Randy S. v. Nicolette G. ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/15/2019 12:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
RANDY S. v. NICOLETTE G.
Cite as 302 Neb. 465
R andy S., appellee, v. Nicolette G., appellant.
___ N.W.2d ___
Filed March 8, 2019. No. S-18-407.
1. Child Custody: Appeal and Error. An appellate court reviews child
custody determinations de novo on the record, but the trial court’s deci-
sion will normally be upheld absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
4. Trial: Judges: Presumptions: Appeal and Error. An appellate court
presumes in a bench trial that the judge was familiar with and applied
the proper rules of law unless it clearly appears otherwise.
Appeal from the District Court for Washington County: John
E. Samson, Judge. Affirmed.
Mark J. Milone and Michael W. Milone, of Koukol &
Johnson, L.L.C., for appellant.
Edmond E. Talbot III, of Talbot Law Office, P.C., L.L.O.,
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Papik, J.
This appeal arises out of paternity proceedings involving
Nicolette G., Randy S., and their daughter Eleanor G. Nicolette
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RANDY S. v. NICOLETTE G.
Cite as 302 Neb. 465
appeals the order of the district court that awarded sole legal
and physical custody of Eleanor to Randy.
Nicolette’s primary argument on appeal rests on her conten-
tion that she proved at trial that Randy had committed child
abuse under Nebraska law. She argues that under such cir-
cumstances, the district court was required by statute both to
impose sufficient limitations on Randy’s custody and parenting
time to protect Eleanor and to make special written findings
that Eleanor would be protected by such limitations. She con-
tends the district court did neither. Nicolette also contends that
the district court generally abused its discretion in its award of
custody, parenting time, and child support. Upon our de novo
review of the record, we find no reversible error, and there-
fore, we affirm.
BACKGROUND
Paternity Proceeding.
Nicolette and Randy agree that they are the parents of
Eleanor. Eleanor was born in 2014. Nicolette and Randy have
never married one another, but they did live together with
Eleanor until October 2016, when Randy initiated paternity
proceedings.
Randy’s operative complaint sought a paternity determina-
tion, sole legal and physical custody, and child support. In her
operative answer and counterclaim, Nicolette sought a pater-
nity determination, sole physical custody, joint legal custody,
and child support. In accordance with the parties’ stipulation,
in November 2016, the district court entered a temporary
order providing for a parenting time cycle of two weekdays
with Randy, three weekdays with Nicolette, and alternating
weekends and major holidays. The matter proceeded to trial in
January 2018.
General Evidence Regarding Parties and
Their Relationship With Eleanor.
The evidence at trial showed that both Nicolette and Randy
have been active caregivers for Eleanor, both contributing their
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time, efforts, and money. Nicolette and Randy both described
strong, positive relationships with Eleanor. Both parties also
have supportive families.
Nicolette testified that she has degrees in culinary arts and
general studies, focusing on nutrition, healthcare, and restau-
rant management. As of the date of trial, Nicolette had spent 3
months working full time for a nonprofit organization focusing
on literacy. Previously, she had held various jobs in the retail
and service industries. At the time of trial, Nicolette resided
with her parents in Omaha, Nebraska, where Eleanor has her
own bedroom. Nicolette testified that within weeks, she would
move to her own two-bedroom apartment in Omaha, where
Eleanor would have her own bedroom.
Randy had completed high school and one semester of
community college. At the time of trial, Randy owned and
operated a business installing electronic accessories in cars,
something he had done for 12 years. He had also previously
done intermittent construction work and sold roofing materi-
als, gutters, and siding. Randy testified that at the time of
trial, he resided in Blair, Nebraska, where he owns a home
in which Eleanor has her own bedroom. Nicolette presented
evidence of unsafe conditions that existed in Randy’s home at
the time they separated in October 2016, including unfinished
and exposed electrical outlets and an open staircase without a
railing, leading from the first to the second floor. Randy pre-
sented evidence that he had fixed the unsafe conditions after
he filed suit.
Randy’s Alcohol Use.
The district court heard evidence about Randy’s alcohol use.
In general, the evidence showed that Randy, who has a family
history of alcoholism, drank heavily while Nicolette lived with
him, but since she had moved out in October 2016, his drink-
ing had diminished.
Nicolette testified that when she lived with Randy after
Eleanor’s birth, he drank alcohol daily. He would come home
from work with the odor of alcohol on his breath and continue
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RANDY S. v. NICOLETTE G.
