Blank v. Blank , 303 Neb. 602 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/09/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
BLANK v. BLANK
Cite as 303 Neb. 602M arissa R enee Blank, appellant, v.
Caleb Robert Blank, appellee.
___ N.W.2d ___
Filed July 12, 2019. No. S-18-751.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Evidence: Appeal and Error. In an action for the dis-
solution of marriage, an appellate court reviews de novo on the record
the trial court’s determinations of custody, child support, property divi-
sion, alimony, and attorney fees; these determinations, however, are
initially entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
4. Due Process. Due process principles protect individuals from arbitrary
deprivation of life, liberty, or property without due process of law.
5. Due Process: Notice. Due process does not guarantee an individual
any particular form of state procedure; instead, the requirements of due
proc­ess are satisfied if a person has reasonable notice and an oppor-
tunity to be heard appropriate to the nature of the proceeding and the
character of the rights which might be affected by it.
6. Constitutional Law: Due Process. The determination of whether pro-
cedures afforded an individual comport with constitutional requirements
for procedural due process presents a question of law.
7. Child Custody. The factual inquiry for awarding joint custody is sub-
stantially different from that for an award of sole custody.
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BLANK v. BLANK
Cite as 303 Neb. 6028. ____. When a trial court determines at a general custody hearing that
joint physical custody is, or may be, in a child’s best interests, but
neither party requested joint custody, the court must give the parties
an opportunity to present evidence on the issue before imposing joint
custody.
9. ____. Joint physical custody must be reserved for those cases where, in
the judgment of the trial court, the parents are of such maturity that the
arrangement will not operate to allow the child to manipulate the par-
ents or confuse the child’s sense of direction, and will provide a stable
atmosphere for the child to adjust, rather than perpetuating turmoil or
custodial wars.
10. ____. A trial court’s decision to award joint legal or physical custody
can be made without parental agreement or consent so long as it is in the
child’s best interests.
11. ____. The best interests of the child are the primary consideration for
developing custodial plans.
12. ____. In considering a child’s best interests in the development of
custodial plans, it is a common occurrence and a court is permitted to
supply a party with final decisionmaking authority in some areas to
avoid future impasses which could negatively affect the child while
maintaining both parents’ rights to consultation and participation in
important decisions.
Appeal from the District Court for Phelps County: Terri S.
H arder, Judge. Affirmed.
Jeffrey P. Ensz, of Lieske, Lieske & Ensz, P.C., L.L.O., for
appellant.
John D. Icenogle, of Bruner Frank, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Marissa Renee Blank appeals the district court’s decree of
dissolution dissolving her marriage to Caleb Robert Blank and
awarding joint legal and physical custody of the parties’ two
minor children. On appeal, Marissa claims the court erred in
awarding joint custody without advance notice when neither
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BLANK v. BLANK
Cite as 303 Neb. 602party made such request. Marissa also claims the court erred in
determining that the case did not involve domestic abuse and in
not making the statutorily required additional findings. Finally,
Marissa claims the court abused its discretion in determining
joint custody was in the children’s best interests. For the rea-
sons set forth herein, we affirm.
BACKGROUND
Marissa and Caleb were married on May 19, 2011. The
parties have two minor children: a daughter, who was born in
2011, and a son, who was born in 2014.
Marissa filed a complaint for dissolution of marriage in
February 2017. In the complaint, Marissa stated, “I am and my
spouse is able to provide support for the child(ren)” and asked
that the court “[a]ward [j]oint legal custody of the children of
this marriage.” Caleb signed a voluntary appearance acknowl-
edging receipt of a copy of the complaint.
At the same time the complaint was filed, Marissa offered
a proposed parent-created parenting plan which was signed by
both parties. This proposed plan outlined that Marissa would
have legal custody in that she “shall have the legal respon-
sibility and authority to make final decisions concerning the
parenting functions necessary to raising the child(ren).” The
proposed plan additionally listed Marissa’s residence as the
principal place of residence subject to the terms of the plan. As
to parenting time and holidays, the proposed plan detailed that
the parties’ work schedules would dictate the parenting times
and indicated that the parties would be able to work together to
minimize either party’s paying for daycare. No order adopting
this plan was entered by the district court.
