Kamal v. Imroz

in the commission of the crime. In imposing a sentence,
the sentencing court is not limited to any mathematically
applied set of factors.10 The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentenc-
ing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life.11
We have reviewed the record and conclude that the district
court did not abuse its discretion in sentencing Moore as it did.
Moore’s argument that his sentences were excessive is also
without merit.
CONCLUSION
For the reasons discussed above, we conclude that Moore’s
arguments on appeal are without merit. We therefore affirm the
judgment of the district court.
A ffirmed.
 State v. Reid, supra note 4.
10 Id.
11 Id.
mehruz KAmAl , Appellee , v. Sohel
mohAmmed imroz , AppellAnt.
75 N.W.2d 14
Filed January 30, 200. 	No. S-08-41.
1. Child Custody. Neb. Rev. Stat. §§ 42-364(3) and 43-223 (Reissue 2008) require
the district court to devise a parenting plan and to consider joint legal and physi-
cal custody. The statutes do not require the district court to grant equal parenting
time to the parents if such is not in the child’s best interests.
2. Child Custody: Appeal and Error. The Nebraska Supreme Court reviews child
custody determinations de novo on the record, but the trial court’s decision will
normally be upheld absent an abuse of discretion.
3. Child Custody. The fact that one parent might interfere with the other’s rela-
tionship with the child is a factor that the trial court may consider in granting
custody, but it is not a determinative factor.
Appeal from the District Court for Douglas County: SAndrA
l. dougherty, Judge. Affirmed.
116 	277 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Adam 	e. 	Astley 	and 	Virginia 	A. 	Albers, 	of 	Lieben,
Whitted, Houghton, Slowiaczek & Cavanagh, p.C., L.L.O., for
appellant.
kathleen M. Schmidt for appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	StephAn,
mccormAcK, and miller-lermAn, JJ.
heAvicAn, c.J.
INTRODUCTION
Sohel Mohammed Imroz appeals the decision of the Douglas
County District Court, which entered a decree of dissolution
ending Imroz’ marriage to Mehruz kamal. The court granted
sole legal and physical custody of the couple’s minor son to
kamal, with liberal rights of visitation to Imroz. The district
court also divided the couple’s assets and debt, ordered Imroz
to pay child support, and prohibited either party from taking
their son out of the United States without written consent of
the other. Imroz appeals. We affirm the decision of the dis-
trict court.
bACkGROUND
Imroz and kamal were married on May 25, 2003, in Jamaica,
New York. The marriage was arranged by the parents of Imroz
and kamal, and the couple was married pursuant to Islamic
law. kamal then moved to Omaha, Nebraska, to live with
Imroz. The couple’s son was born on July 28, 2004. kamal
moved out of her husband’s apartment in December 2004. She
subsequently moved in with her parents, who had immigrated
to the United States. The parties continued to live separately
until July 26, 2006, when kamal filed for divorce.
At that time, kamal also filed a motion for an ex parte
restraining order and for custody of the child. kamal made a
number of allegations in her request for a restraining order,
including an allegation that the child was in physical and emo-
tional danger from Imroz. kamal further alleged that Imroz fre-
quently became angry and aggressive, that Imroz had withheld
information about his baldness and general health prior to the
marriage, and that Imroz had not provided for her sufficiently
during the course of the marriage.
kAMAL v. IMROz 	117
Cite as 277 Neb. 116

kamal further alleged that Imroz locked her in the apart-
ment during the day while he was at work. kamal alleged
that Imroz shook her and that his “arrogant and aggressive”
attitude made it impossible for her to deal with him in person.
kamal alleged that Imroz was an Islamic fundamentalist and
that he desired to raise their son as such. kamal testified at the
hearing that she was concerned Imroz would take their son to
bangladesh and keep him there and that Imroz had previously
taken their son out of the state without telling kamal or getting
her permission.
Imroz denied the allegations. He testified that he gave
kamal a spare set of keys immediately after she moved in to
the apartment and that it would be impossible to lock someone
inside. Imroz testified that he willingly drove kamal wherever
she wanted to go during the time they had only one vehicle.
Imroz also testified that he drove kamal’s parents while they
were visiting, and later when they needed to apply for wel-
fare. Imroz also testified that kamal had made communication
regarding their son very difficult because she insisted on com-
municating only through e-mail.
Imroz testified that he is a practicing Muslim, but that he
is respectful of other religions and participates in an interfaith
group. Imroz also asked that he be allowed to take his son to
bangladesh to visit the child’s great-grandmother. A clinical
psychologist, who testified on Imroz’ behalf, stated that it was
his belief Imroz is a strongly attached father who has a good
bond with his son.
The undisputed facts were that kamal currently worked
from home most days and that she had been the primary care-
giver for her son since his birth. kamal is an international
student who is currently being sponsored by her mother for the
purpose of retaining her student visa. Imroz works full time
and is a U.S. citizen. kamal requested sole custody of their
son; Imroz requested that they be given joint custody or, in the
alternative, that he be awarded sole custody. The parties both
admitted that there had been a great deal of tension over visita-
tion and that as a result, their attorneys had been required to
get involved on more than one occasion.
118 	277 NebRASkA RepORTS

