                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         CROW V. CHELLI


  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).


                                     BOB L. CROW, APPELLEE,
                                                V.

                                MARLENE E. CHELLI, APPELLANT.


                            Filed October 10, 2017.    No. A-16-869.


       Appeal from the District Court for Douglas County: MARLON A. POLK, Judge. Affirmed.
       Marlene E. Chelli, pro se, and, on brief, James Walter Crampton for appellant.
       Christopher A. Vacanti and William L. Finocchiaro, of Vacanti Shattuck, for appellee.



       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Marlene E. Chelli appeals from the order of the district court for Douglas County
modifying a paternity decree and awarding Marlene and Bob L. Crow joint physical custody of
the parties’ minor children. The court also modified the original award of joint legal custody to
give Bob final decisionmaking authority for matters concerning the children’s education. For the
reasons set forth herein, we affirm.
                                        BACKGROUND
       Marlene and Bob are the parents of Ethan Chelli, born in 2009, and Elizabeth Chelli, born
in 2010. On July 7, 2015, the district court entered a paternity decree finding both parties fit and
proper persons to have legal care, custody, and control of the children and awarding physical
custody to Marlene subject to Bob’s every other weekend, holiday, and vacation parenting time as



                                               -1-
set forth in the parties’ parenting plan. The court ordered Bob to pay child support of $801 per
month for two children and $546 when one minor child remained. The parenting plan approved by
the court provided, among other things, for the children’s “access to telephone and email contact
with the other parent.” The parenting plan also specified that face-to-face communication between
the parties was not a reasonable method for appropriate issue resolution and detailed how issues
should be resolved between the parties via email. Although the plan provided for joint legal
custody, it specified that Marlene, as the possessory parent, “shall make the final decision for the
children concerning health, education, and religious matters.”
         On March 30, 2016, Bob filed a complaint for modification in the district court. Bob alleged
that a material change in circumstances had occurred since entry of the decree in that Marlene had
failed to assure that the children attended school in a reasonable manner and that they received a
proper education; to provide for the reasonable needs of the children; to assure that the children
had an ongoing relationship with Bob; and had frustrated and denied Bob his court-ordered
parenting time with the children. Bob also alleged that a material change in circumstances had
occurred because Marlene was either unable or unwilling to provide for the children in a manner
consistent with their best interests. Finally, Bob alleged that he was willing and able to provide for
all of the children’s needs in a manner consistent with their best interests. He asked the court to
modify legal and physical custody and parenting time based on the children’s best interests and to
order child support accordingly.
         On March 30, 2016, Bob also filed a motion and affidavit pursuant to Neb. Rev. Stat.
§ 42-364.15 (Reissue 2016) alleging that Marlene had interfered with his parenting time under the
decree. Specifically, Bob alleged that Marlene regularly denied him telephone contact with the
children, had minimized or not allowed all of his summer and holiday parenting time, and regularly
denied him parenting time or required parenting time to be exercised in her home. Bob also alleged
that Marlene had “in the past threatened to have an Amber Alert issued unless she gets her way in
relation to parenting time.” Bob asked the district court to find Marlene in contempt of the decree
and to award him temporary possession of the children.
         On April 25, 2016, the district court entered an order granting Bob’s motion. The court
ordered that Bob’s parenting time resume immediately consistent with the terms of the decree and
parenting plan, specified the dates of Bob’s next weekend of parenting time, and ordered when
Bob’s summer parenting time for 2016 was to occur. The court also directed the parties to comply
with all provisions of the parenting plan, specifically including the provision for telephone
communication with the children.
         Marlene filed a pro se answer and counterclaim on May 13, 2016 requesting that the district
court modify the decree to award her full legal and physical custody with reduced parenting time
for Bob.
         On May 20, 2016, Marlene filed a pro se motion and affidavit for temporary relief and ex
parte custody, in which she alleged that the children had returned from Bob’s parenting time with
bad sunburns that required medical treatment. She also alleged that Ethan had a bruise, which
Ethan told her occurred after he was slapped by either Bob or Bob’s sister, and that she was afraid
for her safety due to past threats of violence by Bob. The court entered an ex parte order granting




