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OLANDER v. McPHILLIPS

Cite as 28 Neb. App. 559

Shaun P. Olander, appellee, 

v. Brandy A. McPhillips, 

appellant.

___ N.W.2d ___

Filed June 30, 2020. No. A-19-545.

1. Visitation: Appeal and Error. Parenting time 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. Judgments: Words and Phrases. 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.

3. Visitation. The best interests of the children are the primary and paramount considerations in determining and modifying parenting time.

4. ____. The right of parenting time is subject to continual 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.

5. Modification of Decree: Words and Phrases. In the context of marital 

dissolutions, a material change in circumstances means the occurrence 

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

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

differently.

6. Trial: Records: Appeal and Error. Where no record of an evidentiary 

hearing is made, the orderly administration of justice requires that the 

order be vacated and the matter remanded for a new evidentiary hearing 

on the record.

7. Modification of Decree. In order to modify a parenting plan, there must 

be a material change in circumstances that affects the best interests of 

the child.

Nebraska Supreme Court Online Library

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

07/07/2020 09:07 AM CDT
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OLANDER v. McPHILLIPS

Cite as 28 Neb. App. 559

Appeal from the District Court for Douglas County: Duane 

C. Dougherty, Judge. Affirmed in part, and in part reversed 

and remanded for further proceedings.

John F. Eker III, for appellant.

Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for 

appellee. 

Moore, Chief Judge, and Riedmann and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Brandy A. McPhillips appeals the order of the district court 

for Douglas County which granted Shaun P. Olander’s complaint to modify a decree of paternity and parenting plan and 

denied her motion to vacate the modification order. We conclude that the district court’s failure to hold an evidentiary 

hearing on the record on the issue of child support requires 

that we reverse, and remand for further proceedings on that 

issue, and we reverse the revised transportation provision and 

remand the cause with instructions to vacate and reinstate 

the prior transportation provision. As to the remaining issues, 

we affirm.

BACKGROUND

Olander filed a complaint for paternity, a copy of which 

is not included in our record. It appears that trial was set for 

December 3, 2013; however, prior to trial, the parties reached 

an agreement that was read into the record. Our bill of exceptions does not contain a transcription of that December 3 

hearing. On January 7, 2014, McPhillips filed a motion for 

clarification or to alter or amend the decree. In response, 

Olander filed a motion to enter a decree of paternity which had 

been prepared by his attorney, alleging that McPhillips refused 

to approve the agreed-upon decree. Following a hearing on 

January 15, a transcription of which is also not included in our 

record, the court entered an order requiring certain changes 
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to the decree and clarifying and amending other portions. 

Specifically, the court ordered Olander to include the following language in the decree of paternity: “It is further ordered 

that beginning Saturday, January 25, 2014, and every fourth 

Saturday thereafter, [Olander’s] mother shall have a superior 

right of first refusal versus [McPhillips] during times in which 

[Olander] is at his employment.” A decree of paternity was 

entered the same day in February 2014, with approval signatures from both McPhillips and Olander. The decree incorporated the parties’ agreed-upon parenting plan. We will refer to 

the court’s decree of paternity and the February 2014 order 

collectively as the “Paternity Decree.”

The Paternity Decree established that the parties were to 

have joint physical and legal custody of the parties’ minor 

child, Macklin Olander, and required Olander to pay $515 

per month in child support to McPhillips, among other provisions. In March 2014, the district court issued a nunc pro tunc 

order, stating that the parenting plan attached to the Paternity 

Decree was an earlier draft, and not the final version agreed 

to by the parties. The nunc pro tunc order attached a parenting plan (Parenting Plan) that both parties agreed was the 

true agreement.

The Parenting Plan established a 2-week parenting time 

schedule. On “Week 1,” Olander had parenting time Tuesday 

at 8 p.m. until Thursday at 7 a.m., and then Friday at 7 p.m. 

until Saturday at 7 a.m. On “Week 2,” Olander had parenting time from Wednesday at 7 a.m. until Thursday at 7 a.m., 

and from Friday evening until Sunday evening. The Parenting 

Plan also required Olander to provide the transportation during 

parenting time exchanges, except for on the weekends, when 

McPhillips was to pick up Macklin at the beginning of her 

parenting time.

