State on behalf of Maddox S. v. Matthew E. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
01/12/2016 09:04 AM CST
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
State of Nebraska on behalf of M addox S., a minor
child, appellee, v. M atthew E., defendant and
third -party plaintiff, appellant, and
Stephanie S., third -party
defendant, appellee.
___ N.W.2d ___
Filed January 12, 2016. No. A-15-080.
1. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
2. Visitation: Appeal and Error. Parenting time determinations are also
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
3. 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.
4. ____: ____. A judicial abuse of discretion requires that the reasons or
rulings of the trial court be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result.
5. Child Custody: Appeal and Error. In child custody cases, where the
credible evidence is in conflict on a material issue of fact, the 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.
6. Visitation. The best interests of the children are the primary and para-
mount considerations in determining and modifying parenting time.
7. ____. The right of parenting time is subject to continuous review by the
court, and a party may seek modification of a parenting time order on
the grounds that there has been a material change in circumstances.
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
8. Child Custody: Words and Phrases. Neb. Rev. Stat. § 43-2922(11)
(Cum. Supp. 2014) of the Parenting Act defines “joint legal custody” as
“mutual authority and responsibility of the parents for making mutual
fundamental decisions regarding the child’s welfare, including choices
regarding education and health.”
9. Child Custody. 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.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Terrance A. Poppe and Andrew K. Joyce, of Morrow, Poppe,
Watermeier & Lonowski, P.C., for appellant.
Stephanie S., pro se.
Pirtle, R iedmann, and Bishop, Judges.
Bishop, Judge.
Matthew E. appeals from the decision of the district court
for Lancaster County modifying the parties’ paternity decree.
Prior to this most recent modification, Matthew and
Stephanie S. shared joint legal and physical custody of their
son, Maddox S. The parties had a “9/5” parenting time sched-
ule so that in every 14-day period Matthew had Maddox 9
days and Stephanie had Maddox 5 days. As for the day-to-day
decisionmaking, the parties’ parenting plan provided that if the
parties were in disagreement on any issue involving Maddox,
they were to mediate the issue.
Pursuant to the current modification, the district court
maintained the joint legal and physical custody of Maddox
with the parties. The court modified the parenting time to
reflect an equal 50-50 split with a weekly rotating parenting
time schedule; ordered that the party having parenting time be
the short-term decisionmaker for Maddox; ordered Stephanie
to be the final decisionmaker with regard to extracurricular
and sporting activities and recurring or long-term medical,
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
dental, and eye care needs; and ordered Matthew to be the
decisionmaker with regard to Maddox’s education and reli-
gious upbringing. We affirm.
BACKGROUND
Matthew and Stephanie are the biological parents of
Maddox, born in August 2007. A paternity decree was entered
on September 30, 2008. Pursuant to the written stipulation of
the parties, the court awarded legal and physical custody of
Maddox to Stephanie, subject to Matthew’s specific rights of
parenting time. The court ordered Matthew to pay $400 per
month in child support. Matthew was also ordered to pro-
vide health insurance for Maddox as long as it was available
through his then-current employer or a subsequent employer at
a reasonable cost.
In July 2010, Matthew sought to modify the paternity
decree, and a modification order was filed on June 22, 2011.
In its June 22 order, the district court approved the written
stipulation of the parties and (1) awarded legal and physical
custody of Maddox jointly to the parties with parenting time
as allocated in the parenting plan, (2) ordered Stephanie to pay
$145 per month in child support, and (3) ordered Matthew to
provide health insurance for Maddox. Pursuant to the parent-
ing plan, Stephanie was to have parenting time with Maddox
“[e]very other weekend beginning on Wednesday at 5:00 p.m.
(or the conclusion of school or school activities, whichever
[was] later) until the following Monday at 8:00 a.m. (or the
commencement of the school day, whichever [was] earlier).”
This was a “9/5” parenting plan where, in each 14-day period,
Matthew would have parenting time with Maddox 9 days
and Stephanie would have parenting time 5 days. During
the summers, the parties were to have alternate weeks of
parenting time, with the transition occurring on Sundays at
5 p.m. A specific holiday schedule was set forth in the plan.
