                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          CAREY V. HAND


  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).


        DEANNA DEE BOSWELL, FORMERLY KNOWN AS DEANNA DEE CAREY, APPELLANT,
                                                 V.

     MITCHELL AARON HAND, APPELLEE, AND STATE OF NEBRASKA, INTERVENOR-APPELLEE.


                               Filed June 13, 2017.    No. A-16-905.


        Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed in
part, and in part reversed and remanded with directions.
       Avis R. Andrews for appellant.
       Shane J. Placek, of SidnerLaw, for appellee.



       INBODY, RIEDMANN, and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                        I. INTRODUCTION
        Deanna Dee Boswell, formerly known as Deanna Dee Carey, appeals and Mitchell Aaron
Hand cross-appeals from an order entered by the district court for Dodge County modifying an
order of paternity and support entered on July 12, 2012. On appeal, Deanna argues the district
court erred in awarding the parties joint physical custody and joint legal custody, with final
decisionmaking authority awarded to Mitchell; in frustrating her decision to homeschool the minor
child; and in not awarding her attorney fees. On cross-appeal, Mitchell argues the district court
erred in calculating his child support obligation. For the reasons set forth below, we affirm in part,
and in part reverse and remand with directions.




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                                        II. BACKGROUND
        The district court first entered an order determining paternity and child support in this
matter on May 10, 2006. In that order, the district court awarded sole physical and legal custody
of the parties’ minor child, Elijah, born in 2005, to Deanna. Mitchell received parenting time every
other weekend and one overnight per week. The court also established a holiday visitation
schedule. Mitchell was ordered to pay $452.15 per month in child support and to maintain health
insurance for Elijah. Mitchell was awarded the child exemption for income tax purposes for every
eligible year.
        On July 12, 2012, pursuant to a stipulation of the parties, the district court entered an order
to modify the provisions of the paternity and child support order. Our record does not contain the
pleadings related to the 2012 order, but the district court awarded Deanna sole physical custody
and ordered joint legal custody to the parties, with final decisionmaking authority left to Deanna
by agreement of the parties. The parties maintained the existing parenting schedule, with the
exception of each parent receiving 2 weeks of continuous parenting time during the summer.
Mitchell was ordered to pay $442 per month in child support. Mitchell maintained the child
dependency tax exemption.
        On January 22, 2015, the State of Nebraska filed a complaint to modify the child support
order to make it conform with the Nebraska Child Support Guidelines. Mitchell filed an answer to
the complaint on April 9, 2015. Deanna filed an answer and countercomplaint to modify the
paternity and child support order on June 4, 2015. In her countercomplaint to modify, Deanna
sought sole legal custody, less parenting time for Mitchell, increased child support, the child
dependency exemption, and attorney fees. Mitchell answered Deanna’s countercomplaint and filed
a counterclaim for modification on June 15, 2015, seeking sole physical and legal custody subject
to Deanna’s parenting time. A hearing was held on the parties’ complaints on May 25, 2016. The
hearing continued on July 26, 2016.
        Deanna and Mitchell were never married. Elijah is the parties’ only child together. Deanna
was pregnant with Elijah during her senior year of high school. Elijah has lived with Deanna since
his birth. At the time of the hearing, Deanna had been married to her husband, Kelly Boswell, for
over 3 years. Deanna and Kelly have 2 minor children together. Currently, Deanna and Kelly reside
in a residence they own in Bennington, Nebraska with Elijah and his siblings.
        Deanna was 29 years old at the time of the hearing. She attended Fremont Public High
School until her senior year in 2005. She then attended Fremont Learning Center during her senior
year due to her pregnancy with Elijah. She ultimately graduated from high school during the 2006
school year. Deanna testified that she did not graduate on time because she failed a few classes
due to the school attendance policy. She testified that she attended one year of college at Metro
Community College, studying accounting. Deanna’s most recent employment was as a financial
advisor at Vatterott College. She was employed there for a period of 1 to 2 years, ending in 2012.
At the time of trial, Deanna was not employed outside of the home. She devotes her time to raising
her children and homeschooling Elijah.
        At the time of trial, Deanna had homeschooled Elijah for 3 years. Prior to being
homeschooled, Elijah attended Standing Bear Elementary School, an Omaha Public School, from




