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Marissa Renee Blank, appellan

Caleb Robert Blank, appell

___ N.W.2d ___

Filed July 12, 2019. No. S-18-751.

1. Divorce: Child Custody: Child Support: Property Division: Alimony: 

Attorney Fees: Evidence: Appeal and Error. In an action for the dissolution of marriage, an appellate court reviews de novo on the record 

the trial court’s determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are 

initially entrusted to the trial court’s discretion and will normally be 

affirmed absent an abuse of that discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when 

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.

3. Evidence: Appeal and Error. When evidence is in conflict, an 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.

4. Due Process. Due process principles protect individuals from arbitrary 

deprivation of life, liberty, or property without due process of law.

5. Due Process: Notice. Due process does not guarantee an individual 

any particular form of state procedure; instead, the requirements of due 

process are satisfied if a person has reasonable notice and an opportunity to be heard appropriate to the nature of the proceeding and the 

character of the rights which might be affected by it.

6. Constitutional Law: Due Process. The determination of whether procedures afforded an individual comport with constitutional requirements 

for procedural due process presents a question of law.

7. Child Custody. The factual inquiry for awarding joint custody is substantially different from that for an award of sole custody.

Nebraska Supreme Court Online Library

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

10/04/2019 08:08 AM CDT
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8. ____. When a trial court determines at a general custody hearing that 

joint physical custody is, or may be, in a child’s best interests, but 

neither party requested joint custody, the court must give the parties 

an opportunity to present evidence on the issue before imposing joint 

custody.

9. ____. 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.

10. ____. A trial court’s decision to award joint legal or physical custody 

can be made without parental agreement or consent so long as it is in the 

child’s best interests.

11. ____. The best interests of the child are the primary consideration for 

developing custodial plans.

12. ____. In considering a child’s best interests in the development of 

custodial plans, it is a common occurrence and a court is permitted to 

supply a party with final decisionmaking authority in some areas to 

avoid future impasses which could negatively affect the child while 

maintaining both parents’ rights to consultation and participation in 

important decisions.

Appeal from the District Court for Phelps County: Terri S

Harder, Judge. Affirmed

Jeffrey P. Ensz, of Lieske, Lieske & Ensz, P.C., L.L.O., for 

appellant.

John D. Icenogle, of Bruner Frank, L.L.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy

Papik, and Freudenberg, J

Funke, J

Marissa Renee Blank appeals the district court’s decree of 

dissolution dissolving her marriage to Caleb Robert Blank and 

awarding joint legal and physical custody of the parties’ two 

minor children. On appeal, Marissa claims the court erred in 

awarding joint custody without advance notice when neither 
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party made such request. Marissa also claims the court erred in 

determining that the case did not involve domestic abuse and in 

not making the statutorily required additional findings. Finally, 

Marissa claims the court abused its discretion in determining 

joint custody was in the children’s best interests. For the reasons set forth herein, we affirm.

BACKGROUND

Marissa and Caleb were married on May 19, 2011. The 

parties have two minor children: a daughter, who was born in 

2011, and a son, who was born in 2014.

Marissa filed a complaint for dissolution of marriage in 

February 2017. In the complaint, Marissa stated, “I am and my 

spouse is able to provide support for the child(ren)” and asked 

that the court “[a]ward [j]oint legal custody of the children of 

this marriage.” Caleb signed a voluntary appearance acknowledging receipt of a copy of the complaint.

At the same time the complaint was filed, Marissa offered 

a proposed parent-created parenting plan which was signed by 

both parties. This proposed plan outlined that Marissa would 

have legal custody in that she “shall have the legal responsibility and authority to make final decisions concerning the 

parenting functions necessary to raising the child(ren).” The 

proposed plan additionally listed Marissa’s residence as the 

principal place of residence subject to the terms of the plan. As 

to parenting time and holidays, the proposed plan detailed that 

the parties’ work schedules would dictate the parenting times 

and indicated that the parties would be able to work together to 

minimize either party’s paying for daycare. No order adopting 

this plan was entered by the district court.