Caleb filed another proposed parenting plan signed by both
parties on May 11, 2017. This proposed plan established that
the “parties shall share joint legal and physical custody of the
minor children and as such, shall maintain the legal respon-
sibility and authority to make final decisions concerning the
parenting functions necessary for raising the minor children.”
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Cite as 303 Neb. 602The proposed plan explained that the children’s principal resi-
dences would be with both Marissa and Caleb and outlined a
parenting time schedule for Caleb. This plan also contained
references to the parties’ ability to coordinate adjustments to
the schedule and discuss parenting decisions with each other.
Again, no order adopting the plan was entered by the dis-
trict court.
On May 23, 2017, Caleb filed a motion for temporary
orders seeking “joint temporary legal and physical care, cus-
tody[,] and control” of the children. Following a hearing on
the motion, the court entered a “Temporary Order/Parenting
Plan.” That order awarded temporary legal and physical cus-
tody to Marissa and declared that each parent have full and
equal access to the children’s education and medical records
and the authority to make emergency decisions affecting the
health or safety of the children. The order further provided
a parenting plan with continuous and easy telephone access
and midweek, every-other-weekend, and alternating-holiday
parenting time.
A trial was held on the complaint in June 2018 on the
remaining issues to be decided, including “custody of the par-
ties’ two minor children, parenting time, and financial issues
concerning the children.”
Marissa testified as to the care of the children. She opined
that throughout the children’s lives, she was the primary care-
taker. She explained that she took 2 months off work to stay
home after their daughter was born, that she worked only part
time after returning to the work force, and that she would split
her work shifts in order to go home to breastfeed because their
daughter “wouldn’t take a bottle.” Marissa further explained
that she was primarily the one to take the children to events
and activities. Marissa testified that Caleb would take care of
the children when she was working and he was off but that
when both parents where available to care for the children, the
responsibilities fell solely on her. Marissa also testified that
following the temporary order, the children were performing
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Cite as 303 Neb. 602well, and that the schedule is very structured for their benefit.
Marissa testified about the parties’ working relationship and
agreed they have made accommodations for each other with
regard to the children’s care. Marissa further testified that fol-
lowing the temporary order, the parties were able to communi-
cate and work together civilly. Marissa testified that both she
and Caleb have new relationships and, with those parties, new
houses in which the children stay.
Marissa asserted that she was the primary parent to take the
children to the doctor when they were sick and that the parties
agreed not to vaccinate the children. However, Marissa did
admit Caleb was the one who took the children to the doctor
for chicken pox and lice following the temporary order.
Caleb testified that the parties shared the childcare responsi-
bilities equally when both parents were home. However, Caleb
explained that because he works more, Marissa would watch
the children more when he was not home. Caleb explained
that when Marissa was working, he would make supper,
prepare baths, and put the children to bed. Caleb also testi-
fied that while he initially agreed not to vaccinate the chil-
dren, he would now seek to have them vaccinated if given
legal custody.
Caleb admitted that he had punched a couple of holes in
a basement wall within 2 or 3 years prior to trial while the
children were upstairs in the home. Caleb explained, “An argu-
ment, I honestly do not recall what it was about, escalated; and
I just — I got really angry. So I walked away. I went into the
basement of the marital home, and I punched the wall.” Caleb
also admitted that he had “open hand smacked” Marissa at
one point due to a disagreement which occurred “so far in the
past.” Marissa agreed on rebuttal to her attorney’s questioning
that Caleb “slapped you at some point in the relationship.”
However, Caleb also testified that while Marissa was watching
their son, she kicked a hole in a door out of frustration, and
testimony was received that Marissa is more physical with the
children than Caleb.
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Cite as 303 Neb. 602Marissa requested that the court grant her sole custody and
testified that she did not believe a shared custody arrange-
ment was in the children’s best interests. Specifically, Marissa
responded as follows to questioning on direct examination:
Q [by Marissa’s counsel:] There was some talk — well,
maybe not. Rather do you believe that a shared custody
arrangement where you split time would be in the chil-
dren’s best interest?
A [by Marissa:] No.
Q Why do you feel that way?
