Opheim v. Opheim ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
OPHEIM V. OPHEIM
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).
DAYSHA R. OPHEIM, NOW KNOWN AS DAYSHA R. STONE, APPELLANT,
V.
DAMON R. OPHEIM, APPELLEE.
Filed November 2, 2021. No. A-20-821.
Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
Daysha R. Stone, pro se.
Donald A. Roberts and Justin A. Roberts, of Roberts Law, L.L.C., for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Daysha R. Opheim, now known as Daysha R. Stone, appeals from an order of the district
court for Sarpy County which partially granted the request of Damon R. Opheim to modify the
parties’ parenting plan for their minor children. On appeal, Daysha asserts that the district court
erred in determining that Damon met his burden of proof to show that a material change of
circumstances occurred and that the modification was in the best interests of the children. Daysha
also alleges that the district court erred in not granting the parties joint legal custody. She further
alleges that the district court violated her First Amendment rights in prohibiting her from talking
about these proceedings or future court proceedings with the children. For the reasons set forth
herein, we affirm the order of the district court.
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BACKGROUND
Daysha and Damon were married in February 2003 and divorced in June 2009. In the
original decree, Daysha was awarded sole custody of the parties’ two daughters, Oasis born in
2005, and Alexis, born in 2006. In 2011, the decree of dissolution was modified with respect to
Damon’s summer parenting time and child support obligation. However, Daysha remained the
girls’ custodial parent. On October 1, 2014, Damon filed a second complaint for modification
requesting sole physical custody of the children alleging that there had been a material change in
circumstances due to concerns regarding Daysha’s deteriorating mental health and erratic
behavior. Following trial, the district court entered an order of modification on November 10,
2015, granting Damon sole legal and physical custody of the children. Daysha was granted
specified parenting time on weekends, certain week days, summer, and holidays. Daysha appealed
to this court. On appeal, we recounted and analyzed the evidence presented at trial and affirmed
the decision of the district court. See Opheim v. Opheim, No. A-15-1153, 2016 WL 6210925 (Neb.
App. Oct. 25, 2016) (selected for posting to court website).
On October 17, 2017, Damon again filed a complaint for modification alleging that further
events had occurred which constituted a material change in circumstance since the November 2015
modification order was entered that would warrant imposing limitations and restrictions on
Daysha’s parenting time with the minor children. Damon requested that the district court require
that Daysha’s parenting time with the children be supervised. In the complaint, Damon specifically
alleged that Daysha’s conduct in front of the children had worsened and intensified as she
continued to claim conspiracies within the city of Bellevue, Nebraska, and makes these types of
statements in front of the children. He also alleged that she had been living in her vehicle and had
no means of financial support. Damon further alleged that Daysha does not emotionally support
the children. Finally, Damon requested permission to remove the children to the state of Iowa.
Daysha filed an answer and counterclaim in response to Damon’s complaint, wherein she
denied each of the allegations that Damon raised. Additionally, in her counterclaim, she
affirmatively alleged that she had lost her job and, as a result, had limited income. She asked the
district court to reduce her child support to $50 per month.
On February 6, 2018, Damon filed a motion requesting the suspension of Daysha’s
parenting time with the children pending the hearing on his complaint for modification. Following
a hearing on February 23, 2018, the district court entered a temporary order stating that while it
found Daysha’s recent behavior concerning, it did not rise to the level to warrant suspension of her
parenting time.
A trial was held on Damon’s complaint to modify on September 19, 2018. Daysha did not
appear at the trial. Damon testified at the trial and the district court dismissed Daysha’s
counterclaim requesting a reduction in child support and entered an order of modification granting
permission for Damon to permanently remove the children from Nebraska to Iowa. The court’s
order also terminated Daysha’s Wednesday evening parenting time, such that she was only
permitted to see the children every other weekend. Daysha asserted that she did not receive notice
of the trial and filed a motion to vacate the order and for a new trial which the district court granted.
On August 1, 2019, prior to a new trial being held, Daysha filed a motion she called an
“Amended Answer and Counter to Complaint” wherein she alleged that Damon did not permit her
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to exercise her parenting time with the children on various dates. Daysha also asserted that the
parties’ youngest child, Alexis, had requested to live with her full time. Daysha requested that the
court award the parties with joint legal custody of both children and award her with sole physical
custody of Alexis.
