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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

FALES v. FALES

Cite as 25 Neb. App. 868

Samuel E. Fales, appellee, v. 

Sandy L. Fales, appellant.

___ N.W.2d ___

Filed May 1, 2018. No. A-17-645.

1. Divorce: Appeal and Error. In actions for dissolution of marriage, an 

appellate court reviews the case de novo on the record to determine 

whether there has been an abuse of discretion by the trial judge.

2. 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.

3. Words and Phrases. The acts of abuse defined in the Protection from 

Domestic Abuse Act are those committed against household members 

and include attempting to cause or intentionally and knowingly causing 

bodily injury and placing, by means of credible threat, another person in 

fear of bodily injury.

4. ____. Threatening to cause or actually causing bodily injury to a spouse 

or former spouse qualifies as domestic intimate partner abuse.

5. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Loup County: Mark D. 

Kozisek, Judge. Judgment vacated, and cause remanded for 

further proceedings.

Sara K. Houston for appellant.

Nathan T. Bruner and Loralea L. Frank, of Bruner Frank, 

L.L.C., for appellee.

Riedmann and Bishop, Judges, and Inbody, Judge, Retired.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/08/2018 09:09 AM CDT
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

FALES v. FALES

Cite as 25 Neb. App. 868

Riedmann, Judge.

Sandy L. Fales appeals from the order of the district court 

for Loup County which dissolved her marriage to Samuel E. 

Fales and granted custody of their minor child to Samuel. 

Sandy argues on appeal that the court abused its discretion in 

awarding Samuel custody. Because the district court failed to 

make special written findings as required by Neb. Rev. Stat. 

§ 43-2932(3) (Reissue 2016), we vacate the district court’s 

order and remand the cause for further proceedings.

FACTUAL BACKGROUND

Sandy and Samuel were married in 2010, and their child, 

Samuel Ellis Wayne Fales (Ellis), was born in May 2012. The 

parties separated in the spring of 2015, and Samuel filed for 

dissolution of the marriage in June 2015. Each party requested 

custody of Ellis. In a temporary order, the district court awarded 

custody of Ellis to Sandy and granted Samuel parenting time of 

every other weekend, as well as 1 week per month.

At the March 2017 trial, evidence was presented as to the 

strengths and weaknesses of the parties relating to their fitness 

for custody of Ellis. Samuel operates the family cattle ranch 

with his father and brother. He has lived in the same family 

home since he was 8 years old, and his father lives nearby. 

He described a caring, involved extended family. Samuel testified that he provides a stable environment for Ellis and that he 

plays with Ellis while ensuring that Ellis naps, reads, attends 

church, and helps with household chores.

Sandy stated that she first moved to the ranch shortly after 

the parties married in 2010 and that she has been the primary 

caregiver for Ellis and her 12-year-old daughter from a previous relationship. Sandy obtained an associate of arts degree 

in 2010 and has pursued a career as a photographer, although 

her earnings have been nominal. Sandy initially testified that 

Samuel permitted her to have few friends and would not allow 

her to work outside the home. However, she later acknowledged that the ranch itself was rural and secluded but that 

Samuel allowed her to go places, purchasing a car for her to 
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FALES v. FALES

Cite as 25 Neb. App. 868

drive, and that she did, in fact, participate in activities. Sandy 

said she ultimately decided to leave the marriage in June 2015 

after concluding that the marriage was no longer working and 

that she and Samuel were constantly fighting. She described 

the feeling of “walking on eggshells,” stating that Samuel continually yelled at her and called her names.

Sandy does not have a close relationship with her extended 

family. When she first left the family home, she had a number 

of short-term living arrangements, including a safe house and 

a home owned by the man with whom she was involved at the 

time. She and Ellis stayed with her mother for about 30 days 

before her mother asked her to leave, after which she stayed 

for several weeks at yet another safe house. Sandy testified that 

she now resides in Colorado Springs, Colorado, with Ellis and 

her daughter. Sandy is working toward earning a bachelor’s 

degree at a local university.

