Eric H. v. Ashley H. ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/12/2019 08:07 AM CDT
- 786 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
Eric H., appellant, v.
Ashley H., now known as
Ashley E., appellee.
___ N.W.2d ___
Filed April 5, 2019. No. S-18-253.
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. ____: ____. 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.
3. Modification of Decree: Words and Phrases. A material change of cir-
cumstances constituting grounds for modification of a dissolution decree
means the occurrence of something which, had it been known to the
dissolution court at the time of the initial decree, would have persuaded
the court to decree differently.
4. Pleadings. Pleadings frame the issues upon which the cause is to be
tried and advise the adversary as to what the adversary must meet.
5. Pleadings: Appeal and Error. Decisions regarding the scope and mean-
ing of pleadings are reviewed for an abuse of discretion.
6. Modification of Decree: Child Custody. Before the district court
considers whether a change of custody is in the best interests of the
children, it must first find that there has been a material change of cir-
cumstances that has occurred since the entry of the prior order.
7. Modification of Decree: Child Custody: Proof. The party seeking
modification of a custody order must prove a material change in circum-
stances by a preponderance of the evidence.
8. Evidence: Words and Phrases. Competent evidence is evidence that is
admissible and tends to establish a fact in issue.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
Appeal from the District Court for Hall County: John H.
M arsh, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Samuel R. O’Neill, of Svehla Law Offices, P.C., L.L.O.,
for appellant.
Stephen T. Knudsen, of Grafton Law Office, P.C., L.L.O.,
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
I. NATURE OF CASE
A father appeals from the district court’s denial of his motion
to modify custody of a minor child after the child reported that
her stepfather was sexually abusing her. The district court
found that the father had failed to prove that the reported
abuse had occurred. We conclude that the district court applied
the correct standard of proof and did not abuse its discretion
in its determination of the scope and meaning of the father’s
complaint. However, we also conclude that the court made an
error of law in finding there was “no competent evidence” of
sexual abuse by the stepfather. Consequently, we affirm in part,
and in part reverse and remand with directions to consider all
competent evidence adduced at trial.
II. BACKGROUND
Eric H. and Ashley H., now known as Ashley E., were
divorced in 2015. One minor child, M.H., was born to the
marriage. Pursuant to a prior joint stipulation to modify, the
district court entered an order in November 2016 providing
for joint legal and physical custody, with a parenting schedule
that gave each parent equal time with M.H.
1. M ay 24, 2017, Ex Parte Order
On May 24, 2017, Eric moved for an ex parte order giving
him full custody of M.H. until a sexual assault investigation
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ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
could be concluded. Eric averred that M.H., 6 years old at
that time, had reported that Matthew E., Ashley’s husband and
M.H.’s stepfather, sexually assaulted her. The district court
issued an ex parte order that same date, suspending Ashley’s
parenting time until further order of the court.
2. Deferral of Jurisdiction
to Juvenile Court
On June 6, 2017, the district court entered an order declin-
ing to exercise further jurisdiction until the juvenile court was
no longer exercising jurisdiction under a petition to adjudicate
pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
The juvenile case pertaining to the allegations of sexual
abuse was dismissed on September 15, 2017. It was undisputed
that Matthew had not been arrested in relation to M.H.’s report
or charged with any crime, though law enforcement did inves-
tigate. A medical examination conducted during the juvenile
investigation showed no signs of abuse.
3. Complaint to Modify
On September 22, 2017, Eric filed in the district court an
amended complaint to modify the November 2016 order of
joint physical and legal custody and award Eric primary cus-
tody subject to reasonable parenting time by Ashley. The com-
plaint described the material change of circumstances as:
[Ashley] has remarried to Matthew . . . . [Matthew] was
the subject of an investigation in York County, Nebraska
for the sexual assault of the minor child. The case was
in the Juvenile Court of York County, Nebraska located
at case number JV 17-28. The case was dismissed on
September 15, 2017.
4. September 26, 2017, Ex Parte Order
The same day that Eric filed to modify custody, he also
moved for a new ex parte order suspending Ashley’s parent-
ing time with M.H. In an affidavit attached to the motion, Eric
described the reasons why, despite the dismissal of the juvenile
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302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
case, he still believed that “something happened” and that
M.H. would be in danger if she had unsupervised visitation
with Ashley. Eric’s wife, Cassie H., also submitted an affidavit
in support of the motion.
