Decisions of the Nebraska Court of Appeals

STATE ON BEHALF OF DAWN M. v. JERROD M. 835

Cite as 22 Neb. App. 835

State of Nebraska on behalf of Dawn M., 

a minor child, appellee, v. Jerrod M., 

appellee, and Amber M., appellant.

___ N.W.2d ___

Filed April 7, 2015. No. A-14-607.

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. Child Custody. In addition to the statutory factors relating to the best interests 

of the child, 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; parental capacity 

to provide physical care and satisfy educational needs of the child; the child’s 

preferential desire regarding custody if the child is of sufficient age of comprehension, regardless of chronological age, and when such child’s preference is 

based on sound reasons; and the general health, welfare, and social behavior of 

the child.

3. Modification of Decree: Child Custody: Evidence: Time. Evidence of a custodial parent’s behavior during the year or so before the hearing on the motion to 

modify is of more significance than the behavior prior to that time. The focus is 

on the best interests of the child now and in the immediate future, and how the 

custodial parent is behaving at the time of the modification hearing and shortly 

prior to the hearing is therefore of greater significance than past behavior when 

attempting to determine the best interests of the child.

4. Judgments: Words and Phrases. A judicial abuse of discretion requires that 

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

litigant of a substantial right and a just result.

5. Evidence: Appeal and Error. Where 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 court heard and observed the witnesses and accepted one version of 

the facts rather than another.

6. Appeal and Error. An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy before it.

Appeal from the District Court for Howard County: Karin

L. Noakes, Judge. Affirmed.

James A. Wagoner for appellant.

Charles R. Maser for appellee Jerrod M.
Decisions of the Nebraska Court of Appeals

836 22 NEBRASKA APPELLATE REPORTS

Moore, Chief Judge, and Inbody and Pirtle, Judges.

Pirtle, Judge.

INTRODUCTION

Amber M. appeals the custody determination, made by the 

district court for Howard County, which awarded primary 

physical custody of the minor child, Dawn M., to Jerrod M., 

subject to parenting time as provided in the parenting plan. 

The court also ordered Amber to pay child support to Jerrod 

and denied Amber’s application to move out of the State of 

Nebraska with Dawn. For the reasons that follow, we affirm.

BACKGROUND

Dawn was born in November 2006 and shares a last name 

with her mother, Amber. Dawn’s father, Jerrod, was not aware 

of Dawn’s birth until a year or two later, when he was served 

with notice that he was named as her father in a paternity case. 

Jerrod has a criminal history and has been incarcerated for 

most of Dawn’s life. Amber also has a criminal history, but has 

been incarcerated only for short periods of time.

Janet S., Amber’s mother, provided a home and daily care 

for Dawn for most of Dawn’s life. Amber resided with Dawn 

and Janet for periods of time, but not continuously. In the 

summer of 2012, Amber contacted Lori P., Jerrod’s mother, to 

see if she would take care of Dawn, and Dawn was removed 

from Janet’s home. Dawn spent the summer of 2012 and the 

2012-13 school year with Lori at her home in Smith Center, 

Kansas. In September 2012, Amber signed a consent form 

giving Lori and her husband “physical care” of Dawn and the 

authority to consent to “any medical, dental, surgical, emergency treatment and / or [the] release of medical information” 

related to Dawn. Dawn returned to Janet’s home with Amber 

after the end of the 2012-13 school year in Smith Center. 

Dawn’s school records indicate she struggled in some areas 

in school in Smith Center and noted areas where she needed 

to improve.

In August 2013, Dawn began living with Jerrod, and on 

August 20, a temporary order was entered granting Jerrod 

temporary custody. Dawn has resided with Jerrod since that 
Decisions of the Nebraska Court of Appeals

STATE ON BEHALF OF DAWN M. v. JERROD M. 837

Cite as 22 Neb. App. 835

time. Jerrod filed a motion to modify custody, parenting time, 

and child support on August 21. During the 2013-14 school 

year, Dawn attended Banner County School. She demonstrated 

some improvement, but had some trouble in certain areas, and 

Jerrod decided to hold her back to repeat the first grade.