Sandy explained that she had left the family home intermittently beginning in April 2015, returning on some weekends 

for photography engagements and to see Ellis. At some point, 

Samuel learned that Sandy had become involved with a man in 

Colorado and planned a permanent move there. There is no dispute that a serious domestic incident occurred during Sandy’s 

last visit to the family home in June. Becoming enraged at 

Sandy’s refusal to allow him to read texts on her cell phone, 

Samuel smashed the cell phone; handcuffed Sandy, who had 

emerged wet and naked from the shower; and restrained her 

on a bed. Ellis witnessed some of this disturbing scene, and 

after Samuel led Ellis out of the room, he returned to the bedroom where he reached for a loaded shotgun and held it under 

his chin while threatening suicide. The incident resulted in 

Samuel’s misdemeanor convictions for third degree assault and 

“[a]ttempt of a class 3A or 4 felony,” as well as a 1-year protection order against him as to Sandy. Samuel is still serving a 

48-month term of probation.

Samuel subsequently sought treatment from a clinical therapist, who was a licensed independent mental health practitioner. She treated him with cognitive therapy. The therapist 
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FALES v. FALES

Cite as 25 Neb. App. 868

testified that the disintegration of the marriage triggered in 

Samuel post-traumatic stress disorder from earlier childhood 

trauma, as well as a depressive episode. However, she testified that Samuel had made excellent progress. She described 

Samuel as a “respected rancher” in the community. She stated 

that he was now “extremely stable” and that she was very 

confident he could deal with life changes. The therapist opined 

that Samuel is “an excellent parent [and] deserves the right to 

parent his child.”

Samuel asserted that Ellis’ health regularly deteriorated 

while in Sandy’s care and that he often took Ellis to doctor 

appointments following Ellis’ time with Sandy. Samuel testified that Ellis lost weight after Sandy first took him from the 

family home and that he regained some of the weight while in 

Samuel’s care. Ellis had a recurrent rash on his upper lip from 

excess moisture on his lip for extended periods. Ellis’ family 

physician diagnosed him with impetigo and regularly treated 

him for a number of common ailments, such as rashes, cough, 

elevated temperature, colds, and fever. Nonetheless, the physician stated that he could not attribute poor parenting as the 

cause of Ellis’ several visits with the physician.

The district court found that both parents were fit and that 

both had developed a strong bond with Ellis. However, the 

court noted that Ellis required medical intervention about onehalf of the times that Samuel exercised his parenting time, 

which was after Ellis spent time with Sandy. While acknowledging that these medical problems did not necessarily imply 

failure on Sandy’s part, the court found that Samuel was more 

attentive to Ellis’ personal hygiene and physical needs. The 

court pointed to Ellis’ weight loss while with Sandy, his recurring impetigo, and an incident with head lice, as well as a 

picture of Ellis’ exhibiting long, dirty fingernails and toenails, 

which the court deemed a reflection on the lack of attention to 

Ellis on Sandy’s part.

Turning to the evidence of domestic abuse, the court 

noted that the June 2015 incident, while not the sole incident between the parties, “was by far the worst.” The court 
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FALES v. FALES

Cite as 25 Neb. App. 868

summarized other instances in which Samuel had thrown, 

broken, or burned things and otherwise acted inappropriately. 

The court found that there was credible evidence of abuse 

inflicted by Samuel on Sandy, but no credible evidence of 

child abuse or neglect.

The court stated that both parents are capable of parenting 

Ellis and had the emotional maturity and financial ability to 

raise Ellis and tend to his physical, emotional, and educational 

needs. However, the court found that Samuel provided the 

more stable environment. The court noted that Samuel and 

his family provide a loving, nurturing environment for Ellis, 

while Sandy has no close family ties and any friends she has in 

Colorado are new with no known ties to Ellis. The court considered Ellis’ relationship with Sandy’s daughter and concluded 

that, given the difference in age and sex, separating the half 

siblings would not have a detrimental effect on Ellis.