The affidavits described that M.H. had reported to Eric and
Cassie that Matthew pulled her pants down and touched her
inappropriately. Further, M.H. had patted Eric’s private parts
and told him that Matthew had said it was “ok” to do that. Eric
and Cassie described that M.H. was wetting the bed and oth-
erwise “not acting normal” when she first reported the abuse.
They alleged that M.H. had improved during the time that
visitation with Ashley was suspended.
The ex parte order was granted pending a hearing on October
4, 2017. After the October 4 hearing, the court vacated the ex
parte order.
In vacating the ex parte order, the court concluded that
Eric had failed to prove by a preponderance of the evidence
that M.H., by that time 7 years old, was the victim of sexual
abuse or was otherwise endangered in Ashley’s home. The
court noted that the initial interview of M.H., in which she
first disclosed any inappropriate behavior by Matthew, was
conducted by Cassie, an interested party. Cassie was employed
by the Department of Health and Human Services (DHHS)
and had completed a course in interviewing children. The
court observed that subsequent to the initial interview with
Cassie, M.H. attended weekly therapy and it was the therapist’s
opinion that M.H.’s reports of sexual abuse were made in an
“‘authentic’” manner consistent with congruent emotions and
symptoms. However, the court also stated that testimony that a
child is credible has been disapproved in State v. Doan, 1 Neb.
App. 484, 498 N.W.2d 804 (1993).
The court further noted that M.H. did not testify at the
hearing, and it considered the evidence of sexual abuse to be
“problematic”:
The Court is left with hearsay statements of a 7-year-
old child made to her step-mother and to her counselor.
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302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
Offenses committed and against children too young to
testify are troubling in that in many cases, the only wit-
ness is unable to testify under established rules of evi-
dence. The Court is however constrained by rules of law
and must respect a parent’s constitutionally protected
relationship with the child, as well as protecting the best
interest of the child.
The initial interview of the minor child [by Cassie]
is problematic, in that it was not conducted by a neutral
party. The Court can find no established hearsay excep-
tion to the child’s statements. It is uncertain whether this
initial interview and continued residence with the step-
mother influenced the child’s statements to the counselor.
5. Hearing on Motion to Modify
The hearing on the complaint to modify was held on
February 8, 2018. Ashley, Eric, and Cassie testified.
Additionally, a mental health practitioner, Lisa Pattison, testi-
fied, and the notes from another mental health practitioner,
Cynthia McDowell, were entered into evidence. Finally, the
court conditionally accepted into evidence notes from an
interview of M.H. conducted by a child advocacy center, sub-
ject to its ruling on Ashley’s hearsay objection. A caseworker
with DHHS who was assigned to M.H. during the juvenile
investigation testified mainly for the purpose of establishing
foundation for the interview notes. M.H. did not testify at
the hearing.
(a) Bed-Wetting and Other Behaviors
Eric and Cassie testified that, generally, on the day that
M.H. transitions from Ashley’s custody to Eric’s custody, M.H.
will act differently than she normally does, staring off into
space and crying easily. After a “good night’s sleep,” however,
she is usually fine.
During the week of May 20, 2017, M.H. wet the bed while
at Eric and Cassie’s house. She had also had an accident at
Ashley’s house that week.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
Cassie testified that the last time M.H. had wet the bed at
their home was in December 2016. Ashley testified that M.H.
stopped wetting the bed regularly when she was 4 years old,
but that she would occasionally still wet the bed. According to
Ashley, bed-wetting occurred most frequently when M.H. had
a urinary tract infection. According to Ashley, M.H. had a uri-
nary tract infection the week of May 20, 2017.
According to Eric and Cassie, from May until the end of
June 2017, M.H. continued to wet the bed at Eric’s house,
a total of approximately 23 times. Eric and Cassie also
described that M.H. started having frequent nightmares about
a monster.
