                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        COUGHLIN V. GRAF


  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).


                                JAMES E. COUGHLIN, APPELLANT,
                                                V.

                                   MALLORI GRAF, APPELLEE.


                             Filed March 10, 2020.    No. A-19-431.


       Appeal from the District Court for Douglas County: MARLON A. POLK, Judge. Affirmed.
       Justin A. Quinn for appellant.
       No appearance for appellee.


       MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
       WELCH, Judge.
                                        INTRODUCTION
         James E. Coughlin appeals the decision of the Douglas County District Court granting him
and Mallori Graf joint physical custody of the parties’ minor son. Coughlin contends that the
district court erred in excluding testimony regarding the parties’ disagreements about their son’s
medical care and in failing to award him sole physical custody. For the reasons set forth herein,
we affirm.
                                   STATEMENT OF FACTS
        Coughlin and Graf are the parents of James E. Coughlin, Jr., nicknamed “Bird,” who was
born in November 2010. When the parties first filed for a custody determination, they were
residing in Iowa and brought an action in an Iowa district court. In August 2012, the Iowa district
court entered an order regarding child custody.




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        In the summer of 2016, Graf attempted suicide. A few months later, in November 2016, an
Iowa court modified the custody order to incorporate the parties’ stipulated agreement including
that Coughlin and Graf were to share physical custody of Bird subject to certain psychological
reporting requirements by Graf. The court’s order provided that Coughlin was to have overnight
parenting time with Bird every Sunday, Monday, and Tuesday, and that Graf was to have overnight
parenting time every Wednesday, Thursday, and Friday, with the parties alternating Saturday
evenings. The court also granted the parties joint legal custody of Bird, with Coughlin having final
determination on the “selection of physicians, church membership or school enrollment.” Because
of Graf’s attempted suicide, the court order provided:
        [T]herefore [the parties] agree that [Graf] shall provide [Coughlin] with a letter from her
        treating therapist, physician or psychiatrist confirming her compliance with her mental
        health needs, every three months for the next two years. Assuming that no additional
        incidents occur, and such appropriate letters are provided, the requirement of further
        verification shall be suspended at the end of the 24 months. . . . The parties agree and
        stipulate that further mental health crises are not in the best interest of the child and that
        any further and similar incidents by [Graf] shall immediately cause the child to be
        surrendered into the temporary sole physical care of [Coughlin]. Furthermore, the parties
        agree and stipulate that such additional or similar incidents shall be a sufficient material
        and substantial change of circumstances to warrant the permanent change of primary
        physical care of the child to that of [Coughlin].

         Subsequently, both parties relocated to Nebraska, and in August 2017, Graf filed a verified
complaint to register the action and requested to modify the Iowa order. In response, Coughlin
filed a counterclaim to modify. Eventually, Graf’s complaint to modify was dismissed leaving only
Coughlin’s counterclaim to modify and a trial thereon was held in January 2019. At trial, the
district court heard testimony from Mary Ellen Christ-Anderson, who was Graf’s mental health
counselor; Coughlin; and Graf.
                                 MARY ELLEN CHRIST-ANDERSON
        Christ-Anderson testified that she served as Graf’s mental health counselor but last treated
her in November 2017. She testified that from the summer of 2016 to November 2017, Graf
consistently attended therapy sessions and did not present with suicidal thoughts during that
period. She testified that, consistent with the court’s order, she issued letters to Coughlin in May,
September, and October 2017, wherein she attested to Graf’s mental state during those periods. In
Christ-Anderson’s October 2017 letter, she summarized that to her knowledge, Graf had been
compliant with her therapy and had not had a mental health crisis in over 15 months.
Christ-Anderson indicated that, in July 2017, Graf informed her that she was concerned Coughlin
would hurt Bird and that Bird had told Coughlin, “Mom says I’m not safe at Dad’s.”




