Gurnsey v. Gurnsey ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
GURNSEY V. GURNSEY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
KALAI M. GURNSEY, APPELLEE,
V.
NOLAN C. GURNSEY, APPELLANT.
Filed September 26, 2023. No. A-22-875.
Appeal from the District Court for Lincoln County: MICHAEL E. PICCOLO, Judge. Affirmed.
James C. Bocott, of Law Office of James C. Bocott, P.C., L.L.O., for appellant.
Chawnta Durham, of C. Durham Law Office, L.L.C., for appellee.
PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.
MOORE, Judge.
I. INTRODUCTION
Nolan C. Gurnsey appeals from the decree of dissolution entered by the district court of
Lincoln County, dissolving his marriage to Kalai M. Gurnsey. Nolan challenges the decree’s award
of legal and physical custody of the parties’ three minor children to Kalai. Nolan also contends
that the district court erred in denying his motions for in camera interviews with two of the
children. For the following reasons, we affirm.
II. STATEMENT OF FACTS
Nolan and Kalai were married in 2008 and together have three children: Ryan, born in
2009; Emmersyn, born in 2010; and Liam, born in 2018. Kalai filed a complaint for dissolution of
marriage in November 2019, and Nolan filed an answer in December. In their respective filings,
both parties requested sole custody of their children subject to the reasonable parenting time of the
other parent.
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1. PRETRIAL PROCEEDINGS
The district court entered an order on December 20, 2019, awarding temporary legal and
physical custody of the children to Kalai. The court’s order also incorporated a parenting plan,
which awarded Nolan weekend parenting time every other weekend from Thursday evening to
Monday morning, alternating with weeknight parenting time on Wednesday during the “off week.”
The temporary parenting plan also awarded Nolan parenting time during half of the children’s
school summer break and during various holidays.
On April 25, 2022, Nolan filed a motion for an in camera interview of the minor children.
The motion alleged that the children were of a sufficient age and maturity to articulate their
preferences and that the district court should consider this evidence when making its determination
regarding custody and parenting time, and that the interview was in the children’s best interests.
In an order filed the following day, the district court stated that the dissolution trial began
on April 26, 2022. This first day of trial is not included in our bill of exceptions. The order noted
that Nolan’s motion for an in camera interview was argued and subsequently denied by the court.
Trial was continued until May 11 and the court ordered that any additional pretrial motions must
be filed no later than May 4, to be heard telephonically on May 9.
On May 4, 2022, Nolan filed another motion for an in camera interview of the minor
children, making identical allegations as his first motion filed on April 25. At the May 9 hearing
on the matter, Nolan argued that the children had expressed a desire for a 50/50 custody
arrangement and equal time with both parents, and that he was seeking an opportunity for the
children to express this desire to the district court. Nolan stated that if the court were to overrule
the motion, he would make an offer of proof at the trial. Nolan clarified that his motion for an in
camera interview related only to the parties’ two older children, Ryan and Emmersyn.
Kalai offered an affidavit with an attachment in response to Nolan’s motion for an in
camera interview. Kalai’s affidavit stated that she did not believe it was in the children’s best
interests to be interviewed in camera given their young ages and that becoming a part of the
proceedings would be emotionally burdensome. The affidavit also noted that Ryan suffers from
generalized anxiety disorder and has been in therapy for the past 2 years. At Ryan’s last therapy
session on May 4, Kalai received progress notes from Ryan’s therapist stating that Ryan had
expressed an unwillingness to participate in court proceedings. The progress notes from Ryan’s
therapist detailing his May 4 session were attached to Kalai’s affidavit. The therapist reported that
Ryan had high anxiety about his parents’ trial, that he did not want to talk to any attorneys or the
court, and that it would be in “Ryan’s best interests to remain out of the custody matter and/or off
the stand in the court room.” The progress notes also state that Ryan had expressed a custody
preference to his therapist: “he wants the schedule to remain the same as it is.”
Nolan objected to the affidavit and attachment on the basis of hearsay and foundation, and
the district court received the exhibit subject to its review of Nolan’s objections. The court took
the matter under advisement. In an order dated May 9, 2022, but not filed until April 19, 2023, the
court overruled Nolan’s motion for an in camera interview of the two oldest children.
