Barth v. Barth ( 2014 )

Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 241
Cite as 22 Neb. App. 241Christian A. Barth, appellee and cross-appellant, v.
Mindi J. Barth, now known as Mindi J. Boettcher,
appellant and cross-appellee.
___ N.W.2d ___
Filed August 5, 2014. No. A-13-709.
1. Divorce: Judgments: Jurisdiction: Appeal and Error. The standard of review
in an appeal concerning a jurisdictional issue in an action for dissolution of mar-
riage is the same standard for appellate review of any other judgment in a dis-
solution action. Regarding a question of law, an appellate court has an obligation
to reach a conclusion independent from a trial court’s conclusion in a judgment
under review.
2. Divorce: Venue. An action for dissolution of marriage shall be brought in the
district court of the county in which one of the parties resides.
3. Courts: Jurisdiction. When the jurisdiction of the county court and district
court is concurrent, the basic principles of judicial administration require that
the court which first acquires jurisdiction should retain it to the exclusion of the
other court.
4. ____: ____. Courts enforce the jurisdictional priority doctrine to promote judicial
comity and avoid the confusion and delay of justice that would result if courts
issued conflicting decisions in the same controversy.
5. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of marriage,
an appellate 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.
6. Judges: Words and Phrases. A judicial abuse of discretion exists when the
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
for disposition.
7. Divorce: Child Custody. When custody of a minor child is an issue in a proceed-
ing to dissolve the marriage of the child’s parents, child custody is determined by
parental fitness and the child’s best interests.
8. Child Custody. When both parents are found to be fit, the inquiry for the court
is the best interests of the children.
9. Divorce: Child Custody. In determining a child’s best interests under Neb. Rev.
Stat. § 42-364 (Cum. Supp. 2012), courts may consider factors such as general
considerations of moral fitness of the child’s parents, including the parents’
sexual conduct; respective environments offered by each parent; the emotional
relationship between child and parents; the age, sex, and health of the child and
the parents; the effect on the child as a result of continuing or disrupting an
existing relationship; the attitude and stability of each parent’s character; paren-
tal capacity to provide physical care and satisfy educational needs of the child;
and many other factors relevant to the general health, welfare, and well-being of
the child.
Decisions of the Nebraska Court of Appeals
242 22 NEBRASKA APPELLATE REPORTS
10. Evidence: Appeal and Error. Where credible evidence is in conflict on a mate-
rial issue of fact, the appellate court considers, and may give weight to, the fact
that the trial court heard and observed the witnesses and accepted one version of
the facts rather than another.
11. Child Custody: Appeal and Error. In contested custody cases, where material
issues of fact are in great dispute, the standard of review and the amount of defer-
ence granted to the trial judge, who heard and observed the witnesses testify, are
often dispositive of whether the trial court’s determination is affirmed or reversed
on appeal.
12. Child Custody: Visitation: Stipulations. It is the responsibility of the trial court
to determine questions of custody and visitation of minor children according to
their best interests. This is an independent responsibility and cannot be controlled
by the agreement or stipulation of the parties themselves or by third parties.
13. Divorce: Costs. Neb. Rev. Stat. § 42-367 (Reissue 2008) permits a court to direct
costs against either party in an action for dissolution of marriage.
14. Divorce: Expert Witnesses: Fees: Appeal and Error. In a dissolution action, an
appellate court reviews an award of expert witness fees de novo on the record to
determine whether there has been an abuse of discretion by the trial judge.
15. Divorce: Child Support: Appeal and Error. In dissolution of marriage
actions, the trial court’s determination of child support is reviewed for an abuse
of discretion.
16. Child Support: Rules of the Supreme Court: Presumptions. The Nebraska
Child Support Guidelines are to be applied as a rebuttable presumption to both
temporary and permanent support, and any deviation from the guidelines must
take into consideration the best interests of the children.
17. ____: ____: ____. A court may deviate from the Nebraska Child Support
Guidelines when one or both of the parties have provided sufficient evidence to
rebut the presumption.