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                                         JAMES COUGHLIN
         Coughlin testified he graduated from Briar Cliff College with a degree in criminal justice.
After college, Coughlin joined the Army National Guard, eventually working full time in the
armory in Council Bluffs, Iowa.
         Coughlin and his wife, Nina, reside in a five-bedroom home with their 2-year-old son and
Nina’s two children from a previous relationship. One of Nina’s children is the same age, and
attends the same school, as Bird. Coughlin testified Bird has his own room, but on some nights, he
would rather stay in the same room as his stepbrother. Coughlin testified he attended all of Bird’s
parent-teacher conferences and that Bird’s report cards indicated he was doing “[g]reat. He’s
proficient or advanced in all aspects, and especially advanced in mathematics.” Coughlin also
testified that Bird is participating in extracurricular activities including CCD and baseball. Bird
attends CCD at the same parish as his stepsiblings and is on the same baseball team as his
stepbrother and “love[s] it.” Coughlin also testified that Bird has close relationships with his
stepsiblings, explaining they get along “great” and “play just about the whole time that they’re
together” playing on the hoverboard, bike, scooters, games, and in the snow. Coughlin also
testified Bird assists in changing his younger half brother’s diapers and plays with his younger
half brother. Coughlin testified that his stepchildren have the same parenting schedule as Bird and
that it was important to him to keep the children on the same schedule in order to strengthen the
children’s relationships.
         Coughlin also testified Graf’s two suicide attempts caused him to worry about Bird’s
safety. He further testified that, although he was to receive court-ordered mental health updates
from Graf, the last mental health update he received was in December 2018.
         Coughlin also testified regarding the tension between himself and Graf and stated that it is
better if he and Graf were not in the same place at the same time. Coughlin testified that sometimes
Graf calls him names and described an October 2018 incident during which Graf called him a
“pussy ass bitch” in a public parking lot while Coughlin was putting his stepchildren and child in
the car. Coughlin testified he and Graf disagreed about which church’s CCD program Bird should
attend with Coughlin favoring his parish and Graf favoring her parish. Graf took Bird to Coughlin’s
parish for CCD only after Coughlin filed a contempt action against her. Coughlin also described
another situation where Bird had attempted to hurt himself while in Graf’s care. After being
notified by the doctor’s office of the situation, he contacted Graf but she would not let him speak
with Bird. Coughlin requested that police perform a wellness check on Bird, which determined
that Bird was “ok.” Coughlin testified that when Bird returned to his custody, he took Bird to Boys
Town for an evaluation to determine if he needed ongoing therapy, which the evaluation
determined was not needed.
         Coughlin also testified that Graf refused to pay daycare expenses that were necessarily
incurred during her parenting time on Wednesday mornings before school started. Coughlin also
testified that Graf would deny him parenting time if he did not personally pick up Bird. Coughlin
testified that on one weekend in 2017, he was working in Council Bluffs, Iowa, performing a
military drill during his parenting time. Coughlin testified that, because his parenting time started
at 8 a. m., he sent Nina to pick up Bird, but she was not allowed to leave with him forcing Coughlin




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to request leave from his military post to pick up Bird. Coughlin then read from one of the exhibits
containing a 2017 text message sent from Graf to Coughlin stating:
        Nina should never be picking him up because you are out of town and not available. He
        should be with me. First right of refusal is something that is in all custody orders and will
        be surely entered into ours. Also, on a separate note, it is dark outside. Bird will not be sent
        out in the dark for anything, it’s not safe.

Although Graf’s text message references a right of refusal, Coughlin testified that a right of first
refusal was not included in the court order, and that Bird spends a substantial amount of time with
Graf’s parents but Coughlin has never sought a right of refusal. Coughlin further testified that
when he picks up Bird from Graf’s parent’s residence, her parents insist Coughlin come to the
door to get Bird instead of sending him out to Coughlin’s car. Coughlin testified Graf’s parents
use that interaction to belittle him. Coughlin testified Graf has changed residences approximately
four times between February 2017 and April 2018. Coughlin also testified that at one point Graf
did not provide a bed for Bird. Coughlin also testified he and Graf disagreed about medical
treatment for Bird, and Coughlin’s attorney tried to introduce evidence along these lines but was
prohibited by the court based on relevance. Instead, Coughlin’s attorney made an offer of proof
outlining disagreements between the parties about Bird’s therapist, optometrist, primary care
physician, and dentist.
                                           MALLORI GRAF
       Graf testified she shares a residence with her roommates, Liz and Evan, and their two
children, one of whom is attending college and stays at the residence only on the weekends. When
asked how often her roommates provide child care on the weekends, Graf replied:
               It just depends on if I’m working. We don’t really consider it child care because we
       all take care of each other’s kids. I don’t work very much on the weekends. I work
       Saturdays every once in a while. But if he’s at home with my roommates, he’s also at home
       in his own home, with his family[.]

