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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

Eric H., appellant, v. 

Ashley H., now known as

Ashley E., appellee.

___ N.W.2d ___

Filed April 5, 2019. No. S-18-253.

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. ____: ____. In child custody cases, where the credible evidence is in 

conflict on a material issue of fact, the appellate court considers, and 

may give weight to, the fact that the trial judge heard and observed the 

witnesses and accepted one version of the facts rather than another.

3. Modification of Decree: Words and Phrases. A material change of circumstances constituting grounds for modification of a dissolution decree 

means the occurrence of something which, had it been known to the 

dissolution court at the time of the initial decree, would have persuaded 

the court to decree differently.

4. Pleadings. Pleadings frame the issues upon which the cause is to be 

tried and advise the adversary as to what the adversary must meet.

5. Pleadings: Appeal and Error. Decisions regarding the scope and meaning of pleadings are reviewed for an abuse of discretion.

6. Modification of Decree: Child Custody. Before the district court 

considers whether a change of custody is in the best interests of the 

children, it must first find that there has been a material change of circumstances that has occurred since the entry of the prior order.

7. Modification of Decree: Child Custody: Proof. The party seeking 

modification of a custody order must prove a material change in circumstances by a preponderance of the evidence.

8. Evidence: Words and Phrases. Competent evidence is evidence that is 

admissible and tends to establish a fact in issue.

Nebraska Supreme Court Online Library

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

05/17/2019 01:06 AM CDT
- 787 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

Appeal from the District Court for Hall County: John H. 

Marsh, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Samuel R. O’Neill, of Svehla Law Offices, P.C., L.L.O., 

for appellant.

Stephen T. Knudsen, of Grafton Law Office, P.C., L.L.O., 

for appellee.

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

Papik, and Freudenberg, JJ.

Per Curiam.

I. NATURE OF CASE

A father appeals from the district court’s denial of his motion 

to modify custody of a minor child after the child reported that 

her stepfather was sexually abusing her. The district court 

found that the father had failed to prove that the reported 

abuse had occurred. We conclude that the district court applied 

the correct standard of proof and did not abuse its discretion 

in its determination of the scope and meaning of the father’s 

complaint. However, we also conclude that the court made an 

error of law in finding there was “no competent evidence” of 

sexual abuse by the stepfather. Consequently, we affirm in part, 

and in part reverse and remand with directions to consider all 

competent evidence adduced at trial.

II. BACKGROUND

Eric H. and Ashley H., now known as Ashley E., were 

divorced in 2015. One minor child, M.H., was born to the 

marriage. Pursuant to a prior joint stipulation to modify, the 

district court entered an order in November 2016 providing 

for joint legal and physical custody, with a parenting schedule 

that gave each parent equal time with M.H.

1. May 24, 2017, Ex Parte Order

On May 24, 2017, Eric moved for an ex parte order giving 

him full custody of M.H. until a sexual assault investigation 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

could be concluded. Eric averred that M.H., 6 years old at 

that time, had reported that Matthew E., Ashley’s husband and 

M.H.’s stepfather, sexually assaulted her. The district court 

issued an ex parte order that same date, suspending Ashley’s 

parenting time until further order of the court.

2. Deferral of Jurisdiction

to Juvenile Court

On June 6, 2017, the district court entered an order declining to exercise further jurisdiction until the juvenile court was 

no longer exercising jurisdiction under a petition to adjudicate 

pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).

The juvenile case pertaining to the allegations of sexual 

abuse was dismissed on September 15, 2017. It was undisputed 

that Matthew had not been arrested in relation to M.H.’s report 

or charged with any crime, though law enforcement did investigate. A medical examination conducted during the juvenile 

investigation showed no signs of abuse.

3. Complaint to Modify

On September 22, 2017, Eric filed in the district court an 

amended complaint to modify the November 2016 order of 

joint physical and legal custody and award Eric primary custody subject to reasonable parenting time by Ashley. The complaint described the material change of circumstances as:

[Ashley] has remarried to Matthew . . . . [Matthew] was 

the subject of an investigation in York County, Nebraska 

for the sexual assault of the minor child. The case was 

in the Juvenile Court of York County, Nebraska located 

at case number JV 17-28. The case was dismissed on 

September 15, 2017.

