Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/31/2016 09:06 AM CDT




                                                           - 47 -
                               Decisions of the Nebraska Court of A ppeals
                                     24 Nebraska A ppellate R eports
                                 STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                                             Cite as 24 Neb. App. 47




                               State    of   Nebraska            Carter W.,
                                                           on behalf of
                                  a minor child, appellee, v.A nthony W.,
                                    defendant and third -party plaintiff,
                                   appellee, and Cynthia H., third -party
                                           defendant, appellant.
                                                       ___ N.W.2d ___

                                             Filed May 31, 2016.    No. A-15-158.

                1.	 Child Custody: Appeal and Error. 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.
                2.	 Visitation: Appeal and Error. 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.
                3.	 Judgments: Words and Phrases. An abuse of discretion occurs when
                     a trial court bases its decision upon reasons that are untenable or unrea-
                     sonable or if its action is clearly against justice or conscience, reason,
                     and evidence.
                 4.	 ____: ____. 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.
                5.	 Child Custody: Appeal and Error. 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
                     rather than another.
                6.	 Child Custody. Courts typically do not award joint legal custody when
                     the parties are unable to communicate effectively.

                 Appeal from the District Court for Lancaster County: Steven
               D. Burns, Judge. Affirmed.
                             - 48 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

  Jerry L. Soucie for appellant.
  Linsey A. Camplin and Jessica Ledingham, Senior Certified
Law Student, of McHenry, Haszard, Roth, Hupp, Burkholder &
Blomenberg, P.C., for appellee.
  Inbody, Pirtle, and R iedmann, Judges.
  Pirtle, Judge.
                       INTRODUCTION
   Cynthia H. appeals from an order of the district court for
Lancaster County determining custody, parenting time, and
child support for the minor child, Carter W. Cynthia challenges
the court’s decision to grant joint legal and physical custody,
and she asserts the court failed to follow the local court rules
in determining the parties’ respective parenting time. For the
reasons that follow, we affirm.
                       BACKGROUND
   Cynthia and Anthony W. began a relationship in the summer
of 2009 and conceived a child in January 2010. They moved
in together in the summer of 2010, and their son, Carter,
was born in September. Their romantic relationship ended in
September 2011.
   Immediately after the parties’ separation, Anthony’s parent-
ing time with Carter was not specifically scheduled and the
time and duration varied. On January 26, 2012, the Lancaster
County Attorney filed a complaint to establish support,
and Anthony’s acknowledgment of paternity was attached.
Anthony agreed to the child support calculation proposed by
the county attorney. A referee’s report was filed stating that
Carter resided with Cynthia and that Anthony was able and
capable of supporting Carter. The report contained the parties’
stipulation to the amount of support to be provided to Cynthia
by Anthony. Anthony was not represented by counsel and tes-
tified that he was not aware that the referee’s report reflected
a stipulation that Cynthia had, or should have, sole custody
of Carter.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

   In April 2013, the parties agreed to split their time with
Carter on a “week on/week off” basis. Cynthia said she antici-
pated the schedule would end in September. In August 2013,
Anthony filed a complaint for determination of custody and
parenting time and sought decisions regarding issues includ-
ing temporary and permanent custody, parenting time, and
child support. In September, Anthony filed a motion for tem-
porary custody and requested temporary legal and physical
custody or, in the alternative, joint legal and physical custody
of Carter.
   A hearing on the motion for temporary custody was sched-
uled for November 18, 2013, and the parties were to be
allowed one-half hour to present evidence. The hearing was
continued to December 19. Both parties testified, and the
court received multiple exhibits without objection. The exhibits
included Anthony’s affidavit and proposed child support cal-
culation, Cynthia’s proposed parenting plan and child support
calculation, and the income statements of both parties.
   On December 23, 2013, the district court entered a tempo-
rary order granting joint legal and physical custody with an
exchange of physical custody occurring on a weekly basis. A
hearing on Anthony’s complaint for determination of custody
and parenting time occurred on November 17, 2014. Cynthia
and Anthony both testified.
   Anthony testified that he began working at a retail store
in Lincoln on September 27, 2014. He works from 8 a.m. to
5 p.m., except for one night per week, when he closes the
store, and he receives $50,000 per year for this occupation. He
testified that he decided to work there because the schedule
allowed him to spend more time with Carter and that it offered
an increased salary. He was previously employed by a deten-
tion center and a social services organization. He was still
considered an on-call employee for both of those employers,
but he had not worked any shifts since he began working for
the retail store.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