Caleb filed another proposed parenting plan signed by both 

parties on May 11, 2017. This proposed plan established that 

the “parties shall share joint legal and physical custody of the 

minor children and as such, shall maintain the legal responsibility and authority to make final decisions concerning the 

parenting functions necessary for raising the minor children.” 
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The proposed plan explained that the children’s principal residences would be with both Marissa and Caleb and outlined a 

parenting time schedule for Caleb. This plan also contained 

references to the parties’ ability to coordinate adjustments to 

the schedule and discuss parenting decisions with each other. 

Again, no order adopting the plan was entered by the district court.

On May 23, 2017, Caleb filed a motion for temporary 

orders seeking “joint temporary legal and physical care, custody[,] and control” of the children. Following a hearing on 

the motion, the court entered a “Temporary Order/Parenting 

Plan.” That order awarded temporary legal and physical custody to Marissa and declared that each parent have full and 

equal access to the children’s education and medical records 

and the authority to make emergency decisions affecting the 

health or safety of the children. The order further provided 

a parenting plan with continuous and easy telephone access 

and midweek, every-other-weekend, and alternating-holiday 

parenting time.

A trial was held on the complaint in June 2018 on the 

remaining issues to be decided, including “custody of the parties’ two minor children, parenting time, and financial issues 

concerning the children.”

Marissa testified as to the care of the children. She opined 

that throughout the children’s lives, she was the primary caretaker. She explained that she took 2 months off work to stay 

home after their daughter was born, that she worked only part 

time after returning to the work force, and that she would split 

her work shifts in order to go home to breastfeed because their 

daughter “wouldn’t take a bottle.” Marissa further explained 

that she was primarily the one to take the children to events 

and activities. Marissa testified that Caleb would take care of 

the children when she was working and he was off but that 

when both parents where available to care for the children, the 

responsibilities fell solely on her. Marissa also testified that 

following the temporary order, the children were performing 
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well, and that the schedule is very structured for their benefit. 

Marissa testified about the parties’ working relationship and 

agreed they have made accommodations for each other with 

regard to the children’s care. Marissa further testified that following the temporary order, the parties were able to communicate and work together civilly. Marissa testified that both she 

and Caleb have new relationships and, with those parties, new 

houses in which the children stay.

Marissa asserted that she was the primary parent to take the 

children to the doctor when they were sick and that the parties 

agreed not to vaccinate the children. However, Marissa did 

admit Caleb was the one who took the children to the doctor 

for chicken pox and lice following the temporary order.

Caleb testified that the parties shared the childcare responsibilities equally when both parents were home. However, Caleb 

explained that because he works more, Marissa would watch 

the children more when he was not home. Caleb explained 

that when Marissa was working, he would make supper, 

prepare baths, and put the children to bed. Caleb also testified that while he initially agreed not to vaccinate the children, he would now seek to have them vaccinated if given 

legal custody.

Caleb admitted that he had punched a couple of holes in 

a basement wall within 2 or 3 years prior to trial while the 

children were upstairs in the home. Caleb explained, “An argument, I honestly do not recall what it was about, escalated; and 

I just — I got really angry. So I walked away. I went into the 

basement of the marital home, and I punched the wall.” Caleb 

also admitted that he had “open hand smacked” Marissa at 

one point due to a disagreement which occurred “so far in the 

past.” Marissa agreed on rebuttal to her attorney’s questioning 

that Caleb “slapped you at some point in the relationship.” 

However, Caleb also testified that while Marissa was watching 

their son, she kicked a hole in a door out of frustration, and 

testimony was received that Marissa is more physical with the 

children than Caleb.
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Marissa requested that the court grant her sole custody and 

testified that she did not believe a shared custody arrangement was in the children’s best interests. Specifically, Marissa 

responded as follows to questioning on direct examination:

Q [by Marissa’s counsel:] There was some talk — well, 

maybe not. Rather do you believe that a shared custody 

arrangement where you split time would be in the children’s best interest?

A [by Marissa:] No.

