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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

COUGHLIN V. GRAF

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

JAMES E. COUGHLIN, APPELLANT,

V.

MALLORI GRAF, APPELLEE.

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

Appeal from the District Court for Douglas County: MARLON A. POLK, Judge. Affirmed.

Justin A. Quinn for appellant.

No appearance for appellee.

MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

James E. Coughlin appeals the decision of the Douglas County District Court granting him 

and Mallori Graf joint physical custody of the parties’ minor son. Coughlin contends that the 

district court erred in excluding testimony regarding the parties’ disagreements about their son’s 

medical care and in failing to award him sole physical custody. For the reasons set forth herein, 

we affirm.

STATEMENT OF FACTS

Coughlin and Graf are the parents of James E. Coughlin, Jr., nicknamed “Bird,” who was 

born in November 2010. When the parties first filed for a custody determination, they were 

residing in Iowa and brought an action in an Iowa district court. In August 2012, the Iowa district 

court entered an order regarding child custody.
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In the summer of 2016, Graf attempted suicide. A few months later, in November 2016, an 

Iowa court modified the custody order to incorporate the parties’ stipulated agreement including 

that Coughlin and Graf were to share physical custody of Bird subject to certain psychological 

reporting requirements by Graf. The court’s order provided that Coughlin was to have overnight 

parenting time with Bird every Sunday, Monday, and Tuesday, and that Graf was to have overnight 

parenting time every Wednesday, Thursday, and Friday, with the parties alternating Saturday 

evenings. The court also granted the parties joint legal custody of Bird, with Coughlin having final 

determination on the “selection of physicians, church membership or school enrollment.” Because 

of Graf’s attempted suicide, the court order provided:

[T]herefore [the parties] agree that [Graf] shall provide [Coughlin] with a letter from her 

treating therapist, physician or psychiatrist confirming her compliance with her mental 

health needs, every three months for the next two years. Assuming that no additional 

incidents occur, and such appropriate letters are provided, the requirement of further 

verification shall be suspended at the end of the 24 months. . . . The parties agree and 

stipulate that further mental health crises are not in the best interest of the child and that 

any further and similar incidents by [Graf] shall immediately cause the child to be 

surrendered into the temporary sole physical care of [Coughlin]. Furthermore, the parties 

agree and stipulate that such additional or similar incidents shall be a sufficient material 

and substantial change of circumstances to warrant the permanent change of primary 

physical care of the child to that of [Coughlin].

Subsequently, both parties relocated to Nebraska, and in August 2017, Graf filed a verified 

complaint to register the action and requested to modify the Iowa order. In response, Coughlin 

filed a counterclaim to modify. Eventually, Graf’s complaint to modify was dismissed leaving only 

Coughlin’s counterclaim to modify and a trial thereon was held in January 2019. At trial, the 

district court heard testimony from Mary Ellen Christ-Anderson, who was Graf’s mental health 

counselor; Coughlin; and Graf.

MARY ELLEN CHRIST-ANDERSON

Christ-Anderson testified that she served as Graf’s mental health counselor but last treated 

her in November 2017. She testified that from the summer of 2016 to November 2017, Graf 

consistently attended therapy sessions and did not present with suicidal thoughts during that 

period. She testified that, consistent with the court’s order, she issued letters to Coughlin in May, 

September, and October 2017, wherein she attested to Graf’s mental state during those periods. In 

Christ-Anderson’s October 2017 letter, she summarized that to her knowledge, Graf had been 

compliant with her therapy and had not had a mental health crisis in over 15 months. 

Christ-Anderson indicated that, in July 2017, Graf informed her that she was concerned Coughlin 

would hurt Bird and that Bird had told Coughlin, “Mom says I’m not safe at Dad’s.”
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JAMES COUGHLIN

Coughlin testified he graduated from Briar Cliff College with a degree in criminal justice. 

After college, Coughlin joined the Army National Guard, eventually working full time in the 

armory in Council Bluffs, Iowa.