2. TRIAL
The continued dissolution trial was held on May 11, 2022. The primary issue before the
district court was the legal and physical custody of the children. Kalai requested sole legal and
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physical custody of the children subject to Nolan’s reasonable parenting time. Nolan requested
that he and Kalai be awarded joint legal custody and an equal share of physical custody in a 50/50
arrangement.
At the beginning of the trial, Nolan’s attorney inquired about his pretrial motion for an in
camera interview of the children, as he had not yet seen an order from the district court. The court
responded that it had decided the issue and that counsel should have received a faxed copy of the
order. The court stated that it had decided the 12-year-old Ryan to be “pretty young” for the court
to interview. The court went on to note that dissolution proceedings can be challenging for
children, and it was the court’s usual position not to discuss the case with them.
Prior to Nolan’s testimony, he made an offer of proof regarding the testimony of the
children. Nolan stated that if the two older children were called to testify, he believed their
testimony would be that they wanted equal time with both parents and that they would not testify
“with regard to the legal aspect of things.” Kalai responded that Nolan’s offer of proof was
contradicted by the progress notes authored by Ryan’s therapist. The district court again overruled
Nolan’s request to have an in camera interview. The court then heard testimony from Kalai, Nolan,
and several family members.
(a) Employment and Family Relocations
At the time of the parties’ marriage, Kalai was 18 years old and Nolan was 27. For the first
2 years of the marriage Kalai and Nolan lived in Bassett, Nebraska, where Nolan was working as
a licensed practical nurse. Kalai had been homeschooled but had not received a high school
diploma or a GED. Kalai worked at a gas station part time for the first few months of the marriage
but stopped when she became pregnant. When Ryan was born in July 2009, Kalai and Nolan agreed
to an arrangement where Nolan would work outside the home and Kalai would be a stay-at-home
mother.
The parties moved to Lincoln, Nebraska in the summer of 2010, when Kalai was pregnant
with Emmersyn, so that Nolan could obtain his registered nurse credentials. Nolan worked part
time while in nursing school and participated in extracurricular activities, such as the student
council and various nursing boards. In 2012, Kalai obtained her GED and enrolled in an associate
degree program in the fall. However, in the spring of 2013, halfway through Kalai’s second
semester, Nolan informed Kalai that as soon as he graduated from his registered nursing program
in May the family would be moving back to Bassett. Kalai testified that Nolan did not discuss
moving the family with her and that she had no input in the decision.
The family moved back to Bassett in July 2013 and Kalai did not complete her associate
degree. After sitting for his nursing boards in September, Nolan worked full time as a director of
nursing for 9 months. He then began working a nursing night shift to allow him to spend more
time with the family. Nolan testified that Kalai asked Nolan to be home with the family at night
and in 2015, Nolan began working as a travel nurse and as an interim director of nursing for a
different facility. Nolan was away from the home for 3 days a week when working as a travel nurse
once or twice a month.
The family moved to Imperial, Nebraska, in July 2015, so that Nolan could begin working
full time as the administrator of a nursing home. Nolan also worked as a travel nurse during this
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time. While in Imperial, Kalai homeschooled Ryan and Emmersyn for preschool and part of
kindergarten and later enrolled the children at their local public school in January 2017.
In March 2017, Nolan accepted the role of administrator of a nursing home in North Platte,
Nebraska, and the family moved again. Nolan worked full time as an administrator and as a travel
nurse a few weekends a month. Because Ryan and Emmersyn were enrolled in school, Kalai began
working part time as a materials stocker at a hospital in April 2017. In September 2017, when
Kalai was pregnant with Liam, she had to take medical leave from her position due to
complications with the pregnancy. Kalai never returned to her position and the 5-month period in
2017 and a few months in 2008 are the only times Kalai had worked outside of the home during
the parties’ marriage.
Though Kalai testified that she and Nolan shared many of the household duties, the
majority of the childcare fell to her as Nolan was working outside of the home. Kalai described
suffering from migraines since she was a teenager and being diagnosed with fibromyalgia in 2016.