M.H. started mental health counseling in June 2017, which
was arranged by Eric during his parenting time. Eric and Cassie
testified that after M.H. began counseling, M.H. stopped wet-
ting the bed or having nightmares. Eric and Cassie did not
dispute that in July 2017, during the time that M.H. was in
Eric and Cassie’s sole physical placement pending the conclu-
sion of an investigation by DHHS, she was diagnosed with a
urinary tract infection.
(b) M.H.’s Initial Reports of
Abuse by Matthew
During the week of May 20, 2017, when Cassie learned of
M.H.’s bed-wetting, she obtained Eric’s permission to ask M.H.
some questions. She explained that she had child interview
training. Cassie testified without objection that when Cassie
asked M.H. some questions, M.H. told Cassie that Matthew
had pulled her pants down and touched her private parts. Eric
reported this to Ashley.
Ashley testified that she was shocked when Eric told her
that M.H. had reported abuse by Matthew. She had no prior
knowledge of any abuse or reports of abuse. She did not see
any signs at home that M.H. might be experiencing abuse.
But she supported Eric’s decision to call Child Protective
Services, because she “wanted to know what the truth was.”
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
Ashley stated that she fully cooperated with the investigation.
Matthew and Ashley at all relevant periods of time have con-
tinued living together. Ashley noted that M.H. was upset that
she was not allowed to see Matthew during supervised visita-
tion while the juvenile case was pending.
When asked whether she believed M.H.’s allegations, Ashley
explained that she did not know what had happened. She tes-
tified, “I’m not saying that she’s lying, but it’s just based on
what I see at home and what [M.H.] tells me just — I don’t
know what the truth is.” She explained further, “I don’t see
the signs of what I would see for somebody that would be sex­
ually abused.” Ashley was “not saying [M.H. was] lying, but
just all the stories I was told, they don’t add up to what I see
[M.H.] do.”
(c) M.H.’s Reports of
Abuse by Classmates
According to Ashley, the same week that M.H. reported
Matthew had sexually assaulted her, she told Ashley that some
boys at school had come up behind her, pulled her pants down,
and touched her. DHHS investigated the report. According to
Cassie, who was familiar with the allegations as well, a boy
was expelled in relation to the incident. But, according to a
caseworker with DHHS who was assigned to M.H. during the
juvenile investigation, M.H. and a boy were “playing a game”
and the boy “patted her — popped her on the butt a little bit,
but there was nothing else other than that.”
(d) Counseling
Mental health counseling for M.H. was arranged by Eric and
Cassie without Ashley’s knowledge or consent. M.H. began her
counseling with McDowell. Later, McDowell became ill. She
was unable to testify at the hearing.
(i) Exhibit 16: Counseling Notes
Exhibit 16, which contained McDowell’s progress notes
from 19 sessions with M.H., was entered into evidence over
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
Ashley’s foundation objection. Ashley did not object on hear-
say grounds. In those notes, McDowell described that M.H. had
disclosed to her consistent details of sexual abuse by Matthew,
as well as coaching by Ashley not to disclose the abuse.
According to McDowell, M.H. had described to her that
Matthew “‘puts his hands on my private parts’” and “‘puts
his potty on my potty and it bled.’” M.H. also reported to
McDowell that Matthew had “‘hit my potty with his potty’”
and that she “‘pee[ed] in my pants.’”
M.H. reportedly told McDowell that the first time Matthew
took off her clothes, she was lying in bed for a nap, Matthew
came in and took off her pants, and “‘[H]e had a glass and
he dropped it and then he picked it up and put it inside my
potty.’” M.H. told McDowell that it hurt and that M.H. had
screamed. According to M.H., Ashley came in and “‘put some
napkins on it.’”
(ii) Pattison’s Testimony
M.H. began seeing Pattison in November 2017. Without
objection, Pattison testified that she had seen M.H. seven times
since then. She testified that M.H. had consistently told her
that she had been touched inappropriately by Matthew. M.H.
did not go into details other than to say that it happened in her
room, that there was glass involved, and that it hurt. According
to Pattison, M.H. told her that Ashley was working on making
sure that it was safe for her to go home.
