                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STAMP V. STAMP


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  MARA A. STAMP, APPELLANT,
                                                V.

                                  AUSTIN J. STAMP, APPELLEE.


                           Filed September 10, 2019.    No. A-18-586.


       Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Affirmed.
       Heather Swanson Murray, of Swanson Murray Law, L.L.C., for appellant.
       Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       BISHOP, Judge.
        Mara A. Stamp and Austin J. Stamp were married in April 2015; Mara filed a complaint
for dissolution of marriage in September 2016 and simultaneously filed motions for temporary
orders, including a request for an ex parte order granting her immediate custody of the parties’
daughter. Although Mara was granted temporary legal and physical custody of the parties’ child,
following a trial, the Buffalo County District Court entered a decree in May 2018 dissolving the
marriage and awarding the parties joint legal and physical custody of their child. Mara appeals the
custody decision. We affirm.
                                        BACKGROUND
       Mara and Austin have one daughter, Emory Stamp, who was born in 2015. Mara filed for
divorce the following year. In her complaint, Mara asked the district court to award her the care,
custody, and control of Emory. She simultaneously filed a motion for temporary orders, as well as
a motion for an ex parte order to gain custody of Emory “together with restraining orders.” Mara



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claimed in a supporting affidavit that Austin had “an extremely volatile temper,” screamed
profanities at her, told her she was “fat and ugly,” threw plates of food, threw his wedding ring at
a wall so hard it put a hole in the wall, and was abusive to her dog when angry. Mara also alleged
that Austin told her he was going to take Emory from her; she was fearful that Austin would “take
Emory and run off with her, just to get back” at her, “as he knows Emory is the most important
thing in the world to [her].” On the same day Mara’s initial pleadings were filed, the district court
entered an “Ex Parte Order” granting Mara ex parte custody of Emory and restraining Austin from
harassing, molesting or disturbing the peace and quiet of Mara, and further restraining him from
transferring, selling, or otherwise encumbering or destroying any marital property other than as
necessary in the usual course of business or necessaries of life. Eight days later, on September 23,
an attorney entered an appearance on behalf of Austin; an “Answer and Counterclaim” was
subsequently filed in which Austin sought restraining orders against Mara, as well as sought
custody of Emory.
         On October 5, 2016, a hearing took place in which the parties were not present but were
represented by their attorneys. The district court indicated the hearing would proceed “solely on
affidavits, as opposed to live testimony.” Nine affidavits were received subject to foundation and
hearsay objections. The affidavits are contained in our record; in Austin’s affidavit, he requests
custody of Emory “or at a minimum, joint physical custody.” The affidavits reveal that the parties
initially connected through Facebook while they were both living in Norfolk, Nebraska, in the
spring of 2014. They moved in together a month after they started dating, and in August, Mara
purchased a home in which they both resided. By October, they learned Mara was pregnant, and
they were married in April 2015. Each party described various levels of conflict existing in their
marriage, and each party gave examples of erratic behavior by the other person. Mara took a job
in Kearney, Nebraska, in April 2016, and after about 3 weeks, Austin moved to Kearney and
obtained a new job.
         A temporary order was entered in October 2016. It gave Mara temporary legal and physical
custody of Emory, with Austin receiving parenting time every other weekend from Friday at 6
p.m. until Sunday at 5 p.m. Austin was also given parenting time with Emory every Wednesday
from 5 p.m. until 7:30 p.m. Austin was ordered to pay $542 per month in child support, provide
health insurance, and pay 53 percent of unreimbursed health care expenses in excess of $480 per
year, as well as pay 53 percent of daycare expenses. Neither party was excluded from the family
home, but both were restrained from molesting or disturbing each other and from transferring or
otherwise disposing of or encumbering real or personal property except in the usual course of
business or for necessaries of life.
         In February 2017, Austin obtained new counsel, and a pending pretrial conference was
rescheduled to later that year. Trial commenced in January 2018. Mara and Austin were both 27
years old at that time, both were living in Kearney, and Emory was 2½ years old. Mara was
employed as a probation officer with the State of Nebraska; Austin was employed as an electrician.
                                        MARA’S EVIDENCE
       According to Mara, after she and Austin began living together, they fought “quite a bit,”
and Austin demonstrated controlling behaviors such as telling Mara what she could or could not
wear to the gym, or questioning how long it took her to come home from the gym, or inquiries as