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kindergarten through second grade. Elijah also attended Blair Public Schools for part of his first
grade year. Deanna testified she chose to homeschool Elijah so that she could be more involved in
his education and to incorporate religion into his education. She also testified that she wanted to
give him more individual attention in his education. Additionally, she wanted to keep Elijah from
getting into trouble at school, did not want him to be bullied, and did not want him getting involved
with drugs or alcohol.
         Deanna is not involved with any homeschooling association. She testified that her primary
resources are two aunts that had homeschooled their children and internet-based resources. Deanna
testified that she followed the required yearly educational hours of the Nebraska Public School
system, but wanted to extend the school year from 1,032 educational hours to at least 1,100 hours.
She testified that she used a graded homeschool curriculum and supplemental workbook. She
submitted the required information to the State of Nebraska each year and testified that she
complied with the law. Prior to trial, Deanna had not administered any objective test for Elijah’s
progress because the State never required one. After the first day of trial, Deanna had Elijah take
the Iowa Basic Skills Test. The results of the test were received prior to the last day of trial, but
were not allowed into evidence as part of the district court’s prohibition against evidence obtained
during a trial continuation. Deanna testified that she believed Elijah had attained the appropriate
level of education for a child of his age. She testified that she is able to know this because she
reviews Elijah’s completed lessons and monitors his progress.
         Deanna testified that Elijah did much of his homeschool work independently. She was
available to assist him with his questions as he needed it, and she set aside at least 1 hour per day
for one-on-one teaching with Elijah. Elijah had an assigned homeschooling area where he worked
while Deanna was caring for his siblings. Deanna testified that she intended to homeschool her
other children, and had already started a preschool program with her other son.
         Elijah was involved in extracurricular activities as well. He participated in wrestling, a
book club, a homeschool club, a science club, a Lego club, an arts club, and youth group at church.
Additionally, Deanna utilizes Fridays to go on homeschool field trips with Elijah. Deanna testified
that Elijah is more introverted than some children and that he seems to benefit from his
extracurricular activities. Deanna testified that she does not believe homeschooling has hindered
Elijah’s ability to make friends.
         Deanna testified that she wanted to modify the custody order to have sole legal custody
and to reduce Mitchell’s parenting time back to his original parenting time from the 2006 order,
which would reduce Mitchell’s parenting time to every other weekend with one weeknight and no
summer parenting time. She testified that she also wanted Elijah to return home early from
Mitchell’s weekend visitation once or twice a month to participate in more family events. Deanna
testified that Mitchell is not involved in Elijah’s upbringing. Deanna testified that Mitchell does
not take Elijah to the doctor and does not inquire about Elijah’s education.
         Kelly, Deanna’s husband, is a 37 year old software engineer. He has been employed as a
software engineer for over 8 years. Kelly has a bachelor’s degree in electronic engineering. Kelly
provides health insurance for his family, including Elijah. He helps with some homeschooling by
conducting science experiments with Elijah and answering some questions Deanna is unable to
answer. Kelly was homeschooled for a period of time and believes it was a positive experience for



