                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                             STATE ON BEHALF OF JACOBSON V. JACOBS


  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).


                 STATE OF NEBRASKA ON BEHALF OF STACI JACOBSON, APPELLEE,
                                                  V.

                                   JESSE T. JACOBS, APPELLANT.


                            Filed December 12, 2017.      No. A-16-1171.


       Appeal from the District Court for Buffalo County: JOHN M. MARSH, Judge. Affirmed as
modified.
       Kent A. Schroeder and Mary Rose Richter, of Ross, Schroeder & George, L.L.C., for
appellant.
       Aaron M. Bishop, of Bishop Law, for appellee.



       MOORE, Chief Judge, and INBODY and BISHOP, Judges.
       MOORE, Chief Judge.
                                        I. INTRODUCTION
         Jesse T. Jacobs appeals from an order of the district court for Buffalo County, Nebraska,
which denied his application to modify custody and parenting time of his son Brett. We affirm the
district court’s denial of Jesse’s application to modify custody, but we modify the order to afford
Jesse additional parenting time as set forth below.
                                        II. BACKGROUND
        Jesse and Staci Jacobson were friends who had one intimate encounter in 2005. In July of
2006, Staci gave birth to Brett. During her pregnancy, Jesse asked Staci whether he was the child’s
father, which Staci denied. Several months after Brett’s birth, Jesse took a paternity test the results



                                                 -1-
of which confirmed he was Brett’s father. Jesse and Staci immediately made arrangements to
include Jesse in Brett’s life. Soon thereafter, Jesse graduated from the University of
Nebraska-Kearney and moved to Omaha. Over the next few years, Jesse and Staci were able to
informally agree on a parenting arrangement, which gave Jesse parenting time with Brett every
other weekend. Jesse and Staci entered into a parenting plan in 2009 that gave Staci legal and
physical custody. The plan gave Jesse parenting time every other weekend beginning at 6:00 p.m.
on Friday and ending at 6:00 p.m. on Sunday. Additionally, the plan provided that after Brett’s
kindergarten year, Jesse would be granted six weeks of parenting time during the summer. The
court approved the plan in an order entered on July 23, 2009. In the winter of 2010, Jesse moved
back to Kearney so he could develop a better relationship with his son. Thereafter, Staci voluntarily
allowed Jesse to have parenting time beyond that which was contained in the 2009 parenting plan.
        On May 22, 2015, Staci filed a complaint for modification of parenting time and child
support. She alleged a material change in circumstances which had a direct and substantial impact
on Brett’s best interests. She claimed that Jesse did not acknowledge the importance of Brett’s
participation in academic activities, particularly during the summer months. Further, she alleged
that Jesse was residing with his girlfriend, who has a minor child. Staci claimed this minor child
had a negative impact on Brett. She argued these factors together warranted a change in the
parenting plan. Staci also sought modification of child support. Staci filed a request to have a
clinical psychologist perform a custody evaluation. Jesse filed an answer and counterclaim
requesting a change in custody and also alleging there had been a material change in circumstances.
At trial, Jesse altered his claim. In place of sole custody, he requested joint physical custody or,
alternatively, modified parenting time.
        In June of 2015, the district court entered orders on temporary matters. Because the parties
could not resolve the 2015 summer parenting time schedule, the court set the summer schedule.
The court also approved Staci’s request to have a clinical psychologist perform a custody
evaluation. Finally, the court modified Jesse’s child support beginning July 1, increasing his
support obligation from $500 per month to $610 per month, and modifying the prior order to
require Staci to maintain health insurance for Brett.
        Trial occurred on October 3, 2016. The parties produced evidence about the parties’
circumstances between 2009 and the time of trial. When the court entered the 2009 custody order
entered, Jesse was single and lived in Omaha--nearly a three hour drive from where Brett lived
with his mother. Jesse had a drinking habit that resulted in some minor legal trouble. He worked
as a salesman for a trucking company, which placed extensive demands on his time. Although
Jesse was interested in spending time with his son, he did not exercise the minimum parenting time
available to him. Because Staci wanted Brett to have significant contact with his father and his
father’s family, she encouraged Jesse’s contact with Brett and allowed Brett to spend time with his
paternal grandparents during her parenting time.
        After Jesse moved back to Kearney in 2010, Staci informally agreed to increase Jesse’s
parenting time to include every Sunday afternoon in addition to his parenting time every other
weekend. In the spring of 2012, Staci also agreed to allow Jesse to spend Wednesday nights with
Brett and to allow Brett to join Cub Scouts, which met on Tuesday nights. Jesse became a Cub
Scout leader to spend additional time with Brett on Tuesday nights. Jesse and Staci also orally



