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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE ON BEHALF OF TYLER H., JR. V. TYLER H.

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).

STATE OF NEBRASKA ON BEHALF OF TYLER H., JR., A MINOR CHILD, APPELLEE,

V.

TYLER H., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT,

AND JESSICA B., THIRD-PARTY DEFENDANT, APPELLEE.

Filed January 12, 2021. No. A-20-374.

Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.

Sean M. Reagan and Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for appellant.

No appearance for appellee State of Nebraska.

No appearance for appellee Jessica B.

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

ARTERBURN, Judge.

INTRODUCTION

Tyler H. appeals from an order of the district court for Lancaster County, which order 

determined paternity, custody, parenting time, and child support for Tyler and Jessica B.’s son, 

Tyler H., Jr. (TJ). On appeal, Tyler challenges the district court’s decision to award the parties 

with joint legal and physical custody of TJ. Tyler also challenges the parenting plan created by the 

district court and asserts that the court created a “conditional” order when it stated that TJ starting 

school would constitute a material change of circumstances which may warrant a change in 

custody. For the following reasons, we affirm the order of the district court.

BACKGROUND

Tyler and Jessica were never married, but they were in a dating relationship which began 

in June 2017. Jessica became pregnant a few months after their relationship began, and she gave 
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birth to TJ in Lincoln, Nebraska, in July 2018. Tyler was present for TJ’s birth. However, at that 

time, Tyler was attending school in Ames, Iowa, in order to become a veterinarian and he had to 

return to school shortly after TJ’s birth. Tyler saw TJ whenever he returned to Lincoln during his 

breaks from school. He also saw TJ on weekends when either Jessica or Tyler’s parents would 

bring TJ to visit. Tyler and Jessica ended their relationship in December 2018. In May 2019, Tyler 

graduated from veterinary school and returned to Lincoln. Jessica and Tyler agreed at that time to 

share custody of TJ such that they each had physical custody of TJ every other week. This agreed 

upon parenting time schedule continued through the district court proceedings.

The district court proceedings were initiated in August 2018, when the State filed a 

paternity action against Tyler, seeking financial support for TJ. Subsequently, Tyler was given 

leave by the district court to add Jessica as a third-party defendant to the State’s action. Tyler then 

filed an answer and a cross-complaint. Therein, he admitted that he was TJ’s father. He then asked 

the court to award him sole legal and physical custody of TJ. However, he conceded that “this may 

be an appropriate case for joint physical and legal custody.” Jessica also filed an answer and 

cross-complaint. She too, indicated that Tyler was TJ’s father. Jessica requested that the court 

award her sole legal and physical custody of TJ subject to Tyler’s reasonable right to parenting 

time.

Trial was held on February 19, 2020. The State waived its appearance. At trial, Jessica 

testified regarding her current circumstances. In September 2019, Jessica moved to a 

three-bedroom rental home in Daykin, Nebraska, in order to be closer to her family who resides in 

Tobias, Nebraska, a town located only 7 miles away from her home in Daykin. Jessica resides with 

her three children--TJ, and a daughter and a son from a previous relationship. Jessica was recently 

awarded sole physical custody of her daughter. Jessica did not explicitly explain whether she also 

has sole physical custody of her other son, but evidence in our record suggests as such. Each of 

the three children have their own rooms in Jessica’s home and Jessica sleeps in a nonconforming 

bedroom in the basement of the home.

Prior to moving to Daykin, Jessica briefly lived with her parents in Tobias. Prior to that, 

Jessica lived in Lincoln. When TJ was born, Jessica lived in an apartment on Trenridge Road in 

Lincoln. She admitted that she fell behind in paying her rent on multiple occasions and, ultimately, 

was evicted from that apartment. After that eviction, Jessica moved to a different apartment located 

on South 31st Street. She was evicted from that apartment after only 5 months.