As for the day-to-day decisionmaking, the parties’ parent-
ing plan provided that if the parties were in disagreement on
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
any issue involving Maddox, they were to mediate the issue;
however, Matthew was given the authority to decide which
school Maddox would attend after discussing the options
with Stephanie. The parties also agreed that Maddox would
be raised in the Catholic faith. The court ordered that all
other terms and provisions “of the Order entered September
30, 2008 and subsequent Order of December 8, 2010 not
hereinbefore specifically modified shall remain in full force
and effect.” (The December 2010 order does not appear in
our record.)
In December 2011, Matthew again filed an application to
modify, seeking to increase Stephanie’s child support obliga-
tion and to further reduce her parenting time. In an order filed
in June 2012, the district court “overruled” Matthew’s appli-
cation to modify, finding that there had not been a material
change in circumstances since the June 2011 modification.
In July 2013, Matthew filed a motion for a court order pro-
hibiting Stephanie from visiting, contacting, or entering on the
premises of Maddox’s daycare. The court entered a temporary
order in August and a permanent order in September (appar-
ently upon Stephanie’s agreement), excluding Stephanie from
the premises of the daycare except to pick up Maddox at the
commencement of her parenting time or to drop him off at the
commencement of school.
On October 22, 2013, Stephanie filed an “Application to
Modify Parenting Plan,” alleging that there had been a sub-
stantial and material change in circumstances warranting a
modification. Stephanie alleged that in the previous 2 years,
Matthew had not exercised all of his parenting time and
allowed Maddox to spend a minimum of six overnights per
4-week schedule with his maternal grandparents. Stephanie
asked the court to modify the parenting plan to allow for a
true “50/50, week on week off” parenting schedule. Matthew
filed a responsive pleading and “cross complaint” on February
19, 2014. He denied the allegations in Stephanie’s applica-
tion and asked the court to dismiss the same. In his “cross
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
complaint,” Matthew sought a modification of Stephanie’s
child support obligation on the basis that her earnings and
earning capacity had increased such that application of the
Nebraska Child Support Guidelines would increase her obliga-
tion by more than 10 percent.
On October 22, 2013, Stephanie also filed an affidavit and
application for order to show cause, asking the court for an
order requiring Matthew to show cause why he should not be
held in contempt for failing to maintain health insurance on
Matthew as ordered and for repeatedly violating the parent-
ing plan. An order to show cause was entered on November 1,
directing Matthew to appear and show cause why he should not
be held in contempt; the contempt action was heard at the same
time as the modification hearing on March 17, 2014.
On February 25, 2014, Matthew filed an application for an
order to show cause, asking the court for an order requiring
Stephanie to appear and show cause why she should not be
held in contempt for failing and refusing to allow Matthew
to have parenting time on December 27, 2013, from noon to
7 p.m. as set forth in the court-ordered parenting plan. An
order to show cause was entered on March 5, 2014, directing
Stephanie to appear and show cause why she should not be
held in contempt; the contempt action was heard at the same
time as the modification hearing on March 17.
The hearing on the modification and contempt actions was
held on March 17, 2014. Stephanie appeared pro se. She was
37 years old at the time of the hearing and had been unem-
ployed since December 2013, but said she was interviewing for
property management jobs. In the past, she had been an assist­
ant property manager and a dancer. At the time of the hearing,
friends were helping her with her living expenses.
Stephanie testified about the difficulties she has had with
Matthew. Stephanie testified that Matthew had made “sig-
nificant” religious decisions without her input; she said that
Matthew had Maddox baptized and chose godparents with-
out her agreement and that Matthew did not inform her of
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
the ceremony. Stephanie testified that Matthew would not
let Maddox participate in extracurricular activities such as
gymnastics or soccer. She testified that Matthew violated
her “phone visitation” with Maddox by not taking her calls,
not returning her calls, or interrupting or distracting Maddox
when she was able to speak to him. Stephanie testified that
Matthew failed to involve her in day-to-day decisionmak-
ing and that if she requested mediation, Matthew said that
they had already mediated and did not need to mediate
again, even if the issue was new. Stephanie also testified
that Matthew had repeatedly failed to provide health insur-
ance for Maddox and that even when Maddox was insured,
Matthew would not provide her with the insurance cards,
causing her to incur out-of-pocket expenses for doctor vis-
its and prescriptions. Stephanie testified that she thought
Maddox needed counseling or therapy, but that Matthew
would not cooperate or allow Maddox to attend. Stephanie
testified that Matthew would threaten her with contempt if
she did not agree with him.
