Spethman v. Spethman
A-16-292
Neb. Ct. App.Aug 22, 2017Background
- Angelina and Thomas Spethman married in 2001, had five children (ages 2–11 at trial), and separated during divorce proceedings; trial occurred Nov–Dec 2015 and decree entered Dec 21, 2015.
- The district court issued a July 28, 2015 temporary order awarding joint legal and joint physical custody with an alternating weekly parenting schedule (each week starting Sunday evening) and midweek time on Thursday evenings.
- Angelina sought to introduce evidence of intimate-partner sexual abuse (allegations that Thomas had sex with her while she was asleep and medication-related incidents) through therapist records and witness testimony; some records were excluded for foundation and other testimony limited as irrelevant or unduly prejudicial.
- Angelina moved post-decree to obtain primary physical custody or, alternatively, a 2-2-3 rotating schedule; the court denied the motion and she appealed, assigning error to evidentiary exclusions, the joint physical custody award, and the 7-day alternating parenting schedule.
- The district court found both parents fit, awarded joint legal and physical custody, and retained the alternating weekly parenting time; it determined the proffered evidence did not show a nexus to parenting or coparenting and that admitting it would be more prejudicial than probative.
Issues
| Issue | Plaintiff's Argument (Spethman) | Defendant's Argument (Spethman) | Held |
|---|---|---|---|
| Exclusion of evidence of intimate-partner sexual abuse | Evidence of sexual abuse (including admissions to counselors and counselor records) was relevant under § 43-2932 and § 43-2923(6) and should have been admitted to inform custody | Evidence lacked connection to parenting; no criminal/civil actions; offers of proof failed to show impact on children or parenting | Court did not abuse discretion: records excluded for foundation; other evidence excluded as irrelevant/unduly prejudicial because no nexus to parenting or coparenting established |
| Award of joint physical custody | Angelina: her history of primary caregiving, incidents (left boiling pot, children briefly unsupervised, missed calls, name-calling, ADHD-related concerns) warrant sole physical custody | Thomas: both parents capable; joint custody provides stability; he has engaged in counseling and improved | Court affirmed joint physical custody: no abuse of discretion; both parents fit; evidence showed both love children and shared parenting since separation; insufficient proof that past conduct required § 43-2932 findings |
| Parenting-time schedule (alternating weekly 7-day periods) | Angelina: young children should not go a week without seeing a parent; 2-2-3 schedule reduces time apart | Thomas: weekly blocks reduce transitions, provide household stability, and limit packing/transition burden for five kids | Court affirmed alternating weekly schedule: no abuse of discretion; established practice since Feb 2015; no trial evidence showing harm; schedule balances stability and midweek contact |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (custody determinations entrusted to trial court discretion)
- Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (when statutory intimate-partner abuse is proven, court must make written findings and impose protective limits before awarding custody)
- Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (appellate deference to trial judge who observed witnesses when evidence conflicts)
- Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (trial court has discretion over relevancy and admissibility of evidence)
- Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 (parenting time determinations are discretionary and reviewed de novo on the record)