A I feel that way because Caleb rushed into a new rela-
tionship, not only a new relationship but a new relation-
ship where she had kids as well. And I don’t feel that his
relationship with the kids was a strong enough bond for
them not to worry if he’s still going to love them.
....
Q Do you believe there’s any question as to who the
primary caretaker was during your marriage between you
and Caleb?
....
A No.
Q Who was the primary caretaker?
A It was me.
Q Do you believe — is that part of your reason why
you believe that a shared custody arrangement would not
be appropriate?
A Yes.
In response to questioning on cross-examination about her
concerns “about joint custody” because Caleb had “rushed
into a . . . relationship,” Marissa agreed that she began her
new relationship and moved in with her significant other
before Caleb’s new relationship. Counsel for Marissa argued
during closing argument that this case is not appropriate for
joint custody or a shared custody arrangement, “as clearly
there’s enough conflict in here that that could create a problem
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Cite as 303 Neb. 602for the children” and cause a “significant upheaval” of the
children’s current structure, which was working.
Caleb, in turn, requested that the court award him full cus-
tody. Alternatively, Caleb asked for an award of joint custody,
responding as follows on direct examination:
Q [by Caleb’s counsel:] And if the Court doesn’t grant
you sole legal and physical custody, are you asking the
Court to award you joint?
A Yes.
Q Are you willing to coparent with [Marissa]?
A Yes.
Q And how would you go about doing that?
A Communication, open mindedness. I understand and
respect that she is their mother, and they will always love
her as they will always love me. And I will do my best to
foster a positive relationship with their mother as I feel
is needed for them.
....
Q . . . Do you believe that joint custody is a via-
ble option?
A It could be.
Q Are you willing to work for it?
A Yes.
....
Q Do you believe that it’s in the children’s best inter-
est that joint legal custody be granted?
A Yes.
Counsel for Caleb also addressed joint custody during clos-
ing arguments, asserting, “[I]t’s [not] good public policy to
throw out joint custody simply because [Marissa] doesn’t want
to put in any effort to do it” and “We’ve heard a lot of testi-
mony from [Caleb] who says he’s been more than willing to
attempt to coparent as a joint family.”
Following trial, the court entered a decree dissolving the
marriage and awarding the parties joint legal and physical cus-
tody of the children. Additionally, the decree ordered that, in
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BLANK v. BLANK
Cite as 303 Neb. 602the event of impasses after discussion of major issues, Caleb
“shall make the decision with respect to issues of health and
religion” and Marissa “shall make the decision on education.”
The court specifically found this was not a domestic abuse case
as defined in Nebraska’s Parenting Act, that the parties have the
ability to coparent and make contributions to the children, and
that joint custody is in the children’s best interests. The court
again declared that each parent have full and equal access to
the children’s education and medical records and the authority
to make emergency decisions affecting the health or safety of
the children. In an attached parenting plan, the court instructed
that the parties share parenting time on a week-on-week-off
basis with assigned midweek and holiday parenting times for
the parent who does not have the children at that time.
ASSIGNMENTS OF ERROR
Marissa assigns, restated, that the district court erred in
(1) awarding joint physical custody without advanced notice
when neither party made such request, (2) not finding this to
be a domestic abuse case and failing to make the statutorily
required additional findings in awarding joint physical custody,
and (3) abusing its discretion in determining joint physical cus-
tody was in the children’s best interests.
STANDARD OF REVIEW
[1-3] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s
determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however,
are initially entrusted to the trial court’s discretion and will
normally be affirmed absent an abuse of that discretion.1 A
judicial abuse of discretion exists when reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters submitted
1
Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017).
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Cite as 303 Neb. 602for disposition.2 When evidence is in conflict, an appellate
court considers, and may give weight to, the fact that the trial
judge heard and observed the witnesses and accepted one ver-
sion of the facts rather than another.3
ANALYSIS
Notice of Joint Custody
Consideration
Neb. Rev. Stat. § 42-364(1)(b) (Reissue 2016) requires
a court to determine physical custody based upon the best
interests of a child and such determination shall be made by
incorporating (i) a parenting plan developed by the parties,
if approved by the court, or (ii) a parenting plan developed
by the court based upon evidence produced after a hearing in
open court if no parenting plan is developed by the parties and
approved by the court. Section 42-364(3) allows for a joint
physical custody award if (a) both parents agree to such an
arrangement in the parenting plan and the court determines
that such an arrangement is in the best interests of the child or
(b) the court specifically finds, after a hearing in open court,
that joint physical custody or joint legal custody, or both, is in
the best interests of the minor child regardless of any parental
agreement or consent.