18. Child Support: Rules of the Supreme Court. The Nebraska Child Support
Guidelines provide that a deviation is permissible whenever the application of the
guidelines in an individual case would be unjust or inappropriate.
19. ____: ____. The Nebraska Child Support Guidelines allow for a deduction in
determining monthly net income for biological or adopted children for whom the
obligor provides regular support.
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed as modified.
Stephanie Flynn, of Stephanie Flynn Law Office, P.C.,
L.L.O., for appellant.
Shane M. Cochran, of Snyder, Hilliard & Bishop, L.L.O.,
for appellee.
Irwin, Riedmann, and Bishop, Judges.
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 243
Cite as 22 Neb. App. 241Riedmann, Judge.
INTRODUCTION
Mindi J. Barth, now known as Mindi J. Boettcher, appeals
and Christian A. Barth cross-appeals from the order of the dis-
trict court for Lincoln County which dissolved their marriage.
On appeal, Mindi argues that the district court erred in find-
ing that it had jurisdiction over the action, granting Christian
custody of the parties’ minor child, placing restrictions on
cohabitation, and ordering her to pay a portion of an expert
witness fee. We find no error in the district court’s findings as
to jurisdiction, custody, or the expert witness fee. However, the
restriction on cohabitation was an impermissible delegation of
the court’s duty, and we therefore strike that provision from the
parenting plan.
On cross-appeal, Christian argues that the district court erred
in deviating from the Nebraska Child Support Guidelines with-
out good cause. We agree and modify that portion of the decree
as explained below.
BACKGROUND
Christian and Mindi were married in August 2010. Their
son, Graham Barth, was born in January 2011. Mindi also has
a daughter, Berkley Nielsen, from a previous relationship.
Christian, Mindi, Graham, and Berkley lived in Lincoln,
Lancaster County, Nebraska, until January 2012, when they
moved to North Platte, Lincoln County, Nebraska. On April
26, Mindi filed a complaint for dissolution of marriage in the
district court for Lancaster County. On May 1, Christian filed
a complaint for dissolution of marriage in the district court for
Lincoln County. Mindi moved to dismiss Christian’s action
because she filed her complaint first. After a hearing on the
motion and consultation with the Lancaster County District
Court judge, the Lincoln County District Court determined
that the Lancaster County action would be dismissed and the
Lincoln County action would proceed. Accordingly, Mindi’s
motion to dismiss in Lincoln County was denied.
Trial on the issues of property division, custody, and child
support was held on June 13 and July 16, 2013. At the time
of trial, Christian was working as a firefighter-paramedic for
Decisions of the Nebraska Court of Appeals
244 22 NEBRASKA APPELLATE REPORTS
the North Platte Fire Department. He works 24-hour shifts
every other day for 9 days and then has 6 consecutive days off.
So in an average month, Christian works 10 days of 24-hour
shifts and has the other 20 days off. When Christian is work-
ing, Graham goes to a 24-hour licensed daycare. The daycare
provider cares for Graham in her home and lives on a hobby
farm with ducks, chickens, turkeys, dogs, cats, cows, a sheep,
and a llama. Graham has his own bed at the daycare provider’s
home and his own drawer there for his clothing. The daycare
provider testified Graham is always clean, well groomed, and
dressed appropriately. Graham gets along well with the other
children and is very good to the animals. According to the day-
care provider, Christian and Graham are always happy to see
each other when Christian comes to pick up Graham.
Christian’s neighbor testified that her children have play
dates with Graham and that she would “[a]bsolutely” feel
comfortable allowing Christian to watch her children. She said
that Graham is happy and well behaved and that it appears that
Christian and Graham have a very healthy relationship with
positive interactions and good boundaries.
Dr. Rebecca Schroeder, a clinical psychologist whom
Christian requested to perform a parental fitness evaluation
on him, found that Christian and Graham have a very good
relationship and a strong bond, they interact very naturally
together, there is open affection between them, and Christian
displays appropriate parenting techniques and a loving regard
for Graham. Dr. Schroeder cautioned that she had never met
Mindi and therefore could not give an opinion as to what
was in Graham’s best interests. However, she believed that
Christian had all of the skills necessary to be a good, effective
parent for Graham.