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him. He plans to have Deanna homeschool their children and he believes she is a more than
satisfactory teacher. Kelly testified that he is like a father figure to Elijah. Additionally, Kelly
volunteers as the coach of Elijah’s wrestling team. Kelly does not believe homeschooling has
hindered Elijah’s mental or social abilities.
        Mitchell is 33 years old and has a high school diploma. He works as a welder at Hunke
Manufacturing in Snyder, Nebraska. Mitchell resides in Nickerson, Nebraska, with his 80 year old
grandmother. The longest period of unemployment for Mitchell since high school was a 3 month
period after his grandfather passed away in October 2015. Mitchell lost his job at that time with a
different employer. He lived off of his savings during this period and did not pay all of the child
support which was due. However, at the time of the hearing, he was current on his child support
obligations. Mitchell testified he had never missed any of his midweek or weekend parenting time
with Elijah.
        Deanna testified that a few weeks after the 2012 modification order granted joint legal
custody to the parties, she terminated Elijah’s public school education and began homeschooling
Elijah. Deanna admitted that she did not request or obtain Mitchell’s signature on the paperwork
required by the State. Deanna also admitted that she provided the State with the 2006 custody
order, instead of the 2012 custody order. Deanna testified the only time Mitchell complained to
her about her decision to homeschool Elijah was when he first learned of it in 2012.
        Mitchell learned of Deanna’s change of residences through Elijah. Deanna never directly
told Mitchell that she and Elijah moved to Blair, nor did she inform Mitchell that they had moved
back to Omaha. Mitchell testified that he learned of these events by Elijah providing him directions
after his parenting time. Mitchell testified that he learned of Elijah’s baptism from Elijah after the
event had already occurred. He was not invited to the baptism.
        Mitchell has not been involved in Elijah’s homeschooling and has made no effort to be
involved. Mitchell testified that he does not know the rules and regulations involved with
homeschooling. He does not communicate with Deanna about Elijah’s homeschooling, but he does
not think Deanna is qualified to teach Elijah. Mitchell has made no effort to determine Elijah’s
academic progress as compared to other children his age and admitted he did not know how Elijah
was performing academically. Mitchell only complained about Deanna’s homeschooling once, in
2012, and did not attempt to contact the State nor did he know that the State could require testing
of Elijah. Mitchell testified that he disagrees with homeschooling.
        Mitchell has not been involved in Elijah’s medical care. He has not attempted to be
involved with his medical care, either. Mitchell does not know who Elijah sees as primary care
physician. As far as where Mitchell would like Elijah to go to school, he testified that Logan View
Public Schools would be his preferred district. However, Mitchell testified that he did not do any
research on the school’s curriculum. Mitchell had met some of the teachers through his nieces and
nephews, but did not know who would be teaching Elijah.
        Mitchell testified that he wanted sole custody of Elijah. He requested full custody so that
Elijah could have a proper education at school and so that he could see Elijah more than he
currently does. Mitchell testified that if he did not receive sole custody, he wanted the court to
order Elijah go to a traditional school and he wanted to have parenting time the entire summer.




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However, he testified that Deanna was a good mother and that she provided the necessary physical
care.
        Both parties testified at the hearing that they do not communicate well with each other.
They communicate infrequently, most often through text messages. Deanna testified that she
communicates some events to Mitchell through Elijah. Otherwise, Deanna testified that she does
not personally communicate with Mitchell about events in Elijah’s life. She testified that she does
not communicate with Mitchell because she does not like Mitchell and does not believe he is a
good role model. Mitchell testified that he has communicated with Deanna through Elijah, as well.
Mitchell testified that he has not tried to improve his communication with Deanna because it is not
a productive conversation.
        The modification order was filed on September 21, 2016. In the order, the district court
found that there was insufficient evidence to show that Elijah had been injured or harmed by
Deanna’s decision to homeschool him. However, the district court went on to find that it was in
Elijah’s best interests for the parties to have joint physical and legal custody, with final
decisionmaking authority awarded to Mitchell. The district court did not order that Elijah attend a
specific school or be homeschooled, rather, it suggested that if Elijah attended public school, he
should attend school in Bennington, Nebraska. The district court modified the parenting schedule.
The court awarded Mitchell parenting time three weekends per month and one weeknight every
week during the school year. Mitchell was awarded parenting time with Elijah for the entire
summer break. The court awarded Deanna primary care during the school year and alternating
weekends during the summer. Additionally, the court ordered Mitchell to pay $541 per month in
child support until Elijah reached the age of majority. The court ordered Mitchell to provide health
insurance for Elijah. The court ordered the parties to alternate the child dependency tax exemption.
The court ordered the parties to pay their own attorney fees. Finally, the district court ordered that
the remaining portion of the May 10, 2006 order not be modified, but remain in place.
                                 III. ASSIGNMENTS OF ERROR
        Restated and consolidated, Deanna argues on appeal that the district erred in (1) awarding
the parties joint physical and legal custody of Elijah with final decisionmaking authority awarded
to Mitchell; and (2) not awarding her attorney fees. Restated and consolidated, on cross-appeal,
Mitchell argues the district court erred in calculating his child support obligation.
                                  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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
        An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Id.
        In child custody cases, where the credible evidence is in conflict on a material issue of fact,
the appellate court considers, and may give weight to, the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts over another. Id.




