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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

KLEIN V. DIXON

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).

DANIELLE KLEIN, APPELLANT,

V.

ZACHERY DIXON, APPELLEE.

Filed May 29, 2018. No. A-17-1138.

Appeal from the District Court for Hall County: JOHN H. MARSH, Judge. Affirmed in part,

and in part remanded with directions.

Vikki S. Stamm, of Stamm Romero & Associates, P.C., L.L.O, for appellant.

Jonathan M. Hendricks, of Dowding, Dowding, Dowding & Urbom, for appellee.

PIRTLE, RIEDMANN, and BISHOP, Judges.

RIEDMANN, Judge.

INTRODUCTION

Danielle Klein appeals the order of the district court for Hall County which awarded 

custody, parenting time, and child support regarding the parties’ minor child. We remand the cause 

to the district court for clarification as to summer parenting time and the tax dependency 

exemption, but affirm on all other issues.

BACKGROUND

Klein and Zachery Dixon are the parents of a child who was born in 2013. The parties 

never married but continued their dating relationship until separating in May 2016. Klein filed a 

complaint for the determination of paternity, custody, and child support in June 2016. She 

requested legal and physical custody of the child subject to Dixon’s parenting time. She also filed 

a motion for a temporary order in July. Dixon never filed an answer, but he appeared with counsel 
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at the hearing on the motion for temporary order, which was held on August 3. The district court 

entered an order on August 11, recognizing that since the parties separated in May, they had been 

exercising parenting time with the child on a weekly basis. Therefore, the court ordered that the 

joint physical custody arrangement continue and also awarded Klein primary legal custody at that 

time.

An initial custody hearing was held in May 2017. Afterwards, the district court entered an 

order informing the parties that it was considering whether joint legal and/or physical custody was 

in the best interests of the child. Because joint custody was not pled by either party, the court 

scheduled the matter for an evidentiary hearing in September.

The evidence presented at the May and September 2017 hearings revealed that between the 

time the child was born in 2013 and when the parties separated in May 2016, Klein and Dixon 

were both generally employed and participated in caring for their child. Klein admitted that Dixon 

is a good father who cares for his child and that Dixon and the child have a strong relationship. 

Dixon acknowledged that Klein is a good mother who takes good care of their child. Klein 

expressed concerns about Dixon’s financial stability and employment history, and Dixon had 

concerns about Klein’s current boyfriend and her history of moving in with men after dating for a 

short period of time.

Despite these concerns, the parties agreed that they had not argued over major issues 

regarding the child such as choosing a daycare or medical care and had been able to communicate 

and reach joint decisions. After they separated, the parties took it upon themselves to work out a 

weekly exchange of the child, and they worked together to accomplish their joint arrangement 

even during a period of time when Dixon moved to Kansas. They both testified that they are able 

to act responsibly and cooperate during their weekly exchanges of the child, they had not had any 

major problems since their separation, and they had been able to work together for the best interests 

of their child. According to Dixon, the joint custody schedule had been working well for all of 

them.

At the time of the September 2017 hearing, Klein had moved to Central City, Nebraska, 

and Dixon was living in Aurora, Nebraska; thus, they lived approximately 20 to 25 minutes apart. 

Klein admitted that the joint physical custody arrangement was working for the time being, despite 

their distance, but once the child began school, she thought it could become difficult for her and 

Dixon to get the child to school on time if the weekly arrangement continued. Dixon also 

acknowledged the potential difficulty with a joint physical custody arrangement and transporting 

the child to school.

Klein was living in a four-bedroom house in Central City with her current boyfriend. She 

was not working at the time but was attending college full time while relying on her boyfriend to 

support her. Klein and her boyfriend were expecting a child at the time of the hearing. During their 

relationship, there had been some physical altercations, and Klein’s boyfriend had been arrested 

for driving under the influence and assaulting her. Klein’s boyfriend testified at the hearing that 

he and Klein had broken up approximately 2 days earlier but that he expected that they could work 

out their problems and continue living together.

Dixon was living alone in a three-bedroom townhouse in Aurora. He was employed full 

time and had health insurance coverage for the child.
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The district court subsequently entered an order finding that joint legal and physical 

custody was in the best interests of the child. The court noted that if the parties were living in the 

same area, the current custody arrangement could continue, but because of their distance, joint 

physical custody would become impossible once the child starts kindergarten. The court 

determined that Dixon had demonstrated a slightly greater degree of stability and has been a 

calming influence on the child. Therefore, the court determined that once the child begins 

kindergarten, primary custody would shift to Dixon, and Klein would be awarded parenting time 

every other weekend, extended school breaks during her weekends, every spring break, and 

alternating fall breaks. Holiday parenting time was outlined in an attached parenting plan. Klein 

was also ordered to pay child support. Klein now appeals to this court.