Cite as 302 Neb. 465
to drink throughout the evening. Nicolette stated that he
would start with beer and progress to cocktails. According to
Nicolette, when Randy used alcohol, he had red eyes, poor
balance, and slurred speech; was confused; repeated himself “a
lot”; and “didn’t seem to have a care in the world.” Nicolette
stated that the more Randy drank, the more irritable he would
become. If she tried to advise him to slow down or stop drink-
ing, he would “get mean” and critical. Nicolette testified that
Randy’s drinking affected his ability to care for Eleanor. She
said he became “very inattentive, he was on his cell phone
a lot.”
Nicolette testified that after Eleanor was born, she had
observed Randy “drink to excess” and then drive at least once
or twice a week, and “[m]ore frequently” than “once or twice”
when Eleanor was in the car. According to Nicolette, Randy
turned down Nicolette’s offers to drive and did not stop driv-
ing with Eleanor in the car when he was “in that condition.”
Randy’s mother testified that she had observed Randy parent
Eleanor while he was intoxicated. She denied knowing whether
Randy had driven while intoxicated with Eleanor in the car.
She stated, “[H]aving a beer and being intoxicated, you know,
if I’m not counting I don’t know.”
Nicolette testified that both she and Randy had consumed
alcohol while on a boat with Eleanor and that Randy had oper-
ated the boat while drinking, with Eleanor on board. Nicolette
offered photographs purporting to show Randy operating a
boat while drinking, with Eleanor as a passenger. However,
either Randy is not operating the boat in the photographs or
it is indiscernible whether the beverages he is holding are
alcoholic. Randy’s mother admitted that she had observed
Randy consuming alcoholic beverages “while boating” and
had warned him about it more than once, but that she did not
recall whether Eleanor was present on the boat while Randy
was drinking.
Randy admitted to being a heavy drinker when he and
Nicolette were together. He claimed he used alcohol to cope
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RANDY S. v. NICOLETTE G.
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with Nicolette, with whom he found it difficult to get along.
He defined heavy drinking as consuming more than six beers
a day, 6 out of 7 days per week. Randy admitted that before
Nicolette left, he had cared for Eleanor while intoxicated. He
denied being intoxicated or “under the influence of alcohol”
when driving with Eleanor in the car, but he admitted to driv-
ing with her after he had consumed “[a] drink, maybe two,
over the course of three, four hours.”
Randy and his family testified that Randy had changed
his drinking habits and attitude since filing the paternity suit.
Randy’s stepmother testified that if she saw Randy drink at all,
he would have only one beer and tell others he was not drinking
because he had Eleanor. Randy’s brother testified that he saw
Randy once or twice a week. According to Randy’s brother,
before Eleanor was born, Randy was a regular drinker who
“drank quite a bit.” However, after breaking up with Nicolette,
Randy’s drinking had “changed a lot” and he no l­onger seemed
depressed. Randy’s brother stated that Randy does not drink
more than one or two beers in Eleanor’s presence.
Randy testified that since he and Nicolette separated, he
had not been intoxicated while caring for Eleanor. According
to Randy, since the separation, he usually consumed only one
or two drinks at a time, except for the occasional social event.
Randy maintained that 2 or 3 days per week, he does not con-
sume alcohol at all. On the other days, he may have “a couple
of drinks” after work. He stated that while Eleanor is in his
care, he sometimes has a beer with dinner and then another
drink after she is in bed.
Confrontational Behavior.
There was evidence that both parties had lashed out when
they were angry. Nicolette admitted that on one occasion,
when Eleanor was not present, she pushed Randy when he
tried to take her keys to prevent her from driving while she
was upset. Randy testified that before the parties separated,
Nicolette threatened to hurt herself, call the police, blame it
on Randy, and not allow him to see Eleanor again. Nicolette
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admitted that Randy had never hit her, but she testified that
when she resided with Randy, he would become angry, slam
doors, and throw and kick things around in front of Eleanor.
Nicolette stated that Randy had yelled at her and called her a
“bitch” on multiple occasions in front of Eleanor.
Nicolette’s Mental Health.
The parties presented evidence regarding Nicolette’s mental
health. Nicolette testified that she had been diagnosed with
depression and anxiety. Depression makes her tired, makes
her believe “there’s nothing right in the world,” and makes
her worry all the time. She admitted that there are some days
“where I shut down.” She testified that occasionally, her anxi-
ety will cause her to get nervous, shaky, dizzy, unfocused, and
disoriented. Nicolette testified that she takes daily medication
to manage her depression symptoms and medication for anxi-
ety as needed.
