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Blank v. Blank

Supreme Court of Nebraska

July 12, 2019

Marissa Renee Blank, appellant,
Caleb Robert Blank, appellee.

         1. 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.

         2. 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.

         3. 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 than another.

         4. Due Process. Due process principles protect individuals from arbitrary deprivation of life, liberty, or property without due process of law.

         5. 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.

         6. 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.

         7. Child Custody. The factual inquiry for awarding joint custody is substantially different from that for an award of sole custody.

         [303 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 custody.

         9.__ . 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.

         10. __ . 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.

         11.__ . The best interests of the child are the primary consideration for developing custodial plans.

         12.__. 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.

          Appeal from the District Court for Phelps County: Terri S. Harder, Judge. Affirmed.

          Jeffrey P. Ensz, of Lieske, Lieske & Ensz, PC, L.L.O., for appellant.

          John D. Icenogle, of Bruner Frank, L.L.C., for appellee.

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

          FUNKE, J.

         Marissa 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.


         Marissa 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.

         Marissa 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 complaint.

         At 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.

         Caleb 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]

          The 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.

         On May 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.

         A trial 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."

         Marissa 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.

         Marissa 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.

         Caleb 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.

         Caleb 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.

         [303 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 direct examination:

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 Caleb?
A No.
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 appropriate?
A Yes.

         In 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.

         Caleb, in turn, requested that the court award him full custody. Alternatively, Caleb asked for an award of joint custody, ...

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