Divorce: Child Custody: Child Support: Property
Division: Alimony: Attorney Fees: Evidence: Appeal and
Error. In an action for the dissolution of marriage,
an appellate court reviews de novo on the record the trial
court's determinations of custody, child support,
property division, alimony, and attorney fees; these
determinations, however, are initially entrusted to the trial
court's discretion and will normally be affirmed absent
an abuse of that discretion.
Judges: Words and Phrases. A judicial abuse
of discretion exists when reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters
submitted for disposition.
Evidence: 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
Due Process. Due process principles protect
individuals from arbitrary deprivation of life, liberty, or
property without due process of law.
Due Process: Notice. Due process does not
guarantee an individual any particular form of state
procedure; instead, the requirements of due process are
satisfied if a person has reasonable notice and an
opportunity to be heard appropriate to the nature of the
proceeding and the character of the rights which might be
affected by it.
Constitutional Law: Due Process. The
determination of whether procedures afforded an individual
comport with constitutional requirements for procedural due
process presents a question of law.
Child Custody. The factual inquiry for
awarding joint custody is substantially different from that
for an award of sole custody.
Neb. 603] 8. __ . When a trial court determines at a general
custody hearing that joint physical custody is, or may be, in
a child's best interests, but neither party requested
joint custody, the court must give the parties an opportunity
to present evidence on the issue before imposing joint
Joint physical custody must be reserved for those cases
where, in the judgment of the trial court, the parents are of
such maturity that the arrangement will not operate to allow
the child to manipulate the parents or confuse the
child's sense of direction, and will provide a stable
atmosphere for the child to adjust, rather than perpetuating
turmoil or custodial wars.
. A trial court's decision to award joint legal or
physical custody can be made without parental agreement or
consent so long as it is in the child's best interests.
The best interests of the child are the primary consideration
for developing custodial plans.
In considering a child's best interests in the
development of custodial plans, it is a common occurrence and
a court is permitted to supply a party with final
decisionmaking authority in some areas to avoid future
impasses which could negatively affect the child while
maintaining both parents' rights to consultation and
participation in important decisions.
from the District Court for Phelps County: Terri S. Harder,
Jeffrey P. Ensz, of Lieske, Lieske & Ensz, PC, L.L.O.,
D. Icenogle, of Bruner Frank, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Renee Blank appeals the district court's decree of
dissolution dissolving her marriage to Caleb Robert Blank and
awarding joint legal and physical custody of the parties'
two minor children. On appeal, Marissa claims the court erred
in awarding joint custody without advance notice when neither
[303 Neb. 604] party made such request. Marissa also claims
the court erred in determining that the case did not involve
domestic abuse and in not making the statutorily required
additional findings. Finally. Marissa claims the court abused
its discretion in determining joint custody was in the
children's best interests. For the reasons set forth
herein, we affirm.
and Caleb were married on May 19, 2011. The parties have two
minor children: a daughter, who was born in 2011, and a son,
who was born in 2014.
filed a complaint for dissolution of marriage in February
2017. In the complaint, Marissa stated, "I am and my
spouse is able to provide support for the child(ren)"
and asked that the court "[a]ward [j]oint legal custody
of the children of this marriage." Caleb signed a
voluntary appearance acknowledging receipt of a copy of the
same time the complaint was filed, Marissa offered a proposed
parent-created parenting plan which was signed by both
parties. This proposed plan outlined that Marissa would have
legal custody in that she "shall have the legal
responsibility and authority to make final decisions
concerning the parenting functions necessary to raising the
child(ren)." The proposed plan additionally listed
Marissa's residence as the principal place of residence
subject to the terms of the plan. As to parenting time and
holidays, the proposed plan detailed that the parties'
work schedules would dictate the parenting times and
indicated that the parties would be able to work together to
minimize either party's paying for daycare. No order
adopting this plan was entered by the district court.
filed another proposed parenting plan signed by both parties
on May 11, 2017. This proposed plan established that the
"parties shall share joint legal and physical custody of
the minor children and as such, shall maintain the legal
responsibility and authority to make final decisions
concerning the parenting functions necessary for raising the
minor children." [303 Neb. 605]
proposed plan explained that the children's principal
residences would be with both Marissa and Caleb and outlined
a parenting time schedule for Caleb. This plan also contained
references to the parties' ability to coordinate
adjustments to the schedule and discuss parenting decisions
with each other. Again, no order adopting the plan was
entered by the district court.