Coughlin and his wife, Nina, reside in a five-bedroom home with their 2-year-old son and 

Nina’s two children from a previous relationship. One of Nina’s children is the same age, and 

attends the same school, as Bird. Coughlin testified Bird has his own room, but on some nights, he 

would rather stay in the same room as his stepbrother. Coughlin testified he attended all of Bird’s 

parent-teacher conferences and that Bird’s report cards indicated he was doing “[g]reat. He’s 

proficient or advanced in all aspects, and especially advanced in mathematics.” Coughlin also 

testified that Bird is participating in extracurricular activities including CCD and baseball. Bird 

attends CCD at the same parish as his stepsiblings and is on the same baseball team as his 

stepbrother and “love[s] it.” Coughlin also testified that Bird has close relationships with his 

stepsiblings, explaining they get along “great” and “play just about the whole time that they’re 

together” playing on the hoverboard, bike, scooters, games, and in the snow. Coughlin also 

testified Bird assists in changing his younger half brother’s diapers and plays with his younger 

half brother. Coughlin testified that his stepchildren have the same parenting schedule as Bird and 

that it was important to him to keep the children on the same schedule in order to strengthen the 

children’s relationships.

Coughlin also testified Graf’s two suicide attempts caused him to worry about Bird’s 

safety. He further testified that, although he was to receive court-ordered mental health updates 

from Graf, the last mental health update he received was in December 2018.

Coughlin also testified regarding the tension between himself and Graf and stated that it is 

better if he and Graf were not in the same place at the same time. Coughlin testified that sometimes 

Graf calls him names and described an October 2018 incident during which Graf called him a 

“pussy ass bitch” in a public parking lot while Coughlin was putting his stepchildren and child in 

the car. Coughlin testified he and Graf disagreed about which church’s CCD program Bird should 

attend with Coughlin favoring his parish and Graf favoring her parish. Graf took Bird to Coughlin’s 

parish for CCD only after Coughlin filed a contempt action against her. Coughlin also described 

another situation where Bird had attempted to hurt himself while in Graf’s care. After being 

notified by the doctor’s office of the situation, he contacted Graf but she would not let him speak 

with Bird. Coughlin requested that police perform a wellness check on Bird, which determined 

that Bird was “ok.” Coughlin testified that when Bird returned to his custody, he took Bird to Boys 

Town for an evaluation to determine if he needed ongoing therapy, which the evaluation 

determined was not needed.

Coughlin also testified that Graf refused to pay daycare expenses that were necessarily 

incurred during her parenting time on Wednesday mornings before school started. Coughlin also 

testified that Graf would deny him parenting time if he did not personally pick up Bird. Coughlin 

testified that on one weekend in 2017, he was working in Council Bluffs, Iowa, performing a 

military drill during his parenting time. Coughlin testified that, because his parenting time started 

at 8 a. m., he sent Nina to pick up Bird, but she was not allowed to leave with him forcing Coughlin 
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to request leave from his military post to pick up Bird. Coughlin then read from one of the exhibits 

containing a 2017 text message sent from Graf to Coughlin stating:

Nina should never be picking him up because you are out of town and not available. He 

should be with me. First right of refusal is something that is in all custody orders and will 

be surely entered into ours. Also, on a separate note, it is dark outside. Bird will not be sent 

out in the dark for anything, it’s not safe.

Although Graf’s text message references a right of refusal, Coughlin testified that a right of first 

refusal was not included in the court order, and that Bird spends a substantial amount of time with 

Graf’s parents but Coughlin has never sought a right of refusal. Coughlin further testified that 

when he picks up Bird from Graf’s parent’s residence, her parents insist Coughlin come to the 

door to get Bird instead of sending him out to Coughlin’s car. Coughlin testified Graf’s parents 

use that interaction to belittle him. Coughlin testified Graf has changed residences approximately 

four times between February 2017 and April 2018. Coughlin also testified that at one point Graf 

did not provide a bed for Bird. Coughlin also testified he and Graf disagreed about medical 

treatment for Bird, and Coughlin’s attorney tried to introduce evidence along these lines but was 

prohibited by the court based on relevance. Instead, Coughlin’s attorney made an offer of proof 

outlining disagreements between the parties about Bird’s therapist, optometrist, primary care 

physician, and dentist.