Stephanie testified that Matthew let her father and her
stepmother, with whom Stephanie had a difficult relationship
(collectively maternal grandparents), have Maddox 6 over-
nights a month and that she only got Maddox 10 overnights
each month. Stephanie asked the court to award joint legal
and physical custody, with a “50/50” “week on/week off”
parenting schedule. Stephanie told the court she wanted the
right of first refusal if Matthew was not going to use all of his
parenting time; there was no right of first refusal referenced
in the June 2011 parenting plan. She also wanted updated
insurance and prescription cards for Maddox. Stephanie
wanted Maddox to be able to participate in extracurricular
activities with the parties splitting the cost. She also wanted
regular “phone visitation” with Maddox without interruptions
or distractions.
Matthew was 41 years old at the time of the hearing and was
self-employed selling insurance. He has three other children
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
besides Maddox, who is the youngest. Matthew testified that
he was not aware of any court order requiring telephone par-
enting time between Stephanie and Maddox, but that he had
allowed it to take place. He testified that he had Maddox
“conditionally baptized” because Maddox’s school required a
baptismal certificate for kindergarten and Stephanie never pro-
vided Maddox’s certificate to him; he did not invite Stephanie
to the baptism because she would not produce the certificate,
she did not invite him to the original baptism, and he did not
want a “scene.”
Matthew testified that Maddox was not involved in orga-
nized extracurricular activities at the time; Matthew has three
other children and has them all during the same parenting time
and said “it’s just not conducive to the schedules.” Matthew
testified that his other children were not involved in activi-
ties until they were older. Matthew said that extracurricular
activities at Maddox’s age were “nothing more than a glorified
recess” and that Stephanie could take Maddox on her time but
that he, Matthew, had too much going on. Matthew said that it
was more important for Maddox to spend time with him than
to be involved in activities.
Matthew testified that Maddox was covered by Medicaid
as of the month of the hearing and that there had been a
couple months when he was not insured. Matthew testified that
Stephanie never notified him when she set up doctor or dental
appointments for Maddox—he just got the bills later. Matthew
did not give Stephanie insurance cards in the past because he
was “tired of just getting the bills” and not being able to par-
ticipate in appointments.
Matthew testified that Maddox did well in school and had
a good relationship with his siblings. Matthew testified that
Maddox’s maternal grandparents provided before and after
school care for Maddox and also transported him to and from
school. Matthew testified that Maddox had a good relation-
ship with his maternal grandparents and spent one to two
nights a week with them (on nights when Matthew did not
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
have parenting time with his other children). Matthew testi-
fied that he could “pick and choose” who Maddox saw, spent
the night with, and associated with during his parenting time
and that he chose to let Maddox spend time with his mater-
nal grandparents.
Matthew testified that it was difficult to communicate with
Stephanie and that she went “out of [her] way to try and make
[him] look bad.” Matthew testified that the week on/week off
schedule proposed by Stephanie was not in Maddox’s best inter-
ests because the parties did not get along and because Matthew
did not believe that Maddox should be exposed to Stephanie’s
“outside activities and lifestyle”—he specifically referenced
Stephanie’s friends and the fact that she could not provide for
herself. Matthew said that he did not think Stephanie was a
fit parent. He said that she was more concerned about being
Maddox’s playmate than a caretaker. Matthew wanted sole
legal and physical custody. He said he would still attempt to
discuss issues involving Maddox with her, even if there was
not a requirement to do so.
Ardith S., Stephanie’s stepmother, testified that she had
a “distant” relationship with Stephanie since Maddox was 3
years old. She testified that Stephanie confronted people all the
time so she and her husband had “back[ed] away” from her.
Ardith testified that she had no concerns with Maddox living
with Matthew. Ardith saw Maddox six overnights per month
and before and after school.
