State on behalf of Natalya B. & Nikiah A. v. Bishop A. ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/31/2017 09:08 AM CST
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Nebraska Court of A ppeals A dvance Sheets
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STATE ON BEHALF OF NATALYA B. & NIKIAH A. v. BISHOP A.
Cite as 24 Neb. Ct. App. 477
State of Nebraska on behalf of Natalya B.
and Nikiah A., minor children, appellee,
v. Bishop A., defendant and third -party
plaintiff, appellee, and M imi B.
third -party defendant, appellant.
___ N.W.2d ___
Filed January 31, 2017. No. A-16-368.
1. Child Custody: Appeal and Error. 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.
2. Judgments: Evidence: Appeal and Error. In a review de novo on the
record, an appellate court reappraises the evidence as presented by the
record and reaches its own independent conclusions on the matters at
issue. When the evidence is in conflict, the appellate court considers and
may give weight to the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than another.
3. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. ____: ____. 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.
5. Visitation. The best interests of the children are the primary and para-
mount considerations in determining and modifying parenting time.
6. ____. The right of parenting time is subject to continuous review by
the court, and a party may seek modification of parenting time on the
grounds that there has been a material change in circumstances.
7. Directed Verdict: Evidence. A directed verdict is proper only when
reasonable minds cannot differ and can draw but one conclusion from
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STATE ON BEHALF OF NATALYA B. & NIKIAH A. v. BISHOP A.
Cite as 24 Neb. Ct. App. 477
the evidence, that is, when an issue should be decided as a matter
of law.
8. Directed Verdict: Appeal and Error. In reviewing a directed verdict,
an appellate court gives the nonmoving party the benefit of every con-
troverted fact and all reasonable inferences from the evidence.
9. Child Custody: Visitation: Stipulations. It is the responsibility of the
trial court to determine questions of custody and visitation of minor chil-
dren according to their best interests, which is an independent respon-
sibility and cannot be controlled by the agreement or stipulation of the
parties or by third parties.
10. Judgments: Appeal and Error. When evidence is in conflict, an appel-
late court considers and may give weight to the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
11. Records: Appeal and Error. When reviewing a decision of a lower
court, an appellate court may consider only evidence included within
the record.
12. ____: ____. A party’s brief may not expand the evidentiary record.
13. Trial: Evidence: Records: Appeal and Error. The erroneous admis-
sion of evidence in a bench trial is not reversible error if other relevant
evidence, properly admitted, sustains the trial court’s necessary factual
findings; in such case, reversal is warranted only if the record shows
that the trial court actually made a factual determination, or otherwise
resolved a factual issue or question, through the use of erroneously
admitted evidence.
14. Modification of Decree: Child Support: Appeal and Error. Although
an appellate court reviews the modification of child support payments de
novo on the record, it affirms the trial court’s decision absent an abuse
of discretion.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
B. Gail Steen, of Steen Law Office, for appellant.
Stephanie Flynn, of Stephanie Flynn Law Office, P.C.,
L.L.O., for appellee Bishop A.
Inbody and Pirtle, Judges, and McCormack, Retired
Justice.
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STATE ON BEHALF OF NATALYA B. & NIKIAH A. v. BISHOP A.
Cite as 24 Neb. Ct. App. 477
Pirtle, Judge.
I. INTRODUCTION
Mimi B. appeals the order of the Lancaster County District
Court which modified Bishop A.’s parenting time and tempo-
rarily suspended his child support obligations. For the reasons
that follow, we affirm.
II. BACKGROUND
Mimi and Bishop are the parents of two minor children,
Natalya B., born in 2007, and Nikiah A., born in 2005. The
children made allegations of physical and sexual abuse against
their father, Bishop. At the time of the allegations, Natalya
was 3 years old and Nikiah was approximately 5 years old. No
criminal or juvenile court proceedings were filed as a result of
these allegations, but the allegations have been a central issue
throughout this case.
An order was entered in August 2012 granting custody of the
minor children to Mimi, subject to Bishop’s parenting time, as
set forth in an incorporated parenting plan. The parenting plan
was signed by both Bishop (identified as the “Defendant”), and
Mimi (identified as the “Third-Party Defendant”), who were
both aware of the abuse allegations at that time.