MALLORI GRAF

Graf testified she shares a residence with her roommates, Liz and Evan, and their two 

children, one of whom is attending college and stays at the residence only on the weekends. When 

asked how often her roommates provide child care on the weekends, Graf replied:

It just depends on if I’m working. We don’t really consider it child care because we 

all take care of each other’s kids. I don’t work very much on the weekends. I work 

Saturdays every once in a while. But if he’s at home with my roommates, he’s also at home 

in his own home, with his family[.]

Graf testified she is employed by the Salvation Army as an intensive community care 

specialist case manager working Sunday through Wednesday but also picks up shifts as a waitress 

Thursday and Friday over lunch and every other Saturday when Bird is at parenting time with 

Coughlin.

Graf testified she has experienced financial difficulties. She explained that during the 

summer of 2017 her car was repossessed because she did not have enough money to pay her bills. 

Graf testified that, for a period of time, Bird resided with her parents because her living 

arrangements were uncertain. Graf testified Bird frequently goes to her parents’ house and spends 

time with his aunts and uncles who are close to his age. Graf testified that when Bird stays 

overnight with her parents, he usually sleeps in Graf’s younger brother’s room.

Graf testified that her suicide attempt in the summer of 2016 led to the November 2016 

modification order, which required her to provide updates to Coughlin every three months over a 

two year period concerning her therapeutic condition. Graf testified she did not have a therapist 
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between November 2017 and December 2018. Graf acknowledged that to comply with the court 

order, she would have needed a treating therapist or doctor, but she did not have the means to pay 

for those services until December 2018 at which point she began seeing a therapist. Graf testified 

she has been diagnosed with “major depressive,” anxiety disorders, and posttraumatic stress 

disorder (PTSD) which she partially attributed to Coughlin. Graf testified her mental health 

treatment includes medication and working with a therapist and a psychiatrist. Although Graf 

admitted that she had accused Coughlin of harming Bird, she also acknowledged that she was not 

aware of a situation where Coughlin had harmed Bird. She also admitted that she and Coughlin 

had disagreements regarding Bird’s therapist, which church Bird should attend, and Bird’s 

extracurricular activities, specifically baseball, because Coughlin sent her a text message saying 

when baseball would begin without first discussing which team Bird would play for or which days 

would work for her schedule. Although Graf testified that she did not take Bird to baseball games 

during her parenting time last year, Bird attended every baseball game this year. Graf testified that 

she speaks kindly to Coughlin with the exception of the night she cursed at him while he was 

putting his children in his car. Graf testified that she would like to get along better and “start a new 

clean slate” with Coughlin and Nina for Bird’s benefit.

DISTRICT COURT ORDER

The district court’s May 1, 2019, order provided that a material and substantial change had 

occurred warranting a modification of the decree. The order provided, in relevant part:

[Coughlin] shall be awarded the Sole Legal Custody of the parties’ minor child. [Coughlin] 

and [Graf] shall continue to have the Joint Physical Custody of the parties’ minor child. 

The parenting time shall be modified such that [Graf]’s parenting time shall begin on 

Wednesday at the time school begins and if school is not in session her parenting time shall 

begin at 8:00 a.m. The Fourth of July Holiday shall be modified such that [Coughlin] shall 

have the minor child in odd numbered years and [Graf] shall have the minor child in even 

numbered years. The Summer visitation shall be modified in that each party shall be 

required to designate their Summer parenting time no later than March of each year. All 

other provision[s] (sic) not specifically modified from the previous Court’s Orders shall 

remain in full force and effect.

ASSIGNMENTS OF ERROR

Coughlin contends, restated and renumbered, that the district court erred in (1) excluding 

testimony regarding medical disagreements between the parties and (2) failing to award him sole 

physical custody of Bird.

STANDARD OF REVIEW

In a filiation proceeding, questions concerning child custody determinations are reviewed 

on appeal de novo on the record to determine whether there has been an abuse of discretion by the 

trial court, whose judgment will be upheld in the absence of an abuse of discretion. State on behalf 

of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019).
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ANALYSIS

EXCLUSION OF TESTIMONY

Coughlin first contends the district court erred in excluding testimony regarding medical 

disagreements between the parties. Coughlin argues the contentious nature of the parties’

disagreements over their child’s medical needs was relevant for the court’s determination of 

physical custody.