In January 2014, Amber moved to Riverdale, Utah, to live 

with her boyfriend, who is now her fiance. Amber filed a complaint to modify on January 13, and she filed a request to move 

out of the state with Dawn on February 3. She had visits with 

Dawn 5 to 10 times at Janet’s home between September and 

December 2013, and she has not seen Dawn in person since 

December 2013. Amber has missed scheduled visits, but she 

has spoken with Dawn on the telephone.

The parties’ complaints regarding custody, child support, 

and parenting time, and Amber’s request to move out of the 

state, were addressed at trial on June 2, 2014. The parties stipulated that there had never been a permanent order establishing 

custody or parenting time and that the trial was held for that 

purpose. The court was also tasked with deciding whether to 

modify the child support order and, if Amber was awarded 

custody, whether she would be allowed to move out of the state 

with Dawn.

The court found that neither parent had been consistently 

present in Dawn’s life, but that Jerrod has had day-to-day 

contact with her and has provided consistent care for her for 

the 10 months preceding the hearing. The court was “greatly 

concerned” with Jerrod’s past criminal history, especially his 

convictions for assaultive behavior. However, the court found 

there was no evidence that indicated Dawn had been abused 

or placed in a dangerous situation since she was placed with 

Jerrod. The court found that Jerrod was taking the appropriate steps toward stability and providing for Dawn, including 

maintaining steady employment and providing for her physical care and educational needs. Ultimately, the court found it 

was in Dawn’s best interests that Jerrod be awarded custody, 

subject to Amber’s parenting time as set forth in the parenting plan. The court also ordered Amber to pay child support 

in the amount of $71 per month starting July 1, 2014. The 
Decisions of the Nebraska Court of Appeals

838 22 NEBRASKA APPELLATE REPORTS

court denied Amber’s motion to move Dawn out of the State 

of Nebraska.

ASSIGNMENTS OF ERROR

Amber asserts the court abused its discretion in awarding 

custody to Jerrod. Amber also asserts the district court erred 

in failing to make any specific findings that Dawn can be adequately protected from harm and in failing to impose any limits 

reasonably calculated to protect Dawn, because Jerrod was 

previously convicted of a charge of domestic assault. Amber 

asserts the court erred in denying her request to move out of 

the State of Nebraska with Dawn and in devising a parenting 

plan that she deems unworkable.

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. 

Collins v. Collins, 21 Neb. App. 161, 837 N.W.2d 573 (2013).

ANALYSIS

Jerrod’s Assault Conviction.

Amber asserts the trial court erred by granting custody 

to Jerrod without making specific findings pursuant to Neb. 

Rev. Stat. § 43-2932 (Reissue 2008), as he had been previously convicted of domestic assault. She asserts the court’s 

implicit findings that granting custody to Jerrod was appropriate does not satisfy the statute’s requirement of explicit findings. She referred to Jerrod’s previous charge for domestic 

assault against his estranged wife and asserted that the trial 

court failed to make written findings that Dawn would be 

adequately protected in Jerrod’s care.

Neb. Rev. Stat. § 43-2929 (Cum. Supp. 2014) states that a 

parenting plan shall serve the best interests of the child pursuant to Neb. Rev. Stat. §§ 42-364, 43-2923, and 43-2929.01 

(Cum. Supp. 2014). Section 43-2929(1)(a) and (b)(ix) provides that the parenting plan should assist in developing a 

restructured family that serves the best interests of the child 

by accomplishing the parenting functions and should include 
Decisions of the Nebraska Court of Appeals

STATE ON BEHALF OF DAWN M. v. JERROD M. 839

Cite as 22 Neb. App. 835

“[p]rovisions for safety when a preponderance of the evidence 

establishes child abuse or neglect, domestic intimate partner 

abuse, unresolved parental conflict, or criminal activity which 

is directly harmful to a child.”

