                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        SLOUP V. THOMAS


  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).


                                  MEGGIE M. SLOUP, APPELLEE,
                                                V.

                              WILLIAM SCOTT THOMAS, APPELLANT.


                               Filed June 4, 2019.   No. A-18-596.


         Appeal from the District Court for Saunders County: ROBERT R. STEINKE, Judge. Affirmed
in part, and in part reversed.
       Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.
       Benjamin W. Shanahan, of Sohl Law Office, for appellee.


       RIEDMANN, ARTERBURN, and WELCH, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
         William Scott Thomas appeals the decision of the district court for Saunders County
denying his request to modify custody of his minor children. Thomas specifically appeals the
district court’s order denying him sole physical custody of the children, granting Meggie M. Sloup
sole legal custody of the children, and reducing his parenting time with the children. We determine
that the district court did not abuse its discretion in denying Thomas’ request for physical custody
of the children and in awarding Sloup sole legal custody of the children; however, we reverse the
district court’s decision to reduce Thomas’ parenting time.
                                        BACKGROUND
       Thomas and Sloup are the biological parents of three minor children, twin boys born in
2011, and a daughter, born in 2013. Thomas and Sloup were never married. In November 2014,



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the couple separated and entered into a joint stipulation to establish paternity, custody, and support.
Pursuant to that stipulation, the parties agreed to a parenting plan establishing that Sloup would
have sole physical custody of the children and the parents would have joint legal custody, but
Sloup would have the final say on all decisions if there was an impasse. The parenting plan also
established that from November 2 until April 14, and June 2 until September 14, Thomas would
have parenting time with the children every other weekend from Thursday at noon (or after school)
until Monday at 8 a.m. But from April 15 to June 1, and again from September 15 to November 1,
Thomas would have parenting time every other weekend from Saturday at 5 p.m., until Sunday at
8 p.m. Under both schedules Thomas was allowed parenting time on Thursdays from noon (or
after school) until 8:30 p.m. during the weeks in which he did not have weekend parenting time.
Additionally, Thomas was granted 2 nonconsecutive weeks of summer parenting time and certain
holiday time. The court entered an order consistent with the parties’ stipulation.
        In May 2016, Sloup filed a contempt motion, alleging that Thomas was not paying his
share of daycare expenses, was returning the children’s clothing unwashed, did not notify her when
he took the children outside of Nebraska, and did not return the children at the end of his parenting
time. In August, Thomas filed an application for modification of the parenting plan. He alleged
that a material change of circumstance had occurred since the plan was agreed upon, namely: that
Sloup was not acting in the best interests of the minor children, refused to discuss major decisions
involving the health and welfare of the minor children, did not keep a constant schedule and
placement of the minor children, placed the boys in kindergarten before they were ready, was not
addressing her health concerns, and that the children wanted to spend more time with Thomas. He
alleged that it was in the children’s best interests that he be awarded sole legal and physical
custody. Thomas additionally filed a contempt motion, alleging that Sloup returned the children’s
clothing unwashed, did not notify him of the children’s medical appointments, and took the
children out of Nebraska without notifying him.
        In response, Sloup filed a cross-complaint for modification of the parenting plan. She
asserted that a material change in circumstances had occurred in that Thomas refused to respect
her boundaries and the parties were unable to effectively communicate regarding the children.
Sloup requested sole legal custody of the children, modification of Thomas’ parenting time, and
an increase in child support. The district court held a hearing spanning 3 days in July and December
2017 on the parties’ requests for modification and contempt, and held another telephonic hearing
in February 2018.
        At the hearing, the parties admitted that they had not been strictly adhering to the parenting
plan; rather, Thomas was exercising parenting time regularly under the first provision with the
children staying with him every other Thursday afternoon to Monday morning. Each parent
attempted to demonstrate that the other was unfit and did not act in the children’s best interests.
Thomas adduced testimony from Sloup and other witnesses showing that Sloup enrolled the boys
in kindergarten despite the boys’ preschool teacher indicating that they were not ready for
kindergarten. The boys were initially enrolled at a private school, but left after a short time to
attend a public school. The boys had to repeat kindergarten. Thomas attempted to demonstrate that
Sloup’s decision to enroll the boys in kindergarten was indicative of her poor decisionmaking as
the parent who had final say on all decisions affecting the children’s best interests; however, Sloup