At the time of trial, Mindi was working full time at a plasma
center in Lincoln. Although her schedule varies somewhat,
she generally worked Monday through Friday from 9 a.m.
to 5 p.m. or 10 a.m. to 7 p.m. Graham goes to daycare when
Mindi is working. Mindi’s best friend testified that she has
been friends with Mindi for 7 or 8 years and that her children
are the same ages as Mindi’s. She said Mindi is a great mother
who loves her children. Mindi’s best friend allows Mindi to
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 245
Cite as 22 Neb. App. 241watch her children and said that she has never had any con-
cerns about Mindi’s ability to parent.
There was extensive evidence presented at trial regarding
Mindi’s alcohol use. Christian testified that Mindi’s alcohol
issues began causing problems in their marriage almost imme-
diately. It appeared to Christian that Mindi tried to hide her
drinking because he would find bottles of alcohol in laundry
baskets, under clothes, under the bathroom sink, and tucked
away in closets. He said it seemed that once Mindi started
drinking, she could not stop; if she had one drink, then
she would have more, and her drinking increased in amount
and frequency the longer they were together. According to
Christian, at one point, Mindi told him that she was drinking
every day, even when he was at work and she was home alone
with Graham and Berkley.
In addition to the amount and frequency of Mindi’s drinking,
Christian was concerned that Mindi was also taking a number
of medications and having adverse reactions to the combina-
tion of alcohol and medication. According to Christian, mix-
ing alcohol and medication caused Mindi to cry a lot; become
very aggressive, hostile, and angry; and “flip out.” Christian
recounted several incidents that he claimed occurred as a result
of Mindi’s drinking.
He described an incident in August 2011 when Mindi became
intoxicated while they were out with friends and she threw a
beer bottle at another woman. After Christian escorted Mindi
outside, she became very upset and starting crying and fighting
with him. At one point, she sat on the ground and banged her
head on a bicycle rack.
Five days later, Christian and Mindi were celebrating their
first anniversary at home and each consumed three beers.
Mindi’s behavior then became extremely erratic. She started
sobbing uncontrollably, thrashing around, and throwing her-
self into the wall. She knocked herself out momentarily, and
after regaining consciousness, she had a blank stare on her
face. Then, according to Christian, Mindi said that her name
was “Joe” and that she was 75 years old. She got very aggres-
sive, to the point that Christian had to physically restrain her
from hitting him or hurting herself. She sat on some stairs,
Decisions of the Nebraska Court of Appeals
246 22 NEBRASKA APPELLATE REPORTS
rocking back and forth and continually hitting her head on the
wall and the bannister.
Eventually, Mindi was taken to a hospital that night and
admitted to inpatient psychiatric services overnight. While
at the hospital, Mindi underwent a psychosocial assessment.
She reported having hallucinations of a man named “Joe” and
said that she had been struggling with anxiety, panic attacks,
and depression since Graham’s birth. She said that she had
been working with her physician and was taking medication
to help her cope. Ultimately, the hospital staff psychiatrist
diagnosed Mindi with major depressive disorder, recurrent,
moderate intensity with postpartum onset; anxiety disorder;
and alcohol abuse. Mindi was referred to outpatient counsel-
ing and asked to follow up with her physician to continue with
her medications.
One night, a week after Mindi’s hospitalization, she woke
up around 10 p.m. and turned into “Joe” again. She knocked
pictures off the walls, acted very aggressively, and sat on the
ground rocking back and forth. Christian called his mother
and Mindi’s mother to come over, and eventually, Christian’s
mother convinced Mindi to take her medication. Later that
month, following an argument with Christian, Mindi went
home and ingested a large amount of pain medication. When
Christian arrived home, he found Mindi lying in bed and dis-
covered an “empty” bottle of the medication. Mindi admitted
that she had taken the remaining pills, and when Christian
forced Mindi to vomit, he counted 12 or 15 pills in the sink.