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to what she was doing if she stayed at work late. Mara claimed Austin became “emotionally
abusive” towards her, calling her names; for example, if she wore “certain shorts,” he would tell
her she was “a fucking slut,” or a “fucking whore.” Mara testified that Austin would tell her she
was doing the bills wrong, or “would look over [her] phone” or take her phone. She claimed one
night “he threw [her] phone at [her] . . . and said terrible things to [her] because someone had text
messaged [her] when they were intoxicated.” He told her she was a “cheater” and a “fucking slut”
because somebody had messaged her. Mara said these were “red flags” before Emory was born.
She said it began “to get a little physical,” meaning “[p]ushing each other.” Mara also testified
about Austin using steroids before Emory’s birth, but that he stopped when she asked him to stop.
Mara believed that Austin’s aggressive behavior towards her was the result of him taking steroids.
When Emory was born, Austin was present and stayed at the hospital with Mara for 2 days. Emory
subsequently had “RSV twice” and was hospitalized. On one of those occasions, Mara was also
sick and had to leave Emory at the hospital, so Mara’s mother helped care for Emory; Austin
stayed with Mara. The other time Emory was hospitalized, both Mara and Austin stayed with her.
Emory also had to have surgeries for her ears and adenoids; both parents were present for those
surgeries. Mara testified that she was the parent who scheduled appointments for Emory and took
time off work when Emory was ill. She also took care of making daycare arrangements for Emory,
and was the one who dropped Emory off at daycare and picked her up. Mara’s work hours were
“8:00 to 5:00,” while Austin’s hours were more like “7:00 to 6:00” Monday through Friday
because he was working for an electric company in Elgin, Nebraska, at the time.
        After Emory’s birth, Mara made meals, cleaned the house, did the laundry and yardwork;
she indicated this was a source of contention between her and Austin. Mara testified that for the
first 6 weeks following Emory’s birth, Mara was responsible for getting up in the night when
needed; after that, it was “normally” Mara, but “[Austin] would help out.” Also, according to Mara,
it “seemed like we argued about every -- everything.” They would argue about finances, “he
thought I was lying to him about financials.” They also argued “about silly things like cheating,
things like are you talking to somebody else, those kinds of things. Constantly.” When asked who
started the arguments, Mara said “it would vary.” When asked if Austin ever became physical with
her, Mara said, “It started out kind of slow.” The first time Austin was angry with Mara, he told
her he was leaving, took his ring off and threw it at a wall (while in Norfolk). Mara claimed this
“put a hole in the wall.” During that same time, he also “threw a plate of food so hard on the coffee
table the food went everywhere,” and then he left. This occurred before Emory’s birth. Mara said
there was another incident when Emory was several weeks old and Mara was holding her and
feeding her a bottle. Mara testified that she and Austin were “yelling at each other” and Austin
“took the bottle out of [Emory’s] mouth and threw it at the wall.” We note that in Mara’s affidavit
(signed September 30, 2016) offered in support of temporary custody, Mara averred that when she
was holding Emory and feeding her, Austin “ripped her bottle from me and threw it against the
wall.”
        On another occasion while they were still living in Norfolk, Mara said Austin called her an
extremely derogatory name, so she “slapped him and hit him across the face.” She slapped him
with an open hand and “he slapped me right back.” Mara said she was holding Emory when this
happened. Mara said this left “a huge mark” on her face; she left and took Emory with her to a
friend’s house but returned home later because she “wanted it to work . . . I wanted us to be together