                                                -2-
agreed to modify the weekend visitations by having them begin on Fridays after school and ending
on Sundays at 7:30 p.m. In addition, the parties agreed in 2013 and 2014 that Jesse would have
Brett for the bulk of summer, subject to Staci’s parenting time every other weekend and
Wednesday evenings.
        At the time of trial, Staci had lived in the same Kearney residence for six years. While her
boyfriend, Blake, has resided with her for five years, they have no plans to marry. Staci is
employed at the University of Nebraska-Kearney in the registrar’s office. Staci’s testimony
generally confirmed that prior to the modification proceedings, she and Jesse were able to
communicate well and work out parenting time arrangements. Jesse was involved in Brett’s life,
and Staci allowed Jesse to have more parenting time than specified in their parenting plan.
        In 2013, Jesse moved in with his girlfriend, Kady, and her son, Dominic, who is
approximately two years older than Brett. When Brett and Dominic first spent significant time
together, they had some adjustment issues. And although Brett continued to thrive academically,
he began to demonstrate behavior problems in school, including disruptive classroom behavior,
talking back to his teachers, difficulty sitting still in class, and drawing attention to himself in
negative ways. Staci attributed Brett’s classroom conduct to his contact with Dominic. As a result,
Staci stopped allowing Brett to spend time with his father on Wednesday and Sunday nights and
pulled Brett out of Cub Scouts on Tuesday nights. Staci also refused to allow Jesse to have
parenting time for the bulk of the summer of 2015 as had occurred the prior two summers.
        During the spring semester of Brett’s second grade year in 2015, Brett began exhibiting
these behavior problems at school. Both Staci and Jesse participated in Student Assistance Team
(SAT) meetings with school personnel to address strategies to address Brett’s behavioral issues.
The school counselor testified that both parents were responsive in their interactions with her and
Brett’s behavior improved at school. Because Staci had concerns about Brett’s relationship with
Dominic, she arranged for Brett to see a private counselor. She also began refusing to allow Brett
to spend time with his father that was not specifically enumerated in their parenting plan.
        In addition to the concern regarding Brett’s behavior and his relationship with Dominic,
Jesse and Staci also disagreed over Brett’s 2015 summer child care arrangements, leading Staci to
file the modification complaint. Staci had previously enrolled Brett in the Kearney Community
Learning Center (KCLC), an after-school program that provides homework assistance, healthy
snacks, physical activities, and optional clubs. KCLC also offers an eight-week summer program,
which contains an educational component as well as day camp activities. Jesse preferred to employ
a private sitter while Brett was with him in the summer. Brett did attend the KCLC program in the
summer of 2015. Staci testified that Brett had fewer difficulties re-adjusting to school at the
beginning of his third grade year in the fall of 2015.
        The director of KCLC testified that both Jesse and Staci were responsive to her and she
had no concerns about either of their parenting. Brett’s third grade teacher, who was also his fourth
grade teacher, testified. She indicated generally that Brett does well in school and is a strong reader.
Brett continues to exhibit some behaviors at school to get attention in negative ways. The teacher
did not notice that the behaviors occurred more on any particular day or time of the school year.
She testified that both parents were responsive to her, communicated with her by e-mail, and
attended parent-teacher conferences.