                                                -2-
Marlene’s motion for temporary custody, suspended Bob’s parenting time until further order, and
scheduled a hearing.
        An attorney filed an appearance of counsel on Marlene’s behalf on June 8, 2016, but that
attorney filed a motion to withdraw, which was granted by the court on July 13. A second attorney
filed an appearance of counsel on Marlene’s behalf on July 8. Marlene file a pro se motion on July
20, seeking to represent herself and asking the court to remove the second attorney. The second
attorney then filed a motion to withdraw, which was granted by the court on August 2.
        A modification hearing was held before the district court on August 3, 2016. Bob appeared
with his attorney, and Marlene appeared pro se. She did not ask for a continuance or express an
unwillingness to proceed pro se at any point during the hearing. During the course of her testimony,
Marlene referenced the fact that English is not her first language, but she did not request an
interpreter or indicate at any point during the hearing that she needed one. The court heard
testimony from Bob, Marlene, and an Omaha Public Schools employee and received various
exhibits, including printouts of text messages exchanged by the parties, school records, medical
reports, and documentation from law enforcement and Child Protective Services (CPS)
investigations.
        Bob is a chiropractor, and at the time of the decree, he was living in Lincoln, working at a
chiropractic office. In approximately October 2015, he moved to Arnold, Nebraska for a lower
cost of living and to be close to his extended family. While in Arnold, he worked on his parents’
farm. At the beginning of July 2016, he moved to Omaha, where he found work as a chiropractor.
Bob testified that he intended to remain living there.
        Bob testified to his belief that there had been a material change in circumstances since entry
of the paternity decree, in that he had had difficulty obtaining the parenting time and telephone
contact with the children awarded to him in the decree. The record reflects that Marlene has not
consistently allowed Bob to have contact with the children. The parties have difficulty
communicating with each other, and at some point Bob resorted to spending time with Marlene in
order to have access to the children. Eventually, Bob stopped spending time with Marlene, but she
was still reluctant to allow him contact with the children outside of her presence. For example,
Bob returned the children to Marlene prior to the end of his parenting time during Christmas break
2015, because Marlene threatened to have an AMBER Alert issued if he did not return them early.
Other communication difficulties noted by Bob included Marlene’s failure to discuss the children’s
medical needs with him before taking them to the doctor and the “numerical code” Marlene
developed to use when speaking with the children by telephone when they are in Bob’s care. Bob
noted that Elizabeth became upset and cried after one such telephone conversation because she
had forgotten the code. Bob has asked Marlene to “just have a normal conversation with the
children” without using “these random numbers.”
        Additional issues raised by Bob as reflecting a material change in circumstances were
Marlene’s allegations that he sexually assaulted her and abused the children. Concerning the
alleged sexual assault, Marlene filed a petition and affidavit to obtain a domestic abuse protection
order against Bob in April 2016, setting forth allegations that Bob raped her and interfered with
her parenting time. Marlene’s petition was dismissed following a show cause hearing in May. At
the modification hearing, Bob denied having ever sexually assaulted Marlene. He also offered