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and us to work.” However, she claimed to be scared of Austin. After moving to Kearney, Mara
said Austin’s anger continued but “he never physically touched” her in Kearney. However, the
“name-calling and the degrading got a lot worse.” This caused Mara to start calling her mother or
one of her friends and placing her phone somewhere while she and Austin were arguing “so they
knew [she] was okay” because she “was scared of him.” She instructed her mother and friends to
call 911 if they heard anything suggesting she was being harmed. Mara claimed Austin called her
names daily, things like “you’re fucking fat; you are fucking ugly; you have acne on your face;
your face is ugly, things more degrading about the way [she] looked.” Mara said she would call
Austin names, but she did not degrade him the same way. Mara also claimed the name-calling
occurred in front of Emory.
        Mara testified that the main source of conflict between Austin and her was his steroid use.
But they would also argue about when she needed help or about dividing household chores; she
said Austin was also very insecure about Mara cheating on him. As to Austin’s steroid use, she
last saw him inject himself right before she filed for divorce, which was when he started using
them again and they were arguing. Mara admitted to using steroids herself after they were married
and had Emory and were living in Norfolk. She “felt fat, [she] felt ugly,” so she started using a
steroid that helps women “lose weight and get lean.” Mara said she quit using the steroid after
about a month because she noticed “effects” such as being “irritable” and she was not seeing that
she “was changing at all, not the way [Austin] does anyways.” She claimed she did not discuss
steroid use at the time of the temporary hearing “[b]ecause [she] was scared of him.” Mara said
Austin threatened “to take [her] job from [her] because of it.” Austin denied making any threats,
but did acknowledge telling her it would not look good for a probation officer to have taken
steroids or be living in a household with steroids in it. According to Austin, Mara asked him to
keep the use of steroids quiet after they separated. Mara testified that she was disclosing the
information at trial because she wanted the court to “know what [Austin] is doing and that it is in
the best interest of [Emory] to not be around that.” Austin testified that he last used steroids in
December 2016.
        Mara described another incident that took place after she filed for divorce (September
2016) but before the temporary order was entered (October). She said that she and Austin were
sleeping in different bedrooms “and we argued often about our divorce stuff and custody and all
that. He was trying to get back together with me.” She had locked her bedroom door, but Austin
would “pop the lock and come in.” On one occasion, he tried to have sex with her, but after “three
tries he finally left the room.” Austin acknowledged trying to be sexual with Mara, but she did not
want to, so he did not keep trying nor did he force himself upon her. Mara also testified that during
that same timeframe, Austin “tried to take Emory after work one day up to Elgin, and [she] told
him he could not.” She said she had an ex parte order, “and so [she] had to call the police.”
        Mara testified about Austin and herself dating other people during the pendency of their
case. Mara had one individual stay with her for a couple months; they were dating and she
introduced him to Emory. Mara claimed Emory would have only seen them at dinnertime together
or watching television or playing together; if she saw “anything affectionate between us, it would
have been, like, a hug.”
        Mara indicated she was aware that Austin was asking for joint custody, and when asked if
she believed that was in Emory’s best interest, Mara responded, “Absolutely not.” She explained


                                                -4-
that she had been “the primary parent since the moment [Emory] was born.” Mara said she had
“done everything . . . taken [Emory] to the doctor . . . taken vacations, sick days for her.”
         On cross-examination, Mara acknowledged that she made comments about Austin’s
height, but that she was joking. (Austin testified that he was sensitive about his height.) She
testified that she told Austin that she had slept with his best friend, but that was “after he told me
he slept with mine.” Mara said that she and Austin had talked about informing each other if either
of them “got serious with somebody,” but there was “no written agreement or anything like that.”
Mara did introduce Emory to a boyfriend she started dating in March of 2017; he started staying
with Mara in July. She did not inform Austin about this boyfriend before introducing Emory to
him, nor did she tell Austin that he was living with her. The relationship lasted until the beginning
of October. At the time of trial, Mara was in a different relationship with someone she had been
seeing for about 2 months. This boyfriend also stayed the night when Emory was present,
beginning 3 to 4 weeks before trial; Mara had not notified Austin about this boyfriend being around
Mara.
         As to whether arguments with Austin had decreased since she filed for divorce, Mara said,
“It’s very sporadic. There are months where we get along and then there are months where we
don’t get along.” But she agreed that she and Austin had been good to one another for the “time
being,” and it was possible for them to get along “[a]t times, yes.” She agreed that Austin had a
beneficial relationship with Emory, but she wanted the parenting time to “remain the way it is right
now.” Mara noted that she and Austin had spent time together with Emory since she filed for
divorce, such as going to the park with her, taking her trick-or-treating on Halloween, carving
pumpkins, going out for ice cream together, and sometimes having dinner at Mara’s house. They
also agreed to file joint tax returns for 2016. Mara stated, “I think it’s possible for us to get along
regarding [Emory], however, I think it’s in her best interests to remain with me.”
         Mara did not support joint physical or legal custody because she and Austin “do not get
along well enough for a long enough amount of time to make that work, as well as [Emory] has
been very, very accustomed to what she has been doing in the last 2 1/2 years of her life.” Mara
believed that to change that “would be absolutely detrimental to [Emory], absolutely.”
         A licensed independent mental health practitioner (counselor) testified. She began seeing
Mara in March 2016, saw her for a period of about 4 to 5 months, then saw her once in 2017, and
again “recently.” Austin participated in two sessions with Mara. The focus of the counseling when
Mara first came in was to work on the marriage, communication, and coping skills. During the two
sessions Austin was present, Mara expressed concerns about “[a]nger issues and verbal
name-calling.” According to the counselor, Austin acknowledged engaging in that behavior, and
after two sessions, he declined to continue. On cross-examination, the counselor could not recall
whether Austin expressed any concerns about Mara being verbally or physically abusive with him.
The counselor testified that both parties expressed having difficulty communicating with one
another and that it was an issue they needed to work on.
         A 23-year-old friend of Mara’s testified that she knew Mara her “whole life.” She spoke
about Mara being a “great mom.” The friend also testified that Mara and Emory came to her house
after Mara had an argument with Austin and the friend observed a red handprint on Mara’s left
cheek. Mara stayed “two hours, and then she went back home because she wanted to work things
out.”