When Pattison raised the possibility of M.H.’s having to
testify in the juvenile proceedings, Pattison observed M.H.
become “very, very frightened that her mom and her stepdad
would be in the room.” Pattison testified, further, that after a
joint session with Ashley, Eric, and Cassie, M.H. seemed more
reluctant to talk with her. On January 11, 2018, after that joint
session, M.H. reported to Pattison that a boy had touched her
at school.
Pattison explained that bed-wetting often coincides with
child sexual abuse. She acknowledged that it is inappropriate
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
for an interested person, such as a stepparent, to conduct a
sexual abuse interview. However, she did not see any signs that
M.H. had been coached to make the report of sexual abuse.
Pattison opined that Matthew had sexually abused M.H.
(e) Exhibit 19: Child Advocacy
Center Interview Notes
During the hearing, the court provisionally accepted into
evidence exhibit 19, over Ashley’s hearsay objection. M.H.
was interviewed by a child advocacy center forensic inter-
viewer on May 22, 2017, and exhibit 19 contained the notes
from that interview. In the interview, M.H. made reports of
sexual abuse similar to those described above.
6. Order Denying Modification
The court dismissed the amended complaint to modify.
The court found that a “fair implication” of the material
change of circumstances alleged in the complaint to modify
was that “the stepfather had actually sexual [sic] abused the
child.” The court also stated that finding a material change
of circumstances based upon the “mere fact of filing the June
the [sic] juvenile petition, which was then dismissed without
adjudication may violate due process.” The court thus lim-
ited its inquiry to whether Eric had proved that Matthew had
abused M.H.
The court concluded that Eric had failed to prove by a pre-
ponderance of the evidence that Matthew had sexually abused
M.H. It explained:
The Court received records of mental health practi-
tioners which include a diagnosis of adjustment disorder
with mixed disturbance of emotions and conduct. While
the Court can make no finding that the stepfather sex­
ually abused the child counseling records indicate that
his presence appears to be a source of stress for the child.
The father and stepmother’s testimony suggests that the
child the [sic] better during the time that the child had
limited contact with her mother.
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ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
....
. . . As noted the court finds no competent evidence
that the stepfather has such [sic] abused the minor child.
In making these findings, the court did not consider exhibit 19.
The court found that exhibit 19 was inadmissible hearsay.
The court found that while the counseling records indicated
that Matthew’s presence “appears to be a source of stress for
the child,” “the pleadings did not provide [Ashley] with notice
reasonably calculated to inform her that custody would be
changed on a basis other than the sexual abuse investigation
and subsequent filing and dismissal of a juvenile petition.”
Eric appeals.
III. ASSIGNMENTS OF ERROR
Eric assigns that the district court (1) erred in concluding
that he had to prove by a preponderance of the evidence that
Matthew sexually abused M.H., (2) erred in concluding that
the pleadings did not provide Ashley with notice reasonably
calculated to inform her that custody could be changed on a
basis other than the sexual abuse investigation and subsequent
filing and dismissal of a juvenile petition, and (3) abused its
discretion when it failed to grant Eric’s motion to modify the
custody decree.
IV. 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. State
on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d
230 (2015).
[2] 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.
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ERIC H. v. ASHLEY H.
Cite as 302 Neb. 786
V. ANALYSIS
[3] Prior to the modification of a child custody order, two
steps of proof must be taken by the party seeking the modi-
fication. First, the party seeking modification must show a
material change in circumstances, occurring after the entry of
the previous custody order and affecting the best interests of
the child. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363
(2016). See, also, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015). Next, the party seeking modification must prove
that changing the child’s custody is in the child’s best inter-
ests. Hopkins v. Hopkins, supra. The issue in this appeal is
whether the court erred in finding that Eric had failed to show
the occurrence of the alleged material change in circumstances.
The court did not proceed beyond this first step to address
whether a change in custody was in M.H.’s best interests.
A material change of circumstances constituting grounds for
modification of a dissolution decree means the occurrence of
something which, had it been known to the dissolution court at
the time of the initial decree, would have persuaded the court
to decree differently. Collett v. Collett, 270 Neb. 722, 707
N.W.2d 769 (2005).