Kalai was presently engaged in treatment which successfully managed her health conditions. Kalai
denied that her health issues had ever rendered her unfit to care for the children or currently
prevented her from working or being a student. Nolan testified to providing the majority of the
childcare during the periods where Kalai’s migraines were debilitating.
At the time of trial Kalai was enrolled in community college and taking prerequisite classes
to apply for a nursing program. Kalai had enrolled the parties’ youngest child, Liam, in daycare to
allow her to attend classes as a full-time student. Nolan had recently become the administrator of
another nursing home in North Platte, where he had negotiated having 6 days off every 2 weeks to
accommodate time with the children.
(b) Medical Care Differences
The parties expressed oppositional points of view related to their children’s medical care.
The parties’ oldest child, Ryan, has been seeing a therapist for the past 2 years and had been
diagnosed with generalized anxiety disorder, depression, and ADHD. Roughly 18 months before
trial, Ryan expressed suicidal ideations to his therapist, who referred Ryan to a pediatrician for
treatment of his anxiety and depression. The pediatrician prescribed Zoloft and had recently
prescribed additional medications to help with Ryan’s ADHD and insomnia. Ryan has continued
taking Zoloft since it was prescribed, he meets with the pediatrician every 4 weeks for medication
management, and he sees his therapist twice a month to work on additional coping skills. The
parties’ second child, Emmersyn, has been taking a thyroid medication for 1 year.
Kalai testified that it was in both Ryan’s and Emmersyn’s best interests to continue taking
their medications as prescribed. Kalai found that Ryan responded well to the medication, including
a greater interest and enjoyment in school and fewer emotional outbursts. Ryan has not expressed
suicidal ideations since he was prescribed Zoloft. She noted that if Nolan were to make medical
decisions on behalf of the children, it was likely that Nolan would discontinue Ryan’s medication
regime. Kalai takes the children to their medical appointments and does not provide Nolan with
notice of the appointments. Kalai was unsure whether she would consult Nolan regarding medical
decision making, stating that Nolan does not compromise or consider Kalai’s input on the matter.
Nolan testified to his concerns regarding the effects of Zoloft on children. Based on his
research on the Mayo Clinic’s website, children who take Zoloft can experience weight loss, the
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inability to focus, and dependency on antidepressants later in life. Nolan had observed Ryan to be
smaller than his classmates and that his weight has not increased during the time he has been taking
Zoloft. Over a year after Ryan had first been prescribed Zoloft, Nolan met with Ryan’s pediatrician
to express his concerns. However, after their meeting Ryan remained on the medication and Nolan
did not seek out any additional medical appointments for Ryan. Nolan testified that Kalai was
overmedicating Ryan and that following the recommendations of Ryan’s providers did not
constitute “informed medical decisions.”
Kalai testified that Nolan also disagreed with Kalai’s decision to vaccinate the children,
including vaccinations against COVID-19. Nolan testified that he found the risk of the children
contracting COVID-19 to be low compared to the wide variety of vaccine side effects. Nolan also
believed that all vaccines in general should be “cautioned in youth,” and that if he had sole medical
decision making the children would remain unvaccinated. Up until the time of parties’ separation
the children had not received any vaccinations.
On cross examination Kalai was asked about the extent to which she researched the side
effects of her children’s medication and the COVID-19 vaccine. Kalai testified to doing some of
her own research but ultimately deferring to her children’s doctors who have “much more
extensive knowledge than I would or that I would be able to Google.”
Kalai also believed that Nolan did not provide adequate medical care for the children while
they were in his custody. In early 2020, Nolan hit an animal on the road while the children were
in the car. Emmersyn was not wearing a seat belt and hit the car’s dashboard. Nolan did not inform
Kalai of the accident and dropped Ryan and Emmersyn off at school. Kalai took the children to
the emergency room to be assessed and no medical issues were detected.
Another time Ryan complained to Kalai about being hit in the head while playing at a
church event during Nolan’s Wednesday overnight. Kalai told Nolan to take Ryan to the doctor
where he was diagnosed with a concussion. Kalai kept Ryan home from school for a week as a
precaution. Nolan did not provide any testimony regarding these two events.