Section 43-2932 provides guidance for when limitations 

should be included in the parenting plan for the protection of 

the child or the child’s parent. Section 43-2932(1)(b) states that 

if a parent is found to have engaged in any activity specified in 

subsection (1)(a), such as domestic intimate partner abuse, then 

“limits shall be imposed that are reasonably calculated to protect the child or child’s parent from harm.” Section 43-2932(3) 

states that if a parent is found to have engaged in any activity 

specified in subsection (1), the court “shall not order legal or 

physical custody to be given to that parent without making 

special written findings that the child and other parent can 

be adequately protected from harm by such limits as it may 

impose under such subsection.”

Section 43-2923(2) states that when a preponderance of the 

evidence indicates domestic intimate partner abuse, the best 

interests of the child require a parenting and visitation arrangement that provides for the safety of the “victim parent.”

In the present case, the domestic abuse was between Jerrod 

and a third party. While it is true that Jerrod was convicted of 

domestic assault, the conviction was the result of an incident 

with Jerrod’s estranged wife. There is no evidence that the 

incident involved Amber. Section 43-2932(3) refers to protection of “the child and other parent” when a parent has engaged 

in domestic abuse. Accordingly, we conclude that § 43-2932 

applies to instances where domestic abuse occurred between 

the parents of the child or children at issue, where it is necessary to ensure that there is no future domestic abuse to the 

“other parent.”

If there has been no domestic intimate partner abuse 

between the parents, there is no reason to include provisions 

to protect the child or the other parent. There is no allegation that Amber was abused or that there was any violence 

involved when transferring the child for visits. Accordingly, 

§ 43-2932 is inapplicable, and it was not necessary for the 

court to make specific written findings pursuant to the statute 
Decisions of the Nebraska Court of Appeals

840 22 NEBRASKA APPELLATE REPORTS

before awarding Jerrod custody. This assignment of error is 

without merit.

Award of Custody to Jerrod.

Amber asserts the trial court erred in awarding custody of 

Dawn to Jerrod. According to § 43-2923(1), the best interests 

of the child require a parenting arrangement which provides 

for a child’s safety, emotional growth, health, stability, and 

physical care and regular and continuous school attendance and 

progress. In determining custody and parenting arrangements, 

the court shall consider the best interests of the minor child, 

which shall include, but not be limited to, consideration of the 

foregoing factors listed in § 43-2923(6):

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of 

an age of comprehension but regardless of chronological age, when such desire and wishes are based on sound 

reasoning;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member . . . and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

[2] In addition to the statutory factors relating to the best 

interests of the child, 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; parental capacity to provide physical care and satisfy educational needs of 

the child; the child’s preferential desire regarding custody if 

the child is of sufficient age of comprehension, regardless of 

chronological age, and when such child’s preference is based 
Decisions of the Nebraska Court of Appeals

STATE ON BEHALF OF DAWN M. v. JERROD M. 841

Cite as 22 Neb. App. 835

on sound reasons; and the general health, welfare, and social 

behavior of the child. Collins v. Collins, 21 Neb. App. 161, 837 

N.W.2d 573 (2013).

Amber asserts that in light of Jerrod’s history of criminal 

activity and his lack of involvement in Dawn’s life prior to 

2013, Jerrod is not the proper party to have custody of Dawn. 

She asserts additional facts in support of her position, including the following: Jerrod did not acknowledge paternity until a 

case was filed against him in 2007, and Dawn does not share 

his last name. Jerrod did not regularly pay child support after it 

was ordered in November 2008. While Dawn was in Amber’s 

custody, three attempts to facilitate visitation with Jerrod were 

unsuccessful. At the time of trial, Jerrod did not have a driver’s 

license as a result of a driving under the influence conviction 

in 2011. Amber asserts the trial court disregarded these facts 

and other “disabilities” which would inhibit Jerrod’s ability to 

provide for Dawn in the future.

[3] In Schrag v. Spear, 22 Neb. App. 139, 849 N.W.2d 551 

(2014), reversed on other grounds 290 Neb. 98, 858 N.W.2d 

865 (2015), this court considered the behavior of a parent 

in a case where modification of child custody was at issue. 