                                                 -3-
        Staci testified that she and Jesse communicate well. In addition, Staci and Kady have a
good relationship, and they “can communicate back and forth very easily.” Jesse and Staci were
able to agree about Jesse’s 2016 summer parenting time. Brett attended KCLC during part of the
summer and also had a private sitter during part of Jesse’s parenting time. Brett participated in
baseball, theater camp, swimming lessons, and art class. Jesse and Staci were able to discuss these
events and schedule their parenting times around them. Staci expressed concern about Brett not
finishing his homework when at Jesse’s home during the school year. Staci testified that she is the
parent who arranges Brett’s activities and medical appointments.
        At the time of trial, Jesse lived within walking distance of Staci and Brett. Jesse and Kady
married in the summer of 2015, and they were expecting a child in November. Dominic resides
with Jesse and Kady. Jesse is self-employed in a cable locating business and often works from
home, which gives him significant flexibility in taking care of the children. Jesse has developed a
strong relationship with Brett and is very active in Brett’s life. Jesse attends parent-teacher
conferences at Brett’s school. Jesse supports Brett’s attendance at KCLC during the school year
but feels “he needs to get out of the classroom environment and enjoy being a kid” during the
summer. His summer daycare provider is a stay-at-home mom who lives next door to him. Her
husband is a professor and chair of the education department at the University of
Nebraska-Kearney. Jesse testified that Brett’s relationship with Dominic is “greatly improving.”
Each boy tells the other “I love you,” and they give each other hugs. Jesse testified that Staci is a
very loving mother, who is both well-organized and active in Brett’s life. Jesse admitted he is less
structured than Staci. Jesse testified that he would like to share custody of Brett because he wants
to be as big a part of his life as possible. Jesse proposed alternating physical custody on a weekly
basis, with each having parenting time on Wednesday evenings when Brett is in the care of the
other parent.
        Dr. John Meidlinger, a licensed clinical psychologist, testified at trial. As a part of his
custody evaluation in this case, Meidlinger interviewed Brett, Jesse, Staci, Kady, Blake, and
Dominic. Meidlinger had an opportunity to observe each parent with Brett. Meidlinger also
conducted telephone interviews with the references the parents provided and reviewed collateral
documents. Meidlinger spoke with Brett’s teacher and principal. They indicated that Jesse was an
involved parent and that he worked with the school to get Brett to complete his homework and
improve his behavior in the classroom.
        Meidlinger testified that “my own bias would be for Brett to change households on a
weekly basis, but that is not what Brett is asking for nor is it what [Jesse] is asking for.” He felt
that weekly transitions would maximize both parent’s parenting time while minimizing the
parent’s conflicts and reducing the number of confusing transitions for Brett. However, Meidlinger
indicated that he was not inclined to recommend alternating weeks between parents if Brett is not
asking for that specifically--although he “wouldn’t argue against it if the Court made that
decision.” Meidlinger testified that Brett wanted to be at his father’s home “a little more often”
and maybe some time every weekend. Brett liked the idea of having overnight visits with Jesse on
Wednesday and Sunday. When Meidlinger asked Brett about spending alternating weeks between
his parents, Brett said that might be possible because the homes are close together. Brett speculated
that he and Dominic might get along better if they had more time together. According to