At the time of trial, Jessica had been employed at a Farmers Cooperative in southeast 

Nebraska for approximately 6 weeks. She worked 40 hours per week as an elevator operator in 

three different communities and earned $13.50 per hour. She will be eligible to receive benefits, 

including health insurance, after working there for a period of 6 months. Jessica indicated that her 

employment at the Farmers Cooperative is contingent on the outcome of a pending felony charge 

filed against her. Jessica also works part time for three different churches as an organist. She 

indicated that, depending on the time of year, she can make between $400 and $700 per month 

from her organist work.

Previously, Jessica worked in Lincoln for Omaha Truck Center, Inc., for approximately 6 

months. She left that job to accept her current job at the Farmers Cooperative. Her current 

employment pays her 50 cents more per hour.
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Jessica has a not insignificant criminal history. From 2010 to 2013, she was convicted of 

four felonies, including unauthorized use of a financial transaction device and three separate theft 

offenses. As a result of these convictions, Jessica was sentenced to one interval in prison and three 

separate intervals in jail. From 2012 to 2018, Jessica was convicted of seven misdemeanor 

offenses, including theft by shoplifting; second degree forgery (three times); committing fraud to 

obtain assistance; and issuing a bad check (two times). Each of Jessica’s felony and misdemeanor 

convictions were alleged to have occurred prior to Jessica giving birth to TJ. In fact, her most 

recent offense was alleged to have occurred in November 2017.

At the time of the trial, Jessica still had one outstanding charge filed against her. She was 

charged with theft by deception ($1,500 to $4,999), a Class IV felony, which was alleged to have 

occurred in March 2016. Jessica testified that she was set to enter a plea to the charge 2 days after 

the custody trial. She acknowledged that she may receive a sentence of incarceration for this 

charge.

Jessica readily admitted to her criminal history during her testimony. She explained that 

during that time in her life, she was acting “very selfish and careless.” She testified that she has 

grown a lot since committing those offenses and has learned from her experiences. In particular, 

she indicated that she knew that her actions had hurt her daughter “very bad.” Jessica testified that 

she informed Tyler of her criminal history a few months into their relationship. She told him that 

she had been in prison and told him about a felony conviction she obtained in another state. At that 

time, she did not tell Tyler about each and every one of her charges and convictions. However, 1

or 2 months into her pregnancy with TJ, she had a more detailed discussion with Tyler about the 

specifics of her criminal history. She also had a discussion about this topic with Tyler’s parents. 

Jessica told Tyler about her pending felony charge relating to the March 2016 offense almost 

immediately after her arrest in 2019.

Notwithstanding Jessica’s criminal history, she testified that she was a good mother to her 

children. She described her daily routine with the children as revolving around their needs, 

including, helping her daughter with homework after school, playing with the younger two 

children, cooking and feeding the children dinner, giving them baths and reading them books, and 

putting them to bed. Jessica explained that all three of her children share a very close relationship 

with each other. Jessica indicated that, currently her mother provides daycare for TJ and her other 

son while Jessica is at work.

Jessica expressed some concerns about Tyler, including that he had knocked her down 

during an argument and had recently called her “an arrogant bitch” in TJ’s presence. Jessica also 

expressed frustration with Tyler’s refusal to communicate with her about such things as potty

training TJ. Ultimately, however, Jessica asked that the court award the parties with joint legal and 

physical custody. She did ask that the court give her final decisionmaking authority as to TJ’s 

education. She believed that she and Tyler could work together to make other decisions on TJ’s 

behalf.