In September and October 2011, Mindi attended five ses-
sions with Cynthia Hollister, a licensed mental health thera-
pist. Mindi reported to Hollister that she had been drinking
alcohol since she was 15 years old and that her consump-
tion had gradually increased over the years. Mindi said that
she often drank during the day and had to hide it because
of Christian’s “hypervigilance” about her drinking. Mindi
reported that her father and two of her sisters have issues
with alcoholism, which indicated to Hollister that Mindi has
a genetic predisposition to alcoholism or substance abuse.
At one point during treatment, Mindi told Hollister that she
considered herself to be an alcoholic. Hollister diagnosed
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 247
Cite as 22 Neb. App. 241Mindi with anxiety disorder, depressive disorder, and alco-
hol dependence.
At the time Mindi began seeing Hollister, she had recently
begun attending Alcoholics Anonymous (AA) meetings and
obtained a sponsor. Mindi earned her “30 day [sobriety] chip”
from AA during that time, but she had mixed feelings about the
achievement, reporting that she felt resentful instead of happy
because she could not go out and drink like other people are
able to do. Mindi’s last session with Hollister was on October
13, 2011. Mindi simply stopped attending counseling and AA
and began drinking again.
Several more incidents occurred thereafter. In early January
2012, Christian was home one afternoon with Graham while
Mindi and Berkley were out running errands. Christian was
taking out the trash when he observed Mindi throw some
empty “mini-shooters,” which are small bottles of alcohol,
in a Dumpster before pulling her car into the garage at their
home. Later that month, Mindi and Berkley spent the night at
Mindi’s best friend’s house for Mindi’s birthday. The following
day, Mindi was supposed to help Christian clean their apart-
ment before they moved to North Platte, but she did not return
home until around 4 p.m. Christian thought Mindi had been
drinking, because of her behavior. They argued but reconciled,
and Mindi apologized and said she would find counseling for
herself in North Platte and begin attending AA again. However,
she never did so.
Mindi began working at a medical center in North Platte
in February 2012. She went out drinking with some of her
coworkers after her first day of work. When she got home,
it was obvious to Christian that she was intoxicated, because
she stumbled through the door and went straight to the bath-
room, where she vomited. After doing so, Mindi tried to play
with Berkley, but she ended up passing out in Berkley’s lap.
When Christian tried to get Mindi to go to bed, she got angry
and kicked Christian in the stomach, hit him in the testicles,
and swung at him a third time before Christian pushed her
away. This incident occurred in front of Berkley. Christian put
Berkley to bed, and after he finally got Mindi to bed, she vom-
ited on the floor next to the bed.
Decisions of the Nebraska Court of Appeals
248 22 NEBRASKA APPELLATE REPORTS
At trial, Mindi blamed the August 2011 incident resulting in
her hospitalization on an adverse reaction to mixing her medi-
cations with alcohol. She said that her mental health issues
were the result of postpartum depression and that she has not
had any similar incidents since then. Mindi claimed that many
of the other incidents Christian described were the result of
postpartum depression and anxiety and that they were not all
related to alcohol. Mindi denied getting intoxicated with her
coworkers in North Platte. However, she was impeached with
the statements she made during her deposition admitting that
she had been intoxicated that night and that she did not remem-
ber going home.
At the time of trial, Mindi was in a relationship. The rela-
tionship began around August 2012, and Mindi’s boyfriend
moved into her residence in November or December 2012.
Mindi claimed at trial that he moved out of her home in May
2013. However, evidence was presented that his vehicle was
seen pulling out of Mindi’s garage around 6 a.m. on June 21
and into the garage around 7:45 that evening.
Mindi’s boyfriend’s criminal history includes an arrest for
possession of marijuana and “ecstasy” and three convictions
for driving under the influence. Mindi and her boyfriend admit-
ted they had consumed alcohol together despite the fact that
neither of them was permitted to do so. Mindi’s boyfriend was
on probation at the time, which prohibited him from drink-
ing alcohol. Mindi was forbidden from drinking alcohol by a
temporary order entered in this case in June 2012. When asked
what positive results could come from consuming alcohol,
Mindi responded, “I do not believe that I have a problem, and I
do believe I am able to handle myself and have an adult bever-
age if Graham is not there.”