The original parenting plan provided a “step-up” parenting
time schedule. It stated:
Because there has been no parenting time for a signifi-
cant period of time, [Bishop’s] visits with the children
should begin in a therapeutic setting/family therapy and
continue for a period of at least four (4) sessions, or until
the therapist recommends parenting time increase to Step
2 below. This family therapy shall not be administered
by the child’s current therapist, but rather by a differ-
ent therapist. [Bishop’s] suggestion is that Bertine Loop
be named to direct these family therapy sessions. It is
[Mimi’s] responsibility . . . to make sure the children
attend these sessions and are picked up from these ses-
sions. . . . Bertine should communicate with both counsel
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after each of the first four (4) sessions in order to help
each counsel assess progress and comfort level of Bishop
and the girls. Bertine should also communicate with
both counsel about realistically proceeding to Step 2 in a
timely fashion and potential persons to supervise/monitor
those visits set forth in Steps 2, 3 and 4[.]
Steps 2, 3, and 4 were also listed in the parenting plan, pro-
viding for progressively longer parenting time with decreas-
ing levels of supervision. Ultimately, the plan was for Bishop
to enjoy a normal parenting schedule, including alternating
weekends and holidays.
Bishop filed a complaint for modification on May 14, 2014,
alleging that (1) he had not had any contact with the minor
children since the entry of the court’s order; (2) the thera-
peutic visitation provided for in the parenting plan had not
occurred, so none of the steps in the step-up plan had been
satisfactorily completed; and (3) it is in the best interests of
the minor children to award him parenting time.
Mimi filed an answer, denying the allegations in Bishop’s
complaint and affirmatively alleging:
[N]o therapist who has worked with the minor children
believe[s] it is in their best interest for them to have con-
tact with [Bishop] due to disclosures of sexual abuse and
other physical abuse. [Mimi] affirmatively asserts and
alleges [Bishop] has admitted to such abuse to [Mimi],
yet has attempted to have contact with the minor children
outside of the Court’s orders.
Bishop filed a motion for temporary orders on November
3, 2014. On December 19, the court overruled the motion in
part and ordered the parties to establish mediation and/or coun-
seling for Bishop and report progress by February 2, 2015.
Bishop filed another motion for temporary orders on January
27, and the motion was sustained on February 20. The court
ordered Bishop to engage in therapy, either with “M.Paine or
M.Fran Flood,” who are named but not otherwise identified in
our record, or with someone of his choice who was approved
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by Mimi. The court further ordered that Bishop could begin
scheduled parenting time after completing a month of therapy,
so long as it was supervised by someone approved by Mimi,
and such approval could not be unreasonably withheld.
Bishop filed another motion for temporary orders on April
21, 2015, and the motion was sustained. A journal entry, signed
by the judge on May 29, stated that Bishop “shall be allowed
visitation with the minor children so long as it is supervised.”
The journal entry also stated that the temporary parenting time
should be exercised on Saturday or Sunday each weekend for a
period of not more than 2 hours. The court provided that “[t]o
the extent [Mimi] does not approve someone able and willing
to supervise the visitation [Bishop] shall receive a $50 credit
toward child support, the total amount of which is to be deter-
mined at trial . . . .” No parenting time occurred.
Trial took place on August 18, 2015. Bishop’s “significant
other” testified that she had been in a relationship with Bishop
for about 5 years. She was aware of the allegations of abuse,
but she had no concerns about living with him or allowing him
to be around her children. Another witness testified that he
was aware of the allegations of abuse, but trusted Bishop to be
around his children. The witness testified that Bishop was hap-
piest when he was with Natalya and Nikiah and that the girls
loved Bishop.
Bishop testified that he became aware of the allegations
against him on August 1, 2011, and that he spoke to Mimi and
police officers about the allegations of abuse. Bishop was not
cited by law enforcement, and there have been no criminal
actions or juvenile court proceedings regarding these allega-
tions. Bishop testified that Mimi has filed protection orders
against him and that he pled no contest to violations of these
orders. At the time of trial, Bishop was on probation for viola-
tion of a protection order.