4. September 26, 2017, Ex Parte Order

The same day that Eric filed to modify custody, he also 

moved for a new ex parte order suspending Ashley’s parenting time with M.H. In an affidavit attached to the motion, Eric 

described the reasons why, despite the dismissal of the juvenile 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

case, he still believed that “something happened” and that 

M.H. would be in danger if she had unsupervised visitation 

with Ashley. Eric’s wife, Cassie H., also submitted an affidavit 

in support of the motion.

The affidavits described that M.H. had reported to Eric and 

Cassie that Matthew pulled her pants down and touched her 

inappropriately. Further, M.H. had patted Eric’s private parts 

and told him that Matthew had said it was “ok” to do that. Eric 

and Cassie described that M.H. was wetting the bed and otherwise “not acting normal” when she first reported the abuse. 

They alleged that M.H. had improved during the time that 

visitation with Ashley was suspended.

The ex parte order was granted pending a hearing on October 

4, 2017. After the October 4 hearing, the court vacated the ex 

parte order.

In vacating the ex parte order, the court concluded that 

Eric had failed to prove by a preponderance of the evidence 

that M.H., by that time 7 years old, was the victim of sexual 

abuse or was otherwise endangered in Ashley’s home. The 

court noted that the initial interview of M.H., in which she 

first disclosed any inappropriate behavior by Matthew, was 

conducted by Cassie, an interested party. Cassie was employed 

by the Department of Health and Human Services (DHHS) 

and had completed a course in interviewing children. The 

court observed that subsequent to the initial interview with 

Cassie, M.H. attended weekly therapy and it was the therapist’s 

opinion that M.H.’s reports of sexual abuse were made in an 

“‘authentic’” manner consistent with congruent emotions and 

symptoms. However, the court also stated that testimony that a 

child is credible has been disapproved in State v. Doan, 1 Neb. 

App. 484, 498 N.W.2d 804 (1993).

The court further noted that M.H. did not testify at the 

hearing, and it considered the evidence of sexual abuse to be 

“problematic”:

The Court is left with hearsay statements of a 7-yearold child made to her step-mother and to her counselor. 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

Offenses committed and against children too young to 

testify are troubling in that in many cases, the only witness is unable to testify under established rules of evidence. The Court is however constrained by rules of law 

and must respect a parent’s constitutionally protected 

relationship with the child, as well as protecting the best 

interest of the child.

The initial interview of the minor child [by Cassie] 

is problematic, in that it was not conducted by a neutral 

party. The Court can find no established hearsay exception to the child’s statements. It is uncertain whether this 

initial interview and continued residence with the stepmother influenced the child’s statements to the counselor.

5. Hearing on Motion to Modify

The hearing on the complaint to modify was held on 

February 8, 2018. Ashley, Eric, and Cassie testified. 

Additionally, a mental health practitioner, Lisa Pattison, testified, and the notes from another mental health practitioner, 

Cynthia McDowell, were entered into evidence. Finally, the 

court conditionally accepted into evidence notes from an 

interview of M.H. conducted by a child advocacy center, subject to its ruling on Ashley’s hearsay objection. A caseworker 

with DHHS who was assigned to M.H. during the juvenile 

investigation testified mainly for the purpose of establishing 

foundation for the interview notes. M.H. did not testify at 

the hearing.

(a) Bed-Wetting and Other Behaviors

Eric and Cassie testified that, generally, on the day that 

M.H. transitions from Ashley’s custody to Eric’s custody, M.H. 

will act differently than she normally does, staring off into 

space and crying easily. After a “good night’s sleep,” however, 

she is usually fine.

During the week of May 20, 2017, M.H. wet the bed while 

at Eric and Cassie’s house. She had also had an accident at 

Ashley’s house that week.
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

Cassie testified that the last time M.H. had wet the bed at 

their home was in December 2016. Ashley testified that M.H. 

stopped wetting the bed regularly when she was 4 years old, 

but that she would occasionally still wet the bed. According to 

Ashley, bed-wetting occurred most frequently when M.H. had 

a urinary tract infection. According to Ashley, M.H. had a urinary tract infection the week of May 20, 2017.

According to Eric and Cassie, from May until the end of 

June 2017, M.H. continued to wet the bed at Eric’s house, 

a total of approximately 23 times. Eric and Cassie also 

described that M.H. started having frequent nightmares about 

a monster.

