Decisions of the Nebraska Court of Appeals

856 21 NEBRASKA APPELLATE REPORTS

Clinton M., appellee, v. Paula M., appellant.

___ N.W.2d ___

Filed April 1, 2014. No. A-12-920.

1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo 

on the record, the trial court’s determination will normally be affirmed absent an 

abuse of discretion.

2. 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.

3. Child Custody. In order to prevail on a motion to remove a minor child to 

another jurisdiction, the custodial parent must first satisfy the court that he or 

she has a legitimate reason for leaving the state. After clearing that threshold, the 

custodial parent must next demonstrate that it is in the child’s best interests to 

continue living with him or her.

4. Child Custody: Proof: Intent. In circumstances where parents share joint legal 

and physical custody and one parent seeks to remove a child from the state, the 

parent seeking modification must first prove a material change in circumstances 

affecting the best interests of the child by evidence of a legitimate reason to 

leave the state, together with an expressed intention to do so; once the party 

seeking modification has met this threshold burden, the separate analyses of 

whether custody should be modified and whether removal should be permitted 

become intertwined.

5. Child Custody. In cases where a noncustodial parent is seeking sole custody of a 

minor child while simultaneously seeking to remove the child from the jurisdiction, a court should first consider whether a material change in circumstances has 

occurred and, if so, whether a change in custody is in the child’s best interests. If 

this burden is met, then the court must make a determination of whether removal 

from the jurisdiction is appropriate.

6. ____. Ordinarily, custody of a minor child will not be modified unless there has 

been a material change in circumstances showing that the custodial parent is unfit 

or that the best interests of the child require such action.

7. Child Custody: Proof. The party seeking modification of child custody bears the 

burden of showing a material change in circumstances.

Appeal from the District Court for Sarpy County: Max

Kelch, Judge. Affirmed.

Justin A. Quinn and Casey J. Quinn for appellant.

Gerald D. Johnson and Maxwell Crawford, Senior Certified 

Law Student, of Johnson & Pekny, L.L.C., for appellee.

Inbody, Chief Judge, and Moore and Riedmann, Judges.
Decisions of the Nebraska Court of Appeals

CLINTON M. v. PAULA M. 857

Cite as 21 Neb. App. 856

Inbody, Chief Judge.

INTRODUCTION

Paula M. appeals the decision of the Sarpy County District 

Court denying her request to modify the parties’ dissolution 

decree to grant her sole legal and physical custody of the parties’ minor child and denying her request to remove the child 

from Nebraska to California.

STATEMENT OF FACTS

Clinton M. and Paula were married on March 21, 1998. 

They had one child, Alexis M., who was born earlier that year 

in February. The parties’ marriage was dissolved by a decree 

entered on August 8, 2002, by the 26th Judicial District Court, 

Bossier Parish, Louisiana. The decree granted the parties joint 

legal and physical custody of Alexis. The decree was modified in December 2006 by the Circuit Court of Pulaski County, 

Arkansas, to award sole custody of Alexis to Clinton, with 

Paula’s visitation restricted to Arkansas. Another modification 

occurred in July 2008, wherein the Arkansas court granted 

Paula specific parenting time with Alexis.

On April 2, 2009, Clinton filed a complaint to register 

these foreign judgments in the Sarpy County District Court. 

He contemporaneously filed a complaint to modify the parties’ dissolution decree, requesting that Paula’s parenting time 

be restricted to the State of Nebraska and that Paula be 

ordered to provide support in accordance with the Nebraska 

Child Support Guidelines. Paula filed a countercomplaint to 

modify, requesting sole legal and physical custody of Alexis 

and requesting that she be allowed to remove Alexis from 

Nebraska to California, where Paula resides. Trial on both 

Clinton’s complaint and Paula’s countercomplaint was held 

on August 30, 2012. The parties stipulated prior to the start of 

trial that due to the significant travel involved with parenting 

time, regardless of who had custody of Alexis, a deviation from 

the child support guidelines down to a support amount of zero 

was appropriate.

