                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        SNYDER V. SNYDER


  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).


                                   NYE T. SNYDER, APPELLEE,
                                               V.

                                LAURA M. SNYDER, APPELLANT.


                          Filed September 25, 2018.    No. A-17-1048.


       Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed.
       Avis R. Andrews for appellant.
       Linsey Moran Brant, of Sidner Law, for appellee.


       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                        INTRODUCTION
        Laura M. Snyder appeals the district court’s decree of dissolution of marriage, which
awarded physical custody of the parties’ three children to Nye T. Snyder and joint legal custody
to both parents. Additionally, the court gave Nye tiebreaking power in the event of an impasse
regarding any legal decisions, and it ordered Laura to pay $667 per month in child support for the
three children. On appeal, Laura assigns error to the district court for awarding Nye physical
custody and granting him tiebreaking authority in parenting decisions. She also assigns error to
the court’s child support calculation, which she argues is inequitable, noncompliant with the
Nebraska Child Support Guidelines, and inappropriately high given Laura’s extended parenting
time. Finding no abuse of discretion, we affirm.




                                              -1-
                                         BACKGROUND
         The parties were married on April 22, 2006. Three children were born during the parties’
marriage: a son in 2007, another son in 2009, and a daughter in 2016. Nye filed a complaint for
dissolution of marriage in April 2015, and an amended complaint for dissolution of marriage in
May 2016. In his amended complaint, Nye requested sole legal and physical custody of the
children or, in the alternative, joint legal and physical custody if sole custody was not awarded to
him. Nye additionally requested child support be determined according to the Nebraska Child
Support Guidelines.
         In May 2015, Laura filed an answer and counterclaim for dissolution of marriage wherein
she requested joint legal custody and primary physical custody of the children. Additionally, Laura
requested that child support be ordered in accordance with the relevant guidelines. By temporary
order in January 2017, the court awarded “temporary joint legal and physical care, custody and
control of the minor children of the parties subject to the parenting arrangement currently in
effect.” That arrangement called for a 50/50 split of parenting time. The court further ordered the
parties to attend counseling with the children. No child support was ordered at that time. By order
filed later in January, the court additionally ordered the parties to divide equally the costs of all
child care incurred on behalf of the children.
         A trial was held over the course of 2 days in April and May 2017. At trial, the primary
focus of the testimony centered on custody and parenting time. The testimony dealt with the
parties’ respective dispositions, living environments, and stability. There was also significant
testimony regarding the parties’ communication, which is generally strained but mostly effective
when it comes to especially significant matters. Notably at trial, Laura sought joint physical and
legal custody of the children only. Nye continued to seek sole custody.
         During the pendency of these proceedings, both parties have been charged with offenses
related to their conduct toward each other. Nye acknowledged entering a no contest plea to a charge
of second degree trespass related to attempts he made at contacting Laura when she claimed to be
at her mother’s house. Similarly, Laura acknowledged she had been arrested on a domestic assault
charge related to Nye and ultimately pleaded guilty to a charge of disturbing the peace.
         The parties have dissimilar parenting styles, particularly regarding disciplining their
children. Namely, Nye testified that he utilizes a stern tone of voice whereas Laura raises her voice
to yell or scream at the children. Nye acknowledged that he had spanked his sons on one occasion
but no longer does so. Additionally, Sharon Hartung, Laura’s mother who was called to testify by
Nye confirmed that Laura is prone to screaming and yelling at her sons. Hartung testified to one
incident in particular when Laura was driving Hartung to her son’s home in the winter of 2016 at
4:30 in the morning. While driving, Laura repeatedly yelled for her younger son to retrieve her
cell phone until he began crying. She then ordered him to get out of the car and start walking. That
incident occurred when he was 7 years old. Laura denied that she yelled incessantly at her children,
stating that she utilized three warnings, timeouts, and denial of toys as her primary means of
discipline.
         Laura testified that she works at First Data in Omaha and lives 10 to 15 miles outside
Fremont in a two-bedroom, single-wide mobile home trailer with her father. When the children