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         The owner of a daycare facility testified; Emory had attended the daycare “for quite a long
time.” According to the owner, Mara dropped Emory off in the morning and Mara picked her up
in the evening. She testified that Emory is “very smart,” a “very good girl,” and is “extremely
excited” when Mara picks her up.
         A juvenile probation officer who had worked with Mara for 2 years (Mara was her mentor)
stated they had “remained best friends for the last three years.” The colleague testified that Mara
“was very respected in our office.”
         Mara’s mother testified that Austin “did help in the beginning.” He changed diapers and
they (Mara and Austin) “did a lot of stuff together in the beginning.” She discussed going to
Emory’s medical appointments, and she testified about receiving telephone calls from Mara “at
least five times” when Mara and Austin were fighting. She could hear Austin calling Mara names,
but she did not ever call the police. She explained that since she was there on the telephone, she
knew “if there was something, if he physically hurt her, [she] would get ahold of the cops.” Mara’s
mother could not recall whether Mara called Austin any names. She discussed the time Mara and
Austin lived with her for about a month before they moved into their Kearney home. After they
moved out, Mara called her and asked her to bring a suitcase that Austin had left in a closet; without
being asked to do so, Mara’s mother looked in the suitcase and saw syringes and vials, but she
“did not read” what was contained in the vials.
         A Kearney police officer testified about an incident report he prepared on September 22,
2016. He said it was a “disturbance . . . they were having some type of relationship issues and there
was an argument involved; however, . . . we didn’t uncover anything criminal.” There was no
assault that took place; it “was just a simple disturbance. We get a lot of calls like that.” There was
no reason to make any arrest or issue a citation.
                                        AUSTIN’S EVIDENCE
         Austin’s “boss” from his employment at the time of trial testified that Austin had been a
foreman with the company for about 4 months, and he was “a good employee.” Typical work hours
for the job are 7 a.m. to 4:30 p.m. Those hours are flexible, and the boss testified that Austin could
start work later on weeks he had his daughter, and that the company would also make sure Austin
did not have any overnight assignments during those periods.
         Another witness, the owner of a business in Elgin, testified that he had been friends “of the
family” for quite a few years and also that Austin had worked for him as a foreman electrician
when Austin was living in Norfolk. The business owner would see Emory with Austin at Austin’s
parents’ house, as well as at high school basketball games, volleyball games, and in church. He
observed Emory to always seem happy and Austin “always seemed very attentive to what she was
needing. It was a good relationship.” He recalled Austin taking time off from work when Emory
was born, as well as when she was in the hospital with “RSV.” He recalled a time when Mara
called Austin because she needed Austin to leave work and pick Emory up from daycare because
she had a fever and Mara could not pick her up, and Austin did so.
         Austin’s sister testified that when the parties were living in Norfolk, she was there several
nights during the week to help care for Emory “when they would want to go work out or go out
for dinner or [she] would just go over there to hang out with all of them.” She described Austin as
being “very involved” with parenting Emory. She witnessed Austin “help with feeding her, with


