Eric H. v. Ashley H. , 302 Neb. 786 ( 2019 )


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    05/31/2019 08:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    ERIC H. v. ASHLEY H.
    Cite as 
    302 Neb. 786
    Eric H., appellant, v.
    Ashley H., now known as
    Ashley E., appellee.
    ___ N.W.2d ___
    Filed April 5, 2019.     No. S-18-253.
    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. ____: ____. In child custody cases, where the credible evidence is in
    conflict on a material issue of fact, 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. Modification of Decree: Words and Phrases. A material change of cir-
    cumstances constituting grounds for modification of a dissolution decree
    means the occurrence of something which, had it been known to the
    dissolution court at the time of the initial decree, would have persuaded
    the court to decree differently.
    4. Pleadings. Pleadings frame the issues upon which the cause is to be
    tried and advise the adversary as to what the adversary must meet.
    5. Pleadings: Appeal and Error. Decisions regarding the scope and mean-
    ing of pleadings are reviewed for an abuse of discretion.
    6. Modification of Decree: Child Custody. Before the district court
    considers whether a change of custody is in the best interests of the
    children, it must first find that there has been a material change of cir-
    cumstances that has occurred since the entry of the prior order.
    7. Modification of Decree: Child Custody: Proof. The party seeking
    modification of a custody order must prove a material change in circum-
    stances by a preponderance of the evidence.
    8. Evidence: Words and Phrases. Competent evidence is evidence that is
    admissible and tends to establish a fact in issue.
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    302 Nebraska R eports
    ERIC H. v. ASHLEY H.
    Cite as 
    302 Neb. 786
    Appeal from the District Court for Hall County: John H.
    M arsh, Judge. Affirmed in part, and in part reversed and
    remanded with directions.
    Samuel R. O’Neill, of Svehla Law Offices, P.C., L.L.O.,
    for appellant.
    Stephen T. Knudsen, of Grafton Law Office, P.C., L.L.O.,
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    I. NATURE OF CASE
    A father appeals from the district court’s denial of his motion
    to modify custody of a minor child after the child reported that
    her stepfather was sexually abusing her. The district court
    found that the father had failed to prove that the reported
    abuse had occurred. We conclude that the district court applied
    the correct standard of proof and did not abuse its discretion
    in its determination of the scope and meaning of the father’s
    complaint. However, we also conclude that the court made an
    error of law in finding there was “no competent evidence” of
    sexual abuse by the stepfather. Consequently, we affirm in part,
    and in part reverse and remand with directions to consider all
    competent evidence adduced at trial.
    II. BACKGROUND
    Eric H. and Ashley H., now known as Ashley E., were
    divorced in 2015. One minor child, M.H., was born to the
    marriage. Pursuant to a prior joint stipulation to modify, the
    district court entered an order in November 2016 providing
    for joint legal and physical custody, with a parenting schedule
    that gave each parent equal time with M.H.
    1. M ay 24, 2017, Ex Parte Order
    On May 24, 2017, Eric moved for an ex parte order giving
    him full custody of M.H. until a sexual assault investigation
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    ERIC H. v. ASHLEY H.
    Cite as 
    302 Neb. 786
    could be concluded. Eric averred that M.H., 6 years old at
    that time, had reported that Matthew E., Ashley’s husband and
    M.H.’s stepfather, sexually assaulted her. The district court
    issued an ex parte order that same date, suspending Ashley’s
    parenting time until further order of the court.
    2. Deferral of Jurisdiction
    to Juvenile Court
    On June 6, 2017, the district court entered an order declin-
    ing to exercise further jurisdiction until the juvenile court was
    no longer exercising jurisdiction under a petition to adjudicate
    pursuant to 
    Neb. Rev. Stat. § 43-247
    (3)(a) (Reissue 2016).
    The juvenile case pertaining to the allegations of sexual
    abuse was dismissed on September 15, 2017. It was undisputed
    that Matthew had not been arrested in relation to M.H.’s report
    or charged with any crime, though law enforcement did inves-
    tigate. A medical examination conducted during the juvenile
    investigation showed no signs of abuse.
