Olander v. McPhillips

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
Shaun P. Olander, appellee,
v. Brandy A. McPhillips,
appellant.
___ N.W.2d ___
Filed June 30, 2020. No. A-19-545.
1. Visitation: Appeal and Error. Parenting time determinations are mat-
ters initially entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Visitation. The best interests of the children are the primary and para-
mount considerations in determining and modifying parenting time.
4. ____. The right of parenting time is subject to continual review by the
court, and a party may seek modification of a parenting time order on
the grounds that there has been a material change in circumstances.
5. Modification of Decree: Words and Phrases. In the context of marital
dissolutions, a material change in circumstances 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.
6. Trial: Records: Appeal and Error. Where no record of an evidentiary
hearing is made, the orderly administration of justice requires that the
order be vacated and the matter remanded for a new evidentiary hearing
on the record.
7. Modification of Decree. In order to modify a parenting plan, there must
be a material change in circumstances that affects the best interests of
the child.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
John F. Eker III, for appellant.
Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for
appellee.
Moore, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Brandy A. McPhillips appeals the order of the district court
for Douglas County which granted Shaun P. Olander’s com-
plaint to modify a decree of paternity and parenting plan and
denied her motion to vacate the modification order. We con-
clude that the district court’s failure to hold an evidentiary
hearing on the record on the issue of child support requires
that we reverse, and remand for further proceedings on that
issue, and we reverse the revised transportation provision and
remand the cause with instructions to vacate and reinstate
the prior transportation provision. As to the remaining issues,
we affirm.
BACKGROUND
Olander filed a complaint for paternity, a copy of which
is not included in our record. It appears that trial was set for
December 3, 2013; however, prior to trial, the parties reached
an agreement that was read into the record. Our bill of excep-
tions does not contain a transcription of that December 3
hearing. On January 7, 2014, McPhillips filed a motion for
clarification or to alter or amend the decree. In response,
Olander filed a motion to enter a decree of paternity which had
been prepared by his attorney, alleging that McPhillips refused
to approve the agreed-upon decree. Following a hearing on
January 15, a transcription of which is also not included in our
record, the court entered an order requiring certain changes
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
to the decree and clarifying and amending other portions.
Specifically, the court ordered Olander to include the follow-
ing language in the decree of paternity: “It is further ordered
that beginning Saturday, January 25, 2014, and every fourth
Saturday thereafter, [Olander’s] mother shall have a superior
right of first refusal versus [McPhillips] during times in which
[Olander] is at his employment.” A decree of paternity was
entered the same day in February 2014, with approval signa-
tures from both McPhillips and Olander. The decree incorpo-
rated the parties’ agreed-upon parenting plan. We will refer to
the court’s decree of paternity and the February 2014 order
collectively as the “Paternity Decree.”
The Paternity Decree established that the parties were to
have joint physical and legal custody of the parties’ minor
child, Macklin Olander, and required Olander to pay $515
per month in child support to McPhillips, among other provi-
sions. In March 2014, the district court issued a nunc pro tunc
order, stating that the parenting plan attached to the Paternity
Decree was an earlier draft, and not the final version agreed
to by the parties. The nunc pro tunc order attached a parent-
ing plan (Parenting Plan) that both parties agreed was the
true agreement.
The Parenting Plan established a 2-week parenting time
schedule. On “Week 1,” Olander had parenting time Tuesday
at 8 p.m. until Thursday at 7 a.m., and then Friday at 7 p.m.
until Saturday at 7 a.m. On “Week 2,” Olander had parent-
ing time from Wednesday at 7 a.m. until Thursday at 7 a.m.,
and from Friday evening until Sunday evening. The Parenting
Plan also required Olander to provide the transportation during
parenting time exchanges, except for on the weekends, when
McPhillips was to pick up Macklin at the beginning of her
parenting time.