M.H. started mental health counseling in June 2017, which 

was arranged by Eric during his parenting time. Eric and Cassie 

testified that after M.H. began counseling, M.H. stopped wetting the bed or having nightmares. Eric and Cassie did not 

dispute that in July 2017, during the time that M.H. was in 

Eric and Cassie’s sole physical placement pending the conclusion of an investigation by DHHS, she was diagnosed with a 

urinary tract infection.

(b) M.H.’s Initial Reports of 

Abuse by Matthew

During the week of May 20, 2017, when Cassie learned of 

M.H.’s bed-wetting, she obtained Eric’s permission to ask M.H. 

some questions. She explained that she had child interview 

training. Cassie testified without objection that when Cassie 

asked M.H. some questions, M.H. told Cassie that Matthew 

had pulled her pants down and touched her private parts. Eric 

reported this to Ashley.

Ashley testified that she was shocked when Eric told her 

that M.H. had reported abuse by Matthew. She had no prior 

knowledge of any abuse or reports of abuse. She did not see 

any signs at home that M.H. might be experiencing abuse. 

But she supported Eric’s decision to call Child Protective 

Services, because she “wanted to know what the truth was.” 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

Ashley stated that she fully cooperated with the investigation. 

Matthew and Ashley at all relevant periods of time have continued living together. Ashley noted that M.H. was upset that 

she was not allowed to see Matthew during supervised visitation while the juvenile case was pending.

When asked whether she believed M.H.’s allegations, Ashley 

explained that she did not know what had happened. She testified, “I’m not saying that she’s lying, but it’s just based on 

what I see at home and what [M.H.] tells me just — I don’t 

know what the truth is.” She explained further, “I don’t see 

the signs of what I would see for somebody that would be sexually abused.” Ashley was “not saying [M.H. was] lying, but 

just all the stories I was told, they don’t add up to what I see 

[M.H.] do.”

(c) M.H.’s Reports of 

Abuse by Classmates

According to Ashley, the same week that M.H. reported 

Matthew had sexually assaulted her, she told Ashley that some 

boys at school had come up behind her, pulled her pants down, 

and touched her. DHHS investigated the report. According to 

Cassie, who was familiar with the allegations as well, a boy 

was expelled in relation to the incident. But, according to a 

caseworker with DHHS who was assigned to M.H. during the 

juvenile investigation, M.H. and a boy were “playing a game” 

and the boy “patted her — popped her on the butt a little bit, 

but there was nothing else other than that.”

(d) Counseling

Mental health counseling for M.H. was arranged by Eric and 

Cassie without Ashley’s knowledge or consent. M.H. began her 

counseling with McDowell. Later, McDowell became ill. She 

was unable to testify at the hearing.

(i) Exhibit 16: Counseling Notes

Exhibit 16, which contained McDowell’s progress notes 

from 19 sessions with M.H., was entered into evidence over 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

Ashley’s foundation objection. Ashley did not object on hearsay grounds. In those notes, McDowell described that M.H. had 

disclosed to her consistent details of sexual abuse by Matthew, 

as well as coaching by Ashley not to disclose the abuse.

According to McDowell, M.H. had described to her that 

Matthew “‘puts his hands on my private parts’” and “‘puts 

his potty on my potty and it bled.’” M.H. also reported to 

McDowell that Matthew had “‘hit my potty with his potty’” 

and that she “‘pee[ed] in my pants.’”

M.H. reportedly told McDowell that the first time Matthew 

took off her clothes, she was lying in bed for a nap, Matthew 

came in and took off her pants, and “‘[H]e had a glass and 

he dropped it and then he picked it up and put it inside my 

potty.’” M.H. told McDowell that it hurt and that M.H. had 

screamed. According to M.H., Ashley came in and “‘put some 

napkins on it.’”

(ii) Pattison’s Testimony

M.H. began seeing Pattison in November 2017. Without 

objection, Pattison testified that she had seen M.H. seven times 

since then. She testified that M.H. had consistently told her 

that she had been touched inappropriately by Matthew. M.H. 

did not go into details other than to say that it happened in her 

room, that there was glass involved, and that it hurt. According 

to Pattison, M.H. told her that Ashley was working on making 

sure that it was safe for her to go home.