The new trial was held on March 10 and June 23, 2020. The primary witnesses at trial were
Damon and Daysha. Damon also called as a witness the principal of Alexis and Oasis’ former
school in Bellevue, Nebraska. Alexis and Oasis testified in camera.
Daysha and Damon both testified with respect to their respective residences. Daysha
testified that in November 2015, she lived in a house in Bellevue, Nebraska; however, began living
in her car in 2016. She lived in her car for approximately 1 month because she was attempting to
save money in order to be able to afford an apartment. She moved into an apartment in Bellevue
in 2016 before again living in her car for approximately a month. She testified that she then moved
to Denison, Iowa, in 2017 where she lived in an extended stay hotel for approximately 3 months.
She eventually moved to Griswold, Iowa, to a small one-bedroom apartment above a bar where
she resided at the time of trial. Daysha pays a reduced rental at this location by virtue of qualifying
for subsidized Section 8 housing.
Damon lives in a four-bedroom home he and his wife, Mallory, own in Council Bluffs,
Iowa. In addition to Oasis and Alexis, the 2-year-old daughter of Damon and Mallory lives in the
home. Each of the children have their own bedroom. According to the evidence adduced at trial,
Daysha’s residence in Griswold is approximately 45 minutes away from Damon’s residence in
Council Bluffs. Daysha testified that if she was awarded sole physical custody of Alexis, she would
begin the process of seeking Section 8 housing in Council Bluffs. She had not made any efforts to
begin the moving process at the time of trial, stating her preference to wait for the court’s decision
on custody and because she indicated that she would have difficulty affording a move.
Damon and Daysha also testified as to their respective employments. Damon testified that
he has been employed through the U.S. Air Force for 14 years. Daysha testified that she previously
worked as a real estate agent but she had not been employed since November 2014. She receives
social security disability payments as a result of a mental health disability. She receives
approximately $1,176 per month from her disability benefits, but $167 per month is deducted for
her child support obligation. She also receives SNAP benefits and accesses food banks for
additional help with food. Daysha stated that she has sold crafts she has made, but that to this point
her costs have exceeded the proceeds of the sales. Daysha testified that she does not have any plans
to seek employment because she believes that Damon has been “able to pull some strings” and has
intentionally ruined her career. Daysha provided the following explanation regarding how Damon
ruined her career.
During the prior modification proceedings in 2015, several witnesses who had either been
neighbors of Daysha or teachers of the children testified regarding concerns about Daysha’s
behavior and mental health. She believed that information provided by these witnesses to the police
and the Department of Health and Human Services resulted in her being committed to a mental
health care facility for treatment. During the current trial, Daysha indicated that Damon
manipulated these witnesses into providing false information and testifying against her. In
addition, she explained that Damon initiated the inpatient mental health treatment:
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The reason they put me there was on a sworn affidavit. He said I could have a gun and I
could shoot people with it. He told them I was smashed and that the turned - he said I was
smashed when they asked if I drank. But he left out things like I don’t drink, you idiot.
LOL. I don’t drink, you idiot. He lied. That’s what got me in there.
Daysha also contended that the only reason she was in the mental health facility was because
Damon was involved in a secret meeting with the Board of Mental Health and she was not notified
of the meeting. She explained that she lost clients in her former profession as a realtor because of
the time she spent at a mental health care facility. Ultimately, Daysha testified that she believed
she would be unable to work in the real estate field in the future due to Damon’s actions and the
resulting time she spent in a mental health facility.
Daysha admitted that she had made a statement in front of Damon and her daughters that
was disparaging to Jewish people. Daysha admitted that the day she made the statement, she had
something against “Jews” because her brother “turned against” her while she was in a mental
health care facility. Damon testified that Daysha made these comments in January 2017 and
initially, Damon and Daysha were having a logical conversation in regard to a Supreme Court
ruling, which turned into Daysha using curse words toward people of the Jewish faith and about a
secret society. During Daysha’s comments, Damon reminded her that the children were present
and she simply repeated what she had said. Daysha testified at trial that she loves people of the
Jewish faith.