ASSIGNMENTS OF ERROR

Klein assigns, consolidated and renumbered, that the district court erred in (1) granting 

affirmative relief to Dixon when he failed to file an answer and neither party pled for joint custody, 

(2) awarding Dixon primary physical custody and significantly reducing her parenting time once 

the child begins kindergarten, (3) failing to properly award holiday and summer parenting time, 

and (4) failing to allocate the tax dependency exemption.

STANDARD OF REVIEW

Child custody determinations, and 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. Thompson v. 

Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (2016). A judicial abuse of discretion exists when 

a judge, within the effective limits of authorized judicial power, elects to act or refrains from 

acting, and the selected option results in a decision which is untenable and unfairly deprives a 

litigant of a substantial right or a just result in matters submitted for disposition through a judicial 

system. Id.

Domestic matters such as child support and the child dependency tax exemption are 

entrusted to the discretion of trial courts. Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 

(2015). An appellate court reviews a trial court’s determinations on such issues de novo on the 

record to determine whether the trial judge abused his or her discretion. Id.

ANALYSIS

District Court’s Ability to Award Joint Custody.

Klein argues that the district court erred in awarding the parties joint legal and physical 

custody of the child because she did not request joint custody and Dixon failed to file an answer 

to the complaint. Therefore, she claims that the court should have entered a default judgment in 

her favor. In the alternative, she asserts that because neither party pled for joint custody, the court 

lacked the authority to consider such an arrangement, and because Dixon did not file an answer, 

he is not entitled to affirmative relief. We find no merit to these arguments and conclude that the 

district court properly considered the issue of joint custody.
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In a paternity action, a default judgment shall be entered upon a showing of service and 

failure of the defendant to answer or otherwise appear. Neb. Rev. Stat. § 43-1412(2) (Reissue 

2016). This statute contemplates the filing of a motion for default judgment and a hearing at which 

evidence of service and failure to respond is presented. In this case, however, Klein never filed a 

motion asking the district court to enter a default judgment, nor did she raise that issue before the 

trial court. When a party raises an issue for the first time on appeal, we will disregard it because a 

lower court cannot commit error in resolving an issue never presented and submitted to it for 

disposition. First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (2013). Thus, 

we do not address this issue.

In the alternative, Klein argues that the district court was not permitted to award joint 

custody when she did not request it and Dixon did not file an answer. She claims that joint custody 

is permissible only when both parties request such an arrangement. We disagree.

In a paternity case subject to the Parenting Act where neither party has requested joint 

custody, if the court determines that joint custody is, or may be, in the best interests of the child, 

the court shall give the parties notice and an opportunity to be heard by holding an evidentiary 

hearing on the issue of joint custody. State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 

N.W.2d 565 (2010). Thus, the fact that neither Klein nor Dixon requested joint custody did not 

preclude the district court from awarding such an arrangement. The court was simply required to 

notify the parties that it was contemplating joint custody and allow them the opportunity to present 

evidence on that issue. See id. The district court did so in the present case.

Additionally, although Dixon never filed an answer, he participated in the proceedings 

from the beginning. A trial court has an independent responsibility to determine questions of 

custody and visitation of minor children according to their best interests, which responsibility 

cannot be controlled by an agreement or stipulation of the parties. Zahl v. Zahl, 273 Neb. 1043, 

736 N.W.2d 365 (2007). We have previously recognized that this public policy is embodied in 

Neb. Rev. Stat. § 42-366(2) (Reissue 2016), which specifically excepts agreements as to custody 

of minor children from being binding upon the court. See Citta v. Facka, 19 Neb. App. 736, 812 

N.W.2d 917 (2012). In that case, we held that like agreements made by a party, admissions made 

by a party’s failure to answer requests for admissions cannot circumvent the trial court’s duty to 

independently assess a child’s best interests in determining the child’s custodial arrangement. Id. 

We observed that in a custody case the real party at interest is the child rather than the named 

parties, and the technical rules of civil procedure cannot apply with equal force in a child custody 

case, because the sole determining factor in such a case must be the best interests of the child. Id.