When Pattison raised the possibility of M.H.’s having to 

testify in the juvenile proceedings, Pattison observed M.H. 

become “very, very frightened that her mom and her stepdad 

would be in the room.” Pattison testified, further, that after a 

joint session with Ashley, Eric, and Cassie, M.H. seemed more 

reluctant to talk with her. On January 11, 2018, after that joint 

session, M.H. reported to Pattison that a boy had touched her 

at school.

Pattison explained that bed-wetting often coincides with 

child sexual abuse. She acknowledged that it is inappropriate 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

for an interested person, such as a stepparent, to conduct a 

sexual abuse interview. However, she did not see any signs that 

M.H. had been coached to make the report of sexual abuse. 

Pattison opined that Matthew had sexually abused M.H.

(e) Exhibit 19: Child Advocacy 

Center Interview Notes

During the hearing, the court provisionally accepted into 

evidence exhibit 19, over Ashley’s hearsay objection. M.H. 

was interviewed by a child advocacy center forensic interviewer on May 22, 2017, and exhibit 19 contained the notes 

from that interview. In the interview, M.H. made reports of 

sexual abuse similar to those described above.

6. Order Denying Modification

The court dismissed the amended complaint to modify. 

The court found that a “fair implication” of the material 

change of circumstances alleged in the complaint to modify 

was that “the stepfather had actually sexual [sic] abused the 

child.” The court also stated that finding a material change 

of circumstances based upon the “mere fact of filing the June 

the [sic] juvenile petition, which was then dismissed without 

adjudication may violate due process.” The court thus limited its inquiry to whether Eric had proved that Matthew had 

abused M.H.

The court concluded that Eric had failed to prove by a preponderance of the evidence that Matthew had sexually abused 

M.H. It explained:

The Court received records of mental health practitioners which include a diagnosis of adjustment disorder 

with mixed disturbance of emotions and conduct. While 

the Court can make no finding that the stepfather sexually abused the child counseling records indicate that 

his presence appears to be a source of stress for the child. 

The father and stepmother’s testimony suggests that the 

child the [sic] better during the time that the child had 

limited contact with her mother.
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

. . . .

. . . As noted the court finds no competent evidence 

that the stepfather has such [sic] abused the minor child.

In making these findings, the court did not consider exhibit 19. 

The court found that exhibit 19 was inadmissible hearsay.

The court found that while the counseling records indicated 

that Matthew’s presence “appears to be a source of stress for 

the child,” “the pleadings did not provide [Ashley] with notice 

reasonably calculated to inform her that custody would be 

changed on a basis other than the sexual abuse investigation 

and subsequent filing and dismissal of a juvenile petition.”

Eric appeals.

III. ASSIGNMENTS OF ERROR

Eric assigns that the district court (1) erred in concluding 

that he had to prove by a preponderance of the evidence that 

Matthew sexually abused M.H., (2) erred in concluding that 

the pleadings did not provide Ashley with notice reasonably 

calculated to inform her that custody could be changed on a 

basis other than the sexual abuse investigation and subsequent 

filing and dismissal of a juvenile petition, and (3) abused its 

discretion when it failed to grant Eric’s motion to modify the 

custody decree.

IV. STANDARD OF REVIEW

[1] 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. State 

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

230 (2015).

[2] In child custody cases, where the credible evidence is in 

conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard 

and observed the witnesses and accepted one version of the 

facts rather than another. Id.
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

V. ANALYSIS

[3] Prior to the modification of a child custody order, two 

steps of proof must be taken by the party seeking the modification. First, the party seeking modification must show a 

material change in circumstances, occurring after the entry of 

the previous custody order and affecting the best interests of 

the child. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 

(2016). See, also, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 

865 (2015). Next, the party seeking modification must prove 

that changing the child’s custody is in the child’s best interests. Hopkins v. Hopkins, supra. The issue in this appeal is 

whether the court erred in finding that Eric had failed to show 

the occurrence of the alleged material change in circumstances. 

The court did not proceed beyond this first step to address 

whether a change in custody was in M.H.’s best interests. 

A material change of circumstances constituting grounds for 

modification of a dissolution decree means the occurrence of 

something which, had it been known to the dissolution court at 

the time of the initial decree, would have persuaded the court 

to decree differently. Collett v. Collett, 270 Neb. 722, 707 

N.W.2d 769 (2005).

