                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          ERIN T. V. KIP T.


  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).


                                        ERIN T., APPELLANT,
                                                  V.

                                          KIP T., APPELLEE.


                              Filed March 10, 2020.     No. A-19-491.


        Appeal from the District Court for Otoe County: JULIE D. SMITH, Judge. Affirmed in part,
and in part remanded with directions.
       Michael Ziskey, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O., for
appellant.
       Matthew Stuart Higgins, of Higgins Law, for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       BISHOP, Judge.
                                        I. INTRODUCTION
        In this dissolution action, the Otoe County District Court awarded Erin T. and Kip T. joint
legal custody of three of their children, with Kip being awarded physical custody of those children
subject to Erin’s reasonable rights of parenting time; Erin was awarded legal and physical custody
of a fourth child. Erin was ordered to pay child support. She appeals, challenging the district court’s
decision to award physical custody of three of the children to Kip, the amount of parenting time
awarded to her, the court’s calculation of child support, and the court’s division of the marital
estate. We affirm the decree, but remand with directions to modify Erin’s child support obligation
consistent with this opinion.




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                               II. PROCEDURAL BACKGROUND
         Erin and Kip were married in 2008, and they have four children: Skylar T. (born 2001),
Madisen T. (born 2002), Saralynn T. (born 2005), and Larry T. (born 2009). Erin’s previous
husband is the biological father of the three older children, but they were all adopted by Kip in
2010.
         Erin (35 years old at the time) filed for divorce in August 2017, and asked for temporary
and permanent legal and physical custody of the children. Kip (43 years old at the time) responded,
also seeking temporary and permanent legal and physical custody of the children. Both parties
were residing at the same address in Palmyra, Nebraska, which was Kip’s premarital property.
         Both parties filed motions for temporary relief. The district court entered a temporary order
on November 8, 2017, awarding Erin legal and physical custody of all four children. The temporary
order awarded Kip parenting time every other weekend from Friday at 6 p.m. until Sunday at 6
p.m. Kip was ordered to pay child support in the amount of $1,686 per month commencing
November 1. Additionally, the court noted Erin’s intention to move to Ashland, Nebraska, but the
court ordered that the children remain enrolled in the Palmyra school district for the remainder of
the school year. Both parties filed motions to reconsider the temporary order: Erin requested the
court reconsider its ruling requiring the children to remain in the Palmyra school district for the
remainder of the school year, requiring her to transport the children to and from Kip’s home, and
requiring all four children to attend parenting time with Kip; Kip asked the court to reconsider the
temporary child support entered, alleging the calculation overstated his income. Kip also filed a
motion for an order to show cause, alleging that Erin was in contempt for enrolling the children in
Ashland Public Schools, and he filed a motion to establish holiday parenting time and telephone
calls. In its modified temporary orders filed on November 21 and December 1, the court: set forth
a parenting time schedule for Thanksgiving and Christmas; awarded Kip the right to electronically
communicate with his children for up to 30 minutes each day; ordered parenting time exchanges
to occur at the Casey’s store in Palmyra; stated that Skylar, Madisen, and Saralynn “shall be
encouraged to attend all visitation with [Kip], but shall not be required to attend such visitation”
except that “all minor children shall attend the holiday visitation . . . regardless of their stated
preferences, unless [Kip] declines to exercise some portion of that visitation”; removed that
portion of the temporary order requiring the children to remain enrolled in the Palmyra school
district and stated that Erin “may continue with the children enrolled in the Ashland Public
Schools”; and modified Kip’s temporary child support obligation to $1,416 per month
commencing November 1.
         Trial took place on January 31 and March 1, 2019. We will discuss the trial evidence in
our analysis where it is relevant to the errors assigned. However, we will note that at the time of
trial, Kip was no longer asking for custody of or parenting time with Skylar. A decree dissolving
the marriage was entered by the district court on April 27. Erin’s motion for new trial was denied.
         Relevant to this appeal, the district court awarded Erin sole legal and physical custody of
Skylar (17 years old at the time). The court awarded the parties joint legal custody of Madisen (16
years old), Saralynn (13 years old), and Larry (9 years old), but to the extent there was any
disagreement about the children’s religious upbringing, Erin was to have final authority. Kip was