Damon’s concerns about Daysha’s mental health and the safety of the children while in her
care was heightened by a telephone call he received from the Denison, Iowa, police department in
2018. The officer who called reported that after officers had contacted her, Daysha had threatened
to kill herself and the entire police department. The threats arose from an incident wherein Daysha
had ordered a pizza for delivery. Daysha became upset with the charge for the pizza and called the
restaurant. Daysha told the employee that she was a Christian woman trying to do right in the
world, that the FBI and CIA are after her, and she was just going to end it. The employee who
answered the call was concerned for her safety and contacted the police. After the police made
contact with Daysha, she called the restaurant again and accused the employee of being the
anti-Christ, a liar, and a sinner for calling the police on her. In her testimony, Daysha accused the
employee of lying due to Damon’s influence. She stated that Damon “is a liar himself. He hangs
out with liars. He knows all the liars, all the con artists or something. This is insane. This is why I
don’t work because of these lies and affidavits from people I’ve never even met.” She explained
that she did not know why the employee was lying except,
[j]ust maybe Damon talked to him. He does that. He’ll call people. He’ll call my landlords.
He’ll try to get in touch with my neighbors, my friends, my family, anything he can to get
something on me. He’ll turn it all in to Oasis and never even show it to me. That’s why
she’s messed up.
Damon testified that Daysha talks to the children about conspiracies that Daysha believes
in. Damon testified about an incident that occurred in June 2019, where Oasis and Daysha were
fighting because Oasis refused to attend scheduled parenting time with Daysha. According to
Damon, Daysha demanded that he force Oasis into Daysha’s vehicle. Damon said that Oasis told
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him that Daysha says weird things and Daysha clarified that it was about a secret society. Daysha
initially denied that she talks to the children about conspiracies, including counterintelligence,
secret societies, and statements that denigrate people of the Jewish faith. However, she later
conceded that she did talk to Oasis about these things because she believes that they are the truth.
Daysha explained that she believes population control is real. In response to a line of questioning
regarding her belief in conspiracies, Daysha responded:
You’re trying to set me up to be crazy because I can’t prove something. When thousands,
if not millions, of people believe this stuff, they’re just too scared to talk about it. . . . We
don’t go around passing out -- go ahead. I’m sure you love this. . . . Makes me look stupid.
You’re the perfect lawyer.
She admitted that she believes these conspiracies are true and “pretending those things don’t exist
is bad.” She also explained that state secrets “can’t be heard in a court. That’s how secretive they
are.”
Daysha explained that she has told Oasis that Oasis is ruining Alexis’ childhood because
Oasis’ testimony in court would prevent Daysha from having custody of Alexis. According to
Daysha, Oasis is “always trying to record me, always trying to get me in trouble.” She also testified
that she has told Oasis that when she plays the bass guitar at the church she attends, she is
worshipping Satan.
The principal at Oasis and Alexis’ former elementary school in Bellevue testified as to her
two interactions with Daysha in February 2015 and September 2016. She testified that in February
2015, Daysha came to the school looking for Oasis and Alexis, although they were no longer
students there. According to the principal, school officials were notified that Daysha was
attempting to gain access to different elementary schools in the area in order to find her children.
The school was told not to let her in, but Daysha had been allowed in. The principal testified that
Daysha asked if her children went to school. She informed Daysha that they could not give her
this information.
The principal also testified about a separate incident in September 2016, when the school
was notified that Daysha was in the parking lot at the school. At the time, the school had been
asked to notify the police and the student service director if Daysha was seen at the school. The
school called the police when they were notified that Daysha was in the parking lot. According to
the principal, the school’s policy was to call the police if a custody issue arose. She further
explained that the school’s safety plan required them to prevent any people who do not have
children at the school or who are not there on official business from being in the school.
Oasis and Alexis both testified in camera and the testimony was shared with the parties at
the conclusion of trial. Oasis, 15 years old at the time of trial, testified that she does not feel like
the past custody orders should apply to her now that she is older. She explained that she does not
want to attend parenting time with Daysha but is worried that both she and Damon will get into
trouble if she does not go. She explained that the reason that she does not want to attend visitations
with Daysha is because she gets into arguments with Daysha and does not want to have more
arguments. She testified that on occasion she is embarrassed by Daysha. As an example, she
testified that when they go to the library, Daysha will wear headphones and talk loudly. Oasis also
heard Daysha talk about government sound waves and other conspiracies which concerns Oasis.
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Oasis further explained that Daysha calls Damon a liar and a hypocrite and claims that Damon is
brainwashing her. In contrast, she testified that Damon does not talk poorly about Daysha except
to say Daysha has spent time in a mental hospital. Oasis explained that she has a good relationship
with Alexis and that she loves her young half sister who she lives with in Council Bluffs. She
further explained that she offers to watch her half sister for Damon and Mallory because she wants
to.