1. Scope of Modification Proceeding

As a threshold matter, Eric asserts that the material change 

of circumstances considered by the district court was too narrow in scope. Eric suggests that the court erroneously focused 

on whether actual abuse had occurred instead of considering 

the possibility that the allegations against Matthew, whether or 

not true, constituted a material change in circumstances. Eric’s 

argument appears to be that the court should have considered 

modifying custody based on M.H.’s stress in relation to her 

contact with Matthew, which was demonstrated by the allegations of abuse. Eric argues in full:

[Eric’s] complaint clearly made allegations that 

[Ashley’s] marriage to Matthew . . . , [Matthew’s] behavior, and his proximity to the minor child were at issue. If 
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ERIC H. v. ASHLEY H.

Cite as 302 Neb. 786

the complaint is liberally construed in [Eric’s] favor, the 

court must consider all aspects relating to [Matthew’s] 

contact with the minor child. This includes all evidence 

of stress that [Matthew] causes the minor child as noted 

the district court’s order. . . . In addition, other pleadings 

including the original Motion for Ex-Parte Order and second Motion for Ex-Parte Order, and Affidavits in Support 

of the Motion for Ex-Parte Order clearly indicated that 

behavior of [Matthew] would be an issue at trial. . . . 

There is no question that [Ashley] had notice reasonably 

calculated to inform her that custody could be changed 

on a basis other than the sexual abuse allegations against 

[Matthew].

Brief for appellant at 17 (citations omitted).

Neb. Rev. Stat. § 42-364(6) (Reissue 2016) provides that 

“[m]odification proceedings relating to . . . custody . . . shall 

be commenced by filing a complaint to modify. . . . Service 

of process and other procedure shall comply with the requirements for a dissolution action.” In certain respects, these 

statutes specify special pleading requirements. See, e.g., Neb. 

Rev. Stat. § 42-353 (Reissue 2016). But otherwise, the ordinary rules of pleading apply to proceedings to modify custody. 

Cf. Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 

(2015). We have explained that a pleading has two purposes: 

(1) to eliminate from consideration contentions which have no 

legal significance and (2) to guide the parties and the court in 

the conduct of cases. Id.

[4] Pleadings frame the issues upon which the cause is to 

be tried and advise the adversary as to what the adversary 

must meet. Id. See, also, Heistand v. Heistand, 267 Neb. 300, 

673 N.W.2d 541 (2004). A court’s determination of questions raised by the facts, but not presented in the pleadings, 

should not come at the expense of due process. Zahl v. Zahl, 

273 Neb. 1043, 736 N.W.2d 365 (2007). While the concept 

of due process defies precise definition, it embodies and 

requires fundamental fairness. Id. Generally, procedural due 
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process requires parties whose rights are to be affected by 

a proceeding to be given timely notice, which is reasonably 

calculated to inform the person concerning the subject and 

issues involved in the proceeding; a reasonable opportunity to 

refute or defend against a charge or accusation; a reasonable 

opportunity to confront and cross-examine adverse witnesses 

and present evidence on the charge or accusation; representation by counsel, when such representation is required by 

constitution or statute; and a hearing before an impartial decisionmaker. Id.

[5] The district court determined that the scope of Eric’s 

complaint was limited to the alleged sexual abuse of M.H. as 

the material change of circumstances justifying modification. 

The court determined that the pleadings did not provide Ashley 

with notice reasonably calculated to inform her that custody 

could be changed on any other basis. Decisions regarding the 

scope and meaning of pleadings are reviewed for an abuse of 

discretion. See Taxpayers Against Casinos v. State, 478 Mich. 

99, 732 N.W.2d 487 (2007).

The district court did not abuse its discretion in its determination of the scope and meaning of Eric’s complaint. The 

complaint alleged that the material change of circumstances 

was that Ashley had married Matthew and that Matthew was 

“the subject of an investigation in York County, Nebraska for 

the sexual assault of the minor child,” resulting in a juvenile 

court case that was eventually dismissed. But neither remarrying nor being the “subject of an investigation” which led to the 

dismissal of the juvenile proceeding is a circumstance that is 

inherently material. As the court noted, the material change of 

circumstances alleged by implication in the complaint was that 

Matthew had actually sexually assaulted M.H.

