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CONLEY V. CONLEY

Cite as 33 Neb. App. 98

Krista K. Conley, appellant, v.

Jason D. Conley, appellee.

___ N.W.3d ___

Filed August 13, 2024. No. A-23-662.

1. Modification of Decree: Child Custody: Visitation: Child Support: 

Appeal and Error. Modification of a judgment or decree relating to 

child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed by an appellate court de 

novo on the record, and will be affirmed absent an abuse of discretion.

2. Visitation: Appeal and Error. Parenting time 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.

3. Judgments: Words and Phrases. 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.

4. Modification of Decree: Child Custody: Proof. Custody of a minor 

child will not ordinarily be modified absent a material change in circumstances, which shows either that the custodial parent is unfit or that the 

best interests of the child require such action.

5. ____: ____: ____. It is the burden of the party seeking modification to 

show a material change in circumstances.

6. Modification of Decree: Child Custody: Words and Phrases. A material change in circumstances is the occurrence of something that, if it 

had been known at the time the most recent custody order was entered, 

would have persuaded that court to decree differently.

7. Modification of Decree: Child Custody. Circumstances having 

occurred before the most recent custody order are relevant in a modification proceeding only insofar as they bear on whether the change 

in circumstances since the most recent custody order are material and 

substantial.

Nebraska Supreme Court Online Library

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

08/13/2024 09:08 AM CDT
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8. ____: ____. Before custody is modified, it should be apparent that any 

material change in circumstances alleged will be permanent or continuous, not merely transitory or temporary.

9. Child Custody. In determining whether there has been a material 

change in circumstances, if a child is of sufficient age and has expressed 

an intelligent preference, the child’s preference is entitled to consideration, alongside other factors.

10. Trial: Evidence: Appeal and Error. Witness credibility and the weight 

to be given to testimony is within the province of the trial court. An 

appellate court will consider the fact that the trial court saw and heard 

the witnesses and observed their demeanor while testifying, and will 

give great weight to the trial court’s judgment as to credibility.

11. Visitation. In formulating a parenting plan, the best interests of the children are the primary and paramount considerations.

12. Modification of Decree: Child Custody: Parties: Jurisdiction. In a 

custody modification case, a court lacks jurisdiction over nonparties 

and has no authority to restrict their independent decision to attend the 

children’s events.

13. Child Support: Rules of the Supreme Court. Although child support 

should generally be set by the Nebraska Child Support Guidelines, the 

guidelines offer flexibility and guidance, while understanding that not 

every child support scenario will fit neatly into a calculation structure.

Appeal from the District Court for Douglas County: Todd 

O. Engleman, Judge. Affirmed as modified.

C.G. (Dooley) Jolly, of Adams & Sullivan, P.C., L.L.O., for 

appellant.

Kristina B. Murphree and John Andrew McWilliams, of 

Gross, Welch, Marks & Clare, P.C., L.L.O., for appellee.

Moore, Riedmann, and Bishop, Judges.

Riedmann, Judge.

I. INTRODUCTION

Post divorce proceedings, the relationship between a mother 

and two of her children deteriorated. The father sought a 

custody modification, and the mother filed a counterclaim, 
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asserting parental alienation by the children’s father. The district court rejected her argument and modified both custody 

and the parenting plan in favor of the father. The mother 

appeals. Finding no abuse of discretion, we affirm as modified.

II. BACKGROUND

Krista K. Conley and Jason D. Conley were married in 

January 1993 and have three children: Charlie Conley (born 

in 2005), Sophie Conley (born in 2008), and Elliott Conley 

(born in 2013). A divorce trial was held in October 2020, and a 

decree was entered in September 2021. Pursuant to a stipulated 

parenting plan, the parties were awarded joint legal custody 

of the three children and joint physical custody of Sophie and 

Elliott, to be exercised on a “3-2-2” schedule with a 2-week 

rotation. Jason was awarded sole physical custody of Charlie, 

and Krista was awarded parenting time with Charlie every 

Wednesday evening and every other weekend from Friday 

through Sunday.

1. Contempt Action

On November 24, 2021, Krista filed a contempt action 

against Jason. She asserted, in part, that Jason was not abiding 

by the decree’s parenting time provisions and the provisions 

regarding the parties’ communication. Krista filed another 

contempt action on December 22, in which she asserted Jason 

was in willful violation of several court orders. She alleged 

that Jason was allowing Charlie to decide whether to attend 

parenting time with her, was “impart[ing] his perspectives 

about [Krista] to Charlie,” and had “almost entirely destroyed 

any hope [Krista has] of having a future with Charlie [and 

has] moved on to Sophie.”

In response to Krista’s applications for a contempt order, 

Jason filed a complaint to modify the divorce decree. He 

requested that the parenting plan be revised and that he be 

awarded sole legal and sole physical custody of Sophie and 

sole legal custody of Charlie.
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Following a hearing in January 2022 on Krista’s complaint 

for contempt, the court found that Jason had willfully and 

contumaciously violated certain provisions of the parenting 

plan and the dissolution decree. Specifically, it found that 

Jason had “engaged in forcibly and intentionally placing the 

children of the parties in the middle of decisions regarding 

parenting time and other issues.” It further found that Jason’s 

“actions have empowered the children to negotiate parenting time and other parenting matters directly with [Krista] in 

direct violation of the parenting plan and the best interest of 

the minor children.”

Prior to imposing a purge order for Jason, the district court 

had a discussion with Charlie and Sophie on the record. It 

provided them with a copy of the purge order and explained 

its provisions to them. It advised the children that it did 

not just expect them to follow the provisions, but, rather, it 

“demand[ed]” it. It stated:

So starting off, neither parent will pick up the kids during the other parents [sic] parenting time, period. There 

will be no more calling dad to have dad come get me at 

moms [sic], during moms [sic] parenting time. It’s over, 

done. . . . I took a lot of your parents [sic] decision making away by this as well. I’ll decide what’s going to go 

on. So they have to make specific requests to changes 

[sic] things, but the point is we’re going to stop calling dad to come pick us up during moms [sic] parenting 

time, we’re going to stop causing all kinds of problems 

and hopefully the way I’ve fashioned it, there won’t be a 

need for it.

It further forbade the parents and children from audio or 

video recording each other without the other’s knowledge. 

Importantly, it imposed a 2-month temporary parenting schedule that was to be followed “[w]ithout deviation, without 

negotiation, and without discussion.” The temporary schedule 

provided parenting time for Krista as follows:
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Elliott — Parenting time shall be every Sunday commencing at 4pm and concluding on Wednesday at dropoff at school or 9am.

Sophie — Parenting time shall be every Thursday from 

after school or 3:00 pm until 7:30 pm[] and every other 

weekend commencing on Sunday at 4pm and concluding 

on Wednesday at drop-off at school or 9am. This schedule 

shall commence February 6, 2022.