   Anthony testified that he moved multiple times in the year
prior to the hearing. He testified that in December 2013, he
moved from a one-bedroom apartment to ensure that Carter
would have a room of his own. In 2014, he canceled his lease
in anticipation of a move into a home with his girlfriend, but
the home was not available right away because of remodeling
delays. As a result, he moved into his girlfriend’s apartment,
and then into the home when it became available in November.
He testified that he signed an 18-month lease at that time and
has no plans to move. He stated that he plans to remain in a
long-term relationship with his girlfriend.
   Anthony testified that when he picks up Carter from daycare,
they play and cook dinner together, then Carter takes a bath,
and they watch TV or read books before bedtime. Anthony
testified that the parties have been complying with the week
on/week off parenting schedule and that he believed it was
“going really great.” He testified that he does not believe that
continuing with this schedule would be disruptive to Carter or
his education in the future.
   The parties agreed to exchanges of Carter at daycare, and
the few face-to-face exchanges which occurred took place
in public or with a third party present. Cynthia testified that
she believed Anthony should continue to be actively involved
in Carter’s life and in decisions which affect it. She said it
is “of value that [he] has a very good relationship with
his son.”
   Cynthia testified that she works full time as a program spe-
cialist for the State of Nebraska. She began her job as a part-
time employee in February 2013 while she finished her master
of science degree, and she was hired as a permanent employee
in May 2013.
   She testified that she was concerned that week on/week off
parenting time would cause instability and anxiety. She said
it could cause stress which would impact Carter’s sleeping
patterns, behavior, cognitive functioning, and ability to focus
in school.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

   Cynthia testified that at times she smelled the odor of alco-
hol on Anthony, when she knew he had been out the night
before. She testified that there were times that she did not
want Carter to go with Anthony, but her concerns regarding
alcohol use did not prevent her from letting Carter leave with
him. There was one instance when she did not allow Carter to
leave because Anthony arrived late and it was Carter’s nap-
time. These instances were prior to the temporary order of the
district court.
   Anthony testified that in February 2014, he drove under the
influence of alcohol and hit a parked vehicle with his vehicle.
Anthony was fined for driving under the influence of alcohol
and sentenced to 14 days of house arrest. He has an ignition
interlock device in his vehicle and has not had any violations
of that device. He testified that he has not had anything to
drink since that incident occurred, and at the temporary hear-
ing, he stated that he never picked up Carter while under the
influence of drugs or alcohol.
   On January 30, 2015, the district court entered an order
placing legal and physical custody of Carter jointly with
Cynthia and Anthony. The court incorporated the parenting
plan proposed by Anthony and ordered Anthony to pay child
support in the amount of $60 per month.
   The parenting plan provided for parenting time with each
parent every other week, with the exchange to occur at 4 p.m.
on Friday. Recognizing that cooperation between the parents
is in the child’s best interests, the plan provided that the par-
ents should not disparage or denigrate the other parent and
that they should cooperate “to the fullest extent necessary”
to foster and promote a safe, secure, and loving environment
for the child. The parents were to cooperate and inform each
other about medical, religious, educational, social, and extra-
curricular matters. The plan provided that the parties should
communicate regarding these matters in a “communication
notebook” which would be transferred with the child to the
other parent at the end of each parenting time period. The
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
           STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                       Cite as 24 Neb. App. 47

district court also incorporated the mediated agreement of the
parties regarding holidays, vacations, and special occasions,
as well as the agreement that the primary means of commu-
nication between the parties should be through text message.
The parties agreed that the text messages would be limited to
issues regarding Carter and that there would be only one mes-
sage conversation initiated per day.
   Cynthia timely appealed the order of the district court.

                 ASSIGNMENTS OF ERROR
   Cynthia asserts the district court erred in awarding joint
legal and physical custody, and she asserts the court failed to
follow the local court rules in determining the parties’ respec-
tive parenting time.