Bishop testified that he participated in the required fam-
ily therapy with Bertine Loop-Schenken (Loop) and sought
information regarding group therapy sessions. Bishop was
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notified that Loop recommended additional counseling serv­
ices, and he participated in 8 weeks of therapy with Kristin
Smith in 2013. He contacted several agencies and individuals
regarding supervision for visits, but despite his efforts, no
family therapy ever occurred. He asked Dr. Lisa Blankenau
to supervise visits, but she declined. He testified that the
last time he had any contact with the children was February
15, 2011.
Bishop also testified that he was told that supervised visits
could occur after he completed a month of therapy, which he
completed with Dr. Steven Blum in 2015. They discussed how
to act around the children and how to safely reestablish a con-
nection with the children.
Mimi testified that she met with Loop, but that the children
had not. She stated that she agreed to the original parenting
time, which included a plan for graduated visitation, but that
she did not believe it to be in the children’s best interests.
Mimi did not believe that any visitation should occur until
Bishop “takes responsibility and gets help for himself.” She
said Bishop should admit the children’s allegations and seek
professional help. Mimi testified that she was aware of the
temporary order for supervised visitation but that there was
no one she felt comfortable with as a supervisor until Bishop
sought help.
Mimi moved for directed verdict, and the court overruled
her motion. The court noted that the 2012 order contained a
graduated schedule for parenting time and placed the decision-
making authority with a counselor for making parenting time
decisions. The court noted that Nebraska case law states that
arrangements of this nature are not proper.
Rita Regnier testified that she met with Natalya and Nikiah
in individual and family therapy approximately 19 times
between 2013 and 2015. In 2015, Regnier met with the chil-
dren twice, once in March and once in May. Regnier became
aware that Nikiah’s anxiety was heightened prior to court pro-
ceedings, leading to self-harming behavior. This information
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was provided by Mimi and was not gained through personal
contact with the children. She said the children have been
very consistent in stating that they care about their father but
that they did not want to see him. Regnier testified that there
were concerns the children had been coached but that in her
opinion, they were not and their accounts of the alleged abuse
were consistent.
Regnier opined that the children needed to be given some
control over whether visitation with Bishop occurred. She
concluded that visitation would not be in the children’s best
interests unless they demonstrated a desire to see him. Regnier
did not meet or see Bishop around the children, and she testi-
fied that, given her relationship with Mimi and the children,
she could not be objective toward him.
Loop testified that she had not had contact with the parties
since October 2013 and that, at that time, she had recom-
mended that Bishop and the children have no contact. Loop
testified that further individual therapy was needed prior to
starting family therapy.
On October 5, 2015, the trial court issued an order find-
ing that Bishop had met his burden to show there had been
a material change of circumstances and that the prior orders
of the court should be modified accordingly. The court found
that establishing parenting time with Bishop was in the chil-
dren’s best interests and that such parenting time should be
entered into cautiously. However, the court found the evi-
dence was insufficient to create an appropriate long-term
parenting plan. The court found that this could only be
completed after the children were prepared for contact with
their father and supervised parenting time had occurred. The
court issued temporary orders for Bishop to attend counseling
focused on minimizing discomfort or stress in reconnecting
with the children and for the children to engage in counsel-
ing to prepare them for contact with their father. Therapeutic
parenting time was scheduled to begin the week of November
23, 2015. The court scheduled an affidavit-only hearing on
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January 8, 2016, to review the temporary order “as well as
proposals for ongoing parenting time prior to entry of a final
order by the court.”
On November 3, 2015, Mimi filed a motion for order to
show cause alleging Bishop attempted to contact the children
in public on October 8. She sought an order of the court direct-
ing Bishop to appear and show cause why he should not be
punished for contempt of court as a result of his “willful and
contumacious failure to comply with the Court’s Orders of
August 10, 2012 and October 5, 2015.” A hearing was sched-
uled for November 30.
Mimi filed a motion to modify parenting time on November
19, 2015. She alleged that the children were not in a position
to begin visits with Bishop at that time.