In January 2018, Olander filed a complaint to modify the
Paternity Decree and the Parenting Plan, stating that a mate-
rial change in circumstances had occurred since the entry
of the Paternity Decree and the Parenting Plan. Specifically,
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
Olander alleged that Macklin was in need of health insur-
ance, and it was in his best interests that one of the parties
be ordered to maintain health insurance for him. Additionally,
Olander asserted that “[i]t is in the best interests of [Macklin]
to change the parenting time schedule to provide [Olander]
with more time with [Macklin].” Olander further alleged that
certain terms of the Parenting Plan were no longer relevant,
necessary, or workable and that the financial circumstances
of the parties had changed to the extent it was necessary to
modify Olander’s child support obligation.
McPhillips filed a counterclaim seeking to modify the
Paternity Decree and the Parenting Plan as well. She requested
the court change the Parenting Plan to provide her with more
parenting time, provide her with more vacation time with
Macklin, and remove Olander’s mother’s right of first refusal
one Saturday a month. The court held a trial on both parties’
complaints to modify in October 2018.
Before trial, the parties reached several agreements regard-
ing their modification requests. Those agreements were read
into the record at trial, and consisted of the following:
Olander agreed to provide health insurance for Macklin; the
parties agreed to use Olander’s 2017 tax return for purposes
of determining his monthly income; they agreed to divide
daycare expenses pursuant to the percentages determined by
the child support calculator; they agreed to divide medical
and other necessary expenses not covered by insurance; they
agreed that each parent would get 2 weeks of vacation time
with Macklin per year and, further, that Olander could not
displace more than 4 days from McPhillips’ parenting time;
and they agreed that neither party would enroll Macklin in
extracurricular activities that infringed on the other parent’s
parenting time.
At trial, the court stated that it was deciding “an issue or
two on some of the parenting time.” Olander testified that
changing the parenting schedule every other week—grant-
ing him parenting time from Tuesday evening until Thursday
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
morning each week—would provide more consistency for
Macklin. Olander further testified that Wednesday morning
exchanges were difficult for Macklin, because it was confus-
ing for him, and that it would be best to not have a differ-
ent parenting schedule every other week. Olander testified
that there had been a problem on Wednesday mornings with
Macklin not being ready and fed when he arrived for pick
up. Additionally, Macklin is rushed and tired due to getting
up earlier for the morning exchange. Olander stated that hav-
ing only one morning pick up per week would provide more
consistency, rather than having two morning exchanges every
other week.
McPhillips testified that there were problems in the past with
Olander’s picking up Macklin on Tuesday evenings, because
Olander did not have a consistent work schedule. McPhillips
further stated that it was not in Macklin’s best interests to have
her parenting time begin on Thursday mornings because he is
tired and does not want to get ready for school after staying
with Olander. Rather, she indicated that her parenting time
should begin on Wednesday evening if Olander’s was to begin
on Tuesday evenings. Her justification was as follows:
If the defendant is — or the plaintiff is allowed his
Tuesday night pickup time to not have a morning rush
and fight with our child, then I would like to be awarded
the same, that I get a night pickup time to get him ready
for bed and not have to fight with him in the mornings to
get ready for school, so that it’s fair for both of us.
The parties also provided testimony regarding health insur-
ance for Macklin. Olander informed McPhillips’ counsel that
he would be providing health insurance for Macklin through
his employer, but he did not have information stating what the
benefits would be, and that he would provide more documen-
tation before the final child support calculation. McPhillips
acknowledged that Olander agreed to provide health insurance
for Macklin and that Olander could choose the deductible and
program that worked for him. Following the testimony, the
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
court stated that it looked for stability and routine in a child’s
time with each parent. The court then modified Olander’s par-
enting time, stating that it would run from Tuesday evening
until Thursday morning every week.
After trial, Olander drafted an order of modification. The
order indicated, in relevant part, that he would pay $321 per
month in child support, and it included a modified parenting
plan (Modified Parenting Plan), which stated that he would
have parenting time from Tuesday evening until Thursday
morning every week. The Modified Parenting Plan also
included a modified transportation clause, which stated that
“[u]nless otherwise indicated . . . the party beginning parent-
ing time shall provide transportation for the parenting time
exchange.” Further, the Modified Parenting Plan included the
right of first refusal clause, which stated that “[e]very third
Saturday, [Olander’s] Mother shall have a superior right of first
refusal versus [McPhillips] during times in which [Olander] is
at his employment.”