Q Why do you feel that way?

A I feel that way because Caleb rushed into a new relationship, not only a new relationship but a new relationship where she had kids as well. And I don’t feel that his 

relationship with the kids was a strong enough bond for 

them not to worry if he’s still going to love them.

. . . .

Q Do you believe there’s any question as to who the 

primary caretaker was during your marriage between you 

and Caleb?

. . . .

A No.

Q Who was the primary caretaker?

A It was me.

Q Do you believe — is that part of your reason why 

you believe that a shared custody arrangement would not 

be appropriate?

A Yes.

In response to questioning on cross-examination about her 

concerns “about joint custody” because Caleb had “rushed 

into a . . . relationship,” Marissa agreed that she began her 

new relationship and moved in with her significant other 

before Caleb’s new relationship. Counsel for Marissa argued 

during closing argument that this case is not appropriate for 

joint custody or a shared custody arrangement, “as clearly 

there’s enough conflict in here that that could create a problem 
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for the children” and cause a “significant upheaval” of the 

children’s current structure, which was working.

Caleb, in turn, requested that the court award him full custody. Alternatively, Caleb asked for an award of joint custody, 

responding as follows on direct examination:

Q [by Caleb’s counsel:] And if the Court doesn’t grant 

you sole legal and physical custody, are you asking the 

Court to award you joint?

A Yes.

Q Are you willing to coparent with [Marissa]?

A Yes.

Q And how would you go about doing that?

A Communication, open mindedness. I understand and 

respect that she is their mother, and they will always love 

her as they will always love me. And I will do my best to 

foster a positive relationship with their mother as I feel 

is needed for them.

. . . .

Q . . . Do you believe that joint custody is a viable option?

A It could be.

Q Are you willing to work for it?

A Yes.

. . . .

Q Do you believe that it’s in the children’s best interest that joint legal custody be granted?

A Yes.

Counsel for Caleb also addressed joint custody during closing arguments, asserting, “[I]t’s [not] good public policy to 

throw out joint custody simply because [Marissa] doesn’t want 

to put in any effort to do it” and “We’ve heard a lot of testimony from [Caleb] who says he’s been more than willing to 

attempt to coparent as a joint family.”

Following trial, the court entered a decree dissolving the 

marriage and awarding the parties joint legal and physical custody of the children. Additionally, the decree ordered that, in 
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the event of impasses after discussion of major issues, Caleb 

“shall make the decision with respect to issues of health and 

religion” and Marissa “shall make the decision on education.” 

The court specifically found this was not a domestic abuse case 

as defined in Nebraska’s Parenting Act, that the parties have the 

ability to coparent and make contributions to the children, and 

that joint custody is in the children’s best interests. The court 

again declared that each parent have full and equal access to 

the children’s education and medical records and the authority 

to make emergency decisions affecting the health or safety of 

the children. In an attached parenting plan, the court instructed 

that the parties share parenting time on a week-on-week-off 

basis with assigned midweek and holiday parenting times for 

the parent who does not have the children at that time.

ASSIGNMENTS OF ERROR

Marissa assigns, restated, that the district court erred in 

(1) awarding joint physical custody without advanced notice 

when neither party made such request, (2) not finding this to 

be a domestic abuse case and failing to make the statutorily 

required additional findings in awarding joint physical custody, 

and (3) abusing its discretion in determining joint physical custody was in the children’s best interests.

STANDARD OF REVIEW

[1-3] In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court’s 

determinations of custody, child support, property division, 

alimony, and attorney fees; these determinations, however, 

are initially entrusted to the trial court’s discretion and will 

normally be affirmed absent an abuse of that discretion.1 A 

judicial abuse of discretion exists when 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 

1 Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017).
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for disposition.2 When evidence is in conflict, an 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

ANALYSIS

Notice of Joint Cust

Considerati

Neb. Rev. Stat. § 42-364(1)(b) (Reissue 2016) requires 

a court to determine physical custody based upon the best 

interests of a child and such determination shall be made by 

incorporating (i) a parenting plan developed by the parties, 

if approved by the court, or (ii) a parenting plan developed 

by the court based upon evidence produced after a hearing in 

open court if no parenting plan is developed by the parties and 

approved by the court. Section 42-364(3) allows for a joint 

physical custody award if (a) both parents agree to such an 

arrangement in the parenting plan and the court determines 

that such an arrangement is in the best interests of the child or 

(b) 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.