In January 2018, Olander filed a complaint to modify the 

Paternity Decree and the Parenting Plan, stating that a material change in circumstances had occurred since the entry 

of the Paternity Decree and the Parenting Plan. Specifically, 
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Olander alleged that Macklin was in need of health insurance, and it was in his best interests that one of the parties 

be ordered to maintain health insurance for him. Additionally, 

Olander asserted that “[i]t is in the best interests of [Macklin] 

to change the parenting time schedule to provide [Olander] 

with more time with [Macklin].” Olander further alleged that 

certain terms of the Parenting Plan were no longer relevant, 

necessary, or workable and that the financial circumstances 

of the parties had changed to the extent it was necessary to 

modify Olander’s child support obligation.

McPhillips filed a counterclaim seeking to modify the 

Paternity Decree and the Parenting Plan as well. She requested 

the court change the Parenting Plan to provide her with more 

parenting time, provide her with more vacation time with 

Macklin, and remove Olander’s mother’s right of first refusal 

one Saturday a month. The court held a trial on both parties’ 

complaints to modify in October 2018.

Before trial, the parties reached several agreements regarding their modification requests. Those agreements were read 

into the record at trial, and consisted of the following: 

Olander agreed to provide health insurance for Macklin; the 

parties agreed to use Olander’s 2017 tax return for purposes 

of determining his monthly income; they agreed to divide 

daycare expenses pursuant to the percentages determined by 

the child support calculator; they agreed to divide medical 

and other necessary expenses not covered by insurance; they 

agreed that each parent would get 2 weeks of vacation time 

with Macklin per year and, further, that Olander could not 

displace more than 4 days from McPhillips’ parenting time; 

and they agreed that neither party would enroll Macklin in 

extracurricular activities that infringed on the other parent’s 

parenting time.

At trial, the court stated that it was deciding “an issue or 

two on some of the parenting time.” Olander testified that 

changing the parenting schedule every other week—granting him parenting time from Tuesday evening until Thursday 
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morning each week—would provide more consistency for 

Macklin. Olander further testified that Wednesday morning 

exchanges were difficult for Macklin, because it was confusing for him, and that it would be best to not have a different parenting schedule every other week. Olander testified 

that there had been a problem on Wednesday mornings with 

Macklin not being ready and fed when he arrived for pick 

up. Additionally, Macklin is rushed and tired due to getting 

up earlier for the morning exchange. Olander stated that having only one morning pick up per week would provide more 

consistency, rather than having two morning exchanges every 

other week.

McPhillips testified that there were problems in the past with 

Olander’s picking up Macklin on Tuesday evenings, because 

Olander did not have a consistent work schedule. McPhillips 

further stated that it was not in Macklin’s best interests to have 

her parenting time begin on Thursday mornings because he is 

tired and does not want to get ready for school after staying 

with Olander. Rather, she indicated that her parenting time 

should begin on Wednesday evening if Olander’s was to begin 

on Tuesday evenings. Her justification was as follows:

If the defendant is — or the plaintiff is allowed his 

Tuesday night pickup time to not have a morning rush 

and fight with our child, then I would like to be awarded 

the same, that I get a night pickup time to get him ready 

for bed and not have to fight with him in the mornings to 

get ready for school, so that it’s fair for both of us.

The parties also provided testimony regarding health insurance for Macklin. Olander informed McPhillips’ counsel that 

he would be providing health insurance for Macklin through 

his employer, but he did not have information stating what the 

benefits would be, and that he would provide more documentation before the final child support calculation. McPhillips 

acknowledged that Olander agreed to provide health insurance 

for Macklin and that Olander could choose the deductible and 

program that worked for him. Following the testimony, the 
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Cite as 28 Neb. App. 559

court stated that it looked for stability and routine in a child’s 

time with each parent. The court then modified Olander’s parenting time, stating that it would run from Tuesday evening 

until Thursday morning every week.