    3. Complaint to Modify
    On September 22, 2017, Eric filed in the district court an
    amended complaint to modify the November 2016 order of
    joint physical and legal custody and award Eric primary cus-
    tody subject to reasonable parenting time by Ashley. The com-
    plaint described the material change of circumstances as:
    [Ashley] has remarried to Matthew . . . . [Matthew] was
    the subject of an investigation in York County, Nebraska
    for the sexual assault of the minor child. The case was
    in the Juvenile Court of York County, Nebraska located
    at case number JV 17-28. The case was dismissed on
    September 15, 2017.
    4. September 26, 2017, Ex Parte Order
    The same day that Eric filed to modify custody, he also
    moved for a new ex parte order suspending Ashley’s parent-
    ing time with M.H. In an affidavit attached to the motion, Eric
    described the reasons why, despite the dismissal of the juvenile
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    ERIC H. v. ASHLEY H.
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    302 Neb. 786
    case, he still believed that “something happened” and that
    M.H. would be in danger if she had unsupervised visitation
    with Ashley. Eric’s wife, Cassie H., also submitted an affidavit
    in support of the motion.
    The affidavits described that M.H. had reported to Eric and
    Cassie that Matthew pulled her pants down and touched her
    inappropriately. Further, M.H. had patted Eric’s private parts
    and told him that Matthew had said it was “ok” to do that. Eric
    and Cassie described that M.H. was wetting the bed and oth-
    erwise “not acting normal” when she first reported the abuse.
    They alleged that M.H. had improved during the time that
    visitation with Ashley was suspended.
    The ex parte order was granted pending a hearing on October
    4, 2017. After the October 4 hearing, the court vacated the ex
    parte order.
    In vacating the ex parte order, the court concluded that
    Eric had failed to prove by a preponderance of the evidence
    that M.H., by that time 7 years old, was the victim of sexual
    abuse or was otherwise endangered in Ashley’s home. The
    court noted that the initial interview of M.H., in which she
    first disclosed any inappropriate behavior by Matthew, was
    conducted by Cassie, an interested party. Cassie was employed
    by the Department of Health and Human Services (DHHS)
    and had completed a course in interviewing children. The
    court observed that subsequent to the initial interview with
    Cassie, M.H. attended weekly therapy and it was the therapist’s
    opinion that M.H.’s reports of sexual abuse were made in an
    “‘authentic’” manner consistent with congruent emotions and
    symptoms. However, the court also stated that testimony that a
    child is credible has been disapproved in State v. Doan, 
    1 Neb. App. 484
    , 
    498 N.W.2d 804
     (1993).
    The court further noted that M.H. did not testify at the
    hearing, and it considered the evidence of sexual abuse to be
    “problematic”:
    The Court is left with hearsay statements of a 7-year-
    old child made to her step-mother and to her counselor.
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    ERIC H. v. ASHLEY H.
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    302 Neb. 786
    Offenses committed and against children too young to
    testify are troubling in that in many cases, the only wit-
    ness is unable to testify under established rules of evi-
    dence. The Court is however constrained by rules of law
    and must respect a parent’s constitutionally protected
    relationship with the child, as well as protecting the best
    interest of the child.
    The initial interview of the minor child [by Cassie]
    is problematic, in that it was not conducted by a neutral
    party. The Court can find no established hearsay excep-
    tion to the child’s statements. It is uncertain whether this
    initial interview and continued residence with the step-
    mother influenced the child’s statements to the counselor.
    5. Hearing on Motion to Modify
    The hearing on the complaint to modify was held on
    February 8, 2018. Ashley, Eric, and Cassie testified.
    Additionally, a mental health practitioner, Lisa Pattison, testi-
    fied, and the notes from another mental health practitioner,
    Cynthia McDowell, were entered into evidence. Finally, the
    court conditionally accepted into evidence notes from an
    interview of M.H. conducted by a child advocacy center, sub-
    ject to its ruling on Ashley’s hearsay objection. A caseworker
    with DHHS who was assigned to M.H. during the juvenile
    investigation testified mainly for the purpose of establishing
    foundation for the interview notes. M.H. did not testify at
    the hearing.