                                                -4-
Meidlinger, Brett “thought alternating weeks might be okay but preferred the idea of two
overnights a week and continuing to spend time with his mother.”
         Meidlinger ultimately recommended that it would be in Brett’s best interest for Jesse’s
parenting time to continue with every other weekend, every other holiday, half of the summer, and
two overnights each week. Meidlinger believed that Brett spending more time with Dominic would
have a positive impact on their ability to get along.
         Staci proposed a modified parenting plan that extended Jesse’s weekend visitation to
include overnight on Sunday, Christmas Day every year, and a week at spring break. However,
her proposal reduced Jesse’s summer parenting time by two weeks in order to attend KCLC. Staci
testified that her proposal ultimately allowed Jesse more parenting time with Brett. However, Staci
also testified that she was not asking the court to make any changes to the parenting plan because
she felt there had not been a material change in circumstances. She indicated her proposal was
only in response to Meidlinger’s recommendation.
         On October 26, 2016, the district court entered an order, finding that neither parent had met
their burden of proving a material change in circumstances with regard to custody and parenting
time, with the exception that the parties have been unable to agree on Jesse’s six weeks of summer
parenting time. The court ordered that in the event the parties cannot agree, Jesse’s summer
parenting time begins on the Sunday seven weeks prior to the beginning of the school year. The
court indicated that during Jesse’s parenting time, he will have the discretion to determine child
care or education arrangements in the best interest of the child. The court adopted the $610 per
month child support calculation it entered in its June 2015 order. The court further determined that
each party should be responsible for their own attorney fees and ordered Jesse to reimburse Staci
for one-half of the cost of the custody evaluation.
         Jesse filed a motion for new trial or in the alternative to alter or amend the order. In its
order overruling the motion, the court stated:
                 The Court finds that a material change in circumstances is still the appropriate
         standard. While best interest of the child is always paramount, stability of the child’s
         placement is important for a child’s best interests. The material change in circumstances
         standard is one of the safeguards against constant re-litigation of a parenting plan which
         would not be in a child’s best interest. The Court further believes that if the Parenting Act
         eliminated that long-standing doctrine, the Legislature would have been explicit in doing
         so. The Court considered [Jesse’s] change in residence, the minor child’s wishes to spend
         more time with his father, findings under the totality of the circumstances, there is no
         material change in circumstances.

Jesse timely filed this appeal.
                                  III. ASSIGNMENTS OF ERROR
       Jesse assigns, consolidated and restated, that the district court erred in (1) concluding there
had not been a material change in circumstances to warrant a modification of custody, and (2)
concluding that Jesse’s current parenting time was in the child’s best interest.




                                                -5-
                                   IV. 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 Natalya B. v. Bishop A., 24 Neb. App.
477, 891 N.W.2d 685 (2017).
        In a review de novo on the record, an appellate court reappraises the evidence as presented
by the record and reaches its own independent conclusions on the matters at issue. Bergmeier v.
Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017). Where credible evidence is in conflict in 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.
State on behalf of Lockwood v. Laue, 24 Neb. App. 909, 900 N.W.2d 582 (2017).
        An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). 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.
                                           V. ANALYSIS
       Jesse challenges the trial court’s order denying his request to modify the prior order to
award him joint physical custody of Brett. Alternatively, he challenges the denial of his request to
modify his parenting time. The trial court found that because there was no material change of
circumstances, Jesse was not entitled to relief, with the exception of further defining the start of
summer parenting time.
                                   1. MODIFICATION OF CUSTODY
        Jesse assigns that the district court erred in concluding there had not been a material change
in circumstances to warrant a modification of custody. Although we differ in our analysis, we
ultimately conclude that the district court did not abuse its discretion in failing to modify custody.
        The legal principles governing the modification of child custody are well settled. A court
will not modify custody unless there has been a material change in circumstances showing either
that the custodial parent is unfit or that the best interest of the child require such action. Schrag v.
Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). The party seeking modification must first show a
material change in circumstances, occurring after the entry of the previous custody order and
affecting the best interests of the child. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016).
After establishing a material change in circumstances, the party seeking modification must show
a modification of custody is in the child’s best interest. Id. Material change in circumstances,
warranting modification of child custody, means the occurrence of something which, had it been
known to the dissolution of marriage court at the time of the initial decree, would have persuaded
the court to decree differently. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419
(2016).