Similarly here, it was the responsibility of the district court to fashion a custody 

arrangement that was in the best interests of the child. This is true regardless of the arrangement 

Klein requested in the complaint or a lack of pleading from Dixon. And as observed above, this 

independent responsibility allows the court to award joint custody despite the fact that neither party 

requested such an arrangement. Accordingly, the fact that Dixon failed to file an answer requesting 

a particular custody arrangement did not preclude the district court from awarding him affirmative 

relief, including joint custody.
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Finally, with respect to joint custody, Klein contends that the district court erred when it 

determined that joint physical custody was in the best interests of the child. Upon our de novo 

review, we find no abuse of discretion.

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. Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 

(2017). The Nebraska Supreme Court has held that joint physical custody should be reserved for 

those cases where, in the judgment of the trial court, the parents are of such maturity that the 

arrangement will not operate to allow the child to manipulate the parents or confuse the child’s 

sense of direction, and will provide a stable atmosphere for the child to adjust, rather than 

perpetuating turmoil or custodial wars. Id. See, also, Donald v. Donald, 296 Neb. 123, 892 N.W.2d 

100 (2017); Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).

In this case, the undisputed testimony established that for the most part, Klein and Dixon 

are able to communicate with each other, cooperate while exchanging the child, and work together 

for the best interests of the child. Klein acknowledged in her brief that both parties agreed that the 

other party was a good parent, there were no concerns about abuse or neglect of the child, and the 

week on week off arrangement was workable while the child is not in school. Brief for appellant 

at 17.

In Erin W. v. Charissa W., supra, the Supreme Court upheld an award of joint custody, 

observing that the parties operated successfully under a joint custody arrangement pursuant to a 

temporary order for nearly a year, and there was nothing in the record suggesting the parties or the 

child experienced difficulty with the arrangement. The same is true here. From the time the parties 

separated in May 2016, they worked together to share custody of the child without court 

involvement, even during a time when Dixon resided in Kansas. Once the district court entered its 

temporary order in August continuing joint physical custody, the parties agreed that such an 

arrangement had worked out well for Klein, Dixon, and their child. As a result, we find no abuse 

of discretion in the district court’s decision to award joint physical custody.

We note that Klein’s argument focuses on joint physical custody and does not appear to 

challenge the court’s award of joint legal custody. She notes the weekly arrangement and argues 

that she was the primary caretaker of the child and that Dixon “fits the mold of the non-custodial 

parent, but not the primary or joint custodian.” Brief for appellant at 19. We therefore do not 

address whether the decision to award joint legal custody was an abuse of discretion other than as 

it pertains to the court’s ability to consider joint legal custody, which we discussed above. As a 

result, this assigned error lacks merit.

Changes Once Child Begins Kindergarten.

Klein contends that the district court erred in determining that joint physical custody will 

no longer be feasible once the child starts kindergarten and in reducing her parenting time to every 

other weekend. We find no merit to these arguments.

As we observed above, 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 
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determination will normally be affirmed absent an abuse of discretion. Erin W. v. Charissa W., 

297 Neb. 143, 897 N.W.2d 858 (2017).

Contrary to Klein’s arguments, the decision to change the custody arrangement once the 

child begins kindergarten was not a reflection of Klein’s parenting. Both parties agreed at the joint 

custody hearing that the weekly schedule they had been following would be much more difficult, 

if not unworkable, once the child began kindergarten. At that time, the parties lived in different 

communities which were approximately 20 to 25 minutes apart. Klein admitted that it would be 

difficult for her and Dixon to get the child to school on time with a 20- or 25-minute commute, 

and therefore, she did not think joint physical custody would work at that point. At the May 2017 

hearing, Klein also opined that even upon beginning preschool, the child’s best interests would be 

served by having one house during the school week so he had a set schedule and routine. Thus, we 

find no abuse of discretion in the decision to change the custody arrangement upon the child 

beginning school.

Klein also takes issue with the language in the court’s order that “[i]f the parties were living 

in the same area, the current custody arrangement could continue with each having equal access 

to the child.” She argues that the court could have incorporated a provision into the parenting plan 

wherein if the parties lived within a certain radius, the joint custody arrangement could continue. 

Brief for appellant at 24. She claims that the court is making assumptions for the future.

Contrary to Klein’s argument, the court was basing its decision on the facts adduced at the 

September 2017 joint custody hearing. At that time, the parties resided some distance apart and 

planned to stay at their residences long term. Based on that fact and both parties’ testimony that 

joint custody would be much more difficult once the child started kindergarten, the district court 

determined that joint physical custody would no longer be feasible at that time. If the court had 

incorporated a provision similar to that suggested by Klein, it likely would have been an 

impermissible conditional order. See Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). 

Rather than the district court providing for an uncertain event in the future, it entered its order 

based upon the facts before it. If Klein and Dixon move closer together at some point to where 

they believe joint physical custody would again be workable, they may request that the district 

court modify its order at that time.