    (a) Bed-Wetting and Other Behaviors
    Eric and Cassie testified that, generally, on the day that
    M.H. transitions from Ashley’s custody to Eric’s custody, M.H.
    will act differently than she normally does, staring off into
    space and crying easily. After a “good night’s sleep,” however,
    she is usually fine.
    During the week of May 20, 2017, M.H. wet the bed while
    at Eric and Cassie’s house. She had also had an accident at
    Ashley’s house that week.
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    ERIC H. v. ASHLEY H.
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    302 Neb. 786
    Cassie testified that the last time M.H. had wet the bed at
    their home was in December 2016. Ashley testified that M.H.
    stopped wetting the bed regularly when she was 4 years old,
    but that she would occasionally still wet the bed. According to
    Ashley, bed-wetting occurred most frequently when M.H. had
    a urinary tract infection. According to Ashley, M.H. had a uri-
    nary tract infection the week of May 20, 2017.
    According to Eric and Cassie, from May until the end of
    June 2017, M.H. continued to wet the bed at Eric’s house,
    a total of approximately 23 times. Eric and Cassie also
    described that M.H. started having frequent nightmares about
    a monster.
    M.H. started mental health counseling in June 2017, which
    was arranged by Eric during his parenting time. Eric and Cassie
    testified that after M.H. began counseling, M.H. stopped wet-
    ting the bed or having nightmares. Eric and Cassie did not
    dispute that in July 2017, during the time that M.H. was in
    Eric and Cassie’s sole physical placement pending the conclu-
    sion of an investigation by DHHS, she was diagnosed with a
    urinary tract infection.
    (b) M.H.’s Initial Reports of
    Abuse by Matthew
    During the week of May 20, 2017, when Cassie learned of
    M.H.’s bed-wetting, she obtained Eric’s permission to ask M.H.
    some questions. She explained that she had child interview
    training. Cassie testified without objection that when Cassie
    asked M.H. some questions, M.H. told Cassie that Matthew
    had pulled her pants down and touched her private parts. Eric
    reported this to Ashley.
    Ashley testified that she was shocked when Eric told her
    that M.H. had reported abuse by Matthew. She had no prior
    knowledge of any abuse or reports of abuse. She did not see
    any signs at home that M.H. might be experiencing abuse.
    But she supported Eric’s decision to call Child Protective
    Services, because she “wanted to know what the truth was.”
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    ERIC H. v. ASHLEY H.
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    302 Neb. 786
    Ashley stated that she fully cooperated with the investigation.
    Matthew and Ashley at all relevant periods of time have con-
    tinued living together. Ashley noted that M.H. was upset that
    she was not allowed to see Matthew during supervised visita-
    tion while the juvenile case was pending.
    When asked whether she believed M.H.’s allegations, Ashley
    explained that she did not know what had happened. She tes-
    tified, “I’m not saying that she’s lying, but it’s just based on
    what I see at home and what [M.H.] tells me just — I don’t
    know what the truth is.” She explained further, “I don’t see
    the signs of what I would see for somebody that would be sex­
    ually abused.” Ashley was “not saying [M.H. was] lying, but
    just all the stories I was told, they don’t add up to what I see
    [M.H.] do.”
    (c) M.H.’s Reports of
    Abuse by Classmates
    According to Ashley, the same week that M.H. reported
    Matthew had sexually assaulted her, she told Ashley that some
    boys at school had come up behind her, pulled her pants down,
    and touched her. DHHS investigated the report. According to
    Cassie, who was familiar with the allegations as well, a boy
    was expelled in relation to the incident. But, according to a
    caseworker with DHHS who was assigned to M.H. during the
    juvenile investigation, M.H. and a boy were “playing a game”
    and the boy “patted her — popped her on the butt a little bit,
    but there was nothing else other than that.”
    (d) Counseling
    Mental health counseling for M.H. was arranged by Eric and
    Cassie without Ashley’s knowledge or consent. M.H. began her
    counseling with McDowell. Later, McDowell became ill. She
    was unable to testify at the hearing.
    (i) Exhibit 16: Counseling Notes
    Exhibit 16, which contained McDowell’s progress notes
    from 19 sessions with M.H., was entered into evidence over
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    ERIC H. v. ASHLEY H.
