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State v. Jeffery T.

Supreme Court of Nebraska

August 30, 2019

State of Nebraska on behalf of Kaaden S., a minor child, appellee,
Jeffery T., appellant, and Mandy S., appellee.

         1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion.

         2. Judges: Words and Phrases. A judicial abuse of discretion exists if the 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. In a de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

         4. Child Custody: Visitation. The Parenting Act does not require any particular parenting time schedule to accompany an award of either sole or joint physical custody, and there exists a broad continuum of possible parenting time schedules that can be in a child's best interests.

         5. Child Custody: Visitation: Words and Phrases. An alternating week-on-week-off parenting time schedule requires the child to spend roughly the same amount of time at each parent's residence and allows both parents to exert continuous blocks of parenting time for significant periods of time, and thus meets the statutory definition of joint physical custody.

         6. Child Custody: Visitation. Where a parenting plan effectively establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.

         [303 Neb. 934] 7. Divorce: Child Custody. The Parenting Act authorizes a trial court to award joint custody in dissolution actions if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent.

         8. Courts: Appeal and Error. The doctrine of stare decisis requires that appellate courts adhere to their previous decisions unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so. The doctrine is entitled to great weight, but it does not require courts to blindly perpetuate a prior interpretation of the law if it was clearly incorrect.

         9. Child Custody: Judges. A blanket rule disfavoring joint physical custody is inconsistent with the Parenting Act and unnecessarily constrains the discretion of trial judges in some of the most important and difficult decisions they are called upon to make.

         10. Child Custody. Joint physical custody is neither favored nor disfavored under Nebraska law. In fact, no custody or parenting time arrangement is either favored or disfavored as a matter of law.

         11. ___ . When determining the best interests of the child in deciding custody, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any family or household member; and (5) credible evidence of child abuse or neglect or domestic intimate partner abuse.

         12. Visitation. The Parenting Act provides that the best interests of a child require a parenting plan that provides for a child's safety, emotional growth, health, stability, physical care, and regular school attendance, and which promotes a child's continued contact with his or her families and parents who have shown the ability to act in the child's best interests.

         13. ___ . When determining the allocation of parenting time that is in a child's best interests, a trial court should consider the parties' ability to communicate on issues such as transportation, homework, discipline, medical and dental appointments, and extracurricular activities. Other relevant considerations include stability in the child's routine, mini-malization of contact and conflict between the parents, and the general nature and health of the individual child. The fact that one parent might interfere with the other's relationship with the child is also a factor to consider, but is not a determinative factor.

         [303 Neb. 935] 14. Child Support: Rules of the Supreme Court. The Nebraska Child Support Guidelines require child support orders to address how the parents will provide for the child's health insurance.

         15. ___: ___. Neb. Ct. R. § 4-215(B) of the Nebraska Child Support Guidelines estimates $480 as an ordinary amount of nonreimbursed medical expenses, and that figure is then subsumed within the amount of child support that is ordered. Any nonreimbursed expenses exceeding $480 are prorated between the parties.

         16. ___: ___. Child support payments should generally be set according to the child support guidelines.

          Petition for further review from the Court of Appeals. Pirtle, Riedmann, and Welch, Judges, on appeal thereto from the District Court for Jefferson County, Ricky A. Schreiner. Judge. Judgment of Court of Appeals affirmed in part as modified, and in part reversed and remanded with directions.

          Ronald R. Brackle for appellant.

          Angelica W. McClure, of Kotik & McClure Law, for appellee Mandy S.

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

          Stacy, J.

         In this paternity action, the district court awarded primary legal and physical custody of a minor child to the father and awarded the mother nearly equal parenting time. Child support was calculated using a joint custody worksheet, and the father was ordered to pay monthly support. The father appealed, assigning multiple errors, including that the award of nearly equal parenting time was, in effect, an award of joint physical custody and was an abuse of discretion. The Nebraska Court of Appeals agreed, and it reversed and remanded with directions to modify the mother's parenting time so it was "consistent with an award of primary physical custody" to the father.[1] In [303 Neb. 936] doing so, the Court of Appeals relied on Nebraska precedent holding that joint physical custody is disfavored and should be reserved for rare cases.[2] We granted the mother's petition for further review to reexamine that precedent.[3]

         We now hold that a blanket rule disfavoring joint physical custody is inconsistent with the Parenting Act, [4] which requires that all determinations of custody and parenting time be based on factors affecting the best interests of the child. We thus disapprove of our prior rule disfavoring joint physical custody, and we clarify that Nebraska law neither favors nor disfavors any particular custody arrangement and instead requires all such determinations to be based on the best interests of the child.