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awarded sole physical custody of Madisen, Saralynn, and Larry, subject to Erin’s reasonable rights
of parenting time. The court developed a parenting plan which was attached to and incorporated
in the decree. Pursuant to the parenting plan, Erin was to have parenting time with Madisen,
Saralynn, and Larry every other weekend from Friday at 5 p.m. until Sunday at 8 p.m. during the
school year, and alternating weeks during the summer; a holiday parenting time schedule was also
established. Kip was not to have any parenting time with Skylar unless agreed upon by the parties
or Skylar.
        The district court ordered Erin to pay Kip child support in the amount of $278 per month
when there are four children (based on split custody), $745 per month when there are three
children, $666 per month when there are two children, and then $506 per month when there is one
child. Kip was ordered to provide health insurance for the dependent minor children. The court
valued and distributed the parties’ assets and debts, and it specifically stated that no cash
equalization payment was awarded in this case.
        Erin appeals.
                                III. ASSIGNMENTS OF ERROR
         Erin assigns, summarized and reordered, that the district court abused its discretion by (1)
awarding sole physical custody of Madisen, Saralynn, and Larry to Kip; (2) not awarding her
reasonable parenting time; (3) miscalculating Kip’s retirement and health insurance deductions in
its child support calculation; and (4) not making an equitable division of the marital estate.
                                  IV. 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).
        Parenting time determinations are also matters initially entrusted to the discretion of the
trial court, and although reviewed de novo on the record, the trial court’s determination will
normally be affirmed absent an abuse of discretion. Aguilar v. Schulte, 22 Neb. App. 80, 848
N.W.2d 644 (2014).
        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).
        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. Donald v. Donald, supra.
                                          V. ANALYSIS
                                1. CUSTODY AND PARENTING TIME
      Erin argues the district court abused its discretion when it awarded physical custody of
Madisen, Saralynn, and Larry to Kip. She also argues the court did not award her reasonable



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parenting time. Kip contends that the court’s finding that Erin engaged in “parental alienation
tactics” and did not encourage or require the girls to attend parenting time with Kip “is well
supported by the evidence.” Brief for appellee at 26. We agree with Kip, and set forth relevant
portions of the evidence below.
                                        (a) Evidence at Trial
         Erin testified that Kip used to be good to the older children until they had Larry, but when
Larry got “old enough,” “things really started changing.” Kip played favorites with Larry, and
treated him differently than the other children. (In response, Kip testified that when Larry was
born, Erin said, “‘I got my three. This one’s yours.’”) According to Erin, Kip was not really
involved in parenting the children when they lived together. She “did all of the doctors’
appointments, dentist appointments, getting Sky’s meds, [and] taking him to the psych
appointments.” She was also the one who had to discipline the three older children. Kip testified
that he was the one who cared for Larry and took him to doctor’s appointments. As for the other
three children, he attended all the doctor and dentist appointments he could when he was not
working, and he attended school functions.
         Erin testified that Skylar and Madisen have Asperger’s syndrome, “which is under the . . .
autism spectrum disorder.” Erin stated that Skylar and Kip “like to fight a lot.” Skylar “can’t really
communicate effective [sic] why he’s angry,” “used to have angry outbursts when Kip would call
him a moron or tell him he should have never adopted him”; “all [Skylar] wanted was a dad that
actually cared about him, not made fun of him.” When the girls got older, “things started changing”
with them too. Erin said she would wake to yelling and screaming between Kip and Madisen, and
fighting between Skylar and Kip. She said that when Saralynn got to “be double digits,” Kip
“started in on her.” According to Erin, Kip would use vulgarities and swear often in front of the
children, “would call them F tard, all kinds of names,” and he used to call Madisen a slut, would
make fun of her hair, and tell her she was fat. Kip denied ever calling Madisen a slut; he was not
asked about the remainder of Erin’s testimony above.
         Erin’s brother testified that Kip used to “treat the kids pretty good” and would show up to
family functions and made an attempt to get to know Erin’s family. However, when Larry was
about 1 year old, thing started to change; Kip stopped coming to family functions. Around that
time, Erin’s brother had concerns about Kip’s behavior around the children and “Erin being
noticeably distressed about what’s going on in the house.” He recalled that when Skylar was 11 or
12, Kip called Skylar a “F’ing moron, F’ing retard.” And after Erin and Kip separated, Erin’s
brother overheard a speakerphone call between Kip and Skylar wherein Skylar was telling Kip
about a doctor’s visit and his thyroid symptoms and Kip’s response was “something along the lines
of,” “‘Good. I’m glad you’re experiencing it. Why don’t you go kill yourself.’” (During his
testimony, Kip denied ever saying anything like that on the phone or in person.) Erin’s brother
testified that Erin is a “very involved” parent and he had “never heard her call them a name.” He
said the children have “disabilities, learning disabilities I guess, but [Erin] doesn’t let them use
that as an excuse. She makes them try harder and pushes them.”
         According to Kip, he did not have trouble with the children before the divorce proceedings.
And he specifically stated that he and Skylar “always got along fine until all of this divorce stuff