Marissa contends that the district court erred in awarding joint physical custody because neither party made such a 

request prior to trial and the court did not provide notice of 

its consideration. In arguing the parties lacked notice and an 

opportunity to be heard on the issue of joint physical custody, 

Marissa cites Hill v. Hill,

4

 a Nebraska Court of Appeals case 

utilizing our opinion in Zahl v. Zahl.

5

2 Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).

3 Erin W., supra note 1.

4 Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013).

5 Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
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[4-6] Both Zahl and Hill evaluated the notice requirement 

under a due process analysis. Due process principles protect individuals from arbitrary deprivation of life, liberty, or 

property without due process of law.6 Due process does not 

guarantee an individual any particular form of state procedure; instead, the requirements of due process are satisfied if 

a person has reasonable notice and an opportunity to be heard 

appropriate to the nature of the proceeding and the character of 

the rights which might be affected by it.7 The determination of 

whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a 

question of law.8

[7,8] The parties in Zahl both sought sole custody of their 

child. However, after a general custody hearing in which the 

parties only presented evidence on why he or she would be 

the best sole custodian, the trial court awarded joint legal and 

physical custody.9 No reference to joint custody was made during or prior to the hearing absent the mother’s testimony at 

the end of the hearing that she would be willing to cooperate 

if joint custody was imposed.10 In reversing the trial court’s 

decision, we explained that the factual inquiry for awarding 

joint custody is substantially different from that for an award 

of sole custody.11 As such and because neither party requested 

it, the parties were not put on notice that joint custody was in 

issue and the parties were entitled to a new hearing with such 

notice.12 We held that when a trial court determines at a general 

custody hearing that joint physical custody is, or may be, in a 

6 Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).

7 Id.

8 Id.

9 Zahl, supra note 5.

10 Id.

11 See id.

12 Id.
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child’s best interests, but neither party requested joint custody, 

the court must give the parties an opportunity to present evidence on the issue before imposing joint custody.13

Similarly, in Hill, both parties requested sole custody, neither party requested joint physical custody prior to trial, and 

both parties presented evidence on their requests for sole 

custody.14 The only evidence presented on joint custody was 

testimony from the father that, while he wanted sole custody, 

he was willing to perform under a joint custody arrangement if 

ordered.15 Nevertheless, the trial court awarded joint physical 

custody.16 Utilizing our holding in Zahl, the Court of Appeals 

reversed the trial court’s decision, concluding the trial court 

had abused its discretion in not giving the parties an opportunity to present evidence on the issue before imposing joint 

physical custody.17

The instant case is distinguishable from the facts of Zahl

and Hill. Unlike the parties in those cases, Marissa and Caleb 

had notice prior to trial that joint custody was at issue. In the 

complaint, Marissa asked for “[j]oint legal custody,” did not 

request a specific physical custody arrangement, and provided 

that both parents were capable of providing support for the 

children and were fit and proper people to have care, custody, 

and control of the children. In his May 11, 2017, proposed parenting plan which was signed by Marissa, Caleb requested that 

the “parties . . . share joint legal and physical custody of the 

minor children.” This plan proposed designating both Marissa’s 

and Caleb’s homes as the children’s principal residences and 

contained references to the parties’ ability to coordinate adjustments to the schedule and discuss parenting decisions with 

13 See id.

14 Hill, supra note 4.

15 Id.

16 Id.

17 Id.
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each other. Finally, in his May 23 motion for temporary orders, 

Caleb again sought joint legal and physical care, custody, and 

control of the children. Accordingly, these filings provided 

Marissa and Caleb reasonable notice unlike the complete lack 

of prior notice in Zahl and Hill.