(c) Religious Differences
During the marriage, the parties’ religious beliefs were fairly consistent with one another,
and the family regularly attended church. Kalai testified that Nolan held conservative Christian
beliefs regarding the issues of modesty and homosexuality, and Nolan agreed that he considers
homosexuality to be a sin. Since the separation, Kalai no longer identifies as a Christian but
believes in “equality and acceptance.” Nolan testified to wanting to provide a “biblical
understanding” of the world to his children.
This religious tension between Kalai and Nolan became more prominent when, in the last
year, Emmersyn began identifying as bisexual. Kalai accepted Emmersyn’s sexual orientation,
even allowing her to hang a Pride flag in her bedroom. Kalai overheard a video call conversation
between Emmersyn and Nolan where Nolan told Emmersyn that the Bible prohibited
homosexuality and that her being bisexual was not an acceptable lifestyle. Emmersyn became very
upset, bursting into tears and yelling at Nolan over the video call.
Nolan testified that though his religious beliefs on homosexuality were steadfast, he
believes that one can share differences and still be respectful and compassionate. Nolan testified
consistently with Kalai’s description of his video call with Emmersyn concerning her sexual
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identity. But Nolan noted that he and Emmersyn have had additional conversations since their
video call where Nolan has reiterated that while he does not approve of Emmersyn’s choice, he
nonetheless loves her. Emmersyn has continued coming to Nolan with concerns and Nolan
believes their relationship has remained positive.
(d) Communication Issues and Protection Order
Kalai testified that Nolan sent her frequent, mean text messages during a contentious time
in the proceedings. Text messages between Kalai and Nolan from October 2020 to March 2021
were entered into evidence. In the text messages Nolan regularly brings up his desire to have 50/50
physical custody of the children, calls Kalai “greedy,” “selfish,” “immoral,” “pathetic,” and “an
adulterous whore,” and accuses Kalai of putting Liam in daycare because she does not want to
spend time with him. Kalai noted that the offered text messages were not the only messages
received from Nolan during the 5-month window but highlighted the difficulties in the parties’
communication.
Kalai filed a petition and affidavit to obtain a harassment protection order against Nolan
on March 19, 2021. Attached to her petition was a timeline of correspondence between Kalai and
Nolan from October 2020 to March 2021, which outlines the text messages offered to the district
court at trial. Kalai describes making requests that Nolan contact her solely through her attorney
and Nolan ignoring her requests and continuing to “harass [Kalai] through texts, calling and
in-person at drop off and pickups.” Also attached to the petition are two letters from Kalai’s
attorney to Nolan, dated January and February 2021, directing Nolan to contact Kalai’s attorney
and not Kalai regarding any issues with the case. On March 22, the district court granted Kalai an
ex parte harassment protection order against Nolan.
Nolan filed a request for a hearing on the protection order and at the hearing held on April
20, 2021, Nolan requested a continuance to hire an attorney. The district court granted the
continuance and ordered that the attorneys should contact the court’s bailiff to schedule a new
hearing date. Though Nolan retained an attorney, the protection order’s trial docket reflects that
no hearing was ever scheduled. The ex parte order expired on March 22, 2022. Prior to that, all
communication between the parties went through a third party, Kalai’s mother.
(e) Temporary Custody Arrangement
In the temporary custody order, Nolan’s parenting time included four overnights, Thursday
to Monday morning, every other week, and an additional Wednesday evening until 8 p.m. in the
alternate week. However, both parties mistakenly believed that the order awarded Nolan parenting
time every Wednesday night. Nolan moved from North Platte to Sutherland, Nebraska, about 20
miles away, a few months after the district court entered the temporary custody award. Kalai found
that the children struggled with having to drive back late in the evening on a school night, so she
offered Nolan to keep the children overnight on Wednesdays and drop them off at daycare or
school the next morning.
Though Nolan had been having the children for overnight parenting time every
Wednesday, Kalai did not want the parties’ temporary agreement to be made part of the decree.