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started.” He said when Skylar would get in trouble at school he would call Kip and Kip would talk
him through it. Kip denied that he ever got into a physical confrontation with Skylar. Kip was then
asked if he ever witnessed Skylar and Erin engage in a physical confrontation. Kip stated that in
2012 or 2013, Skylar was “cussing, hollering,” and Erin was trying to get him to listen; Skylar
then kicked Erin in the knee and she was on crutches for a week or two. Kip also testified that in
October 2017, he saw Skylar “shove” Larry to the floor; as punishment, Kip took Skylar’s phone,
and Skylar reacted by screaming, hollering, cussing, and punching things. When Kip was home,
he would not leave Skylar alone with Larry because he did not want Larry to get hurt. Kip also
acknowledged seeing Skylar direct violent and physically aggressive behavior towards Madisen
and Saralynn, and on one occasion saw Skylar hold a knife to Madisen’s chest and threaten her.
(Erin testified the knife incident was “due to” some medication Skylar was on at the time.) Kip
offered a video recording that was received into evidence (exhibit 130, file name
“#2…11-2-2017”) that showed Skylar yelling and screaming profanities at Kip and calling him
names while wielding a crutch and threatening to assault Kip, and at one point Skylar actually hit
Kip with the crutch; Madisen and Saralynn were in the room at the time and one of them can be
heard saying that Skylar was “beating the wall with the crutch” (he was out of the video frame at
the time) and Saralynn can be seen on her cell phone and heard saying “Mom, I’m scared.” (This
incident occurred after the divorce proceedings were initiated, but according to Kip, the incident
took place before Erin and the children moved out of the home.) Kip testified that was the only
time Skylar ever hit him, but that Skylar had “put holes in walls and stuff before.”
         After Erin was granted temporary custody of the children (order filed on November 8,
2017), despite that order saying the children should remain enrolled in the Palmyra school district
for the remainder of the school year, she and the children nevertheless moved to Ashland where
Erin’s family lived, and she enrolled the children in school there. Erin testified that she moved
because she “didn’t have the actual paper [temporary order] that said we had to stay here.” Erin
claimed she moved because of issues between Kip and Skylar, there was no place to rent in
Palmyra, and she “wasn’t going to buy a house.” She subsequently received permission from the
district court to enroll the children in school and stay in Ashland. At the time of trial, Erin was
renting a five bedroom, one bath house in Ashland. Erin testified that in the 15 months since she
and the children moved out of the marital residence, the children have adjusted. She said that
Skylar and Larry were getting along and liked to do community service together. All four children
attended youth group at church. (The children’s youth pastor confirmed that all four children
attended youth ministry programs during the week and church services on Sundays for “[a]t least
a year.” The pastor testified that Skylar is kind, and “if you have a problem with Skylar, it’s a you
problem, because he is kind to every single person he’s ever met”; “he is one of the few kids that
has the ability to be friends with everybody.”) According to Erin, Skylar made honor roll and was
talking about going to college. Madisen and Saralynn were struggling in school, but both “try
really hard.” And Erin said that Larry was “doing pretty good” in school.
         Erin acknowledged that for the past 15 months, parenting time exchanges occurred at the
Casey’s in Palmyra. Per the current temporary order, the older three children could decide if they
wanted to attend parenting time with Kip. According to Erin, she encouraged the older children to
go with Kip, and “[a] lot of the times they’ll be in the car when we’re at Casey’s,” “[t]hey just