The complaint did not allege more. It did not refer to 

M.H.’s “stress” or any other aspect of her relationship with 

Matthew. The complaint did not even make direct reference to 

M.H.’s reports of abuse. At no point did Eric seek to amend 

the complaint.
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Furthermore, while issues not raised by the pleadings may 

be tried by express or implied consent of the parties, see 

Neb. Ct. R. Pldg. § 6-1115(b) and United Gen. Title Ins. Co. 

v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015), there 

was neither evidence of such consent nor evidence that Eric 

attempted to try any issue other than the allegation of actual 

sexual abuse. The evidence presented at the hearing focused 

on whether Matthew had actually sexually abused M.H. Eric 

did not present evidence of any reason why M.H. would have 

made false reports. And there is no indication that the issues 

presented in relation to the ex parte order were any different. 

The district court did not err in concluding that any change 

of circumstances different from the alleged sexual abuse was 

outside the scope of the modification proceeding.

2. Standard of Proof

for Sexual Abuse

Eric also asserts that the district court’s determination that 

he had to prove the allegations of sexual abuse by a preponderance of the evidence imposed an “improper and unworkable 

burden.” Brief for appellant at 9. Eric elaborates that whether 

the abuse actually occurred was the “wrong inquiry,” because 

“the movant need not prove that some material change—be it 

abuse and neglect or alcohol abuse—actually occurred (or did 

not occur). Rather, the court must consider the evidence in the 

totality and determine whether, in the best interest of the child, 

modification is warranted.” Id. at 10.

[6] Eric misunderstands our statements regarding the paramount nature of children’s best interests. We have repeatedly 

held that before the district court considers whether a change 

of custody is in the best interests of the children, it must first 

find that there has been a material change of circumstances 

that has occurred since the entry of the prior order. See, 

Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016); 

Hoschar v. Hoschar, 220 Neb. 913, 374 N.W.2d 64 (1985), 

disapproved on other grounds, Parker v. Parker, 234 Neb. 

167, 449 N.W.2d 553 (1989). See, also, Schrag v. Spear,
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290 Neb. 98, 858 N.W.2d 865 (2015). Proof of a change of 

circumstances is not an optional element to a modification 

proceeding. Proof of a material change of circumstances is the 

threshold inquiry in a proceeding on a complaint to modify, 

see id., because issues determined in the prior custody order 

are deemed res judicata in the absence of proof of new facts 

and circumstances, see Rauch v. Rauch, 256 Neb. 257, 590 

N.W.2d 170 (1999). Furthermore, limiting custody changes to 

material changes in circumstances avoids extensive and repetitive litigation and unnecessary, potentially harmful fluctuations 

in the child’s life. 67A C.J.S. Parent and Child § 145 (2013). 

A custody order will not be modified absent proof of new facts 

and circumstances arising since it was entered. See Rauch v. 

Rauch, supra.

If we were to accept Eric’s premise that the parent filing the 

complaint to modify need not prove that some material change 

actually occurred, then every unproven allegation of new material facts and circumstances would open the door for a new 

best interests custody inquiry and custody change. We find no 

merit to Eric’s argument that the court conducted the wrong 

inquiry by focusing on whether he had proved that the alleged 

material change of circumstances actually occurred.

[7] It does not appear that Eric is challenging the preponderance of the evidence as the applicable burden in establishing 

the material change of circumstances. At least, Eric does not 

suggest a different burden of proof. For the sake of clarity, 

though, we reiterate that the party seeking modification of 

a custody order must prove a material change of circumstances by a preponderance of the evidence. See, Goodman 

v. Goodman, 180 Neb. 83, 141 N.W.2d 445 (1966); Young 

v. Young, 166 Neb. 532, 89 N.W.2d 763 (1958). See, also, 

67A C.J.S., supra; Linda D. Elrod, Child Custody Practice 

and Procedure § 17:4 (rev. ed. 2019). A preponderance of the 

evidence is the equivalent of “‘the “greater weight”’” of the 

evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 253, 859 

N.W.2d 578, 583 (2015).
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3. De Novo Review of Evidence

of Sexual Abuse

We turn, finally, to the underlying question of whether the 

court erred in finding that Eric did not prove by a preponderance of the evidence that Matthew sexually abused M.H. In 

doing so, we do not address whether the court, in finding the 

evidence of abuse unpersuasive, should have considered exhibit 

19. We likewise do not address whether the court should have 

considered any opinions of mental health practitioners that 

M.H.’s reports of abuse were credible. On appeal, Eric does not 

assign these rulings as error. But because we conclude that the 

court made an error of law in finding there was “no competent 

evidence” of sexual abuse by Matthew, we reverse, and remand 

for consideration of all the evidence.