Charlie — The parenting schedule shall be every 

Wednesday from after school or 3:00 p.m. until 7:30 p.m. 

Every other weekend beginning on Friday after school 

or 3:00 p.m. until Saturday at 3:00 p.m. This weekend 

schedule shall commence on February 4, 2022.

If exchanges are not thru school, the parent ending 

their parenting time is responsible for dropping off the 

children at the other parents [sic] at the designated time.

As a result of the purge order, the parties stipulated to 

stay the modification proceedings. In April 2022, a hearing 

was held on the parties’ compliance with the purge order. 

The parties reported a “marked improvement” of the parenting time, with the exception of Sophie. A subsequent hearing 

was held in June, and the court found that Jason had purged 

himself of contempt. It reinstated the parenting plan contained 

in the divorce decree and lifted the stay of the modification 

proceedings.

2. Modification Proceedings Resume

Jason filed an amended application to modify custody, parenting time, and child support on July 18, 2022. He sought 

sole legal custody of Charlie, sole legal and physical custody 

of Sophie, and a reduction of Krista’s parenting time for all 

three children. Krista filed a counterclaim in which she alleged 

that Jason had engaged in conduct to alienate Krista from the 

children. She sought sole legal custody and joint physical custody of all three children. Trial was held in March 2023.
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(a) Charlie

The evidence at trial revealed a highly strained relationship between Krista and both Charlie and Sophie. Charlie, age 

17 at the time of trial, testified that if he had been asked 11⁄2 

years before trial, he would have said he hated his mother. At 

the time of trial, however, he explained that although he does 

not “hate” her, he believes she is not a good person to have 

in his life and he does not want to be a part of hers. Prior to 

the imposition of the temporary parenting time order under 

the purge plan, Charlie would run away from his mother’s 

house, he would call his father, and his father would pick him 

up. Because the district court told him he could no longer do 

that under the purge plan, he stopped. However, he did not 

interact with his mother; rather, he would spend nearly all his 

mother’s parenting time either at work or with friends. When 

he was at Krista’s house, he would spend his time in his bedroom. He testified that more time with Krista increased his 

stress; however, Krista testified that while the purge plan was 

in effect, her relationship with Charlie improved.

Charlie explained that his parents’ separation occurred 

after an argument between his parents in September 2019, 

which he says he witnessed. He stated that Krista claims 

Jason pushed her to the ground; however, Charlie denied 

that happening. The police eventually arrived at the house 

because Krista called Jason’s out-of-town sister and relayed 

her version of the events, and his sister called the 911 emergency dispatch number. Jason was handcuffed and placed in 

a police cruiser, but was eventually released and never cited. 

After that, Krista fled the house with Sophie and Elliott for 

5 weeks. Charlie stayed with Jason during that time period. 

Charlie later relayed his memory of the incident to Krista that 

did not include Jason’s pushing her, and Krista told him he 

was lying.

Charlie described two occasions on which Krista “call[ed] 

the police on [him].” One time involved an argument between 

him and Krista, and the other time was because he would 
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not get in Krista’s car because he did not want to stay at her 

house. Both of those incidents, however, occurred before the 

contempt hearing.

Charlie’s reasons for wanting to distance himself from Krista 

include a lack of trust and a lack of respect for her. He complained that Krista tells him she loves him “excessively” and 

uses words of affirmation instead of trying to work through 

problems with him. He accused her of ruining relationships he 

had established with friends. And based upon prior incidents 

where Krista had recorded him without his knowledge, he feels 

like she brings up topics to bait him into an argument so she 

can record it and hold it against him. In sum, Charlie regarded 

her as “a very antagonistic person.”

(b) Sophie

Sophie, age 14 at the time of trial, last spoke to her mother 

on August 26, 2022. She remembers the specific date because 

she had written an affidavit for an August hearing indicating she wanted less time with her mother, but the court did 

not order it. The affidavit is an 11-page, single-spaced document, in which Sophie described everything she dislikes about 

Krista. Shortly thereafter, Sophie stopped speaking to her. 

Sophie testified that she started having problems with Krista 

sometime in 2021. She stated that she does not like the way 

Krista treats her and that she does not trust her. Sophie complained that Krista would read Sophie’s text messages from 

her friends and from Jason, she would limit Sophie’s screen 

time, and she would say she was not recording Sophie when 

she was. Sophie relayed a particular occasion when Krista 

took Sophie’s bedroom door off its hinges because Sophie was 

locking it at night. Krista said Sophie had to spend more time 

with her to get it back.

Sophie was homeschooled until seventh grade. She described 

Krista’s showing up at her middle school on her first day, “acting like a crazy person.” According to Sophie, Krista tried 

to take a picture of her and then asked Sophie “to go take a 
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picture with some random person.” Sophie won a citizenship 

award later that year, and the school requested that Krista 

write some comments describing Sophie, which were read to 

Sophie’s class. Sophie found Krista’s comments “embarrassing” because Krista referred to her as “spunky” and being 

“beautiful on the inside and out.” Sophie included this as one 

of the reasons she should spend less time with Krista.

According to Sophie, she would rather not spend any time 

at Krista’s apartment but realizes that is unrealistic. Krista 

began taking Sophie to a therapist, Dr. Glenda Cottam, in 

November 2022. Because it is family therapy, Krista is in the 

room with Sophie and Cottam. Sophie does not want to continue with Cottam because she feels “attacked” and that the 

therapist is “on [her] mom’s side.” When Sophie told Cottam 

she did not want to continue therapy, Cottam responded that 

they needed more time together. As a result, Sophie walked 

out and waited outside for the remainder of the session. Jason 

told Sophie she needed to keep going, so now Sophie attends, 

but refuses to speak.

(c) Cottam

Cottam met with Krista and Sophie seven times beginning 

November 23, 2022. She reviewed a copy of Sophie’s affidavit discussed above and spent 3 days going over its contents 

with Krista because it contained “a lot of pretty horrible stuff.” 

After meeting Sophie, Cottam described her as “incredibly 

rude.” According to Cottam, Sophie’s major complaints were 

that Krista did not listen, invaded her privacy, read through her 

text messages, and yelled at her. Sophie had wonderful memories with Jason but could not recall any wonderful moments 

with Krista.

Cottam testified that Sophie “totally hates” Krista and will 

not give her another chance. She stated that “I find that a lot 

of kiddos that are even physically abused, will not reject their 

parent in the extreme way that I saw with Sophie’s just total 

rejection of her mother. It was extreme.” She also noted that 
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Sophie appeared “stony,” without reaction to how her words 

made Krista feel. Cottam indicated that there were situations, 

such as Krista’s calling the police on Charlie, that supported 

Sophie’s feelings of distrust. However, Cottam did not believe 

that Sophie’s rejection of Krista was “rational” and Cottam 

indicated that Sophie exhibited some “cognitive distortions.”