On July 19, 2013, the court entered an order dissolving
Christian and Mindi’s marriage. The court found that Christian
and Mindi are both fit and proper people to have custody of
Graham but that the best interests of Graham would be served
by placing his legal and physical custody with Christian,
subject to reasonable parenting time with Mindi. The court
noted that generally, a parent with a work schedule such as
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 249
Cite as 22 Neb. App. 241Christian’s would not be in a position to be awarded custody
of a child. But the court’s concerns were alleviated by the tes-
timony of Graham’s daycare provider.
The court found Mindi to be a loving mother who has a
close bond with Graham and would appropriately parent him.
Several serious deficiencies were noted in Mindi’s behavior
and character, however. The court concluded that Mindi has a
serious problem with alcohol, which she attempted to minimize
during her testimony at trial. The court found that Mindi was
not dealing with her alcohol problem and expressed concern
about her minimization of the problem and the fact that she
violated the court’s temporary order. Mindi’s credibility and
her “choice of live-in-boyfriend” were also factors that the
court considered in its custody determination. Ultimately, the
court concluded that Mindi has many positive attributes as
a loving mother. But her past mental instability and alcohol
abuse, probable continuing problem with alcohol that she
refuses to address, and cohabitation with someone who also
has a serious alcohol problem prevented the court from award-
ing custody to her.
The court included a restriction on cohabitation in the par-
enting plan. The restriction provides that if Christian is not liv-
ing with an unrelated member of the opposite sex but Mindi is
doing so, Christian may refuse to allow her overnight visitation
with Graham, and vice versa.
When calculating child support, the court noted that Mindi
“has a child from a previous relationship, which requires this
[c]ourt for good cause shown to deviate from the [child sup-
port] worksheet.” As a result, the court ordered Mindi to pay
$305 per month in child support. Finally, the district court
divided the costs of the action, including Dr. Schroeder’s fee,
equally between the parties.
Mindi timely appeals, and Christian cross-appeals.
ASSIGNMENTS OF ERROR
On appeal, Mindi assigns that the district court erred in
(1) finding that the Lincoln County District Court obtained
jurisdiction before the Lancaster County District Court,
Decisions of the Nebraska Court of Appeals
250 22 NEBRASKA APPELLATE REPORTS
(2) granting Christian custody of Graham, (3) placing restric-
tions on cohabitation in the parenting plan, and (4) ordering
that Mindi be required to pay a portion of an expert wit-
ness fee.
On cross-appeal, Christian assigns that the district court
erred in deviating from the child support guidelines without
good cause.
ANALYSIS
Jurisdiction.
[1] Mindi argues that the Lincoln County District Court
erred in concluding that it obtained jurisdiction before the
Lancaster County District Court. The standard of review in an
appeal concerning a jurisdictional issue in an action for dis-
solution of marriage is the same standard for appellate review
of any other judgment in a dissolution action. Regarding a
question of law, an appellate court has an obligation to reach
a conclusion independent from a trial court’s conclusion in a
judgment under review. Huffman v. Huffman, 232 Neb. 742,
441 N.W.2d 899 (1989).
[2] Under Nebraska law, an action for dissolution of mar-
riage shall be brought in the district court of the county in
which one of the parties resides. Neb. Rev. Stat. § 42-348(Reissue 2008). Mindi filed her action for dissolution of mar-
riage in the Lancaster County District Court on April 26, 2012.
Her complaint alleged that she was a resident of Lancaster
County. On May 1, 2012, Christian filed his dissolution action
in the Lincoln County District Court. His complaint asserted
that he resided in Lincoln County. Based on the allegations
of the two complaints, the district court of either county
could have exercised jurisdiction over a dissolution action
between them.