After trial, Olander drafted an order of modification. The 

order indicated, in relevant part, that he would pay $321 per 

month in child support, and it included a modified parenting 

plan (Modified Parenting Plan), which stated that he would 

have parenting time from Tuesday evening until Thursday 

morning every week. The Modified Parenting Plan also 

included a modified transportation clause, which stated that 

“[u]nless otherwise indicated . . . the party beginning parenting time shall provide transportation for the parenting time 

exchange.” Further, the Modified Parenting Plan included the 

right of first refusal clause, which stated that “[e]very third 

Saturday, [Olander’s] Mother shall have a superior right of first 

refusal versus [McPhillips] during times in which [Olander] is 

at his employment.”

McPhillips filed an objection to Olander’s order of modification. She argued that Olander unilaterally added language 

modifying the transportation clause and right of first refusal 

from what was stated in the Parenting Plan. McPhillips further 

alleged that Olander improperly calculated his child support 

obligation and that he did not include clauses regarding vacation and extracurricular activities. In November 2018, the 

district court modified the Paternity Decree and the Parenting 

Plan (Modification Order). The court’s Modification Order 

established Olander’s child support obligation to be $349 per 

month and ordered Olander to pay 75 percent and McPhillips 

25 percent of various expenses. Otherwise, the court adopted 

Olander’s Modified Parenting Plan, including the transportation and right of first refusal clauses.

In December 2018, McPhillips filed a motion to vacate the 

district court’s Modification Order. In her motion, she alluded 

to a hearing held in chambers on November 27, at which 

“the judge was pressed for time and the parties attempted to 
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address the issues as expeditiously as possible.” There is no 

transcription of this hearing in our record. McPhillips further 

asserted in her motion to vacate that the transportation clause 

and the right of first refusal clause of the Parenting Plan were 

modified, despite her not having agreed to those changes. 

McPhillips also argued that Olander’s income was misrepresented and that he received a credit for health insurance for 

Macklin, although he was not providing insurance for him. 

Additionally, McPhillips filed a motion for relief from rest to 

present evidence to the court in support of the allegations contained in her motion to vacate.

The court held a hearing on McPhillips’ motions in January 

2019. At the hearing, the court stated:

I got my old notes from some e-mails that came before 

that and what have you, and then we had a little bit of 

an informal hearing off the record at least after that, and 

then I signed a decree. And you brought up some of these 

issues — same issues, I think, and a decree was entered 

November 28th.

Olander’s counsel argued that McPhillips’ argument was based 

on the fact Olander’s income changed after the trial and that 

he calculated child support appropriately before the trial. He 

further asserted that Olander was initially unable to sign up 

for health insurance for Macklin through his employer without a court order, because it was not an open enrollment 

period, but he obtained health insurance through the open 

market for that time period. Regarding the added language 

to the Modified Parenting Plan, Olander’s counsel stated that 

McPhillips made the same objections to the court in November 

2018, off the record, and the court already ruled on them, some 

in McPhillips’ favor and some in Olander’s.

At the close of the January 2019 hearing, the court stated 

that it was going to set the matter for an evidentiary hearing 

only on the issue of child support, which included evaluating the parties’ income and whether Olander was providing health insurance for Macklin. The hearing took place on 
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March 6; however, we do not have a record of the hearing, 

although McPhillips’ praecipe for a bill of exceptions specifically requested that it be included. Following the hearing, 

the district court denied McPhillips’ motion to vacate the 

Modification Order. McPhillips timely appealed.

ASSIGNMENTS OF ERROR

McPhillips assigns, restated, that the district court abused its 

discretion in modifying the Parenting Plan and erred in denying her motion to vacate the Modification Order.

STANDARD OF REVIEW

[1,2] Domestic matters such as child support are entrusted to 

the discretion of trial courts. Anderson v. Anderson, 290 Neb. 

530, 861 N.W.2d 113 (2015). Parenting time determinations are 

matters initially entrusted to the discretion of the trial court, 

and although reviewed de novo on the record, the trial court’s 

determination will normally be affirmed absent an abuse of 

discretion. State on behalf of Maddox S. v. Matthew E., 23 

Neb. App. 500, 873 N.W.2d 208 (2016). 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. 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.

ANALYSIS

McPhillips argues that the district court erred in modifying the Parenting Plan, and in denying her motion to vacate, 

in four ways: First, the district court erred in modifying 

the Parenting Plan to allow Olander to have parenting time 

from Tuesday evening until Thursday morning every week. 