Once the district court determined that a joint physical custody arrangement was no longer 

feasible, it was tasked with placing primary physical custody with either Klein or Dixon. The court 

found that the parties were doing a commendable job of parenting, but concluded that Dixon 

demonstrated a slightly greater degree of stability and has been a calming influence on the child. 

The court noted Klein’s brief relationships and disturbances with her current boyfriend, with whom 

the status of her relationship was “up in the air.” At the time of the joint custody hearing, Dixon 

resided alone in a three-bedroom townhouse and was working full time. Klein was going to school 

full time and relying on her live-in boyfriend to support her. Based on the record before us, we 

cannot find that the district court abused its discretion in finding joint custody unworkable once 

the child begins kindergarten and placing primary physical custody with Dixon at that time.

We also conclude that the parenting time awarded to Klein was not an abuse of discretion. 

The trial court has discretion to set a reasonable parenting time schedule. Thompson v. Thompson, 

24 Neb. App. 349, 887 N.W.2d 52 (2016). The determination of reasonableness is to be made on 
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a case-by-case basis. Id. Parenting time relates to continuing and fostering the normal parental 

relationship of the noncustodial parent. Id. The best interests of the children are the primary and 

paramount considerations in determining and modifying visitation rights. Id.

We understand Klein’s displeasure in the significant reduction of her parenting time. 

However, the parties admitted that the distance between their residences makes the exercise of 

parenting time more difficult. Awarding every weekend to Klein would be an unreasonable 

arrangement for Dixon, and additional weekday time would be difficult given the child’s school 

schedule and distance between the parties. We note that in addition to alternating weekends, the 

district court awarded Klein extended school breaks during her weekends, spring break every year, 

and alternating fall breaks. Under the circumstances of this case, the district court did its best to 

fashion a workable parenting time arrangement. We therefore find no abuse of discretion.

Holiday and Summer Parenting Time.

Klein argues that the district court erred in failing to include specific holidays as set forth 

in Neb. Rev. Stat. § 43-2929 (Reissue 2016) and failing to award her additional parenting time in 

the summer. Contrary to Klein’s assertion, the parenting plan attached to the court’s order 

specifically provides for nine holidays, including dates and times, and is identical to the holiday 

schedule attached to Klein’s proposed parenting plan. As a result, we find no error in the holiday 

parenting time schedule.

With respect to summer parenting time, the district court crossed out that particular section 

in its parenting plan. In its order, the court concluded that because joint physical custody would 

become impossible once the child started school, it was “left with the option of placing the child 

with one parent during the school year and with the other parent during the summer once the child 

is ready to start kindergarten.” The court then placed primary custody with Dixon subject to Klein’s 

parenting time. When calculating child support, the court indicated that once the child enters 

kindergarten, Klein would have approximately 120 days of parenting time. This appears to include 

an extended period in the summer. However, neither the parenting plan nor the order further 

discussed summer parenting time. We conclude that the order is unclear as to whether the district 

court intended that primary custody switch to Klein during the summer subject to Dixon’s 

parenting time. We therefore remand the matter to the district court for clarification as to the 

summer parenting time schedule.

Tax Dependency Exemption.

Klein asserts that the district court erred in failing to award the tax dependency exemption 

for the child. We agree. Although Klein did not specifically request the tax dependency exemption 

in her complaint, she did ask at trial that she at least be allowed to claim the child in odd-numbered 

years.

A tax dependency exemption is an economic benefit nearly identical to an award of child 

support or alimony. Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015). In general, the 

custodial parent is presumptively entitled to the federal tax exemption for a dependent child. Id. 

But a court may exercise its equitable powers and order the custodial parent to execute a waiver 
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of his or her right to claim the tax exemption for a dependent child if the situation of the parties so 

requires. Id.

In the present case, the parties initially share joint physical custody of the child on a week 

on week off basis. Thus, there is no one “custodial parent” during that time. As such, we cannot 

presume that either party is entitled to the tax dependency exemption, and we therefore remand 

the matter to the district court for an appropriate allocation of the dependency exemption.

CONCLUSION

We conclude that the district court did not abuse its discretion in considering and ordering 

joint custody, awarding Dixon primary physical custody once the child begins kindergarten and 

awarding Klein parenting time accordingly, or allocating holiday parenting time. We remand the 

cause to the district court for clarification as to the summer parenting time of each party once the 

child is in school and for consideration and allocation of the tax dependency exemption.

AFFIRMED IN PART, AND IN PART 

REMANDED WITH DIRECTIONS.