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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

SLOUP V. THOMAS

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).

MEGGIE M. SLOUP, APPELLEE,

V.

WILLIAM SCOTT THOMAS, APPELLANT.

Filed June 4, 2019. No. A-18-596.

Appeal from the District Court for Saunders County: ROBERT R. STEINKE, Judge. Affirmed 

in part, and in part reversed.

Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.

Benjamin W. Shanahan, of Sohl Law Office, for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

William Scott Thomas appeals the decision of the district court for Saunders County 

denying his request to modify custody of his minor children. Thomas specifically appeals the 

district court’s order denying him sole physical custody of the children, granting Meggie M. Sloup 

sole legal custody of the children, and reducing his parenting time with the children. We determine 

that the district court did not abuse its discretion in denying Thomas’ request for physical custody 

of the children and in awarding Sloup sole legal custody of the children; however, we reverse the 

district court’s decision to reduce Thomas’ parenting time.

BACKGROUND

Thomas and Sloup are the biological parents of three minor children, twin boys born in 

2011, and a daughter, born in 2013. Thomas and Sloup were never married. In November 2014, 
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the couple separated and entered into a joint stipulation to establish paternity, custody, and support. 

Pursuant to that stipulation, the parties agreed to a parenting plan establishing that Sloup would 

have sole physical custody of the children and the parents would have joint legal custody, but 

Sloup would have the final say on all decisions if there was an impasse. The parenting plan also 

established that from November 2 until April 14, and June 2 until September 14, Thomas would 

have parenting time with the children every other weekend from Thursday at noon (or after school) 

until Monday at 8 a.m. But from April 15 to June 1, and again from September 15 to November 1, 

Thomas would have parenting time every other weekend from Saturday at 5 p.m., until Sunday at 

8 p.m. Under both schedules Thomas was allowed parenting time on Thursdays from noon (or 

after school) until 8:30 p.m. during the weeks in which he did not have weekend parenting time. 

Additionally, Thomas was granted 2 nonconsecutive weeks of summer parenting time and certain 

holiday time. The court entered an order consistent with the parties’ stipulation.

In May 2016, Sloup filed a contempt motion, alleging that Thomas was not paying his 

share of daycare expenses, was returning the children’s clothing unwashed, did not notify her when 

he took the children outside of Nebraska, and did not return the children at the end of his parenting 

time. In August, Thomas filed an application for modification of the parenting plan. He alleged 

that a material change of circumstance had occurred since the plan was agreed upon, namely: that 

Sloup was not acting in the best interests of the minor children, refused to discuss major decisions 

involving the health and welfare of the minor children, did not keep a constant schedule and 

placement of the minor children, placed the boys in kindergarten before they were ready, was not 

addressing her health concerns, and that the children wanted to spend more time with Thomas. He 

alleged that it was in the children’s best interests that he be awarded sole legal and physical 

custody. Thomas additionally filed a contempt motion, alleging that Sloup returned the children’s 

clothing unwashed, did not notify him of the children’s medical appointments, and took the 

children out of Nebraska without notifying him.

In response, Sloup filed a cross-complaint for modification of the parenting plan. She 

asserted that a material change in circumstances had occurred in that Thomas refused to respect 

her boundaries and the parties were unable to effectively communicate regarding the children. 

Sloup requested sole legal custody of the children, modification of Thomas’ parenting time, and 

an increase in child support. The district court held a hearing spanning 3 days in July and December 

2017 on the parties’ requests for modification and contempt, and held another telephonic hearing 

in February 2018.

At the hearing, the parties admitted that they had not been strictly adhering to the parenting 

plan; rather, Thomas was exercising parenting time regularly under the first provision with the 

children staying with him every other Thursday afternoon to Monday morning. Each parent 

attempted to demonstrate that the other was unfit and did not act in the children’s best interests. 