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testified that she thought it was beneficial for the boys to begin kindergarten, even though they had
to repeat it.
         Thomas also indicated that Sloup did not notify him of the children’s doctor’s appointments
or when their medications changed, and did not include him in her decision to enroll the children
at various daycare facilities. Thomas elicited testimony from the children’s nanny that on two
separate occasions she arrived at Sloup’s house and Sloup was not responsive and had low blood
sugar due to her diabetes. Sloup denied the assertion and testified that she was never unresponsive
when the nanny arrived. Thomas also attempted to show that the children were not safe while in
Sloup’s care because their daughter suffered a hairline fracture of her wrist either at daycare or at
Sloup’s house, and Sloup did not seek medical attention for her.
         Thomas testified regarding numerous doctor appointments of which Sloup did not inform
him, including hernia surgery for one of the boys. Thomas also stated that when Sloup took the
children out of the state for a vacation she only informed him the day of the trip that she was taking
them “south.” Thomas indicated that he did not believe the children should spend 10 or 11 hours
a day at daycare, school, or an after-school program, which they did while Sloup was at work due
to her commute. Additionally, Thomas testified that on one occasion Sloup told him to “play in
traffic,” which he understood to mean that he should kill himself, and on another occasion, Sloup
told the children that he should inhale poisonous gas.
         Prior to the hearing, Thomas hired a private investigator to investigate and report on the
safety and status of the children while in Sloup’s care. The private investigator stated that he was
hired because Thomas was concerned with Sloup’s driving habits and the dangers associated with
her driving. The investigator stated that he initially intended to follow Sloup’s vehicle but she
drove too fast for him to keep up, so he placed a global positioning system (GPS) device on her
vehicle. Thomas was hesitant about using the GPS device, but eventually agreed to it. The GPS
device informed the investigator that Sloup drove in excess of the speed limit every time she
operated the vehicle; however, Sloup stated that she never received a speeding ticket. After
approximately 6 weeks of use, Sloup discovered the GPS device and reported it to law
enforcement.
         Sloup testified, either as a witness called by Thomas or in her case-in-chief, regarding the
difficulty she had in communicating with Thomas. She testified that she stopped notifying Thomas
of doctor’s appointments because when she did notify him, he would respond with a rude or
derogatory comment. She also indicated that she informed Thomas of the various preschool
providers she was considering, and invited him to attend interviews with them, but he refused to
attend or discuss the decision because he did not think the children should attend preschool. Sloup
also testified regarding a text message she received from Thomas in which he called her derogatory
names.
         Sloup stated that Thomas was often behind on paying his share of the children’s daycare
fees, and he indicated that he did not believe he should pay because he did not agree with her
decision to send the children to daycare. Additionally, Thomas often picked up the children from
preschool before his parenting time was scheduled to begin, and failed to timely return them. Sloup
indicated that she did not believe the children were safe at Thomas’ house due to their close
proximity to bulls and cows, and because Thomas allowed them on or near farm machinery. Sloup



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testified that she was concerned with Thomas’ approach to racial diversity and feared that his racial
views were being passed to the children.
         Following the hearing, the district court denied Thomas’ request for sole physical and legal
custody of the children. The district court determined that, while neither Thomas nor Sloup were
perfect parents, they both loved the children and wanted to do what was right for them. The district
court concluded that Thomas failed to demonstrate that a material change of circumstances had
occurred since the parenting plan was agreed upon such that the court could grant the relief he
requested.
         The court did find, however, that Sloup established that a material change of circumstances
occurred, in that the parties were unable to communicate with one another as mature adults. The
court further found that it was in the best interests of the children to grant Sloup sole legal custody
of the children, and modified Thomas’ parenting time to every other weekend from Friday at 5
p.m. until Sunday at 6 p.m. and every Wednesday from 5 p.m. until 7:30 p.m. Thomas was also
granted 4 weeks of summer parenting time, to be exercised in 2 blocks of 2 weeks each, separated
by 2 weeks (increasing his summer parenting time by 2 weeks). His holiday time was to continue
as before.
         The court denied Sloup’s request for additional child support because there was not a
10-percent or more upward variation in Thomas’ current obligation. The court determined that
although both parties were in contempt of court for failing to abide by the parenting plan, each had
purged themselves of contempt by virtue of their subsequent behavior. Finally, the court awarded
Sloup $10,000 in attorney fees to be paid by Thomas. Thomas timely appealed.
                                    ASSIGNMENTS OF ERROR
        Thomas argues on appeal, renumbered and restated, that the district court abused its
discretion in (1) declining to modify physical custody of the children and grant him sole physical
custody, (2) modifying joint legal custody of the children to award Sloup sole legal custody, and
(3) reducing his parenting time to four overnight visits per month.
                                     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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
Parenting time determinations are also matters initially entrusted to the discretion of the trial court,
and although reviewed de novo on the record, the trial court’s determination will normally be
affirmed absent an abuse of discretion. See Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644
(2014).
         An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason and
evidence. Schrag v. Spear, supra. 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.