Although not allowed to give an opinion on whether parental alienation was occurring, Cottam testified that “parental alienation is much worse than simple estrangement.” 

“[E]strangement might involve a justified rejection of a parent,” whereas “alienation is . . . unjustified [in] the eyes of 

a mature individual.” Cottam outlined several factors indicative of parental alienation, many of which Sophie exhibited. Potential indicators of alienation include a complete 

dichotomy in which the child idolizes one parent and hates 

the other, strong alignment with one parent and total rejection 

of the other without a reasonable explanation, a child’s belief 

that his or her beliefs are his or her own without anyone 

persuading them, parroting a parent’s phrases and scenarios, 

rejecting not only the parent but everyone and everything 

associated with that parent, making absurd rationalizations 

for rejecting the parent, and being uncaring about hurting the 

targeted parent.

In addition to meeting with Krista and Sophie, Cottam has 

had seven sessions with Krista and Elliott. She also met with 

Jason for a little less than 2 hours over two occasions and 

described him as having “really, really . . . strong negative 

feelings towards the mom.” She noted that both Jason and 

Sophie commented on privacy and Krista’s sanity. Cottam 

also received information from both attorneys and had a conference call with both attorneys. She had also spoken with 

Rodney Burger, Sophie’s individual therapist. Cottam recommended individual therapy for Krista with Sarah Batter. Cottam 

was stepping down as the family therapist, however, because 

Sophie “just hates” her.
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(d) Burger

Burger is a licensed, independent mental health practitioner. 

He began his treatment of Sophie about 11⁄2 years before trial. 

Although Jason mows his lawn, Burger denied having any 

social relationship with him. Burger diagnosed Sophie with 

adjustment disorder with anxiety, as well as with depression. 

Unlike Cottam, Burger described Sophie as “very polite, 

cooperative, talkative at times.” He described her relationship with Krista as “antagonistic at best.” She has expressed a 

desire to never see her mother again, but he explained to her 

that because Krista is her mother, she is always going to be a 

part of her life; Sophie needs to try to make the best of the situation. Burger relayed that Sophie feels like she is not being 

heard, so when she is at Krista’s house, she isolates herself in 

her room. He attributes Sophie’s attitude to the divorce, and 

he was unaware that in early 2021 she had a good relationship 

with her mother. He did not involve Krista in therapy with 

Sophie because Sophie refuses to talk to Krista in therapy and 

has asked him not to talk to Krista.

(e) Batter

Because of the relationship issues Krista has with Charlie 

and Sophie, and at the recommendation of Cottam, Krista 

sought individual therapy with Batter, a licensed independent 

clinical social worker. At the time of trial, Batter had met 

with Krista 17 times since September 2022 and their sessions 

focused primarily on Krista’s asking what she could do better. 

Batter diagnosed Krista with adjustment disorder. Similar to 

Cottam, Batter did not provide an opinion on whether parental 

alienation was occurring but discussed the topic in general 

terms. She defined estrangement as “children rejecting a parent 

for a legitimate reason” and parental alienation as “children 

rejecting the parent for no legitimate reason.” According to 

Batter, “Parental alienation is the children’s . . . rejection of 

one parent, based on the influence of the other parent.”
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Batter relayed having viewed a video taken by Krista of 

Charlie and Sophie tearing down birthday decorations that 

Krista had put up. Krista indicated to Batter that she recorded 

events because she was fearful people would not believe 

what was occurring. Batter also discussed statements made 

by Krista relating to Jason’s having a gambling problem and 

being financially and physically abusive to her. In Krista’s 

description of the incident of September 2019, she told Batter 

that Jason pushed her to the floor and his family called the 

police. Batter did not recall, however, how Jason’s family 

became aware of the incident.

(f) Jason

Jason’s recollection of the September 2019 incident was 

different. He recalled that Krista had been in a “mood” for 

the prior week because Jason suggested she stop homeschooling the children. That morning at breakfast, Krista was being 

rude to him and Charlie was with them in the kitchen having 

breakfast. The phone rang, and the “caller ID” indicated it was 

Jason’s parents. As Jason went to answer the phone, Krista 

tried to grab the phone out of his hand. According to Jason, 

she “took a step back and she sat on the ground. She pointed 

at the phone and started saying, you pushed, you pushed me. 

Call 911.” At this point, Charlie was in the hallway but could 

see what had happened in the kitchen. Jason denied pushing Krista.

After the police had come and gone and Jason and Charlie 

left for a preplanned event, Krista picked up Sophie and 

Elliott from a friend’s house and left with them for about 5 

weeks. Charlie remained with Jason during that time, and he 

only saw the other two children a couple of times in a public 

place. Krista would not disclose where they were staying.

Jason testified that Sophie and Elliott currently have a 

“3-2-2” schedule and that Charlie is with Krista every other 

weekend from 3 p.m. Friday until 3 p.m. Sunday and from 3 
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p.m. Wednesday until 3 p.m. Thursday; the next Wednesday 

he is there from 3 p.m. until 8 p.m. According to Jason, there 

have been no exchange problems since the purge order was 

entered in February 2022. The purge order changed parenting from February through July 4. Jason reported that the 

children liked the purge order schedule better, but after it 

ended, parenting time went back to the schedule set forth in 

the decree. Jason filed a motion for temporary orders, and 

Sophie authored the affidavit previously described in support 

of the motion. However, the parenting schedule remained the 

same. Jason explained that he filed the motion for modification because Sophie and Elliott kept talking about it.

Because Sophie was struggling with some of the divorce 

issues, Jason told her that if she ever wanted to talk to someone, he had a suggestion. A short while later, she stated she 

wanted to pursue it, so Jason made an appointment with 

Burger. He recommended Burger because he had briefly conversed with him through Jason’s lawn business. Sophie had 

been seeing Burger pretty consistently for about 11⁄2 years at 

the time of trial.

According to Jason, he had noticed a “big change” in Charlie 

in the 6 months prior to trial—his grades had improved, and he 

was taking responsibility for his own life and working toward 

the future. Charlie took it upon himself to arrange a college 

campus tour in Lincoln, Nebraska, and went by himself. Jason 

has also noticed that Charlie is being more respectful and 

polite when it comes to Krista.

Jason attended parent-teacher conferences for Sophie and 

described them as “fun” because teachers “gush about what a 

great girl” she is. He stated that when the purge plan ended, it 

was “rough” for Sophie, and that her desire to spend less time 

with Krista has never wavered.

Because of the court’s admonitions following the contempt 

proceeding, Jason changed his behavior. He made sure Krista 

got her parenting time and the children cooperated in going. 
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He made sure they knew that no matter what was going on 

at Krista’s house, they could not leave, and that he would not 

pick them up anymore. He also talked to the children about 

how they are allowed to talk to Krista—what is acceptable and 

what is not. Jason requested sole legal and physical custody of 

Charlie and Sophie.