Thomas adduced testimony from Sloup and other witnesses showing that Sloup enrolled the boys 

in kindergarten despite the boys’ preschool teacher indicating that they were not ready for 

kindergarten. The boys were initially enrolled at a private school, but left after a short time to 

attend a public school. The boys had to repeat kindergarten. Thomas attempted to demonstrate that 

Sloup’s decision to enroll the boys in kindergarten was indicative of her poor decisionmaking as 

the parent who had final say on all decisions affecting the children’s best interests; however, Sloup 
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testified that she thought it was beneficial for the boys to begin kindergarten, even though they had 

to repeat it.

Thomas also indicated that Sloup did not notify him of the children’s doctor’s appointments 

or when their medications changed, and did not include him in her decision to enroll the children 

at various daycare facilities. Thomas elicited testimony from the children’s nanny that on two 

separate occasions she arrived at Sloup’s house and Sloup was not responsive and had low blood 

sugar due to her diabetes. Sloup denied the assertion and testified that she was never unresponsive 

when the nanny arrived. Thomas also attempted to show that the children were not safe while in 

Sloup’s care because their daughter suffered a hairline fracture of her wrist either at daycare or at 

Sloup’s house, and Sloup did not seek medical attention for her.

Thomas testified regarding numerous doctor appointments of which Sloup did not inform 

him, including hernia surgery for one of the boys. Thomas also stated that when Sloup took the 

children out of the state for a vacation she only informed him the day of the trip that she was taking 

them “south.” Thomas indicated that he did not believe the children should spend 10 or 11 hours 

a day at daycare, school, or an after-school program, which they did while Sloup was at work due 

to her commute. Additionally, Thomas testified that on one occasion Sloup told him to “play in 

traffic,” which he understood to mean that he should kill himself, and on another occasion, Sloup 

told the children that he should inhale poisonous gas.

Prior to the hearing, Thomas hired a private investigator to investigate and report on the 

safety and status of the children while in Sloup’s care. The private investigator stated that he was 

hired because Thomas was concerned with Sloup’s driving habits and the dangers associated with 

her driving. The investigator stated that he initially intended to follow Sloup’s vehicle but she 

drove too fast for him to keep up, so he placed a global positioning system (GPS) device on her 

vehicle. Thomas was hesitant about using the GPS device, but eventually agreed to it. The GPS 

device informed the investigator that Sloup drove in excess of the speed limit every time she 

operated the vehicle; however, Sloup stated that she never received a speeding ticket. After 

approximately 6 weeks of use, Sloup discovered the GPS device and reported it to law 

enforcement.

Sloup testified, either as a witness called by Thomas or in her case-in-chief, regarding the 

difficulty she had in communicating with Thomas. She testified that she stopped notifying Thomas 

of doctor’s appointments because when she did notify him, he would respond with a rude or 

derogatory comment. She also indicated that she informed Thomas of the various preschool 

providers she was considering, and invited him to attend interviews with them, but he refused to 

attend or discuss the decision because he did not think the children should attend preschool. Sloup 

also testified regarding a text message she received from Thomas in which he called her derogatory 

names.

Sloup stated that Thomas was often behind on paying his share of the children’s daycare 

fees, and he indicated that he did not believe he should pay because he did not agree with her 

decision to send the children to daycare. Additionally, Thomas often picked up the children from 

preschool before his parenting time was scheduled to begin, and failed to timely return them. Sloup 

indicated that she did not believe the children were safe at Thomas’ house due to their close 

proximity to bulls and cows, and because Thomas allowed them on or near farm machinery. Sloup 
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testified that she was concerned with Thomas’ approach to racial diversity and feared that his racial 

views were being passed to the children.

Following the hearing, the district court denied Thomas’ request for sole physical and legal 

custody of the children. The district court determined that, while neither Thomas nor Sloup were 

perfect parents, they both loved the children and wanted to do what was right for them. The district 

court concluded that Thomas failed to demonstrate that a material change of circumstances had 

occurred since the parenting plan was agreed upon such that the court could grant the relief he 

requested.