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don’t get out” and “I can’t make them get from my car to his car.” She agreed that for the last 15
months, Kip was mainly having parenting time with only Larry. When asked if she knew how
many weekends the other children had gone with Kip, Erin responded, “The girls were going for
a little bit, but then hiccups happened over there and things happened where they didn’t want to
go again,” and “[t]hen it went back to the whole, ‘I’m not going.’” Erin denied that she did
anything to discourage the children from going with Kip during his parenting time. On
cross-examination, Erin stated that the last time Skylar visited Kip was Thanksgiving 2017; she
said Skylar and Kip got into a fight that day and were “yelling and fighting on the phone and we
[Skylar and Erin] were sitting outside of [Kip’s] driveway.” Erin could not remember the last time
Madisen was at Kip’s house. And Erin stated that the last time Saralynn went to a visit with Kip
was around September 2018; Erin acknowledged that prior to that there had been a long stretch
where Saralynn had not seen Kip. Kip testified that since the modified temporary order was
entered, he only had parenting time with Skylar one time, and Madisen and Saralynn three times;
this was despite continuously requesting parenting time. He said that Erin would bring “[n]ormally
just one” child to the parenting time exchange location.
         The main communication method between Erin and Kip was text messaging. Erin believed
that a lot of Kip’s text messages were accusatory, and that he often asked questions he already
knew the answer to. Erin stated that “if [Kip] starts harassing me -- a lot of the times I do not
respond to him for a while.” But Erin felt that she had been as communicative as she could be. Kip
was questioned about a packet of text communications between him and Erin from the second half
of 2018. Although those text messages were not offered or received into evidence, Kip testified
about various exchanges. On one occasion, he asked to speak with Madisen, but Erin responded,
“‘She talked to you already.’” He said that also happened other times when he asked to speak to
Larry. Additionally, on another occasion Kip inquired about an incident that took place at Erin’s
home for which a police report was taken, but Erin responded, “Not your business.” Kip stated
Erin never told him about a counseling appointment for Larry, and that her response was she
thought Larry told him. When Kip challenged her about that, he said Erin’s response was that it
was up to Larry to tell Kip. Kip also stated that Erin would not respond to inquiries about
Madisen’s therapy appointments.
         Erin testified that Skylar was on juvenile court probation starting in May 2018 after he
broke a window in Erin’s rental home (he was upset and angry at the time); she had to report it
because the landlord told her it was destruction of property. Erin stated that Skylar no longer had
to report to probation meetings, and she “got word that we’re going to have another hearing set to
get him off probation because he’s doing good.”
         Erin also testified about an incident involving Madisen and a “guy that she had met when
we lived in Palmyra.” Erin stated that in the summer of 2018, she allowed Madisen (15 at the time)
and the young man (18 at the time) to go on dates with adult supervision. On cross-examination,
Kip’s counsel asked Erin if she saw any problem with a 15-year-old girl hanging out with an
18-year-old man. Erin responded, “Yes, I did, and I didn’t like it, but the way Madi works is you
tell her no, she’s going to go right to it.” Erin stated that Madisen went on three dates with the
young man, one to Burger King, one to the movies, and one to the mall. Kip testified that he
thought it was “ridiculous” that Erin allowed Madisen to date an older man. He said, “It ain’t so



                                               -6-
much as age. It’s what he does. I mean, his age ain’t right because he’s an adult. But my concern
was getting pregnant, he’s a druggy, he’s in trouble all of the time.” When asked if he ever voiced
an objection about the young man, Kip responded, “Yes, [to] [Erin] and Madisen both.” He said
Erin told him, “‘It’s not your house, so it’s not your problem.’”
         According to Erin, in August 2018, a month after Madisen and the young man’s
relationship ended, Madisen left a note stating that she was going to a mall in Omaha, Nebraska,
with a female she had worked with. (On cross-examination Erin stated that Madisen’s former
coworker told Erin she was 16 years old, but that she was actually 22). Erin stated that,
unbeknownst to Madisen, the young man was also in the car, and the three of them ended up going
to Lincoln, Nebraska. Erin reported Madisen as missing to the police. Madisen was missing for 2
to 3 days, and when she was found, she reported that she had been sexually assaulted by the young
man. Erin filed protection orders against the young man on Madisen’s behalf. When Erin found
out that he subsequently contacted Madisen through “Google Hangouts,” Erin called the police. It
was Erin’s understanding that the young man was being prosecuted. Erin stated that she kept Kip
informed of the whole situation. However, Kip testified that he first learned of Madisen’s
disappearance from Erin’s ex-husband, who is Madisen’s biological father.
         Erin testified that in October 2018, she saw a text message from Kip on Madisen’s phone
(after the sexual assault and protection order) wherein Kip said that if Madisen would help him
with the custody situation, then her adult boyfriend could live at Kip’s house. Erin stated that she
did not confront Kip about the text message. On cross-examination, when asked if she had those
texts, Erin responded, “No.” She stated that Madisen’s phone had been seized by law enforcement
and was in the crime lab. It was pointed out during Kip’s testimony that Kip produced his text
messages with Madisen during discovery. When Madisen asked if her boyfriend could come live
with Kip, his response was, “No, I don’t think so. [He] will not be moving in with us.”
         Erin testified that she used to receive rental income from Matthew Taylor, when he rented
an apartment above her garage. She was no longer receiving that rental income because the two of
them were in a relationship and living together. Erin knew “vaguely” that Matthew had been
convicted of crimes and incarcerated (and “[v]aguely” “heard through word of mouth” that some
of the convictions were for crimes of violence), but she did not have an in-depth talk with him
about it because “he’s already served his time.” When asked if it would concern her if she found
out that Matthew was convicted of crimes of violence, Erin responded, “It would be a little
concerning if circumstances were a little different. He’s not like that now. And he served a lot of
years in prison for a lot of stuff, that was bad, but he hasn’t been like that since he got out.” Erin
testified that Matthew was released from incarceration 2 years ago and “has two more times of
parole contact and he’s off.” As far as Erin knew, none of Matthew’s charges had to do with
children. (The charges for which Matthew was convicted and incarcerated do not appear in our
record.) Matthew is the half brother of Erin’s ex-husband.
         According to the record, Erin’s ex-husband (and the biological father of her older three
children) allegedly sexually abused Madisen when she was younger. There was testimony and
other evidence that in May 2018 Erin took Madisen to an annual cookout at her ex-husband’s
mother’s house. Erin’s testimony regarding this event was contradictory. She initially stated that
her ex-husband, who lived out of state, “showed up” at the cookout. She claimed she and Madisen