At the hearing on November 30, 2015, the court stated
that eventually visits between Bishop and the children would
happen but said they would “walk slowly.” The court noted
the difficulty of determining the disputed factual matters
while balancing the children’s anxiety and the children’s best
interests. Following the hearing, the court filed temporary
orders which suspended Bishop’s child support obligation,
temporarily suspended visitation between Bishop and the chil-
dren pending further hearing, continued the obligation for
the children to participate in individual therapy, and ordered
Mimi to prevent her mother from participating in or discuss-
ing therapy sessions with the children. Mimi was also ordered
to pay the costs of therapeutic visits between Bishop and the
minor children.
A final hearing took place on January 20, 2016. The court
received evidence through affidavits upon agreement of the
parties and an offer of proof as to Bishop’s testimony. The
parties stipulated to an affidavit from Regnier as to her rec-
ommendations and professional opinions regarding parent-
ing time.
The court filed an order on March 7, 2016. The court found
the evidence before it did not support a finding of contempt.
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The court vacated the order to show cause and dismissed
Mimi’s contempt application. The court also found that visi-
tation between Bishop and the minor children continued to
be in the children’s best interests in the long term. The court
ordered the children to continue in counseling to prepare them
for contact with Bishop, and it set a new schedule for gradu-
ally introducing parenting time and increasing the duration
of time Bishop spends with the children incrementally. The
court ordered Bishop’s child support obligation to resume on
September 1.
III. ASSIGNMENTS OF ERROR
Mimi asserts the district court erred in overruling her
motion for directed verdict and in modifying the parties’ par-
enting plan. She asserts that the district court’s decision was
made in reliance on improperly received evidence and that the
district court erred in temporarily suspending Bishop’s child
support obligation.
IV. STANDARD OF REVIEW
[1] 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 determina-
tion will normally be affirmed absent an abuse of discre-
tion. Floerchinger v. Floerchinger, ante p. 120, 883 N.W.2d
419 (2016).
[2] In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions on the matters at issue. When
the evidence is in conflict, the appellate court considers and
may give weight to the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts
rather than another. Id. See, also, Schrag v. Spear, 290 Neb. 98,
858 N.W.2d 865 (2015).
[3,4] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable
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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.
V. ANALYSIS
1. Modification of
Parenting Time
[5,6] The best interests of the children are the primary and
paramount considerations in determining and modifying par-
enting time. State on behalf of Maddox S. v. Matthew E., 23
Neb. Ct. App. 500, 873 N.W.2d 208 (2016). The right of parenting
time is subject to continuous review by the court, and a party
may seek modification of parenting time on the grounds that
there has been a material change in circumstances. Id. See,
also, Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d
243 (1997).
In 2012, the parties agreed to a parenting plan allowing
Bishop to have parenting time with the minor children pursuant
to a “step-up parenting time schedule.” Step 1 of the plan stated
that Bishop would have visits with the children in “a therapeu-
tic setting/family therapy” for at least four sessions, or until
the therapist recommended the parties should progress to Step
2, and beyond. In 2014, Bishop filed a complaint for modifica-
tion, asserting that a material change of circumstances which
warranted modification of the order had occurred. Specifically,
he asserted that he had not seen and had not been able to con-
tact the children since the adoption of the parenting plan and
that no therapeutic visits had occurred. Bishop asserted that the
court should award him reasonable parenting time, because it
was in the best interests of the minor children.
(a) Directed Verdict
Mimi asserts the district court erred in denying her motion
for directed verdict at the close of Bishop’s evidence at trial.
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She asserts there was no material change of circumstances
justifying modification of the existing parenting plan.
[7,8] A directed verdict is proper only when reasonable
minds cannot differ and can draw but one conclusion from the
evidence, that is, when an issue should be decided as a matter
of law. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1
(2015). In reviewing that determination, we give the nonmov-
ing party the benefit of every controverted fact and all reason-
able inferences from the evidence. Id.
[9] Nebraska case law dictates that it is the responsibility of
the trial court to determine questions of custody and visitation
of minor children according to their best interests, which is
an independent responsibility and cannot be controlled by the
agreement or stipulation of the parties or by third parties. Mark
J. v. Darla B., 21 Neb. Ct. App. 770, 842 N.W.2d 832 (2014).
After reviewing the existing parenting plan, the district court
found it provided for an improper “delegation of authority” to
allow a therapist or other third party to determine when and if
parenting time should occur. Thus, the court determined that
the parenting plan must be modified.