The court did find, however, that Sloup established that a material change of circumstances 

occurred, in that the parties were unable to communicate with one another as mature adults. The 

court further found that it was in the best interests of the children to grant Sloup sole legal custody 

of the children, and modified Thomas’ parenting time to every other weekend from Friday at 5 

p.m. until Sunday at 6 p.m. and every Wednesday from 5 p.m. until 7:30 p.m. Thomas was also 

granted 4 weeks of summer parenting time, to be exercised in 2 blocks of 2 weeks each, separated 

by 2 weeks (increasing his summer parenting time by 2 weeks). His holiday time was to continue 

as before.

The court denied Sloup’s request for additional child support because there was not a 

10-percent or more upward variation in Thomas’ current obligation. The court determined that 

although both parties were in contempt of court for failing to abide by the parenting plan, each had 

purged themselves of contempt by virtue of their subsequent behavior. Finally, the court awarded 

Sloup $10,000 in attorney fees to be paid by Thomas. Thomas timely appealed.

ASSIGNMENTS OF ERROR

Thomas argues on appeal, renumbered and restated, that the district court abused its 

discretion in (1) declining to modify physical custody of the children and grant him sole physical 

custody, (2) modifying joint legal custody of the children to award Sloup sole legal custody, and 

(3) reducing his parenting time to four overnight visits per month.

STANDARD OF REVIEW

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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). 

Parenting time determinations are also matters initially entrusted to the discretion of the trial court, 

and although reviewed de novo on the record, the trial court’s determination will normally be 

affirmed absent an abuse of discretion. See Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 

(2014).

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. Schrag v. Spear, supra. A judicial abuse of discretion requires that the reasons or rulings 

of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right 

and a just result. Id.
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ANALYSIS

Refusal of Sole Physical Custody to Thomas.

Thomas argues that the district court abused its discretion by failing to award him sole 

physical custody of the children. We disagree.

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. Schrag v. Spear, supra. A material change in circumstances means the 

occurrence of something which, had it been known to the court at the time of the initial decree, 

would have persuaded the court to decree differently. Id. The party seeking modification of child 

custody bears the burden of showing a change in circumstances. Id.

Here, the district court determined that Thomas did not establish that a material change of 

circumstances had occurred since the initial parenting plan was instituted. In its order the court 

recognized that Thomas alleged a material change in circumstances had occurred in that Sloup was 

not acting in the best interests of the children, refused to discuss major decisions involving the 

health and welfare of the minor children, did not keep a constant schedule and placement of the 

minor children, placed the boys in kindergarten despite recommendations that they were not ready, 

was not addressing her health concerns, and that the minor children wanted to spend more time 

with Thomas. The district court noted that “[Sloup] is not a perfect parent; neither is [Thomas].”

The court then found that there was not a material change in circumstances such that a change of 

physical custody was warranted.

After reviewing the record, we find that the district court did not abuse its discretion in 

determining that Thomas failed to demonstrate that a material change of circumstances had 

occurred showing that Sloup is unfit or that the best interests of the children require modification 

of the children’s physical custody. While Thomas did not agree with Sloup’s decision to enroll the 

boys in kindergarten, and preferred that the children remain with him and not in daycare, Sloup’s 

decision to the contrary does not make her unfit. Although the boys repeated kindergarten, Sloup 

testified to the benefits she saw from the social interaction they received in kindergarten. As to the 

long hours in daycare, by the December 2017 hearing, Sloup had obtained employment in the 

Wahoo school district as a licensed practical nurse and was working hours more aligned with the 

children’s school day, thus alleviating much need for daycare.

As to her health issues, Sloup testified that she actively managed her diabetes, and was not 

unresponsive due to the disease at any time, contradicting Thomas’ argument that her unmanaged 

health issues created a material change of circumstances. Further, Sloup testified that when she 

would try and discuss the children’s medical issues or educational needs with Thomas she was 

often met with rude comments or Thomas was difficult to deal with.