Marissa contends that the district court erred in award-
ing joint physical custody because neither party made such a
request prior to trial and the court did not provide notice of
its consideration. In arguing the parties lacked notice and an
opportunity to be heard on the issue of joint physical custody,
Marissa cites Hill v. Hill,4 a Nebraska Court of Appeals case
utilizing our opinion in Zahl v. Zahl.5
2
Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).
3
Erin W., supra note 1.
4
Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013).
5
Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
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Cite as 303 Neb. 602[4-6] Both Zahl and Hill evaluated the notice requirement
under a due process analysis. Due process principles pro-
tect individuals from arbitrary deprivation of life, liberty, or
property without due process of law.6 Due process does not
guarantee an individual any particular form of state proce-
dure; instead, the requirements of due process are satisfied if
a person has reasonable notice and an opportunity to be heard
appropriate to the nature of the proceeding and the character of
the rights which might be affected by it.7 The determination of
whether procedures afforded an individual comport with con-
stitutional requirements for procedural due process presents a
question of law.8
[7,8] The parties in Zahl both sought sole custody of their
child. However, after a general custody hearing in which the
parties only presented evidence on why he or she would be
the best sole custodian, the trial court awarded joint legal and
physical custody.9 No reference to joint custody was made dur-
ing or prior to the hearing absent the mother’s testimony at
the end of the hearing that she would be willing to cooperate
if joint custody was imposed.10 In reversing the trial court’s
decision, we explained that the factual inquiry for awarding
joint custody is substantially different from that for an award
of sole custody.11 As such and because neither party requested
it, the parties were not put on notice that joint custody was in
issue and the parties were entitled to a new hearing with such
notice.12 We held that when a trial court determines at a general
custody hearing that joint physical custody is, or may be, in a
6
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
7
Id.8
Id.9
Zahl, supra note 5.
10
Id.11
See id.12
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Cite as 303 Neb. 602child’s best interests, but neither party requested joint custody,
the court must give the parties an opportunity to present evi-
dence on the issue before imposing joint custody.13
Similarly, in Hill, both parties requested sole custody, nei-
ther party requested joint physical custody prior to trial, and
both parties presented evidence on their requests for sole
custody.14 The only evidence presented on joint custody was
testimony from the father that, while he wanted sole custody,
he was willing to perform under a joint custody arrangement if
ordered.15 Nevertheless, the trial court awarded joint physical
custody.16 Utilizing our holding in Zahl, the Court of Appeals
reversed the trial court’s decision, concluding the trial court
had abused its discretion in not giving the parties an oppor-
tunity to present evidence on the issue before imposing joint
physical custody.17
The instant case is distinguishable from the facts of Zahl
and Hill. Unlike the parties in those cases, Marissa and Caleb
had notice prior to trial that joint custody was at issue. In the
complaint, Marissa asked for “[j]oint legal custody,” did not
request a specific physical custody arrangement, and provided
that both parents were capable of providing support for the
children and were fit and proper people to have care, custody,
and control of the children. In his May 11, 2017, proposed par-
enting plan which was signed by Marissa, Caleb requested that
the “parties . . . share joint legal and physical custody of the
minor children.” This plan proposed designating both Marissa’s
and Caleb’s homes as the children’s principal residences and
contained references to the parties’ ability to coordinate adjust-
ments to the schedule and discuss parenting decisions with
13
See id.14
Hill, supra note 4.
15
Id.
16
Id.
17
Id.
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Cite as 303 Neb. 602each other. Finally, in his May 23 motion for temporary orders,
Caleb again sought joint legal and physical care, custody, and
control of the children. Accordingly, these filings provided
Marissa and Caleb reasonable notice unlike the complete lack
of prior notice in Zahl and Hill.