1. Scope of Modification Proceeding
As a threshold matter, Eric asserts that the material change
of circumstances considered by the district court was too nar-
row in scope. Eric suggests that the court erroneously focused
on whether actual abuse had occurred instead of considering
the possibility that the allegations against Matthew, whether or
not true, constituted a material change in circumstances. Eric’s
argument appears to be that the court should have considered
modifying custody based on M.H.’s stress in relation to her
contact with Matthew, which was demonstrated by the allega-
tions of abuse. Eric argues in full:
[Eric’s] complaint clearly made allegations that
[Ashley’s] marriage to Matthew . . . , [Matthew’s] behav-
ior, and his proximity to the minor child were at issue. If
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ERIC H. v. ASHLEY H.
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the complaint is liberally construed in [Eric’s] favor, the
court must consider all aspects relating to [Matthew’s]
contact with the minor child. This includes all evidence
of stress that [Matthew] causes the minor child as noted
the district court’s order. . . . In addition, other pleadings
including the original Motion for Ex-Parte Order and sec-
ond Motion for Ex-Parte Order, and Affidavits in Support
of the Motion for Ex-Parte Order clearly indicated that
behavior of [Matthew] would be an issue at trial. . . .
There is no question that [Ashley] had notice reasonably
calculated to inform her that custody could be changed
on a basis other than the sexual abuse allegations against
[Matthew].
Brief for appellant at 17 (citations omitted).
Neb. Rev. Stat. § 42-364(6) (Reissue 2016) provides that
“[m]odification proceedings relating to . . . custody . . . shall
be commenced by filing a complaint to modify. . . . Service
of process and other procedure shall comply with the require-
ments for a dissolution action.” In certain respects, these
statutes specify special pleading requirements. See, e.g., Neb.
Rev. Stat. § 42-353 (Reissue 2016). But otherwise, the ordi-
nary rules of pleading apply to proceedings to modify custody.
Cf. Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858
(2015). We have explained that a pleading has two purposes:
(1) to eliminate from consideration contentions which have no
legal significance and (2) to guide the parties and the court in
the conduct of cases. Id.
[4] Pleadings frame the issues upon which the cause is to
be tried and advise the adversary as to what the adversary
must meet. Id. See, also, Heistand v. Heistand, 267 Neb. 300,
673 N.W.2d 541 (2004). A court’s determination of ques-
tions raised by the facts, but not presented in the pleadings,
should not come at the expense of due process. Zahl v. Zahl,
273 Neb. 1043, 736 N.W.2d 365 (2007). While the concept
of due process defies precise definition, it embodies and
requires fundamental fairness. Id. Generally, procedural due
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process requires parties whose rights are to be affected by
a proceeding to be given timely notice, which is reasonably
calculated to inform the person concerning the subject and
issues involved in the proceeding; a reasonable opportunity to
refute or defend against a charge or accusation; a reasonable
opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation; represen-
tation by counsel, when such representation is required by
constitution or statute; and a hearing before an impartial deci-
sionmaker. Id.
[5] The district court determined that the scope of Eric’s
complaint was limited to the alleged sexual abuse of M.H. as
the material change of circumstances justifying modification.
The court determined that the pleadings did not provide Ashley
with notice reasonably calculated to inform her that custody
could be changed on any other basis. Decisions regarding the
scope and meaning of pleadings are reviewed for an abuse of
discretion. See Taxpayers Against Casinos v. State, 478 Mich.
99, 732 N.W.2d 487 (2007).
The district court did not abuse its discretion in its deter-
mination of the scope and meaning of Eric’s complaint. The
complaint alleged that the material change of circumstances
was that Ashley had married Matthew and that Matthew was
“the subject of an investigation in York County, Nebraska for
the sexual assault of the minor child,” resulting in a juvenile
court case that was eventually dismissed. But neither remarry-
ing nor being the “subject of an investigation” which led to the
dismissal of the juvenile proceeding is a circumstance that is
inherently material. As the court noted, the material change of
circumstances alleged by implication in the complaint was that
Matthew had actually sexually assaulted M.H.
The complaint did not allege more. It did not refer to
M.H.’s “stress” or any other aspect of her relationship with
Matthew. The complaint did not even make direct reference to
M.H.’s reports of abuse. At no point did Eric seek to amend
the complaint.