We noted that Nebraska courts have held that evidence of a 

custodial parent’s behavior during the year or so before the 

hearing on the motion to modify is of more significance than 

the behavior prior to that time. Id. The focus is on the best 

interests of the child now and in the immediate future, and 

how the custodial parent is behaving at the time of the modification hearing and shortly prior to the hearing is therefore 

of greater significance than past behavior when attempting to 

determine the best interests of the child. Id. See, also, Hoins 

v. Hoins, 7 Neb. App. 564, 584 N.W.2d 480 (1998). Although 

this case is not a modification, as permanent custody had not 

been previously decided, the standard for determining a child’s 

best interests remains the same in an initial custody determination. § 43-2923. See, also, Schrag v. Spear, supra; Collins v. 

Collins, supra.

Amber’s recitation of the above facts is supported by the 

record. However, the record also shows that Jerrod had made 

significant changes in his life and demonstrated a willingness 
Decisions of the Nebraska Court of Appeals

842 22 NEBRASKA APPELLATE REPORTS

to provide for Dawn in the months preceding the custody hearing. It is true that he was incarcerated off and on throughout 

Dawn’s life and that he was not involved in her day-to-day 

care until he gained temporary custody in 2013. However, the 

record shows he was not made aware of his paternity until 

he was served in prison with notice of a paternity case filed 

against him. Jerrod testified that his driver’s license had been 

revoked, but that he was eligible at the time of the hearing to 

get it reinstated. The record shows that since August 2013, 

he has provided a safe and stable home and cared for Dawn’s 

educational, emotional, and physical needs. He moved from 

St. Paul to Harrisburg, Nebraska, to pursue a job opportunity 

and is the head foreman at a mill. Through this job, Jerrod was 

given housing for his family free of charge in a five-bedroom 

home and was scheduled to become eligible for insurance benefits after 6 months of employment.

Prior to this case, Dawn was in Amber’s custody, but a 

significant portion of her life was spent with her maternal and 

paternal grandmothers. The record shows that Amber resided 

with Dawn at times, but that at other times, she was left in 

the care of Janet, Amber’s mother, or Lori, Jerrod’s mother. 

Amber asked Lori to care for Dawn in Smith Center from 

September 2012 to June 2013, because Amber was having 

problems with the father of her youngest two children. During 

that time, Amber provided Lori and her husband a power of 

attorney to make decisions on Dawn’s behalf. Jerrod testified 

that he had some contact with Dawn while she resided with 

his mother. Dawn was nervous at first, but then warmed up to 

him. Jerrod testified that he was told numerous times by Amber 

and her family that he was not welcome in Dawn’s life. Janet 

testified that Jerrod was, in fact, welcome, but that he had 

not taken advantage of opportunities to see Dawn. However, 

Janet’s credibility was brought into question when she denied 

making a “Facebook” entry stating that she had “raised that 

girl [Dawn] from birth,” and a copy of the alleged entry was 

entered into the record.

After Jerrod gained temporary custody of Dawn in August 

2013, Amber did not attend all of the scheduled visitation 

times. Both Amber and Jerrod testified that there were times 
Decisions of the Nebraska Court of Appeals

STATE ON BEHALF OF DAWN M. v. JERROD M. 843

Cite as 22 Neb. App. 835

Amber was scheduled to pick up Dawn for visits, but that she 

failed to do so. Amber’s last visit with Dawn was in December 

2013, and since that time, she had only had telephonic contact 

with her. Amber asserts that Jerrod caused the visitation lapses 

between November and December 2013, because he moved 

from St. Paul to Harrisburg. However, the record shows that in 

January 2014, Amber moved with her two youngest children, 

Dawn’s half siblings, to Utah to live with her fiance, a distance 

far more likely to significantly affect visitation than a move 

within the State of Nebraska.

Jerrod testified that Dawn got behind in her schoolwork 

while she resided in St. Paul and that she had made marked 

improvement while attending Banner County School after 

moving to Harrisburg. Notwithstanding that improvement, 

Dawn was to be held back in first grade for the 2014-15 academic year. The trial court found that Jerrod had made a “difficult and mature decision” which demonstrated a commitment 

to Dawn’s education and showed that he was acting in her 

best interests.

[4,5] A judicial abuse of discretion requires that the reasons 

or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. Collins v. 

