State ex rel. Amanda M. v. Justin T.

a sufficient interest to render it irrevocable. We conclude that
§ 21-2060(4) does not operate to create an irrevocable proxy
under these circumstances, and find no merit to the Trustees’
second and final assignment of error.
C ross -A ppeAl
On cross-appeal, Donna makes three basic arguments: (1)
The district court erred in holding that the registration and
notice requirements of § 21-2067 were substantially complied
with and full technical compliance is unnecessary; (2) James
was the sole beneficiary of the Trust, and therefore, the Trust is
invalid; and (3) the Trust is void because it was intended to take
effect upon death. Our resolution of the Trustees’ assignments
of error is dispositive of this appeal, and therefore, we need not
address Donna’s assignments of error on cross-appeal.
CONCLUSION
Based on the foregoing reasons, we affirm the district court’s
order granting Donna’s motion for summary judgment and
denying the Trustees’ motion for summary judgment.
A ffirmed.
Wright, J., not participating.
STaTe ex reL. amaNDa m. v. JUSTIN T. 	273
Cite as 279 Neb. 273
stAte of NebrAskA ex rel . A mANdA m., Appellee , v. JustiN t.,
defeNdANt ANd third -pArty plAiNtiff, Appellee , ANd
A mANdA m., third -pArty defeNdANt, AppellANt.
777 N.W.2d 565
Filed January 22, 2010. 	No. S-09-138.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusions
reached by the trial court.
2. Statutes. Statutory interpretation is a question of law.
3. Divorce: Child Custody. Neb. rev. Stat. § 42-364 (reissue 2008) of the dissolu-
tion of marriage statutes requires that in dissolution cases, if the parties do not
agree to joint custody in a parenting plan, the trial court can award joint custody
if it specifically finds that it is in the best interests of the child or children.
4. Statutes: Appeal and Error. appellate courts give statutory language its plain
and ordinary meaning and will not resort to interpretation to ascertain the mean-
ing of statutory words which are plain, direct, and unambiguous.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

appeal from the District Court for Buffalo County: JohN
p. 	iCeNogle, 	Judge. 	reversed 	and 	remanded 	for 	further
proceedings.
D. Brandon Brinegar, of ross, Schroeder & George, L.L.C.,
for appellant.
Jack W. Besse, of Knapp, Fangmeyer, aschwege, Besse &
marsh, P.C., for appellee Justin T.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	stephAN,
mCC ormACk, and miller-lermAN, JJ.
miller-lermAN, J.
NaTUre OF THe CaSe
In this paternity action subject to the Parenting act, the dis-
trict court for Buffalo County awarded the appellant, amanda
m., and the appellee, Justin T., joint legal and physical custody
of their minor child, Cloe T. Neither parent sought imposition
of joint custody. at issue in this case is whether the trial court,
in a paternity case, can properly award joint legal and physical
custody of a minor child where neither parent has requested
joint custody, without first holding an evidentiary hearing spe-
cifically on the issue of joint custody. amanda, who sought
sole custody, appeals. We conclude that the joint custody order
was error, and we reverse the district court’s judgment and
remand the cause for further proceedings.
STaTemeNT OF THe FaCTS
amanda and Justin are the parents of Cloe. The parents were
in a relationship for approximately 2 years. Their relationship
ended when Cloe was around 9 months old. amanda also
has two other children. Prior to the relationship’s end, Justin
contends, he spent significant time with Cloe and amanda’s
other children.
Since Cloe’s birth, amanda has been Cloe’s primary care-
giver. after the parents separated, Justin had weekly visitation
with Cloe, which visits were supervised by amanda.
Because amanda is receiving state assistance, on august 26,
2008, the State of Nebraska filed a complaint under Neb. rev.
274 	279 NeBraSKa rePOrTS