The court rejected Sandy’s contention that she initially left 

Ellis with Samuel because he would not permit her to take 

Ellis. The court found that Sandy left Ellis with Samuel as “a 

matter of convenience rather than a product of threats.” The 

court further noted that Sandy’s move over 400 miles away 

has impacted Samuel’s ability to visit with Ellis and that, in so 

doing, Sandy had “placed her own agenda ahead of Ellis” with 

little regard for the move’s effects on the strong relationship 

between Samuel and Ellis.

In awarding custody of Ellis to Samuel, the court considered the fact that Samuel had committed domestic intimate 

partner abuse. However, the court noted that Samuel had 

continued counseling to deal with the issues, which may have 

led to the incident of abuse, and that now “[h]e deals with 

the breakdown of the parties’ marriage in a more mature and 

reasonable manner.” The court also considered the lack of 

credible evidence of child abuse or neglect by either party and 

pointed to Sandy’s own parenting plan that suggested the parties meet for visitation exchanges in person, which the court 

felt indicated that she was not greatly concerned about contact 

with Samuel. Because those exchanges would be in a public 
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Nebraska Court of Appeals Advance Sheets

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FALES v. FALES

Cite as 25 Neb. App. 868

place, the court concluded that the parenting plan contained 

reasonable limits calculated to protect Sandy from harm. The 

parenting plan limited communication between the parties to 

email or text unless otherwise agreed, and it prohibited them 

from speaking negatively about the other parent or inquiring 

about the other’s personal affairs through Ellis.

Sandy has timely appealed from this order.

ASSIGNMENT OF ERROR

Sandy asserts that the district court erred in awarding Samuel 

sole legal and physical custody of Ellis.

STANDARD OF REVIEW

[1] In actions for dissolution of marriage, an appellate 

court reviews the case de novo on the record to determine 

whether there has been an abuse of discretion by the trial 

judge. Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 

266 (2017). This standard of review applies to the trial court’s 

determinations regarding custody, child support, division of 

property, alimony, and attorney fees. Id. A judicial abuse of 

discretion exists if 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. Id.

[2] 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. Schrag v. Spear, 290 Neb. 98, 858 

N.W.2d 865 (2015).

ANALYSIS

[3,4] Sandy argues that awarding custody to Samuel constituted an abuse of discretion because Samuel had committed 

domestic intimate partner abuse against her. She asserts that 

the district court failed to make the special written findings 

required under § 43-2932(3) before custody is awarded to a 

parent who has threatened an intimate partner with imminent 
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FALES v. FALES

Cite as 25 Neb. App. 868

bodily injury. Domestic intimate partner abuse includes “an 

act of abuse as defined in section 42-903.” See Neb. Rev. 

Stat. § 43-2922(8) (Reissue 2016). The acts of abuse defined 

in the Protection from Domestic Abuse Act are those committed against “household members” and include “[a]ttempting to 

cause or intentionally and knowingly causing bodily injury” 

and “[p]lacing, by means of credible threat, another person in 

fear of bodily injury.” See Neb. Rev. Stat. § 42-903(1)(a) and 

(b) (Reissue 2016). Spouses and former spouses are considered 

household members. See § 42-903(3). Thus, threatening to 

cause or actually causing bodily injury to a spouse or former 

spouse qualifies as domestic intimate partner abuse.

Through Sandy’s testimony and exhibits showing Samuel’s 

misdemeanor convictions for third degree assault and “[a]ttempt 

of a Class 3A or 4 felony,” she was able to show that Samuel 

had committed domestic intimate partner abuse. That evidence 

was not disputed by Samuel.

Section 43-2932(1)(b) provides in part: “If a parent is found 

to have engaged in any activity specified by subdivision (1)(a) 

of this section, limits shall be imposed that are reasonably 

calculated to protect the child or child’s parent from harm.” 