                     STANDARD OF REVIEW
    [1] 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).
    [2] 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 determi-
nation will normally be affirmed absent an abuse of dis-
cretion. Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d
644 (2014).
    [3,4] 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 sub-
stantial right and a just result. Id.
    [5] In child custody cases, where the credible evidence
is in conflict on a material issue of fact, the appellate court
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

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. Id.

                           ANALYSIS
    The district court found that legal and physical custody of
Carter was to be placed jointly with Cynthia and Anthony. The
court specifically found that both parties were fit and proper
parents to have custody, and it provided a plan for commu-
nication between them in the interest of mutual participation
and cooperation for the benefit of the child. Part of this plan
included the use of a communication notebook in which the
parties would document important information so the other
parent would be fully informed at the end of each parenting
time period.
    Cynthia asserts that joint custody should be an option only
if the parties can communicate in an open and supportive man-
ner and asserts that the agreement to communicate through
one text message conversation per day and a weekly exchange
of a communication notebook is evidence that the court erred
in determining that joint legal and physical custody was in
Carter’s best interests. Cynthia argues the joint custody deter-
mination was not accompanied by any “attempt to explain why
such a cumbersome communications plan made any sense or
was in any way, shape, or form in Carter’s best interest.” Brief
for appellant at 32.
    [6] 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) (Cum. Supp. 2014). We acknowledge that
courts typically do not award joint legal custody when the par-
ties are unable to communicate effectively. State on behalf of
Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208
(2016). However, a trial court’s decision to award joint legal
or physical custody can be made without parental agreement
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
           STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                       Cite as 24 Neb. App. 47

or consent so long as it is in the child’s best interests. Id. Neb.
Rev. Stat. § 42-364(3) (Cum. Supp. 2014) states:
      Custody of a minor child may be placed with both parents
      on a joint legal custody or joint physical custody basis,
      or both, (a) when both parents agree to such an arrange-
      ment in the parenting plan and the court determines that
      such an arrangement is in the best interests of the child or
      (b) if the court specifically finds, after a hearing in open
      court, that joint physical custody or joint legal custody, or
      both, is in the best interests of the minor child regardless
      of any parental agreement or consent.
    Section 42-364 has also been applied to custody disputes in
paternity actions. See State on behalf of Maddox S. v. Matthew
E., supra. See, also, Cox v. Hendricks, 208 Neb. 23, 302
N.W.2d 35 (1981).
    The district court specifically found that both parents are
fit and proper parents and that cooperation between them is in
Carter’s best interests. The court chose not to favor one parent
over the other with regard to parenting time or legal custody.
    In affording such deference to the trial courts, appellate
courts have in some instances declined to reverse trial court
decisions where joint custody has been awarded or maintained
even when the evidence demonstrates a lack of communica-
tion or cooperation between parents. For example, in State on
behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230
(2015), the Nebraska Supreme Court affirmed a district court’s
denial of a father’s request to modify from joint legal custody
to sole legal and physical custody despite an apparent inabil-
ity of the parties to parent cooperatively with one another.
The Supreme Court stated as follows: “Given the record in
this case, and given our standard of review and deference to
the trial court’s determinations with respect to the credibility
of the witnesses, we cannot say that the court’s denial of the
modification of custody was clearly untenable or an abuse of
discretion.” Id. at 87, 871 N.W.2d at 243.
                               - 55 -
          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
           STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                       Cite as 24 Neb. App. 47