The parties had been experiencing some communication issues and the multiple transitions during
the week had been challenging for the children. Additionally, on weeks where Nolan had to work
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early on Thursday morning, he would drop the children back off at Kalai’s at 8 p.m. on Wednesday
evening. Kalai believed that Nolan was not taking full advantage of the parenting time offered to
him.
Nolan testified that he wanted a 50/50 physical custody arrangement. He believed that a
week on, week off arrangement would minimize disruptions for the children. Nolan also stated
that his current position allows him to take 6 days off every 2 weeks to accommodate his parenting
time with the children, and that he had the flexibility necessary for his proposed schedule.
Kalai expressed concerns regarding the 50/50 custody arrangement proposed by Nolan.
Her concerns included Nolan’s availability with his demanding administrative role, the children
frequently not having done their homework at Nolan’s, and Nolan’s inconsistency in administering
the children’s medication. Kalai described instances where medication was forgotten at Nolan’s
home when he took the children to visit his parents in Bassett, Nolan losing Ryan’s medicine bottle
and Kalai having to go to the pharmacy to obtain an emergency refill, and Kalai bringing Ryan’s
medication to him at school because Nolan had forgotten to administer it during a Wednesday
overnight visit. Kalai estimated there was an issue with the children’s medication during every
weekend Nolan had parenting time.
Regarding the possibility of shared legal custody, Kalai was concerned about how the
parties would come to decisions and compromises on parenting issues due to their differing views.
Kalai noted that Nolan infrequently made decisions with her or considered her viewpoint during
their marriage. Nolan stated that he would be a willing coparent with Kalai and would make
decisions with her regarding the children. On cross examination, Nolan conceded that he had
spoken with the children about their testifying at trial and later informed them that Kalai had
disallowed their providing testimony.
(f) Additional Testimony
Testimony was also provided by various members of Nolan’s and Kalai’s family. Nolan’s
brothers and sister testified that Nolan was a devoted father. Kalai’s grandmother testified that she
found both Kalai and Nolan to be good parents but had not spent a significant amount of time
observing their parenting skills. Kalai’s mother and Nolan’s former sister-in-law testified that
Kalai was a devoted mother, and that Nolan was a harsh disciplinarian.
3. DECREE
On July 22, 2022, the district court entered a decree of dissolution awarding Kalai legal
and physical custody of the children subject to Nolan’s parenting time. The court found that during
the parties’ marriage, Kalai was the primary caregiver and had forgone her own educational and
professional pursuits to remain in the home. Additionally, the family had moved several times to
pursue Nolan’s educational and professional pursuits. The court acknowledged that Nolan also
played a notable parental role in the family and ordered the same parenting plan as it had in its
temporary order; awarding Nolan weekend parenting time every other weekend from Thursday
evening to Monday morning, alternating with weeknight parenting time on the alternate
Wednesdays.
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Regarding the decree’s award of full legal custody of the children to Kalai, the district court
stated:
The evidence adduced at trial clearly established that Kalai and Nolan are
philosophically, religiously, and morally incompatible, which frustrates collaboration on
key issues affecting their children. Consequently, their past skirmishes over vital matters
involving their children coupled with their conflicting values and beliefs would only
exasperate their ability to effectively co-parent. Furthermore, the Court could reasonably
conclude that those unresolved family decisions—due to the parents’ oppositional
interactions—could have an unwanted, or, at least, undesired harmful effect on their
children.
The court specifically noted the parties’ disagreements regarding medical treatment, vaccines, the
administration of medication, and religion and found that it was not in the children’s best interest
for Kalai and Nolan to share joint legal custody.
Nolan appeals.
III. ASSIGNMENTS OF ERROR
Nolan assigns that the district court erred in (1) denying his motions for in camera
interviews of the two elder children; and (2) finding it was in the children’s best interests to award
Kalai sole legal and physical custody and reduce Nolan’s parenting time from that established by
the parties’ voluntary agreement made during the period of temporary custody.
IV. STANDARD OF REVIEW
A trial court’s ruling on a motion to conduct an in camera interview of a minor child in
custody proceedings is reviewed for an abuse of discretion. See Donscheski v. Donscheski, 17 Neb.