The evidence at trial established that Alexis suffers from 

serious mental health issues. Due to these issues, in January 

2008, Clinton, a member of the U.S Air Force, was reassigned 
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858 21 NEBRASKA APPELLATE REPORTS

to Nebraska from Germany because Alexis’ mental health 

providers at the Air Force base did not feel that they could 

properly care for her there. The record reflects that Alexis, now 

16 years old, has been diagnosed with bipolar mood disorder, 

posttraumatic stress disorder, attention deficit hyperactivity 

disorder, reactive attachment disorder, oppositional defiant disorder, and cerebral dysrhythmia, which is abnormal electrical 

activity in the brain which could contribute to a mood disorder 

and anger outbursts. Alexis has also suffered from depression, 

explosive anger outbursts, and a mood disorder.

Alexis’ conditions have required professional assistance, 

which she has received from various providers, including Dr. 

Jamie Ryder, a psychologist who provided individual therapy 

every other week for Alexis from September 2009 until June 

2012; Bridgette Maas, who provided weekly family therapy 

from December 2010 until January 2012; and Amy Jackson, 

Alexis’ primary therapist from April 13 through July 11, 2012. 

Each of these providers testified at trial.

As a result of her mental health issues, Alexis has exhibited 

symptoms of racing thoughts, mood swings, and low motivation, and she has major difficulties with impulse control 

and emotional regulation. Her behaviors have included lying, 

manipulation, refusing to follow rules, hoarding food, stealing, wetting and defecating herself, destroying property, making self-harm statements, and exhibiting aggressive behavior 

toward others, including Clinton’s wife and Alexis’ younger 

half sister, and generally displaying out-of-control, noncompliant, and defiant behaviors. Clinton testified that throughout 

the majority of her life, Alexis’ behaviors have been “up and 

down”; she has some “good” days, while on other days, she is 

angry, disobedient, and difficult to manage.

Alexis’ behaviors reached a critical point in the spring 

of 2011, when the following event occurred: Alexis and 

Clinton’s wife were arguing when Alexis allegedly pushed 

her down a flight of stairs, rendering her unconscious, and 

then Alexis proceeded to leave the home without notifying 

anyone of Clinton’s wife’s condition. This event resulted in 

Alexis’ being admitted into an acute treatment facility and the 

recommendation that Alexis receive treatment at a residential 
Decisions of the Nebraska Court of Appeals

CLINTON M. v. PAULA M. 859

Cite as 21 Neb. App. 856

facility due to her increasing violent tendencies. Pursuant to 

this recommendation, in mid-March, Alexis began residential 

treatment at a children’s treatment center in Kansas City, 

Missouri, which provides intensive inpatient behavioral treatment. Alexis was discharged from the treatment center in 

September 2011.

After being discharged from the treatment center, Alexis 

did very well, initially: She went back to school and started 

running in cross-country and swimming. However, Alexis then 

became depressed and started getting angry, isolating herself, 

not listening, and having problems at school. In October 2011, 

after a disagreement with Clinton and his wife, Alexis went 

into her room, cut her hair with a box cutter, and crawled onto 

the roof of the home, with the end result of police searching 

for her. After this episode, Alexis was admitted into an acute 

treatment facility. Throughout the fall of 2011, Alexis’ behaviors continued.

Despite Alexis’ behaviors, Ryder felt that a trial visit allowing Alexis to visit Paula in California would be beneficial, so 

it was arranged for Alexis to visit Paula over Christmas break. 

Although Alexis ended up attending the visit as scheduled, 

there were two significant incidents prior to her leaving for 

the visit. The first incident occurred in a family therapy session with Maas in which Alexis stated that she was not sure 

whether she could stay safe at Paula’s home and that she was 

worried she might kill Paula’s 21⁄2-year-old disabled son. Maas 

and Alexis came up with a safety plan, which Alexis took with 

her to California, and Maas spoke with Paula about how to 

make sure Alexis was safe at Paula’s home. The second incident occurred the day before Alexis was supposed to leave for 

California. Alexis got a kitchen knife and attempted to stab her 

way into her 4-year-old half sister’s room, carved scratches 

into the door, and left the knife stuck in the door. Alexis told 

Maas that she was very angry, that she was mad at her younger 

half sister because she got a lot of attention, that Alexis herself 

wanted attention, and that she wanted to hurt her half sister. 