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                                           V. ANALYSIS
                                        1. DEANNA’S APPEAL
                                          (a) Legal Custody
         Deanna argues the district court erred in awarding the parties joint legal custody of Elijah
with final decisionmaking authority awarded to Mitchell. She argues that the evidence presented
at trial does not support the district court’s findings and that such a custody award is not in Elijah’s
best interests. Upon our review, we find that Deanna’s assertions have merit.
         A child custody modification case requires the party seeking modification to: (1) show that
a material change in circumstances has occurred after the entry of the previous custody order and
affecting the best interests of the child; and (2) prove that changing the child’s custody is in the
child’s best interests. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). A material
change in circumstances means the occurrence of something which, had it been known at the time
of the initial decree, would have persuaded the court to decree differently. State on behalf of Jakai
C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015). The party seeking modification of child
custody bears the burden of showing as an initial matter that there has been a change in
circumstances. Id.
         The child’s best interests requires a parenting arrangement and plan which provides for a
child’s safety, emotional growth, health, stability, physical care, and regular and continuous school
attendance and progress. Neb. Rev. Stat. § 43-2923(1) (Reissue 2016). Moreover, § 43-2923 sets
forth a non-exhaustive list of factors to consider in determining the child’s best interests in regard
to custody. Such factors include: the child’s relationship with each parent, the child’s desires, the
child’s general health and well-being, and credible evidence of abuse inflicted on the child by any
family or household member. In addition to the “best interests” factors provided in § 43-2923, a
court making a child custody determination may consider: the moral fitness of the child’s parents;
respective environments offered by each parent; the emotional relationship between the child and
parents; 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 the educational needs of
the child. Schrag, supra.
         In this case, the district court found a material change of circumstances had occurred since
the entry of the previous modification order filed in 2012. The court then modified legal custody
by awarding joint legal custody with final decisionmaking authority to Mitchell. Based upon our
de novo review, we find the district court abused its discretion in modifying the prior order such
that Mitchell was awarded final decisionmaking authority.
         The Parenting Act defines “[j]oint legal custody” as “mutual authority and responsibility
of the parents for making mutual fundamental decisions regarding the child’s welfare, including
choices regarding education and health.” Neb. Rev. Stat. § 43-2922(11) (Reissue 2016). Courts
typically do not award joint legal custody when the parties are unable to communicate effectively.
See, Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). However, a trial court’s decision to
award joint legal or physical custody can be made without parental agreement or consent so long




