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State v. Bishop A.

Court of Appeals of Nebraska

January 31, 2017

State of Nebraska on behalf of Natalya B. and Nikiah A., Minor Children, Appellee.
v.
Bishop A., Defendant and third-party Plaintiff, Appellee, and Mimi B. Third-Party Defendant, Appellant.

         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. 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.

         3. 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 evidence.

         4. ___: ___ . 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.

         5. Visitation. The best interests of the children are the primary and paramount considerations in determining and modifying parenting time.

         6. ___ . 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 circumstances.

         7. 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.

         8. 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.

         9. 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.

         10. 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 than another.

         11. Records: Appeal and Error. When reviewing a decision of a lower court, an appellate court may consider only evidence included within the record.

         12. ___: ___ . A party's brief may not expand the evidentiary record.

         13. 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.

         14. 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 discretion.

         Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

          B. Gail Steen, of Steen Law Office, for appellant.

          Stephanie Flynn, of Stephanie Flynn Law Office, PC, L.L.O., for appellee. Bishop A.

          Inbody and Pirtle, Judges, and McCormack, Retired Justice.

         [24 Neb.App. 479] Pirtle, Judge.

         I. INTRODUCTION

         Mimi B. 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.

         II. BACKGROUND

         Mimi 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.

         An 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.

         The 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[.]

         Steps 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.

         Bishop 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 satisfactorily ...


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