Mimi asserts that the district court does not give weight
to the fact that Bishop stipulated to the 2012 order which
included the provision that a therapist make determina-
tions regarding when parenting time should move forward.
However, this court and the Nebraska Supreme Court have
found, as stated above, that the authority to determine the
extent and time of visitation is an independent responsibility
of the court and cannot be controlled by the agreement or stip-
ulation of the parties or by third parties. Mark J. v. Darla B.,
supra. See Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757
(1980), disapproved on other grounds, Gibilisco v. Gibilisco,
263 Neb. 27, 637 N.W.2d 898 (2002). Thus, the trial court did
not err in determining that the original parenting plan must
be modified and did not err in overruling Mimi’s motion for
directed verdict.
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(b) Best Interests
The court found that parenting time with Bishop is in the
children’s best interests. The March 2016 order established a
plan to gradually reintroduce visits between Bishop and the
children in a safe, controlled environment and to work up to
longer periods of unsupervised parenting time. Mimi argues
the district court erred by finding that any parenting time with
Bishop is in the children’s best interests.
Neb. Rev. Stat. § 43-2923(1) (Reissue 2016) states that
the best interests of a child require a parenting arrangement
and parenting plan providing for a “child’s safety, emotional
growth, health, stability, and physical care and regular and
continuous school attendance and progress for school-age chil-
dren.” Section 43-2923(6) states that the court shall consider
the best interests of the minor children, which includes, but is
not limited to the following factors:
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member. . . ; and
(e) Credible evidence of child abuse or neglect or
domestic partner abuse.
The court heard evidence from the parties, witnesses, and
professionals regarding the history of the minor children and
the reports that they have experienced fear and anxiety related
to their relationship with their father. The court found that it is
clear that the children are fearful of Bishop and may not feel
safe in his presence, but that Bishop denied the abuse and the
court had “no basis to act on that fear.”
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While the court recognized that witnesses opined that con-
tact with Bishop could be emotionally harmful, even in a thera-
peutic setting, the court also considered the fact that the wit-
nesses had little or no personal contact with Bishop. Regnier
testified that she had never met Bishop, that she has not seen
him around the children, and that her opinion was based solely
on communications with Mimi and the children. She testified
that she saw no benefit to seeing Bishop for therapy, because
she could not be objective toward him.
There was no expert testimony specifically supporting
the establishment of parenting time between Bishop and the
children. However, Bishop requested assistance from several
therapists and his requests were declined. Specifically, Dr.
Blankenau declined to facilitate the court-ordered visits, in part
due to Regnier’s recommendation that visits were not in the
children’s best interests at that time.
The court considered the evidence that Bishop is employed,
has frequent contact with children, and expressed an under-
standing that reestablishing a connection with his own chil-
dren must be a gradual process. Bishop’s “significant other”
testified that she was aware of the allegations of abuse, yet
expressed no hesitation in allowing Bishop to come in contact
with her own children. The court found that Bishop could be
trusted to slowly, carefully, and prudently reestablish contact
with the children.
[10] An appellate court reappraises the evidence as pre-
sented by the record and reaches its own independent conclu-
sions on the matters at issue. When evidence is in conflict, the
appellate court considers and may give weight to the fact that
the trial judge heard and observed the witnesses and accepted
one version of the facts rather than another. Floerchinger v.
Floerchinger, ante p. 120, 883 N.W.2d 419 (2016). See, also,
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
Upon our review, it is clear that the district court considered
the health, welfare, and social behavior of the minor children,
as well as their desires and wishes. The evidence shows that
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the relationship of the children to Bishop was strained prior to
the commencement of the initial action and that there has been
no contact for a number of years, beginning with the original
allegations of physical and sexual abuse. However, in the most
recent years, Bishop was allowed no contact with the children
despite court orders specifically allowing supervised therapeu-
tic visits.
