IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL 

(Memorandum Web Opinion)

POESSNECKER V. ZEMAN

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).

PAMELA J. POESSNECKER, APPELLEE,

V.

MICHAEL P. ZEMAN, APPELLANT.

Filed January 27, 2015. No. A-14-651.

Appeal from the District Court for Hall County: JAMES D. LIVINGSTON, Judge. Affirmed 

in part, and in part reversed and remanded with directions.

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, P.C., L.L.O., for 

appellant.

No appearance for appellee.

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

MOORE, Chief Judge.

Michael P. Zeman appeals from an order of the district court for Hall County, Nebraska, 

which denied his application to modify custody of his son Tyler. He also asserts that the district 

court erred when it reduced his parenting time. We affirm the district court’s denial of Michael’s 

application to modify custody, but we reverse the portion of the order that modified Michael’s 

parenting time and remand with directions to reinstate the parenting time afforded Michael in the 

previous orders. 

FACTUAL BACKGROUND

Michael and Pamela J. Poessnecker are the parents of a son, Tyler, born in 2003. 

Following a paternity action, the district court entered an order on March 10, 2006, in which it 

awarded the care, custody, and control of Tyler to Pamela. Michael was awarded the following 

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parenting time: (a) every other weekend from 5:00 p.m. Friday to 5:00 p.m. Sunday; (b) every 

Monday and Thursday of each week from 5:30 p.m. until 7:30 p.m.; and (c) holiday visitation 

pursuant to Wilson v. Wilson, 224 Neb. 589, 399 N.W.2d 802 (1987). The court also ordered 

Michael to pay child support to Pamela, to pay one-half of Tyler’s child care expenses, and to 

provide health insurance for Tyler. 

Both parties later moved to modify the paternity order. Following the parties’ oral 

stipulation, the court entered an order on April 3, 2012. The court’s order stated that a material 

change in circumstances had occurred with regard to parenting time since the 2006 order. The 

court awarded Michael extended summer parenting time for 14 consecutive days in both June 

and July beginning in 2012. 

On March 13, 2013, Michael filed a complaint for modification in which he sought 

primary physical custody of Tyler and a corresponding reduction in his child support obligation. 

Michael alleged the following reasons to support his claim that a material change in 

circumstances had occurred: (1) Tyler’s living situation with Pamela was substandard; (2) Tyler 

had lived in multiple locations with Pamela since the 2012 modification order; (3) Pamela had 

lived with multiple different persons since the modification order; and (4) the custody 

arrangement in place at the time had caused Tyler difficulties in school and in his development. 

On July 15, 2013, in response to Michael’s motion for temporary orders, the district court 

entered an order which granted Michael and Pamela shared custody of Tyler. The order approved 

the parties’ agreement which provided that they would alternate custody of Tyler on a 7-day 

basis, Sunday to Sunday, during Tyler’s summer break from school. During the school year, 

Pamela would have custody every Monday until Wednesday morning, Michael would have 

custody from Wednesday morning until Friday morning, and the parties would alternate custody 

every weekend. 

Prior to trial, the court ordered the parties to engage in mediation. On January 6, 2014, 

the parties attended mediation and reached an agreement as to Tyler’s “visitation.” Specifically, 

the agreement stated that Pamela and Michael would share physical custody of Tyler. Each party 

would have custody of Tyler on an alternating 7-day schedule with the exchanges to take place 

on Sunday evenings. Both Pamela and Michael signed this agreement. 

On June 19, 2014, the district court held a trial on Michael’s complaint. At the outset of 

the trial, the court interviewed Tyler in chambers. During this interview, Tyler spoke about his 

experience living with each of his parents. Tyler stated that he did not like the 50/50 parenting 

arrangement because he did not get to see his mother as much as he liked. Tyler requested that 

the court order the parenting schedule to return to “the way it was a long time ago”. While he 

could not recall the specifics of that schedule, Tyler stated that he did not enjoy the 6 days away 

from either parent. He also indicated the switching back and forth that was necessary with the 

50/50 arrangement was hard on him. 

Tyler’s school records were admitted into evidence at trial. Tyler generally receives good 

grades, but he is on an individualized education plan for speech therapy. Additionally, a number 

of teacher reports state that Tyler has “meltdowns” and becomes easily frustrated when he is not 

able to think or do something quickly. Tyler has been diagnosed with ADHD and has taken 

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medication for the disorder. Pamela has been the parent who has attended to Tyler’s educational 

and medical needs. Pamela has also arranged for counseling for Tyler. 

