Child Custody: Appeal and Error. An
appellate court reviews child custody determinations de novo
on the record, but the trial court's decision will
normally be upheld absent an abuse of discretion.
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
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
Trial: Judges: Presumptions: Appeal and
Error. An appellate court presumes in a bench trial
that the judge was familiar with and applied the proper rules
of law unless it clearly appears otherwise.
from the District Court for Washington County: John E.
Samson, Judge. Affirmed.
J. Milone and Michael W. Milone, of Koukol & Johnson,
L.L.C., for appellant.
E. Talbot III, of Talbot Law Office, P.C., L.L.O., for
Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg,
appeal arises out of paternity proceedings involving
Nicolette G., Randy S., and their daughter Eleanor G.
Nicolette [302 Neb. 466] appeals the order of the district
court that awarded sole legal and physical custody of Eleanor
primary argument on appeal rests on her contention that she
proved at trial that Randy had committed child abuse under
Nebraska law. She argues that under such circumstances, the
district court was required by statute both to impose
sufficient limitations on Randy's custody and parenting
time to protect Eleanor and to make special written findings
that Eleanor would be protected by such limitations. She
contends the district court did neither. Nicolette also
contends that the district court generally abused its
discretion in its award of custody, parenting time, and child
support. Upon our de novo review of the record, we find no
reversible error, and therefore, we affirm.
and Randy agree that they are the parents of Eleanor. Eleanor
was born in 2014. Nicolette and Randy have never married one
another, but they did live together with Eleanor until
October 2016, when Randy initiated paternity proceedings.
operative complaint sought a paternity determination, sole
legal and physical custody, and child support. In her
operative answer and counterclaim, Nicolette sought a
paternity determination, sole physical custody, joint legal
custody, and child support. In accordance with the
parties' stipulation, in November 2016, the district
court entered a temporary order providing for a parenting
time cycle of two weekdays with Randy, three weekdays with
Nicolette, and alternating weekends and major holidays. The
matter proceeded to trial in January 2018.
Evidence Regarding Parties and Their Relationship With
evidence at trial showed that both Nicolette and Randy have
been active caregivers for Eleanor, both contributing their
[302 Neb. 467] time, efforts, and money. Nicolette and Randy
both described strong, positive relationships with Eleanor.
Both parties also have supportive families.
testified that she has degrees in culinary arts and general
studies, focusing on nutrition, healthcare, and restaurant
management. As of the date of trial, Nicolette had spent 3
months working full time for a nonprofit organization
focusing on literacy. Previously, she had held various jobs
in the retail and service industries. At the time of trial,
Nicolette resided with her parents in Omaha, Nebraska, where
Eleanor has her own bedroom. Nicolette testified that within
weeks, she would move to her own two-bedroom apartment in
Omaha, where Eleanor would have her own bedroom.
had completed high school and one semester of community
college. At the time of trial, Randy owned and operated a
business installing electronic accessories in cars, something
he had done for 12 years. He had also previously done
intermittent construction work and sold roofing materials,
gutters, and siding. Randy testified that at the time of
trial, he resided in Blair, Nebraska, where he owns a home in
which Eleanor has her own bedroom. Nicolette presented
evidence of unsafe conditions that existed in Randy's
home at the time they separated in October 2016, including
unfinished and exposed electrical outlets and an open
staircase without a railing, leading from the first to the
second floor. Randy presented evidence that he had fixed the
unsafe conditions after he filed suit.
district court heard evidence about Randy's alcohol use.
In general, the evidence showed that Randy, who has a family
history of alcoholism, drank heavily while Nicolette lived
with him, but since she had moved out in October 2016, his
drinking had diminished.
testified that when she lived with Randy after Eleanor's
birth, he drank alcohol daily. He would come home from work
with the odor of alcohol on his breath and continue [302 Neb.
468] to drink throughout the evening. Nicolette stated that
he would start with beer and progress to cocktails. According
to Nicolette, when Randy used alcohol, he had red eyes, poor
balance, and slurred speech; was confused; repeated himself
"a lot"; and "didn't seem to have a care
in the world." Nicolette stated that the more Randy
drank, the more irritable he would become. If she tried to
advise him to slow down or stop drinking, he would "get
mean" and critical. Nicolette testified that Randy's
drinking affected his ability to care for Eleanor. She said
he became "very inattentive, he was on his cell phone a
testified that after Eleanor was born, she had observed Randy
"drink to excess" and then drive at least once or
twice a week, and "[m]ore frequently" than
"once or twice" when Eleanor was in the car.
According to Nicolette, Randy turned down Nicolette's
offers to drive and did not stop driving with Eleanor in the
car when he was "in that condition." Randy's
mother testified that she had observed Randy parent Eleanor
while he was intoxicated. She denied knowing whether Randy
had driven while intoxicated with Eleanor in the car. She
stated, "[H]aving a beer and being intoxicated, you
know, if I'm not counting I don't know."
testified that both she and Randy had consumed alcohol while
on a boat with Eleanor and that Randy had operated the boat
while drinking, with Eleanor on board. Nicolette offered
photographs purporting to show Randy operating a boat while
drinking, with Eleanor as a passenger. However, either Randy
is not operating the boat in the photographs or it is
indiscernible whether the beverages he is holding are
alcoholic. Randy's mother admitted that she had observed
Randy consuming alcoholic beverages "while boating"
and had warned him about it more than once, but that she did
not recall whether Eleanor was present on the boat while
Randy was drinking.
admitted to being a heavy drinker when he and Nicolette were
together. He claimed he used alcohol to cope [302 Neb. 469]
with Nicolette, with whom he found it difficult to get along.
He defined heavy drinking as consuming more than six beers a
day, 6 out of 7 days per week. Randy admitted that before
Nicolette left, he had cared for Eleanor while intoxicated.
He denied being intoxicated or "under the influence of
alcohol" when driving with Eleanor in the car, but he
admitted to driving with her after he had consumed "[a]
drink, maybe two, over the course of three, four hours."
and his family testified that Randy had changed his drinking
habits and attitude since filing the paternity suit.
Randy's stepmother testified that if she saw Randy drink
at all, he would have only one beer and tell others he was
not drinking because he had Eleanor. Randy's brother
testified that he saw Randy once or twice a week. According
to Randy's brother, before Eleanor was born, Randy was a
regular drinker who "drank quite a bit." However,
after breaking up with Nicolette, Randy's drinking had
"changed a lot" and he no longer seemed depressed.
Randy's brother stated that Randy does not drink more
than one or two beers in Eleanor's presence.
testified that since he and Nicolette separated, he had not
been intoxicated while caring for Eleanor. According to
Randy, since the separation, he usually consumed only one or
two drinks at a time, except for the occasional social event.
Randy maintained that 2 or 3 days per week, he does not
consume alcohol at all. On the other days, he may have
"a couple of drinks" after work. He stated that