Alexis, who was 13 years old at the time of trial, told the court that she would prefer to live
with Daysha instead of Damon. However, she wants to continue attending school in Council
Bluffs. Alexis explained that she believed Daysha would move to Council Bluffs to help facilitate
Alexis attending the same school. The primary reason given for living with Daysha was that she
feels less stress when she is with Daysha and Daysha listens to her. She believes that Damon treats
her differently because she wants to live with Daysha. She also believes that her stepmother,
Mallory, is “really snotty.” She denies that Daysha has any mental health problems. While she
denied that Daysha has discussed prior court proceedings with her, she indicated she has heard
Daysha say that Damon owes her money for child support.
The district court entered a decree of modification on August 20, 2020. The court decreased
Daysha’s parenting time to 3 hours on each Wednesday evening and 3 hours each Saturday and
Sunday. Following a motion to alter or amend, the court ordered that Saturday and Sunday
visitation would occur every other weekend. Daysha was given 4 hours of parenting time on the
holidays assigned to her. The court also reduced summer parenting time to the same schedule as
the remainder of the year. The court expressed its concern that unless supervised, Daysha would
place improper influence over Alexis. However, it found that Daysha did not have the economic
means to afford a supervision agency. As a result, the court found that minimizing Daysha’s ability
to isolate Alexis and influence her was the most appropriate solution.
As a basis for modification, the court found that Damon had proved that a material change
in circumstances occurred since the entry of the prior modification order. Specifically, the court
found that Daysha’s behavior has continued to decline and “[t]his declination has a negative effect
on the minor children and a modification of the Decree is in the best interests of the minor
children.” The court found that Daysha did not meet her burden to modify the decree by awarding
her sole custody of Alexis. Specifically, the court noted that while Alexis’ stated preference to
reside with Daysha could constitute a material change of circumstances, in this case, Alexis did
not possess the requisite capacity to express an intelligent preference. The court explained that
Alexis’ stated preference was the “result of [Daysha]’s improper influence over, and suggestions
to, Alexis.” Moreover, the court explained that Alexis was unable to “provide answers with
articulate reasons” to support her opinions. In contrast, the court found Oasis to be credible as to
her descriptions of troubling behavior engaged in by Daysha, and of requisite maturity and age to
give her opinion.
The court made specific findings of fact. The court found that Daysha was transient for a
period of time and lived in her vehicle before she eventually moved to Denison, Iowa, even though
she previously told Damon she would move to Council Bluffs. According to the court, Daysha has
not made any arrangements, inquiries, or discussions to move to Council Bluffs. The district court
also noted that Daysha continues to demonstrate concerning behaviors, specifically noting the
testimony of the principal and the threats made in Denison involving Daysha, the restaurant
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worker, and the police. The court further found that she has continued to discuss matters including
“mental illness, government surveillance, the Illuminati, people of the Jewish faith, government
spying, Free Masons, and the Secret State” with and in front of the children. The court also found
that Damon and Daysha continue to have an inability to communicate.
In addition to all of the above considerations, the district court explicitly found that Damon
was a credible witness and that he was more credible than Daysha. Finally, the court noted that a
split custody arrangement would not be in the best interest of Oasis and Alexis because, in part, it
would negatively affect their relationship with each other and Alexis’ relationship with her half
sister.
Daysha now appeals to this court.
ASSIGNMENTS OF ERROR
Daysha assigns 12 errors by the district court. However, to be considered by an appellate
court, an alleged error must be both specifically assigned and specifically argued in the brief of
the party asserting the error. Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019). This
requirement is not designed to impede appellate review, but to facilitate it by preventing parties
from shifting to appellate courts the critical tasks of searching the record for relevant facts,
identifying possible error, and articulating a legal rationale that supports the assigned error. State
v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016). Moreover, an argument that does little more than
to restate an assignment of error does not support the assignment, and an appellate court will not
address it. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014). Upon our review, there are
several errors that Daysha assigns but does not argue or does not argue more than merely restating
the error. We recognize that Daysha is pro se upon appeal. However, a pro se litigant is obligated
to follow the same appellate rules and procedures applicable to counsel, including the requirement
that the appellant point out alleged errors by reference to specific portions of the record. Cole v.