McPhillips filed an objection to Olander’s order of modi-
fication. She argued that Olander unilaterally added language
modifying the transportation clause and right of first refusal
from what was stated in the Parenting Plan. McPhillips further
alleged that Olander improperly calculated his child support
obligation and that he did not include clauses regarding vaca-
tion and extracurricular activities. In November 2018, the
district court modified the Paternity Decree and the Parenting
Plan (Modification Order). The court’s Modification Order
established Olander’s child support obligation to be $349 per
month and ordered Olander to pay 75 percent and McPhillips
25 percent of various expenses. Otherwise, the court adopted
Olander’s Modified Parenting Plan, including the transporta-
tion and right of first refusal clauses.
In December 2018, McPhillips filed a motion to vacate the
district court’s Modification Order. In her motion, she alluded
to a hearing held in chambers on November 27, at which
“the judge was pressed for time and the parties attempted to
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
address the issues as expeditiously as possible.” There is no
transcription of this hearing in our record. McPhillips further
asserted in her motion to vacate that the transportation clause
and the right of first refusal clause of the Parenting Plan were
modified, despite her not having agreed to those changes.
McPhillips also argued that Olander’s income was misrepre-
sented and that he received a credit for health insurance for
Macklin, although he was not providing insurance for him.
Additionally, McPhillips filed a motion for relief from rest to
present evidence to the court in support of the allegations con-
tained in her motion to vacate.
The court held a hearing on McPhillips’ motions in January
2019. At the hearing, the court stated:
I got my old notes from some e-mails that came before
that and what have you, and then we had a little bit of
an informal hearing off the record at least after that, and
then I signed a decree. And you brought up some of these
issues — same issues, I think, and a decree was entered
November 28th.
Olander’s counsel argued that McPhillips’ argument was based
on the fact Olander’s income changed after the trial and that
he calculated child support appropriately before the trial. He
further asserted that Olander was initially unable to sign up
for health insurance for Macklin through his employer with-
out a court order, because it was not an open enrollment
period, but he obtained health insurance through the open
market for that time period. Regarding the added language
to the Modified Parenting Plan, Olander’s counsel stated that
McPhillips made the same objections to the court in November
2018, off the record, and the court already ruled on them, some
in McPhillips’ favor and some in Olander’s.
At the close of the January 2019 hearing, the court stated
that it was going to set the matter for an evidentiary hearing
only on the issue of child support, which included evaluat-
ing the parties’ income and whether Olander was provid-
ing health insurance for Macklin. The hearing took place on
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
March 6; however, we do not have a record of the hearing,
although McPhillips’ praecipe for a bill of exceptions spe-
cifically requested that it be included. Following the hearing,
the district court denied McPhillips’ motion to vacate the
Modification Order. McPhillips timely appealed.
ASSIGNMENTS OF ERROR
McPhillips assigns, restated, that the district court abused its
discretion in modifying the Parenting Plan and erred in deny-
ing her motion to vacate the Modification Order.
STANDARD OF REVIEW
[1,2] Domestic matters such as child support are entrusted to
the discretion of trial courts. Anderson v. Anderson, 290 Neb.
530, 861 N.W.2d 113 (2015). Parenting time 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 Maddox S. v. Matthew E., 23
Neb. Ct. App. 500, 873 N.W.2d 208 (2016). An abuse of discretion
occurs when a trial court bases its decision upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. Id. A judicial abuse
of discretion requires that the reasons or rulings of the trial
court be clearly untenable insofar as they unfairly deprive a
litigant of a substantial right and a just result. Id.
ANALYSIS
McPhillips argues that the district court erred in modify-
ing the Parenting Plan, and in denying her motion to vacate,
in four ways: First, the district court erred in modifying
the Parenting Plan to allow Olander to have parenting time
from Tuesday evening until Thursday morning every week.
Second, the district court erred in its child support calcula-
tion. Third, Olander unilaterally modified the transportation
clause of the Parenting Plan when the parties did not agree to
do so. Fourth, Olander unilaterally modified the right of first
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
refusal clause in the Parenting Plan. We address each argu-
ment separately below.