         When the custody and parenting time in the instant case are reviewed under this standard, we find no abuse of discretion. We thus reverse the Court of Appeals' determination to the contrary and remand the matter with directions to affirm the judgment of the district court as it regards custody, parenting time, and child support.

         I. FACTS

         Kaaden S. was born to Mandy S. and Jeffery T. in June 2014. The parents did not have a dating relationship either before or after conception. Mandy notified Jeffery of her pregnancy, and Jeffery was at the hospital on the day Kaaden was born.

         In February 2015, the State filed a paternity action against Jeffery in the district court for Jefferson County, including Mandy as a third-party defendant. Jeffery's answer admitted paternity, and he filed a cross-claim against Mandy seeking [303 Neb. 937] joint legal and physical custody of Kaaden and asking that Kaaden's surname be changed. Mandy's responsive pleading admitted Jeffery was Kaaden's father and requested sole legal and physical custody of Kaaden. Genetic testing later confirmed Jeffery was Kaaden's biological father.

         In July 2015, the district court entered an order finding Jeffery was Kaaden's father, but reserved the issues of custody, parenting time, and child support pending further hearing. Approximately 1 year later, when Kaaden was nearly 2 years old, the district court entered an order establishing temporary child support and parenting time. The temporary order allowed Jeffery supervised, nonovernight visits for 60 days and then progressed to give Jeffery parenting time every other weekend and on Wednesday evenings.

         Mandy did not comply with the temporary order and consistently refused to allow Jeffery overnight parenting time with Kaaden. Jeffery sought to have Mandy held in contempt of court for failing to comply with the temporary order, and the contempt matter was set to be taken up at the time of trial.

         Generally, as Jeffery's parenting time with Kaaden increased, the quality of the interaction between Mandy and Jeffery decreased. In November 2016, Jeffery made an audio recording of a particularly contentious interaction with Mandy that occurred during an exchange of Kaaden. In the recording, Mandy can be heard yelling at Jeffery and belittling his attempts to build a relationship with Kaaden. During this interaction, Mandy pepper-sprayed Jeffery in the face and then called police to report she had been assaulted. Jeffery played the recording for the officers, and no arrest was made.

         After this incident, it became even more difficult for Mandy and Jeffery to communicate. Exchanges for parenting time occurred at the sheriff's office, but remained contentious. The parties twice attempted to mediate the issues of custody, parenting time, and child support, but both times, Mandy refused to sit in the same room with Jeffery and no agreement was reached.

         [303 Neb. 938] 1. Trial

         In May 2017, trial was held on the issues of custody and parenting time, child support, and contempt of the temporary order. Jeffery, whose pleadings originally had requested joint custody, sought primary physical custody of Kaaden at trial. He testified that if awarded primary custody, he would support Mandy and Kaaden's relationship and adhere to any parenting time order imposed. He also asked that Kaaden's surname be changed to his surname.

         Mandy testified that she did not think joint custody would work because she and Jeffery did not communicate well, though she thought that would improve once the litigation was concluded. She asked to be awarded sole legal and physical custody of Kaaden and proposed that Jeffery have parenting time every other weekend. She requested continued child support and opposed changing Kaaden's surname. Mandy admitted she had not adhered to the parenting plan under the temporary order, but she testified that Kaaden was scared and did not want to have visits with Jeffery. She said that around the time that Jeffery's parenting time was to increase under the temporary order, Kaaden began exhibiting behavioral problems, so she took him to see a counselor.

         Kaaden's counselor testified at trial. She initially diagnosed Kaaden with "separation trauma and extreme anxiety," but testified he showed significant growth over the 5 months she worked with him. The counselor had no concerns about Mandy as a custodial parent, but offered the opinion that it was best for Kaaden that contact between Mandy and Jeffery be limited. According to the counselor, Mandy had "significant unresolved issues" toward Jeffery, and she recommended Mandy participate in treatment to address it. The counselor had no opinion on the feasibility of joint custody, but did have a recommendation regarding future parenting time. She recommended that after a transition period, Jeffery's parenting time should be "week on, week off . . . until [Kaaden] reaches middle school grade age."