Moreover, it is clear from the record that Marissa understood 

joint physical custody was at issue during the trial. As the first 

witness, Marissa responded to direct examination from her 

counsel questioning whether she believed “a shared custody 

arrangement where [she would] split time” with Caleb was in 

the children’s best interests. Testifying she did not believe such 

shared custody was appropriate, Marissa explained the reasons 

why she did not support joint custody, namely her opinion 

that Caleb rushed into a new relationship with another person 

with children and her belief that she was the primary caretaker 

of the children while they were married. In closing arguments, Marissa’s counsel again addressed the question of joint 

physical custody, arguing this case is not appropriate for joint 

custody or a shared custody arrangement “as clearly there’s 

enough conflict in here that that could create a problem for the 

children” and cause a “significant upheaval” of the children’s 

current structure, which was working.

Considering all of the above, Marissa had reasonable notice 

that joint custody was at issue during the trial, had an opportunity to be heard on the issue of joint custody during the trial, 

and presented evidence on the issue of joint custody during 

the trial. As such, the district court did not err in considering 

joint physical custody.

Domestic Abuse Determi

Marissa argues awarding joint physical custody constituted 

an abuse of discretion because Caleb testified that he “open 

hand smacked” Marissa once during the parties’ marriage 

and punched holes in the basement walls. Marissa argues this 

testimony established Caleb committed domestic intimate partner abuse against her. However, the district court determined 
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this was not a domestic abuse case as defined by Nebraska’s 

Parenting Act. As such, the court made no additional findings 

pursuant to Neb. Rev. Stat. § 43-2932(3) (Reissue 2016).

Nebraska’s Parenting Act establishes certain requirements 

for the development of a parenting plan in cases where a parent is found to have committed child abuse or neglect, child 

abandonment, or domestic intimate partner abuse or to have 

interfered with the other parent’s access to the child.18 Section 

43-2932(3) explains the additional requirements if a court 

determines a parent committed domestic abuse, stating:

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.

Under Neb. Rev. Stat. § 43-2922(8) (Reissue 2016), 

“[d]omestic intimate partner abuse” means an act of abuse as 

defined in Neb. Rev. Stat. § 42-903 (Reissue 2016) and a pattern or history of abuse evidenced by one or more of the following acts:

Physical or sexual assault, threats of physical assault or 

sexual assault, stalking, harassment, mental cruelty, emotional abuse, intimidation, isolation, economic abuse, or 

coercion against any current or past intimate partner, or 

an abuser using a child to establish or maintain power 

and control over any current or past intimate partner, 

and, when they contribute to the coercion or intimidation 

of an intimate partner, acts of child abuse or neglect or 

18 § 43-2932.
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threats of such acts, cruel mistreatment or cruel neglect 

of an animal as defined in section 28-1008, or threats of 

such acts, and other acts of abuse, assault, or harassment, 

or threats of such acts against other family or household members.

The first sentence of § 43-2922(8) directs us to § 42-903(1)(a) 

to determine if domestic abuse occurred. Section 42-903(1)(a) 

defines “[a]buse” as “[a]ttempting to cause or intentionally and 

knowingly causing bodily injury with or without a dangerous 

instrument” to a family or household member. Spouses and 

former spouses are considered household members.19

Returning to § 43-2922(8), we must examine the remainder of the factors which would require the making of special written findings. After identifying an act of abuse per 

§ 42-903(1)(a), the rest of § 43-2922 is puzzling. The language 

indicates that the act of abuse previously identified must be 

coupled with a “pattern” or “history,” suggesting that before 

the factual findings are required, the Legislature wanted more 

than one act of abuse.20 In contrast, § 43-2922 also states “one” 

act, suggesting perhaps a single act of abuse would trigger the 

requirement for specific factual findings. There are further 

interpretations not posited here.

Because of the word “and” before “pattern” or “history,” we 

believe the most logical reading of § 43-2922 is that there must 

be more than one act of abuse. However, if the Legislature 

intended that one act be sufficient, it can revise the statutory language.