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                                            ANALYSIS
Refusal of Sole Physical Custody to Thomas.
         Thomas argues that the district court abused its discretion by failing to award him sole
physical custody of the children. We disagree.
         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. Schrag v. Spear, supra. A material change in circumstances means the
occurrence of something which, had it been known to the court at the time of the initial decree,
would have persuaded the court to decree differently. Id. The party seeking modification of child
custody bears the burden of showing a change in circumstances. Id.
         Here, the district court determined that Thomas did not establish that a material change of
circumstances had occurred since the initial parenting plan was instituted. In its order the court
recognized that Thomas alleged a material change in circumstances had occurred in that Sloup was
not acting in the best interests of the children, refused to discuss major decisions involving the
health and welfare of the minor children, did not keep a constant schedule and placement of the
minor children, placed the boys in kindergarten despite recommendations that they were not ready,
was not addressing her health concerns, and that the minor children wanted to spend more time
with Thomas. The district court noted that “[Sloup] is not a perfect parent; neither is [Thomas].”
The court then found that there was not a material change in circumstances such that a change of
physical custody was warranted.
         After reviewing the record, we find that the district court did not abuse its discretion in
determining that Thomas failed to demonstrate that a material change of circumstances had
occurred showing that Sloup is unfit or that the best interests of the children require modification
of the children’s physical custody. While Thomas did not agree with Sloup’s decision to enroll the
boys in kindergarten, and preferred that the children remain with him and not in daycare, Sloup’s
decision to the contrary does not make her unfit. Although the boys repeated kindergarten, Sloup
testified to the benefits she saw from the social interaction they received in kindergarten. As to the
long hours in daycare, by the December 2017 hearing, Sloup had obtained employment in the
Wahoo school district as a licensed practical nurse and was working hours more aligned with the
children’s school day, thus alleviating much need for daycare.
         As to her health issues, Sloup testified that she actively managed her diabetes, and was not
unresponsive due to the disease at any time, contradicting Thomas’ argument that her unmanaged
health issues created a material change of circumstances. Further, Sloup testified that when she
would try and discuss the children’s medical issues or educational needs with Thomas she was
often met with rude comments or Thomas was difficult to deal with.
         The record refutes the assertion that any one of the reasons offered by Thomas constitutes
a material change in circumstances showing that Sloup is unfit or that the best interests of the
children require a change in custody. Therefore, the district court did not abuse its discretion in
denying Thomas’ request for modification of physical custody.




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Award of Sole Legal Custody to Sloup.
         Thomas also argues that the district court abused its discretion in awarding Sloup sole legal
custody of the children. We disagree.
         As indicated above, 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). Appellate
review of joint legal custody issues has often focused on the parties’ ability to communicate. See,
State on behalf of Maddox S. v. Mathew E., 23 Neb. App. 500, 873 N.W.2d 208 (2016); Kamal v.
Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009) (joint decisionmaking by parents not in child’s best
interests when parents are unable to communicate and there is level of distrust). Parents’ inability
to communicate and make decisions together several years after the initial parenting plan was
agreed to constitutes a material change of circumstances. See State on behalf of Maddox S. v.
Mathew E., supra.
         The district court found that the parents’ inability to communicate as mature adults
represented a material change of circumstances. The district court’s determination is supported by
the record. The evidence reveals that Thomas sent derogatory text messages to Sloup, accusing
her, among other inappropriate statements, of being a bad mother. Further, Sloup testified that she
would try and communicate with Thomas regarding the children but Thomas was rude and difficult
to work with. Additionally, Sloup indicated at the modification hearing that she invited Thomas to
attend interviews with preschools for the children, but Thomas did not agree with the decision to
send the children to preschool and did not attend. Sloup also explained that Thomas would talk
about her in a derogatory way or in a manner which made the children not want to return to her
house.
         Additionally, Thomas’ hiring of a private investigator who attached a GPS device to
Sloup’s car further deteriorated the relationship between the parties. The court noted that
“[Sloup’s] discovery of the tracking device did nothing to improve her already diminished level of
trust in [Thomas], or improve the parties’ ability to communicate with one another.”
         The record also reveals that Sloup did not communicate effectively with Thomas either.
She failed to provide him with the appropriate information when she took the children out of the
state, and failed to notify him consistently of the children’s doctor’s appointments and changes in
their medications. She also talked derogatorily about Thomas in front of the children.
         Although Thomas argues that the parties did not communicate effectively at the time the
parenting plan was agreed to, thus, their poor communication cannot constitute a material change
of circumstance, there is nothing in the record to support a finding that this was a circumstance of
which the court was aware. The original parenting plan was adopted as the result of a stipulation;
the ability of the parties to communicate was not addressed. The plan itself stated that its overriding
purpose was “to establish, facilitate, and encourage mutual, continued and meaningful discussion
of all major decisions regarding the children’s education, health care, physical, emotional and
social development, and religious upbringing. . . .” Therefore, the parenting plan contemplated that
the parties would be able to effectively coparent their children and their inability to do so was a
material change in circumstances. A material change in circumstances means the occurrence of