She also said that she was scared to go to Paula’s home and 

that if she had been able to get her half sister’s locked door 

open, she would have hurt her.
Decisions of the Nebraska Court of Appeals

860 21 NEBRASKA APPELLATE REPORTS

As a result of Alexis’ threatening behavior toward her 

younger half sister, Clinton sought to have Alexis admitted to 

an acute treatment facility; however, Alexis’ treating psychiatrist felt that Alexis was attempting to sabotage her visit with 

Paula and recommended that Alexis visit Paula in California 

as planned. Following this recommendation, Alexis was not 

admitted to the facility and went to California for the visit as 

planned. At the conclusion of the visit, it was reported by both 

Paula and Alexis that the visit went well and that there were 

no problems. Despite telling her family therapist that she had 

fun and was excited about the visit, after returning, Alexis 

became angry and ripped up pictures of Paula, Paula’s older 

daughter, and Paula’s son. Alexis told Maas that she was angry 

at Paula’s son because he was “cute” and “got so much attention” and that she did not get the same attention when she was 

a child.

Although the California visit went well, due to Alexis’ 

behaviors, Clinton pursued another residential placement for 

Alexis. The residential placement recommended by Clinton’s 

insurance was Meridell Achievement Center (Meridell) in 

Liberty Hill, Texas. Alexis was admitted to Meridell, a 24-hour 

nursing psychiatric facility/residential program, on January 23, 

2012. Therapists at Meridell initiated the idea of Clinton’s 

requesting the Air Force for a transfer to Texas in order to 

more fully participate in Alexis’ therapy. Clinton requested a 

transfer in March 2012, due to medical necessity. His request 

was approved in mid-June, and later that month, he relocated 

to Texas, arriving on June 30. Paula testified that although 

Clinton had decided to place Alexis in residential treatment 

in Texas, she was not consulted prior to Alexis’ admission 

at Meridell, that Paula was initially informed about Alexis’ 

admission from Ryder, and that Clinton informed her only after 

Alexis had already been admitted to Meridell.

While at Meridell, Alexis received individual, family, recreational, and group therapy, as well as medication management. Jackson, Alexis’ primary therapist at Meridell, saw 

Alexis for therapeutic treatment, providing individual therapy 

at least once per week, family therapy twice per week, 

and group therapy four times per week from April through 
Decisions of the Nebraska Court of Appeals

CLINTON M. v. PAULA M. 861

Cite as 21 Neb. App. 856

July 2012. Jackson testified that during Alexis’ treatment at 

Meridell, Alexis made progress in terms of mood management, developing better coping skills to deal with depression 

and anger, developing better peer relationships, and developing a better working relationship with her family. However, 

Jackson felt that even after Alexis was released, she would 

probably need to go back into residential treatment, which 

Jackson testified was not unusual for children when they 

have had long-term difficulties and reach different stages 

of development.

In fact, after being discharged from Meridell on July 11, 

2012, Alexis spent approximately 6 days at home and began 

a partial program where she would spend the day in therapy 

and then return home in the evening. However, on July 17, 

Alexis was admitted into an acute treatment facility due to 

homicidal threats and her unwillingness to agree to a safety 

plan. Alexis was released from the facility on July 23, and 

returned to the partial program the following day. On August 

6, after returning home after spending the day at the partial 

program, Alexis was readmitted to the acute treatment facility after she told Clinton that she was feeling very depressed 

and that she thought she might hurt herself and requested that 

Clinton take her to the facility to be evaluated. Alexis was 

transferred from the acute treatment facility to the residential treatment program, where she remained up until the time 

of trial.