The record refutes the assertion that any one of the reasons offered by Thomas constitutes 

a material change in circumstances showing that Sloup is unfit or that the best interests of the 

children require a change in custody. Therefore, the district court did not abuse its discretion in 

denying Thomas’ request for modification of physical custody.
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Award of Sole Legal Custody to Sloup.

Thomas also argues that the district court abused its discretion in awarding Sloup sole legal 

custody of the children. We disagree.

As indicated above, 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). Appellate 

review of joint legal custody issues has often focused on the parties’ ability to communicate. See, 

State on behalf of Maddox S. v. Mathew E., 23 Neb. App. 500, 873 N.W.2d 208 (2016); Kamal v. 

Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009) (joint decisionmaking by parents not in child’s best 

interests when parents are unable to communicate and there is level of distrust). Parents’ inability 

to communicate and make decisions together several years after the initial parenting plan was 

agreed to constitutes a material change of circumstances. See State on behalf of Maddox S. v. 

Mathew E., supra.

The district court found that the parents’ inability to communicate as mature adults 

represented a material change of circumstances. The district court’s determination is supported by 

the record. The evidence reveals that Thomas sent derogatory text messages to Sloup, accusing 

her, among other inappropriate statements, of being a bad mother. Further, Sloup testified that she 

would try and communicate with Thomas regarding the children but Thomas was rude and difficult 

to work with. Additionally, Sloup indicated at the modification hearing that she invited Thomas to 

attend interviews with preschools for the children, but Thomas did not agree with the decision to 

send the children to preschool and did not attend. Sloup also explained that Thomas would talk 

about her in a derogatory way or in a manner which made the children not want to return to her 

house.

Additionally, Thomas’ hiring of a private investigator who attached a GPS device to 

Sloup’s car further deteriorated the relationship between the parties. The court noted that 

“[Sloup’s] discovery of the tracking device did nothing to improve her already diminished level of 

trust in [Thomas], or improve the parties’ ability to communicate with one another.”

The record also reveals that Sloup did not communicate effectively with Thomas either. 

She failed to provide him with the appropriate information when she took the children out of the 

state, and failed to notify him consistently of the children’s doctor’s appointments and changes in 

their medications. She also talked derogatorily about Thomas in front of the children.

Although Thomas argues that the parties did not communicate effectively at the time the 

parenting plan was agreed to, thus, their poor communication cannot constitute a material change 

of circumstance, there is nothing in the record to support a finding that this was a circumstance of 

which the court was aware. The original parenting plan was adopted as the result of a stipulation; 

the ability of the parties to communicate was not addressed. The plan itself stated that its overriding 

purpose was “to establish, facilitate, and encourage mutual, continued and meaningful discussion 

of all major decisions regarding the children’s education, health care, physical, emotional and 

social development, and religious upbringing. . . .” Therefore, the parenting plan contemplated that 

the parties would be able to effectively coparent their children and their inability to do so was a 

material change in circumstances. A material change in circumstances means the occurrence of 
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something which, had it been known to the court at the time of the initial decree, would have 

persuaded the court to decree differently. Schrag v. Spear, supra. Thus, the district court did not 

abuse its discretion in determining that the parents’ inability to communicate with one another as 

mature adults represented a material change in circumstances.

Before custody may be modified based upon a material change in circumstances, it must 

be shown that the modification is in the best interests of the child. Schriner v. Schriner, 25 Neb. 

App. 165, 903 N.W.2d 691 (2017). In determining a child’s best interests in custody and visitation 

matters, factors to be considered include the relationship of the minor child to each parent; the 

desires and wishes of the minor child; the general health, welfare, and social behavior of the minor 

child; and credible evidence of abuse. See Neb. Rev. Stat. §§ 42-364(2) and 43-2923 (Reissue 

2016).

Additionally, 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 satisfy the educational needs of the child. Schrag v. 

Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

The district court found that granting Sloup sole legal custody of the children was in the 

children’s best interests. The record indicates that Sloup arranged doctor’s appointments for the 

children, found daycare for the children, and enrolled the children in school. It is clear from the 

record that the children are generally healthy, happy, and love both parents. However, the parents’

inability to agree on decisions regarding the children’s education and daycare providers, and 

inability to effectively communicate with one another is not in the children’s best interests.

Sloup testified that Thomas did not agree with her decision to enroll the children in 

preschool, and therefore did not pay his share of daycare fees until just 2 days before a scheduled 

pretrial hearing. Likewise, Thomas did not participate in interviews with various preschools for 

the children. Although Sloup did enroll the children in kindergarten before they were ready, she 

had sound reasons for believing that the children would succeed in kindergarten, even though they 

had to attend kindergarten twice. We note that the court’s order modifying the parenting plan did 

not eliminate paragraph 23, which requires the parents to discuss significant matters regarding the 

children in areas such as health, medical, school, and behavioral or discipline issues. Thus, while 

we find no abuse of discretion in awarding Sloup sole legal custody of the children, she is still 

obligated to discuss significant matters affecting the children with Thomas.

After reviewing the record, we find that, when they are able to communicate with one 

another, the parents have been unable to agree on decisions regarding the children. The hostility 

between Thomas and Sloup and their inability to coparent the children is detrimental to the 

children’s best interests. Consequently, the district court did not abuse its discretion in awarding 

sole legal custody to Sloup.
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Modification of Thomas’ Parenting Time.

Thomas asserts that the district court erred in reducing his parenting time from eight 

overnight visits a month to four, and granting him just 21⁄2 hours of parenting time each 

Wednesday. We first note that Thomas is incorrect in his assertion that the district court granted 

him visitation with the children only on the Wednesday of the week in which he did not have the 

children on the weekend. Rather, the district court granted him visitation every Wednesday from 

5 p.m. until 7:30 p.m. Regardless of Thomas’ misinterpretation, we find that the district court 

abused its discretion in reducing Thomas’ parenting time.

The right of parenting time is subject to continuous review by the court, and a party may 

seek modification of a parenting time order on the grounds that there has been a material change 

in circumstances. See Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997). The trial 

court has discretion to set a reasonable parenting time schedule. See Maranville v. Dworak, 17 

Neb. App. 245, 758 N.W.2d 70 (2008). The determination of reasonableness is to be made on a 

case-by-case basis. Id. The best interests of the children are the primary and paramount 

considerations in determining and modifying parenting time. Fine v. Fine, 261 Neb. 836, 626 

N.W.2d 526 (2001). Parenting time relates to continuing and fostering the normal parental 

relationship of the noncustodial parent. Id.

A visitation schedule is generally considered reasonable if it is one that provides a 

satisfactory basis for preserving and fostering a child’s relationship with the noncustodial parent. 

Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). There is not a certain mathematical 

amount of visitation that is considered reasonable; the determination of reasonableness is to be 

made on a case-by-case basis. Id.

Appellate courts have affirmed the modification of a non-custodial parent’s visitations with 

the children to minimize opportunities for ongoing conflict, see Schriner v. Schriner, 25 Neb. App. 

165, 903 N.W.2d 691 (2017); if the children’s safety was at risk, see Fine v. Fine, 261 Neb. 836, 

626 N.W.2d 526 (2001); or if a parent attempts to detrimentally interfere with the relationship 

between the child and other parent, see Mark J. v. Darla B., 21 Neb. App. 770, 842 N.W.2d 832 

(2014). In contrast, the Nebraska Supreme Court has affirmed a district court’s denial of a motion 

to modify parenting time not only due to the absence of a material change of circumstances, but 

because it was not shown to be in the child’s best interest. See State on behalf of Jakai C. v. Tiffany 

M., 292 Neb. 68, 871 N.W.2d 230 (2015).