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something which, had it been known to the court at the time of the initial decree, would have
persuaded the court to decree differently. Schrag v. Spear, supra. Thus, the district court did not
abuse its discretion in determining that the parents’ inability to communicate with one another as
mature adults represented a material change in circumstances.
        Before custody may be modified based upon a material change in circumstances, it must
be shown that the modification is in the best interests of the child. Schriner v. Schriner, 25 Neb.
App. 165, 903 N.W.2d 691 (2017). In determining a child’s best interests in custody and visitation
matters, factors to be considered include the relationship of the minor child to each parent; the
desires and wishes of the minor child; the general health, welfare, and social behavior of the minor
child; and credible evidence of abuse. See Neb. Rev. Stat. §§ 42-364(2) and 43-2923 (Reissue
2016).
        Additionally, 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).
        The district court found that granting Sloup sole legal custody of the children was in the
children’s best interests. The record indicates that Sloup arranged doctor’s appointments for the
children, found daycare for the children, and enrolled the children in school. It is clear from the
record that the children are generally healthy, happy, and love both parents. However, the parents’
inability to agree on decisions regarding the children’s education and daycare providers, and
inability to effectively communicate with one another is not in the children’s best interests.
        Sloup testified that Thomas did not agree with her decision to enroll the children in
preschool, and therefore did not pay his share of daycare fees until just 2 days before a scheduled
pretrial hearing. Likewise, Thomas did not participate in interviews with various preschools for
the children. Although Sloup did enroll the children in kindergarten before they were ready, she
had sound reasons for believing that the children would succeed in kindergarten, even though they
had to attend kindergarten twice. We note that the court’s order modifying the parenting plan did
not eliminate paragraph 23, which requires the parents to discuss significant matters regarding the
children in areas such as health, medical, school, and behavioral or discipline issues. Thus, while
we find no abuse of discretion in awarding Sloup sole legal custody of the children, she is still
obligated to discuss significant matters affecting the children with Thomas.
        After reviewing the record, we find that, when they are able to communicate with one
another, the parents have been unable to agree on decisions regarding the children. The hostility
between Thomas and Sloup and their inability to coparent the children is detrimental to the
children’s best interests. Consequently, the district court did not abuse its discretion in awarding
sole legal custody to Sloup.




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Modification of Thomas’ Parenting Time.
        Thomas asserts that the district court erred in reducing his parenting time from eight
overnight visits a month to four, and granting him just 2½ hours of parenting time each
Wednesday. We first note that Thomas is incorrect in his assertion that the district court granted
him visitation with the children only on the Wednesday of the week in which he did not have the
children on the weekend. Rather, the district court granted him visitation every Wednesday from
5 p.m. until 7:30 p.m. Regardless of Thomas’ misinterpretation, we find that the district court
abused its discretion in reducing Thomas’ parenting time.
        The right of parenting time is subject to continuous review by the court, and a party may
seek modification of a parenting time order on the grounds that there has been a material change
in circumstances. See Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997). The trial
court has discretion to set a reasonable parenting time schedule. See Maranville v. Dworak, 17
Neb. App. 245, 758 N.W.2d 70 (2008). The determination of reasonableness is to be made on a
case-by-case basis. Id. The best interests of the children are the primary and paramount
considerations in determining and modifying parenting time. Fine v. Fine, 261 Neb. 836, 626
N.W.2d 526 (2001). Parenting time relates to continuing and fostering the normal parental
relationship of the noncustodial parent. Id.
        A visitation schedule is generally considered reasonable if it is one that provides a
satisfactory basis for preserving and fostering a child’s relationship with the noncustodial parent.
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). There is not a certain mathematical
amount of visitation that is considered reasonable; the determination of reasonableness is to be
made on a case-by-case basis. Id.
        Appellate courts have affirmed the modification of a non-custodial parent’s visitations with
the children to minimize opportunities for ongoing conflict, see Schriner v. Schriner, 25 Neb. App.
165, 903 N.W.2d 691 (2017); if the children’s safety was at risk, see Fine v. Fine, 261 Neb. 836,
626 N.W.2d 526 (2001); or if a parent attempts to detrimentally interfere with the relationship
between the child and other parent, see Mark J. v. Darla B., 21 Neb. App. 770, 842 N.W.2d 832
(2014). In contrast, the Nebraska Supreme Court has affirmed a district court’s denial of a motion
to modify parenting time not only due to the absence of a material change of circumstances, but
because it was not shown to be in the child’s best interest. See State on behalf of Jakai C. v. Tiffany
M., 292 Neb. 68, 871 N.W.2d 230 (2015).
        In State on behalf of Jakai C. v. Tiffany M., supra, the district court noted that the parents
failed to appropriately communicate in regard to the child, there were numerous violations of the
parenting plan, and the mother’s negative comments about the father were concerning. However,
the court further found no evidence was produced to show how this adversely affected the child.
The Supreme Court agreed. Likewise, we find in the present case an absence of evidence to support
a decision that a reduction in Thomas’ parenting time was in the children’s best interest.
        Sloup sought a modification of parenting time on the bases that Thomas refused to respect
her boundaries and the parties could not effectively communicate. Although the district court
identified these as a basis for awarding legal custody to Sloup, it did not indicate any findings to
support why they should serve as a basis for reduction in parenting time or how such a reduction