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changing her diapers, giving her baths, helping with bedtime routine.” She also observed Austin
“help out around the house with dishes or laundry or just cleaning up after Emory.” Based on what
she saw, the sister believed Mara and Austin split parenting duties “very evenly.” She “could tell
that Emory loved her mom very much and that they were close,” and Austin and Emory “are very
loving towards each other . . . always laughing and giving each other hugs and kisses . . . you can
tell that they are very close.” She said “you can tell Emory loves her dad very much.” The sister
claimed that Mara made derogatory statements about Austin, such as how he did not help enough
around the house or with Emory, and that Mara would use Emory’s hand to point at Austin “and
say he was a bad dad.” Austin’s mother also testified that Mara would take Emory’s finger and
point and say, “‘Emory, can you say bad dad, he’s a bad dad. . . . We don’t need no men in our
lives.’” On another occasion at Austin’s parents’ house in Elgin, Mara said that “Emory is the
princess, Mara is the queen and Daddy is the peasant, and they didn’t need dad in their life.”
         Austin’s aunt testified that Austin and Emory “have a very good relationship. She loves
her father and he loves her. And they do a lot of stuff together and he’s a great father.” She said
Austin reads to Emory, they watch movies, and they play games. If Emory “throws a tantrum or
cries, [Austin] will just calmly tell her why she can’t do that. He’s very calm with her and rational.”
When the family gathers in Elgin, the aunt testified that Austin takes care of Emory’s needs; she
had no concerns about Austin’s parenting of Emory.
         Austin’s mother testified about Mara and Austin parenting Emory together when they lived
in Norfolk. She recounted an incident in September 2016 when Austin was planning to bring
Emory for a visit in Elgin. However, she received a telephone call from Mara who was “very
hysterical, screaming that I better tell my son to take her daughter back home.” She told Austin’s
mother, “[Y]ou know what a good mother I am. You are such a bitch. You better tell your son to
get her back or he’s going to be arrested, and something to the effect of me not seeing Emory
anymore.” Mara testified on rebuttal that she did call Austin’s mother a “bitch,” but that she was
very upset because she had “never been away from [her] daughter like that, especially without
notice.” Austin’s mother said that family is very important to Austin; Emory has three
great-grandparents in the Elgin, Clearwater area, so Austin brings Emory home so she can get to
know her relatives and “spend family dinners together.” She described various activities Austin
engaged in with Emory whether in Elgin or in Kearney, such as playing hide and seek, going on
walks, going to the park, taking her swimming at the local pool, and going to museums. She also
described the many parental duties she observed Austin do with Emory, such as working on
potty-training, getting her dressed, changing diapers, combing her hair, and bathing her. If Emory
gets angry, Austin “talks to her and calms her down.” Austin’s mother described Austin’s
relationship with Emory as “[a]mazing. . . . [v]ery loving.” According to Austin’s mother, in June
2017, during a parenting transition, she was involved in the transition because Austin had “guard
duty” and was not able to get her. At that time, Mara said that she and Austin were getting along
“remarkably well. They have no problems.” Mara contradicted this in rebuttal testimony; Mara
said that she and Austin got along sporadically during the pendency of the case.
         Austin testified about the flexibility of his employment as an electrician with regard to
setting work hours to accommodate his parenting time with Emory. If he could have Emory for a
week at a time, he would work Monday through Friday from 8 a.m. to 5 p.m., and then he could
make up time if necessary on the weeks he did not have Emory. Austin is also in the Army National


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Guard; he enlisted in 2011 for a 6-year period, and then recently reenlisted for another 6 years.
Austin talked about being present for Emory’s birth, and doing everything “50/50” with Mara.
Austin acknowledged that when they lived in Norfolk, Mara primarily took Emory to the daycare
and picked her up after work, but there were times that Mara would ask Austin to get off work
early to go get Emory. When Emory was sick with “RSV” and Mara told him she was in the
emergency room, Austin was in Spalding, Nebraska. He and another worker packed up and drove
an hour to Elgin, and then Austin drove another 40 minutes to Norfolk. Austin described numerous
activities he and Emory do when together, as well as things they do with other relatives. Austin
said his family “is very, very close,” and that he loves seeing his parents and family. “Everyone
loves being together.” Austin gave a number of examples of Mara not being flexible with parenting
time when Austin would ask for some additional time, such as when his sister from Colorado was
in town, as well as other times when Mara would respond that she already had plans, or that he
was welcome to meet them at the park, or she would tell him, “‘You get her Wednesday.’”
        It was Austin’s belief that he and Mara were able to get along and make decisions together,
and that they were able to communicate with each other regarding Emory. Austin admitted that
some of his and Mara’s behaviors during the marriage were a little immature, but that the two of
them had grown up since then. He acknowledged that he called Mara names, and that she called
him names, too, such as “fucker,” “asshole, dick, anything along [those] lines.” Austin disagreed
that he had been physically abusive towards Mara. He acknowledged there was one time in the
closet when Mara slapped him and kept hitting him, so he held her by both arms against the wall
and told her to stop. He said Mara hit him three to four other times with her fist; this was in 2016
before they moved to Kearney. He denied slapping Mara while she was holding Emory, and he
denied slapping Mara after Mara slapped him. He also denied taking a bottle out of Emory’s hand
and throwing it against a wall.
        As for counseling, Austin only went two times because when they talked about things to
work on to help the relationship, Mara was not willing to work on them. He gave as an example
that Mara would talk to her mother about their sexual relationship, and it was “obviously awkward”
to know “that is being told to her mother, and then you go over there to hang out.” Other than
parenting time, Austin said there had not been “much at all” that he and Mara were unable to agree
upon.
                                              DECREE
        A dissolution decree was entered on May 2, 2018. The district court made findings,
detailing many of the facts set forth above, including the allegations of degrading comments,
slapping (by both parties), and other favorable and unfavorable behaviors by each party. The court
concluded there was “no evidence of child abuse or neglect. There is anecdotal evidence of verbal
and some limited physical aggression between the parties when Emory was present, but there was
no evidence that Emory has in any way been injured physically or emotionally.” The decree goes
on to state:
                Mara characterizes at least some of the earlier disputes between the parties as being
        physical abuse. By her own admission, however, any such physical abuse occurred before
        the parties moved to Kearney in May of 2016. Both parties have exchanged name calling,
        insults, and suggestions that each has cheated on the other, purposely to injure the other