    Cite as 
    302 Neb. 786
    Ashley’s foundation objection. Ashley did not object on hear-
    say grounds. In those notes, McDowell described that M.H. had
    disclosed to her consistent details of sexual abuse by Matthew,
    as well as coaching by Ashley not to disclose the abuse.
    According to McDowell, M.H. had described to her that
    Matthew “‘puts his hands on my private parts’” and “‘puts
    his potty on my potty and it bled.’” M.H. also reported to
    McDowell that Matthew had “‘hit my potty with his potty’”
    and that she “‘pee[ed] in my pants.’”
    M.H. reportedly told McDowell that the first time Matthew
    took off her clothes, she was lying in bed for a nap, Matthew
    came in and took off her pants, and “‘[H]e had a glass and
    he dropped it and then he picked it up and put it inside my
    potty.’” M.H. told McDowell that it hurt and that M.H. had
    screamed. According to M.H., Ashley came in and “‘put some
    napkins on it.’”
    (ii) Pattison’s Testimony
    M.H. began seeing Pattison in November 2017. Without
    objection, Pattison testified that she had seen M.H. seven times
    since then. She testified that M.H. had consistently told her
    that she had been touched inappropriately by Matthew. M.H.
    did not go into details other than to say that it happened in her
    room, that there was glass involved, and that it hurt. According
    to Pattison, M.H. told her that Ashley was working on making
    sure that it was safe for her to go home.
    When Pattison raised the possibility of M.H.’s having to
    testify in the juvenile proceedings, Pattison observed M.H.
    become “very, very frightened that her mom and her stepdad
    would be in the room.” Pattison testified, further, that after a
    joint session with Ashley, Eric, and Cassie, M.H. seemed more
    reluctant to talk with her. On January 11, 2018, after that joint
    session, M.H. reported to Pattison that a boy had touched her
    at school.
    Pattison explained that bed-wetting often coincides with
    child sexual abuse. She acknowledged that it is inappropriate
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    for an interested person, such as a stepparent, to conduct a
    sexual abuse interview. However, she did not see any signs that
    M.H. had been coached to make the report of sexual abuse.
    Pattison opined that Matthew had sexually abused M.H.
    (e) Exhibit 19: Child Advocacy
    Center Interview Notes
    During the hearing, the court provisionally accepted into
    evidence exhibit 19, over Ashley’s hearsay objection. M.H.
    was interviewed by a child advocacy center forensic inter-
    viewer on May 22, 2017, and exhibit 19 contained the notes
    from that interview. In the interview, M.H. made reports of
    sexual abuse similar to those described above.
    6. Order Denying Modification
    The court dismissed the amended complaint to modify.
    The court found that a “fair implication” of the material
    change of circumstances alleged in the complaint to modify
    was that “the stepfather had actually sexual [sic] abused the
    child.” The court also stated that finding a material change
    of circumstances based upon the “mere fact of filing the June
    the [sic] juvenile petition, which was then dismissed without
    adjudication may violate due process.” The court thus lim-
    ited its inquiry to whether Eric had proved that Matthew had
    abused M.H.
    The court concluded that Eric had failed to prove by a pre-
    ponderance of the evidence that Matthew had sexually abused
    M.H. It explained:
    The Court received records of mental health practi-
    tioners which include a diagnosis of adjustment disorder
    with mixed disturbance of emotions and conduct. While
    the Court can make no finding that the stepfather sex­
    ually abused the child counseling records indicate that
    his presence appears to be a source of stress for the child.
    The father and stepmother’s testimony suggests that the
    child the [sic] better during the time that the child had
    limited contact with her mother.
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    ERIC H. v. ASHLEY H.
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    ....
    . . . As noted the court finds no competent evidence
    that the stepfather has such [sic] abused the minor child.
    In making these findings, the court did not consider exhibit 19.
    The court found that exhibit 19 was inadmissible hearsay.