                                                -3-
copies of text messages showing that the parties were having cordial communications at the time
of the alleged sexual assault.
         With respect to the alleged abuse of the children, after Bob returned the children following
his weekend of parenting time in early May 2016, they had sunburns and Ethan had a small bruise
on his hip. According to Marlene, Ethan said Bob struck him. Marlene filed a motion for ex parte
temporary custody, which kept Bob from receiving his next weekend of scheduled parenting time.
Marlene went to four different medical clinics before she obtained information to support her
claims of abuse, and her claims led to investigations by both CPS and law enforcement. CPS
documentation admitted into evidence suggests Marlene was coaching the children. CPS
determined the allegations were unfounded, and law enforcement determined that the bruise on
Ethan’s hip was consistent with “a child falling onto the ground or into something, a typical injury
on a young active 6 year old.” Marlene has made other reports to CPS resulting in five previous
intakes, which were either not taken for investigation or were determined to be unfounded. Bob
testified at the modification hearing that he would never abuse or assault his children.
         Another issue addressed at the modification hearing was the children’s school attendance
and registration. In 2014/2015, the children attended an elementary school in Omaha (the first
school). Marlene placed them in an elementary school in Millard at the beginning of the 2015/2016
school year (the second school), which they attended for one quarter of the school year. During
that time, Elizabeth was absent for six days and tardy once, while Ethan was absent for five days
and tardy once. After the first quarter, Marlene moved the children to a bilingual school in Omaha
(the third school), which they attended for the second quarter of the school year. During the second
quarter, Ethan missed almost five days, while Elizabeth missed slightly more than four days. Their
last day of attendance at the third school was January 25. As of February 1, 2016, Elizabeth had
missed 11.1 days of school for the year; Ethan had missed 13.74 days. Marlene home schooled the
children for the remainder of the 2015/2016 school year.
         Marlene registered the children to attend a private Catholic school in Elkhorn for the
2016/2017 school year, and Bob expressed concern about the ability to pay for this school. Marlene
presented evidence that she had obtained scholarships that would pay for at least some of the
children’s tuition at this school for the year. In response to the court’s question about “the plan for
the children if there is no extra money” beyond the scholarship, Marlene testified that her
grandfather would pay the balance of the tuition costs. The court inquired as to whether Bob would
agree to the children attending this school if the tuition was covered. Bob responded that he would
want to look into it more and expressed concern that “if the funding . . . dries up,” Marlene might
return to home schooling the children.
         Ethan has some behavioral issues, including issues with focus and self-control, and
Marlene had some concerns about Ethan’s treatment at the second school. Testimony on these
issues as well as the children’s school attendance was provided by Robert Johnson, a school
support liaison for Omaha Public Schools. On February 8, 2016, the school sent out a letter noting
that that the children had missed “the time equivalent of 15 or more days of school” and
requesting additional documentation about the children’s absences. Johnson did not find the
documentation provided by Marlene in response to this request credible. Johnson requested further
documentation from Marlene, but she did not provide any. The school did not end up reporting the



                                                 -4-
situation to the county attorney’s office, because Marlene moved Ethan to home school status as
of February 8. Elizabeth was not listed on home school status at that time, but Johnson did not
follow up further with respect to Elizabeth because she was under the age of required school
enrollment.
         Johnson testified about his observations of and interactions with both Bob and Marlene
while the children were enrolled at the third school. Johnson found Bob to be “a caring, concerned
parent for his children, yet, very subdued and very guarded.” Marlene initially appeared to be a
“very concerned parent and wanting the best for her children,” but according to Johnson, over
time, her behavior “became more erratic and concerning.” Johnson testified that Marlene began to
visit the children more than what he had observed other parents to do and injecting herself into the
school environment to the point where it became disruptive to the children and their education.
Johnson agreed, however, that Marlene never interfered in the classroom while class was in
session.
         With respect to Ethan’s behavioral issues, Johnson testified that it became apparent that
Ethan needed one-on-one attention. After the first week, school personnel “began to suspect that
Ethan may be on the autism spectrum somewhere, with some of the behaviors that he was
exhibiting in the classroom.” Johnson agreed that Ethan might also have “ADHD” in combination
with a diagnosis of autism. According to Johnson, when the school notified Marlene of its
concerns, she “was in complete denial that there was anything wrong with Ethan.” In one
conversation with Marlene about Ethan, Johnson suggested she explore the special education
testing process, after which she would have the choice to accept or deny those services. In
response, Marlene expressed concern about Ethan being labeled as a “special education child” and
stated she would think about it. Johnson was unaware of Ethan being abused by any staff or
personnel at the third school. The school tried to arrange a “Student Assistant Team meeting” to
discuss strengths and deficits observed in the classroom and to discuss strategies and ideas to help
Ethan succeed, but Marlene wanted to take Ethan to a doctor before proceeding. The school did
have the meeting, which Marlene attended, and various strategies were discussed and
implemented.
         Marlene provided testimony on her behalf in response to questions from the district court.
Marlene expressed concern that Bob’s move to Omaha would be only temporary. She testified that
her living situation was stable as she had been living in the same place since 2013 and because she
had financial assistance from her parents. Marlene testified that she tried to “give [the children]
the best” in home schooling them, despite English not being her first language. She felt that
attending the private Catholic school would be in the children’s best interests because of the quality
of the school and the ratio of teachers per student. Marlene felt that it would be best for her to have
legal and physical custody, with Bob having parenting time “every other weekend and less time
during the summer,” to “create a more consistent environment.” She expressed concern about
litigation initiated by Bob, conflict with Bob, and the involvement of police and CPS. Marlene
stated that she had “ten or fifteen investigations against me,” but observed that nothing had been
found wrong with her home environment as a result of those investigations and that the children’s
needs were all covered. In concluding her direct testimony, Marlene expressed love for her children
and concern over her treatment by Bob’s family.