Michael is employed as a welder and has a work schedule of 7 a.m. to 5:30 p.m. Monday 

through Friday. If he has parenting time with Tyler while he is working, his girlfriend, Deanna 

Orlando, helps provide for Tyler’s care. Orlando also works full-time and has a work schedule 

that is similar to Michael’s. When neither Michael nor Orlando is able to provide for Tyler’s 

care, Tyler stays at Michael’s residence alone. Michael testified that Tyler always has access to a 

cellphone while he is at home alone and they have discussed what Tyler should do in the case of 

an emergency. During his testimony, Michael testified that he believed Tyler was of sufficient 

maturity to stay home alone. 

Michael and Orlando have been in a relationship for approximately 6 years, although they 

have separated a few times during this period. They currently live together in the basement of a 

home in Grand Island which Michael rents. Orlando had frequently stayed overnight with 

Michael prior to moving into his residence, but officially moved into the home approximately 

two weeks prior to trial. Michael and Orlando sleep in the same bedroom while Tyler has his 

own room in this residence.

Because of his third DUI conviction in 2007, Michael has had his driver’s license 

suspended for 15 years. At the time of trial, Michael believed that he had 8 years remaining on 

that suspension. Michael stated that he has never driven during the suspension. To get himself to 

work and Tyler to school, Michael relies on Orlando to drive. When Orlando is not able to 

provide transportation, Michael rides his bike or takes a taxi. Tyler also takes a taxi home from 

school when there is no other available transportation while Michael has parenting time. Michael 

stated that “everybody in the cab company knows Tyler” and the family’s situation. 

During his testimony, Michael was critical of the care Pamela had provided to Tyler. 

Specifically, Michael emphasized that Pamela had moved the family numerous times during the 

previous two years and he believed that some of Tyler’s living conditions were substandard. 

Michael also criticized Pamela for taking Tyler off his ADHD medication without a doctor’s 

recommendation. Michael believed that Tyler should remain on the medication and they should 

further consult with the doctor as to how to remove Tyler from it.

Pamela acknowledged that she had to move numerous times since 2012. She testified that 

her living situations since 2012 have included a few months in a friend’s basement, two separate 

periods of time in the home of the mother of an ex-boyfriend, a period of time in an apartment 

from which she was evicted for falling behind on rent, and a few weeks living with Michael. 

During this period of numerous moves, Tyler did not always have his own bedroom; he had to 

share with his teenage brother on occasion and once shared a bedroom with both his brother and 

his mother while they stayed at the home of one of Pamela’s friends. In September 2013, Pamela 

was able to purchase a trailer home in Doniphan in which Tyler and his brother have their own 

bedrooms. Pamela acknowledged that her life was in chaos during this period of constant 

moving, but she contended that it did not negatively affect Tyler. Pamela testified that her life 

has now stabilized and both of her children were able to stay at their same schools.

At the time of trial, Pamela was unemployed. Her previous employment was as a waitress 

and bartender at a bar at Fonner Park during horse racing season. Pamela testified that she works 

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at Fonner Park during every racing season, which extends from approximately January to May. 

In addition to this seasonal employment, Pamela testified that she has worked several odd jobs 

which included cleaning homes and picking up irrigation pipe. Pamela admitted that she is 

capable of working a full-time job at minimum wage and she testified that she had enrolled in 

classes to get her GED. 

Pamela also testified that she believed Tyler’s best interests required that she maintain 

sole custody. She indicated that she has always been able to provide for Tyler and believed that 

Tyler should not be left alone at home. Pamela further testified that she felt as though she had no 

option but to sign the mediation agreement because she and Michael had spent 4 or 5 hours with 

the mediator and had gotten nowhere. Pamela claimed that there was nothing in the mediation 

agreement which she had requested.

Testimony at trial also revealed that Michael and Pamela have difficulty communicating. 

Pamela claimed that Michael should allow her to take Tyler during Michael’s parenting time 

while he is at work and Tyler is at home alone. Pamela testified that she would often contact 

Michael to determine whether he would allow her to have this extra time with Tyler. Michael 

characterizes Pamela’s contact with him much differently. He testified that Pamela constantly 

contacts him during his parenting time with Tyler. In fact, Michael testified that during one week 

Pamela sent him 131 text messages. Michael obtained a harassment protection order against 

Pamela regarding her telephone contact.