    The court found that while the counseling records indicated
    that Matthew’s presence “appears to be a source of stress for
    the child,” “the pleadings did not provide [Ashley] with notice
    reasonably calculated to inform her that custody would be
    changed on a basis other than the sexual abuse investigation
    and subsequent filing and dismissal of a juvenile petition.”
    Eric appeals.
    III. ASSIGNMENTS OF ERROR
    Eric assigns that the district court (1) erred in concluding
    that he had to prove by a preponderance of the evidence that
    Matthew sexually abused M.H., (2) erred in concluding that
    the pleadings did not provide Ashley with notice reasonably
    calculated to inform her that custody could be changed on a
    basis other than the sexual abuse investigation and subsequent
    filing and dismissal of a juvenile petition, and (3) abused its
    discretion when it failed to grant Eric’s motion to modify the
    custody decree.
    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 determination
    will normally be affirmed absent an abuse of discretion. State
    on behalf of Jakai C. v. Tiffany M., 
    292 Neb. 68
    , 
    871 N.W.2d 230
     (2015).
    [2] In child custody cases, where the credible evidence is in
    conflict on a material issue of fact, the appellate court consid-
    ers, 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.
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    V. ANALYSIS
    [3] Prior to the modification of a child custody order, two
    steps of proof must be taken by the party seeking the modi-
    fication. First, the party seeking modification must show a
    material change in circumstances, occurring after the entry of
    the previous custody order and affecting the best interests of
    the child. Hopkins v. Hopkins, 
    294 Neb. 417
    , 
    883 N.W.2d 363
    (2016). See, also, Schrag v. Spear, 
    290 Neb. 98
    , 
    858 N.W.2d 865
     (2015). Next, the party seeking modification must prove
    that changing the child’s custody is in the child’s best inter-
    ests. Hopkins v. Hopkins, 
    supra.
     The issue in this appeal is
    whether the court erred in finding that Eric had failed to show
    the occurrence of the alleged material change in circumstances.
    The court did not proceed beyond this first step to address
    whether a change in custody was in M.H.’s best interests.
    A material change of circumstances constituting grounds for
    modification of a dissolution decree means the occurrence of
    something which, had it been known to the dissolution court at
    the time of the initial decree, would have persuaded the court
    to decree differently. Collett v. Collett, 
    270 Neb. 722
    , 
    707 N.W.2d 769
     (2005).
    1. Scope of Modification Proceeding
    As a threshold matter, Eric asserts that the material change
    of circumstances considered by the district court was too nar-
    row in scope. Eric suggests that the court erroneously focused
    on whether actual abuse had occurred instead of considering
    the possibility that the allegations against Matthew, whether or
    not true, constituted a material change in circumstances. Eric’s
    argument appears to be that the court should have considered
    modifying custody based on M.H.’s stress in relation to her
    contact with Matthew, which was demonstrated by the allega-
    tions of abuse. Eric argues in full:
    [Eric’s] complaint clearly made allegations that
    [Ashley’s] marriage to Matthew . . . , [Matthew’s] behav-
    ior, and his proximity to the minor child were at issue. If
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    the complaint is liberally construed in [Eric’s] favor, the
    court must consider all aspects relating to [Matthew’s]
    contact with the minor child. This includes all evidence
    of stress that [Matthew] causes the minor child as noted
    the district court’s order. . . . In addition, other pleadings
    including the original Motion for Ex-Parte Order and sec-
    ond Motion for Ex-Parte Order, and Affidavits in Support
    of the Motion for Ex-Parte Order clearly indicated that
    behavior of [Matthew] would be an issue at trial. . . .
    There is no question that [Ashley] had notice reasonably
    calculated to inform her that custody could be changed
    on a basis other than the sexual abuse allegations against
    [Matthew].
    Brief for appellant at 17 (citations omitted).
    
    Neb. Rev. Stat. § 42-364
    (6) (Reissue 2016) provides that
    “[m]odification proceedings relating to . . . custody . . . shall
    be commenced by filing a complaint to modify. . . . Service
    of process and other procedure shall comply with the require-
    ments for a dissolution action.” In certain respects, these
    statutes specify special pleading requirements. See, e.g., 
    Neb. Rev. Stat. § 42-353
     (Reissue 2016). But otherwise, the ordi-
    nary rules of pleading apply to proceedings to modify custody.