Nicolette acknowledged that in May 2015, she had been
hospitalized for 4 days because she experienced suicidal ide-
ation after stopping her prescribed medication. Nicolette stated
that she stopped taking her medication for 1 month, because it
made her feel tired all the time and unfocused. She also testi-
fied that Randy criticized her for needing medication.
After being hospitalized, Nicolette consulted with mental
health professionals to adjust her medication. Nicolette testi-
fied that since changing her medication, her mental health had
improved, particularly her energy and mood. At the time of
trial, she was attending therapy regularly. Nicolette developed
a safety plan to provide for Eleanor’s care in the event that
she was hospitalized again, and the plan involved Randy, her
parents, and her sister.
Nicolette’s therapist confirmed Nicolette’s mental health
diagnoses, symptoms, and current treatment. The therapist
opined that Nicolette had been working hard and respond-
ing positively to her current treatment while staying active in
Eleanor’s life. She rated Nicolette’s progress as a “nine” on a
“scale of one to ten” and stated Nicolette can be and is being a
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good parent to Eleanor. The therapist had no concerns with an
award of sole custody of Eleanor to Nicolette.
Randy presented evidence raising concerns related to
Nicolette’s mental health. Randy and his family and friends
expressed generalized concerns about Nicolette frequently
sleeping. Randy’s mother, who saw Nicolette twice a week
before the separation, testified that she had observed Nicolette
to have negative attitudes and mood swings.
In addition, there was evidence that Nicolette had allowed
Eleanor to play with her empty prescription pill bottles, but
Nicolette testified that she stopped allowing it after Randy had
confronted her. The parties testified that while they were living
together, they called a poison control center due to concerns
that Eleanor may have had contact with Nicolette’s psycho­
tropic medication. However, Eleanor apparently suffered no ill
effects from any exposure, and Nicolette testified that she had
learned from the experience.
There was testimony that once or twice a week, Nicolette
consumes a beer or a glass of wine while caring for Eleanor.
Nicolette conceded that alcohol consumption is likely con-
traindicated for her medication, although she had not specifi-
cally checked.
Randy expressed concerns about Nicolette’s moving out on
her own with Eleanor, because she had never been on her own
with Eleanor and because of Nicolette’s mental health. He tes-
tified that Nicolette had remarked in the past that she did not
feel like she could handle Eleanor on her own. He also stated
that previously when Nicolette lived on her own, her apartment
was “very dirty,” with unwashed dishes and cat litter, cat feces,
and cat vomit on the floor.
Eleanor’s Education.
Both Nicolette and Randy testified that they believe high
quality education is important. But they disputed what that
meant for Eleanor.
The parties disagreed about enrolling Eleanor in preschool.
After researching the top preschools in the area, Nicolette
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enrolled Eleanor in a preschool in Omaha, which Nicolette
also considered daycare. Nicolette testified that Randy had
toured the facility and initially agreed to enrolling Eleanor
there. Nicolette testified that 2 weeks after enrolling Eleanor,
she received a letter from Randy saying that if Nicolette
put Eleanor in preschool, Randy would “fight for custody.”
In response, Nicolette decided not to enroll Eleanor in pre-
school at that time. Later, however, Nicolette again enrolled
Eleanor for one-half day per week after Randy agreed. Eleanor
attended the preschool only during Nicolette’s parenting time,
and Nicolette paid the fee, in accordance with the temporary
order, which required her to pay for daycare expenses accrued
during her parenting time.
Both parties testified that Randy asked Nicolette to include
him as an emergency contact and a parent on Eleanor’s pre-
school paperwork, but Nicolette refused. Nicolette explained
that she had not included Randy, because the paperwork did
not require it and because she was concerned that Randy would
interfere with Eleanor’s enrollment, after he alternately agreed
and disagreed to it.
Randy testified that he had agreed that the preschool
Nicolette had chosen was a good facility, but he also expressed
to Nicolette that he did not believe Eleanor should attend pre-
school “two years in a row.” He stated that Nicolette enrolled
Eleanor despite his opinion, giving him less than 12 hours’
notice. He opined that at the time of trial, he did not believe
Eleanor’s attendance was “hurting anything,” but that he did
not like Nicolette’s choosing to enroll her without his complete
agreement and without giving him time to process the issue.