                                                -8-
       emotionally. Both parties demonstrate an immaturity and pettiness in their contacts with
       each other which, though concerning, do not suggest that they will be unable to make
       decisions or determinations with regard to their child’s welfare. There have been no
       disputes of any significance between the parties about Emory’s care, discipline, medical
       treatment, and growth.

        The district court expressed concern about Austin’s use of steroids, and noted that both
parties admitted to taking steroids during the course of their relationship. The court observed that
although Austin claimed to have stopped using steroids in December 2016, there was some
evidence suggesting more recent use. However, the court concluded that there was no evidence of
“side effects displaying themselves within the last year.” The district court found the disputes
between the parties to be “generally minor in nature” and “[w]hile the parties’ communication with
each other through text and otherwise reveals occasional immature and emotional flare-ups, the
parties . . . generally appear to communicate effectively concerning the child and the child’s
needs.” The court acknowledged both parties having “warm and supportive” environments, and
both parties’ “support systems revolve around their families.” As to joint custody, the court stated:
                While Mara suggests that, in her opinion, there is no way the parties could make
        joint physical custody work, the Court disagrees. Exchange of the child every week, at least
        until the child is in middle school, would, in the Court’s opinion be in the child’s best
        interest. It is clear that this will require cooperation, trust, some sacrifice, accommodation,
        empathy, and a change in priorities for both parties. Emory’s needs, life, experience,
        education and happiness must be the first priority for both parents over work, body
        building, hunting, or the social life of either. There must, however, be no suggestion of any
        continued use of anabolic steroids. The Court will, in essence, adopt Austin’s Parenting
        Plan but add provisions prohibiting the possession or use by either party of controlled
        substances to include anabolic steroids, and imposing severe consequences in the event
        such possession or use occurs. The Court has included what it believes are sufficient
        protections in its proposed Parenting Plan.

       In the Parenting Plan, the district court provided a section entitled, “Additional Security
Provisions.” It contains a paragraph prohibiting both parents from possessing or consuming
nonprescription controlled drugs “to include anabolic steroids or human growth hormone
regardless of whether the child Emory is in their immediate custody or control. The use or
possession of same, as may be established at hearing, may be grounds for loss of joint physical
and legal custody.”
                         MOTION FOR NEW TRIAL OR TO ALTER OR AMEND
         Mara filed a “Motion for New Trial and/or Motion to Alter or Amend,” and Austin filed a
“Motion to Alter or Amend Dissolution Decree.” The district court heard arguments from the
parties’ attorneys, including an argument by Mara’s attorney that the court erred by failing to find
credible evidence of domestic violence pursuant to Neb. Rev. Stat. § 43-2923 (Reissue 2016), and
that the court did not make a specific finding of joint custody being in Emory’s best interests. The
district court stated that with regard to joint custody, the court had “considered everything,” and


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“made a general determination of fact that . . . the most appropriate thing under the circumstances
was joint custody with the facts and the information that I had at the time, and that that was in the
best interests of the child.” The court went on to state:
                Yes, there was evidence clearly that both parties probably were responsible for
        some acts that could be declared as violent, but those have been considerably in the past.
        And in essence, the question is whether the parties with joint custody as opposed to living
        with each other would create an ongoing danger of one or the other. Frankly, the Court
        didn’t find that that was the circumstances that existed, at least under the evidence it
        received.
                ....
                . . . This has been a long, emotional, vindictive and, quite frankly, embarrassing
        dissolution action or at least it should be for both sides. You both behaved like a couple of
        children in this case.
                What I attempted to do in my order was at least reach a resolution that sounded fair
        and sounded as though it would probably create for the child a result that would be in the
        child’s best interests. The child has bonded clearly to both families and both parents. The
        parties live in the same town, they ought to be able to split this child’s physical custody
        evenly and do [] so in a civil manner.