Stat. §§ 43-1401 through 43-1408 (reissue 2008) to establish
paternity and seek child support on behalf of amanda and
against Justin.
In response, Justin filed an answer and third-party com-
plaint, seeking additional visitation with Cloe and adding
amanda as a third-party defendant. Justin did not seek sole
or joint legal or physical custody of Cloe. amanda responded
to Justin’s answer and also filed a cross-claim seeking sole
custody of Cloe and the court’s permission to remove Cloe
from Nebraska so that amanda could attend nursing school
in Texas. Justin objected to the request for removal. amanda
argued that the move was necessary because in Nebraska,
there is a 2-year waiting list for the nursing program she
intends to pursue.
The trial court held a hearing over the course of 2 days. In
a journal entry filed on January 8, 2009, the court awarded
the parties joint physical and legal custody, granted amanda
permission to remove Cloe from Nebraska upon the condition
that she first demonstrate to the court that she is enrolled in an
educational program in Texas, directed amanda to return Cloe
to Nebraska upon completion of the educational program in
Texas, established a visitation schedule to be in effect prior to
amanda’s move to Texas, established a visitation schedule to
be in effect after amanda’s return from Texas, ordered Justin
to pay child support, and ordered Justin to reimburse amanda
for a portion of the daycare and health care expenses that she
pays. amanda appeals from this order.
aSSIGNmeNTS OF errOr
amanda claims, inter alia, that the trial court erred in (1)
awarding joint legal and physical custody of Cloe without mak-
ing a specific finding that joint legal and physical custody was
in Cloe’s best interests and (2) awarding joint legal and physi-
cal custody when neither party sought or agreed upon joint
custody, in violation of amanda’s right to due process. Because
our resolution of these assignments of error results in further
proceedings in this case, we do not address additional assign-
ments of error claimed by amanda.
STaTe ex reL. amaNDa m. v. JUSTIN T. 	275
Cite as 279 Neb. 273

STaNDarDS OF reVIeW
[1,2] When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
conclusions reached by the trial court. Allen v. Immanuel Med.
Ctr., 278 Neb. 41, 767 N.W.2d 502 (2009). Statutory interpreta-
tion is a question of law. Id.
aNaLYSIS
The Parenting Act Does Not Require the Trial Court
to Make a Specific Finding That Joint Custody
Is in the Best Interests of the Child.
Our analysis of amanda’s first assignment of error requires
us to explain the interplay between the Parenting act found
in chapter 43 of the Nebraska revised Statutes and the dis-
solution of marriage statutes found in chapter 42 as these acts
apply to the issues in this case. In its order, the trial court
awarded the parties joint legal and physical custody but did
not make a specific finding that this arrangement was in Cloe’s
best interests.
[3] For her first assignment of error, amanda relies on Neb.
rev. Stat. § 42-364 (reissue 2008), regarding custody in the
context of marital dissolution, and claims that the trial court
erred in ordering joint legal and physical custody in the absence
of an explicit finding that joint legal and physical custody was
in Cloe’s best interests. Section 42-364 of the dissolution of
marriage statutes requires that in dissolution cases, if the par-
ties do not agree to joint custody in a parenting plan, the trial
court can award joint custody if it specifically finds that it is in
the best interests of the child or children.
Justin responds by arguing that because chapter 42 gov-
erns cases of marital dissolution, and this is an action under
chapter 43 to establish paternity under the Parenting act, the
requirement in § 42-364 that a court make a specific finding
of best interests before awarding joint custody is inapplicable.
although the preferred practice is for a court to declare the
best interests of the child in custody decisions, given the plain
language of the Parenting act, we agree with Justin that the
district court did not err when it did not make a specific finding
of best interests in this case.
276 	279 NeBraSKa rePOrTS