[8] Competent evidence is evidence that is admissible and 

tends to establish a fact in issue. Cain v. Custer Cty. Bd. of 

Equal., 298 Neb. 834, 906 N.W.2d 285 (2018). Here, the 

record contains a considerable amount of evidence which 

meets this definition.

The fact at issue in this modification trial was whether the 

child had been subjected to sexual abuse by her stepfather, 

and evidence at trial, if believed, tended to establish that such 

sexual abuse had occurred. As noted above, a clinical psychologist testified she had met with the child seven times and 

the child consistently reported that her stepfather had sexually 

abused her in her bedroom and that it hurt. Also admitted were 

treatment notes from a licensed independent mental health 

practitioner who saw the child 19 times, which notes document 

that the child consistently reported her stepfather had sexually 

abused her and that her mother told her not to disclose the 

abuse. The evidence also showed that the child was experiencing symptoms consistent with sexual abuse and that those 

symptoms improved during the time the court prevented the 

stepfather from having contact with her.

In addition to tending to establish a fact in issue, the foregoing evidence was admissible. The child’s statements to mental 
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health professionals, in particular, were admissible under Neb. 

Rev. Stat. § 27-803(3) (Reissue 2016), because they were made 

for the purpose of psychological treatment. See In re Interest of 

B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005). And there 

was no evidentiary bar to the parents’ testimony concerning 

M.H.’s symptoms.

As demonstrated above, Eric introduced competent evidence 

that Matthew sexually abused M.H. The district court, however, found that there was “no competent evidence that the 

stepfather has . . . abused the minor child” and, on that basis, 

concluded that “[t]he father has failed to prove by a preponderance of the that evidence that the stepfather has sexually 

abused the child.”

The district court’s earlier order vacating the ex parte order 

suggests the possibility that the district court found the evidence was not competent, because it was concerned the child’s 

statements to the mental health professionals may have been 

influenced by the child’s father and stepmother during the 

period of the child’s temporary sole physical custody with 

them after the initial report of abuse. But even if the district 

court was concerned that the child’s statements to mental 

health professionals had been influenced by her father and 

stepmother, such a concern would properly go to the weight 

and credibility to be afforded this evidence, not to whether it is 

competent. The district court’s finding of “no competent evidence,” and the absence of any reference to the child’s statements, indicates that the district court, rather than considering 

the weight the statements should be given, did not consider 

them at all.

It is true that in a bench trial, appellate courts presume that 

a trial court considers only competent and relevant evidence in 

rendering its decision. See Fickle v. State, 273 Neb. 990, 735 

N.W.2d 754 (2007), modified on denial of rehearing 274 Neb. 

267, 759 N.W.2d 113. But we do not believe that presumption 

applies here. This is not a case in which the trial court’s order 

is silent as to the evidence it did and did not rely upon. Rather, 
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this is a case in which the district court explicitly stated that 

there was “no competent evidence” of a fact in dispute when, 

as we have explained, there plainly was.

A de novo review of the record clearly shows there was 

competent evidence adduced that, if believed, tended to establish the child was sexually abused by her stepfather. Because 

the record contains competent evidence of sexual abuse, it was 

an error of law for the court to find there was no competent 

evidence. We cannot review this record de novo for an abuse 

of discretion, when the trial court, in reaching its decision, 

relied on an incorrect understanding of the law. See, State v. 

McGuire, 301 Neb. 895, 911, 921 N.W.2d 77, 88 (2018) (“[t]o 

the extent that the court’s ruling was based upon an incorrect 

understanding of the law, it is not possible for us to review it 

for an abuse of discretion”); State v. Myers, 301 Neb. 756, 919 

N.W.2d 893 (2018).

Accordingly, we reverse, and remand with directions. Given 

the passage of time since the original hearing on the motion to 

modify, we leave to the district court’s discretion whether to 

appoint a guardian ad litem or to otherwise allow for the expansion of the existing record. In any case, the court is directed 

to consider all competent evidence adduced before deciding 

whether Eric has proved a material change in circumstances.

VI. CONCLUSION

For the foregoing reasons, we affirm in part, and in part 

reverse and remand with directions to consider all competent 

evidence adduced at trial.

 Affirmed in part, and in part reversed

and remanded with directions.