        In an order entered May 24, 2018, the district court concluded Mara’s motion for new trial
based on newly discovered evidence was “essentially frivolous” and should be denied. The court
also found no merit to either party’s request to alter or amend the decree.
        Mara timely appealed.
                                   ASSIGNMENTS OF ERROR
        Mara claims, consolidated and restated, that the district court erred by (1) not making
specific findings that joint physical custody was in the child’s best interests and awarding joint
legal and physical custody, and (2) failing to find credible evidence of domestic abuse by Austin
against Mara, and failing to make written findings as required by Neb. Rev. Stat. § 43-2932
(Reissue 2016).
                                    STANDARD OF REVIEW
        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. Donald v. Donald, 296 Neb. 123,
892 N.W.2d 100 (2017).
        An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
        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




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observed the witnesses and accepted one version of the facts rather than another. Schrag v. Spear,
290 Neb. 98, 858 N.W.2d 865 (2015).
                                             ANALYSIS
                         AWARD OF JOINT LEGAL AND PHYSICAL CUSTODY
        Mara assigns as error that the district court failed to make specific findings that joint
custody was in Emory’s best interests, and that the evidence at trial proved that a joint legal and
physical custody arrangement was not in Emory’s best interests.
        Nebraska’s Parenting Act defines joint legal custody as “mutual authority and
responsibility of the parents for making fundamental decisions regarding the child’s welfare,
including choices regarding education and health.” Neb. Rev. Stat. § 43-2922(11) (Reissue 2016).
Joint physical custody is defined as “mutual authority and responsibility of the parents regarding
the child’s place of residence and the exertion of continuous blocks of parenting time by both
parents over the child for significant periods of time.” § 43-2922(12). The paramount consideration
in determining child custody is the best interests of the children. Donald v. Donald, supra.
        A court may order joint custody “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.” Neb. Rev. Stat. § 42-364(3)(b) (Reissue
2016). In determining custody, § 43-2923 states, in pertinent part:
                 (6) In determining custody and parenting arrangements, the court shall consider the
        best interests of the minor child, which shall include, but not be limited to, consideration
        of the foregoing factors and:
                 (a) The relationship of the minor child to each parent prior to the commencement
        of the action or any subsequent hearing;
                 (b) The desires and wishes of the minor child, if of an age of comprehension but
        regardless of chronological age, when such desires and wishes are based on sound
        reasoning;
                 (c) The general health, welfare, and social behavior of the minor child;
                 (d) Credible evidence of abuse inflicted on any family or household member. . . .
        and
                 (e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.

        Other pertinent factors include the moral fitness of the child’s parents, including sexual
conduct; respective environments offered by each parent; the age, sex, and health of the child and
parents; the effect on the child as a result of continuing or disrupting an existing relationship; the
attitude and stability of each parent’s character; and parental capacity to provide physical care and
satisfy educational needs of the child. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
        We first address Mara’s claim that the district court failed to make specific findings that
joint custody was in Emory’s best interests. As previously set forth, the decree does specifically
state that the “[e]xchange of the child every week, at least until the child is in middle school, would,
in the Court’s opinion be in the child’s best interest.” Although this reference can be construed as
meaning joint physical custody, there is no specific reference to joint legal custody. However,
when this issue was raised at the hearing on the motions for new trial or to alter or amend, the


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district court stated that with regard to joint custody, the court had “considered everything,” and
“made a general determination of fact that . . . the most appropriate thing under the circumstances
was joint custody with the facts and the information that I had at the time, and that that was in the
best interests of the child.” It is clear that the court concluded joint legal and physical custody of
the child was in Emory’s best interests.
         As to Mara’s argument that “the evidence is clear that joint legal and physical custody was
not and is not in [Emory’s] best interests,” brief for appellant at 11, we cannot agree that the
evidence was so clearly against the court’s determination that it constitutes an abuse of discretion.
Mara’s primary argument is that she was the “primary caretaker for [Emory’s] entire life,” and
was the “parent responsible for the majority of parental functions within the home.” Id. While the
evidence supports that Mara did in fact assume primary responsibility for taking Emory to daycare
and picking her up, as well as primary responsibility for getting Emory to various medical
appointments, there is also evidence that this was an arrangement agreed upon by the parties in
light of their respective work schedules and the availability of vacation or sick leave at their places
of employment. There is considerable evidence that both parties engaged in hands-on parenting
while Emory was in their care, as well as evidence that each had a loving relationship with her.
There was also evidence that Austin obtained employment which would allow him flexibility in
his scheduling during any parenting time he would have with Emory. Based on the evidence in the
record before us, we cannot say the district court abused its discretion by awarding joint legal and
physical custody.
                             DOMESTIC ABUSE AND WRITTEN FINDINGS
        Mara contends that there was credible evidence of domestic abuse by Austin against her.
She claims that § 43-2932 “imposes several obligations upon a court” when domestic intimate
partner abuse is established by a preponderance of the evidence. Brief for appellant at 20.
        Section 43-2932 states in relevant part:
                 (1) When the court is required to develop a parenting plan:
                 (a) If a preponderance of the evidence demonstrates, the court shall determine
        whether a parent who would otherwise be allocated custody, parenting time, visitation, or
        other access to the child under a parenting plan:
                 (i) Has committed child abuse or neglect;
                 (ii) Has committed child abandonment under section 28-705;
                 (iii) Has committed domestic intimate partner abuse; or
                 (iv) Has interfered persistently with the other parent’s access to the child, except in
        the case . . . ; and
                 (b) If a parent is found to have engaged in any activity specified by subdivision
        (1)(a) of this section, limits shall be imposed that are reasonably calculated to protect the
        child or child’s parent from harm. . . .
                 ....
                 (3) If a parent is found to have engaged in any activity specified in subsection (1)
        of this section, the court shall not order legal or physical custody to be given to that parent
        without making special written findings that the child and other parent can be adequately
        protected from harm by such limits as it may impose under such subsection. The parent