as an initial matter, we must determine whether the Parenting
act controls this case. We conclude that it does. Neb. rev. Stat.
§ 43-2924 (reissue 2008) of the Parenting act provides:
(1) The Parenting act shall apply to proceedings or
modifications filed on or after January 1, 2008, in which
parenting functions for a child are at issue (a) under
Chapter 42, including, but not limited to, proceedings
or modification of orders for dissolution of marriage
and child custody and (b) under sections 43-1401 to
43-1418. . . .
(2) The Parenting act does not apply in any action filed
by a county attorney or authorized attorney pursuant to his
or her duties under section 42-358, 43-512 to 43-512.18,
or 43-1401 to 43-1418, the Income Withholding for Child
Support act, the revised Uniform reciprocal enforcement
of Support act before January 1, 1994, or the Uniform
Interstate Family Support act for purposes of the estab-
lishment of paternity and the establishment and enforce-
ment of child and medical support. . . . If both parents are
parties to a paternity or support action filed by a county
attorney or authorized attorney, the parents may proceed
with a parenting plan.
The proceedings in this case were initiated by a complaint
filed by the State pursuant to §§ 43-1401 through 43-1408,
which allow recovery of child support for a child born out of
wedlock when paternity of the child’s father is established.
Under § 43-2924(2), quoted above, such proceedings for
establishing paternity are excluded from the Parenting act
unless certain conditions are met. Those conditions were met
in this case.
In his answer to the complaint, Justin requested increased
visitation and brought amanda into the action as a third-party
defendant. amanda responded and sought sole custody. Joinder
was allowed. Both parents became parties to the action, see
§ 43-2924(2), and the proceeding became one in which cus-
tody and parenting functions were at issue under § 43-1401.
The Parenting act applies, see § 43-2924(1), and subjects the
parents to a parenting plan, see § 43-2924(2).
STaTe ex reL. amaNDa m. v. JUSTIN T. 	277
Cite as 279 Neb. 273

Having determined that the Parenting act governs this case,
we now turn to the requirements that the Parenting act imposes
on the trial court with respect to issues relative to parenting
functions. Neb. rev. Stat. § 43-2929 (reissue 2008) lists the
numerous issues which the parenting plan must resolve. For
purposes of the instant case, we limit our discussion to the
issues of custody. In this regard, § 43-2929 states:
(1) . . . When a parenting plan has not been developed
and submitted to the court, the court shall create the
parenting plan in accordance with the Parenting act. a
parenting plan shall serve the best interests of the child
pursuant to sections 42-364 and 43-2923 and shall:
(a) assist in developing a restructured family that
serves the best interests of the child by accomplishing the
parenting functions; and
(b) Include, but not be limited to, determinations of
the following:
(i) Legal custody and physical custody of each child.
[4] appellate courts give statutory language its plain and
ordinary meaning and will not resort to interpretation to ascer-
tain the meaning of statutory words which are plain, direct, and
unambiguous. Rohde v. City of Ogallala, 273 Neb. 689, 731
N.W.2d 898 (2007).
In this case, the parents acknowledge that no parenting plan
was presented to the court. Thus, based on the language of
§ 43-2929 and given the fact that custody became an issue in
this case, the trial court was required to develop a parenting
plan which “shall serve the best interests of the child.” See
§ 43-2929(1). In developing a parenting plan, the trial court
was required to determine, inter alia, the “[l]egal custody and
physical custody” of Cloe. See § 43-2929(1)(b)(i). See, also,
Bhuller v. Bhuller, 17 Neb. app. 607, 767 N.W.2d 813 (2009)
(holding, in dissolution action subject to Parenting act, that
when trial court did not resolve visitation issues as required
under § 43-2929, order was not final, appealable order).
In requiring the creation of a parenting plan, § 43-2929(1)
states that the parenting plan “shall serve the best inter-
ests of the child pursuant to sections 42-364 and 43-2923.”
Section 42-364 of the dissolution of marriage statutes does
not explicitly list factors to consider when determining best
278 	279 NeBraSKa rePOrTS