Isherwood, 271 Neb. 684, 716 N.W.2d 36 (2006). Accordingly, we do not address many of the
errors assigned in Daysha’s brief.
The errors that Daysha both assigns and argues, consolidated, renumbered, and restated
are: (1) the district court erred in finding that a material change in circumstances was proven and
that the modification of parenting time was in the best interests of the children, (2) the district court
erred in not granting joint legal custody of the children to the parties, and (3) the district court
violated Daysha’s constitutional rights by prohibiting her from talking to her children about any
past, current, or future court proceedings.
STANDARD OF REVIEW
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of
discretion. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). 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.
Cornwell v. Cornwell, 309 Neb. 156, 959 N.W.2d 243 (2021).
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ANALYSIS
Daysha argues that the district court erred in finding that Damon met his burden of proof
to show that a material change of circumstances occurred after the 2015 modification. In addition,
she argues that the district court erred in finding that it was in the best interests of the children to
decrease her parenting time. Upon our de novo review of the record, we find no abuse of discretion.
In a child custody modification action the party seeking modification must first
demonstrate that a material change in circumstances has occurred after the entry of the previous
custody order which affects the best interests of the child and that it is in the child’s best interests
that custody be changed. Hopkins v. Hopkins, supra. A material change in circumstances means
the occurrence of something which, had it been known at the time of the initial decree, would have
persuaded the court to decree differently. State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68,
871 N.W.2d 230 (2015). The party seeking modification of child custody bears the burden of
showing as an initial matter that there has been a change in circumstances. Id.The prior modification was entered on November 30, 2015. Daysha argues that the court
should not have considered evidence concerning events that occurred prior to that time. We
recognize that some evidence was received regarding Daysha’s prior mental health history and
some specific events pertinent thereto. We note, however, that Daysha testified to some of these
events in her case in chief. However, we note that the purpose of most, if not all of this testimony
was to give the judge a factual context for the later events that occurred following the prior order
of modification. We note that the judge hearing this trial was not the same judge who had heard
the prior modification trial and entered the prior order. Moreover, nearly every event relied upon
by the court in its order took place after that date.
In his complaint to modify, Damon specifically alleged that Daysha’s behaviors in front of
the children had worsened and intensified since the entry of the prior modification order. In his
testimony, Damon testified about circumstances which had occurred in 2017 and 2018, after the
prior order was entered. He testified regarding the disparaging comments Daysha made in January
2017 about people of the Jewish faith and that she repeated such comments even after being
reminded that she was in front of the children. Damon also testified that in 2018, he received a
phone call from the Denison, Iowa, police department, during which he was informed that Daysha
had threatened to commit suicide and to kill the entire police department. In addition, Oasis
testified that she heard Daysha talk about government soundwaves and other conspiracies. Damon
and Oasis both testified that Daysha continues to make statements about conspiracies in front of
Oasis and Alexis. While Daysha initially denied making these statements, she later conceded that
she did make such statements and that she believes it is worse if someone would not talk about
them. Daysha testified as to her belief in the truth of her statements.
Finally, we note that the district court made specific findings that Damon was a credible
witness and was, in fact, a more credible witness than Daysha. We will consider the fact that the
trial court saw and heard the witnesses and observed their demeanor while testifying, and will give
great weight to the trial court’s judgment as to credibility. Hamit v. Hamit, 271 Neb. 659, 715
N.W.2d 512 (2006). When viewing the totality of the evidence, and accepting the veracity of
Damon’s testimony, as the district court did, we find no abuse of discretion in the district court’s
conclusion that a material change of circumstances occurred since the entry of the prior
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modification order in 2015 because Daysha’s behavior and mental health issues had continued to
intensify and that she discusses inappropriate topics with the children.
Next, we turn to whether the best interests of the children compel a change to the prior
custody order and parenting plan. The child’s best interests require a parenting arrangement and
plan which provides for a child’s emotional growth, health, stability, physical care, and regular
and continuous school attendance and progress. Neb. Rev. Stat. § 43-2923 (Reissue 2016).
Moreover, § 43-2923 sets forth a nonexhaustive list of factors to be considered in determining the
best interests of a child in regard to custody. Such factors include the relationship of the minor
child with each parent, the desires of the minor child, the general health and well-being of the
minor child, and credible evidence of abuse inflicted on the child by any family or household
member.
Specifically regarding the desires of a minor child, the statute provides that the court should
consider “[t]he 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.”