App. 807, 771 N.W.2d 213 (2009).
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. Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81(2019). 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. Id.V. ANALYSIS
1. DENIAL OF IN CAMERA INTERVIEW
Nolan first assigns that the district court erred in denying his motions for an in camera
interview of Ryan and Emmersyn, who were 12 and 11 years old at the time of trial. Nolan argues
that the district court was required to conduct an in camera interview in order to consider the
desires and wishes of the children, a factor set forth by Neb. Rev. Stat. § 43-2923(6) (Reissue
2016).
The child’s best interests require a parenting arrangement and plan which provides for a
child’s safety, emotional growth, health, stability, physical care, and regular and continuous school
attendance and progress. See § 43-2923. Moreover, § 43-2923 sets forth a non-exhaustive list of
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factors to be considered in determining the best interests of a child in regard to custody.
Specifically, regarding the desires of a minor child, the statute provides that the court should
consider “[t]he desires and wishes of the minor child, if of an age of comprehension but regardless
of chronological age, when such desires and wishes are based on sound reasoning.”
§ 43-2923(6)(b). The Nebraska Supreme Court in applying this provision has stated that while the
wishes of a child are not controlling in the determination of custody, if a child is of sufficient age
and has expressed an intelligent preference, the child’s preference is entitled to consideration.
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). The Supreme Court has also found that
in cases where the minor child’s preference was given significant consideration, the child was
usually over 10 years of age. Id.Nolan filed two motions for an in camera interview of the children, both of which were
denied by the district court. In response to Nolan’s second motion for an in camera interview, Kalai
presented an affidavit with attached therapeutic progress notes relating to Ryan. The progress notes
detailed Ryan’s anxiety disorder and his unwillingness to discuss custody with any attorneys or
the court. At a May 4, 2022, session Ryan had exhibited signs of high anxiety regarding his parents’
upcoming trial. Ryan’s therapist of 2 years concluded in the progress notes that Ryan’s
participation in the trial in any way was not in his best interests.
Whether or not to allow a young child to testify in his or her parent’s divorce trial is a
fact-specific inquiry and depends upon the circumstances of the case. See Vogel v. Vogel, supra.Although Ryan was 12 years old at the time of trial, he also had a diagnosed anxiety disorder.
Considering Ryan’s history of mental health concerns and his vocalized distress regarding his
potential participation in the family’s custody matter, the district court’s reluctance to conduct an
in camera interview under these circumstances was a proper exercise of its discretion.
Additionally, this court has previously held that it was not an abuse of discretion for a trial court
to deny a request for an in camera interview due to a child’s health condition and resulting
limitations. See McClure v. McClure, No. A‑17‑664, 2018 WL 1169654 (Neb. App. Mar. 6, 2018)
(selected for posting to court website) (finding that district court appropriately considered child’s
Autism when assessing § 43-2923(6)(b)).
We cannot say that the district court abused its discretion in denying Nolan’s motions for
an in camera interview of Ryan and Emmersyn.
2. CUSTODY DETERMINATION
Nolan also assigns that the district court erred in finding that it was in the children’s best
interests to award Kalai sole legal and physical custody and reduce Nolan’s parenting time from
that established by the parties’ voluntary agreement made during the period of temporary custody.
Nolan argues that “Kalai’s ignorance concerning medical and moral issues does not further the
best interests of the child.” Brief for appellant at 26. He additionally contends that the temporary
parenting time arrangement that afforded him 6 overnight visits every 2 weeks was working well
for the family and argues that this voluntary physical custody arrangement should have been
included in the decree. In the alternative, Nolan argues that the district court should have awarded
the parties 50/50 joint physical custody.
Before addressing Nolan’s arguments, we consider the legal principles governing custody
and parenting time matters. When deciding custody issues, the court’s paramount concern is the
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child’s best interests. Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018). Section
43-2923(6) states, in part:
In determining custody and parenting arrangements, the court shall consider the best
interests of the minor child, which shall include, but not be limited to, consideration of the
foregoing factors and:
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member. . . . ;
and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.