         [303 Neb. 939] Before trial, the court appointed an attorney to serve as the guardian ad litem (GAL) for Kaaden. The GAL attended trial but did not testify. Instead, she was ordered by the court to submit a recommendation and written report, which was received into evidence after trial. No party objected to this procedure before the trial court.

         The GAL's report detailed that she had met with both parties and their counsel, visited Kaaden at both parties' homes, observed exchanges of Kaaden during parenting time, and interviewed more than a dozen people including a nationally recognized expert in the area of parental alienation, members of Mandy's family, and friends and acquaintances of Jeffery. The GAL described the case as "one of the most difficult cases [she had] worked on in 20 years of being appointed as a [GAL]." Her report stated she was "completely confident in making the recommendation that Kaaden's primary physical custody be awarded to . . . Jeffery." The GAL believed that Mandy's "loathing" of Jeffery was harmful to Kaaden and that Mandy's pattern of "parental alienation" was unlikely to change. The GAL expressed the opinion that "it would be in Kaaden's best interests to be in a parent's custody [who] is going to make a good faith effort to work with the other parent and not sabotage Kaaden's relationship with that parent."

         (a) Custody and Parenting Time

         The trial court's order summarized the evidence adduced at trial and generally found that both parents were fit and had formed a good relationship with Kaaden. But the court noted:

The complicating factor in this matter is the lack of a relationship between the parents, both prior to Kaaden's conception and continuing, and the obvious resentment Mandy has towards Jeff[er]y and the situation in which she now finds herself. Mandy testified that she believes Kaaden needs his father in his life and does not believe that Jeffery abuses Kaaden in any fashion, although she . . . appears to do everything she can to limit or monitor Jeff[er]y and Kaaden's relationship. The record reflects [303 Neb. 940] that she has done everything in her power to prevent Jeff[er]y from being a father to Kaaden by contesting and litigating every attempt he has made to do so. Mandy's testimony at trial indicated that while she wanted to be a mother at some point in her life she did not envision it happening in this fashion nor was this part of her plan. That said, it's obvious she loves Kaaden. Her anger towards Jeff[er]y, unfortunately, clouds her judgment regarding what is in Kaaden's best interests at times, especially when it comes to allowing Jeffery to be involved in his life.
Mandy and Jeff[er]y both provide safe and appropriate homes for Kaaden where he enjoys a healthy diet, has a bed to sleep in, and toys and activities to keep him occupied and engaged.
The court has addressed the parties, on the record, during the pendency of this matter. Each time I addressed them I tried to remind them that Kaaden's interests are best served by having both of his parents involved in his life, and tried to encourage Mandy to see past her hurt, fear, and anger and allow Kaaden to have his father in his life. Unfortunately, the report from [the GAL] indicates those words went in one ear and out the other because nothing has changed with her behavior. It appears she is still putting more value on her hate and anger than she is on Kaaden's ability to have a father actively engaged in his life and the benefits of that relationship.
For the reasons stated above, as well as the firm belief that doing so best ensures compliance with the order of custody so that Kaaden can enjoy the full benefits of having both parents involved in his life to the greatest degree possible, the court finds that it is in Kaaden's best interests that primary legal and primary physical custody be awarded to . . . Jeff[er]y . . . subject to liberal parenting time with . . . Mandy ....

         [303 Neb. 941] The decree awarded Jeffery "primary legal and primary physical care, custody and control" of Kaaden, pursuant to a court-created parenting plan. The parenting plan described the custody award as follows:

The father shall have sole legal and physical custody of the minor child and, as such, shall have the legal responsibility and authority to make final decisions concerning the parenting functions necessary to raising the child.
. . . The principal place of residence (physical custody) of the child shall be with the father, (custodial parent) subject to the terms of this Plan.

         The court-created parenting plan provided that after a brief transition period, Mandy and Jeffery would have parenting time in alternating 1-week blocks. Exchanges were to occur each Friday at 6 p.m. at the sheriff's office. The plan addressed holidays and gave each parent 2 uninterrupted weeks of summer parenting time.