Second, the district court erred in its child support calculation. Third, Olander unilaterally modified the transportation 

clause of the Parenting Plan when the parties did not agree to 

do so. Fourth, Olander unilaterally modified the right of first 
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refusal clause in the Parenting Plan. We address each argument separately below.

Modification of Parenting Time.

McPhillips argues that the district court erred in modifying the Parenting Plan by changing Olander’s parenting time 

to begin on Tuesday evening instead of Wednesday morning, 

without modifying her parenting time to begin on Wednesday 

evening instead of Thursday morning. We find no abuse of discretion in the modification.

[3,4] Parenting time 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. 

Schriner v. Schriner, 25 Neb. App. 165, 903 N.W.2d 691 

(2017). The best interests of the children are the primary and 

paramount considerations in determining and modifying parenting time. Id. The right of parenting time is subject to continual 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. Id.

Here, the district court did not abuse its discretion in modifying Olander’s parenting time. The original parenting plan 

provided Olander with parenting time from Tuesday at 8 p.m. 

to Thursday at 7 a.m. on Week 1 and from Wednesday at 7 

a.m. to Thursday at 7 a.m. on Week 2. Olander testified that 

Macklin was not adjusting to the inconsistency in the weekly 

schedule and that it would be in his best interests if Olander’s 

parenting time began on the same day each week. He explained 

that in addition to the inconsistency, Wednesday morning 

exchanges were chaotic because Macklin was rushed and was 

sleepier because he had to get up earlier. Olander therefore 

proposed that his parenting time each week begin on Tuesday 

evening. Thus, although not explicitly stated, Olander asserted 

that a material change in circumstances had occurred in that 

Macklin was struggling to adjust to the inconsistent parenting 
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schedule that was in place and that modifying the Parenting 

Plan was in Macklin’s best interests.

[5] In modifying Olander’s parenting time, the court stated, 

“I look for stability or routine in a child’s time period with 

each parent . . . .” Although the court did not state that a 

material change in circumstances had occurred, it implicitly acknowledged that the existing parenting schedule was 

creating instability for Macklin. In the context of marital 

dissolutions, a material change in circumstances means the 

occurrence of something which, had it been known to the 

dissolution court at the time of the initial decree, would 

have persuaded the court to decree differently. Schriner v. 

Schriner, supra. Therefore, Macklin’s inability to adapt to the 

inconsistent schedule constituted a material change in circumstance. Because the inconsistency arose due to the difference 

in the start date of Olander’s parenting time from Week 1 

to Week 2, in order to make it consistent, the court had the 

option of changing the start time to either Tuesday evening 

or Wednesday morning. Because morning exchanges were 

challenging for Macklin, it made sense that the start date be 

moved to Tuesday evening. We find no abuse of discretion in 

that decision.

McPhillips claims that the court abused its discretion in 

refusing a reciprocal change in her parenting time to change 

her start time to Wednesday evenings instead of Thursday 

mornings. We disagree. Olander was seeking consistency 

because the start date for his parenting time varied each week 

from Tuesday evening to Wednesday morning and Macklin 

was struggling with that schedule. The start of McPhillips’ 

parenting time, however, was consistently Thursday mornings. Furthermore, it appears the basis for McPhillips’ request 

for a change in parenting time was “so that it’s fair for both 

of us.” The primary focus in a change of parenting time, 

however, is the child’s best interests. We find no abuse of 

discretion in the court’s refusal to modify McPhillips’ parenting time.
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Child Support.

McPhillips asserts that the district court erred in modifying Olander’s child support obligation in its Modification 

Order and Modified Parenting Plan because there was not sufficient evidence demonstrating the amount of the health insurance premium he was paying. Because we do not have a record 

of the March 2019 hearing, we reverse the district court’s 

child support calculation and remand the cause for further 

proceedings.

As we laid out in greater detail in the background section 

above, following the October 2018 trial and the November 

2018 off-the-record hearing, the district court reduced 

Olander’s child support obligation to $349 per month in 

its Modification Order. In her motion to vacate, McPhillips 

argued that Olander was not providing health insurance for 

Macklin and that the court erred in calculating Olander’s 

child support. A hearing was held on the record in January 

2019, at which McPhillips repeated her arguments that the 

court erred in calculating Olander’s child support. Both the 

court and Olander acknowledged that McPhillips presented 

similar arguments at the November 2018 hearing and that the 

court already ruled on the issues. However, the court scheduled an evidentiary hearing for March 6 to address the issue 

of child support. We have no record before us of the hearing. 