Maddox’s preschool teacher testified that she taught Maddox
during the 2012-13 school year. She testified that Stephanie
enrolled Maddox and paid his tuition. She further testified
that Matthew said he did not want Maddox to attend pre-
school; however at some point, he said he did not want to be
financially responsible but would allow Maddox to attend.
Matthew told the teacher that Maddox would not be attend-
ing the preschool graduation; the teacher thought it would be
good for Maddox to attend. Maddox did attend graduation with
Stephanie, but Matthew did not attend. The preschool teacher
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
said that Stephanie was always available and was a support-
ive mother.
Maddox’s kindergarten teacher for the 2013-14 school year
testified that Stephanie was a “volunteer homeroom captain”
and helped with classroom parties. She testified that both
Matthew and Stephanie attended parent-teacher conferences,
but that they came at separate times. She testified that Maddox
had some struggles with reading, but was doing well overall.
The teacher testified that Stephanie was interested in Maddox
and wanted to help him. She also testified that Maddox’s
grandfather usually picked him up from school.
In its order filed on April 15, 2014, the district court
noted that this was the parties’ third attempt to modify
the September 2008 decree and that the pending contempt
motions were the fifth and sixth requests since March 2010.
The district court stated that both parties were focused more
on their issues with each other than on how to jointly parent
their son. The court set forth two “strategies” or alterna-
tives meant to eliminate the “constant turmoil and bickering”
and to provide a better environment for Maddox, and asked
the parties to weigh in on the proposed alternatives within
14 days. The first option was to establish a framework for
separate parenting, with Maddox living with each parent for
6 months or 1 year at a time, with no parenting time for the
parent with whom Maddox did not live. The second alterna-
tive was to place legal custody of Maddox with the court
and appoint a guardian ad litem (GAL); all decisions, even
day-to-day decisions such as whether Maddox should be kept
home from school while sick, would have to be approved by
the GAL or the court.
In an order filed on May 9, 2014, the court stated that both
parties were opposed to both of the court’s proposals, but
neither party addressed the “root issue” the court sought to
have addressed by the proposals. The court therefore entered a
temporary order “with the hope that both parents can modify
their behavior to permit co-parenting of Maddox.” The court
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
Cite as 23 Neb. Ct. App. 500
ordered parenting time on a “week on week off basis” with
exchanges to occur on Monday morning at school drop off,
or 8 a.m. during the summer; there was to be no deviation or
trading of parenting time, nor was there to be holiday, spe-
cial occasion, or midweek parenting time. Legal custody of
Maddox was placed with the court, and a GAL was appointed
for Maddox; all decisions “which would possibly impact
Maddox during the other parent’s parenting time” were to
be made in writing by the GAL or by order of the court. The
court ordered the parties to attend counseling together with
Dr. Rick McNeese. A further evidentiary hearing was set for
November 17.
At the further evidentiary hearing on November 17, 2014,
both parties testified, as did the GAL. Matthew testified that
the parties had been following a week on/week off parenting
time arrangement since the temporary order was filed on May
9. When asked if it was his preference to do a “9/5” schedule
as set forth in the June 2011 order, Matthew said, “No. I mean
I — well, I’m agreeable with, you know, certain stipulations
to 50/50 parenting time, but I do think that, you know, with
that being said that someone ultimately needs to be the final
decision maker[.]” Matthew’s proposed parenting plan was
received into evidence and proposed week on/week off parent-
ing time with transitions to occur Sunday at 7 p.m.; he also
proposed that he have the “final say” on all decisions except
for which extracurricular activities that Maddox would be
involved in (however, he was not to be involved in more than
one activity per season). Matthew testified that Maddox had
adjusted to the week on/week off arrangement and that such
was in Maddox’s best interests.
Stephanie also testified that she was willing to continue a
week on/week off parenting arrangement and that Maddox had
“[a]bsolutely” adjusted to that arrangement. Stephanie testified
that she would like to make legal decisions for Maddox and
would like to use the GAL to resolve issues instead of always
filing in court.
