State of Nebraska on behalf of Natalya B. and Nikiah A., Minor Children, Appellee.
Bishop A., Defendant and third-party Plaintiff, Appellee, and Mimi B. Third-Party Defendant, Appellant.
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.
Judgments: Evidence: Appeal and Error. In a
review de novo on the record, an appellate court reappraises
the evidence as presented by the record and reaches its own
independent conclusions on the matters at issue. When the
evidence is in conflict, 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.
Judgments: Words and Phrases. 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
___ . 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.
Visitation. The best interests of the
children are the primary and paramount considerations in
determining and modifying parenting time.
. The right of parenting time is subject to continuous review
by the court, and a party may seek modification of parenting
time on the grounds that there has been a material change in
Directed Verdict: Evidence. A directed
verdict is proper only when reasonable minds cannot differ
and can draw but one conclusion from [24 Neb.App. 478] the
evidence, that is, when an issue should be decided as a
matter of law.
Directed Verdict: Appeal and Error. In
reviewing a directed verdict, an appellate court gives the
nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence.
Child Custody: Visitation: Stipulations. It
is the responsibility of the trial court to determine
questions of custody and visitation of minor children
according to their best interests, which is an independent
responsibility and cannot be controlled by the agreement or
stipulation of the parties or by third parties.
Judgments: Appeal and Error. When evidence
is in conflict, an 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
Records: Appeal and Error. When reviewing a
decision of a lower court, an appellate court may consider
only evidence included within the record.
___: ___ . A party's brief may not expand the evidentiary
Trial: Evidence: Records: Appeal and Error.
The erroneous admission of evidence in a bench trial is not
reversible error if other relevant evidence, properly
admitted, sustains the trial court's necessary factual
findings; in such case, reversal is warranted only if the
record shows that the trial court actually made a factual
determination, or otherwise resolved a factual issue or
question, through the use of erroneously admitted evidence.
Modification of Decree: Child Support: Appeal and
Error. Although an appellate court reviews the
modification of child support payments de novo on the record,
it affirms the trial court's decision absent an abuse of
from the District Court for Lancaster County: Robert R. Otte,
Gail Steen, of Steen Law Office, for appellant.
Stephanie Flynn, of Stephanie Flynn Law Office, PC, L.L.O.,
for appellee. Bishop A.
and Pirtle, Judges, and McCormack, Retired Justice.
Neb.App. 479] Pirtle, Judge.
appeals the order of the Lancaster County District Court
which modified Bishop A.'s parenting time and temporarily
suspended his child support obligations. For the reasons that
follow, we affirm.
and Bishop are the parents of two minor children. Natalya B.,
born in 2007, and Nikiah A., born in 2005. The children made
allegations of physical and sexual abuse against their
father, Bishop. At the time of the allegations, Natalya was 3
years old and Nikiah was approximately 5 years old. No
criminal or juvenile court proceedings were filed as a result
of these allegations, but the allegations have been a central
issue throughout this case.
order was entered in August 2012 granting custody of the
minor children to Mimi, subject to Bishop's parenting
time, as set forth in an incorporated parenting plan. The
parenting plan was signed by both Bishop (identified as the
"Defendant"), and Mimi (identified as the
"Third-Party Defendant"), who were both aware of
the abuse allegations at that time.
original parenting plan provided a "step-up"
parenting time schedule. It stated:
Because there has been no parenting time for a significant
period of time, [Bishop's] visits with the children
should begin in a therapeutic setting/family therapy and
continue for a period of at least four (4) sessions, or until
the therapist recommends parenting time increase to Step 2
below. This family therapy shall not be administered by the
child's current therapist, but rather by a different
therapist. [Bishop's] suggestion is that Bertine Loop be
named to direct these family therapy sessions. It is
[Mimi's] responsibility ... to make sure the children
attend these sessions and are picked up from these sessions.
. . . Bertine should communicate with both counsel [24
Neb.App. 480] after each of the first four (4) sessions in
order to help each counsel assess progress and comfort level
of Bishop and the girls. Bertine should also communicate with
both counsel about realistically proceeding to Step 2 in a
timely fashion and potential persons to supervise/monitor
those visits set forth in Steps 2, 3 and 4[.]
2, 3, and 4 were also listed in the parenting plan, providing
for progressively longer parenting time with decreasing
levels of supervision. Ultimately, the plan was for Bishop to
enjoy a normal parenting schedule, including alternating
weekends and holidays.
filed a complaint for modification on May 14, 2014, alleging
that (1) he had not had any contact with the minor children
since the entry of the court's order; (2) the therapeutic
visitation provided for in the parenting plan had not
occurred, so none of the steps in the step-up plan had been