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left “immediately,” but admitted that her ex-husband talked to them on their way out. But later,
when confronted with Madisen’s report to a therapist that Erin asked her if she would like to visit
her biological father at a cookout, Erin eventually acknowledged that was true. Then when
confronted by Madisen’s report to a counselor that Erin did not attend the cookout, Erin stated, “I
was right there.” When Kip’s counsel asked Erin why she thought Madisen lied to the therapist,
Erin responded, “[Madisen] probably didn’t tell the therapist that I was next door at her uncle’s
house.”
        Erin acknowledged that Summer 2018 was “very overwhelming” because she was working
multiple part-time jobs and was enrolled in a master’s program.
        Erin testified that she started the children in counseling in May 2018, after the school
counselor recommended “outsource counseling” to deal with the effects of the divorce; Larry was
having issues minding personal boundaries and the girls were “crying on a drop of a hat and just
upset.” Madisen and Skylar had been going to counseling weekly since May. Saralynn and Larry
were going weekly, but Saralynn got released, and Larry “wasn’t ready” so the counselor thought
it was best to take a break and wait until he was a little bit older. According to Erin, she was not
involved in the children’s counseling sessions. She informed Kip of when the counseling sessions
were “multiple times.” When asked if Kip regularly attended the sessions, Erin responded,
“Madisen’s, yes. Skylar’s, no. The minute that Larry stopped, he no longer went. And Madisen’s
was kind of like a hit or miss.” However, Kip’s testimony was that after Larry stopped going to
counseling he continued to attend Madisen and Skylar’s appointments when he knew about them.
        The children’s counseling records were received into evidence. Although we have
reviewed the records, we will not go into great detail about the content of those records. We do
note that in an assessment interview in May 2018, Erin reported to Skylar’s counselor that it was
common for Skylar to have conflicts with Kip and to fight with his siblings. And both Skylar and
Erin reported that Skylar was mistreated by Kip, including “physical and emotional abuse.” Erin
admitted that the entire family yells a lot and the siblings are often verbally and physically
aggressive with each other. Skylar admitted to using a lot of swear words when he got angry and
would hit property and others when he was extremely angry. At her assessment interview in May,
Madisen reported alleged “emotional abuse” by Kip; Erin was present at that interview. At one
session in October, “Erin reported that she feels ‘hurt’ that Madisen has been communicating with
Kip and stating negative things about her.” A report from a session in January 2019 stated that
Madisen “expressed frustration in regaards [sic] to possibly having spend [sic] time at Kip’s home
as custody is being arranged,” “[s]he stated that she ‘doesn’t like it there.’” A report from February
stated, “Madisen’s mother has been actively involved with her treatment.” At Saralynn’s
assessment interview in May 2018, at which Erin was present, Erin reported concerns “about how
Saralynn was treated by [Kip] in the past and that she may have experienced some trauma from
some events involving [Kip].” During that interview, Saralynn “reported being unhappy with how
Kip treated her siblings and her but reported her interactions with Kip were generally positive but
added she has never felt very close or even loved by [him].” Erin reported Saralynn “may have
witnessed some domestic abuse between Erin and Kip,” and though “Kip never physically
assaulted” Erin, “there was a lot of yelling.” Erin also reported Saralynn was “emotionally abused”
by Kip “not treating her as his own child”; Saralynn denied any history of emotional abuse but