   Likewise, in State on behalf of Maddox S. v. Matthew E.,
supra, this court affirmed the district court’s modification
of the parenting plan in spite of the parents’ communica-
tion difficulties. The modification specifically divided joint
legal custody responsibilities between the parties in a manner
that would minimize contact and conflict between them. We
gave deference to the district court’s attempt to find a work-
able solution to protect the child’s best interests despite the
“power struggle” between the parties. Id. at 520, 873 N.W.2d
at 220.
   In this case, the parties have demonstrated the ability to com-
municate regarding matters affecting Carter between the tem-
porary order in December 2013 and the hearing in November
2014. Anthony testified that the parties have communicated
mostly by text and telephone and that he felt it has been work-
ing. He testified that he felt they could reasonably discuss and
come to a solution on any issues regarding Carter in the future.
Cynthia testified that she believed a joint custody arrangement
would cause instability and anxiety and that communication
with Anthony has followed a pattern of “power and control.”
She testified that the mediated agreement placed boundaries
on the text messages between the parties because they did not
engage in healthy communication. The text messages submit-
ted as evidence contained an exchange regarding the parties’
prior relationship which would be outside of the boundaries
set by the parties. Cynthia testified that the messages were
designed to manipulate her emotions. However, there was no
showing that the messages were exchanged after the parties
agreed in mediation to limit the content of the messages to
only information about Carter, and the language used was not
violent, vulgar, or abusive. There is little evidence that the par-
ties have not been able to communicate for the benefit of the
minor child.
   Cynthia asserts that awarding joint physical and legal cus-
tody when the parties are unable to communicate represents
a “default disposition” by the trial court and is contrary to
                              - 56 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

established case law that joint custody is not favored by the
courts of this state. Brief for appellant at 32. Contrary to her
assertions, however, the trial court’s order was specifically tai-
lored to the evidence presented and did not represent a default
disposition. The district court respected the parties’ agreement
to place boundaries on their communication, and the order
incorporated the partial mediated agreement, including their
agreement to initiate only one text message conversation per
day. The order attempted to further facilitate healthy commu-
nication by ensuring that each party is fully informed about
important issues related to Carter through the use of a com-
munication notebook. The notebook allows an exchange of
information on a weekly basis, while the option of one daily
text message conversation allows for information to be shared
on a day-to-day basis as needed. Upon our de novo review of
the record, we find the district court did not abuse its discre-
tion in devising a plan for communication which will hopefully
minimize conflict between the parties.
   Cynthia also asserts that Anthony’s “performance during
2014 between the temporary custody award and the final
hearing was nothing short of a disaster” and that therefore
joint custody is inappropriate. Brief for appellant at 37. The
evidence shows that Anthony made mistakes, including driv-
ing under the influence of alcohol. However, he has complied
with court orders and changed his behavior, avoiding the
consumption of alcohol to ensure the same mistakes will not
happen again. In addition, the evidence shows that although
Anthony changed jobs and moved several times in 2014,
these changes were made to provide a stable, more long-term
living situation for Carter and allow them to spend more
time together.
   Appellate courts review custody decisions for an abuse of
discretion 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. See Schrag v. Spear, 290 Neb. 98,
858 N.W.2d 865 (2015). See, also, Aguilar v. Schulte, 22 Neb.
                              - 57 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
          STATE ON BEHALF OF CARTER W. v. ANTHONY W.
                      Cite as 24 Neb. App. 47

App. 80, 848 N.W.2d 644 (2014). Upon our de novo review,
we find the district court did not abuse its discretion in finding
joint custody was in Carter’s best interests.
   Cynthia also asserts the district court erred “when it failed
to comply with local rule 3-9 and grant parenting time to
[Anthony] as set forth in Third Judicial Local Rule 3-9
Appendix Form 3.” Brief for appellant at 38. According to
the local rules, Appendix Form 3 is “a standard parenting
time schedule which, in the absence of unusual circumstances,
the court finds provides reasonable parenting time for the
noncustodial parent in cases in which the parties are unable
to agree otherwise.” Rules of Dist. Ct. of Third Jud. Dist.
3-9(F)(a) (rev. 2013). Having determined the district court did
not abuse its discretion in awarding joint custody, we find it
would not have been proper to use Appendix Form 3. That
form applies when allocating parenting time between custo-
dial and noncustodial parents, and in this situation, the parties
hold joint physical and legal custody. The district court’s final
order incorporated an exhibit which contained the parties’ par-
tially mediated agreement. The mediated agreement addressed
issues including expenses incurred on behalf of the child,
parenting time for holidays, vacations and special occasions,
communication between the parties, and how disagreements
or modifications would be handled. The mediated agreement
was offered at the hearing and received without objection. We
find the district court did not err in incorporating a parenting
time schedule other than the schedule provided in Appendix
Form 3.
                         CONCLUSION
   For the reasons stated above, we affirm the order of the dis-
trict court granting joint legal and physical custody.
                                                      A ffirmed.