                                                -2-
are with Laura, the three children share one bedroom while either Laura or her father sleeps on the
couch with the other person sleeping in the second bedroom. Meanwhile, Nye lives in Fremont in
a two-bedroom duplex with a full, unfinished basement to which he has added large pieces of
carpeting that cover the concrete floor. The basement is furnished as the boys’ bedroom and
includes bunkbeds, dressers, a television, and a gaming system. Nye lives with his girlfriend. Nye
testified that he has no intention of leaving Fremont, which is where the children attend school.
Although Laura testified that she had considered moving to Omaha, she stated there was a very
remote chance of that happening and wanted the children to remain enrolled in school in Fremont
regardless of her living situation.
         During trial, both parties acknowledged experiencing persistent communication problems
in their relationship. Nye noted that during his cohabitation with Laura, they communicated “[n]ot
very well; very -- not very well communicating.” Moreover, since their separation, Nye noted that
most communication is done via text messages, which often leaves matters unresolved or leads to
prolonged arguments. Laura confirmed during her testimony that communication issues persist
between the parties. Nonetheless, Laura stated her belief that they could co-parent and are
generally able to effectively deal with significant matters, especially regarding the children’s
schooling. However, she also testified that she did not think that their communication would
improve following trial. Both parties attend counseling sessions together for their sons, and Nye
acknowledged that they generally agree on how to handle the counselor’s recommendations. Nye
also stated that he and Laura have not experienced the same communication difficulties regarding
the appropriate medications for their sons.
         In the decree filed on July 20, 2017, the district court awarded to Nye sole physical custody
of the parties’ three children subject to specific parenting time the court awarded to Laura. Laura
was awarded parenting time every other weekend from Friday at 6 p.m. until the following Monday
at 9 a.m. or when school begins and every Wednesday from 5:30 p.m. until the following Thursday
at 9 a.m. or when school begins. For the months of June and July, the parties are to follow a week
on/week off schedule. Additionally, the court awarded the parties joint legal custody of their three
children but awarded Nye tiebreaking power in the event of an impasse. Finally, the court also
ordered Laura to pay Nye $667 per month as child support for the three minor children.
         Laura appeals.
                                   ASSIGNMENTS OF ERROR
        Consolidated and restated, Laura assigns that the district court erred in (1) failing to award
the parties joint physical custody of the minor children and awarding physical custody of the minor
children to Nye, (2) awarding Nye tiebreaking power in making parental decisions, and (3) failing
to correctly calculate child support in compliance with the Nebraska Child Support Guidelines.
                                    STANDARD OF REVIEW
       Appellate courts review dissolution actions de novo on the record to determine whether
there was an abuse of discretion by the trial court. Osantowski v. Osantowski, 298 Neb. 339, 904
N.W.2d 251 (2017). This standard of review applies to the child custody and child support
determinations. Id. In reviewing the record de novo, appellate courts must make independent




                                                -3-
factual determinations. Id. When evidence conflicts, however, appellate courts may consider and
give weight to the trial court’s findings because the trial court actually heard and observed the
witnesses. Id.
                                             ANALYSIS
Physical Custody.
        Laura argues the district court abused its discretion in awarding physical custody of the
children to Nye. Based on our de novo review, we find the district court did not abuse its discretion
in its award of custody and thus affirm.
        In determining child custody issues, the overriding consideration is the best interests of the
children. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017). In evaluating the children’s
best interests, courts are directed to consider what parenting arrangement will best provide for
children’s safety, emotional and physical health, and stability, with an emphasis on continuous
school attendance and progress. Neb. Rev. Stat. § 43-2923(1) (Reissue 2016).
        The standard for determining custody is parental fitness and the child’s best interests. Gress
v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). Nebraska’s Parenting Act states that it is in the
best interests of the child to have a “safe, stable, and nurturing environment.” Neb. Rev. Stat.
§ 43-2921 (Reissue 2016). To determine the best interests of a child, a court must consider, at a
minimum: (1) the relationship of the minor child to each parent prior to the commencement of the
action or any subsequent hearing; (2) 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; (3) the general health, welfare, and social behavior of the minor child; (4)
credible evidence of abuse inflicted on any family or household member; and (5) credible evidence
of child abuse or neglect or domestic intimate partner abuse. § 43-2923(6). Other pertinent factors
a court may consider in determining the best interests of a child 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 the parental
capacity to provide physical care and satisfy education needs of the child. Robb v. Robb, 268 Neb.
694, 687 N.W.2d 195 (2004).
        Although Nye was awarded physical custody of the children in this case, Laura was
awarded parenting time every other weekend from Friday at 6 p.m. until the following Monday at
9 a.m. or when school begins and every Wednesday from 5:30 p.m. until the following Thursday
at 9 a.m. or when school begins. Laura was also awarded extended parenting time during the
summers, whereby the parties were directed to alternate custody every week during the months of
June and July.
        Based on our review of the trial record, the award of physical custody and the parenting
time arrangement does not constitute an abuse of the district court’s discretion. During trial, both
parties acknowledged myriad communication issues between them. Evidence was also offered that
showed Nye was better able to provide for the children’s safety, health, and physical needs. For
example, on one occasion Laura was unable to purchase the children’s medication while they were