When deciding evidentiary issues, the Nebraska Supreme Court has explained:

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is 

controlled by these rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility. The exercise of judicial discretion is 

implicit in determining the relevance of evidence, and we will not reverse a trial court’s 

decision regarding relevance absent an abuse of discretion. A judicial abuse of discretion 

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

a litigant of a substantial right and denying just results in matters submitted for disposition.

Salem Grain Co. v. City of Falls City, 302 Neb. 548, 576-77, 924 N.W.2d 678, 698-99 (2019).

The Parenting Act, as adopted by the Nebraska Legislature, explains that “the concept of 

child custody encompasses both ‘legal custody and physical custody.’ ‘Legal custody’ focuses 

entirely on decisionmaking authority and is defined as ‘the authority and responsibility for making 

fundamental decisions regarding the child’s welfare, including choices regarding education and 

health.’” State on behalf of Kaaden S. v. Jeffery T., 303 Neb. at 945-46, 932 N.W.2d at 703.

At trial, when Coughlin’s attorney proceeded with a line of questioning regarding 

disagreements over Bird’s medical needs, Graf’s attorney objected and the court ruled that it was 

not relevant because Coughlin has “sole decision making on the medical.” Coughlin’s attorney 

made an offer of proof in the form of an exhibit containing a series of text messages from March 

2017 to October 2018 between Coughlin and Graf highlighting the contentious nature of these 

medical disputes. The medical disputes mostly involved the parties’ disagreements regarding who 

should be Bird’s therapist, dentist, and optometrist.

The specific evidence that Coughlin attempted to elicit, but was denied, directly related to 

Coughlin and Graf’s attempts to make fundamental decisions regarding Bird’s welfare in the past. 

Stated differently, the excluded evidence struck right at the heart of Coughlin and Graf’s prior 

attempt to exercise their rights to joint legal custody. But under the prior order, even though the 

parties were granted joint legal custody, Coughlin had been granted the right of final determination 

if the parties did not agree. Further, in modifying the order, the district court granted Coughlin sole 

legal custody governing like decisions in the future. Taken together, Coughlin certainly cannot be 

heard to say that the exclusion of any further evidence governing disagreements over Bird’s 

medical welfare prejudiced him in any way, at least in relation to the issue of joint legal custody 

to which the issue of these disagreements more directly relates.

Although the issue of Coughlin and Graf’s disagreements over Bird’s medical welfare 

could have some impact on issues pertaining to Bird’s physical custody as we more fully articulate 

in the next section of this opinion; we cannot say that the specific evidence excluded by the trial 
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court as depicted in Coughlin’s offer of proof, which relates more directly to the issue of joint legal 

custody, was an “untenable” ruling, or denied Coughlin of a substantial right in connection with 

the issue of physical custody. This assignment fails.

PHYSICAL CUSTODY

Coughlin’s next assigned error is that the district court erred in failing to award him sole 

physical custody of Bird. Coughlin argues the court abused its discretion by placing too much 

emphasis on Bird’s academic success instead of considering the turmoil that exists between the 

parties.

In State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019), the 

Nebraska Supreme Court recently restated the distinctions between legal custody and physical 

custody.

“Physical custody” is defined by the Parenting Act as “authority and responsibility 

regarding the child’s place of residence and the exertion of continuous parenting time for 

significant periods of time.” As such, although the Parenting Act does not speak in terms 

of “sole” or “primary” physical custody, it contemplates that an award of physical custody 

will determine the child’s primary residence and identify the parent who will exert 

“significant” and “continuous” parenting time over the child.

Id. at 946, 932 N.W.2d at 703.

We further note that in State on behalf of Kaaden S., the Nebraska Supreme Court 

disapproved of the blanket proposition that joint custody arrangements are generally disfavored 

and should be reserved for rare or special cases. Specifically, the court held that joint custody “is 

neither favored nor disfavored under Nebraska law.” Id. at 955, 932 N.W.2d at 708. When custody 

of a minor child is an issue, child custody is determined by parental fitness and the child’s best 

interests. See, Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007); Spence v. Bush, 13 Neb. 