[3,4] When the jurisdiction of the county court and district
court is concurrent, the basic principles of judicial adminis-
tration require that the court which first acquires jurisdiction
should retain it to the exclusion of the other court. Washington
v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007). In the
present action, both courts are district courts, but we find
no reason not to apply the basic doctrine. Thus, under the
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 251
Cite as 22 Neb. App. 241doctrine of judicial administration, Lancaster County could
have demanded jurisdictional priority. However, the principles
of judicial administration require the elimination of unneces-
sary litigation and the promotion of judicial efficiency and
economy. Courts enforce the jurisdictional priority doctrine to
promote judicial comity and avoid the confusion and delay of
justice that would result if courts issued conflicting decisions
in the same controversy. Molczyk v. Molczyk, 285 Neb. 96, 825
N.W.2d 435 (2013).
The record indicates that the judges from Lancaster County
and Lincoln County conferred on the matter and decided that
the Lancaster County action would be dismissed. In a collab-
orative effort, the courts apparently decided not to enforce the
jurisdictional priority doctrine, but we have no record to deter-
mine the basis of that decision. We note, however, that through
this joint decision, the principles of judicial administration
were met, as there was no unnecessary litigation or danger of
conflicting decisions. To reverse at this point in the litigation,
when jurisdiction would have been proper in either district
court, would not promote judicial efficiency or economy.
Therefore, we find no abuse of discretion in allowing this case
to proceed in Lincoln County.
Custody.
[5,6] Mindi argues that the district court erred in awarding
Christian custody of Graham. In an action for the dissolution
of marriage, an appellate court reviews de novo on the record
the trial court’s determinations of custody, child support, prop-
erty 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 discre-
tion. Bussell v. Bussell, 21 Neb. App. 280, 837 N.W.2d 840(2013). A judicial abuse of discretion exists when the 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. Id.[7-9] When custody of a minor child is an issue in a pro-
ceeding to dissolve the marriage of the child’s parents, child
custody is determined by parental fitness and the child’s best
Decisions of the Nebraska Court of Appeals
252 22 NEBRASKA APPELLATE REPORTS
interests. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492(2007). When both parents are found to be fit, the inquiry for
the court is the best interests of the children. Id. In determining
a child’s best interests under Neb. Rev. Stat. § 42-364 (Cum.
Supp. 2012), courts may consider factors such as general con-
siderations of moral fitness of the child’s parents, including
the parents’ sexual conduct; respective environments offered
by each parent; the emotional relationship between child and
parents; the age, sex, and health of the child and the parents;
the effect on the child as a result of continuing or disrupting
an existing relationship; the attitude and stability of each par-
ent’s character; parental capacity to provide physical care and
satisfy educational needs of the child; and many other factors
relevant to the general health, welfare, and well-being of the
child. Maska v. Maska, supra.The district court found that Mindi is a loving mother who
has a close bond with Graham and would appropriately parent
him. Despite this, the court determined that awarding custody
of Graham to Christian was in Graham’s best interests because
of concerns over Mindi’s past mental instability and her alco-
hol issues, including the fact that Mindi attempted to minimize
her alcohol problem and refused to address it.
The record indicates that Christian and Mindi both love
Graham and would appropriately care for him and parent
him. They both have suitable residences for him, are suitably
employed in order to provide for him, and have appropriate
care for him when they are working. Thus, the record supports
the district court’s finding that Christian and Mindi are both
fit parents.
The evidence also supports the district court’s concerns
about Mindi’s mental health history and alcohol use. Mindi
was diagnosed with depression and anxiety, and drinking alco-
hol exacerbated her conditions, especially when mixed with
her medications. She admitted to Hollister that she considered
herself to be an alcoholic, that her drinking had gradually
increased over the years, and that she often drank during the
day but hid it from Christian. Although Mindi attended ther-
apy and AA meetings for a brief period of time, she quickly
began drinking to excess again and continued to drink alcohol
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. App. 241at the time of trial despite the court’s prohibiting her from
doing so.
Mindi argues that Christian’s work schedule is concerning
when he is absent from Graham’s life for several days in a
row. We note that Christian’s work schedule does not require
him to be away from Graham for several days in a row, and in
an average month, Christian’s schedule allows him to be with
Graham for 20 full days. Although his schedule is unusual
because it requires him to find 24-hour care for Graham, we
do not find it to be a basis upon which to reverse the award of
custody to him. The record indicates that Graham is appropri-
ately cared for while Christian is working, that Graham enjoys
being in the daycare provider’s home with her family, and that
Graham is growing and developing very well.