Collins, 21 Neb. App. 161, 837 N.W.2d 573 (2013). Where 

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 court heard and observed the witnesses and accepted 

one version of the facts rather than another. Id. It is clear that 

the court considered the factors involved in determining parental fitness and the child’s best interests when deciding the issue 

of permanent custody. We find the trial court did not abuse its 

discretion in granting custody to Jerrod.

Removal From State of Nebraska.

[6] Amber asserts the trial court abused its discretion 

in denying her motion to remove Dawn from the State of 

Nebraska to live with her, her fiance, and Dawn’s younger 

half siblings in Utah. Having found that the trial court did not 

err in finding Jerrod was the appropriate parent to have custody of Dawn, we need not address this assignment of error. 
Decisions of the Nebraska Court of Appeals

844 22 NEBRASKA APPELLATE REPORTS

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d 

868 (2013).

Parenting Plan.

Amber asserts the parenting plan created by the court is 

“unworkable” and punishes her for moving out of the state. 

She states the court gave her “use-it-or-lose, alternating weekend visits when the court knows the distance barriers and lack 

of license to transport by [Jerrod].” Brief for appellant at 14. 

She also states that the plan is contrary to the Parenting Act, 

but does not provide any legal authority or reasoning to support 

her conclusion.

The parenting plan Amber proposed at the custody hearing allowed for extended summer visitation each year from 

June 1 to August 1, with extended time over the holidays. 

Jerrod testified that the proposed plan was reasonable and that 

he would be open to Amber’s receiving the same proposed 

visitation time if he were granted custody. He also testified that 

he was willing to meet Amber halfway between Harrisburg and 

Amber’s residence in Utah to transfer Dawn. Jerrod testified 

that Dawn would like to play softball and that he would like 

her to be able to do so during the summer holidays, if it does 

not interfere too much with summer parenting time.

In the parenting plan, the trial court ordered a visitation 

schedule which consists of alternating weekends, alternating holidays, and an extended time period over the summer, 

which is typical of many parenting plans. The court’s plan 

provides that Christmas is defined as the time after the child 

is excused from school until December 27. The New Year’s 

holiday begins on December 27 and ends the evening before 

Dawn is scheduled to return to school. This allows both parents to have an extended period with the child during the holiday season. The court-ordered plan granted Amber 6 weeks 

of parenting time during the summer, which does not greatly 

differ from the approximately 8 weeks of parenting time she 

provided for in the proposed plan.
Decisions of the Nebraska Court of Appeals

STATE ON BEHALF OF DAWN M. v. JERROD M. 845

Cite as 22 Neb. App. 835

Presumably, Amber’s assessment that the plan is “unworkable” stems from her inability to see Dawn on alternating 

weekends, because Amber resides in Utah. The court acknowledged that Amber’s residence in Utah would make it unlikely 

that she would exercise her weekend parenting time on a regular basis, yet it still provided the possibility for her to use that 

time if she were so inclined. The record shows that Amber’s 

mother and stepfather reside in St. Paul and that the father of 

her two youngest children presumably still resides in or around 

Kearney, Nebraska. These factors, in addition to Dawn’s continued presence in Nebraska, may make Amber more likely 

to return to Nebraska occasionally on weekends. The ordered 

schedule actually allows Amber the potential for more time 

with Dawn during the school year than her own proposed plan, 

which did not allow for weekend visitation during the school 

year, except on holidays.

A judicial abuse of discretion requires that the reasons or 

rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. Collins v. 

Collins, 21 Neb. App. 161, 837 N.W.2d 573 (2013). Upon our 

review of the record, we find the trial court did not abuse its 

discretion in creating the ordered parenting plan.

CONCLUSION

After our de novo review of the record, we conclude that 

the trial court did not abuse its discretion in granting custody 

to Jerrod and that the court was not obligated to make specific 

written findings that Dawn and Amber would be adequately 

protected from harm. Having found that granting custody in 

favor of Jerrod was appropriate, we need not address Amber’s 

assignment of error regarding the removal of Dawn from the 

State of Nebraska. We find the trial court did not abuse its discretion in the creation of the ordered parenting plan.

Affirmed.