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was in the children’s best interests. The district court indicated that “the best interests of the
children are the primary and paramount considerations determining and modifying parenting
time,” but the court’s modification order does not identify any factors specifically related to actual
parenting skills which support its conclusion.
         Upon our de novo review of the record, we find that the record does not support a reduction
of Thomas’ parenting time. It appears that the children enjoyed spending time with Thomas and
were eager to see him on his parenting days. Further, the children often did not want to return to
Sloup at the conclusion of Thomas’ parenting time. Moreover, there is nothing in the record
indicating that Thomas is an unfit parent or does not act in the children’s best interests. Although
Sloup asserted that Thomas exposes them to dangerous farm machinery or farm animals, the record
does not support her assertion of danger. Thomas was present with the children in each situation
that Sloup alleged to be dangerous, and there is no indication that the children were at risk in any
of the situations.
         Additionally, under the district court’s modification of Thomas’ parenting time, his
face-to-face exchanges with Sloup increase. Under the original parenting plan, Thomas was to pick
the children up from school or daycare on Thursday, and then return the children to school or
daycare on Monday morning. However, under the court’s modified plan, Thomas is to pick the
children up at 5 p.m. on Friday, and return them to Sloup on Sunday evening. With the acrimonious
relationship between the parents, an increase in face-to-face exchanges could lead to additional
conflict between the two. Thus, the record does not support the district court’s decision to reduce
Thomas’ parenting time on the basis of minimizing opportunities for ongoing conflict as in
Schriner v. Schriner, supra.
         Because the district court’s decision to reduce Thomas’ parenting time is not supported by
the evidence and is not shown to be in the children’s best interests, we find that the district court
abused its discretion in reducing Thomas’ parenting time. We therefore reverse the portion of the
court’s order and reinstate the original parenting plan that provided for two separate periods of
visitation. Thus, from November 2 until April 14, and from June 2 until September 14, Thomas
shall have parenting time every other weekend from after school on Thursday until Monday
morning until 8 a.m. On the week that he does not have the children, Thomas will have parenting
time on Thursday from 12 p.m., or after school if school is in session, until 8:30 p.m. From April
15 until June 1, and from September 15 until November 1, Thomas will have parenting time from
Saturday at 5 p.m. until Sunday at 8 p.m. Under this schedule Thomas will have parenting time
every Thursday from 12 p.m., or after school if school is in session, until 8:30 p.m. Because Sloup
did not cross-appeal the district court’s decision to award Thomas additional summer parenting
time, we leave intact the court’s modified summer parenting schedule granting Thomas an
additional 2 weeks of parenting time in the summer.
                                          CONCLUSION
        We determine that the district court did not abuse its discretion in denying Thomas’ request
for sole physical custody of the children or in granting Sloup sole legal custody of the children.
However, the district court abused its discretion in reducing Thomas’ parenting time. We therefore
affirm the district court’s order, but we reverse that portion reducing Thomas’ parenting time to



                                                -9-
four overnight visits per month and reinstate the parties’ parenting time schedule contained in the
original parenting plan as set forth above.
                                                       AFFIRMED IN PART, AND IN PART REVERSED.




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