Jessica called two of her friends to testify on her behalf. Jessica Maas testified that she has 

been friends with Jessica since they were both children. Now, Maas’ daughter is friends with 

Jessica’s daughter. Maas indicated that she was aware of Jessica’s criminal history, but believed 

her to be “a loving, caring, devoted mother.”
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Melissa Hacker testified that she met Jessica when Tyler introduced them. Hacker then 

became good friends with Jessica. Hacker indicated that she was aware that Jessica had a criminal 

history, however, it was clear from her testimony that Hacker did not know the specifics of that 

history other than that Jessica had been in prison and had a felony conviction. Hacker testified that 

she believed Jessica to be a good mother. To the contrary, Hacker raised concerns about Tyler’s 

parenting. After having observed Tyler discipline his daughter, Hacker believed Tyler to have been 

“somewhat aggressive.” Hacker had also witnessed Tyler discipline someone else’s child by 

“smacking” the child in the back of the head after the child had stepped on Tyler’s boots.

Tyler testified that at the time of trial, he was living in a two-bedroom apartment in Lincoln 

with his girlfriend, Paige, and her 9-month-old son. He and Paige had been dating since March 

2019, and had lived together since October 2019. Every other week when TJ is living with Tyler, 

TJ and Paige’s infant son share a bedroom. Tyler also has a daughter from a previous marriage, 

who was 10 years old at the time of the trial. He shares custody of his daughter with his ex-wife 

such that his daughter stays with him for six overnights every 14 days during the school year and 

every other week during the summer. When he has custody of his daughter, she sleeps in a loft 

space in the apartment. Tyler testified that his daughter and TJ have a good relationship.

Tyler is currently employed as a veterinarian at Arkcare, a traveling swine veterinary clinic. 

However, Tyler explained that he was not yet a licensed veterinarian in Nebraska because he had 

just passed his board exam in December 2019 after having failed the exam on two prior occasions. 

Tyler testified that he was awaiting the processing of his application for licensure and expected to 

be licensed soon. Tyler indicated that he currently earns a salary of $46,000 per year at Arkcare, 

but receives no benefits, including either retirement benefits or health insurance. When he becomes 

a licensed veterinarian, Tyler expects his annual income will increase to $70,000. He still will not 

receive any benefits through his current employment however. During his testimony, Tyler 

admitted that prior to his graduation from school in May 2019, he provided little, if any, financial 

support for TJ. However, Tyler also indicated an inability to do so during that time.

Tyler testified at trial that he was requesting sole physical custody of TJ. He recommended 

that if he were awarded sole physical custody, that Jessica should have parenting time with TJ 

every other weekend and during alternating weeks in the summer. Tyler acknowledged that he had 

previously agreed with Jessica on a temporary joint physical custody arrangement. He did not 

testify as to any specific difficulties which arose as a result of this custody arrangement; however, 

he testified that he was unaware of Jessica’s unstable living environment and “the depth of her 

criminal history,” when he entered into the agreement.

Specifically, Tyler explained that when he agreed to share joint physical custody with 

Jessica pending these proceedings, he was unaware of her prior evictions and her numerous moves. 

Tyler testified that he had been aware that Jessica had been to prison, but he only knew of her 

being convicted of one forgery charge and one felony charge in Virginia. He discovered the rest 

of her criminal history during his preparation for the custody proceedings. Tyler expressed a 

particular concern with Jessica’s pending felony charge and whether she would be sentenced to a 

period of incarceration. He further explained that Jessica’s recent move to Daykin complicated the 

joint physical custody arrangement, as their homes were now 70 miles and approximately an hour’s 

drive apart. Ultimately, Tyler indicated that because of his concerns about Jessica’s circumstances, 

he now believed that it was in TJ’s best interests for him to have sole physical custody.
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In his proposed parenting plan, Tyler indicated that he was requesting the parties be 

awarded joint legal custody of TJ. He testified at trial that he and Jessica have been able to 

communicate, cooperate, and act in TJ’s best interests. He also believed that Jessica loved TJ and 

that TJ loved Jessica. Tyler testified that he loves TJ very much and the two of them have a good 

relationship.

Tyler testified that he “wouldn’t say that [he was] aggressive” in his discipline of his older 

daughter but that he was “firm.” He stated that he tries “very hard not to be aggressive” with her. 