                                                  -4-
in her care. Nye purchased and delivered the needed medication. There was also trial testimony
regarding an incident during which Laura videotaped the children while she was driving her
moving vehicle.
        There was also ample trial testimony regarding the parties’ differing parenting styles.
Namely, Nye testified that he utilizes a stern tone of voice whereas Laura raises her voice to yell
or scream at the children. This testimony was confirmed by Laura’s mother with whom Laura and
the children lived for several months while the case was pending. Nye also indicated that he had
observed Laura grow more aggressive toward the children in recent years, including her yelling
until the boys cried. Additionally, Laura’s mother testified to a troubling incident in the winter of
2016 during which Laura repeatedly yelled for her younger son to retrieve her cell phone from
within the car until he began crying. Laura then told him to get out of the car and start walking.
That incident occurred when he was 7 years old.
        The trial record is also replete with evidence that Nye is better able to provide the children
with stability, which allows them to continue their current school attendance. Although Laura
considered transferring her sons to a different school, she now acknowledges it is best for them to
continue attending school in Fremont. Nonetheless, Laura lives 10 to 15 miles outside Fremont
and works in Omaha. Nye, on the other hand, lives and works in Fremont, intends to remain in
Fremont, and intends for his sons to remain enrolled in their current school. Furthermore, Nye has
provided more stable living accommodations for his children. At Nye’s home, his sons share a full
basement, which is furnished with a large carpet remnant, bunkbeds, dressers, and a television and
gaming system. Meanwhile, at Laura’s home, all three children share one room while either Laura
or her father occupy a second bedroom with the other person sleeping in the living room.
        Based on a de novo review of the trial record, we find that the district court’s award of
physical custody to Nye was not an abuse of discretion.
Decisionmaking Authority.
        Laura requested and the court awarded the parties joint legal custody of the minor children.
However, she complains that the district court abused its discretion in awarding Nye final
decisionmaking authority in the event the parties cannot reach consensus regarding necessary
decisions that must be made as to health care, education, religion, and residence. We note that
pursuant to the parenting plan, Nye may only exercise his “final say” after the parties have had
opportunity to discuss and deliberate regarding the issue.
        We have previously held that joint legal custody is only appropriate where the parents are
able to effectively communicate. Klimek v. Klimek, 18 Neb. App. 82, 775 N.W.2d 444 (2009).
Here, a strong argument can be made that joint legal custody is inappropriate given the parties
agreement that they do not communicate well. Laura testified that she did not believe
communication would improve in the future. Nonetheless, she testified that she felt joint legal
custody was appropriate. Both parties presented evidence of their general inability to communicate
productively and their preference to communicate as little as possible. While Nye requested sole
legal custody at trial, he has not cross-appealed on that issue.
        Based on the record before us, we cannot say that the district court abused its discretion in
awarding final decisionmaking authority to Nye. Given the evidence adduced, it is probable that



                                                -5-
the parties will not agree on at least some major life decisions for the minor children. Therefore,
the evidence supports the district court’s decision to grant final decisionmaking authority to one
of the parties. Based on the evidence presented at trial, we find that the district court did not abuse
its discretion in awarding final decisionmaking authority to Nye.
Child Support.
        Laura contends the district court abused its discretion in ordering her to pay inequitable
child support that both did not account for her extended parenting time and deviated from the
guidelines. We find no abuse of discretion by the district court and thus affirm with respect to the
child support awarded.
        In determining child support, the best interests of the children is again the paramount
consideration. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). Child support
should generally be set according to the Nebraska Child Support Guidelines, which exist to
recognize parents’ equal duty to support their children, proportional to their respective incomes.
Gangwish v. Gangwish, supra. A court may deviate from the guidelines if application of the same
would be unjust or inappropriate in an individual case. Anderson v. Anderson, 290 Neb. 530, 861
N.W.2d 113 (2015). If a court deviates from the guidelines, it must specifically find that such
deviation is warranted by the evidence. Id.
        The district court calculated child support utilizing only worksheet 1 of the guidelines. This
calculation showed that Laura would owe child support of $835 per month for three children, $725
per month for two children, and $497 per month for one child. The district court then specifically
found “that a deviation from said child support obligation shall be allowed since [Laura] has
extended parenting time with the children, and, as such, shall be granted an abatement from the
child support amount called for in the Guidelines.” A deviation from the assessed child support is
precisely the relief Laura now seeks. Instead of the amounts calculated pursuant to the guidelines,
the district court applied a roughly 20-percent reduction and ordered Laura to pay child support of
$667 per month for three children, $576 per month for two children, and $388 per month for one
child. Thus, the district court accounted for Laura’s extending parenting time in determining the
proper amount of her child support obligation.
        We cannot say, based on a de novo review of the record, that the district court abused its
discretion in determining child support. While the district court in its discretion could have
performed a joint custody calculation based on Laura receiving between 109 and 142 days of
parenting time per year under § 4-212 of the guidelines, it was not obligated to do so. The district
court instead deviated from the guidelines by lowering Laura’s monthly child support obligation
that would have been called for under the basic calculation attached to the decree. In so doing, the
court found that Laura was entitled to an abatement given the extended parenting time awarded to
her. We note that the worksheet 1 calculation would have required Laura to pay $835 per month.
Therefore, the district court’s reduction to $667 per month adequately accounted for Laura’s
extended parenting time and did not constitute an abuse of discretion.




                                                 -6-
                                          CONCLUSION
         Upon our de novo review of the record, we find the district court did not abuse its discretion
in awarding Nye sole physical custody of the children and awarding the parties joint legal custody,
with Nye holding final decisionmaking ability in the event of an impasse. Likewise, we find the
district court did not abuse its discretion in its award of child support to be paid by Laura.
                                                                                           AFFIRMED.




                                                 -7-