                                                 -6-
                               (a) Material Change in Circumstances
        Our review of the record leads us to conclude that there has been a material change in
circumstances since the entry of the 2009 order. At the time of that order, Jesse resided in Omaha
and had limited contact with Brett who lived with Staci in Kearney. However, Jesse returned to
Kearney in 2010 and increased his involvement in Brett’s life to the point that he had substantial
parenting time with Brett, well beyond that provided in the 2009 parenting plan and order. Prior
to the disagreement between the parties that led Staci to file the modification action, Jesse had
parenting time every other weekend, Tuesday, Wednesday, and Sunday evenings every week, and
the bulk of the summer in 2013 and 2014. Jesse lives near Staci and Brett and is involved in Brett’s
education and activities. He is self-employed with flexibility in his schedule to parent Brett. He is
married, has a stepson, and had a child on the way at the time of trial. Jesse and Brett have
developed a close relationship. Despite their disagreement over summer parenting time and
daycare, Jesse and Staci are able to communicate effectively as necessary to co-parent Brett. As
such, there has clearly been a change in circumstances since the previous order that affects Brett’s
best interests.
                                          (b) Best Interests
        Before a court may modify custody based upon a material change in circumstances, the
party seeking modification must show that the modification is in the best interests of the child.
Schrag v. Spear, supra. We conclude that Jesse has failed to prove this necessary prong to
effectuate a change in custody.
        Neb. Rev. Stat. § 43-2923 (Reissue 2016), requires:
                (1) A parenting arrangement and parenting plan or other court-ordered arrangement
        which provides for a child’s safety, emotional growth, health, stability, and physical care
        and regular care and continuous school attendance and progress for school-age children;
                 ....
                (3) That the child’s family and those serving in parenting roles remain appropriately
        active and involved in parenting with safe, appropriate, continuing quality contact between
        children and their families 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;
                 ....
                (5) That certain principles provide a basis upon which . . . negotiation and mediation
        of parenting plans are conducted. Such principles shall include . . . [t]o minimize the
        potentially negative impact of parental conflict on children; . . . to ensure that the child’s
        voice is heard and considered in parenting decisions; . . .
                (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;




                                                -7-
              (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[.]

        In addition to these factors, the Nebraska Supreme Court has 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 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; 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 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, 154 Neb. 347, 576 N.W.2d 779 (1998).
        The record shows that Staci has been the primary custodial parent since Brett’s birth. Staci
is very active in Brett’s development and education and is clearly a loving parent who provides a
stable, nurturing environment. Staci has encouraged the relationship between Jesse and Brett,
recognizing the importance of the father-son relationship. Staci took corrective action to address
Brett’s behavioral issues at school and to help him address issues relating to his relationship with
his stepbrother.
        Moreover, Meidlinger did not recommend a joint custody arrangement whereby Brett
would spend alternating weeks with his parents. Although Meidlinger was generally in support of
this type of joint custody arrangement to eliminate conflict, he acknowledged that neither Brett
nor Jesse was asking for such an arrangement at the time of his evaluation. Brett expressed a desire
to spend “a little more” time with his father. And it wasn’t until trial, several months after the
evaluation, that Jesse changed his request to joint physical custody.
        Jesse asserts that the Legislature’s adoption of the Nebraska Parenting Act in 2007 created
a presumption of joint physical custody. We disagree. Jesse cites the Parenting Act’s legislative
findings found in Neb. Rev. Stat. § 43-2921, which provide, in relevant part, as follows:
        In any proceeding involving a child, the best interest of the child shall be the standard by
        which the court adjudicates and establishes the individual responsibilities, including
        consideration in any custody, parenting time, visitation, or other access determinations as
        well as resolution of conflicts affecting each child. The State presumes the critical
        importance of the parent-child relationship in the welfare and development of the child and
        that the relationship between the child and each parent should be equally considered unless
        it is contrary to the best interest of the child.