Section 43-2932(3) provides:

If a parent is found to have engaged in any activity specified in subsection (1) of this section, the court shall not 

order legal or physical custody to be given to that parent 

without making special written findings that the child 

and other parent can be adequately protected from harm 

by such limits as it may impose under such subsection. 

The parent found to have engaged in the behavior specified in subsection (1) of this section has the burden of 

proving that legal or physical custody, parenting time, 

visitation, or other access to that parent will not endanger 

the child or the other parent.

When a parent has committed domestic intimate partner abuse, 

as happened in this case, the obligations of § 43-2932 are 

mandatory. See Flores v. Flores-Guerrero, 290 Neb. 248, 859 

N.W.2d 578 (2015).
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

FALES v. FALES

Cite as 25 Neb. App. 868

In the instant case, the district court found that “there is 

credible evidence of abuse inflicted by Samuel on Sandy 

as that term is defined at §42-903.” In contrast, the court 

found “no evidence that Samuel ever acted inappropriately 

with Ellis. His anger was directed at Sandy and never toward 

Ellis.” In awarding custody to Samuel, the court stated that it 

had considered Samuel’s domestic intimate partner abuse. The 

court noted:

[Samuel] has counseled and continues counseling dealing 

with issues that may have lead [sic] to the circumstances 

of the domestic abuse. He now deals with the breakdown 

of the parties’ marriage in a more mature and reasonable 

manner. The court further considers that there has been 

no credible evidence of child abuse or neglect of Ellis 

by either party. [Sandy’s] own Parenting Plan suggests 

that the parties meet in Sterling, Colorado for visitation 

exchanges, implying no great concern on her part of 

further domestic abuse or the need for an intermediary. 

Meeting in a public place will most likely prevent [Sandy] 

from being subject to any further abuse. Limitations on 

the purpose and method of communication will decrease 

the potential for conflict. The court finds that the limits in 

the Parenting Plan are reasonably calculated [to] protect 

[Sandy] from harm.

The court explicitly found that (1) Samuel had neither 

abused nor neglected Ellis and, in fact, was consistently a 

stable and loving parent to him, and (2) adequate protections 

were made for Sandy’s protection. Sandy argues, however, 

that the absence of special written findings that Ellis can be 

adequately protected from harm constitutes an abuse of discretion. We agree.

As set forth above, the order explicitly addresses the protection of only Sandy; it does not include any special written 

findings that Ellis can be adequately protected from harm. 

Section 43-2932(3) requires the court to make special written findings as to the child and other parent. The Nebraska 

Supreme Court has stated that this obligation is a mandatory 
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FALES v. FALES

Cite as 25 Neb. App. 868

directive. See Flores v. Flores-Guerrero, supra. Failure to 

make such findings precludes the court from awarding legal or 

physical custody to Samuel. See id.

Because the district court failed to comply with the statutory requirement, its award of custody to Samuel constitutes 

an abuse of discretion. See id. Therefore, we vacate its custody 

determination and remand the cause for further proceedings on 

the complaint. If Samuel is awarded any type of custody, the 

district court’s order must include special written findings that 

Ellis and Sandy can be adequately protected by any limitations 

on custody, parenting time, and visitation that the court finds 

necessary. See § 43-2932(3).

[5] In addition to her concerns about statutory compliance, 

Sandy argues more generally that the district court wrongly 

concluded that Ellis’ best interests were served in awarding custody to Samuel. However, our decision to reverse the 

district court’s order because it was not in compliance with 

§ 43-2932(3) obviates the need to consider this argument. An 

appellate court is not obligated to engage in an analysis that 

is not necessary to adjudicate the case and controversy before 

it. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 

578 (2015).

CONCLUSION

Because of the district court’s failure to make special written findings in compliance with § 43-2932(3), we vacate the 

district court’s order awarding custody to Samuel and remand 

the cause for further proceedings consistent with this opinion.

Judgment vacated, and cause remanded

for further proceedings.