        Graf testified she is employed by the Salvation Army as an intensive community care
specialist case manager working Sunday through Wednesday but also picks up shifts as a waitress
Thursday and Friday over lunch and every other Saturday when Bird is at parenting time with
Coughlin.
        Graf testified she has experienced financial difficulties. She explained that during the
summer of 2017 her car was repossessed because she did not have enough money to pay her bills.
Graf testified that, for a period of time, Bird resided with her parents because her living
arrangements were uncertain. Graf testified Bird frequently goes to her parents’ house and spends
time with his aunts and uncles who are close to his age. Graf testified that when Bird stays
overnight with her parents, he usually sleeps in Graf’s younger brother’s room.
        Graf testified that her suicide attempt in the summer of 2016 led to the November 2016
modification order, which required her to provide updates to Coughlin every three months over a
two year period concerning her therapeutic condition. Graf testified she did not have a therapist



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between November 2017 and December 2018. Graf acknowledged that to comply with the court
order, she would have needed a treating therapist or doctor, but she did not have the means to pay
for those services until December 2018 at which point she began seeing a therapist. Graf testified
she has been diagnosed with “major depressive,” anxiety disorders, and posttraumatic stress
disorder (PTSD) which she partially attributed to Coughlin. Graf testified her mental health
treatment includes medication and working with a therapist and a psychiatrist. Although Graf
admitted that she had accused Coughlin of harming Bird, she also acknowledged that she was not
aware of a situation where Coughlin had harmed Bird. She also admitted that she and Coughlin
had disagreements regarding Bird’s therapist, which church Bird should attend, and Bird’s
extracurricular activities, specifically baseball, because Coughlin sent her a text message saying
when baseball would begin without first discussing which team Bird would play for or which days
would work for her schedule. Although Graf testified that she did not take Bird to baseball games
during her parenting time last year, Bird attended every baseball game this year. Graf testified that
she speaks kindly to Coughlin with the exception of the night she cursed at him while he was
putting his children in his car. Graf testified that she would like to get along better and “start a new
clean slate” with Coughlin and Nina for Bird’s benefit.
                                      DISTRICT COURT ORDER
       The district court’s May 1, 2019, order provided that a material and substantial change had
occurred warranting a modification of the decree. The order provided, in relevant part:
       [Coughlin] shall be awarded the Sole Legal Custody of the parties’ minor child. [Coughlin]
       and [Graf] shall continue to have the Joint Physical Custody of the parties’ minor child.
       The parenting time shall be modified such that [Graf]’s parenting time shall begin on
       Wednesday at the time school begins and if school is not in session her parenting time shall
       begin at 8:00 a.m. The Fourth of July Holiday shall be modified such that [Coughlin] shall
       have the minor child in odd numbered years and [Graf] shall have the minor child in even
       numbered years. The Summer visitation shall be modified in that each party shall be
       required to designate their Summer parenting time no later than March of each year. All
       other provision[s] (sic) not specifically modified from the previous Court’s Orders shall
       remain in full force and effect.


                                   ASSIGNMENTS OF ERROR
       Coughlin contends, restated and renumbered, that the district court erred in (1) excluding
testimony regarding medical disagreements between the parties and (2) failing to award him sole
physical custody of Bird.
                                     STANDARD OF REVIEW
        In a filiation proceeding, questions concerning child custody determinations are reviewed
on appeal de novo on the record to determine whether there has been an abuse of discretion by the
trial court, whose judgment will be upheld in the absence of an abuse of discretion. State on behalf
of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019).