(g) Krista

In response to Jason’s amended motion for modification, 

Krista filed a counterclaim and sought joint physical custody 

of all three children with a 50/50 parenting time schedule, 

as well as sole legal custody of all of them. She requested 

that Jason’s parenting time be contingent upon the children’s 

behaving properly when with Krista and that she be the 

one to make that determination based on identifiable objective criteria.

Krista confirmed that Sophie has not spoken to her since 

August 2022. Sophie does not accept gifts from Krista, “touch 

her [birthday] cake,” or speak to Krista in therapy. In fact, 

other than therapy, Sophie will not be in the same room as her. 

Krista perceived a change starting in the fall of 2021. Prior 

to that time, Krista and Sophie would participate in many 

mother/daughter activities. Krista also offered a photograph 

and a video to support her testimony that through November 

23, they had a good relationship. Krista first heard Sophie 

claim she was afraid of her in December. In February 2022, 

Sophie began removing her belongings from Krista’s apartment and taking them to Jason’s house. By August, she had 

removed everything.

Krista’s recollection of Sophie’s first day of seventh grade 

differed from Sophie’s testimony. A video taken by Krista of 

the event was received into evidence that depicts Krista outside of the school, Sophie giving her a hug, and then Krista 

returning to her vehicle. Krista confirmed the video had not 

been altered and captured the entire interaction. Contrary to 

Sophie’s testimony, there was no request that Sophie find a 

“random person” to have her picture taken with.
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Although Sophie had stated in her affidavit that prior to 

entering public school she had never written a paragraph, 

Krista testified that between 2019 and 2021, Sophie took 

five, 12-week writing classes at a learning center for homeschooled students. An invoice for one of the classes and two 

of the essays Sophie wrote for that class were received into 

evidence.

Krista thinks Charlie influences Sophie and Elliott by parroting Jason’s perspective about Krista to them. Krista relayed 

that Mother’s Day of 2019 with the children was “wonderful” 

and that Charlie had made her a special gift. By Mother’s 

Day of 2020, Charlie had told her he did not consider her his 

mother anymore and would not acknowledge the holiday in 

any way.

According to Krista, her relationship with Charlie improved 

during the purge plan. He had initiated a phone call with her, 

let her drive him to be with a friend, and accepted her offer to 

buy him fast food. She believed that because Charlie did not 

have a choice on whether to go to her house, it made it easier 

for him. Since Charlie got a car in July 2022, she sees him 5 to 

10 minutes a week.

Despite the strained relationship Krista has with Charlie and 

Sophie, she testified that she believed it was in the children’s 

best interests to have equal time with her and Jason. It was her 

opinion that if the responsibility of choosing to be with her 

was not removed from the children, her relationship with them 

would continue to get worse.

(h) Elliott

The court also held an in camera interview with Elliott, 

who was 10 years old at the time. Elliott indicated a preference for the visitation schedule in effect during the purge plan 

where he could spend more time with Jason and less time 

with Krista. He explained that there is “a lot” of arguing at 

Krista’s house between him and Krista and between Sophie 
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and Krista and that he “get[s] a lot of stress and headaches 

like almost every day.”

(i) Testimony Regarding Extended Family

Charlie, Elliott, and Jason all expressed concerns with 

Krista’s parents and stepparents recording them. Krista’s father 

posted a “GoFundMe” page in which he attempted to raise 

funds to cover Krista’s legal costs arising out of the need to 

end an abusive relationship. Charlie and Sophie both saw the 

posting. Sophie also complained of Krista’s parents interfering 

with her job at the farmer’s market.

3. Order Modifying Decree

The court entered a 15-page order modifying the decree. It 

made numerous findings of fact in discussing the testimony 

and exhibits offered at trial and assessed the witnesses’ credibility. It found that both Charlie and Sophie were credible and 

that their testimony was based on their personal experiences 

and interactions with Krista and Krista’s extended family. It 

rejected Krista’s claim of parental alienation, stating:

[Krista] went into great detail in attempting to allege 

parental alienation by trying to argue the children exhibited an absence of guilt about their feelings toward 

[Krista], the borrowed phrases and scenarios from [Jason], 

they rejected [Krista’s] extended family, and that she had 

such a positive relationship prior to the divorce that any 

estrangement at this point was clearly due to the actions 

or campaign of [Jason], the Court does not agree and 

does not find evidence to support these arguments. The 

issue the Court has with these arguments is the children 

were able to identify specific conduct that [Krista], and 

her extended family, engaged in that lead them to their 

feelings of estrangement and desire for a change in parenting time. These were all independent of the interactions between [Krista] and [Jason,] and it is [Krista’s] 
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continued focus of solely blaming [Jason] and failing to 

acknowledge her own actions/interactions with the minor 

children that has led to this estrangement.

The court found that a material change in circumstances 

had occurred that affected the best interests of the children 

and that the current custody and parenting time was not in 

the children’s best interests. The court awarded Jason sole 

legal custody of Charlie and Sophie. It retained joint legal 

custody of Elliott because neither party sought to change it. 

The court determined that the relationships between Krista 

and the children had deteriorated to such a level that joint 

physical custody of Sophie was no longer in her best interests 

and that Krista’s parenting time with all three children should 

be modified. The court awarded Jason sole physical custody 

of Charlie and Sophie and awarded the parties joint physical 

custody of Elliott.

The court modified the parenting plan and then amended it 

pursuant to Jason’s motion to alter and amend. The final parenting plan is as follows:

CHARLIE

Mon. Tues. Wed. Thurs. Fri. Sat. Sun.

Week 1

Dad Dad Dad Dad Mom at 

3 p.m.

Mom Mom until 

3 p.m.

Dad at 

3 p.m.

Week 2

Dad Dad Dad until 

3 p.m.

Mom 3 to 

8 p.m.

Dad at 

8 p.m.

Dad Dad Dad Dad
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SOPHIE

Mon. Tues. Wed. Thurs. Fri. Sat. Sun.

Week 1

Dad Dad Dad Dad until 

3 p.m.

Mom 3 to 

8 p.m.

Dad at 

8 p.m.

Mom at 

3 p.m.

Mom Mom 

until 

7 p.m.

Dad at 

7 p.m.

Week 2

Dad Dad until 

3 p.m.

Dad Dad until 

3 p.m.

Mom 3 to 

8 p.m.

Dad at 

8 p.m.

Dad Dad Dad

ELLIOTT

Mon. Tues. Wed. Thurs. Fri. Sat. Sun.

Week 1

Dad Dad Dad Dad until 

3 p.m.

Mom at 

3 p.m.

Mom Mom Mom

Week 2Mom until 

3 p.m.