[10,11] In this case, both Christian and Mindi presented evi-
dence concerning their own parenting strengths and the weak-
nesses of the other. Where 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 court heard and observed
the witnesses and accepted one version of the facts rather than
another. Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132(2004). In fact, in contested custody cases, where material
issues of fact are in great dispute, the standard of review and
the amount of deference granted to the trial judge, who heard
and observed the witnesses testify, are often dispositive of
whether the trial court’s determination is affirmed or reversed
on appeal. Id.The record presents ample evidence to support the district
court’s decision to award custody to Christian, and given all
of that evidence, our standard of review, and deference to the
trial court’s observation of the witnesses, we cannot find that
the district court abused its discretion in awarding custody of
Graham to Christian.
Cohabitation.
Mindi argues that the district court erred in placing restric-
tions on cohabitation in the parenting plan. We agree and
conclude that the district court’s order giving Christian the
discretion to withhold overnight visitation with Mindi if she
Decisions of the Nebraska Court of Appeals
254 22 NEBRASKA APPELLATE REPORTS
cohabits with someone of the opposite sex, and vice versa, is
an unlawful delegation of the trial court’s duty.
[12] It is the responsibility of the trial court to determine
questions of custody and visitation of minor children according
to their best interests. This is an independent responsibility and
cannot be controlled by the agreement or stipulation of the par-
ties themselves or by third parties. Deacon v. Deacon, 207 Neb.
193, 297 N.W.2d 757 (1980), disapproved on other grounds,
Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). In
Deacon, the Supreme Court reversed an order which granted
a psychologist the authority to effectively determine visitation
and to control the extent and time of such visitation, conclud-
ing that such an order was an unlawful delegation of the trial
court’s duty that could result in the denial of proper visitation
rights of the noncustodial parent. As authority for its conclu-
sion, the Deacon court cited Lautenschlager v. Lautenschlager,
201 Neb. 741, 272 N.W.2d 40 (1978). In Lautenschlager, the
court observed:
The rule that custody and visitation of minor children
shall be determined on the basis of their best interests,
long established in case law and now specified by statute,
clearly envisions an independent inquiry by the court.
The duty to exercise this responsibility cannot be super-
seded or forestalled by any agreements or stipulations by
the parties.
201 Neb. at 743-44, 272 N.W.2d at 42. The Supreme Court
in Deacon specifically took note that the reasoning of
Lautenschlager was being extended to third parties. The rea-
soning of Deacon has also been applied in other contexts.
See, In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905(1992) (finding plain error in juvenile court’s requirement that
parent participate in support group and follow all directions
of counselor); Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d
192 (1988) (disapproving of district court order authorizing
child custody officer to control custody and visitation rights
of minor child); In re Interest of Teela H., 3 Neb. App. 604,
529 N.W.2d 134 (1995) (holding that juvenile court order
granting psychologist authority to determine time, manner, and
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 255
Cite as 22 Neb. App. 241extent of parental visitation was improper delegation of judi-
cial authority).
In the present case, the delegation is not to a third party;
rather, it is to the custodial parent. But, the rationale of the
aforementioned cases applies with equal force when it is the
custodial parent who is granted the authority to determine the
visitation privileges of the noncustodial parent, because set-
ting the time, manner, and extent of visitation is solely the
duty of the court. Indeed, in Deacon, the Supreme Court said,
“[The custodial parent’s] position that visitation rights should
be at his discretion, as in his judgment shall be reasonable and
proper for the best interests of the children, is erroneous and
cannot be sustained.” 207 Neb. at 200, 297 N.W.2d at 761-62.
We therefore find that the district court abused its discretion in
allowing Christian to determine whether Mindi is entitled to
overnight visits, and we modify the parenting plan to remove
that provision.
Expert Witness Fee.
Mindi contends that the district court erred in ordering her
to pay a portion of Dr. Schroeder’s expert witness fee. She
argues that Dr. Schroeder’s opinion was not helpful to the
court in determining what was in Graham’s best interests and
that she was earning less money than Christian at the time
of trial.