Modification of Parenting Time.
McPhillips argues that the district court erred in modify-
ing the Parenting Plan by changing Olander’s parenting time
to begin on Tuesday evening instead of Wednesday morning,
without modifying her parenting time to begin on Wednesday
evening instead of Thursday morning. We find no abuse of dis-
cretion in the modification.
[3,4] Parenting time determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Schriner v. Schriner, 25 Neb. Ct. App. 165, 903 N.W.2d 691
(2017). The best interests of the children are the primary and
paramount considerations in determining and modifying par-
enting time. Id. The right of parenting time is subject to con-
tinual review by the court, and a party may seek modification
of a parenting time order on the grounds that there has been a
material change in circumstances. Id.
Here, the district court did not abuse its discretion in modi-
fying Olander’s parenting time. The original parenting plan
provided Olander with parenting time from Tuesday at 8 p.m.
to Thursday at 7 a.m. on Week 1 and from Wednesday at 7
a.m. to Thursday at 7 a.m. on Week 2. Olander testified that
Macklin was not adjusting to the inconsistency in the weekly
schedule and that it would be in his best interests if Olander’s
parenting time began on the same day each week. He explained
that in addition to the inconsistency, Wednesday morning
exchanges were chaotic because Macklin was rushed and was
sleepier because he had to get up earlier. Olander therefore
proposed that his parenting time each week begin on Tuesday
evening. Thus, although not explicitly stated, Olander asserted
that a material change in circumstances had occurred in that
Macklin was struggling to adjust to the inconsistent parenting
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OLANDER v. McPHILLIPS
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schedule that was in place and that modifying the Parenting
Plan was in Macklin’s best interests.
[5] In modifying Olander’s parenting time, the court stated,
“I look for stability or routine in a child’s time period with
each parent . . . .” Although the court did not state that a
material change in circumstances had occurred, it implic-
itly acknowledged that the existing parenting schedule was
creating instability for Macklin. In the context of marital
dissolutions, a material change in circumstances 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. Schriner v.
Schriner, supra. Therefore, Macklin’s inability to adapt to the
inconsistent schedule constituted a material change in circum-
stance. Because the inconsistency arose due to the difference
in the start date of Olander’s parenting time from Week 1
to Week 2, in order to make it consistent, the court had the
option of changing the start time to either Tuesday evening
or Wednesday morning. Because morning exchanges were
challenging for Macklin, it made sense that the start date be
moved to Tuesday evening. We find no abuse of discretion in
that decision.
McPhillips claims that the court abused its discretion in
refusing a reciprocal change in her parenting time to change
her start time to Wednesday evenings instead of Thursday
mornings. We disagree. Olander was seeking consistency
because the start date for his parenting time varied each week
from Tuesday evening to Wednesday morning and Macklin
was struggling with that schedule. The start of McPhillips’
parenting time, however, was consistently Thursday morn-
ings. Furthermore, it appears the basis for McPhillips’ request
for a change in parenting time was “so that it’s fair for both
of us.” The primary focus in a change of parenting time,
however, is the child’s best interests. We find no abuse of
discretion in the court’s refusal to modify McPhillips’ parent-
ing time.
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OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
Child Support.
McPhillips asserts that the district court erred in modify-
ing Olander’s child support obligation in its Modification
Order and Modified Parenting Plan because there was not suf-
ficient evidence demonstrating the amount of the health insur-
ance premium he was paying. Because we do not have a record
of the March 2019 hearing, we reverse the district court’s
child support calculation and remand the cause for further
proceedings.
As we laid out in greater detail in the background section
above, following the October 2018 trial and the November
2018 off-the-record hearing, the district court reduced
Olander’s child support obligation to $349 per month in
its Modification Order. In her motion to vacate, McPhillips
argued that Olander was not providing health insurance for
Macklin and that the court erred in calculating Olander’s
child support. A hearing was held on the record in January
2019, at which McPhillips repeated her arguments that the
court erred in calculating Olander’s child support. Both the
court and Olander acknowledged that McPhillips presented
similar arguments at the November 2018 hearing and that the
court already ruled on the issues. However, the court sched-
uled an evidentiary hearing for March 6 to address the issue
of child support. We have no record before us of the hearing.