    Cf. Whitesides v. Whitesides, 
    290 Neb. 116
    , 
    858 N.W.2d 858
    (2015). We have explained that a pleading has two purposes:
    (1) to eliminate from consideration contentions which have no
    legal significance and (2) to guide the parties and the court in
    the conduct of cases. 
    Id.
    [4] Pleadings frame the issues upon which the cause is to
    be tried and advise the adversary as to what the adversary
    must meet. 
    Id.
     See, also, Heistand v. Heistand, 
    267 Neb. 300
    ,
    
    673 N.W.2d 541
     (2004). A court’s determination of ques-
    tions raised by the facts, but not presented in the pleadings,
    should not come at the expense of due process. Zahl v. Zahl,
    
    273 Neb. 1043
    , 
    736 N.W.2d 365
     (2007). While the concept
    of due process defies precise definition, it embodies and
    requires fundamental fairness. 
    Id.
     Generally, procedural due
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    process requires parties whose rights are to be affected by
    a proceeding to be given timely notice, which is reasonably
    calculated to inform the person concerning the subject and
    issues involved in the proceeding; a reasonable opportunity to
    refute or defend against a charge or accusation; a reasonable
    opportunity to confront and cross-examine adverse witnesses
    and present evidence on the charge or accusation; represen-
    tation by counsel, when such representation is required by
    constitution or statute; and a hearing before an impartial deci-
    sionmaker. 
    Id.
    [5] The district court determined that the scope of Eric’s
    complaint was limited to the alleged sexual abuse of M.H. as
    the material change of circumstances justifying modification.
    The court determined that the pleadings did not provide Ashley
    with notice reasonably calculated to inform her that custody
    could be changed on any other basis. Decisions regarding the
    scope and meaning of pleadings are reviewed for an abuse of
    discretion. See Taxpayers Against Casinos v. State, 
    478 Mich. 99
    , 
    732 N.W.2d 487
     (2007).
    The district court did not abuse its discretion in its deter-
    mination of the scope and meaning of Eric’s complaint. The
    complaint alleged that the material change of circumstances
    was that Ashley had married Matthew and that Matthew was
    “the subject of an investigation in York County, Nebraska for
    the sexual assault of the minor child,” resulting in a juvenile
    court case that was eventually dismissed. But neither remarry-
    ing nor being the “subject of an investigation” which led to the
    dismissal of the juvenile proceeding is a circumstance that is
    inherently material. As the court noted, the material change of
    circumstances alleged by implication in the complaint was that
    Matthew had actually sexually assaulted M.H.
    The complaint did not allege more. It did not refer to
    M.H.’s “stress” or any other aspect of her relationship with
    Matthew. The complaint did not even make direct reference to
    M.H.’s reports of abuse. At no point did Eric seek to amend
    the complaint.
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    Furthermore, while issues not raised by the pleadings may
    be tried by express or implied consent of the parties, see
    Neb. Ct. R. Pldg. § 6-1115(b) and United Gen. Title Ins. Co.
    v. Malone, 
    289 Neb. 1006
    , 
    858 N.W.2d 196
     (2015), there
    was neither evidence of such consent nor evidence that Eric
    attempted to try any issue other than the allegation of actual
    sexual abuse. The evidence presented at the hearing focused
    on whether Matthew had actually sexually abused M.H. Eric
    did not present evidence of any reason why M.H. would have
    made false reports. And there is no indication that the issues
    presented in relation to the ex parte order were any different.
    The district court did not err in concluding that any change
    of circumstances different from the alleged sexual abuse was
    outside the scope of the modification proceeding.
    2. Standard of Proof
    for Sexual A buse
    Eric also asserts that the district court’s determination that
    he had to prove the allegations of sexual abuse by a preponder-
    ance of the evidence imposed an “improper and unworkable
    burden.” Brief for appellant at 9. Eric elaborates that whether
    the abuse actually occurred was the “wrong inquiry,” because
    “the movant need not prove that some material change—be it
    abuse and neglect or alcohol abuse—actually occurred (or did
    not occur). Rather, the court must consider the evidence in the
    totality and determine whether, in the best interest of the child,
    modification is warranted.” 