Ryder testified that throughout Alexis’ therapy, she had 

patterns and mood swings where she would alternate between 

idolizing one parent and vilifying the other and, depending on her mood, would alternate between wanting to live 

with Paula and not wanting to live with her. Alexis’ mood 

swings could change from hour to hour, she would sabotage 

situations in her life, and when things were going well or 

her mood changed or something upset her, she was likely to 

react very negatively. Alexis admitted to sabotaging when 

she was uneasy or nervous or unsure of herself. Additionally, 

Ryder acknowledged that Alexis could be extremely violent 

when she is angry. Alexis’ anger was described by Maas as a 

rage: When angry, Alexis becomes impulsive and irrational, 
Decisions of the Nebraska Court of Appeals

862 21 NEBRASKA APPELLATE REPORTS

and has mood swings ranging from crying to anger to being 

very violent.

An example of Alexis’ mood swings was a spring 2010 

in-person visit to Ryder’s office by Paula and her older daughter and son. Ryder testified that prior to the visit, Alexis 

seemed to be very happy and excited; then, the day prior to 

the visit, she became resistant, running away from school the 

day of the visit, and then refusing to see Paula’s other children. 

Ryder reported that despite this, once Alexis was convinced to 

come into the office for the visit, the visit went very well from 

all outward appearances: Alexis seemed happy, she was very 

engaged, and she was “[v]ery loving” with both Paula and her 

other children. However, the morning after the visit, Alexis left 

Ryder a voicemail in which she stated that she was scared and 

worried that Paula was going to try to “kidnap” her again and 

in which she refused to come to another visit that had been 

scheduled. When Ryder called to speak to Clinton, he reported 

that almost immediately after Alexis got home from the visit, 

she became very upset and distraught and “broke down,” saying that she had been uncomfortable and anxious and that the 

visit “went horribly.” Ryder testified that there was no actual 

danger to Alexis posed by Paula, but that the problem was 

caused by Alexis’ perception of the events and her fluctuating moods.

Ryder testified that stability and consistency in the home 

and cooperation with the therapist are essential in the treatment 

of a child like Alexis, and both Ryder and Jackson agreed that 

Clinton and Paula actively participated in Alexis’ therapy. Paula 

participated in family therapy telephonically, and she traveled 

for in-person family therapy, often at her own expense. Ryder 

testified that Clinton tried very hard to cooperate and provide 

stability and consistency in Alexis’ treatment, that Alexis was 

always at her appointments and always on time, that Clinton 

provided updates and participated in Alexis’ treatment, and 

that he worked very hard to look at different ways of parenting and different ways of dealing with the situation to try to 

help Alexis. Additionally, Ryder testified that she believes that 

Clinton loves Alexis very much, has her best interests at heart, 

and, to the best of his ability, has tried a lot of the things that 
Decisions of the Nebraska Court of Appeals

CLINTON M. v. PAULA M. 863

Cite as 21 Neb. App. 856

have been recommended as far as parenting Alexis. Ryder testified that Clinton expressed he wanted Alexis to have a good 

relationship with Paula and to have contact with her and that 

he never did anything to suggest he was trying to keep Alexis 

from having a relationship with Paula. Similarly, Maas testified 

that she was never concerned about Clinton’s “shutting out” 

Paula or keeping her from participating in Alexis’ therapy and 

that he has always been positive about Alexis’ treatment and 

“staying on top of the goals.”

Ryder noted that Alexis has exhibited behaviors in multiple 

settings, both in Clinton’s home and in residential treatment, 

although the behaviors exhibited at home were more severe. 

Ryder explained that this would not be unusual, because residential treatment environments are significantly more structured environments than a home setting and, additionally, there 

is peer pressure to behave because if a child misbehaves, not 

only is the child punished, but all of the child’s peers are punished. There can also be a “honeymoon period” which can last 

for several months when children go into residential treatment; 

this “honeymoon period” can also be exhibited on a visit with 

a noncustodial parent.