§ 43-2923(6)(b). The Nebraska Supreme Court in applying this provision has stated that while the
wishes of a child are not controlling in the determination of custody, if a child is of sufficient age
and has expressed an intelligent preference, the child’s preference is entitled to consideration.
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). The Supreme Court has also found that
in cases where the minor child’s preference was given significant consideration, the child was
usually over 10 years of age. Id. If a child is of sufficient age and has expressed an intelligent
preference, the child’s preference is entitled to consideration alongside other factors. Jaeger v.
Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020). The amount of consideration will depend on the
child’s age and ability to give reasons for his or her preference. Id. More consideration will be
afforded where additional factors that bear on the child’s best interests undergird the child’s stated
preference and reasoning. Id. Where a trial court’s order demonstrates that the child’s age and
reasoning have been duly considered alongside the child’s stated preference, we will generally
defer to the trial court’s credibility determinations in our assessment of facts. Id.In the present case, Alexis was of a sufficient age (13) to express her preference to reside
with Daysha. Alexis’ preference was based on her determination that she felt less stressed when
she was with Daysha and Daysha listened to her. She also indicated dissatisfaction with her
relationship with Mallory, and, to a lesser extent, Oasis. The district court considered her in camera
testimony and determined that she was unable to provide answers with articulate reasons to support
her opinions. The district court, instead, determined that her answers were the result of suggestions
by Daysha to Alexis. The district court expressed concern that Daysha was improperly influencing
Alexis. As a result, the district court placed little weight or credibility on Alexis’ testimony and
ultimately determined that it needed to limit the ability of Daysha to isolate Alexis and influence
her. In contrast, the court found Oasis’ testimony to be credible regarding Daysha’s behavior and
the topics she discusses with the girls during her parenting time. The district court determined that
Oasis had the necessary maturity to express her preference. The district court’s order thus
demonstrated that the child’s age and reasoning had been duly considered. Pursuant to our standard
of review, we defer to the court’s credibility determinations with respect to Alexis and Oasis.
With respect to the rest of the best interests analysis, we find no abuse of discretion in the
district court’s determination that the best interests of the children supports a decrease in Daysha’s
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parenting time. Daysha has not demonstrated stability for herself or the children since the previous
modification order. She has moved frequently, even to the extent of living in her car at times. The
children currently attend school in Council Bluffs which they both want to continue. Despite
attempting to regain custody of Alexis, Daysha has made no efforts to move to Council Bluffs to
be closer to her children. Nor has she made any efforts to obtain employment after losing her job
in 2014.
The emotional growth and well-being of the children also support such a change. Daysha’s
parenting time was decreased to minimize Daysha’s ability to isolate Alexis and influence her on
topics that are at best inappropriate for a child, and at worst bizarre. She also discusses the ongoing
acrimony present in her relationship with Damon with the children. She has told Oasis that Oasis
is ruining Alexis’ childhood with her testimony that would prevent her from regaining custody of
Alexis. The evidence demonstrates that Daysha still harbors resentment toward Damon and
communicates her opinion to the children that Damon is a liar and a hypocrite. Based on her
testimony throughout the trial, she continues to blame Damon for her not having a job. She accused
Damon of influencing witnesses to lie for him.
Daysha has also threatened harm to herself and to an entire police department. This issue
provides further support for the court’s decision to limit Daysha’s parenting time to shorter periods
of time. Accordingly, we find no abuse of discretion in the district court’s determination that the
best interests of the children, specifically with respect to their safety, stability, emotional growth,
and well-being supports the court’s modification of parenting time.
Joint Legal Custody.
Daysha argues that the district court should have granted the parties joint legal custody
because the children would benefit from her and Damon sharing joint legal custody. We note that
Daysha also argues that she should have been awarded physical custody of Alexis. However, she
did not assign this issue as error in her brief. Since this issue was not specifically assigned as error,
we do not consider it. See Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).
“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).
The court’s determination is governed by the best interests of the children. The Parenting Act,
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 2018), defines “[j]oint legal
custody” as the “mutual authority and responsibility of the parents for making mutual fundamental
decisions regarding the child’s welfare, including choices regarding education and health.”
§ 43-2922(11). Courts typically do not award joint legal custody when the parties are unable to
communicate effectively. See Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009).