Dad at 

3 p.m.

Dad Dad until 

3 p.m.

Mom at 

3 p.m.

Mom Mom 

until

9 a.m.

Dad at 

9 a.m.

Dad Dad

The court further ordered that Sophie continue her individual therapy with Burger until he no longer felt it was necessary or until further order of the court. Following a hearing 

on Jason’s motion to alter or amend, it ordered the parties to 

select a family therapist from a list of five therapists. As to 
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payment for Sophie’s individual therapy, the court ordered 

Jason to be responsible for the first $250 per year out-ofpocket expenses and the remainder to be divided with Krista’s 

paying 25 percent and Jason paying 75 percent. For family 

therapy, Krista was to be responsible for 70 percent of the 

expenses and Jason was responsible for 30 percent.

Although a child support worksheet was prepared that 

would require Krista to pay child support of $208 per month, 

the court deviated from this amount. It determined that 

because Charlie was primarily meeting his own needs and 

because therapy was being ordered, no child support would 

be ordered until Elliott was the only minor child. At that time, 

Jason was required to pay child support of $262 per month. 

Krista appeals.

III. ASSIGNMENTS OF ERROR

Krista assigns that the district court abused its discretion by 

(1) modifying legal and physical custody, parenting time, and 

parenting plan provisions; (2) awarding Jason sole legal and 

sole physical custody of the two older children and reducing 

Krista’s parenting time with the youngest child; (3) formulating a parenting plan that ignored the Nebraska Parenting Act 

and was contrary to the minor children’s best interests; (4) 

considering evidence that predated the entry of the dissolution 

decree; (5) denying Krista attorney fees and costs; and (6) 

misapplying the Nebraska Child Support Guidelines.

IV. STANDARD OF REVIEW

[1] Modification of a judgment or decree relating to child 

custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed by an appellate court de novo on the record, and will be affirmed absent 

an abuse of discretion. Lindblad v. Lindblad, 309 Neb. 776, 

962 N.W.2d 545 (2021).

[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 determination 
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will normally be affirmed absent an abuse of discretion. 

Bornhorst v. Bornhorst, 28 Neb. App. 182, 941 N.W.2d 769 

(2020).

[3] An abuse of discretion occurs when a trial court bases 

its decision upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. Id.

V. ANALYSIS

Krista’s first three assigned errors relating to custody and 

parenting time are all predicated on her argument that the 

district court erred in finding that Charlie and Sophie were 

estranged from her, rather than finding that Jason had engaged 

in parental alienation. Therefore, we address these assignments of error together under the overarching umbrella of 

parental alienation, but first we set forth the legal framework 

for a custody modification.

1. Modification of Custody 

and Parenting Time

(a) Legal Framework

[4,5] Custody of a minor child will not ordinarily be modified absent a material change in circumstances, which shows 

either that the custodial parent is unfit or that the best interests 

of the child require such action. Jaeger v. Jaeger, 307 Neb. 

910, 951 N.W.2d 367 (2020). It is the burden of the party 

seeking modification to show a material change in circumstances. Id. Specifically, the movant must show two elements: 

First, that since entry of the most recent custody order, there 

has been a material change in circumstances that affects the 

child’s best interests, and second, that it would be in the 

child’s best interests to change custody. Id.

[6-8] A material change in circumstances is the occurrence 

of something that, if it had been known at the time the most 

recent custody order was entered, would have persuaded that 

court to decree differently. Id. Circumstances having occurred 
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before the most recent custody order are relevant only insofar 

as they bear on whether the change in circumstances since 

the most recent custody order are material and substantial. 

Id. Before custody is modified, it should be apparent that any 

material change in circumstances alleged will be permanent 

or continuous, not merely transitory or temporary. Id.

[9] In determining whether there has been a material change 

in circumstances, “‘if a child is of sufficient age and has 

expressed an intelligent preference, the child’s preference is 

entitled to consideration,’ alongside other factors.” Jaeger v. 

Jaeger, 307 Neb. at 920, 951 N.W.2d at 376, quoting Leners v. 

Leners, 302 Neb. 904, 925 N.W.2d 704 (2019), disapproved on 

other grounds, State on behalf of Kaaden S. v. Jeffery T., 303 

Neb. 933, 932 N.W.2d 692 (2019). The amount of consideration will depend on the child’s age and ability to give reasons 

for his or her preference. Jaeger v. Jaeger, supra. Where a trial 

court’s order demonstrates that the child’s age and reasoning 

have been duly considered alongside the child’s stated preference, we will generally defer to the trial court’s credibility 

determinations in our assessment of facts. Id.

Consideration of the child’s best interests involves a combination of both mandatory and permissive factors. Id. Neb. 

Rev. Stat. § 43-2923(6) (Reissue 2016) requires that certain 

factors must be considered, including (1) the relationship of 

the 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. Jaeger v. Jaeger, supra.

Other relevant considerations that may also be considered 

include the stability of the child’s existing routine, minimization of contact and conflict between the parents, and the 

general nature and health of the child. Id. No one factor is 
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dispositive, and various factors may weigh more or less heavily, depending on the case. Id.

(b) Rejection of Krista’s 

Parental Alienation Claim

[10] Krista assigns that the district court abused its discretion in awarding Jason sole legal custody of Charlie and 

Sophie and sole physical custody of Sophie and in reducing her 

parenting time with Elliott. (Per the parties’ prior stipulation, 

Jason had been awarded primary physical custody of Charlie 

in the decree.) Krista argues that Charlie and Sophie testified 

untruthfully and that in accepting their testimony, the district 

court “ignored a massive record of parental alienation.” Brief 

for appellant at 26. She also argues that the “court should 

have placed more emphasis on the testimony of Dr. Cottam.” 

Id. However, witness credibility and the weight to be given to 

testimony is within the province of the trial court. An appellate court will consider the fact that the trial court saw and 

heard the witnesses and observed their demeanor while testifying, and will give great weight to the trial court’s judgment as 

to credibility. Knapp v. Knapp, 32 Neb. App. 669, 4 N.W.3d 

415 (2024).

We recognize that Sophie testified to events that were not 

only inconsistent with Krista’s testimony, but also were disproved by documentary evidence. For example, in criticizing 

her mother’s homeschooling of her, Sophie claimed that she 

had never written a paragraph prior to being enrolled in public 

school; however, Krista testified that Sophie had taken at least 

five writing classes and produced an invoice for one of those 

classes and two essays that Sophie had written while being 

homeschooled. Likewise, Sophie’s description of Krista’s presence at Sophie’s first day of school was contrary to the video 

of that same event. However, the district court acknowledged 

it did not look at isolated events, but, rather, the totality of 

the circumstances, in its determination that parental alienation 

had not occurred.
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Two of Sophie’s reasons for her disdain for Krista were 

Krista’s dishonesty and lack of respect for Sophie’s privacy. 