Following the hearing, the court denied McPhillips’ motion
to vacate.
Based on the record available to us, it appears that the
March 2019 hearing was an evidentiary hearing and there-
fore should have been on the record. See Neb. Ct. R. App. P.
§ 2-105(A)(1) (rev. 2018). McPhillips’ motion for relief from
rest requested that “she be granted relief from rest [and] that
additional evidence as to the above stated items be allowed.”
At the close of the January 2019 hearing on her motion, the
district court stated that it was going to set “an evidentiary
hearing” solely on the issue of child support. It explained
“I’m going to rehear evidence on what he makes, she makes,
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and this health insurance issue, and we’ll calculate child sup-
port appropriately.”
The court’s order denying McPhillips’ motion to vacate
states that “[t]he Court allowed the hearing to occur, thus the
record was reopened for purposes of [McPhillips] providing
further evidence as well as argument to the Court.” We note
that McPhillips requested a transcript of the March 2019 hear-
ing in her praecipe for bill of exceptions and that one was
not provided. We further note Olander’s statement in his brief
that “[n]either party requested a record” of the March hearing
and his assertion that it was “incumbent [upon McPhillips] to
present a record which supports” her assigned error. Brief for
appellee at 11, 14. McPhillips concurs that there was no record
from this hearing. However, the absence of a record from an
evidentiary hearing does not necessitate an affirmance of the
court’s order.
Pursuant to § 2-105(A)(1), court reporting personnel “shall
in all instances make a verbatim record of the evidence offered
at trial or other evidentiary proceeding, including but not lim-
ited to objections to any evidence and rulings thereon, oral
motions, and stipulations by the parties. This record may not
be waived.” Because the court stated that the March 2019
hearing was to be an evidentiary hearing, and the record was
reopened to allow McPhillips to present further evidence on
the issue of child support, we presume that the hearing was an
evidentiary hearing and a record was required.
[6] Where no record of an evidentiary hearing is made, the
orderly administration of justice requires that the order be
vacated and the matter remanded for a new evidentiary hearing
on the record. See Gerdes v. Klindt’s, Inc., 247 Neb. 138, 525
N.W.2d 219 (1995). See, also, Presle v. Presle, 262 Neb. 729,
634 N.W.2d 785 (2001); Lockenour v. Sculley, 8 Neb. Ct. App.
254, 592 N.W.2d 161 (1999). Consequently, we reverse the
district court’s order regarding child support and remand the
cause to the district court to hold an evidentiary hearing, on
the record, on the issue of child support, including the parties’
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income and health insurance for Macklin. Because the March
2019 hearing was limited solely to the issue of child support,
our decision does not affect McPhillips’ remaining assigned
errors, which we address below.
Modification of Transportation Clause.
McPhillips argues that the district court erred in modifying
the transportation clause of the Parenting Plan. We agree.
The transportation clause in the Parenting Plan required
Olander to provide the transportation during parenting time
exchanges, except on the weekends, when McPhillips was to
pick up Macklin at the beginning of her parenting time. This
was modified in the Modified Parenting Plan to state that the
parent beginning parenting time would provide transportation
for the exchange. Our record does not disclose how this change
was determined.
At the October 2018 trial, the agreements the parties reached
prior to trial were read into the record. There is nothing stated
on the record regarding transportation, although Olander con-
tends in his brief that the parties agreed to modify the clause
prior to trial.
McPhillips contested the change in transportation prior to
the November 2018 hearing in her objections to the entry of an
order of modification filed on November 26 and 27, asserting
that she never agreed to it. McPhillips also raised the trans-
portation issue in her motion to vacate after the Modification
Order was entered. In that motion, she admits that the trans-
portation issue was addressed at the hearing in chambers in
November. As to transportation, she alleged:
The attorney for [Olander] failed to address the following
issues which were discussed in chambers:
....
b. Transportation was modified when this was not part
of the agreement and not contained in the Transcript. The
Judge indicated that this was what he would normally
allow, as stated in the order signed by the judge, however,
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discussions with [McPhillips] after the shortened hearing
indicated that there were substantial reasons why the ini-
tial transportation language had been included.