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
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Matthew testified that the parties had met with Dr. McNeese
12 to 15 times and were working on communication, respect
for each other, and keeping Maddox out of the middle of
things. Matthew believed that he and Stephanie could agree on
issues involving Maddox. Stephanie testified that she tried to
follow Dr. McNeese’s recommendations when communicating
with Matthew. She testified that they have continued to have
issues since May 2014; she specifically referenced an occasion
in July when Matthew was dropping Maddox off, and because
Stephanie was not there exactly at 7 p.m., Matthew left and
kept Maddox overnight—and he would not return her calls or
e-mails until the next day. Stephanie testified that Matthew
“enjoy[ed] playing games and manipulating things such as
drop-off times.”
The GAL testified that she believed that a week on/week
off parenting time arrangement was appropriate and that Dr.
McNeese agreed. She testified that the problem with the parties
was that it was always a power struggle—who was in control
and who had the power—and that Dr. McNeese was working
with them on that issue.
Stephanie testified that she had been employed as a leasing
consultant since September 2014 and that no one really helped
her with her expenses now that she was working.
In its order filed on January 7, 2015, the district court noted
that it had been 7 years since the case was originally filed and
that both parties were still focused more on how to frustrate
each other than on how to jointly parent their son. The court
concluded that a parenting plan designed to minimize the need
of the parents to communicate with, or have contact with, one
another was in Maddox’s best interests.
The district court maintained the joint legal and physical
custody of Maddox with the parties. The court modified the
parenting time to reflect a 50-50 split with a weekly rotating
parenting time schedule; the court specifically stated there
was not to be a separate holiday or special occasion schedule,
except to provide that Maddox would be with Stephanie on
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STATE ON BEHALF OF MADDOX S. v. MATTHEW E.
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Mother’s Day and Matthew on Father’s Day and to provide
time for each parent at Christmas. The court ordered that the
party having parenting time be the short-term decisionmaker
for Maddox; ordered Stephanie to be the final decision-
maker with regard to extracurricular and sporting activities
and recurring or long-term medical, dental, and eye care
needs; and ordered Matthew to be the decisionmaker with
regard to Maddox’s education and religious upbringing. The
court ordered Matthew to pay $90 per month in child sup-
port. The court ordered Matthew to provide Stephanie with
medical, dental, and eye care insurance cards for Maddox,
and in the event he fails to provide such cards, he shall be
solely responsible for the entirety of any medical, dental, or
eye care provided to Maddox while in Stephanie’s care. The
court made further provisions, but such are not related to
this appeal. The court also denied all requests for a finding
of contempt.
Matthew timely appeals the district court’s order.
ASSIGNMENTS OF ERROR
Matthew assigns that the district court erred in (1) finding
that a material change of circumstances existed and by modi-
fying his parenting time from 9 to 7 days per 14-day period
and (2) determining that joint legal custody was in Maddox’s
best interests.
STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion. Schrag
v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
[2] Parenting time determinations are also matters ini-
tially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s
­determination will normally be affirmed absent an abuse of
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discretion. Aguilar v. Schulte, 22 Neb. Ct. App. 80, 848 N.W.2d
644 (2014).
[3,4] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason, and
evidence. Schrag v. Spear, supra. A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly
untenable insofar as they unfairly deprive a litigant of a sub-
stantial right and a just result. Id.
[5] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, 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. Id.
ANALYSIS
Modification of Parenting Time.
Matthew argues that the district court erred by (1) finding
that a material change of circumstances existed to modify the
parenting plan and (2) reducing his parenting time from 9 to
7 days per 14-day period. Matthew contends that Stephanie
sought modification of the parenting time based on the amount
of time Maddox spent with his maternal grandparents and that
this does not constitute a material change affecting Maddox’s
best interests. Further, Matthew argues that the parties’ dif-
ficulties in communicating and coparenting could not form
the basis for modification because “these issues were contem-
plated at the time that the previous order was entered.” Brief
for appellant at 16. Additionally, Matthew asserts that the
district court “did not provide any justification why reducing
[Matthew’s] parenting time is in Maddox’s best interests.” Id.
at 18. Therefore, “because the District Court’s modification
was not precipitated by a change in circumstances and because
there was not adequate justification to reduce [Matthew’s]
parenting time, the District Court abused its discretion.” Id.
We disagree.