23, 2017, Caleb filed a motion for temporary orders seeking
"joint temporary legal and physical care, cus-tody[, ]
and control" of the children. Following a hearing on the
motion, the court entered a "Temporary Order/Parenting
Plan." That order awarded temporary legal and physical
custody to Marissa and declared that each parent have full
and equal access to the children's education and medical
records and the authority to make emergency decisions
affecting the health or safety of the children. The order
further provided a parenting plan with continuous and easy
telephone access and midweek, every-other-weekend, and
alternating-holiday parenting time.
was held on the complaint in June 2018 on the remaining
issues to be decided, including "custody of the
parties' two minor children, parenting time, and
financial issues concerning the children."
testified as to the care of the children. She opined that
throughout the children's lives, she was the primary
caretaker. She explained that she took 2 months off work to
stay home after their daughter was born, that she worked only
part time after returning to the work force, and that she
would split her work shifts in order to go home to breastfeed
because their daughter "wouldn't take a
bottle." Marissa further explained that she was
primarily the one to take the children to events and
activities. Marissa testified that Caleb would take care of
the children when she was working and he was off but that
when both parents where available to care for the children,
the responsibilities fell solely on her. Marissa also
testified that following the temporary order, the children
were performing [303 Neb. 606] well, and that the schedule is
very structured for their benefit. Marissa testified about
the parties' working relationship and agreed they have
made accommodations for each other with regard to the
children's care. Marissa further testified that following
the temporary order, the parties were able to communicate and
work together civilly. Marissa testified that both she and
Caleb have new relationships and, with those parties, new
houses in which the children stay.
asserted that she was the primary parent to take the children
to the doctor when they were sick and that the parties agreed
not to vaccinate the children. However, Marissa did admit
Caleb was the one who took the children to the doctor for
chicken pox and lice following the temporary order.
testified that the parties shared the childcare
responsibilities equally when both parents were home.
However, Caleb explained that because he works more, Marissa
would watch the children more when he was not home. Caleb
explained that when Marissa was working, he would make
supper, prepare baths, and put the children to bed. Caleb
also testified that while he initially agreed not to
vaccinate the children, he would now seek to have them
vaccinated if given legal custody.
admitted that he had punched a couple of holes in a basement
wall within 2 or 3 years prior to trial while the children
were upstairs in the home. Caleb explained, "An
argument, I honestly do not recall what it was about,
escalated; and I just - I got really angry. So I walked away.
I went into the basement of the marital home, and I punched
the wall." Caleb also admitted that he had "open
hand smacked" Marissa at one point due to a disagreement
which occurred "so far in the past." Marissa agreed
on rebuttal to her attorney's questioning that Caleb
"slapped you at some point in the relationship."
However, Caleb also testified that while Marissa was watching
their son, she kicked a hole in a door out of frustration,
and testimony was received that Marissa is more physical with
the children than Caleb.
Neb. 607] Marissa requested that the court grant her sole
custody and testified that she did not believe a shared
custody arrangement was in the children's best interests.
Specifically, Marissa responded as follows to questioning on
Q [by Marissa's counsel:] There was some talk - well,
maybe not. Rather do you believe that a shared custody
arrangement where you split time would be in the
children's best interest?
A [by Marissa:] No.
Q Why do you feel that way?
A I feel that way because Caleb rushed into a new
relationship, not only a new relationship but a new
relationship where she had kids as well. And I don't feel
that his relationship with the kids was a strong enough bond
for them not to worry if he's still going to love them.
Q Do you believe there's any question as to who the
primary caretaker was during your marriage between you and
Q Who was the primary caretaker?
A It was me.
Q Do you believe - is that part of your reason why you
believe that a shared custody arrangement would not be
response to questioning on cross-examination about her
concerns "about joint custody" because Caleb had
"rushed into a . . . relationship," Marissa agreed
that she began her new relationship and moved in with her
significant other before Caleb's new relationship.
Counsel for Marissa argued during closing argument that this
case is not appropriate for joint custody or a shared custody
arrangement, "as clearly there's enough conflict in
here that that could create a problem [303 Neb. 608] for the
children" and cause a "significant upheaval"
of the children's current structure, which was working.
in turn, requested that the court award him full custody.
Alternatively, Caleb asked for an award of joint custody,