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Furthermore, while issues not raised by the pleadings may
be tried by express or implied consent of the parties, see
Neb. Ct. R. Pldg. § 6-1115(b) and United Gen. Title Ins. Co.
v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015), there
was neither evidence of such consent nor evidence that Eric
attempted to try any issue other than the allegation of actual
sexual abuse. The evidence presented at the hearing focused
on whether Matthew had actually sexually abused M.H. Eric
did not present evidence of any reason why M.H. would have
made false reports. And there is no indication that the issues
presented in relation to the ex parte order were any different.
The district court did not err in concluding that any change
of circumstances different from the alleged sexual abuse was
outside the scope of the modification proceeding.
2. Standard of Proof
for Sexual A buse
Eric also asserts that the district court’s determination that
he had to prove the allegations of sexual abuse by a preponder-
ance of the evidence imposed an “improper and unworkable
burden.” Brief for appellant at 9. Eric elaborates that whether
the abuse actually occurred was the “wrong inquiry,” because
“the movant need not prove that some material change—be it
abuse and neglect or alcohol abuse—actually occurred (or did
not occur). Rather, the court must consider the evidence in the
totality and determine whether, in the best interest of the child,
modification is warranted.” Id. at 10.
[6] Eric misunderstands our statements regarding the para-
mount nature of children’s best interests. We have repeatedly
held that before the district court considers whether a change
of custody is in the best interests of the children, it must first
find that there has been a material change of circumstances
that has occurred since the entry of the prior order. See,
Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016);
Hoschar v. Hoschar, 220 Neb. 913, 374 N.W.2d 64 (1985),
disapproved on other grounds, Parker v. Parker, 234 Neb.
167, 449 N.W.2d 553 (1989). See, also, Schrag v. Spear,
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290 Neb. 98, 858 N.W.2d 865 (2015). Proof of a change of
circumstances is not an optional element to a modification
proceeding. Proof of a material change of circumstances is the
threshold inquiry in a proceeding on a complaint to modify,
see id., because issues determined in the prior custody order
are deemed res judicata in the absence of proof of new facts
and circumstances, see Rauch v. Rauch, 256 Neb. 257, 590
N.W.2d 170 (1999). Furthermore, limiting custody changes to
material changes in circumstances avoids extensive and repeti-
tive litigation and unnecessary, potentially harmful fluctuations
in the child’s life. 67A C.J.S. Parent and Child § 145 (2013).
A custody order will not be modified absent proof of new facts
and circumstances arising since it was entered. See Rauch v.
Rauch, supra.
If we were to accept Eric’s premise that the parent filing the
complaint to modify need not prove that some material change
actually occurred, then every unproven allegation of new mate-
rial facts and circumstances would open the door for a new
best interests custody inquiry and custody change. We find no
merit to Eric’s argument that the court conducted the wrong
inquiry by focusing on whether he had proved that the alleged
material change of circumstances actually occurred.
[7] It does not appear that Eric is challenging the preponder-
ance of the evidence as the applicable burden in establishing
the material change of circumstances. At least, Eric does not
suggest a different burden of proof. For the sake of clarity,
though, we reiterate that the party seeking modification of
a custody order must prove a material change of circum-
stances by a preponderance of the evidence. See, Goodman
v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966); Young
v. Young, 166 Neb. 532, 89 N.W.2d 763 (1958). See, also,
67A C.J.S., supra; Linda D. Elrod, Child Custody Practice
and Procedure § 17:4 (rev. ed. 2019). A preponderance of the
evidence is the equivalent of “‘the “greater weight”’” of the
evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 253, 859
N.W.2d 578, 583 (2015).
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3. De Novo R eview of Evidence
of Sexual A buse
We turn, finally, to the underlying question of whether the
court erred in finding that Eric did not prove by a preponder-
ance of the evidence that Matthew sexually abused M.H. In
doing so, we do not address whether the court, in finding the
evidence of abuse unpersuasive, should have considered exhibit
19. We likewise do not address whether the court should have
considered any opinions of mental health practitioners that
M.H.’s reports of abuse were credible. On appeal, Eric does not
assign these rulings as error. But because we conclude that the
court made an error of law in finding there was “no competent
evidence” of sexual abuse by Matthew, we reverse, and remand
for consideration of all the evidence.