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as it is in the child’s best interests. See, State on behalf of Maddox S. v. Matthew E., 23 Neb. App.
500, 873 N.W.2d 208, (2016).
          Mitchell has never sought or taken an active role in most aspects of Elijah’s upbringing.
Other than complaining of Deanna’s homeschooling of Elijah on one occasion in 2012, Mitchell
knows nothing about Elijah’s academics. Mitchell has never asked about the homeschool
curriculum, how Elijah was progressing, or had Elijah objectively tested. Mitchell has not
researched any of the public schools he had proposed as an alternative to Deanna’s homeschooling.
Mitchell does not know which medical doctor Elijah visits. There is no evidence of any attempt
by Mitchell to become actively involved in Elijah’s religious upbringing and only minimal
involvement in his healthcare.
          While the district court does not specifically state what material change in circumstance
necessitated the modification of final decisionmaking authority, it appears the district court
believed it was Deanna’s attempts to alienate Mitchell from Elijah. The evidence at trial does not
support the district court’s decision as to final decisionmaking authority. Mitchell has never
challenged Deanna’s parenting decisions, legal or otherwise, but for her decision to homeschool
Elijah. Mitchell only voiced objection once about Deanna’s decision to homeschool Elijah, nearly
3 years prior to trial. Moreover, Mitchell provided no proof that Deanna’s homeschooling had
harmed Elijah, a point acknowledged by the district court in its order. See, Doolittle v. Doolittle,
3 Neb. App. 230, 525 N.W.2d 245 (1994). We find that the district court abused its discretion in
finding that there was a material change in circumstance with respect to legal custody. Because of
Mitchell’s lack of involvement in most aspects of raising Elijah, the district court abused its
discretion in awarding him final decisionmaking authority.
          While it was error for the district court to change the final decisionmaking authority, it was
not error to deny Deanna’s request for sole legal custody. Deanna failed to present evidence of a
material change in circumstance, thus the 2012 stipulated order should remain in place. Even if we
were to find that a material change in circumstance regarding legal custody existed, modifying
final decisionmaking authority was not in Elijah’s best interests given the evidence adduced.
Therefore, an award of sole legal custody to Deanna is not merited.
                                        (b) Physical Custody
         Deanna argues the district court erred in awarding the parties joint physical custody with
primary placement with Mitchell during the summer months. Upon our review, we agree.
         The Nebraska Parenting Act defines joint physical custody as “mutual authority and
responsibility of the parents regarding the child’s place of residence and the exertion of continuous
blocks of parenting time by both parents over the child for significant periods of time.” Neb. Rev.
Stat. § 43-2922(12). Joint physical custody must be reserved for those cases where, in the judgment
of the trial court, the parents are of such maturity that the arrangement will not operate to allow
the child to manipulate the parents or confuse the child’s sense of direction, and will provide a
stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars. See,
Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
         In the same regard as legal custody, there has not been a material change in circumstance
demonstrated by either party with respect to physical custody. Therefore, the district court’s award



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of joint physical custody with primary placement with Mitchell during the summer months
constitutes an abuse of discretion. While the district court believed there was some evidence that
Deanna’s preference was to limit Mitchell’s parenting time with Elijah, the evidence cited in the
foregoing section demonstrates that Mitchell has not been actively involved in the upbringing of
Elijah. We find that since neither party has demonstrated a material change in circumstance, the
2012 stipulated order should remain in place. This includes the provisions that the summer months
shall be defined by the school district where Elijah resides, as well as each parent receiving two
weeks of continuous parenting time during the summer months. To be clear, Deanna does not
possess the ability to define the school year for purposes of when the summer vacation from school
begins and ends under the 2012 stipulated order. Those parameters are set by the school district in
which the child resides.
                                   2. DEANNA’S ATTORNEY FEES
        Deanna argues the district court erred in not awarding her attorney fees. Deanna argues
that Mitchell’s sole contention in this matter was Deanna’s homeschooling of Elijah, and that the
established law in Doolitle, supra, made his position untenable. This assertion lacks merit.
        The award of attorney fees depends on multiple factors that include the nature of the case,
the services performed and results obtained, the earning capacity of the parties, the length of time
required for preparation and presentation of the case, customary charges of the bar, and the general
equities of the case. Burcham v. Burcham, Neb. App. 323, 886 N.W.2d 536, 546 (2016).
        We find that the district court did not err in refusing to award Deanna attorney fees. There
was no formal discovery in this matter and no novel issues of law. Mitchell’s position was not
untenable under Doolittle. Therefore, we find that that the district court did not err in not awarding
Deanna attorney fees.
                                  3. MITCHELL’S CROSS-APPEAL
        Mitchell argues the district court erred in failing to give him a deduction for his 3 percent
contribution to his retirement account, deductions for his health, dental, and vision insurance,
utilizing his higher 2015 earnings, and not utilizing the joint custody form or granting an abatement
during the summer months when Mitchell has physical placement of Elijah. Upon our review, we
find that Mitchell’s assertions regarding utilization of a retirement deduction does have merit.
        The paramount concern in child support cases, whether in the original proceeding or
subsequent modification, is the best interests of the child. Incontro v. Jacobs, 277 Neb. 275, 761
N.W.2d 551 (2009). In general, child support payments should be set according to the Nebraska
Child Support Guidelines adopted by the Nebraska Supreme Court, which are presumed to be in
the best interests of the child. Id. See, also, Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113
(2015). In determining the amount of a child support award, a trial court must consider the status,
character, and situation of the parties and attendant circumstances, including the financial
condition of the parties and the estimated cost of support of the children. Hajenga v. Hajenga, 257
Neb. 841, 601 N.W.2d 528 (1999).