    Id. at 10
    .
    [6] Eric misunderstands our statements regarding the para-
    mount nature of children’s best interests. We have repeatedly
    held that before the district court considers whether a change
    of custody is in the best interests of the children, it must first
    find that there has been a material change of circumstances
    that has occurred since the entry of the prior order. See,
    Hopkins v. Hopkins, 
    294 Neb. 417
    , 
    883 N.W.2d 363
     (2016);
    Hoschar v. Hoschar, 
    220 Neb. 913
    , 
    374 N.W.2d 64
     (1985),
    disapproved on other grounds, Parker v. Parker, 
    234 Neb. 167
    , 
    449 N.W.2d 553
     (1989). See, also, Schrag v. Spear,
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    290 Neb. 98, 
    858 N.W.2d 865
     (2015). Proof of a change of
    circumstances is not an optional element to a modification
    proceeding. Proof of a material change of circumstances is the
    threshold inquiry in a proceeding on a complaint to modify,
    see 
    id.,
     because issues determined in the prior custody order
    are deemed res judicata in the absence of proof of new facts
    and circumstances, see Rauch v. Rauch, 
    256 Neb. 257
    , 
    590 N.W.2d 170
     (1999). Furthermore, limiting custody changes to
    material changes in circumstances avoids extensive and repeti-
    tive litigation and unnecessary, potentially harmful fluctuations
    in the child’s life. 67A C.J.S. Parent and Child § 145 (2013).
    A custody order will not be modified absent proof of new facts
    and circumstances arising since it was entered. See Rauch v.
    Rauch, 
    supra.
    If we were to accept Eric’s premise that the parent filing the
    complaint to modify need not prove that some material change
    actually occurred, then every unproven allegation of new mate-
    rial facts and circumstances would open the door for a new
    best interests custody inquiry and custody change. We find no
    merit to Eric’s argument that the court conducted the wrong
    inquiry by focusing on whether he had proved that the alleged
    material change of circumstances actually occurred.
    [7] It does not appear that Eric is challenging the preponder-
    ance of the evidence as the applicable burden in establishing
    the material change of circumstances. At least, Eric does not
    suggest a different burden of proof. For the sake of clarity,
    though, we reiterate that the party seeking modification of
    a custody order must prove a material change of circum-
    stances by a preponderance of the evidence. See, Goodman
    v. Goodman, 
    180 Neb. 83
    , 
    141 N.W.2d 445
     (1966); Young
    v. Young, 
    166 Neb. 532
    , 
    89 N.W.2d 763
     (1958). See, also,
    67A C.J.S., supra; Linda D. Elrod, Child Custody Practice
    and Procedure § 17:4 (rev. ed. 2019). A preponderance of the
    evidence is the equivalent of “‘the “greater weight”’” of the
    evidence. Flores v. Flores-Guerrero, 
    290 Neb. 248
    , 253, 
    859 N.W.2d 578
    , 583 (2015).
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    3. De Novo R eview of Evidence
    of Sexual A buse
    We turn, finally, to the underlying question of whether the
    court erred in finding that Eric did not prove by a preponder-
    ance of the evidence that Matthew sexually abused M.H. In
    doing so, we do not address whether the court, in finding the
    evidence of abuse unpersuasive, should have considered exhibit
    19. We likewise do not address whether the court should have
    considered any opinions of mental health practitioners that
    M.H.’s reports of abuse were credible. On appeal, Eric does not
    assign these rulings as error. But because we conclude that the
    court made an error of law in finding there was “no competent
    evidence” of sexual abuse by Matthew, we reverse, and remand
    for consideration of all the evidence.
    [8] Competent evidence is evidence that is admissible and
    tends to establish a fact in issue. Cain v. Custer Cty. Bd. of
    Equal., 
    298 Neb. 834
    , 
    906 N.W.2d 285
     (2018). Here, the
    record contains a considerable amount of evidence which
    meets this definition.
