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10/25/2016 09:09 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                                              THOMPSON v. THOMPSON
                                               Cite as 24 Neb. App. 349




                                        Nicole K. Thompson, appellee, v.
                                         Justin D. Thompson, appellant.
                                                     ___ N.W.2d ___

                                         Filed October 25, 2016.   No. A-15-708.

                1.	 Child Custody: Appeal and Error. Child custody determinations, and
                     parenting time determinations, are matters initially entrusted to the dis-
                     cretion 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.
                2.	 Judges: Words and Phrases. A judicial abuse of discretion exists when
                     a judge, within the effective limits of authorized judicial power, elects
                     to act or refrains from acting, and the selected option results in a deci-
                     sion which is untenable and unfairly deprives a litigant of a substantial
                     right or a just result in matters submitted for disposition through a judi-
                     cial system.
                3.	 Rules of Evidence. In proceedings where the Nebraska Evidence Rules
                     apply, the admissibility of evidence is controlled by the Nebraska
                     Evidence Rules; judicial discretion is involved only when the rules make
                     discretion a factor in determining admissibility.
                4.	 Trial: Evidence: Appeal and Error. A trial court has the discretion to
                     determine the relevancy and admissibility of evidence, and such deter-
                     minations will not be disturbed on appeal unless they constitute an abuse
                     of that discretion.
                5.	 Evidence: Words and Phrases. Relevant evidence means evidence
                     having any tendency to make the existence of any fact that is of conse-
                     quence to the determination of the action more probable or less probable
                     than it would be without the evidence.
                6.	 Visitation. The trial court has discretion to set a reasonable parenting
                     time schedule.
                 7.	 ____. The determination of the reasonableness of a parenting plan is to
                     be made on a case-by-case basis.
                8.	 ____. Parenting time relates to continuing and fostering the normal
                     parental relationship of the noncustodial parent.
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            Nebraska Court of A ppeals A dvance Sheets
                 24 Nebraska A ppellate R eports
                         THOMPSON v. THOMPSON
                          Cite as 24 Neb. App. 349

  9.	 ____. The best interests of the children are the primary and paramount
      considerations in determining and modifying visitation rights.
10.	 Visitation: Courts. District courts are not statutorily required to grant
      equal parenting time if such is not in the child’s best interests.
11.	 Parent and Child. The best interests of a child require that the child’s
      family remain appropriately active and involved in parenting with safe,
      appropriate, continuing quality contact between the child and the child’s
      family when they have shown the ability to act in the best interests of
      the child and have shared in the responsibilities of raising the child.

   Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed in part, and in part reversed and
remanded with directions.
  James C. Bocott, of Law Office of James C. Bocott, P.C.,
L.L.O., for appellant.
   Kim M. Seacrest, of Seacrest Law Office, for appellee.
   Inbody, R iedmann, and Bishop, Judges.
   R iedmann, Judge.
                       INTRODUCTION
   Justin D. Thompson appeals from the order of the dis-
trict court for Lincoln County which dissolved his marriage
to Nicole K. Thompson, divided the marital property, and
awarded custody and parenting time of their minor child. We
find that the parenting time awarded to Justin was an abuse of
discretion; therefore, we reverse that portion of the decree and
remand the cause for formulation of a new parenting plan.
                        BACKGROUND
   Justin and Nicole were married in 2007, and their child was
born in 2011. The parties separated in August 2013, and Nicole
filed for dissolution of the marriage. Each party requested cus-
tody of the minor child. In a temporary order, the district court
awarded custody of the child to Nicole and granted Justin par-
enting time every other weekend.
   Trial was held in May 2015. Relevant to this appeal, evi-
dence was presented as to the strengths and weaknesses of
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