Jackson testified that when transitioning a child from residential treatment back into the home, the most important support is for the parent to provide the child a home environment 

that is consistent and safe, to make sure there are opportunities 

for ongoing therapy to assist in the transition, to be mindful of 

the child’s psychiatric difficulties and understand the possible 

impact on parenting, and to be mindful of the parent’s frustrations and feelings and evaluate whether he or she is doing 

what is best for the child. However, Maas testified that based 

upon Alexis’ history, Alexis will probably continue to struggle 

more with her custodial family members than her noncustodial 

family, because she resides with them and they can see her 

moods fluctuate, they deal with her behaviors, and they are 

working with her school and physicians and are implementing rules.

Both Clinton and Paula testified that they thought it was 

in Alexis’ best interests to be with their respective families. 

Paula testified that she believed that it is in Alexis’ best 
Decisions of the Nebraska Court of Appeals

864 21 NEBRASKA APPELLATE REPORTS

interests to be with her, because although Alexis has been in 

Clinton’s home for the past 31⁄2 years, her behaviors have continued to get worse and there continue to be safety concerns 

regarding people in the home. Therefore, Paula believes that 

Alexis should be given the opportunity to live with her to see 

whether Alexis can do better. Paula testified that if the court 

were to grant her custody, she would want Alexis to remain at 

the inpatient treatment center until her doctors determine that 

she could return home. Paula testified that she has investigated 

the possibility of Alexis’ receiving treatment in California and 

has found that similar programs such as day programs, inpatient programs, acute treatment hospitals, residential facilities, 

and therapists are available. Paula conceded that it was possible that Alexis would act out in her home, but she stated that 

“[n]obody knows.” She further stated that Alexis, who was 14 

years old at the time of trial, is very close with Paula’s older 

daughter, who was 17 years old and a senior in high school 

at the time, and that her older daughter is a positive influence 

on Alexis.

Clinton testified that he and his wife are best suited to care 

for Alexis, stating:

We’ve gone through every therapy session with [Alexis]. 

We’ve talked to all the providers. We do exactly what 

they tell us to do. I mean we’re best suited. We do our 

best to always be consistent with her. And we love her. 

And all we want is her to just have a more normal life.

Further, upon being asked about the ongoing behaviors and 

violence that Alexis has displayed in his home and why he 

wants Alexis to remain in his home, Clinton testified:

I love [Alexis], and we’ve been trying to help her through 

this very tough situation. And we’ve grown to be able to 

— the way I look at it is we’re handling it. We’re taking 

care of her. We’re doing our best for her. We’re trying 

to give her the kind of home that she needs, the stability 

and consistency.

On September 5, 2012, the district court entered an order 

noting that in April 2009, Clinton registered the aforementioned foreign orders from Louisiana and Arkansas in the 

Sarpy County District Court. The order denied both Clinton’s 
Decisions of the Nebraska Court of Appeals

CLINTON M. v. PAULA M. 865

Cite as 21 Neb. App. 856

complaint to modify and Paula’s countercomplaint to modify, 

which had requested sole custody of Alexis and removal of 

Alexis to California. Regarding Paula’s countercomplaint, the 

court specifically found that the evidence reflected Clinton was 

a fit parent and that the evidence was insufficient to find that a 

change in custody would be in Alexis’ best interests. The district court’s order also stated:

[T]he State of Nebraska has not issued any permanent 

order in regard to custody. . . . As a result . . . this 

matter is controlled by State ex rel. Pathammavong v. 

Pathammavong, 268 Neb. 1 (2004), where the Supreme 

Court held that removal is an issue only when there has 

been a previous order of custody entered in this State.

Paula has timely appealed to this court.

ASSIGNMENT OF ERROR

Paula contends that the district court erred in denying her 

countercomplaint to modify custody and to allow removal of 

Alexis from Nebraska.

STANDARD OF REVIEW

[1,2] Child custody determinations are matters initially 

entrusted to the discretion of the trial court, and although 

reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 

Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013). 