    The fact at issue in this modification trial was whether the
    child had been subjected to sexual abuse by her stepfather,
    and evidence at trial, if believed, tended to establish that such
    sexual abuse had occurred. As noted above, a clinical psy-
    chologist testified she had met with the child seven times and
    the child consistently reported that her stepfather had sexually
    abused her in her bedroom and that it hurt. Also admitted were
    treatment notes from a licensed independent mental health
    practitioner who saw the child 19 times, which notes document
    that the child consistently reported her stepfather had sexually
    abused her and that her mother told her not to disclose the
    abuse. The evidence also showed that the child was experi-
    encing symptoms consistent with sexual abuse and that those
    symptoms improved during the time the court prevented the
    stepfather from having contact with her.
    In addition to tending to establish a fact in issue, the forego-
    ing evidence was admissible. The child’s statements to mental
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    health professionals, in particular, were admissible under 
    Neb. Rev. Stat. § 27-803
    (3) (Reissue 2016), because they were made
    for the purpose of psychological treatment. See In re Interest of
    B.R. et al., 
    270 Neb. 685
    , 
    708 N.W.2d 586
     (2005). And there
    was no evidentiary bar to the parents’ testimony concerning
    M.H.’s symptoms.
    As demonstrated above, Eric introduced competent evidence
    that Matthew sexually abused M.H. The district court, how-
    ever, found that there was “no competent evidence that the
    stepfather has . . . abused the minor child” and, on that basis,
    concluded that “[t]he father has failed to prove by a prepon-
    derance of the that evidence that the stepfather has sexually
    abused the child.”
    The district court’s earlier order vacating the ex parte order
    suggests the possibility that the district court found the evi-
    dence was not competent, because it was concerned the child’s
    statements to the mental health professionals may have been
    influenced by the child’s father and stepmother during the
    period of the child’s temporary sole physical custody with
    them after the initial report of abuse. But even if the district
    court was concerned that the child’s statements to mental
    health professionals had been influenced by her father and
    stepmother, such a concern would properly go to the weight
    and credibility to be afforded this evidence, not to whether it is
    competent. The district court’s finding of “no competent evi-
    dence,” and the absence of any reference to the child’s state-
    ments, indicates that the district court, rather than considering
    the weight the statements should be given, did not consider
    them at all.
    It is true that in a bench trial, appellate courts presume that
    a trial court considers only competent and relevant evidence in
    rendering its decision. See Fickle v. State, 
    273 Neb. 990
    , 
    735 N.W.2d 754
     (2007), modified on denial of rehearing 
    274 Neb. 267
    , 
    759 N.W.2d 113
    . But we do not believe that presumption
    applies here. This is not a case in which the trial court’s order
    is silent as to the evidence it did and did not rely upon. Rather,
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    this is a case in which the district court explicitly stated that
    there was “no competent evidence” of a fact in dispute when,
    as we have explained, there plainly was.
    A de novo review of the record clearly shows there was
    competent evidence adduced that, if believed, tended to estab-
    lish the child was sexually abused by her stepfather. Because
    the record contains competent evidence of sexual abuse, it was
    an error of law for the court to find there was no competent
    evidence. We cannot review this record de novo for an abuse
    of discretion, when the trial court, in reaching its decision,
    relied on an incorrect understanding of the law. See, State v.
    McGuire, 
    301 Neb. 895
    , 911, 
    921 N.W.2d 77
    , 88 (2018) (“[t]o
    the extent that the court’s ruling was based upon an incorrect
    understanding of the law, it is not possible for us to review it
    for an abuse of discretion”); State v. Myers, 
    301 Neb. 756
    , 
    919 N.W.2d 893
     (2018).
    Accordingly, we reverse, and remand with directions. Given
    the passage of time since the original hearing on the motion to
    modify, we leave to the district court’s discretion whether to
    appoint a guardian ad litem or to otherwise allow for the expan-
    sion of the existing record. In any case, the court is directed
    to consider all competent evidence adduced before deciding
    whether Eric has proved a material change in circumstances.
    VI. CONCLUSION
    For the foregoing reasons, we affirm in part, and in part
    reverse and remand with directions to consider all competent
    evidence adduced at trial.
    A ffirmed in part, and in part reversed
    and remanded with directions.