                                                 -5-
         On cross-examination, Marlene again asserted that Bob had raped her, and she stated that
Bob has threatened to kill her in the past. With respect to employment, Marleen testified that she
had a job offer for work in a child care center where she expected to work part-time “or as they
need me,” earning $10 an hour. She has had similar previous employment at similar rates of pay.
Marlene testified that she also receives financial assistance from her parents, grandparents, and
friends from church. Marlene attends two churches, a “Spanish church” and a nondenominational
Christian church. Although the children are not Catholic, she felt that “a good education is a
Christian education” and testified that this would be provided by the school she had enrolled them
in for the 2016/2017 school year. According to Marlene, Ethan was tested for autism in 2014 prior
to attending the first school, and the doctor who tested him felt that Ethan “doesn’t have the
spectrum syndrome” but that he had “[A]DHD” characteristics. Marlene was also asked about the
numeric code she uses on the telephone with the children. Marlene explained that “666” means
“my daddy is not hitting me” and “555” means “we’re doing fine.” When asked if she thought
having these codes was appropriate, she testified, “I think that I can have free communication with
my kids without an interruption or . . . without being supervised by someone.”
         The district court entered an order of modification on August 11, 2016. The court found
that Bob had shown a material change in circumstances “warranting modification,” but it did not
specifically state what material change or changes in circumstances necessitated the modifications
ordered. The court modified legal custody by awarding Bob final decisionmaking authority for
matters concerning the children’s education. It modified physical custody by awarding joint
physical custody with a rotating week-on/week-off parenting time schedule. The court also
specified changes in summer parenting time, the division of the children’s winter/Christmas break
between the parties, child support, and other matters not relevant to the present appeal.
         Marlene subsequently filed pro se motions, seeking, among other things, a new trial and/or
to alter or amend the modification order. At the new trial hearing, Marlene was represented by
counsel. Marlene offered an affidavit in which she stated that she discharged the second attorney
to represent her in the modification proceedings because they did not agree on how to present the
case, that this attorney’s failure to promptly withdraw as her counsel of record hindered her ability
to obtain new counsel prior to the modification trial, and that she did not obtain her file from this
attorney until after the modification trial. Marlene also asserted that she never received her file
from the first attorney who represented her in the modification proceedings. Marlene also stated
that she is from Paraguay and her primary language is Spanish. According to Marlene, while she
uses English in her everyday life, she has difficulty when verbal exchanges are fast or when
uncommon words are being used, or “when questions are posed in a reverse order.” Marlene stated
that she requested an interpreter prior to the modification hearing by “calling the interpreter’s
office in the Civic Center” but that an interpreter was not provided at the hearing. She alleged that
she appeared at the August 3, 2016 hearing without an attorney or an interpreter and requested a
continuance but that her request was denied. Marlene stated that many documents were presented
during the modification hearing, that her inability to read English quickly “caused [her] to be
unaware of the contents of the documents,” and that she was unable to respond to the documents
because she did not know what they said.