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.

ANALYSIS

We note that the instant case presents an unusual factual 

situation wherein the noncustodial parent is seeking sole custody of a minor child while simultaneously seeking to remove 

the child from the jurisdiction.

[3,4] In most cases in which a parent is seeking to remove 

a child from the jurisdiction, the parent is the custodial parent. 

Our removal jurisprudence provides that in order to prevail on 

a motion to remove a minor child to another jurisdiction, the 
Decisions of the Nebraska Court of Appeals

866 21 NEBRASKA APPELLATE REPORTS

custodial parent must first satisfy the court that he or she has 

a legitimate reason for leaving the state. After clearing that 

threshold, the custodial parent must next demonstrate that it 

is in the child’s best interests to continue living with him or 

her. Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 

592 (1999). The standard is modified where parents share joint 

legal and physical custody and one parent seeks sole custody 

and simultaneously seeks removal of the child from the jurisdiction. See Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 

(2000). In circumstances where parents share joint legal and 

physical custody, the parent seeking modification must first 

prove a material change in circumstances affecting the best 

interests of the child by evidence of a legitimate reason to 

leave the state, together with an expressed intention to do so; 

once the party seeking modification has met this threshold 

burden, the separate analyses of whether custody should be 

modified and whether removal should be permitted become 

intertwined. See id.

However, another approach was suggested in a concurrence 

in Brown, authored by Justice Wright and joined by Justice 

Connolly. Justice Wright noted that relocation of a child would 

obviously result in a modification of custody by transferring 

physical custody to the parent who desired to relocate. Thus, 

Justice Wright expressed that where parties have joint legal 

and physical custody, custody is the first issue which should 

be decided, with the burden of proof on the party seeking 

to relocate to first show there had been a material change 

in circumstances that would justify a change in the custody 

arrangement. Brown v. Brown, supra (Wright, J., concurring; 

Connolly, J., joins).

[5] Additionally, we recently considered a case which presented a factual situation similar to that presented in the instant 

case. In State on behalf of Savannah E. & Catilyn E. v. Kyle 

E., 21 Neb. App. 409, 838 N.W.2d 351 (2013), the noncustodial parent filed a motion requesting to be awarded primary 

physical custody of the parties’ two minor children and simultaneously requesting to remove the minor children from the 

jurisdiction. We held that in cases where a noncustodial parent 

is seeking sole custody of a minor child while simultaneously 
Decisions of the Nebraska Court of Appeals

CLINTON M. v. PAULA M. 867

Cite as 21 Neb. App. 856

seeking to remove the child from the jurisdiction, a court 

should first consider whether a material change in circumstances has occurred and, if so, whether a change in custody 

is in the child’s best interests. If this burden is met, then the 

court must make a determination of whether removal from the 

jurisdiction is appropriate. Id. We affirmed the decision of the 

district court modifying custody and granting permission to 

remove the minor children from the jurisdiction.

In the instant case, since Paula has requested both to modify 

custody and to remove Alexis from the jurisdiction, we first 

consider whether custody should be modified, prior to a determination of the removal issue.

Denial of Countercomplaint 

to Modify Custody.

Paula contends that the district court erred in denying her 

countercomplaint to modify custody.

[6,7] Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances 

showing that the custodial parent is unfit or that the best interests of the child require such action. Watkins v. Watkins, 285 

Neb. 693, 829 N.W.2d 643 (2013); Heistand v. Heistand, 267 

Neb. 300, 673 N.W.2d 541 (2004). The party seeking modification of child custody bears the burden of showing a material change in circumstances. Vogel v. Vogel, 262 Neb. 1030, 

637 N.W.2d 611 (2002); Wild v. Wild, 13 Neb. App. 495, 696 

N.W.2d 886 (2005).