He admitted to previously spanking his daughter, but denied using that form of punishment at the 

time of trial or having ever spanked TJ. Tyler testified that he now disciplines by explaining how 

to modify the child’s behavior. Tyler clarified Jessica’s friend’s testimony regarding him hitting a 

child in the back of the head. Tyler explained that the child had stomped on his foot repeatedly 

despite Tyler asking him to stop. Tyler then “flicked” the child on the forehead. Finally, Tyler 

denied ever pushing Jessica down. He explained that on one occasion during an argument, he 

tripped over some shoes and fell into Jessica, knocking both of them onto the floor. He described 

the incident as “an unfortunate circumstance” and admitted that it had scared the children.

Tyler also offered the testimony of his girlfriend, Paige, and his father, Burton. Paige 

testified that Tyler is a “great father” who is very “interactive” with his children and who helps her 

care for her young son. Paige believed that TJ had a bond with Tyler and that Tyler attends to both 

TJ’s physical and emotional needs. Upon being asked if he had an opinion of Tyler as a father, 

Burton testified that he thinks Tyler “does a very adequate job being a father.” He then agreed that 

Tyler was a “good dad.” Burton believed that TJ had a bond with Tyler.

After the trial, the district court entered an order finding that Tyler was TJ’s father and 

awarding Tyler and Jessica joint legal and physical custody of TJ. The court explained that the 

parties should continue to share physical custody of TJ such that they each have parenting time 

with TJ on a “week-on, week-off” schedule. However, the court noted that this custody 

arrangement was subject to modification when TJ started school:

It is impossible at this time to predict what will be in the minor child’s best interests once 

he is to begin school. This is especially true due to the recent instability in the living 

situation of [Jessica], her lack of steady employment, and her criminal history. Therefore, 

when the child is to begin school, it shall constitute a material change in circumstances for 

which the matter can be brought back before the Court for determination of primary 

physical custody, parenting time and support going forward.

The district court also created a provision in the event that Jessica was sentenced to a period of 

incarceration on her pending felony charge. The court indicated that if Jessica was incarcerated, 

TJ “shall remain in [Tyler]’s physical custody until she is released.” Given the parties’ financial 

situation and the joint custody arrangement, the district court did not require either Tyler or Jessica 

to pay child support.

Tyler appeals from the district court’s order here.
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ASSIGNMENTS OF ERROR

On appeal, Tyler assigns as error the district court’s decisions to award joint legal and 

physical custody of TJ to the parties, to divide the parties’ parenting time such that each parent has 

TJ every other week, and to create a “conditional” custody determination.

STANDARD OF REVIEW

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

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

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

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

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

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

In such de novo review, when the evidence is in conflict, 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.

ANALYSIS

CUSTODY

Under the Parenting Act adopted by the Nebraska Legislature, the concept of child custody 

encompasses both “legal custody and physical custody.” Neb. Rev. Stat. § 43-2922(7) (Reissue 

2016). On appeal, Tyler challenges the district court’s decision to award the parties with joint legal 

and joint physical custody. He asserts that he should have been awarded sole legal and physical 

custody of TJ given Jessica’s unstable housing situation, her criminal history, including her 

pending felony charge, and her recent decision to uproot all three of her children from Lincoln to 

Daykin.

When custody of a minor child is an issue, child custody is determined by parental fitness 

and the child’s best interests. See Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). When 

both parents are found to be fit, the inquiry for the court is the best interests of the children. Id. 

Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides as follows:

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 and:

(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 desires 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.
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Other relevant factors a court may consider in determining a child’s best interests include 

general considerations of 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 the 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; and 

many other factors relevant to the general health, welfare, and well-being of the child. Maska v. 

Maska, supra.

Custody of a minor child may be placed with both parents on a joint legal custody or joint 

physical custody basis, or both, (a) when both parents agree to such an arrangement in the parenting 

plan and the court determines that such an arrangement is in the best interests of the child or (b) if 

the court specifically finds, after a hearing in open court, that joint physical custody or joint legal 

custody, or both, is in the best interests of the minor child regardless of any parental agreement or 

consent. Neb. Rev. Stat. § 42-364(3) (Reissue 2016).