[8] Competent evidence is evidence that is admissible and
tends to establish a fact in issue. Cain v. Custer Cty. Bd. of
Equal., 298 Neb. 834, 906 N.W.2d 285 (2018). Here, the
record contains a considerable amount of evidence which
meets this definition.
The fact at issue in this modification trial was whether the
child had been subjected to sexual abuse by her stepfather,
and evidence at trial, if believed, tended to establish that such
sexual abuse had occurred. As noted above, a clinical psy-
chologist testified she had met with the child seven times and
the child consistently reported that her stepfather had sexually
abused her in her bedroom and that it hurt. Also admitted were
treatment notes from a licensed independent mental health
practitioner who saw the child 19 times, which notes document
that the child consistently reported her stepfather had sexually
abused her and that her mother told her not to disclose the
abuse. The evidence also showed that the child was experi-
encing symptoms consistent with sexual abuse and that those
symptoms improved during the time the court prevented the
stepfather from having contact with her.
In addition to tending to establish a fact in issue, the forego-
ing evidence was admissible. The child’s statements to mental
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health professionals, in particular, were admissible under Neb.
Rev. Stat. § 27-803(3) (Reissue 2016), because they were made
for the purpose of psychological treatment. See In re Interest of
B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005). And there
was no evidentiary bar to the parents’ testimony concerning
M.H.’s symptoms.
As demonstrated above, Eric introduced competent evidence
that Matthew sexually abused M.H. The district court, how-
ever, found that there was “no competent evidence that the
stepfather has . . . abused the minor child” and, on that basis,
concluded that “[t]he father has failed to prove by a prepon-
derance of the that evidence that the stepfather has sexually
abused the child.”
The district court’s earlier order vacating the ex parte order
suggests the possibility that the district court found the evi-
dence was not competent, because it was concerned the child’s
statements to the mental health professionals may have been
influenced by the child’s father and stepmother during the
period of the child’s temporary sole physical custody with
them after the initial report of abuse. But even if the district
court was concerned that the child’s statements to mental
health professionals had been influenced by her father and
stepmother, such a concern would properly go to the weight
and credibility to be afforded this evidence, not to whether it is
competent. The district court’s finding of “no competent evi-
dence,” and the absence of any reference to the child’s state-
ments, indicates that the district court, rather than considering
the weight the statements should be given, did not consider
them at all.
It is true that in a bench trial, appellate courts presume that
a trial court considers only competent and relevant evidence in
rendering its decision. See Fickle v. State, 273 Neb. 990, 735
N.W.2d 754 (2007), modified on denial of rehearing 274 Neb.
267, 759 N.W.2d 113. But we do not believe that presumption
applies here. This is not a case in which the trial court’s order
is silent as to the evidence it did and did not rely upon. Rather,
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this is a case in which the district court explicitly stated that
there was “no competent evidence” of a fact in dispute when,
as we have explained, there plainly was.
A de novo review of the record clearly shows there was
competent evidence adduced that, if believed, tended to estab-
lish the child was sexually abused by her stepfather. Because
the record contains competent evidence of sexual abuse, it was
an error of law for the court to find there was no competent
evidence. We cannot review this record de novo for an abuse
of discretion, when the trial court, in reaching its decision,
relied on an incorrect understanding of the law. See, State v.
McGuire, 301 Neb. 895, 911, 921 N.W.2d 77, 88 (2018) (“[t]o
the extent that the court’s ruling was based upon an incorrect
understanding of the law, it is not possible for us to review it
for an abuse of discretion”); State v. Myers, 301 Neb. 756, 919
N.W.2d 893 (2018).
Accordingly, we reverse, and remand with directions. Given
the passage of time since the original hearing on the motion to
modify, we leave to the district court’s discretion whether to
appoint a guardian ad litem or to otherwise allow for the expan-
sion of the existing record. In any case, the court is directed
to consider all competent evidence adduced before deciding
whether Eric has proved a material change in circumstances.
VI. CONCLUSION
For the foregoing reasons, we affirm in part, and in part
reverse and remand with directions to consider all competent
evidence adduced at trial.
A ffirmed in part, and in part reversed
and remanded with directions.