                                                -8-
reported she did not feel loved or cared about by Kip. At a session in June, at which Erin was listed
as present, Saralynn “said she found out some disturbing info from her mom through court about
[Kip]”; Saralynn also “said her biggest problem with Kip is how he treated her older siblings by
calling them ‘stupid’ and ‘idiot’ . . . [she] reported she felt Kip implied she was fat or would
become fat.” At a subsequent session in June, Saralynn reported that she had a “pleasant”
conversation with Kip the day before. A case management contact was noted in June and stated
that the counselor talked to Kip on the phone and he “talked about how Erin is always lying and is
telling what the kids [sic] to say in therapy”; the counselor “encouraged him to call if he needed
information and said he could sit in for part of a session on his own if it was alright with Sara.” At
one of his October sessions, Larry stated, “‘I’m more my dad’s blood. I say it how it is’ and ‘I’m
like my dad and blow up when I am upset.’”
        Erin had concerns about Kip’s alcohol use. She testified that he drinks “at least two, three
beers” every night, and that he would drive with the children in the car after he had been drinking.
        Erin was seeking legal and physical custody of all four children because “they’re doing
really good where they’re at and all four of them are doing amazing,” “[t]here’s less chaos,” and
“[n]obody gets picked over the other one,” “they’re all created equal.” The children have friends
and family in Ashland, are active in the community, and are well-adjusted. Erin did not believe
that Skylar should be separated from the other children. When asked what kind of parenting time
she would suggest for Kip if she was granted custody, Erin stated “[s]imilar to the temporary one”
because “they like routines.” In Erin’s proposed parenting plan (exhibit 31), Kip would have
parenting time every other weekend from Friday at 6 p.m. until Sunday at 6 p.m., and extended
parenting time in the summer (6 weeks, exercised in blocks of up to 14 days at a time); her plan
also established a holiday parenting time schedule.
        Kip agreed that Erin should have sole legal and physical custody of Skylar, with no
parenting time for Kip. However, Kip was seeking sole legal and physical custody of Madisen,
Saralynn, and Larry. In Kip’s proposed parenting plan (exhibit 133), Erin would have parenting
time with Madisen, Saralynn, and Larry every other weekend from Friday at 5 p.m. until Sunday
at 8 p.m., and “week-on/week-off” parenting time in the summer; his plan also established a
holiday parenting time schedule.
                                     (b) District Court’s Ruling
       The district court found that Erin failed to establish, by a preponderance of the evidence,
that Kip had been physically or verbally abusive to the children. The court also found that Erin
engaged in parental alienation tactics, had not encouraged or required Madisen or Saralynn to
attend parenting time with Kip, and had been unwilling to share information about the children
with Kip. Additionally,
       [Erin] chaperoned dates between Madisen and an adult [male] . . . ; ultimately, crime(s)
       were perpetrated as a result of the contact between the two. [Erin] has also placed Madisen
       in a situation in which she would have contact with a former abuser. Finally, [Erin] testified
       that she did not check into the nature of the crimes committed by Matthew Taylor before
       he moved in with her and the parties’ children. Perhaps Mr. Taylor’s crimes do not relate
       to anything that would put the children at risk. His crimes are not in evidence . . . . However,



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       the questioning of [Erin] at trial as to Mr. Taylor’s criminal history is relevant to show that
       [Erin] is not parenting with due diligence. A reasonable and prudent parent would inquire
       as to the nature of the crimes in order to make a determination as to whether they were
       crimes of the type which might put the children at risk.

The court found the relationship between Kip and Skylar had deteriorated to the point that what
was in Skylar’s best interests was not the same as what was in the other children’s best interests;
the court also noted that Skylar would be an adult in the near future.
        The district court awarded Erin sole physical custody of Skylar (17 years old at the time),
and Kip was not to have any parenting time with Skylar unless agreed upon by the parties or Skylar.
But the court awarded sole physical custody of Madisen (16 years old), Saralynn (13 years old),
and Larry (9 years old) to Kip, subject to Erin’s reasonable rights of parenting time. Erin was to
have parenting time with Madisen, Saralynn, and Larry every other weekend from Friday at 5 p.m.
until Sunday at 8 p.m. during the school year, and alternating weeks during the summer; a holiday
parenting time schedule was also established.
                                        (c) Applicable Law
        Keeping the evidence and the district court’s findings in mind, we now consider the legal
principles governing custody and parenting time matters. When deciding custody issues, the
court’s paramount concern is the child’s best interests. Kashyap v. Kashyap, 26 Neb. App. 511,
921 N.W.2d 835 (2018). Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) states, in pertinent part:
                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. Kashyap v. Kashyap, supra.