Moreover, it is clear from the record that Marissa understood
joint physical custody was at issue during the trial. As the first
witness, Marissa responded to direct examination from her
counsel questioning whether she believed “a shared custody
arrangement where [she would] split time” with Caleb was in
the children’s best interests. Testifying she did not believe such
shared custody was appropriate, Marissa explained the reasons
why she did not support joint custody, namely her opinion
that Caleb rushed into a new relationship with another person
with children and her belief that she was the primary caretaker
of the children while they were married. In closing argu-
ments, Marissa’s counsel again addressed the question of joint
physical custody, arguing this case is not appropriate for joint
custody or a shared custody arrangement “as clearly there’s
enough conflict in here that that could create a problem for the
children” and cause a “significant upheaval” of the children’s
current structure, which was working.
Considering all of the above, Marissa had reasonable notice
that joint custody was at issue during the trial, had an oppor-
tunity to be heard on the issue of joint custody during the trial,
and presented evidence on the issue of joint custody during
the trial. As such, the district court did not err in considering
joint physical custody.
Domestic A buse Determination
Marissa argues awarding joint physical custody constituted
an abuse of discretion because Caleb testified that he “open
hand smacked” Marissa once during the parties’ marriage
and punched holes in the basement walls. Marissa argues this
testimony established Caleb committed domestic intimate part-
ner abuse against her. However, the district court determined
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Cite as 303 Neb. 602this was not a domestic abuse case as defined by Nebraska’s
Parenting Act. As such, the court made no additional findings
pursuant to Neb. Rev. Stat. § 43-2932(3) (Reissue 2016).
Nebraska’s Parenting Act establishes certain requirements
for the development of a parenting plan in cases where a par-
ent is found to have committed child abuse or neglect, child
abandonment, or domestic intimate partner abuse or to have
interfered with the other parent’s access to the child.18 Section
43-2932(3) explains the additional requirements if a court
determines a parent committed domestic abuse, stating:
If a parent is found to have engaged in any activity speci-
fied in subsection (1) of this section, the court shall not
order legal or physical custody to be given to that parent
without making special written findings that the child and
other parent can be adequately protected from harm by
such limits as it may impose under such subsection. The
parent found to have engaged in the behavior specified in
subsection (1) of this section has the burden of proving
that legal or physical custody, parenting time, visitation,
or other access to that parent will not endanger the child
or the other parent.
Under Neb. Rev. Stat. § 43-2922(8) (Reissue 2016),
“[d]omestic intimate partner abuse” means an act of abuse as
defined in Neb. Rev. Stat. § 42-903 (Reissue 2016) and a pat-
tern or history of abuse evidenced by one or more of the fol-
lowing acts:
Physical or sexual assault, threats of physical assault or
sexual assault, stalking, harassment, mental cruelty, emo-
tional abuse, intimidation, isolation, economic abuse, or
coercion against any current or past intimate partner, or
an abuser using a child to establish or maintain power
and control over any current or past intimate partner,
and, when they contribute to the coercion or intimidation
of an intimate partner, acts of child abuse or neglect or
18
§ 43-2932.
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Cite as 303 Neb. 602threats of such acts, cruel mistreatment or cruel neglect
of an animal as defined in section 28-1008, or threats of
such acts, and other acts of abuse, assault, or harassment,
or threats of such acts against other family or house-
hold members.
The first sentence of § 43-2922(8) directs us to § 42-903(1)(a)
to determine if domestic abuse occurred. Section 42-903(1)(a)
defines “[a]buse” as “[a]ttempting to cause or intentionally and
knowingly causing bodily injury with or without a dangerous
instrument” to a family or household member. Spouses and
former spouses are considered household members.19
Returning to § 43-2922(8), we must examine the remain-
der of the factors which would require the making of spe-
cial written findings. After identifying an act of abuse per
§ 42-903(1)(a), the rest of § 43-2922 is puzzling. The language
indicates that the act of abuse previously identified must be
coupled with a “pattern” or “history,” suggesting that before
the factual findings are required, the Legislature wanted more
than one act of abuse.20 In contrast, § 43-2922 also states “one”
act, suggesting perhaps a single act of abuse would trigger the
requirement for specific factual findings. There are further
interpretations not posited here.