We do not discount the children’s allegations or Mimi’s
concerns, but there is little in the record to support a finding
that Bishop should be barred from all future interaction with
the children. The parties agree that the children have a genu-
ine fear and belief that Bishop behaved inappropriately, but
there is no evidence in our record that abuse by Bishop did,
in fact, occur. The parties agree that there were no criminal
charges or juvenile court proceedings brought as a result of
these allegations.
Mimi argues that Bishop did not deny the allegations of
abuse in his testimony. While this is true, it is a mischaracter-
ization of the evidence, as he was not asked on direct or cross-
examination to address whether the alleged abuse occurred.
Bishop did deny improper contact with his daughters in his
affidavit stating that he has dealt with “false allegations of
abuse.” He also denied the allegations in his communication
with counselors and therapists, and Loop testified that she was
aware of this fact.
The children did not testify as to their feelings regard-
ing this situation or their desire to see their father going
forward. Mimi argues Bishop did not provide any evidence
the children wanted to see him, but such evidence would be
difficult to obtain given that he has not been permitted to see
the children since the entry of the original parenting plan in
2012. The statements the children made to Regnier are the
only evidence in the record of the children’s wishes regarding
parenting time. With regard to Regnier, the court found that
her strongly held opinions “apparently have crowded out any
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alternative” to barring further contact between Bishop and
the children.
Mimi challenges the court’s finding of Bishop’s fitness
to parent, alleging that there is “uncontroverted evidence
of his violence against [her] as documented by protection
orders, convictions for violations of those protection orders,
and being on parole at time of trial.” Brief for appellant at
22. We note that Mimi incorrectly states that Bishop was on
parole, when he was actually on probation at the time of trial.
Further, the record presented does not support the assertion
that there was uncontroverted evidence of violence by Bishop
against Mimi.
[11,12] When reviewing a decision of a lower court, we
may consider only evidence included within the record. Home
Fed. Sav. & Loan v. McDermott & Miller, 243 Neb. 136, 497
N.W.2d 678 (1993). See, also, Ging v. Ging, 18 Neb. Ct. App.
145, 775 N.W.2d 479 (2009). A party’s brief may not expand
the evidentiary record. Id. We do not discount the fact that a
protection order was granted, or the fact that Bishop admitted
to violating such protection order. The record does contain evi-
dence of an alleged probation violation in which Mimi asserted
that Bishop improperly contacted her by telephone. However,
any specific instances or allegations of violence by Bishop
toward Mimi are not a part of the record, and thus, we may not
consider any alleged violence as a factor in determining the
children’s best interests.
We find the district court considered the appropriate factors,
and we give deference to the district court’s attempt to find a
workable solution to best protect the children’s best interests.
Clearly, the evidence was in conflict, and we consider and give
weight to the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than
another. See Floerchinger v. Floerchinger, ante p. 120, 883
N.W.2d 419 (2016). Under the circumstances of this case and
in consideration of the record that was presented to us for
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review, we cannot say that the district court abused its discre-
tion in finding that parenting time with Bishop, beginning in
a safe space under the supervision of a therapist, was in the
children’s best interests.
2. R eliance on
Improper Evidence
Mimi asserts the district court’s findings were not supported
by properly received evidence. She argues that the court should
consider only evidence presented in and properly received by
the court and that exhibit 16, cited in the district court’s order,
was not properly received.
Exhibit 16 is a letter from Dr. Blum referencing his therapy
sessions with Bishop. This letter was offered at trial on August
18, 2015. Mimi asserted hearsay and foundation objections,
and the court took the matter under advisement. The court
sustained the objection in the order filed on October 5. In the
order, filed March 7, 2016, the trial court referred to exhibit 16,
and as a result, Mimi asserts the district court’s findings were
supported by evidence that was not properly received.
[13] Assuming, without deciding, that the trial court abused
its discretion in reviewing the content of exhibit 16, we find
there is no reversible error. The erroneous admission of evi-
dence in a bench trial is not reversible error if other relevant
evidence, properly admitted, sustains the trial court’s necessary
factual findings; in such case, reversal is warranted only if the
record shows that the trial court actually made a factual deter-
mination, or otherwise resolved a factual issue or question,
through the use of erroneously admitted evidence. Griffith v.
Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).