On July 14, 2014, the district court entered an order awarding the parties joint legal 

custody of Tyler and Pamela with sole physical custody. In reaching this decision, the court 

observed that the parties’ animosity has had an adverse effect on Tyler. However, the court did 

not find either parent to be unfit. The court acknowledged that Pamela’s numerous moves 

occurred during a transitional period in her life, but there was no evidence that these moves 

affected Tyler negatively. Additionally, the court found that Pamela’s current living situation 

permitted her to devote a substantial amount of time to Tyler’s needs. The court also explained 

that the transportation arrangement Michael utilized during his parenting time was not in Tyler’s 

best interests. The court further concluded that Michael’s circumstances did not place him in a 

position to provide the care and support necessary for Tyler. 

The court awarded Michael parenting time according to a parenting plan the court 

developed. The court’s parenting plan provided Michael with regular parenting time every other 

weekend and telephone contact with Tyler each Wednesday for 15 minutes. During the summer, 

Michael was awarded 7 consecutive days of parenting time during a period in which he was not 

working. The court also adopted the Wilson holiday visitation schedule. Finally, Michael was 

ordered to pay monthly child support along with a cash medical support payment to Pamela. 

Michael appeals from this order.

ASSIGNMENTS OF ERROR

Michael argues that the district court abused its discretion when it determined that 

primary physical custody of Tyler should remain with Pamela. Michael also contends that the 

district court erred by ordering a parenting plan that provided him with less parenting time than 

prior to his filing of the complaint to modify.

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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. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 

(2013). 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. Id.

ANALYSIS

Physical Custody of Tyler.

Michael contends that the district court erred when it did not modify the previous order to 

award him primary physical custody or joint physical custody of Tyler. He asserts that he has 

maintained a stable living situation and full-time employment throughout the ongoing paternity 

action. He also notes that Pamela’s living situation has been extremely unstable until recently 

and she has not maintained full-time employment for any extended period of time. Finally, 

Michael asserts that the fact the parties had operated under a temporary joint custody 

arrangement prior to trial should have required the district court to award him joint physical 

custody, at the very least. 

As an initial matter, Michael notes that the district court’s order did not specify whether it 

found a material change in circumstances. We agree with Michael’s observation. Although the 

court noted that Michael had alleged that Pamela’s numerous moves and living with various 

people constituted a material change in circumstances, the resulting order does not state whether 

Michael met his burden to establish a material change in circumstances. Nonetheless, the district 

court concluded that Tyler’s best interests required that Pamela retain sole physical custody. 

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. Watkins v. Watkins, supra; Heistand v. Heistand, 267 Neb. 300, 673 

N.W.2d 541 (2004). The party seeking modification of child custody bears the burden of 

showing a material change in circumstances. Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 

(2000); Bird v. Bird, 22 Neb. App. 334, 853 N.W.2d 16 (2014).

According to Neb. Rev. Stat. § 43-2923(1) (Cum. Supp. 2012), 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. 

Donscheski v. Donscheski, 17 Neb. App. 807, 771 N.W.2d 213 (2009). Section 43-2923(6) 

states:

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;

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(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 member . . . and 

(e) Credible evidence of child abuse or neglect or domestic intimate partner 

abuse. 

In addition to the above factors, the Nebraska Supreme Court has held that in determining 

a child’s best interests, courts may consider factors such as 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 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 for custody is based on sound reasons; and the general 

health, welfare, and social behavior of the child. See Davidson v. Davidson, 254 Neb. 357, 576 

N.W.2d 779 (1998).

Having conducted a de novo review of the record, we conclude that Michael failed to 

prove that a material change in circumstances had occurred such that it would be in Tyler’s best 

interests to change custody. Michael focuses on Pamela’s housing instability and lack of 

continuous employment as support for his claim for custody. There is no dispute that Pamela had 

difficulty maintaining stable housing for approximately 2 years. However, the evidence in the 

record does not establish that Pamela’s family was ever without shelter or that the constant 

moves had any adverse effect on Tyler. In fact, Pamela testified that she made sure that her both 

of her sons were able to remain at their same schools. Pamela has now acquired permanent 

housing for her family and does not plan on moving from this residence. Further, the record 

shows that Pamela has been able to provide for Tyler and her older son even though she does not 

maintain full-time employment. Pamela also testified that she is the parent who attends all of 

Tyler’s individual education plan meetings at school as well as his medical appointments.