Nicolette and Randy also disagreed about where Eleanor
should attend elementary school. Nicolette preferred Millard
Public Schools in Omaha, where she had attended, based on
her research of the relative strength of the schools compared
to other area schools, including Blair Community Schools.
Nicolette’s research was received into evidence. Randy wanted
Eleanor to attend an elementary school in Blair which was
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located less than a block from his home. Randy presented
documentary evidence showing Blair Community Schools to
be essentially comparable to Millard Public Schools.
Communication and Contact.
The evidence showed that sometimes, the parties had diffi-
culty communicating about Eleanor. Each party testified that at
times, it had been difficult reaching the other party. But Randy
admitted that at the time of trial, he had not had recent prob-
lems contacting Nicolette, and Nicolette admitted that Randy
returns her calls and texts.
Randy testified that since the parties separated, there have
been issues with the parenting time schedule. He stated that he
frequently asks for extra time with Eleanor and that Nicolette
has generally refused, even though there were occasions when
he offered extra visitation to Nicolette. Nicolette testified that
Randy had expressed that the temporary custody order was
not fair, because Nicolette received more time with Eleanor,
but that Nicolette abided by the temporary custody order and
refused to change the parenting time schedule.
According to Randy, 2 weeks before he was scheduled to
take Eleanor on a vacation they had agreed upon in a mediated
parenting plan, Nicolette refused to allow it, because, Nicolette
said, Randy was not allowed to take Eleanor out of state.
Randy testified that Nicolette later said she would allow Randy
to take Eleanor on vacation if he agreed to terms that they had
not agreed upon at mediation. Nicolette testified that although
she had agreed to the vacation time at mediation, the parent-
ing plan had not been signed, implying that it was not binding.
Later at trial, she explained she was concerned that Randy was
a “flight risk” after she received his “threatening” letter about
“fighting for custody.”
Regarding cooperation, Randy testified that Nicolette talks
to him about decisions concerning Eleanor but that ultimately,
Nicolette decides on her own. He stated that Nicolette does not
give him time to process the matter before she acts.
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RANDY S. v. NICOLETTE G.
Cite as 302 Neb. 465
District Court’s Findings and Order.
After the parties presented their evidence, the district court
summarized its findings and conclusions on the record. The
district court stated the positive and negative aspects of each
party’s parenting and behavior and ultimately awarded sole
legal and physical custody to Randy.
The district court found that both parties were loving parents
who had been adequate caretakers. It also remarked that each
parent had an “extremely positive” family support system.
Regarding Randy’s alcohol consumption, the district court
stated that it was “very concerning,” while noting evidence
that Randy was “over the hump” and had “turned the corner”
and remarking that “six or seven beers a night is inappropri-
ate when you have a child. That should be your main focus.”
Still addressing Randy, the district court expressed concern
that “you do consume and drive a car with [Eleanor]” and
questioned whether that was “a good idea.” It characterized
Randy’s driving a boat when he has been consuming alcohol as
a “bad choice,” though the court stated that it could not discern
from the photographs offered by Nicolette whether Randy was
drinking alcohol and operating the boat with Eleanor on board.
The district court also acknowledged the safety concerns with
Randy’s residence and that some of those concerns had not
been fixed until after Randy filed suit.
The district court remarked that although Nicolette was
getting treatment for her mental health issues, she made a
poor decision to consume alcohol while taking her medica-
tion. The district court considered Nicolette’s prior hospital-
ization and the side effects of her current medication, includ-
ing that Nicolette “sleep[s] a lot.” And the district court was
“astounded” that Nicolette allowed Eleanor to play with empty
pill bottles.
The district court concluded joint legal custody was not an
option because of the parties’ difficulty communicating with
one another and having “too many differences of opinion.” The
district court expressed concern over whether Nicolette “would
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support parenting time between [Eleanor] and [Randy].” In
particular, the district court observed that it believed Randy
would “support [Nicolette] more in regard to extra parenting
time or this or that.” It noted that Nicolette had not allowed
Randy to take Eleanor on vacation; that Nicolette did not give
Randy much “extra time” with Eleanor; that Nicolette refused
to include Randy on the preschool paperwork; and that both
parties’ proposed parenting plans gave her parenting time on
Eleanor’s birthday every year, which Nicolette said Randy had
offered to her. Further, the district court expressed concern
about Nicolette’s view of the importance of Randy in Eleanor’s
life. It perceived Nicolette to be “controlling” and not “a
reasonable person when it comes to giving parenting time to
[Randy],” but, rather, someone who would “follow the letter of
the decree only and there won’t be any exceptions.”