Justin and Nicole relating to their fitness for custody of the
child. Nicole works at an urgent care center Monday through
Friday from approximately 8 a.m. until 5 p.m., but she has
some flexibility in her hours. Nicole usually drops the child off
at daycare and picks her up after work.
   Justin is a firefighter who typically works 24 hours on, 24
hours off until he has worked for 5 days, and then he has 6
consecutive days off. Thus, instead of sending the minor child
to daycare when Nicole is working but Justin is not, Justin
requested he receive parenting time during his days off. This
was the arrangement the parties utilized during the marriage,
where Justin or his mother would watch the child while Nicole
was working.
   Nicole acknowledged that Justin and the child have always
had a close relationship. Nonetheless, she requested that he
continue to receive parenting time every other weekend in
order to maintain the schedule imposed in the temporary order,
which Nicole believed was working well for the child. She did
not believe that allowing the child to be with Justin on his days
off would work well for the child.
   Justin and Nicole communicate through text messages,
and Nicole testified that their communication is “very, very
sparse.” They do not speak in person, and the exchange of the
minor child is facilitated by the paternal grandparents pursu-
ant to the temporary order. Nicole said she and Justin do not
parent together at all, and when asked whether joint custody
should be considered, she stated, “Not at all.” She said that
any kind of joint parenting would be “[v]ery unrealistic” at this
point and would “[a]bsolutely” affect the child because she and
Justin are unable to communicate about simple things. Rather
than their communication improving after their separation, it
deteriorated to the point where Nicole said there is virtually no
communication between them.
   Nicole testified about some of Justin’s behaviors during
the marriage. She described experiencing some physical and
verbal abuse, including an incident where he struck her. She
claimed he drank to excess, which exacerbated his anger.
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

There was an incident in July 2014 where Justin had been
drinking alcohol, “got his pistol out of the gun safe,” and
threatened to commit suicide. Justin admitted to suffering
emotional issues during the years prior to trial, including being
suicidal at times. After the July 2014 incident, he completed an
outpatient mental health program, and according to Justin, he
has not had any additional mental health issues or thoughts of
suicide since then.
   The child’s daycare provider testified and described sev-
eral instances where Justin would show up at her home and
act inappropriately, including times when he would become
very emotional and cry, which would upset the minor child.
Although Nicole timely pays her portion of the child’s day-
care expenses, the provider continuously had problems with
Justin’s portion. There have been times when Nicole had to
pay Justin’s share of the expenses to avoid losing the child’s
position in daycare. Justin remained behind on his payments as
of the time of trial. Justin described his difficulty in budgeting
for his monthly expenses, but admitted to traveling on numer-
ous occasions in 2014 and 2015, including an overnight trip to
a concert in Wyoming, a ski trip to Colorado, a trip to Florida,
and a trip to a concert in Omaha, Nebraska.
   During Justin’s testimony, he offered an exhibit, marked
as exhibit 22, into evidence. Exhibit 22 was described as a
memorandum order from “this [c]ourt” that counsel shared
with Justin and that Justin understood to be the standard par-
enting time schedule utilized by the trial court. Nicole objected
to allowing exhibit 22 into evidence, arguing that it had no
purpose, did not apply to the present case, and was outdated
because it had been modified since its original creation in
1999. The objection was sustained.
   The dissolution decree was filed on May 27, 2015. The dis-
trict court found that each party was a fit and proper person to
have the care, custody, and control of the minor child. After
observing the demeanor of each of the witnesses and consider-
ing all of the evidence, the court found that the best interests
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349


of the minor child would be served by placing her custody
with Nicole subject to the right of reasonable parenting time
with Justin.
   The district court determined that the parties equally copar­
ented the child until they separated, at which time Nicole
became the primary parent, and found the evidence was “crys-
tal clear” that Nicole has properly cared for the child and is
a loving mother who puts the child’s welfare above all other
matters. The court acknowledged that Justin is an “excellent
father” who desires to spend as much time as possible with the
child. The court also noted, however, several negative factors
about Justin that were revealed during trial, including his con-
templation of suicide, the incident of domestic assault against
Nicole, his failure to promptly pay daycare expenses while tak-
ing extended vacations, and his emotional displays at the day-
care provider’s residence. The court summed up the evidence
by concluding that Nicole’s emotional stability is substantially
greater than Justin’s.
   The court observed that it is “unfortunate” that Justin and
Nicole “have virtually no communication with each other” and
found that although some type of joint custody arrangement
might have been an “optimum situation” if the parties had a
better relationship with each other, joint custody was “obvi-
ously not feasible at the present time.” Therefore, the court
ordered parenting time for Justin every other weekend from
Friday at 6 p.m. to Sunday at 6 p.m. and two holidays per year.
Justin timely appeals to this court.
                  ASSIGNMENTS OF ERROR
   Justin assigns that the district court erred in (1) refusing
to admit exhibit 22 into evidence, (2) finding that the court-
ordered parenting plan was in the best interests of the child,
and (3) finding that the standard visitation schedule was in the
best interests of the child and improperly shifting the burden of
proof to him to prove that the standard schedule is not in the
best interests of the child.
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