The evidence at trial established that Clinton is a parent who 

has been actively engaged in seeking out, and participating in, 

the appropriate mental health treatment for Alexis. He has provided, to the best of his ability, a stable and consistent home 

environment for Alexis and implemented suggestions from 

therapists for parenting Alexis. Further, although there is room 

for improvement in the communication between Clinton and 

Paula, there is no evidence that Clinton has either interfered 

with Paula’s parenting time with Alexis or prevented or otherwise interfered with Paula’s participation in Alexis’ mental 

health treatment. Thus, Paula failed to show that Clinton was 

an unfit parent.
Decisions of the Nebraska Court of Appeals

868 21 NEBRASKA APPELLATE REPORTS

Further, the evidence presented established that Alexis suffers from severe mental health conditions which have been 

ongoing for an extended period of time; these issues do not 

appear to be specifically related to her environment. Alexis 

has exhibited behaviors both at home and at residential treatment, and, although her behaviors at home are more severe, 

Ryder pointed out that residential treatment, by its nature, is 

a significantly more structured environment than a home setting and that there is also peer pressure to behave because if 

a child misbehaves, the child and all of the child’s peers are 

punished. Ryder also referenced a “honeymoon period” which 

can take place when a child enters a new environment such 

as residential treatment or a visit with a noncustodial parent. 

Further, the evidence establishes that concern for the safety of 

Alexis’ family cannot be limited to Clinton’s family; although 

the record does not show that Alexis has physically assaulted 

anyone in Paula’s home, the record did reflect that Alexis 

expressed an ideation of killing Paula’s son. Although Paula 

points to evidence that Alexis wants to reside with her, the 

evidence is clear that Alexis has mood swings and routinely 

changes her position on Clinton and Paula, alternating between 

idolizing one parent and vilifying the other. Alexis, while in 

Clinton’s custody, has been provided a stable and consistent 

home and has been provided mental health care consistently. 

The difficulties faced by Alexis are not a product of a lack 

of effort by Clinton; they are a product of the disease from 

which she suffers. Paula has failed to establish that it would 

be in Alexis’ best interests for custody to be modified. Having 

concluded Paula failed to prove a material change in circumstances showing that Clinton is unfit or that Alexis’ best interests require such action, we find that this assignment of error 

is without merit.

Denial of Motion to Remove 

Alexis From Jurisdiction.

Because we have determined that the district court properly 

denied Paula’s motion to modify custody, it follows that we 

must also find that her motion to remove was properly denied 

because Paula does not have custody of Alexis.
Decisions of the Nebraska Court of Appeals

STATE v. MATTHEWS 869

Cite as 21 Neb. App. 869

CONCLUSION

Based upon our de novo review of the record, the district 

court properly denied Paula’s countercomplaint to modify, 

which had requested sole custody of Alexis and removal of 

Alexis to California. Therefore, the decision of the district 

court is affirmed.

Affirmed.

State of Nebraska, appellee, v. 

William W. Matthews, appellant.

___ N.W.2d ___

Filed April 1, 2014. No. A-12-1052.

1. Constitutional Law: Statutes: Judgments: Appeal and Error. In proceedings 

where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when 

the rules make such discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules 

commit the evidentiary question at issue to the discretion of the trial court, the 

admissibility of evidence is reviewed for an abuse of discretion.

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

the reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying a just result in matters submitted 

for disposition.

4. Jury Instructions. Whether jury instructions given by a trial court are correct is 

a question of law.

5. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

6. Self-Defense. To successfully assert a claim of self-defense as justification for 

the use of force, the defendant must have a reasonable and good faith belief in 

the necessity of such force and the force used must be immediately necessary and 

must be justified under the circumstances.

7. ____. A determination of whether the victim was the first aggressor is an essential 

element of a self-defense claim.

8. Self-Defense: Evidence: Proof. Evidence of a victim’s violent character is probative of the victim’s violent propensities and is relevant to the proof of a selfdefense claim.

9. Rules of Evidence. Neb. Rev. Stat. § 27-404 (Reissue 2008) provides that a 

defendant may present evidence of a pertinent trait of a victim’s character to 

show that the victim acted in conformity therewith on a particular occasion.