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[6,7] The best interests of the children are the primary and
paramount considerations in determining and modifying par-
enting time. See Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526
(2001). The right of parenting time is subject to continuous
review by the court, and a party may seek modification of a
parenting time order on the grounds that there has been a mate-
rial change in circumstances. See Smith-Helstrom v. Yonker,
253 Neb. 189, 569 N.W.2d 243 (1997).
The record before us and the district court’s thorough order
addressing the ongoing contentiousness between the parties
reveals no abuse of discretion by the district court in modifying
the parenting plan. The district court discussed the extensive
7-year history of litigation between the parties and stated in
its order:
The efforts at finding the opposing party in contempt
of court have been sprinkled throughout this time, but
primarily have found their way to the file near the time
the complaints to modify have been filed.
So, here we are, yet again, seven years after the case
was originally filed with both parties still focused more
on how to frustrate each other than on how to jointly par-
ent their son. . . .
It is not unusual that parents of a child involved in
a divorce or paternity case begin the case having the
mis-perception that they are ridding themselves of the
other parent once and for all. So their rocky start was
not so unusual. Most typically, after a few months or a
couple of years, the parents figure out they are not end-
ing a relationship with the other parent, they are merely
reconfiguring it. Thankfully, it is seldom that after seven
years, common sense and focus on the child does not
prevail. Usually, parties fall into a pattern of conduct that
works for them to raise their child free from interference
or supervision by the courts. It has now been seven years
and [Matthew] and [Stephanie] have been unable, and in
some aspects unwilling to find that pattern.
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The adverse impact the parties’ continued turmoil is
having, and is likely going to have on Maddox in the
future, has become a critical concern. . . .
....
After considering all the evidence, the court has con-
cluded that a parenting plan which is designed to mini-
mize the need of the parents to communicate with, or
have contact with, one another is in the best interests of
Maddox at this time.
Clearly, at the time of the original decree and the initial modi-
fication, the district court did not anticipate that the parties
would continue to engage in court battles over their son, as
noted in the court’s order set forth above. This was the par-
ties’ third attempt to modify the September 2008 decree, and
the pending contempt motions were the fifth and sixth requests
since March 2010.
In our de novo review, we conclude that there was a mate-
rial change in circumstances affecting Maddox’s best interests,
namely, that his parents, who in the course of 7 years rarely
agreed on anything, needed a modified parenting plan that
would minimize opportunities for ongoing conflict. As the dis-
trict court pointed out, it is “not unusual that parents of a child
involved in a divorce or paternity case” may have a “rocky
start,” but that “typically, after a few months or a couple of
years, the parents figure out they are not ending a relationship
with the other parent, they are merely reconfiguring it,” and
the “parties fall into a pattern of conduct that works for them
to raise their child free from interference or supervision by
the courts.” But in this case, even after 7 years, Matthew and
Stephanie “have been unable, and in some aspects unwilling
to find that pattern.”
As to Matthew’s argument that the district court failed
to justify the reduction in Matthew’s parenting time from 9
to 7 days per 14-day period, we note that the district court
acknowledged the parties’ agreement to a 50-50 split with a
weekly rotating parenting time schedule. The record shows
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that at the time of the further evidentiary hearing on November
17, 2014, the parties agreed to 50-50 parenting time; in fact,
Matthew’s proposed parenting plan to the court on that date
proposed week on/week off parenting time. Matthew testified
that Maddox had adjusted to the week on/week off arrange-
ment and that such was in Maddox’s best interests.
In light of Matthew’s proposed parenting plan and his own
testimony that the week on/week off parenting time was in
Maddox’s best interests, Matthew cannot now assert that it
was error for the district court to adopt such an arrangement.
See, e.g., Linda N. v. William N., 289 Neb. 607, 856 N.W.2d
436 (2014) (party cannot complain of error which party has
invited court to commit). See, also, Kalkowski v. Kalkowski,
258 Neb. 1035, 607 N.W.2d 517 (2000).
That said, we also agree with the district court’s finding that
there is “no substantially greater fault with one party or the
other sufficient to warrant either more or less parenting time
or parenting responsibilities. Likewise, neither party is such a
better parent than the other to warrant favored treatment.” The
equal sharing of parenting time was agreed to by the parties
and supported by the record. Accordingly, we find that the dis-
trict court did not abuse its discretion in modifying the parent-
ing plan to provide for an equal split of parenting time with a
weekly rotating schedule.