The district court concluded the hearing by discussing child
support and the proposed parenting plans with the parties. As
to parenting time, the district court took into consideration
Eleanor’s school schedule and the parties’ work schedules,
while noting that the parties live in different communities,
making it impractical to award Nicolette significant parent-
ing time during the week once Eleanor started kindergarten. It
encouraged the parties to deviate from the parenting plan by
agreement as needed. The district court invited the parties to
submit additional suggestions concerning parenting time for its
consideration before entry of the decree.
In the decree, the district court determined Nicolette and
Randy to be Eleanor’s biological parents. It ordered that it was
in Eleanor’s best interests to be in Randy’s legal and physi-
cal custody and established parenting time and child support
accordingly. Specifically, the district court ordered that until
Eleanor began kindergarten, the parents would follow a 50-50
parenting time schedule. The district court further ordered
that once Eleanor began kindergarten, Nicolette would essen-
tially receive parenting time one weekday evening, every other
weekend, 2 weeks in the summer, and alternating holidays. The
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RANDY S. v. NICOLETTE G.
Cite as 302 Neb. 465
district court did not make special written findings pursuant to
Neb. Rev. Stat. § 43-2932 (Reissue 2016).
Nicolette timely appealed.
ASSIGNMENTS OF ERROR
Nicolette assigns, condensed and rephrased, that the dis-
trict court erred in (1) not imposing limitations on Randy’s
custody and visitation rights and not making special writ-
ten findings that such limitations would sufficiently protect
Eleanor from harm pursuant to § 43-2932, (2) awarding sole
legal and physical custody of Eleanor to Randy subject to
Nicolette’s parenting time, and (3) ordering Nicolette to pay
Randy child support.
STANDARD OF REVIEW
[1,2] An appellate court reviews child custody determina-
tions de novo on the record, but the trial court’s decision will
normally be upheld absent an abuse of discretion. Flores v.
Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). An
abuse of discretion occurs when a trial court bases its deci-
sion upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
[3] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. Id.
ANALYSIS
Compliance With § 43-2932.
Nicolette’s primary argument on appeal is that the district
court’s award of custody to Randy failed to comply with
§ 43-2932. Before addressing Nicolette’s arguments, we briefly
summarize relevant portions of the statute.
The statute has three basic parts that are relevant to this
appeal. The first, subsection (1)(a), identifies when the statute
applies. The statute applies “[w]hen the court is required to
develop a parenting plan” and a “preponderance of the evi-
dence demonstrates” that “a parent who would otherwise be
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allocated custody, parenting time, visitation, or other access
to the child under a parenting plan” has engaged in specified
conduct including, relevant to this appeal, child abuse. See
§ 43-2932(1)(a).
The second part of the statute relevant to this appeal is in
subsection (1)(b). It directs courts to impose limitations on
a parent’s custody and parenting time if a parent is found
to have engaged in any of the conduct listed in subsection
(1)(a). The court must impose limits that “are reasonably
calculated to protect the child or child’s parent from harm.”
§ 43-2932(1)(b). The statute then provides a nonexhaustive list
of potential limitations.
Finally, subsection (3) requires an additional step a court
must take before awarding legal or physical custody of a child
to a parent found to have engaged in any of the conduct listed
in subsection (1)(a). “[T]he court shall not order legal or physi-
cal custody to be given to that parent without making special
written findings that the child and other parent can be ade-
quately protected from harm by such limits as it may impose
under [subsection (1)(b)].” § 43-2932(3).
Nicolette relies on each of the three parts of § 43-2932
summarized above. She contends that she demonstrated that
Randy committed child abuse under subsection (1)(a)(i) and
that the district court was therefore obligated by subsections
(1)(b) and (3) to impose limitations on Randy’s rights con-
cerning Eleanor and to make special written findings that
those limitations were sufficient to protect her from harm.
See § 43-2932. She contends that the district court’s failure to
impose limitations and make special written findings consti-
tutes reversible error.