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                                            ANALYSIS
                                     EXCLUSION OF TESTIMONY
       Coughlin first contends the district court erred in excluding testimony regarding medical
disagreements between the parties. Coughlin argues the contentious nature of the parties’
disagreements over their child’s medical needs was relevant for the court’s determination of
physical custody.
       When deciding evidentiary issues, the Nebraska Supreme Court has explained:
       In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
       controlled by these rules; judicial discretion is involved only when the rules make
       discretion a factor in determining admissibility. The exercise of judicial discretion is
       implicit in determining the relevance of evidence, and we will not reverse a trial court’s
       decision regarding relevance absent an abuse of discretion. A judicial abuse of discretion
       exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
       a litigant of a substantial right and denying just results in matters submitted for disposition.

Salem Grain Co. v. City of Falls City, 302 Neb. 548, 576-77, 924 N.W.2d 678, 698-99 (2019).
         The Parenting Act, as adopted by the Nebraska Legislature, explains that “the concept of
child custody encompasses both ‘legal custody and physical custody.’ ‘Legal custody’ focuses
entirely on decisionmaking authority and is defined as ‘the authority and responsibility for making
fundamental decisions regarding the child’s welfare, including choices regarding education and
health.’” State on behalf of Kaaden S. v. Jeffery T., 303 Neb. at 945-46, 932 N.W.2d at 703.
         At trial, when Coughlin’s attorney proceeded with a line of questioning regarding
disagreements over Bird’s medical needs, Graf’s attorney objected and the court ruled that it was
not relevant because Coughlin has “sole decision making on the medical.” Coughlin’s attorney
made an offer of proof in the form of an exhibit containing a series of text messages from March
2017 to October 2018 between Coughlin and Graf highlighting the contentious nature of these
medical disputes. The medical disputes mostly involved the parties’ disagreements regarding who
should be Bird’s therapist, dentist, and optometrist.
         The specific evidence that Coughlin attempted to elicit, but was denied, directly related to
Coughlin and Graf’s attempts to make fundamental decisions regarding Bird’s welfare in the past.
Stated differently, the excluded evidence struck right at the heart of Coughlin and Graf’s prior
attempt to exercise their rights to joint legal custody. But under the prior order, even though the
parties were granted joint legal custody, Coughlin had been granted the right of final determination
if the parties did not agree. Further, in modifying the order, the district court granted Coughlin sole
legal custody governing like decisions in the future. Taken together, Coughlin certainly cannot be
heard to say that the exclusion of any further evidence governing disagreements over Bird’s
medical welfare prejudiced him in any way, at least in relation to the issue of joint legal custody
to which the issue of these disagreements more directly relates.
         Although the issue of Coughlin and Graf’s disagreements over Bird’s medical welfare
could have some impact on issues pertaining to Bird’s physical custody as we more fully articulate
in the next section of this opinion; we cannot say that the specific evidence excluded by the trial



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court as depicted in Coughlin’s offer of proof, which relates more directly to the issue of joint legal
custody, was an “untenable” ruling, or denied Coughlin of a substantial right in connection with
the issue of physical custody. This assignment fails.
                                        PHYSICAL CUSTODY
         Coughlin’s next assigned error is that the district court erred in failing to award him sole
physical custody of Bird. Coughlin argues the court abused its discretion by placing too much
emphasis on Bird’s academic success instead of considering the turmoil that exists between the
parties.
         In State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019), the
Nebraska Supreme Court recently restated the distinctions between legal custody and physical
custody.
                 “Physical custody” is defined by the Parenting Act as “authority and responsibility
         regarding the child’s place of residence and the exertion of continuous parenting time for
         significant periods of time.” As such, although the Parenting Act does not speak in terms
         of “sole” or “primary” physical custody, it contemplates that an award of physical custody
         will determine the child’s primary residence and identify the parent who will exert
         “significant” and “continuous” parenting time over the child.