Because of the word “and” before “pattern” or “history,” we
believe the most logical reading of § 43-2922 is that there must
be more than one act of abuse. However, if the Legislature
intended that one act be sufficient, it can revise the statu-
tory language.
However, we need not resolve the tension here to determine
there was a failure of proof before the trial court. In this case,
no evidence was received that Caleb’s actions caused or were
intended to cause bodily injury or placed Marissa in fear of
such injury and the record does not demonstrate a pattern or
history of similar acts.
19
See § 42-903(3).
20
See § 43-2922(8).
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Cite as 303 Neb. 602As to the slapping incident, Caleb testified that he “open
hand smacked” Marissa at one point during their relationship
due to a disagreement which occurred “so far in the past.” He
did not recall any other surrounding circumstances and pro-
vided no testimony on the cause, effect, or intent of the action.
While Marissa answered “Yes” to questioning as to whether
Caleb “slapped [her] at some point during the relationship,”
she offered no other testimony or evidence on the incident.
Though we agree that an “open hand smack[]” may intend,
cause, or place someone in fear of the requisite bodily injury,
we have no evidence that such was the case here. There is no
testimony on the severity, effect, or surrounding circumstances
on which we can rely to determine the intention or result of the
action. No evidence was adduced as to any redness, bruising,
swelling, or other injury sustained. Marissa never contended
that Caleb placed her in fear of bodily injury or in fear for her
or the children’s safety.
In addition, there is no testimony of a pattern or history of
similar actions. An appellate court considers, and may give
weight to, the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than
another.21 Without more, we cannot say the district court erred
in its determination that the testimony on the “open hand
smack[]” did not amount to domestic intimate partner abuse.
The record is similarly void of details as to the circum-
stances surrounding Caleb’s punching holes in the basement
wall. Caleb testified that he punched these holes 2 or 3 years
prior to trial, explaining, “An argument, I honestly do not
recall what it was about, escalated; and I just — I got really
angry. So I walked away. I went into the basement of the
marital home, and I punched the wall.” Although Caleb testi-
fied the children were in the house, he explained they were
not with him when he punched the wall. No other testimony
21
See Erin W., supra note 1.
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text of the argument, if anyone else was in the basement,
how long after the argument took place Caleb punched the
wall, whether Caleb had a history of similar acts, or any
other information that would inform whether Caleb intention-
ally placed Marissa in fear of bodily injury. Again, on the
record before us, we cannot say the district court erred in its
determination that the testimony on Caleb’s punching holes
in the basement wall did not amount to domestic intimate
partner abuse.
Sufficiency of Evidence
Marissa assigns the court abused its discretion in awarding
joint physical custody, arguing the evidence presented at trial
did not justify such an award. Specifically, Marissa claims the
evidence demonstrated the parties’ relationship was “replete
with conflict.”22
[9] Marissa is correct that we have said joint physical cus-
tody must be reserved for those cases where, in the judgment of
the trial court, the parents are of such maturity that the arrange-
ment will not operate to allow the child to manipulate the par-
ents or confuse the child’s sense of direction, and will provide
a stable atmosphere for the child to adjust, rather than perpetu-
ating turmoil or custodial wars.23 However, we have also noted
that § 42-364(3)(b) specifically provides that a court may order
joint custody “if the court specifically finds, after a hearing in
open court, that joint physical custody or joint legal custody,
or both, is in the best interests of the minor child regardless of
any parental agreement or consent.”24 And we have affirmed
a trial court’s decision not to modify an award of joint legal
custody even though the evidence showed that the parties
22
Brief for appellant at 12.
23
See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
24
Accord Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
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with one another.25
In this case, there was sufficient evidence to support the
court’s determination that joint custody was in the children’s
best interests. Marissa and Caleb testified that both parties
watched and cared for the children during the parties’ relation-
ship. Both parties explained that they have been communicating
and working together civilly while the temporary custody order
has been in place and have each made accommodations for the
other with regard to the children’s care. Marissa and Caleb
detailed that when the children got chicken pox and lice during
the pendency of these proceedings, Marissa communicated the
issues to Caleb, Caleb took them to treatment, and Marissa and
Caleb communicated about the implementation of the treat-
ment. There was testimony concerning the parties’ decision not
to vaccinate the children and Caleb’s openness to do so in the
future, but nothing in the record or decree demonstrates that
the court relied on this testimony in making its physical cus-
tody determination. Although Marissa testified that she did not
believe joint custody was appropriate due to Caleb’s new rela-
tionship and her being the children’s primary caretaker, Caleb
testified that joint custody would be a viable option that he
would be willing to work for utilizing “[c]ommunication” and
“open mindedness.”
