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Eric H. v. Ashley H.

Supreme Court of Nebraska

April 5, 2019

Eric H., appellant,
Ashley H., now known as Ashley E., appellee.

         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. ___: ___ . 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. 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.

         4. Pleadings. Pleadings frame the issues upon which the cause is to be tried and advise the adversary as to what the adversary must meet.

         5. Pleadings: Appeal and Error. Decisions regarding the scope and meaning of pleadings are reviewed for an abuse of discretion.

         6. 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 order.

         7. 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.

         8. Evidence: Words and Phrases. Competent evidence is evidence that is admissible and tends to establish a fact in issue.

          [302 Neb. 787] Appeal from the District Court for Hall County: John H. Marsh, Judge.

          Samuel R. O'Neill, of Svehla Law Offices, PC, L.L.O., for appellant.

          Stephen T. Knudsen, of Grafton Law Office, PC, L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PER CURIAM.

         I. NATURE OF CASE

         A 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.


         Eric H. 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.

         1. May 24, 2017, Ex Parte Order

         On May 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 the court.

         2. Deferral of Jurisdiction to Juvenile Court

         On June 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 2016).

         The 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.

         3. Complaint to Modify

         On 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, 2017.

4. September 26, 2017, Ex Parte Order

         The 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.

         The 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.

         The ex parte order was granted pending a hearing on October 4, 2017. After the October 4 hearing, the court vacated the ex parte order.

         In 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 ...

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