However, we need not resolve the tension here to determine 

there was a failure of proof before the trial court. In this case, 

no evidence was received that Caleb’s actions caused or were 

intended to cause bodily injury or placed Marissa in fear of 

such injury and the record does not demonstrate a pattern or 

history of similar acts.

19 See § 42-903(3).

20 See § 43-2922(8).
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As to the slapping incident, Caleb testified that he “open 

hand smacked” Marissa at one point during their relationship 

due to a disagreement which occurred “so far in the past.” He 

did not recall any other surrounding circumstances and provided no testimony on the cause, effect, or intent of the action. 

While Marissa answered “Yes” to questioning as to whether 

Caleb “slapped [her] at some point during the relationship,” 

she offered no other testimony or evidence on the incident.

Though we agree that an “open hand smack[]” may intend, 

cause, or place someone in fear of the requisite bodily injury, 

we have no evidence that such was the case here. There is no 

testimony on the severity, effect, or surrounding circumstances 

on which we can rely to determine the intention or result of the 

action. No evidence was adduced as to any redness, bruising, 

swelling, or other injury sustained. Marissa never contended 

that Caleb placed her in fear of bodily injury or in fear for her 

or the children’s safety.

In addition, there is no testimony of a pattern or history of 

similar actions. An 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.21 Without more, we cannot say the district court erred 

in its determination that the testimony on the “open hand 

smack[]” did not amount to domestic intimate partner abuse.

The record is similarly void of details as to the circumstances surrounding Caleb’s punching holes in the basement 

wall. Caleb testified that he punched these holes 2 or 3 years 

prior to trial, explaining, “An argument, I honestly do not 

recall what it was about, escalated; and I just — I got really 

angry. So I walked away. I went into the basement of the 

marital home, and I punched the wall.” Although Caleb testified the children were in the house, he explained they were 

not with him when he punched the wall. No other testimony 

21 See Erin W., supra note 1.
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or evidence was received on when this occurred, the context of the argument, if anyone else was in the basement, 

how long after the argument took place Caleb punched the 

wall, whether Caleb had a history of similar acts, or any 

other information that would inform whether Caleb intentionally placed Marissa in fear of bodily injury. Again, on the 

record before us, we cannot say the district court erred in its 

determination that the testimony on Caleb’s punching holes 

in the basement wall did not amount to domestic intimate 

partner abuse.

Sufficiency o

Marissa assigns the court abused its discretion in awarding 

joint physical custody, arguing the evidence presented at trial 

did not justify such an award. Specifically, Marissa claims the 

evidence demonstrated the parties’ relationship was “replete 

with conflict.”22

[9] Marissa is correct that we have said 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.23 However, we have also noted 

that § 42-364(3)(b) specifically provides that a court may order 

joint custody “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.”24 And we have affirmed 

a trial court’s decision not to modify an award of joint legal 

custody even though the evidence showed that the parties 

22 Brief for appellant at 12.

23 See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).

24 Accord Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
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continued to have difficulty communicating and cooperating 

with one another.25

In this case, there was sufficient evidence to support the 

court’s determination that joint custody was in the children’s 

best interests. Marissa and Caleb testified that both parties 

watched and cared for the children during the parties’ relationship. Both parties explained that they have been communicating 

and working together civilly while the temporary custody order 

has been in place and have each made accommodations for the 

other with regard to the children’s care. Marissa and Caleb 

detailed that when the children got chicken pox and lice during 

the pendency of these proceedings, Marissa communicated the 

issues to Caleb, Caleb took them to treatment, and Marissa and 

Caleb communicated about the implementation of the treatment. There was testimony concerning the parties’ decision not 

to vaccinate the children and Caleb’s openness to do so in the 

future, but nothing in the record or decree demonstrates that 

the court relied on this testimony in making its physical custody determination. Although Marissa testified that she did not 

believe joint custody was appropriate due to Caleb’s new relationship and her being the children’s primary caretaker, Caleb 

testified that joint custody would be a viable option that he 

would be willing to work for utilizing “[c]ommunication” and 

“open mindedness.”