Krista claims Sophie feels this way because Jason has projected his feelings about her onto Sophie, but there was evidence of specific instances on which Sophie based her feelings. Sophie described in her affidavit that Krista promised 

not to attend her dance rehearsal, but she sat in the auditorium 

and took pictures. Sophie described another incident where she 

saw an active recording application on Krista’s phone; Krista 

initially denied recording the children but then admitted that 

she had. In the affidavit, Sophie also described instances in 

which Krista read Sophie’s text messages on her phone, went 

through Sophie’s bag, and removed Sophie’s bedroom door. 

Although Sophie’s reaction to these events may or may not be 

typical for a 14-year-old girl, we identify them simply to point 

out that there were specific incidents Sophie described to support her lack of distrust that did not involve Jason.

Krista argues that Charlie was unable to articulate anything 

specific that had occurred between him and Krista in the last 

2 years, but the evidence reveals Charlie has had minimal 

interaction with Krista over that time period. His one specific 

complaint was that Krista does not listen to him. To support 

that, he discussed having told Krista that he does not like 

Krista’s mother, yet the weekend before the hearing, Krista 

invited her mother to stay at Krista’s apartment when it was 

Charlie’s weekend to stay there. Charlie also testified that 

he had requested Krista not to ask him, in front of Elliott, to 

participate in activities with Elliott, but just the week before 

the hearing, she asked Charlie to watch a movie with her 

and Elliott. Krista did not deny asking Charlie, in front of 

Elliott, to participate in activities, but she tried to explain 

it in a broader context. Charlie perceived these as examples 

of Krista’s not listening to him and his perception is not 

irrational.

Similarly, the district court discussed both Cottam’s and 

Batter’s testimony in its order, particularly as it related to the 
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distinction between parental alienation and estrangement. It 

found that the reasons Charlie and Sophie gave for rejecting 

Krista were not “‘unjustified’” or “‘irrational.’” It also discussed many of the factors indicative of parental alienation, 

including parroting, an absence of guilt, rejection of extended 

family, and borrowed phrases, and found that the children’s 

actions and attitudes were based on specific conduct that Krista 

and her extended family engaged in and were not a result of 

any influence by Jason.

While there was much evidence at the contempt hearing of 

Jason’s actions that interfered with Krista’s parenting time, 

once Jason was held in contempt and the purge order was 

entered, subsequent hearings do not reflect any overt actions 

of Jason to support a finding of interference or alienation. 

That left the district court to infer that Charlie’s and Sophie’s 

rejection of Krista was due to acts of Jason, and it rejected 

that proposition. We do not interpret that as a disregard of the 

evidence. To the contrary, the order of contempt makes clear 

that the court was able to distinguish between alienation and 

estrangement.

During the contempt proceedings, the district court recognized that Jason engaged in activities that contributed to the 

children’s treatment of Krista but also recognized Krista’s role 

in the demise of her relationship with the children. In its order 

finding Jason in contempt, it stated:

[Jason’s] actions attempted to exculpate any responsibility for the deterioration of [Krista’s] relationship with 

her children. When in reality, it was [Jason’s] actions 

which directly impacted, fostered and nurtured the continued deterioration of [Krista’s] relationship. The Court 

noted that [Krista] is not wholly innocent in the issues 

that have arisen between [Krista] and the children, but the 

Court finds that [Jason’s] continued actions have dramatically impacted the issues and allowed them to grow and 

foster unabated.
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The district court recognized that despite Jason’s recent 

compliance with the purge plan, Krista and Sophie’s relationship continued to suffer. It found that “this is not the result of 

any actions by [Jason] or as a result [of] his failure to comply 

with the contempt purge/sentencing order.” Consequently, it 

allowed the modification hearing to proceed.

As reflected by the district court’s order modifying the 

decree, it did not find Krista’s evidence at the modification 

hearing persuasive that Jason engaged in further actions to 

undermine the children’s relationship with Krista; rather, it 

maintained its belief that it was Krista’s interactions with the 

children that led to the issues. Contrary to Krista’s argument 

that the district court “ignored a massive record of parental alienation,” brief for appellant at 26, it did not ignore it; 

instead, it found the evidence Krista presented did not support 

her argument.

As quoted above, the district court rejected Krista’s argument that the children were exhibiting behaviors reflective of 

parental alienation and instead found that the children were 

able to identify specific conduct that Krista, and her extended 

family, engaged in that led them to their feelings of estrangement and desire for a change in parenting time. It found it was 

Krista’s continued focus of solely blaming Jason and failing 

to acknowledge her own actions/interactions with the minor 

children that led to the estrangement. We find no abuse of discretion in the district court’s conclusion.

Our conclusion is reinforced by Jason’s testimony that once 

the purge order was entered, he changed his behavior. Not only 

did he no longer “rescue” the children from Krista’s house, 

but he addressed Charlie’s disrespectful communication with 

Krista and encouraged Sophie to continue with Cottam despite 

her desire to terminate therapy. Both children confirmed this 

in their testimony. Although Charlie and Sophie may exhibit 

some of the behaviors indicative of parental alienation, the 

basis for their attitude toward Krista must be irrational to 

rule out estrangement. Because there was evidence of specific 
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incidents to which the children could point to support their 

feelings and because the record does not reveal that Jason 

continued to engage in alienating conduct following the purge 

order, we agree with the district court’s determination.

Having found no abuse of discretion in the district court’s 

rejection of Krista’s claim of parental alienation, we turn to 

an analysis of whether a material change in circumstances 

occurred and whether it was in the children’s best interests to 

modify custody and the parenting plan.

(c) Material Change in Circumstances

Prior to the divorce decree being entered, the parties agreed 

upon a parenting plan that addressed both legal and physical 

custody, which plan was incorporated into the decree. Since 

that time, Krista’s relationship with Charlie and Sophie has 

deteriorated to the point that it is virtually nonexistent. All 

three children expressed an interest in spending less time 

with Krista or, conversely, more time with Jason. All three of 

them described their time with Krista as “stressful,” including 

10-year-old Elliott who complained of headaches nearly every 

day he was with her. The situation has become progressively 

worse and does not appear transient or temporary.

The record is also clear that Jason and Krista cannot communicate effectively to make decisions regarding Charlie and 

Sophie. Krista testified that the communication between them 

was not good enough to share joint legal custody. Had the 

district court been aware that these family dynamics would 

arise, surely it would not have awarded custody as it did. 

Therefore, we agree that a material change in circumstances 

occurred since the entering of the decree. See, Jaeger v. 

Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020); State on 

behalf of Slingsby v. Slingsby, 25 Neb. App. 239, 903 N.W.2d 

491 (2017) (addressing consideration of child’s preference 

and relationship with custodial parent in determining material 

change of circumstances for modifying custody). See, also, 

Schroeder v. Schroeder, 26 Neb. App. 227, 918 N.W.2d 323 
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(2018) (affirming finding of material change of circumstances 

where parties could not agree on issues involving child).

(d) Children’s Best Interests

To determine whether a change in custody is in a child’s 

best interests, § 43-2923(6) requires consideration of several 

factors, including (1) the relationship of the 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.

Prior to commencement of the modification hearing, 

Krista’s relationship with Charlie and Sophie had already 

begun to deteriorate as evidenced by her application for contempt. Although the district court held Jason in contempt and 

found him partly responsible for the deteriorated relationships, 

it did not completely exonerate Krista. Therefore, as to the first 

factor, a change in custody is in the best interests of Charlie 

and Sophie.

As to the second factor, both Charlie and Sophie expressed 

a desire for a change in custody, and each are sufficiently 

mature to have their voices heard. In addition to their express 

wishes, we also find support for a change in custody based 

upon the environment that Jason has established. Aside from 

a less stressful household, the evidence supports that Jason 

has a good rapport with the children. When Charlie’s grades 

declined, Jason conversed with him about the importance of 

school and expressed an understanding of Charlie’s extracurricular desires but imparted the importance of balancing 

school and a social life. As a result, Charlie’s grades have 

improved, and he has been able to prioritize his activities. 

Likewise, Sophie appears to have an open dialogue with Jason 

as evidenced by Jason’s testimony that she expressed to him 

her desire to engage in individual therapy with Burger and to 
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end family therapy with Cottam. Instead of affirming Sophie’s 

desire regarding family therapy, Jason advised her to find 

something positive about the sessions.

As children mature into adults, it is imperative that they 

have parental guidance, and while it would be ideal for that 

guidance to come from both parents, in a situation such as 

here, the general health, welfare, and social behavior of the 

children is best served by awarding Jason custody. Based on 

the evidence, Jason attends to Sophie’s mental health needs 

and has addressed with both Charlie and Sophie appropriate 

social behavior. Being forced into an environment where both 

children isolate themselves in their rooms is not conducive to 

their general health, welfare, or social behavior.

Krista has asserted that parental alienation is a form of child 

abuse, but because we affirm the district court’s determination 

that Jason did not alienate the children, considerations of abuse 

are unnecessary. Having considered the required factors, we 

find no abuse of discretion in the district court’s award of legal 

and physical custody to Jason.

(e) Parenting Time

Krista also assigns the district court abused its discretion in 

modifying her parenting time with Elliott. Under the divorce 

decree, Krista had parenting time with Elliott on a “3-2-2” 

schedule. During week 1, Elliott was with Krista from 3 

p.m. on Monday until 3 p.m. on Wednesday. He returned on 

Friday at 3 p.m. until Monday at 3 p.m. During week 2, Elliott 

was with Krista from 3 p.m. on Wednesday until 3 p.m. on 

Friday and returned to Krista at 3 p.m. the following Monday. 

Sophie’s schedule was the same. Under the modified schedule, 

during week 1, Elliott is with Krista from 3 p.m. on Wednesday 

until 3 p.m. on Monday. During week 2, he is with her from 3 

p.m. on Wednesday until 9 a.m. on Friday.

[11] In Elliott’s in camera interview with the district court, 

he expressed a desire to spend more time with Jason and 

indicated a preference for the parenting plan that existed as 
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part of the purge order; it, in part, eliminated some of the 

“back and forth” between the two parents. In formulating 

Elliott’s time with each parent, the district court explained 

that it crafted a plan to give Elliott “an opportunity to spend 

time at his mother’s home with his brother and sister at times 

and with his mother alone at times, and to have set and certain days each week where he will be at both his mother and 

father’s residence without an alternating schedule.” In formulating a parenting plan, the best interests of the children 

are the primary and paramount considerations. See Winkler 

v. Winkler, 31 Neb. App. 162, 978 N.W.2d 346 (2022). We 

find that modification of the parenting plan was in Elliott’s 

best interests.

Although Elliott was only 10 years old at the time of the 

modification hearing, he expressed the angst he experienced 

at Krista’s apartment due to the relationship between her 

and his siblings. He was articulate in his reasons for wanting to spend more time with Jason. The Nebraska Supreme 

Court has given a child’s preference significant consideration 

typically when the child is over 10 years old. See, Jaeger v. 

Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020); Vogel v. Vogel, 

262 Neb. 1030, 637 N.W.2d 611 (2002). Given Elliott’s age 

and his articulated reason for a change in the parenting plan, 

as well as the district court’s intent to create a parenting plan 

to accommodate each child’s time with both parents and with 

each other, we find no abuse of discretion in the modified 

parenting plan.

(f) Parenting Time With Extended Family

In its parenting plan, the district court ordered the parties to support the minor children’s relationships with both 

sets of grandparents and extended family with the exception 

of Krista’s father and his wife. As to them, the district court 

precluded Krista from inviting them to any of the children’s 

extracurricular activities and forbade them from attending the 

children’s events and from transporting the children. Krista 
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argues this was an abuse of discretion. We find no abuse of 

discretion in restricting Krista from inviting her father and 

his wife to the children’s events; however, we find the court 

abused its discretion in preventing them from attending any of 

the children’s events, as explained below.

After Krista filed for divorce, her father started a 

“GoFundMe” page to raise money for legal fees, in which 

he asserted that Krista was a victim of financial, emotional, 

mental, and physical abuse. Charlie and Sophie discovered it 

and brought it to Jason. Additionally, Charlie testified to an 

incident in which he believed Krista’s father was following 

him, and Jason relayed an event, during which Charlie was 

present, when Krista’s father threatened to “put [him] in the 

hospital.” The record contains additional events of Krista’s 

father and stepmother exhibiting their animosity toward Jason 

in the presence of the children and episodes of them recording, or appearing to record, him and the children. Jason 

requested the provision to exclude them so the children could 

enjoy their activities without worrying about a confrontation 

with Krista’s father and stepmother.

[12] At a posttrial hearing, the district court explained 

that the reason it excluded these grandparents from attending 

activities is because it disrupted the children’s lives and the 

court was focused on the core family of father, mother, and 

children. According to the district court, all of the children 

expressed discomfort with these grandparents, and it was 

trying to avoid additional issues. We find no abuse of discretion in the district court’s reasoning or in ordering Krista 

not to invite them to the children’s events or allow them to 

transport the children. However, because Krista’s father and 

his wife were not parties to the modification proceeding, the 

court lacked jurisdiction over them, and it had no authority 

to restrict their independent decision to attend the children’s 

events. See Seemann v. Seeman, 316 Neb. 671, 6 N.W.3d 

502 (2024) (district court lacked authority over entities that 

were not parties to case). We therefore strike that portion of 
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paragraph 8 of the parenting plan, which reads “and they may 

not attend any extracurricular activities or school events of the 

minor children.” We affirm the remainder of paragraph 8.