As previously stated, an appellate court reviews de novo
on the record the trial court’s determinations of custody; these
determinations, however, are initially entrusted to the trial
court’s discretion and will normally be affirmed absent an
abuse of that discretion.26 Taking into account that the trial
judge heard and observed the witnesses and the evidence pre-
sented27 on the parties’ relationships with their children, ability
25
See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d
230 (2015).
26
Erin W., supra note 1.
27
See id.- 619 -
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Cite as 303 Neb. 602to parent, communication, and history of working together for
the children’s care, the district court did not err in determining
that joint custody was in the children’s best interests.
Division
of Decisionmaking
Authority
Marissa makes an additional argument in her brief that
the court’s division of final decisionmaking authority, which
awarded Marissa final authority over education issues and
Caleb final authority over health and religion issues, is “entirely
counter to the law regarding joint custody.”28 Marissa makes
no specific argument on why such division is improper, and
her assignments of error challenge only the court’s award of
joint physical custody. Nevertheless, the court acted within its
authority in dividing the final decisionmaking duties between
the parties.
[10] “Joint legal custody” is the mutual authority and respon-
sibility of the parents for making mutual fundamental decisions
regarding the child’s welfare, including choices regarding edu-
cation and health.29 A trial court’s decision to award joint legal
or physical custody can be made without parental agreement
or consent so long as it is in the child’s best interests.30
[11,12] The best interests of the child are the primary con-
sideration for developing custodial plans. In considering such
best interests, it is a common occurrence and a court is permitted
to supply a party with final decisionmaking authority in some
areas to avoid future impasses which could negatively affect
the child while maintaining both parents’ rights to consulta-
tion and participation in important decisions.31 Such grants of
28
Brief for appellant at 12.
29
§ 43-2922(11).
30
§ 42-364(3).
31
See, e.g., Boyer v. Boyer, 24 Neb. App. 434, 889 N.W.2d 832 (2017); State
on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208(2016).
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find no violation of the court’s discretion to do so.
CONCLUSION
The parties had sufficient notice and opportunity to be
heard on the issue of joint physical custody, and the record
fails to establish by a preponderance of the evidence that this
is a domestic abuse case requiring additional findings under
§ 43-2932(3). As such, and because there was sufficient
evidence to support the court’s finding that joint physical
custody is in the children’s best interests, the district court
did not err in awarding joint physical custody. Accordingly,
we affirm.
A ffirmed.
Miller‑Lerman, J., concurring.
I concur with the majority reading of Neb. Rev. Stat.
§ 43‑2922 (Reissue 2016) to the effect that before special find-
ings under § 43‑2922 are required, the evidence must show an
act of abuse as defined in Neb. Rev. Stat. § 42‑903 (Reissue
2016) and, in addition (per § 43‑2922), a pattern or history
of abuse.
The majority concludes that there was not sufficient evi-
dence to find an act of abuse under § 42‑903 on this record.
I disagree.
Section 42‑903(1)(a) defines “[a]buse” as, inter alia,
“[a]ttempting to cause or intentionally and knowingly caus-
ing bodily injury with or without a dangerous instrument” to a
family or household member.
On this record, both parties agree that during a “[d]isagree-
ment,” Caleb “slapped” or “open hand smacked” Marissa.
I believe these undisputed facts show that Caleb was
“[a]ttempting to cause . . . bodily injury,” § 42‑903(1)(a), and
therefore, that “an act of abuse” for purposes of § 43‑2922 was
shown. However, because there was no “pattern” or “history”
as those terms are used in the text of § 43‑2922, I agree with
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Cite as 303 Neb. 602the majority that the court was not required to make special
findings under § 43‑2922.
Papik, J., concurring.
I agree with the court’s determination that the district court
was not required to make special written findings under Neb.