As previously stated, an appellate court reviews de novo 

on the record the trial court’s determinations of custody; these 

determinations, however, are initially entrusted to the trial 

court’s discretion and will normally be affirmed absent an 

abuse of that discretion.26 Taking into account that the trial 

judge heard and observed the witnesses and the evidence presented27 on the parties’ relationships with their children, ability 

25 See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 

230 (2015).

26 Erin W., supra note 1.

27 See id.
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to parent, communication, and history of working together for 

the children’s care, the district court did not err in determining 

that joint custody was in the children’s best interests.

Division of Decisio

Authorit

Marissa makes an additional argument in her brief that 

the court’s division of final decisionmaking authority, which 

awarded Marissa final authority over education issues and 

Caleb final authority over health and religion issues, is “entirely 

counter to the law regarding joint custody.”28 Marissa makes 

no specific argument on why such division is improper, and 

her assignments of error challenge only the court’s award of 

joint physical custody. Nevertheless, the court acted within its 

authority in dividing the final decisionmaking duties between 

the parties.

[10] “Joint legal custody” is the mutual authority and responsibility of the parents for making mutual fundamental decisions 

regarding the child’s welfare, including choices regarding education and health.29 A trial court’s decision to award joint legal 

or physical custody can be made without parental agreement 

or consent so long as it is in the child’s best interests.30

[11,12] The best interests of the child are the primary consideration for developing custodial plans. In considering such 

best interests, it is a common occurrence and a court is permitted 

to supply a party with final decisionmaking authority in some 

areas to avoid future impasses which could negatively affect 

the child while maintaining both parents’ rights to consultation and participation in important decisions.31 Such grants of 

28 Brief for appellant at 12.

29 § 43-2922(11).

30 § 42-364(3).

31 See, e.g., Boyer v. Boyer, 24 Neb. App. 434, 889 N.W.2d 832 (2017); State 

on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208 

(2016).
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final decisionmaking authority were made in this case, and we 

find no violation of the court’s discretion to do so.

CONCLUSION

The parties had sufficient notice and opportunity to be 

heard on the issue of joint physical custody, and the record 

fails to establish by a preponderance of the evidence that this 

is a domestic abuse case requiring additional findings under 

§ 43-2932(3). As such, and because there was sufficient 

evidence to support the court’s finding that joint physical 

custody is in the children’s best interests, the district court 

did not err in awarding joint physical custody. Accordingly, 

we affirm.

Affirm

Miller‐Lerman, J., concurr

I concur with the majority reading of Neb. Rev. Stat. 

§ 43-2922 (Reissue 2016) to the effect that before special findings under § 43-2922 are required, the evidence must show an 

act of abuse as defined in Neb. Rev. Stat. § 42-903 (Reissue 

2016) and, in addition (per § 43-2922), a pattern or history 

of abuse.

The majority concludes that there was not sufficient evidence to find an act of abuse under § 42-903 on this record. 

I disagree.

Section 42-903(1)(a) defines “[a]buse” as, inter alia, 

“[a]ttempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument” to a 

family or household member.

On this record, both parties agree that during a “[d]isagreement,” Caleb “slapped” or “open hand smacked” Marissa.

I believe these undisputed facts show that Caleb was 

“[a]ttempting to cause . . . bodily injury,” § 42-903(1)(a), and 

therefore, that “an act of abuse” for purposes of § 43-2922 was 

shown. However, because there was no “pattern” or “history” 

as those terms are used in the text of § 43-2922, I agree with 
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the majority that the court was not required to make special 

findings under § 43-2922.

Papik, J., concurring

I agree with the court’s determination that the district court 

was not required to make special written findings under Neb. 

Rev. Stat. § 43-2932 (Reissue 2016) because the record did not 

show that Caleb committed domestic intimate partner abuse. 

While the court reaches that conclusion by finding a lack of 

evidence that a slap caused bodily injury or was an attempt 

to cause bodily injury, I write separately to note that I would 

reach the same conclusion via a different route.