Following the hearing, the court denied McPhillips’ motion 

to vacate.

Based on the record available to us, it appears that the 

March 2019 hearing was an evidentiary hearing and therefore should have been on the record. See Neb. Ct. R. App. P. 

§ 2-105(A)(1) (rev. 2018). McPhillips’ motion for relief from 

rest requested that “she be granted relief from rest [and] that 

additional evidence as to the above stated items be allowed.” 

At the close of the January 2019 hearing on her motion, the 

district court stated that it was going to set “an evidentiary 

hearing” solely on the issue of child support. It explained 

“I’m going to rehear evidence on what he makes, she makes, 
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and this health insurance issue, and we’ll calculate child support appropriately.”

The court’s order denying McPhillips’ motion to vacate 

states that “[t]he Court allowed the hearing to occur, thus the 

record was reopened for purposes of [McPhillips] providing 

further evidence as well as argument to the Court.” We note 

that McPhillips requested a transcript of the March 2019 hearing in her praecipe for bill of exceptions and that one was 

not provided. We further note Olander’s statement in his brief 

that “[n]either party requested a record” of the March hearing 

and his assertion that it was “incumbent [upon McPhillips] to 

present a record which supports” her assigned error. Brief for 

appellee at 11, 14. McPhillips concurs that there was no record 

from this hearing. However, the absence of a record from an 

evidentiary hearing does not necessitate an affirmance of the 

court’s order.

Pursuant to § 2-105(A)(1), court reporting personnel “shall 

in all instances make a verbatim record of the evidence offered 

at trial or other evidentiary proceeding, including but not limited to objections to any evidence and rulings thereon, oral 

motions, and stipulations by the parties. This record may not 

be waived.” Because the court stated that the March 2019 

hearing was to be an evidentiary hearing, and the record was 

reopened to allow McPhillips to present further evidence on 

the issue of child support, we presume that the hearing was an 

evidentiary hearing and a record was required.

[6] Where no record of an evidentiary hearing is made, the 

orderly administration of justice requires that the order be 

vacated and the matter remanded for a new evidentiary hearing 

on the record. See Gerdes v. Klindt’s, Inc., 247 Neb. 138, 525 

N.W.2d 219 (1995). See, also, Presle v. Presle, 262 Neb. 729, 

634 N.W.2d 785 (2001); Lockenour v. Sculley, 8 Neb. App. 

254, 592 N.W.2d 161 (1999). Consequently, we reverse the 

district court’s order regarding child support and remand the 

cause to the district court to hold an evidentiary hearing, on 

the record, on the issue of child support, including the parties’ 
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income and health insurance for Macklin. Because the March 

2019 hearing was limited solely to the issue of child support, 

our decision does not affect McPhillips’ remaining assigned 

errors, which we address below.

Modification of Transportation Clause.

McPhillips argues that the district court erred in modifying 

the transportation clause of the Parenting Plan. We agree.

The transportation clause in the Parenting Plan required 

Olander to provide the transportation during parenting time 

exchanges, except on the weekends, when McPhillips was to 

pick up Macklin at the beginning of her parenting time. This 

was modified in the Modified Parenting Plan to state that the 

parent beginning parenting time would provide transportation 

for the exchange. Our record does not disclose how this change 

was determined.

At the October 2018 trial, the agreements the parties reached 

prior to trial were read into the record. There is nothing stated 

on the record regarding transportation, although Olander contends in his brief that the parties agreed to modify the clause 

prior to trial.

McPhillips contested the change in transportation prior to 

the November 2018 hearing in her objections to the entry of an 

order of modification filed on November 26 and 27, asserting 

that she never agreed to it. McPhillips also raised the transportation issue in her motion to vacate after the Modification 

Order was entered. In that motion, she admits that the transportation issue was addressed at the hearing in chambers in 

November. As to transportation, she alleged:

The attorney for [Olander] failed to address the following 

issues which were discussed in chambers:

. . . .

b. Transportation was modified when this was not part 

of the agreement and not contained in the Transcript. The 

Judge indicated that this was what he would normally 

allow, as stated in the order signed by the judge, however, 
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discussions with [McPhillips] after the shortened hearing 

indicated that there were substantial reasons why the initial transportation language had been included.