The district court cited exhibit 16 in stating Dr. Blum’s
opinion that Bishop “understood and had empathy for the pos-
sible fear that his daughters might hold.” The parties stipulated
that Bishop participated in therapy with Dr. Blum, and Bishop
also testified regarding his therapy sessions with him. Bishop
testified that they discussed the fact the children “believed
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certain things” about him and he would be like a stranger
to them at first, due to the time that has passed since they
last saw one another. Bishop testified that he and Dr. Blum
discussed how displays of affection could be misinterpreted,
and Dr. Blum advised him regarding how to approach the
children once a parenting time schedule was established. They
discussed how to reestablish a connection and find a common
bond with the children. The court’s reference to and reliance
upon this exhibit was limited. We find that the evidence is
cumulative and that other relevant evidence, properly admit-
ted, supports the findings of the district court. See Worth v.
Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
To the extent that Mimi challenges the court’s findings of
parental fitness related to parenting time, the sufficiency of
the evidence regarding the children’s best interests was pre-
viously addressed in our discussion of the modification of
parenting time.
3. Child Support
Mimi asserts the district court erred in suspending Bishop’s
child support obligation.
[14] Although an appellate court reviews the modification
of child support payments de novo on the record, it affirms
the trial court’s decision absent an abuse of discretion. Stekr v.
Beecham, 291 Neb. 883, 869 N.W.2d 347 (2015).
The trial court’s temporary order on December 10, 2015,
stated that Bishop’s child support obligation would be sus-
pended commencing November 30 and continuing until further
order of the court. At that time, any scheduled visits were sus-
pended until further hearing on Bishop’s complaint to modify
and Mimi’s contempt action. The order also set the date for the
next hearing, and the issue of child support was addressed at
that time.
The order of March 7, 2016, which is the order at issue on
this appeal, continued the suspension of child support tem-
porarily. Bishop’s child support obligation was scheduled to
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resume on September 1. The parenting plan detailed in the
court’s order provided that Bishop would have parenting time
in increasing frequency and duration, with decreasing supervi-
sion over time. By August 15, 2016, the parties were to follow
the parenting schedule allowing Bishop reasonable parenting
time comporting with Wilson v. Wilson, 224 Neb. 589, 399
N.W.2d 802 (1987). This schedule includes every other week-
end and certain holidays. September was to be the first full
month where that schedule would apply.
Mimi argues that to “abate child support only hurts the
children and rewards [Bishop].” Brief for appellant at 24. She
argues that she was not a barrier to Bishop’s parenting time
with the children, but, rather, it was Bishop’s actions and the
children’s anxiety stemming from being around him that were
the barriers.
The child support issue on appeal is the suspension of
child support between December 2015 and September 2016.
However, the parties’ history, related to child support, is
relevant in determining whether the district court’s order is
an abuse of discretion. On May 29, 2015, the court ordered
Bishop to be allowed visitation with the minor children so
long as it was supervised. In the same order, the court allowed
Bishop to receive a $50 credit toward child support if Mimi
did not “approve someone able and willing to supervise the
visitation.” The evidence shows that Mimi never approved
anyone to supervise and no visits ever occurred. The child
support credit was used by the district court as a means to
compensate Bishop for his inability to exercise his court-
ordered visitation.
Upon reviewing the evidence at trial, the district court
determined that both parties had taken actions which were
detrimental to the children and that the court did not believe
that Mimi had always “acted in good faith and taken all steps
reasonable to promote establishing a reasonable schedule of
parenting time with [Bishop].” As previously discussed, the
court found that allowing Bishop to have parenting time was
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in the children’s best interests, and we found that this was not
an abuse of discretion. A portion of Mimi’s brief suggests that
child support was suspended indefinitely, when, in fact, child
support was suspended from December 2015 to September
2016. In light of the complicated history of these parties, and
the fact that Bishop had been allowed no contact with the chil-
dren since the entry of the original parenting plan, we find the
district court did not abuse its discretion in suspending child
support temporarily until Bishop was allowed to begin reason-
able parenting time.
VI. CONCLUSION
We find the district court did not abuse its discretion in
overruling Mimi’s motion for directed verdict, in finding that
parenting time with Bishop was in the children’s best interests,
and in temporarily suspending child support.
A ffirmed.