Other pertinent factors include the moral fitness of the child’s parents, including sexual conduct;
respective environments offered by each parent; the age, sex, and health of the child and 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; and parental capacity to provide physical care and satisfy
educational needs of the child. Kashyap v. Kashyap, supra.(a) Legal Custody
The evidence presented at trial demonstrated that the parties have struggled to
communicate with one another in a constructive manner. Kalai offered text message exchanges
between her and Nolan from October 2020 to March 2021 in which Nolan repeatedly insults Kalai
and relays his desire for a 50/50 custody arrangement. Nolan continued to text message Kalai even
after he was told by both Kalai and her attorney to stop discussing the case with Kalai. These
problems led Kalai to secure an ex parte harassment protection order against Nolan, which
remained in place for one year; or nearly half of the parties’ separation. During this time, all
communication between Kalai and Nolan went through Kalai’s mother.
Additionally, Kalai testified that Nolan did not seek or consider her opinion when making
family decisions during their marriage and he struggled to make compromises regarding
child-related decisions. Kalai was concerned that the parties would be unable to come to a
consensus on parenting issues due to their differing views. In its decree, the district court
specifically noted the parties’ opposing views on medical and religious issues and stated that
disagreement between Nolan and Kalai could have a harmful effect on the children.
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) (Reissue 2016). Nebraska
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. App. 82, 775 N.W.2d 444 (2009) (no abuse of
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discretion by district court’s failure to award joint custody when minor child was confused by
temporary joint legal and physical custody arrangement and parents had hard time communicating
with one another).
Further, trial evidence demonstrated that Kalai was making sound decisions regarding
proper care to the children. Kalai was responsible for taking the children to their medical
appointments and was deferring to the children’s physicians and licensed mental health
practitioners regarding their respective treatment regimes. Though Kalai was no longer a member
of an institutionalized religion, she articulated the morals she sought to instill in her children and
clearly provided them with consistent emotional support. We also note the evidence that Nolan
involved the children in the legal proceedings when he told them that Kalai was the one who would
not allow them to be interviewed.
Given the history of communication issues and decision making differences between the
parties, we cannot say that the district court abused its discretion in awarding Kalai sole legal
custody of the children.
(b) Physical Custody
The district court awarded Kalai sole physical custody of the children and ordered the same
parenting plan as it had in its temporary order, granting Nolan weekend parenting time every other
weekend from Thursday evening to Monday morning, alternating with weeknight parenting time
on the alternate Wednesdays until 8 p.m. Nolan was also awarded extended parenting time during
half of the children’s school summer break and during various holidays.
Our review of the record supports the district court’s findings that Kalai was the primary
caregiver during the parties’ marriage. Kalai was a stay-at-home mother during most of the parties’
marriage. Kalai and Nolan moved four times during their marriage, each time for Nolan’s
educational and professional advancement. The family’s moves interrupted Kalai’s associate
degree program, and she did not return to school until after the parties separated. Kalai had worked
outside of the home only for a few months in 2008 and 2017.
The record shows that Kalai has been consistent in providing for the children’s care,
including their medical care and educational needs. Though the evidence demonstrates that Nolan
was an involved father to the children when at home, his work has taken him away from the home
a significant amount of time. During the parties’ separation, Nolan has been inconsistent in
administering Ryan’s medication and ensuring that the children complete their homework while
in his care.
We cannot say it was an abuse of discretion for the district court not to order a 50/50 joint
custody arrangement. We also find no abuse of discretion in the parenting time awarded to Nolan,
which was the same as provided in the temporary order. Although Nolan argues that he should
have been provided overnight visits every Wednesday as voluntarily followed by the parties during
the separation, there was evidence that Nolan did not always avail himself of the Wednesday
overnights and would on occasion bring the children back to Kalai’s home on Wednesday evening.
We find no abuse of discretion in the district court’s determination of Nolan’s parenting time. A
judicial abuse of discretion exists if 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. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
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VI. CONCLUSION
We conclude that the district court did not abuse its discretion when denying Nolan’s
motion for an in camera interview of the parties’ two elder children, in awarding Kalai legal and
physical custody of the children, or in its determination of parenting time. We affirm the district
court’s decree in all respects.
AFFIRMED.
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