                                                -6-
        After hearing argument from the parties’ attorneys, the district court found that, even
considering Marlene’s affidavit, Marlene chose to and did represent herself at the modification
hearing. The court stated that, having presided over that hearing, it felt, at the time, that Marlene
was “thoroughly prepared and was able to sufficiently present her case, cross-examine witnesses .
. . and conduct her case on her behalf.” The court did not recall ever being presented with “the
issue of the interpreter.” The court denied Marlene’s motions and entered an order memorializing
that decision on September 1, 2016.
        The parties filed several ex parte motions following entry of the modification order. On
August 16, 2016, Bob filed a verified motion and affidavit for ex parte order, asking the court for
an ex parte order awarding him immediate possession of the parties’ minor children, utilizing the
assistance of law enforcement if necessary, and compelling Marlene to provide any necessary
documentation or assistance to enroll the minor children for the upcoming academic year in
accordance with the modification order. Bob alleged that under the modification order, his first
week of parenting time should have commenced on August 7, that he was not allowed any
parenting time during that week as Marlene refused to exchange the children, and that he had not
been given telephone access to the children. Bob also alleged that Marlene had refused to comply
with his requests to provide information necessary to enroll the children in school, which started
on August 17. Bob asked that his parenting time be altered so that his first regular week would
begin on August 14. The court entered an ex parte order on August 16, granting Bob’s request for
immediate possession of the minor children, with his first week of regular parenting time to begin
on August 14, and ordering Marlene to provide necessary documentation or assistance to enroll
the children in school. The court scheduled a hearing for September 22.
        On August 22, 2016, Marlene, pro se, filed a motion for ex parte custody and sole education
rights. She alleged that Bob had failed to enroll the children prior to the start of school on August
17, that the children were still out of school as of August 22, and that Bob has not “enroll[ed] or
desired to enroll the kids to attend any of the schools that are available to [them] to this day.”
Marlene asked for temporary sole custody of the children “to be able to enroll and make the kids
attend school [sic] that are available to them as soon as possible.” The court heard Marlene’s
motion on August 22. Marlene appeared pro se. Bob’s attorney, whom the court contacted prior to
the hearing “so that each party could be heard,” appeared by telephone. On August 23, the court
entered an order dismissing Marlene’s motion without prejudice. The court found that there was
not an emergency situation and advised Marlene that if the children had not been enrolled by
August 29, she could file another motion for custody and sole education rights.
        On August 29, 2016, Marlene filed another pro se motion for ex parte custody and sole
education rights. The disposition of this motion is not reflected in the record on appeal.
                                  ASSIGNMENTS OF ERROR
        Marlene asserts, reordered and restated, that the district court abused its discretion in (1)
modifying physical custody, (2) granting joint physical custody without making written findings
required by Neb. Rev. Stat. § 43-2932 (Reissue 2016), and (3) granting Bob final decisionmaking
authority as to education.