                                                - 10 -
                           (d) Did District Court Abuse Its Discretion?
         Erin claims the district court’s findings are not supported by the evidence. According to
Erin, the award of custody to Kip was not in the best interests of the children for “many reasons,”
including (1) “the lack of a close parent-child relationship of Madisen and Saralynn with [Kip]”
and their wishes to not live with Kip as expressed in counseling; (2) Kip’s “unwillingness to
provide proper structure, discipline and control for Larry”; and (3) Kip’s “prior physical, verbal
and emotional abuse of Skylar.” Brief for appellant at 16. She also takes issue with the court’s
finding that she engaged in “parental alienation tactics” without elaborating or defining what that
meant, that she did not encourage or require Madisen and Saralynn to attend parenting time with
Kip, and that Erin was to blame for unforeseen crimes perpetrated on Madisen. Additionally, Erin
argues “that the court [splitting] up custody of these four children should not be overlooked.” Id.
at 22.
         Kip argues the district court was faced with a “‘he said/she said’ dilemma” and ultimately
accepted one version of the facts rather than another. Brief for appellee at 25.
         Given the contradictory testimony in many instances, including conflicting evidence given
by Erin herself, there is no question that there were credibility issues which the district court had
to resolve. And 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. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017). Importantly, while
we note that the temporary order (issued by a different judge than the trial judge) only required
that the three older children “shall be encouraged” to attend parenting time with Kip, and did not
require them to do so, any evidence of such encouragement by Erin is lacking in the record. Erin
claimed that she encouraged the older children to go with Kip, and said, “[t]hey just don’t get out”
of the car and “I can’t make them get from my car to his car.” However, this does not reflect any
effort by Erin to encourage the children to spend time with their father. Kip also claimed that
“normally” Erin would just bring one child.
         Further, the evidence demonstrated that Erin interfered with Kip’s ability to communicate
with the children by telephone. On one occasion, he asked to speak with Madisen, but Erin
responded, “‘She talked to you already.’” According to Kip, that also happened other times when
he asked to speak to Larry. And when Kip inquired about an incident that took place at Erin’s
home for which a police report was taken, Erin responded, “Not your business.” Erin never told
Kip about a counseling appointment for Larry; her explanation was that she thought Larry had told
him and that it was up to Larry to tell Kip. While we acknowledge that Erin had temporary physical
custody of the children for an extended period of time preceding trial, the evidence supports the
district court’s determination that Erin had engaged in parental alienation tactics and failed to
encourage parenting time between the children and Kip. Such actions and attitudes can certainly
be considered by a trial court when making decisions about the best interests of children. The
evidence also supports that Skylar’s aggressive behaviors in the home with other children present
caused Saralynn on one occasion to call her mother on her cell phone and tell her, “Mom, I’m
scared.” There was also other concerning evidence regarding Skylar’s actions towards Larry and




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the girls. Under such circumstances, it is understandable why the district court determined a split
custody arrangement was in all the children’s best interests.
         In light of the evidence presented as described above, and giving deference, as we must, to
the district court who heard and observed the witnesses, we find the district court did not abuse its
discretion in awarding physical custody of Madisen, Saralynn, and Larry to Kip. See, Donald v.
Donald, supra (custody determinations are initially entrusted to trial court’s discretion and will be
affirmed absent abuse of that discretion; when evidence is in conflict, appellate court considers,
and may give weight to, fact that trial judge heard and observed witnesses and accepted one version
of facts rather than another). See, also, Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012)
(it is sound public policy to keep siblings together when marriage is dissolved, but ultimate test
remains best interests of children).
         As to Erin’s argument that the district court did not award her a reasonable amount of
parenting time, we note that she was awarded an amount of parenting time similar to what she
proposed for Kip in the event she was awarded custody of the children. We find no abuse of
discretion in the amount of parenting time awarded to Erin.
                                        2. CHILD SUPPORT
       There is no dispute about the total monthly incomes attributed to the parties ($1,875.08 for
Erin and $5,387.65 for Kip). However, the parties agree that the district court miscalculated Kip’s
retirement and health insurance in its calculation of child support.
                                     (a) Retirement Deduction
         The district court calculated Kip’s retirement deduction using 26 pay periods per year. The
parties agree that it should have been calculated using 24 pay periods per year. Accordingly, Kip’s
retirement deduction should be $580.14 ($290.07 per pay period × 24 pay periods ÷ 12 months),
instead of $628.49 ($290.07 per pay period × 26 pay periods ÷ 12 months) as calculated by the
district court.
                                       (b) Health Insurance
        Kip’s pay stub reflects that $228.89 is deducted for health insurance; and the parties agree
that the premium is deducted from one paycheck each month. The district court calculated Kip’s
health insurance using 26 pay periods per year, rather than 12. Its calculation was as follows:
$228.89 × 26 pay periods ÷ 12 months = $495.93 per month for health insurance coverage. On the
child support worksheet, the district court put the entire $495.93 on Kip’s line 8, “Health Insurance
Premium for Children”; $0 was listed on line 2.f, “Health Insurance Premium for Parent.”
        Erin claims that Kip provided “no evidence as to what part of that premium is attributable
to the children.” Brief for appellant at 32. She cites to Neb. Ct. R. § 4-215 (rev. 2011) which
provides:
                 (A) Health Insurance. The increased cost to the parent for health insurance for the
        child(ren) of the parent shall be prorated between the parents. When worksheet 1 is used,
        it shall be added to the monthly support from line 7, then prorated between the parents to
        arrive at each party’s share of monthly support on line 10 of worksheet 1. The parent




                                               - 12 -
       requesting an adjustment for health insurance premiums must submit proof of the cost for
       health insurance coverage of the child(ren). The parent paying the premium receives a
       credit against his or her share of the monthly support. If not otherwise specified in the
       support order, “health insurance” includes coverage for medical, dental, orthodontic,
       optometric, substance abuse, and mental health treatment.