interests, but, instead, refers to Neb. rev. Stat. § 43-2923
(reissue 2008), which does list the best interests factors.
Section 43-2923 provides:
The best interests of the child require:
(1) a parenting arrangement and parenting plan or
other court-ordered arrangement which provides for a
child’s safety, emotional growth, health, stability, and
physical care and regular and continuous school attend-
ance and progress for school-age children;
(2) When a preponderance of the evidence indicates
domestic intimate partner abuse, a parenting and visita-
tion arrangement that provides for the safety of a vic-
tim parent;
(3) That the child’s families and those serving in par-
enting roles remain appropriately active and involved
in parenting with safe, appropriate, continuing quality
contact between children and their families when they
have shown the ability to act in the best interests of the
child and have shared in the responsibilities of raising
the child;
(4) That even when parents have voluntarily negotiated
or mutually mediated and agreed upon a parenting plan,
the court shall determine whether it is in the best interests
of the child for parents to maintain continued commu-
nications with each other and to make joint decisions in
performing [such] parenting functions as are necessary for
the care and healthy development of the child. If the court
rejects a parenting plan, the court shall provide written
findings as to why the parenting plan is not in the best
interests of the child; and
(5) That certain principles provide a basis upon which
education of parents is delivered and upon which negotia-
tion and mediation of parenting plans are conducted. Such
principles shall include: To minimize the potentially nega-
tive impact of parental conflict on children; to provide
parents the tools they need to reach parenting decisions
that are in the best interests of a child; to provide alterna-
tive dispute resolution or specialized alternative dispute
resolution options that are less adversarial for the child
and the family; to ensure that the child’s voice is heard
STaTe ex reL. amaNDa m. v. JUSTIN T. 	279
Cite as 279 Neb. 273

and considered in parenting decisions; to maximize the
safety of family members through the justice process;
and, in cases of domestic intimate partner abuse or child
abuse or neglect, to incorporate the principles of victim
safety and sensitivity, offender accountability, and com-
munity safety in parenting plan decisions.
We take the foregoing statutory requirements together and
apply them to this paternity case involving a custody issue
where no parenting plan was submitted. although we disap-
prove of the joint custody order, as discussed below, we con-
clude that the trial court correctly developed a parenting plan
which was intended to serve the best interests of Cloe and
included a custody provision. In developing the parenting plan,
the trial court was required to consider the best interests factors
listed in § 43-2923. In contrast to the language of § 42-364 of
the dissolution of marriage statutes, the Parenting act does not
explicitly require that the court make a specific finding that
joint custody is in the best interests of the child when ordering
joint custody in a paternity case.
In this case, the parenting plan created by the court followed
the criteria set forth by the Legislature and there is no evidence
or argument that the best interests of Cloe did not guide the
trial court’s decision in its award of custody. although it is
preferable to make a finding that the best interests of the child
dictate the result, it is not error under the Parenting act in a
paternity case to fail to make a specific finding of best interests.
Thus, although we find error with respect to the joint custody
order for due process reasons explained below, we conclude
that amanda’s first argument, claiming that the trial court erred
when it did not make a specific finding that joint custody was
in the best interests of Cloe, is without merit.
Due Process Requires That When Neither Party Has
Requested Joint Custody, the Trial Court Shall
Hold a Hearing Before Awarding Joint Custody.
For her second assignment of error, amanda claims that the
trial court violated her right to due process of law by awarding
joint custody without first holding a hearing on the issue.
280 	279 NeBraSKa rePOrTS