                                                -7-
         Marlene was represented by counsel at the time of her initial appellant brief, but her
attorney subsequently withdrew. Marlene then filed a pro se reply brief, in which she raises many
additional arguments not assigned as error in her initial brief. A pro se litigant will receive the
same consideration as if he or she had been represented by an attorney, and, concurrently, that
litigant is held to the same standards as one who is represented by counsel. Friedman v. Friedman,
290 Neb. 973, 863 N.W.2d 153 (2015). Errors argued but not assigned will not be considered on
appeal. Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017). The purpose of an appellant’s reply
brief is to respond to the arguments the appellee has advanced against the errors assigned in the
appellant’s initial brief. Id. Errors not assigned in an appellant’s initial brief are waived and may
not be asserted for the first time in a reply brief. Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d
283 (2014). Accordingly, we have not addressed those arguments Marlene raises for the first time
in her reply brief that were not assigned as error in her initial brief.
                                     STANDARD OF REVIEW
         Child custody determinations are 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. State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68,
871 N.W.2d 230 (2015). 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. Id. A judicial abuse of discretion requires that the reasons or rulings of the
trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and
a just result. Id.
         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
observed the witnesses and accepted one version of the facts rather than another. Id.
                                             ANALYSIS
Modification of Physical Custody.
        Marlene asserts that the district court abused its discretion in modifying the decree and
ordering joint physical custody.
        Ordinarily, custody of a minor child will not be modified unless there has been a material
change in circumstances showing that the custodial parent is unfit or that the best interests of the
child require such action. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). In a child
custody modification case, first, the party seeking modification must show a material change in
circumstances, occurring after the entry of the previous custody order and affecting the best
interests of the child. Id. Next, the party seeking modification must prove that changing the child’s
custody is in the child’s best interests. Id. A material change in circumstances means the
occurrence of something which, had it been known at the time of the initial decree, would have
persuaded the court to decree differently. State on behalf of Jakai C., supra. The party seeking
modification of child custody bears the burden of showing as an initial matter that there has been
a change in circumstances. Id.




                                                 -8-
       The paramount consideration in determining child custody is the best interests of the
children. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017). A child’s best interests
requires a parenting arrangement and parenting plan which provides for “a child’s safety,
emotional growth, health, stability, and physical care and regular and continuous school attendance
and progress for school-age children.” Neb. Rev. Stat. § 43-2923(1) (Reissue 2016).
Section 43-2923(6) provides:
               (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. . . .

In addition to the “best interests” factors listed in § 43-2923, a court making a child custody
determination may consider matters such as the moral fitness of the child’s parents, including the
parents’ sexual conduct; respective environments offered by each parent; the emotional
relationship between child and parents; the age, sex, and health of the child and parents; the effect
on the child as the result of continuing or disrupting an existing relationship; the attitude and
stability of each parent’s character; and the parental capacity to provide physical care and satisfy
the educational needs of the child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
         In this case, the district court found a material change in circumstances since entry of the
paternity decree. The court modified physical custody and found that an award of joint physical
custody was in the children’s best interests.
         “Joint physical custody means 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.” Neb. Rev. Stat. § 43-2922(12) (Reissue
2016). A trial court’s decision to award joint legal or physical custody can be made without
parental agreement or consent so long as it is in the child’s best interests. State on behalf of Maddox
S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208 (2016). As stated in Neb. Rev. Stat.
§ 42-364(3) (Reissue 2016):
         Custody of a minor child may be placed with both parents on a joint legal custody or joint
         physical custody basis, or both, (a) when both parents agree to such an arrangement in the
         parenting plan and the court determines that such an arrangement is in the best interests of
         the child or (b) if the court specifically finds, after a hearing in open court, that joint




                                                 -9-
        physical custody or joint legal custody, or both, is in the best interests of the minor child
        regardless of any parental agreement or consent.