         (b) Child Support and Nonreimbursed Health Care Costs

         The court used worksheet 3 of the Nebraska Child Support Guidelines, the joint custody worksheet, to calculate child support, and the completed worksheet was attached to the decree. In allocating the number of overnights for each parent (line 5 on the worksheet), the court attributed 182 days to Mandy and 183 days to Jeffery. Jeffery was ordered to pay child support of $93 per month and to provide health insurance for Kaaden. He was also ordered to pay the first $480 of Kaaden's nonreimbursed reasonable and necessary health care expenses each year, and Mandy was ordered to pay 50 percent of such expenses in excess of $480.

         (c) Name Change, Contempt, and Attorney Fees

         Jeffery's request to change Kaaden's surname was denied. The court found Mandy in willful contempt for failing to comply with the terms of the temporary order and imposed a [303 Neb. 942] sanction of $50, but did not impose a purge plan. Finally, the court declined to award attorney fees and ordered the parties to pay their own fees and costs.

         2. Court of Appeals

         Jeffery appealed, assigning that the district court erred in (1) ordering equal parenting time, (2) calculating child support using the joint custody worksheet, (3) ordering him to pay the first $480 in nonreimbursed health care expenses, (4) refusing to change Kaaden's surname, (5) imposing a nominal fine for Mandy's contempt, and (6) denying his request for attorney fees.

         The Court of Appeals found no merit to the arguments regarding the name change or attorney fees. But it agreed with Jeffery that the district court erred in its determinations regarding parenting time, child support, nonreimbursed health care expenses, and contempt. We summarize the court's reasoning below.

         (a) Custody and Parenting Time

         Before the Court of Appeals, Jeffery claimed the district court's parenting plan was "essentially a Joint Physical Custody Plan, "[5] which he argued was an abuse of discretion. The Court of Appeals agreed. It acknowledged that the district court had awarded primary physical custody to Jeffery, but it concluded that by giving Mandy nearly equal parenting time, the district court effectively imposed "the standard joint physical custody arrangement."[6] In considering whether such an arrangement was an abuse of discretion, the Court of Appeals relied on this court's precedent which holds:

Joint physical custody should 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 [303 Neb. 943] 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.[7]

         The Court of Appeals found that Mandy and Jeffery had "virtually no ability to communicate with each other regarding Kaaden"[8] and concluded it was an abuse of discretion to establish a parenting time schedule that amounted to joint physical custody. It thus affirmed the award of primary legal and physical custody to Jeffery, but reversed the parenting plan and remanded the matter to the district court to implement a parenting time schedule "consistent with an award of primary physical custody to Jeffery."[9] It did not indicate what the parameters of such a plan must be.

         (b) Child Support and Medical Expenses

         Because the matter was being remanded to reduce Mandy's parenting time, the Court of Appeals also found the trial court's use of the joint custody worksheet to calculate child support was in error. It therefore reversed the child support award and remanded the matter for recalculation "using the appropriate worksheet."[10] The Court of Appeals also reversed the provision in the decree requiring Jeffery to pay the first $480 of Kaaden's nonreimbursed health care expenses. It reasoned that children's health care expenses are specifically included in the child support guidelines amount of up to $480 per child per year[11] and that consequently, any nonreimbursed health care costs up to $480 were subsumed within the amount of child support ordered.[12] It directed the trial court, upon [303 Neb. 944] recalculating child support to reflect Mandy's reduced parenting time, to then allocate nonreimbursed health care costs in excess of $480 accordingly.

         (c) Name Change, Contempt, and Attorney Fees

         Although not directly relevant to this petition for further review, we note that the Court of Appeals affirmed the district court's refusal to change Kaaden's surname, affirmed the district court's denial of Jeffery's request for attorney fees, and found that the district court committed plain error with respect to the unconditional sanction imposed for Mandy's contempt. Our opinion on further review does not affect those findings.

         We granted Mandy's petition for further review.


         On further review, Mandy assigns, restated, that the Court of Appeals erred in (1) reversing the parenting plan and remanding the matter with instructions to reduce Mandy's parenting time, (2) finding the record did not support joint physical custody when the district court created a parenting plan that gave Mandy "de facto"[13] joint physical custody, and (3) reversing the child support ...

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