At the January 2019 hearing on that motion, Olander asserted
that the court had already ruled on the issue. The court stated
that it had reviewed its notes and communications and that
McPhillips was raising some of the “same issues.” It allowed
McPhillips to argue, after stating, “So go ahead and — I think
I already made a decision on these matters, but go ahead
and tell me again today what you would like to tell me.”
Therefore, the record supports a conclusion that the court
initially addressed the issue either in chambers prior to the
October 2018 trial or in chambers at the November hearing.
There is no indication that evidence was received at either of
those hearings, and it was not part of the stipulation read into
the record at the October 2018 hearing as a matter to which
the parties agreed.
[7] In order to modify a parenting plan, there must be a
material change in circumstances that affects the best inter-
ests of the child. See Eric H. v. Ashley H., 302 Neb. 786,
925 N.W.2d 81 (2019). Here, the district court found a mate-
rial change in circumstances that warranted a modification
of the Paternity Decree and the Parenting Plan; however, in
addition to modifying provisions on which the parties agreed
or on which evidence was received, the court also modified
the transportation provision. We recognize that under cer-
tain circumstances, a change in parenting time may neces-
sitate a change in transportation; however, we find no such
circumstance here. The primary change as to parenting time
was to move the start time of Olander’s parenting time from
Wednesday at 8 a.m. to Tuesday at 8 p.m. It does not appear
from our record that the parties agreed to a change regarding
transportation or that the court heard evidence as to why such
a change was in the child’s best interests. Absent such infor-
mation, we find that the change in the transportation provision
constituted an abuse of discretion, and we reverse that portion
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of the Modified Parenting Plan and remand the cause to the
district court with instructions to reinstate the provision as
written in the Parenting Plan attached to the court’s order nunc
pro tunc filed March 10, 2014.
Right of First Refusal Clause.
McPhillips further asserts that the district court erred in
modifying the right of first refusal clause of the Parenting Plan.
We disagree.
As stated in the background section above, the Paternity
Decree granted Olander’s mother a right of first refusal versus
McPhillips to watch Macklin every fourth Saturday during
which Olander was at work. McPhillips asserts that the nunc
pro tunc order and the attached Parenting Plan, which did not
include the right of first refusal for Olander’s mother, super-
seded the Paternity Decree. Therefore, according to McPhillips,
the inclusion of the right of first refusal in the Modified
Parenting Plan was a modification which the court included in
error. We disagree.
The terms of the nunc pro tunc order state that it modified
only the Parenting Plan attached to the Paternity Decree; there-
fore, it did not modify the terms of the Paternity Decree. Our
reasoning is buttressed by McPhillips’ counterclaim, in which
she states, “[Olander’s] mother shall no longer be required
to receive one Saturday each month with [Macklin].” This
language indicates to us that the parties were operating under
the terms of the Paternity Decree which granted Olander’s
mother a right of first refusal versus McPhillips. Consequently,
the right of first refusal for Olander’s mother was properly
included in the Modified Parenting Plan because it was carried
over from the Paternity Decree.
We acknowledge that the right of first refusal in the Paternity
Decree was for every fourth Saturday, whereas the right of first
refusal in the Modified Parenting Plan was for every third
Saturday. However, McPhillips states in her brief that the
language in the Modified Parenting Plan “mirrors language
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
OLANDER v. McPHILLIPS
Cite as 28 Neb. Ct. App. 559
that was in the original Parenting plan attached to the origi-
nal Decree of Paternity.” Brief for appellant at 17. Because
she takes no issue with the change in Saturdays on which
Olander’s mother has the right of first refusal, we do not
address this discrepancy. Thus, the district court did not abuse
its discretion by including the right of first refusal clause in the
Modified Parenting Plan.
CONCLUSION
For the reasons set forth above, we reverse the provisions of
the Modification Order regarding child support and transporta-
tion and remand the cause for further proceedings consistent
with this opinion. We affirm on all other issues.
Affirmed in part, and in part reversed and
remanded for further proceedings.