Joint physical custody should be reserved for those cases where, in the judgment of the trial court,
the parents are of such maturity that the arrangement will not operate to allow the child to
manipulate the parents or confuse the child’s sense of direction, and will provide a stable
atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars. Erin W. v.
Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017).
        In this case, the district court did not specifically state what material change in
circumstances necessitated modification of physical custody, but upon our de novo review, we
conclude that there was a material change in circumstances affecting the children’s best interests,
namely, that since entry of the decree, Marlene has regularly frustrated Bob’s ability to exercise
his parenting time, through means disruptive to the lives of the children and the parties, and has
further disrupted the children’s lives by interference with the children’s education. The parties
have a contentious relationship and clearly need a physical custody and parenting time
arrangement that will minimize opportunities for conflict and one that will also produce stability
and consistency for the children. While the week on/week off parenting time arrangement does not
necessarily reduce the total number of custody exchanges that occur during the year, it does spread
them out on a regular, consistent basis, and allows for equal parenting time with both parents,
something which the court addressed in its findings from the bench.
        At the modification hearing, after finding that the evidence showed “a material change in
circumstance that would warrant a modification of the order for paternity,” the court found that it
was in the children’s best interests that Bob and Marlene have joint legal and joint physical custody
and that education decisions should be made by Bob. The court stated, “To effectuate the joint
physical, the Court is clarifying by saying that it is also in the best interests that the minor children
have access to their mother and father and parenting time with their mother and their father, and
that the parenting time will be a percent to each parent.” The court then inquired about a week
on/week off parenting schedule, which Bob’s counsel agreed made sense based on the evidence.
Marlene objected that joint custody and the proposed parenting time schedule was not in the
children’s best interests, stating that “[t]his man was terrible.” We acknowledge Marlene’s
concerns, but given the conflicting evidence we consider and give weight to the fact that the trial
judge heard and observed the witnesses and accepted one version of the facts rather than another.
See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015). Upon our de
novo review, we find no abuse of discretion.
Written Findings Under § 43-2932.
       Marlene asserts that the district court abused its discretion in granting joint physical
custody without making written findings required by § 43-2932. She argues the court’s finding
that granting joint physical custody to Bob was appropriate does not satisfy the statute’s
requirement of explicit findings. She relies on evidence about Bob’s alleged physical abuse of the
children and alleged sexual assault of her.




                                                 - 10 -
       According to Neb. Rev. Stat. § 43-2929 (Reissue 2016):
                (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 . . . ;
                (iii) Has committed domestic intimate partner abuse; or
                (iv) Has interfered persistently with the other parent’s access to the child . . . ; 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
       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.

Section 43-2923(2) states that when a preponderance of the evidence indicates domestic intimate
partner abuse, the best interests of the child require a parenting and visitation arrangement that
provides for the safety of the “victim parent.” A preponderance of the evidence is the equivalent
of the greater weight of the evidence. See Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d
578 (2015). The greater weight of the evidence means evidence sufficient to make a claim more
likely true than not true. NJI2d Civ. 2.12A.
         In the present case, Marlene made numerous allegations of abuse by Bob against herself
and the children, including allegations that Bob sexually assaulted her, but there was no finding
by the court that such abuse occurred. Marlene’s allegations that Bob had physically abused the
children were investigated by CPS and law enforcement, both of which determined the claims to
be unfounded. Marlene’s application for a protection order based on the allegations of physical
abuse and sexual assault was dismissed, and there was conflicting evidence presented at the
modification hearing with respect to these issues. Again, we consider and give weight to the fact
that the trial judge heard and observed the witnesses and accepted one version of the facts rather
than another. See State on behalf of Jakai C., supra. Because Marlene has not shown by a
preponderance of the evidence that Bob engaged in one of the acts specified in § 43-2932(1), the
court was not required to make written findings pursuant to § 43-2932(3) before awarding Bob
joint physical custody. This assignment of error is without merit.




                                                - 11 -
Modification of Education Decisionmaking Authority.
        Marlene asserts that the district court abused its discretion in granting Bob final
decisionmaking authority as to education. The court found that a material change in circumstances
had occurred since the decree, and it modified the previous award of joint legal custody by granting
Bob final decisionmaking authority for matters concerning the children’s education.
        The district court found a material change in circumstances but did not specifically state
what material change necessitated the modification of final decisionmaking authority. Clearly, the
court believed, and we agree, that there was a material change affecting the children’s best interest,
in that since the decree, Marlene changed the children’s school three times, and proposed yet
another change in school for the following school year. The children had missed numerous days
of school while under Marlene’s physical custody. Marlene also injected herself into the school
environment to the point where it became disruptive to the children and their education. The court
did not abuse its discretion in granting Bob final decisionmaking authority with respect to the
children’s education.
                                          CONCLUSION
       The district court did not abuse its discretion in modifying physical custody, granting joint
physical custody without making written findings required by § 43-2932, and granting Bob final
decisionmaking authority as to education.
                                                                                        AFFIRMED.




                                                - 12 -