In the present case, Daysha concedes in her brief on appeal that the parties have a high
conflict relationship and are unable to communicate effectively. The district court agreed,
explicitly noting in its factual finding that the parties were unable to communicate effectively. The
evidence presented at trial also revealed that Daysha has difficulty in making good choices
regarding the children’s welfare. Given the parties’ volatile relationship, Daysha’s ongoing mental
health struggles, and her deficiencies in making decisions, we agree with the district court that it
is not in the best interests of the children to grant the parties joint legal custody.
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First Amendment Violation.
Daysha argues that the portion of the district court’s order which instructed her not to
discuss the court proceedings with her children violated her First Amendment rights. In her brief
on appeal, Daysha provides this court with no case law applying the First Amendment to an
analogous situation.
Daysha is correct insofar as she argues that a parent has a constitutionally protected,
fundamental right to make decisions concerning the care, custody, and control of the child. See
Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021). However, our Supreme Court has also
explained that a custody order should heed both parents’ constitutional rights to the care, custody,
and control of their child, as well as the child’s need for a stable, healthy environment. Korth v.
Korth, 309 Neb. 115, 958 N.W.2d 683 (2021). Moreover, the paramount concern for a court in
fashioning a parenting plan must be the best interests of the children. § 43-2921. The parenting
plan must establish specific individual responsibility for performing parenting functions as are
necessary and appropriate for the care and healthy development of each child affected by the
parenting plan. Id. In recognition that cooperation between parents is in the child’s best interests,
trial courts have placed restrictions on communication from the parent to the child, which we have
upheld. For example, when it is in the child’s best interests, a parenting plan may provide that the
parents not disparage or denigrate the other parent. See, e.g., State on behalf of Carter W. v.
Anthony W., 24 Neb. App. 47, 879 N.W.2d 402 (2016) (finding that there was not an abuse of
discretion in devising plan for communication which will minimize conflict between parties).
In another case, the Supreme Court determined that under the facts of that case, there was
not an abuse of discretion in imposing reasonable restrictions on a mother’s religious discussions
with the minor children. Peterson v. Peterson, 239 Neb. 113, 474 N.W.2d 862 (1991). The court
found that the father’s abilities to perform his duties as a custodial parent and to provide for the
children’s religious training would be undermined with corresponding harm to the children if the
mother was permitted to foster and maintain fears in the children if they participated in the
activities of the father’s church. Id. In addition, the court noted that these discussions were causing
great distress and confusion for the children. Id. The court went further and held that when a
parent’s First Amendment interests may be implicated in an action concerning the custody or
visitation of his or her children, the courts will not impinge upon those interests absent an
immediate and substantial threat to the temporal well-being of the children. Id.In the present case, there was an immediate and substantial threat to the well-being of the
children. Daysha has talked to the children about the court proceedings stoking conflict between
the children and Damon. She has called Damon a liar and a hypocrite. She also believes that
Damon is manipulating witnesses to testify against her. Here, after personally observing Alexis’
in camera testimony, the district court found that her opinions were the result of Daysha’s
suggestions and improper influence over her. The record supports the district court’s determination
that Daysha has told Oasis that she is ruining Alexis’ childhood by giving testimony that would
prevent Daysha from having custody of Alexis. Daysha conceded that she had made this statement
to Oasis.
The district court placed a reasonable restriction on Daysha’s communication with her
children in an effort to minimize any improper influence over the children, and more importantly,
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in an effort to promote a positive relationship between the children and both of their parents. The
court, based on the evidence presented, had reason to require Daysha to stop disparaging Damon
or otherwise talk about past or ongoing litigation. Such communication promotes confusion and
distress in the children and undermines Damon’s ability to parent the children effectively. The
district court sought to resolve the conflicts between the parties in a manner that would be in the
best interests of the children. Part of that effort was its order to remove the children from the
conflict between the parents. Under the facts and circumstances of this case, a prohibition on
talking about current and future court proceedings is a specific individual responsibility within the
parenting plan that is necessary and appropriate for the care and healthy development of Alexis
and Oasis. Accordingly, we find Daysha’s assignment of error to be without merit.
CONCLUSION
Based upon our de novo review of the record, we find that the district court did not abuse
its discretion in entering an order reducing Daysha’s parenting time with the children and by
instructing her not to discuss the court proceedings with her children. We further find no abuse of
discretion in the court’s decision to deny Daysha’s request for joint legal custody.
AFFIRMED.
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