Additionally, there is evidence in the record which demonstrates that placing Tyler’s 

physical custody with Michael would not be in Tyler’s best interests. Because he does not have a 

driver’s license, Michael is reliant upon others to provide for Tyler’s transportation. This 

includes having Tyler obtain rides from a cab company. Additionally, Michael’s work schedule 

requires Tyler to remain at home alone during extended periods of time. We agree with the 

district court’s conclusion that this is not the ideal situation for Tyler at this stage in his life.

There is conflicting evidence in the record as to which living situation would be in 

Tyler’s best interests. When evidence is in conflict, an appellate court considers, and may give 

weight to, the fact that the trial judge heard and observed the witnesses and accepted one version 

of the facts rather than another. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006); 

Keig v. Keig, 20 Neb. App. 362, 826 N.W.2d 879 (2012). Giving due consideration to the fact 

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that the trial court heard and observed the witnesses in this case, we conclude the court did not 

abuse its discretion when it concluded that Tyler’s best interests required that Pamela retain sole 

physical custody.

Michael argues alternatively that the court should have ordered joint physical custody and 

points to the fact that the parties had been operating on a shared custody basis since the 

temporary order and mediation agreement. The district court referred to the mediation agreement 

as “an attempt at mediation” and found that (1) it is not a completed Parenting Plan pursuant to 

Neb. Rev. Stat. § 43-2929 and (2) it is “folly” for the parties to share physical custody of Tyler 

based upon the evidence heard by the court. Based upon our de novo review of the record, we 

agree with the district court’s findings. Further, we conclude that the record does not demonstrate 

that the parties are able to communicate to an extent where joint custody would be appropriate. 

See Klimek v. Klimek, 18 Neb. App. 82, 775 N.W.2d 444 (2009) (communication is an essential 

requirement for joint custody to be successful). We cannot envision a joint custody arrangement 

successfully operating in a situation where one parent has recently obtained a harassment 

protection order against the other. The district court did not abuse its discretion when it declined 

to order joint custody.

Court’s Parenting Plan.

Michael also argues that the district court erred when it adopted a parenting plan that 

awarded him less parenting time than he received under the prior orders. As noted above, in the 

original paternity order Michael received parenting time every other weekend, every Monday 

and Thursday evening, and holiday visitation according to Wilson v. Wilson. This order was later 

modified in 2012 with Michael being granted summer parenting time of 14 consecutive days 

each June and July. After the recent trial, the court adopted a parenting plan which awarded 

Michael parenting time every other weekend, a 15-minute weekly phone call with Tyler on 

Wednesday evenings, 7 days of summer parenting time, and the Wilson holiday visitation. 

Michael contends that the court’s parenting plan was contrary to the evidence presented at trial.

Having thoroughly reviewed the record, we find merit to Michael’s contentions. Pamela 

did not present any evidence at trial to establish that the parenting time arrangement in the 

original paternity order and the 2012 modification as to summer parenting time needed to be 

changed. Rather, Pamela’s evidence at trial focused on her fitness to have primary physical 

custody of Tyler and her unwillingness to continue the shared custody arrangement from the 

previous temporary order and the mediation agreement. Pamela testified that Tyler’s best 

interests required that she have primary physical custody, but she did not seek to reduce 

Michael’s parenting time. Pamela’s only complaint was that she did not have the right to first 

refusal during Michael’s parenting time when Tyler was at home alone. 

Because there was no evidence to support the modification of Michael’s parenting time, 

we conclude the district court’s parenting plan constituted an abuse of discretion. Therefore, we 

reverse the district court’s parenting plan and remand the cause with directions to reinstate 

Michael’s parenting time as ordered in the original paternity order and the 2012 modification 

relating to summer parenting time. 

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CONCLUSION

The district court did not abuse its discretion when it determined that Pamela should 

retain primary physical custody of Tyler and denied Michael’s application for modification of 

custody. We affirm that portion of the order. However, we find that the court abused its 

discretion when it adopted a parenting plan that modified Michael’s parenting time without any 

evidence to support the modification. We reverse that portion of the order and remand the cause 

with directions to reinstate Michael’s parenting time as ordered in the original paternity order 

and the 2012 modification.

AFFIRMED IN PART, AND IN PART REVERSED 

AND REMANDED WITH DIRECTIONS.

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