                    STANDARD OF REVIEW
   [1,2] Child custody determinations, and parenting time deter-
minations, 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. Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d
304 (2013). A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects
to act or refrains from acting, and the selected option results in
a decision which is untenable and unfairly deprives a litigant
of a substantial right or a just result in matters submitted for
disposition through a judicial system. Id.
                           ANALYSIS
Exhibit 22.
   Justin argues that the district court erred in sustaining
Nicole’s objection to exhibit 22 and refusing to receive it into
evidence. We disagree.
   [3-5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. In re Invol. Dissolution of Wiles Bros., 285 Neb. 920,
830 N.W.2d 474 (2013). A trial court has the discretion to
determine the relevancy and admissibility of evidence, and
such determinations will not be disturbed on appeal unless
they constitute an abuse of that discretion. Id. Relevant
evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it
would be without the evidence. Neb. Rev. Stat. § 27-401
(Reissue 2008).
   In the present case, the factual determination to be made
by the district court was which custody and parenting time
arrangement was in the best interests of the parties’ minor
child. During direct examination, Justin’s attorney sought to
introduce exhibit 22 into evidence through Justin. The purpose
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

of the offer was apparently to show that the court utilizes a
standard parenting plan that provides for parenting time every
other weekend from Friday to Sunday with alternating time
on four holidays and 6 weeks of summer parenting time.
Justin was allowed to testify as to the content of the standard
parenting plan and state his opinion that such a plan was not
in the best interests of his child. The court sustained Nicole’s
relevancy objection on the basis that the exhibit was not the
current version of the court’s standard plan.
   The focus of Justin’s testimony was to support his request
for custody of the child or, in the alternative, more parenting
time than he received in the temporary order. Nothing about
an outdated standard parenting time schedule tends to prove
that awarding Justin custody or additional parenting time
would be in the best interests of this child.
   Although the fact that the court will utilize a standard plan
could generally support Justin’s argument on appeal that the
court does not tailor its parenting plans to the specificities of
each case, from an evidentiary standpoint, the exhibit does not
tend to make the existence of a fact of consequence any more
or less probable. In other words, exhibit 22 does nothing to
prove or disprove that Justin should be awarded custody or,
in the alternative, more parenting time. As a result, the district
court did not abuse its discretion in sustaining Nicole’s objec-
tion and refusing to admit exhibit 22 into evidence.
Court-Ordered Parenting Plan.
   Justin claims that the district court abused its discretion in
finding that the court-ordered parenting plan was in the child’s
best interests. We agree, and therefore, we reverse this por-
tion of the decree and remand the cause to the district court
to create a parenting plan that takes into consideration Justin’s
availability to parent his child.
   [6-9] The trial court has discretion to set a reasonable par-
enting time schedule. See Maranville v. Dworak, 17 Neb. App.
245, 758 N.W.2d 70 (2008). The determination of reasonable-
ness is to be made on a case-by-case basis. Id. Parenting
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