[4] The district court did not impose any limitations on
Randy’s custody of Eleanor, let alone make special writ-
ten findings that such limitations would protect Eleanor
from harm. Neither did the district court explicitly find that
§ 43-2932 did not apply. However, we presume in a bench trial
that the judge was familiar with and applied the proper rules
of law unless it clearly appears otherwise. Molczyk v. Molczyk,
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285 Neb. 96, 825 N.W.2d 435 (2013). We thus presume that
the district court did not impose limitations or make special
findings because it found § 43-2932 did not apply. And, for
reasons we will explain, we find no basis to reverse the district
court’s determination that neither limitations nor special find-
ings were required in this case.
Nicolette points to specific evidence introduced at trial and
claims this evidence demonstrated that Randy committed child
abuse for purposes of § 43-2932(a)(1). In particular, Nicolette
claims that evidence Randy drove with Eleanor in the car after
drinking and verbally abused Nicolette in Eleanor’s presence
demonstrated that Randy committed child abuse.
Randy responds to this evidence in two ways. First, he con-
tends in his brief that it is immaterial, because no evidence was
introduced that he was convicted of child abuse. Alternatively,
he argues that the evidence Nicolette points to does not estab-
lish that he committed child abuse.
Randy’s first argument can be dispensed with quickly.
Section 43-2932 provides no indication that it applies only
when one parent has been criminally convicted for engaging
in the specified conduct. The statute is triggered if a prepon-
derance of the evidence demonstrates that the parent engaged
in the specified conduct. No mention is made of a criminal
conviction. The only way we could conclude that § 43-2932 is
triggered by criminal convictions alone would be to read mean-
ing into the statute that is not reflected in its text, but we do not
interpret statutes in that manner. See State v. Garcia, 301 Neb.
912, 920 N.W.2d 708 (2018).
Having determined that § 43-2932 can apply even in the
absence of a criminal conviction, we proceed to consider
whether the evidence demonstrated that Randy committed
child abuse. Section 43-2932 is a part of the Parenting Act. The
Parenting Act defines “child abuse or neglect” by reference to
Neb. Rev. Stat. § 28-710 (Reissue 2016), a criminal statute.
See Neb. Rev. Stat. § 43-2922(5) (Reissue 2016). Section
28-710(2) defines child abuse or neglect as follows:
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(b) Child abuse or neglect means knowingly, intention-
ally, or negligently causing or permitting a minor child
to be:
(i) Placed in a situation that endangers his or her life or
physical or mental health;
(ii) Cruelly confined or cruelly punished;
(iii) Deprived of necessary food, clothing, shelter, or
care;
(iv) Left unattended in a motor vehicle if such minor
child is six years of age or younger;
(v) Sexually abused; or
(vi) Sexually exploited . . . .
Nicolette argues that by drinking and driving with Eleanor
in the car and using harsh language toward Nicolette and phys-
ical aggression in Eleanor’s presence, Randy placed Eleanor
“in a situation that endanger[ed] . . . her life or physical or
mental health.” See § 28-710(2)(b)(i). As we will explain,
however, the evidence that Randy actually placed Eleanor in
danger is not as clear as Nicolette contends.
Nicolette did testify that she saw Randy “drink to excess”
and then drive his car with Eleanor as a passenger. Nicolette
did not explain what she meant by her testimony that Randy
drank “to excess.” In any event, Randy provided contrary tes-
timony. He testified that he had driven with Eleanor in the car
after having “[a] drink, maybe two, over the course of three,
four hours,” but he specifically denied ever driving while
intoxicated with Eleanor. As for evidence of verbal abuse,
Nicolette testified that Randy had previously, in the presence
of Eleanor, yelled at Nicolette, called her a “bitch,” and kicked
and thrown objects around the room in anger.
On this record, we cannot say that the district court erred
by not applying § 43-2932. Nicolette and Randy provided
conflicting testimony on whether Randy ever drove while
intoxicated with Eleanor in the car. Both parties acknowledge
that under these circumstances, it is appropriate for this court
to give weight to the fact that the trial judge heard and saw the
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witnesses and was in a position to accept one version of the
facts rather than another. See Schrag v. Spear, 290 Neb. 98, 858
N.W.2d 865 (2015). The parties disagree, however, over which
way that familiar principle cuts under these circumstances.