LEGAL CUSTODY

“Legal custody” focuses entirely on decisionmaking authority and is defined as “the 

authority and responsibility for making fundamental decisions regarding the child’s welfare, 

including choices regarding education and health.” Neb. Rev. Stat.§ 43-2922(13) (Reissue 2016). 

In his brief on appeal, Tyler argues that he should have been awarded sole legal custody of TJ 

because he “is the proper parent to make fundamental decisions” for TJ, as Jessica has 

demonstrated an instability in both her housing and her choices to engage in criminal activity. 

Brief for appellant at 16. Tyler also asserts that he and Jessica are unable to effectively 

communicate with each other.

We first note that, although in his cross-complaint Tyler indicated he was seeking sole legal 

custody of TJ; at trial, Tyler did not specifically testify that he should be awarded sole legal 

custody. To the contrary, in Tyler’s proposed parenting plan, which was offered as an exhibit 

during the trial, Tyler indicated that he was now requesting joint legal custody of TJ. Moreover, 

contrary to Tyler’s assertions in this appeal that he and Jessica do not communicate well, at trial, 

he testified that he and Jessica have been able to communicate and cooperate with each other in 

the interest of TJ. Tyler testified that he and Jessica have been able to set aside their differences in 

order to coparent TJ.

At trial, Jessica also requested that the parties be awarded joint legal custody of TJ. She 

specifically testified that she and Tyler had been able to work together to make medical decisions 

on behalf of TJ, including deciding to change his pediatrician. She did request that the court 

consider awarding her final decisionmaking authority as to TJ’s education. She also expressed 

some hesitation about Tyler’s willingness to communicate with her on more routine issues, like 

potty training TJ.

Given that at trial both Tyler and Jessica asked to be awarded joint legal custody of TJ and 

given the evidence that they have been able to work together to make decisions that are in TJ’s 

best interests, we do not find that the district court abused its discretion in awarding the parties 

joint legal custody.
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PHYSICAL CUSTODY

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

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

significant periods of time.” § 43-2922(20). As such, although the Parenting Act does not speak in 

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

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

and “continuous” parenting time over the child. See State on behalf of Kaaden S. v. Jeffery T., 303 

Neb. 933, 932 N.W.2d 692 (2019). “Joint physical custody” as defined by the Parenting Act means 

“mutual authority and responsibility of the parents regarding the child’s place of residence and the 

exertion of continuous blocks of parenting time by both parents over the child for significant 

periods of time.” § 43-2922(12).

On appeal, Tyler asserts that he should have been awarded sole physical custody of TJ 

because he “provides consistency and stability in terms of residence, employment, safety, and lack 

of criminal history.” Brief for appellant at 20. Tyler also argues that an award of joint physical 

custody was not appropriate as a result of Jessica’s recent move from Lincoln to Daykin. Upon 

our review of the evidence presented at trial, we cannot say that the district court abused its 

discretion in awarding the parties joint physical custody of TJ.

At trial, Tyler repeatedly indicated that he was seeking sole physical custody of TJ only 

because of Jessica’s criminal history, including her pending felony conviction, and her recent move 

from Lincoln to Daykin. Outside of these two concerns, Tyler was unable to identify any problems 

with Jessica’s parenting of TJ. By the time of trial, the parties had been sharing custody of TJ on 

a week-on, week-off basis for approximately 9 months. Tyler did not testify as to any problems in 

this temporary custodial arrangement. In fact, Tyler testified that he knows that Jessica loves TJ 

and that TJ loves and needs Jessica. Tyler indicated that when TJ returns to his home after spending 

the prior week with Jessica, TJ is always generally healthy and well behaved. Tyler did not provide 

any information about current issues related to the distance between the parties’ homes.