As the court points out, domestic intimate partner abuse is 

defined by Neb. Rev. Stat. § 43-2922(8) (Reissue 2016) as 

follows:

[A]n act of abuse as defined in section 42-903 and a 

pattern or history of abuse evidenced by one or more of 

the following acts: Physical or sexual assault, threats of 

physical assault or sexual assault, stalking, harassment, 

mental cruelty, emotional abuse, intimidation, isolation, 

economic abuse, or coercion against any current or past 

intimate partner, or an abuser using a child to establish or 

maintain power and control over any current or past intimate partner, and, when they contribute to the coercion 

or intimidation of an intimate partner, acts of child abuse 

or neglect or threats of such acts, cruel mistreatment or 

cruel neglect of an animal as defined in section 28-1008, 

or threats of such acts, and other acts of abuse, assault, or 

harassment, or threats of such acts against other family or 

household members.

The court suggests that a single act of abuse under Neb. 

Rev. Stat. § 42-903 (Reissue 2016) might qualify as domestic 

intimate partner abuse under one possible interpretation of this 

definition. While the court does acknowledge that this is not 

the most logical reading, I would go further and hold that the 

text cannot be interpreted in this way.
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The definition of domestic intimate partner abuse has two 

elements separated by the word “and.” § 43-2922(8). The 

first element is an act of abuse under § 42-903. The second 

element is a “pattern or history of abuse.” § 43-2922(8). The 

statute goes on to provide that the second element, the pattern 

or history of abuse, must be evidenced by “one or more” of a 

number of enumerated acts, some of which again include the 

word “abuse.” Id. If, however, a single instance of abuse could 

count as the act of abuse for the first element and establish 

the requisite pattern or history, the pattern or history element of the statute would serve no purpose. This runs counter 

to our practice of giving effect to all parts of a statute and 

rejecting interpretations that would render parts of the statute 

superfluous. See State v. Clemens, 300 Neb. 601, 915 N.W.2d 

550 (2018).

I can see only one way that this statute could be interpreted 

to allow for a single instance of abuse to satisfy the definition: to give the word “and” separating the two elements of the 

definition discussed above a disjunctive rather than conjunctive 

meaning. See § 43-2922(8). We do have some precedent for 

departing from the ordinary, grammatical meaning of “and” 

and “or” in some cases. We have said that we may do so where 

“a strict reading would lead to an absurd or unreasonable 

result and defeat the intent of the statute.” See, e.g., Hoiengs 

v. County of Adams, 245 Neb. 877, 900-01, 516 N.W.2d 223, 

240 (1994).

I have some questions about how judges are to go about 

determining that a particular policy result is absurd or unreasonable given that it is the Legislature’s function to declare 

public policy rather than ours. See, e.g., Mays v. Midnite 

Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018). See, also, John 

F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 

(2003). It seems to me that this practice can be squared with 

the judiciary’s role in a system of separated powers only if it is 

limited to instances in which the result of applying the grammatical meaning of the text is so bizarre that the Legislature 
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could not possibly have intended it. See Antonin Scalia & 

Bryan Garner, Reading Law: The Interpretation of Legal Texts 

237-38 (2012).

I cannot say that the result reached by interpreting this 

statute to mean what it says meets this test. While there are 

undoubtedly policy arguments for imposing the additional 

parenting plan requirements of § 43-2932 even when there 

has been a single act of abuse, it is not unthinkable that the 

Legislature would require both an act of abuse and a pattern or history before imposing these requirements. Drawing 

the precise line at which these requirements apply strikes 

me as a matter of legislative judgment, which is subject to 

reconsideration not by this court, but, if it so chooses, by the 

Legislature.

Because I do not understand the requirements of § 43-2932 

to be triggered by a single act of abuse, I do not believe the 

statute applied in this case. There was evidence that Caleb 

slapped Marissa, but Marissa has not shown us additional evidence sufficient to demonstrate a pattern or history. I would 

affirm the decision of the district court on this basis.