At the January 2019 hearing on that motion, Olander asserted 

that the court had already ruled on the issue. The court stated 

that it had reviewed its notes and communications and that 

McPhillips was raising some of the “same issues.” It allowed 

McPhillips to argue, after stating, “So go ahead and — I think 

I already made a decision on these matters, but go ahead 

and tell me again today what you would like to tell me.” 

Therefore, the record supports a conclusion that the court 

initially addressed the issue either in chambers prior to the 

October 2018 trial or in chambers at the November hearing. 

There is no indication that evidence was received at either of 

those hearings, and it was not part of the stipulation read into 

the record at the October 2018 hearing as a matter to which 

the parties agreed.

[7] In order to modify a parenting plan, there must be a 

material change in circumstances that affects the best interests of the child. See Eric H. v. Ashley H., 302 Neb. 786, 

925 N.W.2d 81 (2019). Here, the district court found a material change in circumstances that warranted a modification 

of the Paternity Decree and the Parenting Plan; however, in 

addition to modifying provisions on which the parties agreed 

or on which evidence was received, the court also modified 

the transportation provision. We recognize that under certain circumstances, a change in parenting time may necessitate a change in transportation; however, we find no such 

circumstance here. The primary change as to parenting time 

was to move the start time of Olander’s parenting time from 

Wednesday at 8 a.m. to Tuesday at 8 p.m. It does not appear 

from our record that the parties agreed to a change regarding 

transportation or that the court heard evidence as to why such 

a change was in the child’s best interests. Absent such information, we find that the change in the transportation provision 

constituted an abuse of discretion, and we reverse that portion 
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of the Modified Parenting Plan and remand the cause to the 

district court with instructions to reinstate the provision as 

written in the Parenting Plan attached to the court’s order nunc 

pro tunc filed March 10, 2014.

Right of First Refusal Clause.

McPhillips further asserts that the district court erred in 

modifying the right of first refusal clause of the Parenting Plan. 

We disagree.

As stated in the background section above, the Paternity 

Decree granted Olander’s mother a right of first refusal versus 

McPhillips to watch Macklin every fourth Saturday during 

which Olander was at work. McPhillips asserts that the nunc 

pro tunc order and the attached Parenting Plan, which did not 

include the right of first refusal for Olander’s mother, superseded the Paternity Decree. Therefore, according to McPhillips, 

the inclusion of the right of first refusal in the Modified 

Parenting Plan was a modification which the court included in 

error. We disagree.

The terms of the nunc pro tunc order state that it modified 

only the Parenting Plan attached to the Paternity Decree; therefore, it did not modify the terms of the Paternity Decree. Our 

reasoning is buttressed by McPhillips’ counterclaim, in which 

she states, “[Olander’s] mother shall no longer be required 

to receive one Saturday each month with [Macklin].” This 

language indicates to us that the parties were operating under 

the terms of the Paternity Decree which granted Olander’s 

mother a right of first refusal versus McPhillips. Consequently, 

the right of first refusal for Olander’s mother was properly 

included in the Modified Parenting Plan because it was carried 

over from the Paternity Decree.

We acknowledge that the right of first refusal in the Paternity 

Decree was for every fourth Saturday, whereas the right of first 

refusal in the Modified Parenting Plan was for every third 

Saturday. However, McPhillips states in her brief that the 

language in the Modified Parenting Plan “mirrors language 
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that was in the original Parenting plan attached to the original Decree of Paternity.” Brief for appellant at 17. Because 

she takes no issue with the change in Saturdays on which 

Olander’s mother has the right of first refusal, we do not 

address this discrepancy. Thus, the district court did not abuse 

its discretion by including the right of first refusal clause in the 

Modified Parenting Plan.

CONCLUSION

For the reasons set forth above, we reverse the provisions of 

the Modification Order regarding child support and transportation and remand the cause for further proceedings consistent 

with this opinion. We affirm on all other issues.

Affirmed in part, and in part reversed and 

remanded for further proceedings.