Id. at 946, 932 N.W.2d at 703.
         We further note that in State on behalf of Kaaden S., the Nebraska Supreme Court
disapproved of the blanket proposition that joint custody arrangements are generally disfavored
and should be reserved for rare or special cases. Specifically, the court held that joint custody “is
neither favored nor disfavored under Nebraska law.” Id. at 955, 932 N.W.2d at 708. When custody
of a minor child is an issue, child custody is determined by parental fitness and the child’s best
interests. See, Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007); Spence v. Bush, 13 Neb.
App. 890, 703 N.W.2d 606 (2005) (paternity proceeding). When both parents are found to be fit,
the inquiry for the court is the best interests of the children. Maska, supra.
         When determining the best interests of the child in deciding custody, a court must consider,
at a minimum: (1) the relationship of the minor child to each parent prior to the commencement of
the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning;
(3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse
inflicted on any family or household member; and (5) credible evidence of child abuse or neglect
or domestic intimate partner abuse. State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019). See Neb. Rev. Stat. § 43-2923(6) (Reissue 2016).
         In addition to these statutory “best interests” factors, 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 to satisfy
the educational needs of the child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). Against



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that framework, we must now perform a de novo review of the record in order to determine whether
the district court abused its discretion in finding that a joint physical custody arrangement remained
appropriate in the instant case.
        The court ultimately determined joint physical custody was in the best interests of Bird. In
making its decision, the court heard evidence and argument from the parties regarding Bird’s
well-being and stability in his life. Additionally, the court considered the testimony about Bird’s
progress in school, which was attributable to both of his parents and extended family. Coughlin
explained that Bird’s academic performance, as shown by his report cards, indicated he was doing
“[g]reat. He’s proficient or advanced in all aspects, and especially advanced in mathematics.”
Additionally, Bird was participating in extracurricular activities including CCD and baseball. He
attended CCD at the same parish as his stepsiblings and was on the same baseball team as his
stepbrother and “love[s] it.”
        Coughlin discussed the close relationship Bird experiences with his stepsiblings,
explaining they get along “great” and “play just about the whole time that they’re together” playing
on the hoverboard, bike, scooters, games, and in the snow. Bird has his own room at Coughlin’s
house, but on some nights, he prefers to stay with his stepbrother in the same room. Bird assists in
changing his younger half brother’s diapers and plays with his younger half brother.
        In addition to Coughlin’s testimony, Graf described the environment at her residence and
what Bird encounters when he is present. Graf explained she shares a residence with her
roommates, Liz and Evan, and their two children, one of whom is attending college and stays at
the residence only on the weekends. When asked how often her roommates provide child care on
the weekends, Graf replied:
                 It just depends on if I’m working. We don’t really consider it child care because we
        all take care of each other’s kids. I don’t work very much on the weekends. I work
        Saturdays every once in a while. But if he’s at home with my roommates, he’s also at home
        in his own home, with his family[.]

Graf further testified that her parents care for Bird, and he frequently goes to their house. When he
stays overnight with them, he usually sleeps in Graf’s younger brother’s room. Like Coughlin,
Graf’s testimony establishes that Bird enjoys a good relationship with Graf and her family and is
well-adjusted under the current joint physical custody arrangement.
        Testimony established Bird enjoys a continuing relationship with extended family
members of both of his parents. For instance, Bird has gone on vacation to Colorado with Graf’s
parents and on another occasion has traveled to Las Vegas with Coughlin’s parents. After our de
novo review of the record, there is no indication the court failed to consider the best interest factors
when concluding that joint physical custody served Bird’s best interests. The record reflects both
Coughlin and Graf have provided Bird with loving environments which meet Bird’s needs and that
Bird is thriving. Bird’s best interests are met through a joint physical custody arrangement that
fosters a relationship between him and both of his parents and their extended families. Based upon
our de novo review, we find the district court did not abuse its discretion in continuing the award
of joint physical custody.




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                                        CONCLUSION
       Based upon our de novo review, we find the court did not err in refusing to admit testimony
governing certain disagreements of the parties and that Bird’s best interests require the
continuation of a joint physical custody arrangement. Thus, the order of the court is affirmed.
                                                                                         AFFIRMED.




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