Nicolette contends that because the district court expressed
concern that Randy would consume alcohol and drive with
Eleanor as a passenger and questioned whether it was a “good
idea,” the district court must have accepted her testimony as
credible. We disagree. We believe the district court’s remarks
and its decision not to apply § 43-2932 are most sensi-
bly understood as reflecting that the district court accepted
Randy’s testimony that he did not drive while intoxicated
with Eleanor as a passenger but was still concerned that
Randy’s decision to drive after drinking a small amount over
several hours may not have been prudent in light of his his-
tory of alcohol use, even if it did not rise to the level of
child abuse. And we do not believe the district court erred by
concluding that the level of drinking to which Randy admit-
ted—one or two drinks over the course of 3 or 4 hours prior
to driving with Eleanor as a passenger—did not amount to
child abuse.
As for the claimed verbal abuse and physical outbursts, we
again find that the district court did not err by not applying
§ 43-2932. Nicolette’s testimony regarding Randy’s displays
of anger does not portray admirable behavior on his part,
but neither does it establish that the behavior endangered
Eleanor’s physical or mental health and thus rose to the level
of child abuse.
Legal and Physical Custody.
Nicolette also argues that even if § 43-2932 is not consid-
ered, the district court’s decisions on custody and parenting
time amounted to an abuse of discretion. Nicolette contends
that the district court, in awarding sole legal and physical
custody to Randy, improperly punished her for what she calls
“perceived inflexibility” regarding parenting time. Brief for
appellant at 26. She also argues that the district court should
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have granted her more parenting time than it did. We address
these arguments in turn.
In the course of stating its findings on the record after
the trial, the district court expressed concern over, among
other things, whether Nicolette “would support parenting time
between [Eleanor] and [Randy].” The district court went on to
identify specific evidence adduced at trial that prompted this
concern. The court mentioned one instance in which Nicolette
initially agreed to make an exception to the parties’ stipulated
temporary parenting plan and allow Eleanor to accompany
Randy on a vacation, but then withdrew that permission. It also
expressed concern that if Nicolette was given custody, it did
not appear she would be “a reasonable person when it comes
to giving parenting time to [Randy],” but instead she would
“follow the letter of the decree only and there won’t be any
exceptions.” Nicolette points to these remarks by the district
court, contending that the district court improperly punished
her for her desire to follow the stipulated temporary parenting
plan and its perception that she would also follow the final
parenting plan adopted by the court.
Contrary to Nicolette, we do not believe the district court
has “punished” Nicolette for her desire to follow either the
temporary or final parenting plan. Rather, we understand the
district court’s remarks to express concern about how support-
ive Nicolette would be of Randy’s involvement in Eleanor’s
life if she were granted custody. We believe that is a valid
consideration in determining custody. See Coffey v. Coffey, 11
Neb. Ct. App. 788, 798, 661 N.W.2d 327, 340 (2003) (“it is appro-
priate to consider which parent would better promote visitation
and a positive relationship between the children and the other
parent”). And, given the evidence in the record, we cannot
say that the district court’s conclusion that Randy would be
more supportive of Nicolette’s parenting time than vice versa
amounted to an abuse of discretion.
Neither do we believe that the district court abused its
discretion as to the parenting time it awarded to Nicolette.
Once Eleanor begins school, the district court’s decree gives
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Nicolette weekend parenting time with Eleanor every other
Friday through Monday, with 3 hours of evening parenting time
each week in addition to alternating holidays and 2 weeks in
the summer. Nicolette contends that with only one evening of
parenting time during the week, the court’s parenting plan has
reduced her to a “‘weekend’ or ‘sometimes’ parent.” Brief for
appellant at 23. As the district court noted, however, the com-
mute between the parties’ respective homes in different com-
munities presented practical difficulties in awarding Nicolette
more parenting time during the week. Nicolette points out that
the specific distance between their residences was not in the
record. But the record is clear that Randy lives in Blair and that
Nicolette lives in the Millard area. We cannot say that the dis-
trict court abused its discretion by considering the difficulties
presented by the parties’ living in different communities and
fashioning its award of parenting time accordingly.
Child Support.
Finally, Nicolette contends that the district court erred by
ordering her to pay child support to Randy. Nicolette’s argu-
ment that the district court’s child support order should be
reversed is dependent, however, on her claim that the district
court should have awarded sole legal and physical custody of
Eleanor to her. Having concluded that the district court did not
abuse its discretion by awarding sole legal and physical cus-
tody of Eleanor to Randy, we see no basis to reverse the district
court’s award of child support.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court that awarded sole legal and physical custody to Randy.
A ffirmed.
Heavican, C.J., participating on briefs.