Joint Legal Custody.
Matthew argues that the district court erred in determining
that joint legal custody was in Maddox’s best interests. He
contends that since the district court observed that “the par-
ties’ inability to communicate has made effective co-parenting
nearly impossible to achieve,” then joint custody cannot be
in a child’s best interests, and sole custody should have been
awarded. Brief for appellant at 20.
We first note that Matthew’s “cross complaint” did not seek
a change in legal custody, but that at the initial hearing on
the modification and contempt actions held March 17, 2014,
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Matthew testified that he should be awarded sole legal and
physical custody. However, in Matthew’s proposed parenting
plan submitted to the court at the further evidentiary hear-
ing on November 17, Matthew proposed joint legal custody
(which the parties already had), but that he wanted final say in
all decisions except extracurricular activities. Therefore, joint
legal custody was maintained as requested by Matthew; and
we conclude that Matthew’s dissatisfaction with how the court
divided the decisionmaking authority does not mean the court
abused its discretion.
[8,9] The Parenting Act defines “[j]oint legal custody” as
“mutual authority and responsibility of the parents for making
mutual fundamental decisions regarding the child’s welfare,
including choices regarding education and health.” Neb. Rev.
Stat. § 43-2922(11) (Cum. Supp. 2014). We acknowledge that
courts typically do not award joint legal custody when the
parties are unable to communicate effectively. See, Kamal v.
Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009) (joint decision-
making by parents not in child’s best interests when parents
are unable to communicate face-to-face and there is level of
distrust); Klimek v. Klimek, 18 Neb. Ct. App. 82, 775 N.W.2d 444
(2009) (no abuse of discretion by district court’s failure to
award joint custody when minor child was confused by tempo-
rary joint legal and physical custody arrangement and parents
had hard time communicating with one another). However, 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. Neb. Rev. Stat. § 42-364(3)
(Cum. Supp. 2014) states:
Custody of a minor child may be placed with both parents
on a joint legal custody or joint physical custody basis, or
both, (a) when 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) if
the court specifically finds, after a hearing in open court,
that joint physical custody or joint legal custody, or both,
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is in the best interests of the minor child regardless of any
parental agreement or consent.
And § 42-364 applies to custody disputes in paternity actions.
See Cox v. Hendricks, 208 Neb. 23, 302 N.W.2d 35 (1981).
Given that the GAL testified that the problem with the
parties was that it was always a power struggle—who was
in control and who had the power—we cannot say that the
district court abused its discretion by maintaining the joint
legal custody previously agreed to and awarded by the court
in its June 22, 2011, order. The district court appropriately
modified the parenting plan to specifically divide joint legal
custody responsibilities between the parties in a manner that
would minimize contact and conflict between them. Similar
to the court’s decision to allocate parenting time equally
between the parties, it is clear that the district court also
chose not to favor one parent over the other with regard to
legal custody, since as it stated, neither parent warranted
more or less parenting responsibilities than the other, nor did
either parent warrant favored treatment. We agree with the
court’s assessment.
In its order, the district court stated that “a parenting plan
founded on cooperative parenting, the preferred type, is not
possible to be accomplished and further efforts at doing so is
not in Maddox’s best interest[s].” However, the court went on
to state:
Obviously, there are some things about which the par-
ties must be required to communicate and have contact.
Matters such as health and medical care and procedures,
choice of school and religious matters, and involvement
in extracurricular activities. However, one of the parties
should be designated as the party who will make final
decisions when it comes to these matters if a mutual
agreement is not found.
The court ordered that the party having parenting time be
the short-term decisionmaker for Maddox; ordered Stephanie
to be the final decisionmaker with regard to extracurricular
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and sporting activities and recurring or long-term medical,
dental, and eye care needs; and ordered Matthew to be the
final decisionmaker with regard to Maddox’s education and
religious upbringing. The court stated, “It is hopeful that by
minimizing the amount of contact and communication the
parents have through collateral parenting, they can find a
means of cooperative parenting that is no longer disruptive
to Maddox.” Ultimately, by dividing responsibilities and des-
ignating which parent had the final say with regard to certain
decisions, the court minimized the potential for conflict and
the ongoing power struggle between the parties—something
that is certainly in Maddox’s best interests. We also point
out that the court maintained the goal of “mutual agreement”
between the parties as set forth in the above-quoted lan-
guage; only now, the final say as to certain major issues rests
with the designated parent if they cannot otherwise agree.