[13,14] Neb. Rev. Stat. § 42-367 (Reissue 2008) permits a
court to direct costs against either party in an action for dis-
solution of marriage. In Lockwood v. Lockwood, 205 Neb. 818,
290 N.W.2d 636 (1980), the Nebraska Supreme Court upheld
the taxing of expert witness fees as costs under § 42-367 where
there was evidence of a contract that the witness had been
employed by the wife, the witness testified to the value of his
services, and the documents and the testimony were accepted
into evidence at trial. In a dissolution action, an appellate court
reviews an award of expert witness fees de novo on the record
to determine whether there has been an abuse of discretion by
the trial judge. Drew on behalf of Reed v. Reed, 16 Neb. App.
905, 755 N.W.2d 420 (2008).
Decisions of the Nebraska Court of Appeals
256 22 NEBRASKA APPELLATE REPORTS
In this case, the evidence establishes that Christian requested
Dr. Schroeder’s services and her testimony at trial. She testi-
fied that she was charging $600 for her services. Although Dr.
Schroeder could not opine as to which parent was a better fit
for Graham, the district court cited her opinion of Christian
in its analysis of Christian as a parent and ultimately awarded
custody to Christian. Given this and the relative similarity in
the parties’ incomes as determined by the trial court, we find
no abuse of discretion in ordering the parties to equally divide
the costs of the action, including Dr. Schroeder’s fee.
Child Support.
[15] On cross-appeal, Christian claims the district court
erred in deviating from the child support guidelines without
good cause. In dissolution of marriage actions, the trial court’s
determination of child support is reviewed for an abuse of dis-
cretion. See Bussell v. Bussell, 21 Neb. App. 280, 837 N.W.2d
840 (2013).
[16,17] The child support guidelines are to be applied as
a rebuttable presumption to both temporary and permanent
support, and any deviation from the guidelines must take
into consideration the best interests of the children. Wilkins
v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005). A court
may deviate from the guidelines when one or both of the par-
ties have provided sufficient evidence to rebut the presump-
tion. Id.[18,19] The guidelines provide that a deviation is per-
missible whenever the application of the guidelines in an
individual case would be unjust or inappropriate. Neb. Ct.
R. § 4-203(E) (rev. 2011). The guidelines also allow for a
deduction in determining monthly net income for biological
or adopted children for whom the obligor provides regular
support. Neb. Ct. R. § 4-205(E).
As the custodial parent of Berkley, Mindi clearly provides
regular support for her; however, Mindi did not provide any
evidence of the amount of such support or request a deviation
from the guidelines on that basis. In fact, Mindi did not request
a deviation from the guidelines at all. Further, the district court
did not conclude that a deviation was in the best interests of
Decisions of the Nebraska Court of Appeals
BARTH v. BARTH 257
Cite as 22 Neb. App. 241Graham. Consequently, we conclude that there was insufficient
evidence to rebut the presumption that the guidelines should
be applied. Therefore, the district court abused its discretion
when it entered a child support order that deviated from the
child support guidelines without good cause.
Based on the child support worksheet completed by the dis-
trict court, Mindi should have been required to pay $626 per
month. We therefore modify the decree to award Christian $626
per month in child support. The trial court entered its decree on
July 19, 2013. If the trial court had ordered child support to be
paid as required by the guidelines, the first installment would
have been due on August 1. The decree as modified by this
opinion shall operate accordingly. See Pursley v. Pursley, 261
Neb. 478, 623 N.W.2d 651 (2001).
CONCLUSION
We find that the district court did not abuse its discretion
in allowing the Lincoln County action to proceed, awarding
custody of Graham to Christian, or dividing the costs of the
action equally between the parties. However, the cohabitation
restriction is impermissible, and we therefore remove it from
the parenting plan. Likewise, it was an abuse of discretion for
the district court to deviate from the child support guidelines
without good cause. Accordingly, we modify the decree to
order Mindi to pay $626 per month in child support in accord­
ance with the child support guidelines.
Affirmed as modified.