In response, Justin argues that the trial court was not required
to hold a hearing on the matter of joint custody. Justin reasons
that the language in the Parenting act which instructs the trial
court to create a parenting plan including a custody determina-
tion, in the absence of a plan’s being presented to the court, is
sufficient notice that joint custody may be awarded after the
hearing on the initial pleadings.
We do not agree with Justin’s analysis and instead conclude
that before awarding parents joint custody of a minor child,
due process requires that the trial court hold a hearing on
the issue. Because the court failed to do so, the joint custody
determination was error, and we reverse, and remand for fur-
ther proceedings.
In considering amanda’s second assignment of error, we
again turn to the language of the Parenting act. Section
43-2929(1) states that a parenting plan “shall serve the best
interests of the child pursuant to sections 42-364 and 43-2923.”
Because the language of § 43-2929 states that the best inter-
ests of the child shall be considered under both §§ 42-364
and 43-2923, we conclude that our due process jurispru-
dence regarding joint custody under § 42-364 is incorporated
into parenting plan orders entered under the Parenting act.
accordingly, we refer to our decision in Zahl v. Zahl, 273 Neb.
1043, 736 N.W.2d 365 (2007), decided under § 42-364, for
guidance in this case.
In Zahl, both parents in a marital dissolution action sought
sole custody of the minor child. after holding a general cus-
tody hearing, the court awarded the parties joint legal and
physical custody. The father appealed, arguing that the court
was required to hold an evidentiary hearing directed to the
issue of joint custody before awarding joint custody. We agreed
with the father. We held that when a court has determined that
joint physical custody is, or may be, in a child’s best interests
but neither party has requested joint custody, the court must
give the parties an opportunity to present evidence on the issue
before imposing joint custody. Id.
In 	considering 	the 	father’s 	argument 	in 	Zahl, 	we 	ob-
served that
STaTe ex reL. amaNDa m. v. JUSTIN T. 	281
Cite as 279 Neb. 273

[g]enerally, procedural due 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 wit-
nesses and present evidence on the charge or accusation;
representation by counsel, when such representation is
required by constitution or statute; and a hearing before
an impartial decisionmaker.
273 Neb. at 1052, 736 N.W.2d at 373.
In determining that the parties in Zahl had not received
adequate due process, we noted that joint physical custody
must be reserved for cases where, in the judgment of the trial
court, the parents are of such maturity that the arrangement
will not operate to allow the child to manipulate the parents or
confuse the child’s sense of direction and will provide a stable
atmosphere for the child to adjust to, rather than perpetuating
turmoil or custodial wars. Id. Therefore, because the factual
inquiry for awarding joint custody was substantially different
from that for an award of sole custody, without notice that
joint custody would be considered, the parties in Zahl did not
receive adequate due process in preparing for the hearing on
custody and were entitled to a new hearing. Id.
Based on the principles established in Zahl, we conclude
that in a paternity case subject to the Parenting act where nei-
ther party has requested joint custody, if the court determines
that joint custody is, or may be, in the best interests of the
child, the court shall give the parties notice and an opportunity
to be heard by holding an evidentiary hearing on the issue of
joint custody.
In this case, the hearing held by the trial court did not satisfy
the requirements of due process. Prior to the hearing, based
on the pleadings, Justin had merely sought increased visita-
tion with Cloe and amanda had sought sole custody. Neither
parent had requested joint custody. Therefore, the evidence the
parties presented, or were prepared to present, at the trial was
282 	279 NeBraSKa rePOrTS

substantially different from the evidence that would be used to
advocate or contest a ruling of joint custody.
Because the court failed to hold a hearing that satisfied the
requirements of due process, the trial court’s award of joint
custody was error. accordingly, we reverse the district court’s
judgment and remand the cause for further proceedings.
CONCLUSION
This case is subject to the Parenting act. Because the par-
ents in this paternity case where custody was an issue did
not present the trial court with a parenting plan, the court did
not err by creating a parenting plan, which included a deter-
mination regarding the custody of the child. Under the plain
language of the Parenting act, the court in a paternity case is
not required to make a specific finding that joint custody, if
properly awarded, is in the best interests of the minor child. On
a record such as this, where neither party has requested joint
custody, if the court determines that joint custody, is, or may
be, in the best interests of the child, due process requires that
the court hold a hearing on the matter before entering an order
awarding joint custody under the Parenting act. The district
court failed to hold a hearing, and the joint custody order was
error. Therefore, the district court’s judgment is reversed and
the cause is remanded for further proceedings consistent with
this opinion.
reversed ANd remANded for
further proCeediNgs.
STaTe ex reL. amaNDa m. v. JUSTIN T. 	283
Cite as 279 Neb. 273