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                                      (a) Retirement Deduction
       The Nebraska Child Support Guidelines provide that mandatory retirement contributions
should be deducted to arrive at monthly net income. Neb. Ct. R. § 4-205. Where no mandatory
retirement plan exists, a deduction shall be allowed for a continuation of actual voluntary
retirement contributions not to exceed 4 percent of the gross income from employment or 4 percent
from the net income from self-employment. Id.
       In this case, the district court did not give Mitchell a deduction for his retirement
contribution. We find that the failure to allow for a 3 percent deduction was an abuse of discretion.
                                      (b) Insurance Deductions
        Mitchell argues that the district court erred in calculating his deduction for his health
insurance and erred in calculating the deduction amount for his health insurance premium that was
actually paid. Upon our review of the record, we find that the records from Mitchell’s employer
support the district court’s calculation. Therefore, the district court did not abuse its discretion in
calculating Mitchell’s insurance deductions.
                                         (c) Earnings Utilized
        The Nebraska Child Support Guidelines provide that in calculating the amount of support
to be paid, a court must consider the total monthly income, defined as the income of both parties
derived from all sources, except all means-tested public assistance benefits and payments received
for children of prior marriages. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
The Supreme Court of Nebraska stated that courts should take a flexible approach in determining
a person’s income for purposes of child support, because child support proceedings are, despite
the child support guidelines, equitable in nature. Id.
        We find that the district court did not abuse its discretion in utilizing Mitchell’s 2015
income. The district court utilized Mitchell’s income before he was terminated from his previous
position in that Mitchell was terminated from that position due to his missing work, despite
Mitchell’s claim that his absences were due to the unfortunate passing of his grandfather. We find
that having assessed Mitchell’s credibility, the district court did not abuse its discretion in utilizing
Mitchell’s higher wages in 2015 in computing his child support obligation.
                                       (d) Summer Abatement
       Since we reversed the award of joint physical custody and Elijah will not be placed with
Mitchell the majority of the summer, any issue of utilizing a joint physical custody calculation or
allowing a summer abatement no longer remains.
                                         VI. CONCLUSION
        We find that the district court erred in awarding joint legal and physical custody, with final
decisionmaking authority to Mitchell. We remand this issue with directions for the district court
to reinstate the 2012 stipulated order governing custody and decisionmaking authority.
Additionally, we find that the district court did not err in not awarding Deanna’s attorney fees.
Finally, we find that the district court erred in Mitchell’s child support calculation and we remand




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in order for the district court to recompute the child support calculation consistent with this
opinion.
                                                     AFFIRMED IN PART, AND IN PART REVERSED
                                                     AND REMANDED WITH DIRECTIONS.




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