Rev. Stat. § 43‑2932 (Reissue 2016) because the record did not
show that Caleb committed domestic intimate partner abuse.
While the court reaches that conclusion by finding a lack of
evidence that a slap caused bodily injury or was an attempt
to cause bodily injury, I write separately to note that I would
reach the same conclusion via a different route.
As the court points out, domestic intimate partner abuse is
defined by Neb. Rev. Stat. § 43‑2922(8) (Reissue 2016) as
follows:
[A]n act of abuse as defined in section 42‑903 and a
pattern or history of abuse evidenced by one or more of
the following acts: Physical or sexual assault, threats of
physical assault or sexual assault, stalking, harassment,
mental cruelty, emotional abuse, intimidation, isolation,
economic abuse, or coercion against any current or past
intimate partner, or an abuser using a child to establish or
maintain power and control over any current or past inti-
mate partner, and, when they contribute to the coercion
or intimidation of an intimate partner, acts of child abuse
or neglect or threats of such acts, cruel mistreatment or
cruel neglect of an animal as defined in section 28‑1008,
or threats of such acts, and other acts of abuse, assault, or
harassment, or threats of such acts against other family or
household members.
The court suggests that a single act of abuse under Neb.
Rev. Stat. § 42‑903 (Reissue 2016) might qualify as domestic
intimate partner abuse under one possible interpretation of this
definition. While the court does acknowledge that this is not
the most logical reading, I would go further and hold that the
text cannot be interpreted in this way.
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Cite as 303 Neb. 602The definition of domestic intimate partner abuse has two
elements separated by the word “and.” § 43‑2922(8). The
first element is an act of abuse under § 42‑903. The second
element is a “pattern or history of abuse.” § 43‑2922(8). The
statute goes on to provide that the second element, the pattern
or history of abuse, must be evidenced by “one or more” of a
number of enumerated acts, some of which again include the
word “abuse.” Id. If, however, a single instance of abuse could
count as the act of abuse for the first element and establish
the requisite pattern or history, the pattern or history ele-
ment of the statute would serve no purpose. This runs counter
to our practice of giving effect to all parts of a statute and
rejecting interpretations that would render parts of the statute
superfluous. See State v. Clemens, 300 Neb. 601, 915 N.W.2d
550 (2018).
I can see only one way that this statute could be interpreted
to allow for a single instance of abuse to satisfy the defini-
tion: to give the word “and” separating the two elements of the
definition discussed above a disjunctive rather than conjunctive
meaning. See § 43‑2922(8). We do have some precedent for
departing from the ordinary, grammatical meaning of “and”
and “or” in some cases. We have said that we may do so where
“a strict reading would lead to an absurd or unreasonable
result and defeat the intent of the statute.” See, e.g., Hoiengs
v. County of Adams, 245 Neb. 877, 900‑01, 516 N.W.2d 223,
240 (1994).
I have some questions about how judges are to go about
determining that a particular policy result is absurd or unrea-
sonable given that it is the Legislature’s function to declare
public policy rather than ours. See, e.g., Mays v. Midnite
Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018). See, also, John
F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387(2003). It seems to me that this practice can be squared with
the judiciary’s role in a system of separated powers only if it is
limited to instances in which the result of applying the gram-
matical meaning of the text is so bizarre that the Legislature
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Cite as 303 Neb. 602could not possibly have intended it. See Antonin Scalia &
Bryan Garner, Reading Law: The Interpretation of Legal Texts
237‑38 (2012).
I cannot say that the result reached by interpreting this
statute to mean what it says meets this test. While there are
undoubtedly policy arguments for imposing the additional
parenting plan requirements of § 43‑2932 even when there
has been a single act of abuse, it is not unthinkable that the
Legislature would require both an act of abuse and a pat-
tern or history before imposing these requirements. Drawing
the precise line at which these requirements apply strikes
me as a matter of legislative judgment, which is subject to
reconsideration not by this court, but, if it so chooses, by the
Legislature.
Because I do not understand the requirements of § 43‑2932
to be triggered by a single act of abuse, I do not believe the
statute applied in this case. There was evidence that Caleb
slapped Marissa, but Marissa has not shown us additional evi-
dence sufficient to demonstrate a pattern or history. I would
affirm the decision of the district court on this basis.