In State on behalf of Jakai C. v. Tiffany M., supra, the district court noted that the parents 

failed to appropriately communicate in regard to the child, there were numerous violations of the 

parenting plan, and the mother’s negative comments about the father were concerning. However, 

the court further found no evidence was produced to show how this adversely affected the child. 

The Supreme Court agreed. Likewise, we find in the present case an absence of evidence to support 

a decision that a reduction in Thomas’ parenting time was in the children’s best interest.

Sloup sought a modification of parenting time on the bases that Thomas refused to respect 

her boundaries and the parties could not effectively communicate. Although the district court 

identified these as a basis for awarding legal custody to Sloup, it did not indicate any findings to 

support why they should serve as a basis for reduction in parenting time or how such a reduction 
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was in the children’s best interests. The district court indicated that “the best interests of the 

children are the primary and paramount considerations determining and modifying parenting 

time,” but the court’s modification order does not identify any factors specifically related to actual 

parenting skills which support its conclusion.

Upon our de novo review of the record, we find that the record does not support a reduction 

of Thomas’ parenting time. It appears that the children enjoyed spending time with Thomas and 

were eager to see him on his parenting days. Further, the children often did not want to return to 

Sloup at the conclusion of Thomas’ parenting time. Moreover, there is nothing in the record 

indicating that Thomas is an unfit parent or does not act in the children’s best interests. Although 

Sloup asserted that Thomas exposes them to dangerous farm machinery or farm animals, the record 

does not support her assertion of danger. Thomas was present with the children in each situation 

that Sloup alleged to be dangerous, and there is no indication that the children were at risk in any 

of the situations.

Additionally, under the district court’s modification of Thomas’ parenting time, his 

face-to-face exchanges with Sloup increase. Under the original parenting plan, Thomas was to pick 

the children up from school or daycare on Thursday, and then return the children to school or 

daycare on Monday morning. However, under the court’s modified plan, Thomas is to pick the 

children up at 5 p.m. on Friday, and return them to Sloup on Sunday evening. With the acrimonious 

relationship between the parents, an increase in face-to-face exchanges could lead to additional 

conflict between the two. Thus, the record does not support the district court’s decision to reduce 

Thomas’ parenting time on the basis of minimizing opportunities for ongoing conflict as in 

Schriner v. Schriner, supra.

Because the district court’s decision to reduce Thomas’ parenting time is not supported by 

the evidence and is not shown to be in the children’s best interests, we find that the district court 

abused its discretion in reducing Thomas’ parenting time. We therefore reverse the portion of the 

court’s order and reinstate the original parenting plan that provided for two separate periods of 

visitation. Thus, from November 2 until April 14, and from June 2 until September 14, Thomas 

shall have parenting time every other weekend from after school on Thursday until Monday 

morning until 8 a.m. On the week that he does not have the children, Thomas will have parenting 

time on Thursday from 12 p.m., or after school if school is in session, until 8:30 p.m. From April 

15 until June 1, and from September 15 until November 1, Thomas will have parenting time from 

Saturday at 5 p.m. until Sunday at 8 p.m. Under this schedule Thomas will have parenting time 

every Thursday from 12 p.m., or after school if school is in session, until 8:30 p.m. Because Sloup 

did not cross-appeal the district court’s decision to award Thomas additional summer parenting 

time, we leave intact the court’s modified summer parenting schedule granting Thomas an 

additional 2 weeks of parenting time in the summer.

CONCLUSION

We determine that the district court did not abuse its discretion in denying Thomas’ request 

for sole physical custody of the children or in granting Sloup sole legal custody of the children. 

However, the district court abused its discretion in reducing Thomas’ parenting time. We therefore 

affirm the district court’s order, but we reverse that portion reducing Thomas’ parenting time to 
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four overnight visits per month and reinstate the parties’ parenting time schedule contained in the 

original parenting plan as set forth above.

AFFIRMED IN PART, AND IN PART REVERSED.