(Emphasis supplied.) Erin contends, “Without such proof, the deduction should be entered only on
line 2.f of the child support calculation.” Brief for appellant at 32. However, in her own proposed
child support calculation (exhibit 17), Erin listed $228.89 on Kip’s line 8, “Health Insurance
Premium for Children”; $0 was listed on line 2.f, “Health Insurance Premium for Parent.” This is
precisely the figure used by the district court to calculate the premiums; its error was in the number
of pay periods it then applied to that figure. A party cannot complain of error which the party has
invited the court to commit. Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).
         Accordingly, Kip’s line 8, “Health Insurance Premium for Children” should be $228.89,
instead of $495.93 as calculated by the district court.
                          (c) Remand for New Child Support Calculation
       We remand this matter to the district court for the sole purpose of recalculating and
modifying Erin’s child support obligation using the following revised amounts in the child support
worksheets: $580.14 retirement deduction for Kip (instead of $628.49 previously used) and a credit
of $228.89 for Kip for the children’s health insurance premium (instead of $495.93 previously
used).
                                        3. MARITAL ESTATE
        Erin argues the district court abused its discretion by not making an equitable division of
the marital estate. In particular, she challenges the court’s valuation of a vehicle awarded to her,
and its decision to not require an equalization payment from Kip.
                                          (a) GMC Acadia
        Erin testified she had a 2008 GMC Acadia that she was still paying off. She prepared a
Kelley Blue Book valuation for that vehicle (exhibit 19). The exhibit shows that the “[p]rivate
[p]arty [v]alue” for a “2008 GMC Acadia SLT Sport Utility 4D” near Ashland with 110,000 miles
and in “[v]ery] [g]ood” condition, ranged from $7,339 to $10,256, with a mid-range value of
$8,798. At trial, Erin testified that the vehicle now had 135,000 miles.
        Kip prepared a “NADAguides Value Report” (exhibit 71) for Erin’s vehicle that was
purchased during the marriage. The exhibit shows that the “[c]lean [r]etail” price for a “2008 GMC
Acadia Wagon 4D SLT AWD” with 103,000 miles and specified options was $11,500.
        On exhibits 28 and 131, “Exhibit A Property Statement[s]” with proposed values for assets
and liabilities, Erin’s proposed value for the GMC Acadia was $8,798 and Kip’s proposed value
was $11,500.
        The district court ultimately valued the vehicle at $11,500 based on the “Retail price (Ex.
71).” Erin claims this was an overvaluation because “$11,500.00 . . . was the highest Clean Retail




                                                - 13 -
value listed on the NADAguides Value Report,” and her offered value of $8,798 “was more
accurate and a private party value.” Brief for appellant at 32. She also states that using her value
of $8,798 would “be consistent with the value for [Kip’s] 2005 Ford F250 that the court used,
which was a private party value.” Id. However, Kip contends the value of 2005 Ford F-250 “was
by stipulation,” and it was the court’s “prerogative” to use Kip’s valuation for the GMC Acadia.
Brief for appellee at 41. It is true that both parties listed an identical value for the 2005 Ford F-250,
thus the value of that vehicle was not in dispute. However, the value of the 2008 GMC Acadia was
in dispute. And we find no abuse of discretion in the district court’s valuation of the 2008 GMC
Acadia. See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017) (when evidence is in
conflict, appellate court considers, and may give weight to, fact that trial judge heard and observed
witnesses and accepted one version of facts rather than another).
                                      (b) Equalization Payment
        Erin argues the district court should have required Kip to make an equalization payment to
her. Nebraska law does not require an equal distribution of the marital estate. As a general rule, a
spouse should be awarded one-third to one-half of the marital estate, the polestar being fairness
and reasonableness as determined by the facts of each case. Dooling v. Dooling, 303 Neb. 494,
930 N.W.2d 481 (2019). Unfortunately, Erin and Kip had a marital estate with a negative value
(negative $10,850.10). Pursuant to the decree, Erin was awarded a net marital estate of negative
$8,352.25 and Kip was awarded a net marital estate of negative $2,497.85; this does not quite fall
within a one-third to one-half division. The district court stated, “Because the net marital estate for
each party is negative, and because [Erin] is receiving a portion of [Kip’s] Tier 2 [railroad]
retirement benefits, no cash equalization payment is awarded in this case.” We also note that Kip’s
allocation of the significant marital debt was almost $2,000 more than Erin’s share; his lesser
negative net marital estate is largely due to the fact that he was awarded a couple older vehicles
with a combined value of just above $5,000. Under the circumstances of this case, we cannot say
the district court abused its discretion when it did not order an equalization payment from Kip.
                                         VI. CONCLUSION
        For the reasons stated above, we affirm the decree, but remand to the district court with
directions to modify Erin’s child support obligation using the revised figures noted above for Kip’s
retirement deduction and the children’s health insurance premium.
                                                                   AFFIRMED IN PART, AND IN PART
                                                                   REMANDED WITH DIRECTIONS.




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