This division of final say allows both parties to assume a pri-
mary role in decisionmaking for Maddox and avoids favor-
ing one parent over the other, or giving one parent all the
control over the other, which the district court clearly sought
to avoid.
As previously stated, we recognize that appellate review of
joint legal custody issues has often focused on the parties’ abil-
ity to communicate. See, Kamal v. Imroz, 277 Neb. 116, 759
N.W.2d 914 (2009); Klimek v. Klimek, 18 Neb. Ct. App. 82, 775
N.W.2d 444 (2009). However, appellate courts review custody
decisions for an abuse of discretion 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. See
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). See,
also, Aguilar v. Schulte, 22 Neb. Ct. App. 80, 848 N.W.2d 644
(2014). In affording such deference to the trial courts, appel-
late courts have in some instances declined to reverse trial
court decisions where joint custody has been awarded or main-
tained even when the evidence demonstrates a lack of commu-
nication or cooperation between parents.
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For example, in State on behalf of Jakai C. v. Tiffany M.,
292 Neb. 68, 871 N.W.2d 230 (2015), the Nebraska Supreme
Court affirmed a district court’s denial of a father’s request to
modify custody from joint legal custody (mother with physical
custody) to sole legal and physical custody despite an appar-
ent inability of the parties to parent cooperatively with one
another. Despite finding, among other things, “‘[t]hat both par-
ties fail to appropriately communicate in regard to the child,
which has caused numerous, unnecessary, problems for both
parents,’” the district court nevertheless determined that there
was not a change in circumstances warranting modification of
custody and that a change in custody was not in the child’s
best interests. Id. at 85, 871 N.W.2d at 242. Our Supreme
Court affirmed, stating: “Given the record in this case, and
given our standard of review and deference to the trial court’s
determinations with respect to the credibility of the witnesses,
we cannot say that the court’s denial of the modification of
custody was clearly untenable or an abuse of discretion.” Id. at
87, 871 N.W.2d at 243.
Likewise, in Kay v. Ludwig, 12 Neb. Ct. App. 868, 686 N.W.2d
619 (2004), this court affirmed a district court’s award of joint
legal custody, with physical custody of the parties’ minor son
awarded to the mother, despite the failure of the parties to
agree on joint legal custody. The mother appealed the joint
legal custody award; her testimony at trial revealed that com-
munication between herself and the father “had been nearly
nonexistent and that they have had a number of confronta-
tions since the separation.” Id. at 873, 686 N.W.2d at 624.
The mother further testified that she was frightened of the
father, that he “had become enraged, used profane language,
and verbally harassed her,” had slammed a door, thrown a
telephone, thrown a kitchen table and chairs, and made men-
acing telephone calls and left a menacing message, among
other allegations. Id. at 877, 686 N.W.2d at 626. Importantly,
in Ludwig, this court noted concern that giving the mother
sole legal custody along with primary physical custody might
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result in the mother not fostering the relationship between
the father and their son in the manner contemplated by the
Parenting Act.
Similarly in the case before us, we give deference to
the district court’s attempt to find a workable solution to
best protect Maddox’s best interests. Because of the power
struggle between the parties, the district court was not will-
ing to favor one parent over the other in allocating parental
responsibilities or parenting time. Although still encouraging
mutual decisionmaking, the court’s specific division between
the parties as to who has final say on the larger child-rearing
decisions splits the parenting “control” and will hopefully
minimize conflict between the parties. While such a uniquely
tailored joint custody resolution is without precedent, we can-
not say the district court abused its discretion given the facts
of this case.
Accordingly, upon our de novo review of the record, we
find that the district court did not abuse its discretion in
maintaining the joint legal custody previously ordered, and in
more specifically defining and allocating the responsibilities
between the parties.
CONCLUSION
For the reasons stated above, we affirm the district court’s
modification of the parties’ paternity decree.
A ffirmed.