We are mindful of Krista’s concern that awarding her less 

time with the children will lead to further emotional distance 

among them; however, we share the district court’s hope that 

through both individual and family therapy these relationships will mend. Although at the time of trial, family therapy 

had been unsuccessful, this appears to be in part because 

Krista unilaterally chose the therapist. Conceivably, the district 

court’s collaborative approach of selecting a new therapist 

will provide Krista and Sophie a more balanced therapeutic 

experience.

2. Evidence That Predated Entry 

of Divorce Decree

Krista assigns that the district court abused its discretion 

in considering evidence that predated entry of the decree of 

dissolution. Because Krista does not point us to any specific 

evidence to which she objected at trial, we read her assigned 

error as attacking not the admissibility of evidence, but, rather, 

the weight given it by the district court. We find no abuse 

of discretion.

To find a material change in circumstances, the party moving for modification must show a change that has occurred 

“after the entry of the previous custody order.” Weaver v. 

Weaver, 308 Neb. 373, 387, 954 N.W.2d 619, 630 (2021). We 

agree that both parties presented evidence that predated and 

postdated the entry of the divorce decree, but the evidence 

was relevant to show the continuum of the children’s relationship with Krista. For example, the precipitating event for 

Charlie was witnessing his parents’ disagreement in September 

2019, before Krista even filed for divorce. His perception of 

this event along with the 5-week separation between Krista, 

Sophie, and Elliott on one hand, and Charlie and Jason on 

the other, greatly affected him. And although Charlie testified 
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about events that occurred prior to the entry of the divorce 

decree, he also identified at least two events that occurred the 

week prior to trial in support of his assertion that Krista did 

not listen to him.

Krista iterates her credibility arguments regarding Sophie’s 

testimony, and we rejected those arguments above. See Knapp 

v. Knapp, 32 Neb. App. 669, 4 N.W.3d 415 (2024) (great 

weight given to trial court’s credibility determinations). We 

find no abuse of discretion by the district court in relying 

upon the evidence presented to reach its conclusion.

3. Application of Nebraska 

Child Support Guidelines

The district court deviated from the Nebraska Child Support 

Guidelines in its child support determination. Rather than 

order Krista to pay child support of $208 a month as calculated under the guidelines, it ordered that she pay a portion of 

Sophie’s therapy expenses. Specifically, it ordered:

As to individual mental health counseling for Sophie, 

[Jason] shall be responsible for the first $250.00 per year 

for out of pocket expenses associated with the individual 

therapy for Sophie. After the first $250.00 is paid by 

[Jason], the parties shall split the expenses for individual therapy for Sophie with [Krista’s] paying 25% and 

[Jason’s] paying 75%.

As to family therapy for Sophie, Elliott and [Krista], 

[Krista] shall be responsible for 70% and [Jason] responsible for 30% for the costs associated with that family 

therapy. This breakdown reflects the deviation in child 

support relieving [Krista] of the child support obligation 

for 3 minor children due to the advanced age and independence of the oldest child and for those funds to be 

utilized by [Krista] to pay for family therapy to rehabilitate her relationship with the other minor children.

Krista assigns that the district court abused its discretion “in 

applying the Nebraska Child Support Guidelines.” She argues:
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The Court appears to have attempted to give Krista a 

break on child support, but in doing so, the court abused 

its discretion. In lieu of ordering Krista to pay $208 per 

month in child support, the court instructed her to pay $0 

but to pay the $208 toward therapy.

Brief for appellant at 39. We disagree with Krista’s reading of 

the order on the motion to alter or amend.

The order does not require Krista to pay $208 toward therapy; rather, it requires her to pay 70 percent of family therapy 

for herself, Sophie, and Elliott. At the hearing on the motion 

to alter or amend, the district court explained that because both 

parties were responsible for the children needing therapy, it 

was trying to devise an equitable way to pay for that therapy. 

Krista’s attorney proposed that Krista pay 25 percent and 

Jason pay 75 percent. The court rejected those percentages, 

and it instead ordered Krista to pay 70 percent and Jason to 

pay 30 percent but deviated from ordering child support to 

help offset the cost for Krista.

[13] The child support worksheets indicate a “Pearrow

Calculation,” reflecting a hybrid approach for child support 

calculations when neither a sole custody approach nor a joint 

custody approach is appropriate. See Pearrow v. Pearrow, 

27 Neb. App. 209, 928 N.W.2d 430 (2019). In Pearrow, 

we affirmed the use of such a calculation, recognizing that 

although child support should generally be set by the guidelines, the guidelines offer flexibility and guidance, while 

understanding that not every child support scenario will fit 

neatly into a calculation structure. See Gress v. Gress, 271 

Neb. 122, 710 N.W.2d 318 (2006).

Here, the court ordered family therapy to repair the relationship between Krista and Sophie and Elliott. The evidence 

supports the district court’s finding that although it is Krista’s 

relationship with the children that needs mending, Jason is 

not without some blame. Therefore, we find no abuse of discretion in the district court’s order requiring Krista to pay 70 

percent of the family therapy costs. An abuse of discretion 
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33 Nebraska Appellate Reports

CONLEY V. CONLEY

Cite as 33 Neb. App. 98

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. Windham v. Kroll, 

307 Neb. 947, 951 N.W.2d 744 (2020).

Krista also argues that the court ordered her to pay a portion of expenses under Neb. Ct. R. § 4-212 (rev. 2011), even 

for Charlie and Sophie for whom she does not have joint 

physical custody. We note no reference to § 4-212 in either the 

modification order or the order on motion to alter or amend. 

Aside from the therapy ordered for Sophie, our review of the 

orders reflects only an order for payment of 25 percent of 

extracurricular activities for Charlie and Sophie, and we find 

no abuse of discretion in this regard.

Neb. Rev. Stat. § 42-364.17 (Reissue 2016) requires that a 

dissolution decree include “each party’s responsibility for reasonable and necessary medical, dental, and eye care, medical 

reimbursements, day care, extracurricular activity, education, 

and other extraordinary expenses of the child.” Consequently, 

to the extent Krista argues that the district court abused its 

discretion in requiring her to pay 25 percent of Charlie’s or 

Sophie’s extracurricular expenses, we reject this argument.

4. Denial of Attorney Fees and Costs

Krista assigns the district court erred in denying her attorney 

fees and costs and requests that we reverse the modification 

order and order attorney fees on remand. Having found no 

abuse of discretion by the district court, however, we determine Krista is not entitled to attorney fees. This assigned 

error fails.

VI. CONCLUSION

For the reasons stated above, we affirm as modified the 

district court’s order modifying custody and Krista’s parenting time.

Affirmed as modified.