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       found to have engaged in the behavior specified in subsection (1) of this section has the
       burden of proving that legal or physical custody, parenting time, visitation, or other access
       to that parent will not endanger the child or the other parent.

         When a parent’s commission of one of the listed actions in § 43-2932 is established by a
preponderance of the evidence, the court must make a determination to that effect. See Flores v.
Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). Such a finding, in turn, obligates the
court to impose any necessary limitations on custody, parenting time, and visitation and to make
specific written findings prior to awarding legal or physical custody to the parent who committed
the listed action. Id.
         In Flores v. Flores-Guerrero, supra, a district court awarded joint physical custody in a
modification action without making written findings regarding the father’s conviction for third
degree domestic assault against the mother of the children at issue. The Nebraska Supreme Court
held that it was an abuse of discretion for the district court to make a custody determination without
complying with § 43-2932 since the greater weight of the evidence in that case demonstrated that
the father had committed domestic intimate partner abuse. The district court had received certified
copies of an order sentencing the father to probation for his conviction for third degree domestic
assault, a conviction affirmed by this court on appeal.
         It is evident that § 43-2932 is designed to protect a child and/or a child’s parent from
potential harm by the other parent as a result of that other parent’s past harmful conduct. The
statute specifically tasks the court, when developing a parenting plan, to impose any necessary
conditions on custody, parenting time, or other access, so that the child and parent can be
adequately protected from harm by the other parent. Mara also argues that § 43-2923(6)
(previously set forth above) makes evidence of domestic intimate partner abuse relevant to the
court’s determination of custody and a parenting plan.
         In the case before us, the district court did in fact address the evidence of physical abuse in
which both parties engaged. The court concluded there was “no evidence of child abuse or
neglect.” It noted that there was anecdotal evidence of verbal and some limited physical aggression
between the parties when Emory was present, “but there was no evidence that Emory had in any
way been injured physically or emotionally.” The decree went on to state that while Mara
characterized some of the earlier disputes between the parties as being physical abuse, by her own
admission, any such physical abuse occurred before the parties moved to Kearney in May of 2016.
And while both parties engaged in name calling, insults, and suggestions that each has cheated on
the other, purposely to injure the other emotionally, the court considered this conduct to
demonstrate an immaturity and pettiness in their contacts with each other which, “though
concerning, do not suggest that they will be unable to make decisions or determinations with regard
to their child’s welfare.” The court was more concerned about Austin’s use of steroids, and because
of this concern, the court included a specific paragraph to address it in the Parenting Plan under a
section entitled, “Additional Security Provisions.” That paragraph prohibited both parents from
possessing or consuming nonprescription controlled drugs, to include steroids.
         This court’s de novo review of the record does not reveal any evidence to establish a nexus
between any negative past conduct by Austin and his parenting of Emory. Nor does the record
reveal any nexus between such past conduct and Austin’s ability to coparent with Mara. And to


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the extent there were concerns about steroid use, the district court made specific findings about
that issue and included a safety measure in the parenting plan. The record supports that the district
court considered Emory’s best interests, including the requirements of § 43-2932 and the factors
set forth in § 43-2923(6), when making its joint custody decision.
                                          CONCLUSION
       Finding no abuse of discretion by the district court in ordering joint legal and physical
custody, we affirm the dissolution decree.
                                                                                      AFFIRMED.




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