time relates to continuing and fostering the normal parental
relationship of the noncustodial parent. See, Fine v. Fine,
261 Neb. 836, 626 N.W.2d 526 (2001); Walters v. Walters,
12 Neb. App. 340, 673 N.W.2d 585 (2004). The best interests
of the children are the primary and paramount considerations
in determining and modifying visitation rights. Id. The best
interests inquiry has its foundation in both statutory and
case law.
   Neb. Rev. Stat. § 43-2923(6) (Cum. Supp. 2014) provides
that in determining custody and parenting arrangements:
      [T]he court shall consider the best interests of the minor
      child, which shall include, but not be limited to, consid-
      eration of . . . :
         (a) The relationship of the minor child to each parent
      prior to the commencement of the action or any subse-
      quent 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; [and]
         (c) The general health, welfare, and social behavior of
      the minor child.
   [10] In addition to these factors, the Nebraska Supreme
Court has previously held that in determining a child’s best
interests, courts
      “‘may consider factors such as general considerations of
      moral fitness of the child’s parents, including the parents’
      sexual conduct; respective environments offered by each
      parent; the emotional relationship between child and par-
      ents; the age, sex, and health of the child and parents;
      the effect on the child as the result of continuing or dis-
      rupting an existing relationship; the attitude and stability
      of each parent’s character; parental capacity to provide
      physical care and satisfy educational needs of the child;
      the child’s preferential desire regarding custody if the
      child is of sufficient age of comprehension regardless of
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

      chronological age, and when such child’s preference for
      custody is based on sound reasons; and the general health,
      welfare, and social behavior of the child.’”
Davidson v. Davidson, 254 Neb. 357, 368, 576 N.W.2d 779,
785 (1998). The relevant Nebraska statutes do not require a
district court to grant equal parenting time if such is not in the
child’s best interests. See Kamal v. Imroz, 277 Neb. 116, 759
N.W.2d 914 (2009).
   In the present case, the district court made detailed fac-
tual findings in its order, concluding that although Justin and
Nicole are both fit and proper parents, placing custody with
Nicole subject to Justin’s parenting time was in the child’s best
interests. The court characterized Justin as an “excellent father”
who “clearly . . . desires to spend as much time as possible
with his minor child.”
   However, under the parenting plan the district court created,
Justin received parenting time with the minor child only 4
days per month. We find that arrangement constitutes an abuse
of discretion when considering the evidence presented at trial.
Importantly, the parties shared parenting responsibilities when
they were married, with Justin taking care of the child on his
days off while Nicole was working. Additionally, Justin has
an atypical work schedule which allows him approximately
20 days off per month, time he could be spending with the
child. Nicole provided no justification for limiting Justin’s
parenting time to every other weekend except for maintain-
ing the arrangement provided in the temporary parenting plan.
In other words, Nicole expressed no concern about the child
spending additional time with Justin. The district court found
Justin to be an “excellent father,” and despite acknowledging
some of Justin’s shortcomings, the court appeared to favor a
joint custody arrangement but for the parties’ communication
issues. Thus, the decision to award Justin such limited parent-
ing time appears not to be based upon Justin’s behaviors, but,
rather, solely on the parties’ inability to communicate with
each other.
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               24 Nebraska A ppellate R eports
                     THOMPSON v. THOMPSON
                      Cite as 24 Neb. App. 349

   [11] The best interests of a child require that the child’s
family remain appropriately active and involved in parenting
with safe, appropriate, continuing quality contact between
the child and her family when they have shown the ability to
act in the best interests of the child and have shared in the
responsibilities of raising the child. See § 43-2923. Based on
the facts of this case, we find that allowing Justin parenting
time only every other weekend constitutes an abuse of the trial
court’s discretion. We therefore reverse the parenting plan and
remand the cause for creation of a new parenting plan that is
tailored for the best interests of this child.
   Because we find that the parenting plan ordered by the dis-
trict court is not in the child’s best interests and we remand the
cause to the district court with directions to devise a parenting
plan that takes into consideration Justin’s available parenting
days, we need not address Justin’s assignment of error regard-
ing whether the district court erroneously shifted the burden
to him to prove its standard visitation schedule was not in the
child’s best interests.
                         CONCLUSION
   We conclude that the district court did not abuse its discre-
tion in sustaining the objection to exhibit 22. However, award-
ing Justin only two weekends of parenting time per month
under the parenting plan was an abuse of discretion. We there-
fore reverse that portion of the decree and remand the cause for
formulation of a new parenting plan taking into consideration
Justin’s available parenting days.
	A ffirmed in part, and in part reversed
	                       and remanded with directions.
