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Fales v. Fales

Court of Appeals of Nebraska

May 1, 2018

Samuel E. Fales, appellee,
v.
Sandy L. Fales, appellant.

1. Divorce: Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.
2. Child Custody: Appeal and Error. 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. Words and Phrases. The acts of abuse defined in the Protection from Domestic Abuse Act are those committed against household members and include attempting to cause or intentionally and knowingly causing bodily injury and placing, by means of credible threat, another person in fear of bodily injury.
4. _ . Threatening to cause or actually causing bodily injury to a spouse or former spouse qualifies as domestic intimate partner abuse.
5. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

          Appeal from the District Court for Loup County: Mark D. Kozisek, Judge. Judgment vacated, and cause remanded for further proceedings.

          Sara K. Houston for appellant.

          Nathan T. Bruner and Loralea L. Frank, of Bruner Frank, L.L.C., for appellee.

          Riedmann and Bishop, Judges, and Inbody, Judge, Retired.

          [25 Neb.App. 869] RlEDMANN, Judge.

         Sandy L. Fales appeals from the order of the district court for Loup County which dissolved her marriage to Samuel E. Fales and granted custody of their minor child to Samuel. Sandy argues on appeal that the court abused its discretion in awarding Samuel custody. Because the district court failed to make special written findings as required by Neb. Rev. Stat. § 43-2932(3) (Reissue 2016), we vacate the district court's order and remand the cause for further proceedings.

         FACTUAL BACKGROUND

         Sandy and Samuel were married in 2010, and their child, Samuel Ellis Wayne Fales (Ellis), was born in May 2012. The parties separated in the spring of 2015, and Samuel filed for dissolution of the marriage in June 2015. Each party requested custody of Ellis. In a temporary order, the district court awarded custody of Ellis to Sandy and granted Samuel parenting time of every other weekend, as well as 1 week per month.

         At the March 2017 trial, evidence was presented as to the strengths and weaknesses of the parties relating to their fitness for custody of Ellis. Samuel operates the family cattle ranch with his father and brother. He has lived in the same family home since he was 8 years old, and his father lives nearby. He described a caring, involved extended family. Samuel testified that he provides a stable environment for Ellis ...


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