        Jesse reasons that if the State presumes the critical importance of the parent-child
relationship, the courts should similarly employ a presumption in favor of awarding joint physical
custody. While the language above stresses the importance of maximizing time with each parent
to be in a child’s best interest, it does not create a presumption in favor of awarding joint physical



                                                 -8-
custody. We found no Nebraska appellate cases adopting a presumption of joint custody nor has
Jesse cited any such cases. In fact, the Nebraska Supreme Court has recognized that 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). We agree with the district
court that if the Legislature intended to depart from the current custody jurisprudence by creating
a presumption in favor of joint physical custody, “it would have been explicit in doing so.”
        We conclude in our de novo review that Jesse failed to prove that modification of custody
was in Brett’s best interests. As such, we find no abuse of discretion by the district court in denying
this portion of Jesse’s counterclaim.
                               2. MODIFICATION OF PARENTING TIME
       Jesse argues that the district court erred in denying Jesse’s request for modification of the
parenting time contained in the 2009 order.
                               (a) Material Change in Circumstances
         The same principles regarding material change in circumstances set forth above relating to
custody apply in proceedings to modify parenting time. See, State on behalf of Natalya B. v. Bishop
A., 24 Neb. App. 477, 891 N.W.2d 685 (2017). For the same reasons cited above, we conclude that
Jesse sustained his burden of proving a material change in circumstances since the 2009 order as
it relates to parenting time.
                                           (b) Best Interests
        As a result of the change in circumstances since Jesse moved back to Kearney in 2010,
Jesse and Brett have enjoyed a close relationship, which Staci has fostered. Staci determined that
it was in Brett’s best interest to allow for additional parenting time beyond the time provided in
the 2009 order. She allowed the additional parenting time, in increasing increments, for
approximately five years until sometime in 2015 when she perceived that Brett was experiencing
problems relating to the presence of Jesse’s stepson, Dominic, in the home.
        The record shows that both Jesse and Staci have been responsive in addressing Brett’s
behavioral issues at school and in helping him develop a more positive relationship with Dominic.
The evidence reveals that the actions of the parents have positively impacted both of these areas
of concern. Brett is doing well in school, and the parties continue to be responsive to addressing
any continuing behavior issues at school. In addition to these areas of concern, the parties disagreed
about child care arrangements during the summer of 2015, which caused Staci to disallow
additional summer parenting time beyond the six weeks provided in the prior order. The parties
were able to reach a voluntary agreement for the summer of 2016.
        In sum, the parties have addressed and resolved the primary areas of dispute that lead to
this modification proceeding. To return to the prior practice of allowing additional parenting time
between Jesse and Brett since 2010 would, at least in part, continue to be in Brett’s best interest.
Meidlinger testified that it would be in Brett’s best interest to have additional parenting time with
Jesse, specifically, two additional overnights each week. In response to Meidlinger’s
recommendation, Staci proposed a parenting plan which included Sunday overnight on Jesse’s




                                                  -9-
alternating weekends. Staci’s proposal also included a week at spring break, but reduced Jesse’s
summer parenting time to four weeks.
         We conclude that the district court abused its discretion in failing to find that it would be
in Brett’s best interest to modify Jesse’s parenting time. In addition to the parenting time contained
in the 2009 parenting plan and order, we find that Jesse should be awarded Sunday overnight on
his alternating weekends so that his weekend parenting time begins at 6:00 p.m. on Friday and
concludes at 8:00 a.m. on Monday. In addition, Jesse should be awarded parenting time every
Wednesday from after school, or 5:00 p.m. during summer and school breaks, until 8:00 p.m. The
balance of the parenting time provisions remain as previously ordered in 2009, along with the
district court’s specification of the start of Jesse’s summer parenting time each year if the parties
cannot agree.
         It is clear in this case that we have two loving, involved parents. Brett has enjoyed a close
relationship with each parent that the other parent has fostered. We encourage Jesse and Staci to
continue to work together in addressing Brett’s best interests.
                                        VI. CONCLUSION
        The district court did not abuse its discretion when it denied Jesse’s application for
modification of custody. We affirm that portion of the order. But we find that the court abused its
discretion when it failed to find that increased parenting time with Jesse would be in Brett’s best
interests. We modify that portion of the order to award increased parenting time for Jesse as set
forth above.
                                                                           AFFIRMED AS MODIFIED.




                                                - 10 -
