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.
___ . 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.
Modification of Decree: Words and Phrases. A
material change of circumstances constituting grounds for
modification of a dissolution decree 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.
Pleadings. Pleadings frame the issues upon
which the cause is to be tried and advise the adversary as to
what the adversary must meet.
Pleadings: Appeal and Error. Decisions
regarding the scope and meaning of pleadings are reviewed for
an abuse of discretion.
Modification of Decree: Child Custody.
Before the district court considers whether a change of
custody is in the best interests of the children, it must
first find that there has been a material change of
circumstances that has occurred since the entry of the prior
Modification of Decree: Child Custody:
Proof. The party seeking modification of a custody
order must prove a material change in circumstances by a
preponderance of the evidence.
Evidence: Words and Phrases. Competent
evidence is evidence that is admissible and tends to
establish a fact in issue.
Neb. 787] Appeal from the District Court for Hall County:
John H. Marsh, Judge.
R. O'Neill, of Svehla Law Offices, PC, L.L.O., for
Stephen T. Knudsen, of Grafton Law Office, PC, L.L.O., for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
father appeals from the district court's denial of his
motion to modify custody of a minor child after the child
reported that her stepfather was sexually abusing her. The
district court found that the father had failed to prove that
the reported abuse had occurred. We conclude that the
district court applied the correct standard of proof and did
not abuse its discretion in its determination of the scope
and meaning of the father's complaint. However, we also
conclude that the court made an error of law in finding there
was "no competent evidence" of sexual abuse by the
stepfather. Consequently, we affirm in part, and in part
reverse and remand with directions to consider all competent
evidence adduced at trial.
and Ashley H, now known as Ashley E., were divorced in 2015.
One minor child, M.H., was born to the marriage. Pursuant to
a prior joint stipulation to modify, the district court
entered an order in November 2016 providing for joint legal
and physical custody, with a parenting schedule that gave
each parent equal time with M.H.
24, 2017, Ex Parte Order
24, 2017, Eric moved for an ex parte order giving him full
custody of M.H. until a sexual assault investigation [302
Neb. 788] could be concluded. Eric averred that M.H., 6 years
old at that time, had reported that Matthew E., Ashley's
husband and M.H.'s stepfather, sexually assaulted her.
The district court issued an ex parte order that same date,
suspending Ashley's parenting time until further order of
Deferral of Jurisdiction to Juvenile Court
6, 2017, the district court entered an order declining to
exercise further jurisdiction until the juvenile court was no
longer exercising jurisdiction under a petition to adjudicate
pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue
juvenile case pertaining to the allegations of sexual abuse
was dismissed on September 15, 2017. It was undisputed that
Matthew had not been arrested in relation to M.H.'s
report or charged with any crime, though law enforcement did
investigate. A medical examination conducted during the
juvenile investigation showed no signs of abuse.
Complaint to Modify
September 22, 2017, Eric filed in the district court an
amended complaint to modify the November 2016 order of joint
physical and legal custody and award Eric primary custody
subject to reasonable parenting time by Ashley. The complaint
described the material change of circumstances as:
[Ashley] has remarried to Matthew .... [Matthew] was the
subject of an investigation in York County, Nebraska for the
sexual assault of the minor child. The case was in the
Juvenile Court of York County, Nebraska located at case
number JV 17-28. The case was dismissed on September 15,
4. September 26, 2017, Ex Parte Order
same day that Eric filed to modify custody, he also moved for
a new ex parte order suspending Ashley's parenting time
with M.H. In an affidavit attached to the motion, Eric
described the reasons why, despite the dismissal of the
juvenile [302 Neb. 789] case, he still believed that
"something happened" and that M.H. would be in
danger if she had unsupervised visitation with Ashley.
Eric's wife, Cassie H., also submitted an affidavit in
support of the motion.
affidavits described that M.H. had reported to Eric and
Cassie that Matthew pulled her pants down and touched her
inappropriately. Further, M.H. had patted Eric's private
parts and told him that Matthew had said it was
"ok" to do that. Eric and Cassie described that
M.H. was wetting the bed and otherwise "not acting
normal" when she first reported the abuse. They alleged
that M.H. had improved during the time that visitation with
Ashley was suspended.
parte order was granted pending a hearing on October 4, 2017.
After the October 4 hearing, the court vacated the ex parte
vacating the ex parte order, the court concluded that Eric
had failed to prove by a preponderance of the evidence that
M.H., by that time 7 years old, was the victim of sexual
abuse or was otherwise endangered in Ashley's home. The
court noted that the initial interview of M.H., in which she
first disclosed any inappropriate behavior by Matthew, was
conducted by Cassie, an interested party. Cassie was employed
by the Department of Health and Human Services (DHHS) and had
completed a course in interviewing children. The court
observed that subsequent to the initial interview with
Cassie, M.H. attended weekly therapy and it was the
therapist's opinion that M.H.'s reports of sexual
abuse were made in an "'authentic'" manner