidelines states that the main principal behind the guidelines is to recognized the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes. The amount of child support ordered in a Dissolution of Marriage action is initially left to the sound discretion of the trial court and is reviewed de novo on the record by the Supreme Court and will be affirmed absent an abuse of discretion. Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988); Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986); Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985).

The child support guidelines are, however, to be applied as a rebuttable presumption. The guidelines state that the child support obligations shall be established in accordance with provisions of the guidelines unless the Court finds in writing or on the record that one or both parties have produced sufficient evidence to repute the presumption that the guidelines should be applied. The guide lines go on to state that deviations from them are permissible when the application of the guidelines in an individual case would be unjust or unappropriate.

In the case at bar the Court did not make any findings in writing in regard to the child support guidelines nor does the record have sufficient evidence to repute the presumption that the guidelines should be applied. In the case at bar there was no evidence in regard to the Respondent's current income but there was testimony as to Petitioner's income. Since the Petitioner is now the non-custodial parent a reasonable determination of child support can be

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made by the evidence in the record. The evidence indicated that the Petitioner made approximately $30 per week working at the Sale Barn Cafe in York, Nebraska. Furthermore, the Petitioner makes $5 an hour working for an elderly disabled gentleman working approximately 25 hours per week. Using these figures the Petitioner makes approximately $158 per week. Although this seems to be a very low amount, the Petitioner finds herself able to~pay approximately twenty-five per cent of her income to the Good Life Pentecostal Church in York, Nebraska (296:7-11). Furthermore, the Court allowed all the evidence offered in the hearing for temporary custody. Since the child support guidelines vary very little by the addition of the custodial parents income, the cross-appellant asserts to this Court that there was ample evidence in the record from which to make some award of child support. Using a basis of $125 per week for the $5 per hour and 25 hours per week that the Petitioner worked for Mr. Tucker and the additional $30 per week that she made from working at the Sale Barn Cafe one can arrive at a figure of $155 per week income for Mrs. Peterson. When multiplying that by 52 a figure of $8,060 is arrived at. When dividing this by 12 a figure of $672 per month is shown.

According to the child support guidelines. If we assume that Mr. Peterson's income did not substantially affect the calculations, the $650 per month plugged into the guidelines for three children shows reasonable child support of $140 per month. If Mr. Peterson was unemployed or not making any income the guidelines indicate that $140 per month would be fair and reasonable. Even though Mr. Peterson does have a business, it is certainly not unfair or unreasonable

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that Mrs. Peterson contribute some small amount for the support of her children. $140 per month for three children is an extremely modest amount.

Paragraph I. of the child support guidelines states that it is recommended that even in very low income cases, a minimum of $10 to $50 per month should be set.

As stated in Bird v. Bird, 205 Neb. 619, 288 N.W.2d 747 (1980) "(w)hile the cost of caring for a child is an important consideration in determining child support, equally important is the father's ability to make the payments. It is not advantageous to either party to place the payments for child support beyond the reach or capability of the father." 205 Neb. at 621, 288 N.W.2d at 748.

Considering that the Petitioner has the ability to pay approximately twenty-five per cent of her income to her church even when she had the three children in her care and custody and was supporting those three children, it is not unreasonable to expect her to be able to pay some reasonable amount for the support of these children now that she is no longer faced with the financial burden of providing for their daily care on a full time basis.

Wherefore, Cross-Appellant respectfully requests this Court to order the Cross-Appellee to pay $140 per month as child support for the support of the three minor children, to make said support obligation retroactive to the date of the Decree of Modification, and to award the Appellee and Cross-Appellant a reasonable attorneys fee for his representation in this appeal.

Respectfully submitted,

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By  Bruce E. Stephens, #16668
    Attorney at Law
    Olde York Plaza, Suite B
    1100 Lincoln Avenue
    P.O. Box 56
    York, Nebraska 68467
    (402) 362-3603

   Christine P. Costantakos, #15795
   Attorney at Law
   1130 Commercial Federal Tower
   2120 South 72nd Street
   Omaha, Nebraska 68124
   (402) 397-5757

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Used by permission of Bruce E. Stephens, Esq. and posted October 14, 1997.

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