App. 890, 703 N.W.2d 606 (2005) (paternity proceeding). When both parents are found to be fit, 

the inquiry for the court is the best interests of the children. Maska, supra.

When determining the best interests of the child in deciding custody, a court must consider, 

at a minimum: (1) the relationship of the minor child to each parent prior to the commencement of 

the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; 

(3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse 

inflicted on any family or household member; and (5) credible evidence of child abuse or neglect 

or domestic intimate partner abuse. State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 

N.W.2d 692 (2019). See Neb. Rev. Stat. § 43-2923(6) (Reissue 2016).

In addition to these statutory “best interests” factors, a court making a child custody 

determination may consider matters such as the moral fitness of the child’s parents, including the 

parents’ sexual conduct; respective environments offered by each parent; the emotional 

relationship between child and parents; the age, sex, and health of the child and parents; the effect 

on the child as the result of continuing or disrupting an existing relationship; the attitude and 

stability of each parent’s character; and the parental capacity to provide physical care and to satisfy 

the educational needs of the child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). Against 
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that framework, we must now perform a de novo review of the record in order to determine whether 

the district court abused its discretion in finding that a joint physical custody arrangement remained 

appropriate in the instant case.

The court ultimately determined joint physical custody was in the best interests of Bird. In 

making its decision, the court heard evidence and argument from the parties regarding Bird’s 

well-being and stability in his life. Additionally, the court considered the testimony about Bird’s 

progress in school, which was attributable to both of his parents and extended family. Coughlin 

explained that Bird’s academic performance, as shown by his report cards, indicated he was doing 

“[g]reat. He’s proficient or advanced in all aspects, and especially advanced in mathematics.”

Additionally, Bird was participating in extracurricular activities including CCD and baseball. He 

attended CCD at the same parish as his stepsiblings and was on the same baseball team as his 

stepbrother and “love[s] it.”

Coughlin discussed the close relationship Bird experiences with his stepsiblings, 

explaining they get along “great” and “play just about the whole time that they’re together” playing 

on the hoverboard, bike, scooters, games, and in the snow. Bird has his own room at Coughlin’s 

house, but on some nights, he prefers to stay with his stepbrother in the same room. Bird assists in 

changing his younger half brother’s diapers and plays with his younger half brother.

In addition to Coughlin’s testimony, Graf described the environment at her residence and 

what Bird encounters when he is present. Graf explained she shares a residence with her 

roommates, Liz and Evan, and their two children, one of whom is attending college and stays at 

the residence only on the weekends. When asked how often her roommates provide child care on 

the weekends, Graf replied:

It just depends on if I’m working. We don’t really consider it child care because we 

all take care of each other’s kids. I don’t work very much on the weekends. I work 

Saturdays every once in a while. But if he’s at home with my roommates, he’s also at home 

in his own home, with his family[.]

Graf further testified that her parents care for Bird, and he frequently goes to their house. When he 

stays overnight with them, he usually sleeps in Graf’s younger brother’s room. Like Coughlin, 

Graf’s testimony establishes that Bird enjoys a good relationship with Graf and her family and is 

well-adjusted under the current joint physical custody arrangement.

Testimony established Bird enjoys a continuing relationship with extended family 

members of both of his parents. For instance, Bird has gone on vacation to Colorado with Graf’s 

parents and on another occasion has traveled to Las Vegas with Coughlin’s parents. After our de 

novo review of the record, there is no indication the court failed to consider the best interest factors 

when concluding that joint physical custody served Bird’s best interests. The record reflects both 

Coughlin and Graf have provided Bird with loving environments which meet Bird’s needs and that 

Bird is thriving. Bird’s best interests are met through a joint physical custody arrangement that 

fosters a relationship between him and both of his parents and their extended families. Based upon 

our de novo review, we find the district court did not abuse its discretion in continuing the award 

of joint physical custody.
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CONCLUSION

Based upon our de novo review, we find the court did not err in refusing to admit testimony 

governing certain disagreements of the parties and that Bird’s best interests require the 

continuation of a joint physical custody arrangement. Thus, the order of the court is affirmed.

AFFIRMED.