We are cognizant of Tyler’s concerns related to Jessica’s criminal history. However, the 

evidence presented at trial revealed that Jessica’s offenses, including the offense still pending, 

were all committed prior to her giving birth to TJ. Additionally, while there was conflicting 

evidence about how much Tyler knew about Jessica’s criminal history prior to TJ’s birth, it is clear 

that at a minimum, he knew that she had been convicted of at least two felonies and had been to 

prison. Despite this knowledge, Tyler permitted Jessica to be TJ’s sole care provider for the first 

11 months of his life while Tyler was away at school. Additionally, despite Tyler’s knowledge of 

at least portions of Jessica’s criminal history, Tyler agreed to share custody of TJ with Jessica upon 

his return to Lincoln after graduating from school. And, as we discussed above, Tyler did not 

testify as to any specific problems the parties have incurred as a result of the temporary custody 

arrangement.

While Tyler raises a particular concern with Jessica’s pending felony conviction and 

whether her plea to that offense will result in her serving time in jail, we note that the district court 

addressed this issue in its order. After the court awarded the parties with joint physical custody of 

TJ, it stated: “In the event [Jessica] is incarcerated on her pending charge, the minor child shall 
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remain in [Tyler]’s physical custody until she is released. On the first Sunday following any release 

from incarceration, [Jessica]’s parenting time shall resume.”

The evidence in our record indicates that TJ is currently receiving appropriate care from 

both Tyler and Jessica. There is nothing in the record to suggest that the agreed upon temporary 

joint custody arrangement was not working or that it is not in TJ’s best interests to continue with 

that arrangement. Based upon our review of this evidence, we simply cannot say that the district 

court abused its discretion in awarding the parties with joint physical custody of TJ.

PARENTING PLAN

Tyler also assigns as error that the district court abused its discretion in entering a parenting 

plan which gave each party parenting time with TJ every other week. However, Tyler’s argument 

regarding this assigned error is primarily a restatement of his assertion that the district court erred 

in awarding the parties joint physical custody of TJ. Tyler states, “An award of primary physical 

custody to [Tyler] would have been the appropriate allocation of parenting time.” Brief for 

appellant at 23.

To the extent that Tyler also generally asserts that the parenting plan is an abuse of 

discretion because it requires too much traveling for TJ, as he will have to be in the car for the 

70-mile trip between Lincoln and Daykin each week, Tyler did not testify as to any problems with 

this travel arrangement at trial. Jessica testified that she had moved from Lincoln in August 2019. 

Accordingly, by the time of the trial, TJ had been traveling back and forth from his parents’ homes 

for more than 6 months. Tyler did not testify as to any issues with TJ traveling between homes 

every week during this 6-month period. Moreover, in his brief on appeal, Tyler fails to suggest a 

different allocation of parenting time pursuant to a joint custody arrangement. Given our finding 

above that there was no abuse of discretion in awarding the parties joint physical custody of TJ 

and given Tyler’s failure to suggest a different parenting plan, we affirm the decision of the district 

court which provided each party parenting time with TJ every other week.

NOT A CONDITIONAL ORDER

In his brief on appeal, Tyler asserts that the district court failed “to make a permanent 

custody determination” when it indicated that the current joint custody order could be revisited 

when TJ reaches school age. Brief for appellant at 25. Tyler further asserts that the district court’s 

custody order was a “conditional order” because “it leaves to speculation and conjecture what its 

final affect may be.” Id. at 26.

The district court’s order granting the parties joint physical and legal custody of TJ is not 

a “void” conditional order as Tyler suggests. A conditional judgment is one that purports to be 

final but that is dependent upon the occurrence of uncertain future events. Strunk v. 

Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006). Here, the district court awarded the parties 

with joint physical and legal custody of TJ effective immediately after the entry of its April 2020 

order. The court’s custody order is not dependent upon the occurrence of any uncertain future 

event. To the contrary, the district court expressly declined to enter a conditional order when the 

court indicated that it would not presently address TJ’s custody when he reached school age 

because the court could not predict what will then be in TJ’s best interests.
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TJ reaching the age of five and beginning school are not uncertain future events. As such, 

the district court certainly could have created an alternative custody arrangement addressing that 

time period as requested by Tyler. However, we do not find that under the facts of this case, the 

court abused its discretion in declining to enter such a future schedule. The question of what will 

be in TJ’s best interests at the time he reaches school age is essentially unknown. By the time TJ 

reaches school age, the parties will have been exercising the joint physical and legal custody 

arrangement for more than 3 years. It would be very difficult for the district court to predict how 

that arrangement will affect TJ. Furthermore, the parties’ lives before and after TJ’s birth involved 

frequent and significant changes, and it is reasonable to suspect that their circumstances could be 

different in 3 years. In particular, the district court will have more accurate information regarding 

Jessica’s ability to maintain some stability in her housing and employment situation and whether 

she has continued to stay out of legal trouble. Similarly, the district court will know more about 

Tyler’s work situation after having passed his examinations and becoming a licensed veterinarian. 

The court will also be able to determine the stability of Tyler’s relatively new relationship with his 

live-in girlfriend. It is also possible that by the time TJ reaches school age, the parties may again 

both reside in Lincoln or may reside even further apart than they do now. Under the circumstances 

of this case, we do not find that the district court abused its discretion in reserving the issue of 

school-age custody and parenting time for future determination.

To the extent that Tyler argues that the district court’s order violates the general rule that a 

change in circumstances which was known by the district court when the original decree was 

entered does not constitute a material change in circumstances for purposes of modification of the 

decree, we disagree with such assertion. The intent underlying that rule is that a proceeding to 

modify a decree is not a retrial of the original case nor a review of the original decree. See Wagner 

v. Wagner, 224 Neb. 155, 396 N.W.2d 282 (1986). The phrase “change of circumstances” should 

not be mechanically construed. Marez v. Marez, 217 Neb. 615, 350 N.W.2d 531 (1984).

While the district court was aware that TJ will reach school age in a few years, it essentially 

reserved ruling on what custody order or parenting time schedule will be in TJ’s best interests at 

that time. Under these circumstances, addressing the issue in a future modification proceeding will 

not constitute “a retrial of the original case [or] a review of the original decree.” Wagner v. Wagner, 

224 Neb. at 157, 396 N.W.2d at 283. To hold otherwise would be to apply the phrase “change of 

circumstances” mechanically and in a manner contrary to the rule’s purpose. As we explained 

above, given the parties’ situations, the court acted reasonably in reserving the issue of school-age 

custody and parenting time.

Tyler also asserts that by failing to make a determination regarding custody of TJ when he 

reaches school age, the district court imposed a further financial burden on the parties. However, 

the current parenting plan adopted by the district court contains provisions which would enable 

the parties to minimize any future court costs or attorney fees they may incur when addressing 

changes to custody and the parenting time schedule when TJ reaches school age. The plan provides 

that

[t]o resolve future changes or conflicts regarding parenting functions, parenting time, or 

this Plan the parents shall first seek solutions through mutual agreement, without the need 

for judicial intervention, . . . and if unsuccessful then through the mediation process 

outlined in the Nebraska Parenting Act, prior to resorting to the court system.
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Although the parenting plan requires court-approval before any modifications to the plan will be 

incorporated into a court order, the parties will incur little to no expense if they are able to resolve 

any necessary changes to TJ’s custody or the parenting time schedule through mutual agreement.

CONCLUSION

For the foregoing reasons, we conclude that the district court did not abuse its discretion in 

granting the parties joint legal and physical custody of TJ or in entering a parenting plan providing 

each party with parenting time every other week. We also conclude that the court did not err in 

failing to decide custody of TJ when he reaches school age.

AFFIRMED.