In its decree, the trial court found that both kamal and
Imroz were fit persons to have custody, but that because of
the conflict between the parents, joint custody was not in
their son’s best interests. The court further found that because
kamal had a flexible work schedule and could spend most of
her time with their son, she should be awarded sole legal and
physical custody with liberal rights of visitation to Imroz. The
district court ordered Imroz to pay $815 per month in child
support, required Imroz to maintain insurance for the child,
and made equitable division of the marital estate. Finally, the
district court ordered that kamal apply to the district court
before moving out of the state and required both parties to get
the written consent of the other before taking their son out of
the country.
ASSIGNMeNTS OF eRROR
Imroz contends the district court erred by (1) failing to
grant joint custody to the parties, (2) failing to allocate ade-
quate parenting time to Imroz, (3) failing to calculate Imroz’
child custody obligation based on a joint custody calculation,
and (4) prohibiting Imroz from traveling to bangladesh with
his son.
ANALYSIS
pArenting Act doeS not require Joint cuStody
We first address Imroz’ argument that the district court
erred when it failed to grant joint custody. Neb. Rev. Stat.
§ 42-364(3) (Reissue 2008) states that
[c]ustody of a minor child may be placed with both parents
on a joint legal custody or joint physical custody basis, or
both, (a) when both parents agree to such an arrangement
in the parenting plan and the court determines that such
an arrangement is in the best interests of the child or (b) if
the court specifically finds, after a hearing in open court,
that joint physical custody or joint legal custody, or both,
is in the best interests of the minor child regardless of any
parental agreement or consent.
A parenting plan developed by the court is required to
“[a]ssist in developing a restructured family that serves the
kAMAL v. IMROz 	11
Cite as 277 Neb. 116

best interests of the child by accomplishing the parenting func-
tions . . . .”1 Section 43-22 lists the determinations the trial
court is to make when developing the parenting plan, includ-
ing legal and physical custody of each child; apportionment of
parenting time, visitation, and holidays; location of each child
during the week, weekend, and given days during the year; and
procedures for making decisions regarding the day-to-day care
and control of the child.
Imroz contends that § 43-22 requires the district court to
devise and apply a plan that involves both parents to the maxi-
mum amount possible. Imroz’ interpretation of § 43-22
would require the district court to enforce a joint custody
agreement or, in the alternative, to grant custody to the par-
ent most likely to foster a relationship with the noncusto-
dial parent. In the present case, Imroz contends that under
those guidelines he should be granted primary custody of
the child.
The current parenting Act states:
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 . . . ;
. . . .
(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 inter-
ests of the child for parents to maintain continued com-
munications with each other and to make joint decisions
1 Neb. Rev. Stat. § 43-22(1)(a) (Reissue 2008).
120 	277 NebRASkA RepORTS

in performing parenting functions as are necessary for
the care and healthy development of the child.2
(emphasis supplied.)
In contrast, § 42-364(2) (Reissue 2004), in defining best
interests of the child, stated in relevant part that the court
shall consider the best interests of the minor child which
shall include, but not be limited to:
(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, 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; and
(d) Credible evidence of abuse inflicted on any family
or household member.
[1] A commonsense reading of the revised version of
§ 42-364,3 as well as § 43-223, indicates that the district court
still has discretion in determining what the best interests of the
child are. The current § 43-22 mandates that a “parenting
plan shall serve the best interests of the child,” and the current
§ 43-223 mandates that the court “shall determine whether it
is in the best interests of the child for parents to maintain con-
tinued communications with each other.” (emphasis supplied.)
In essence, the current §§ 42-364(3) and 43-223 require the
district court to devise a parenting plan and to consider joint
legal and physical custody. The statutes do not require the dis-
trict court to grant equal parenting time or joint custody to the
parents if such is not in the child’s best interests.
In the present case, the trial judge made a specific finding
that kamal had been the child’s primary caregiver and that
her flexible work schedule made it possible for her to be with
her son nearly full time. The district court also found that
2 Neb. Rev. Stat. § 43-223 (Reissue 2008).
3 § 42-364 (Reissue 2008).
kAMAL v. IMROz 	121
Cite as 277 Neb. 116

because the parents were unable to communicate face-to-face
and because there is a level of distrust between the parents,
joint decisionmaking by the parents was not in the child’s best
interests. This decision is consistent with the mandatory statu-
tory language requiring the court to determine whether it is in
the best interests of the child for the parents to maintain con-
tinued communication.4 The district court did not fail to apply
the standards of the current parenting Act correctly, nor did
it abuse its discretion in its grant of parenting time to Imroz.
Imroz’ first assigned error is without merit.
diStrict court did not A buSe itS diScretion
When grAnting cuStody to KAmAl
[2,3] Imroz next argues that kamal has been uncoopera-
tive in allowing visitation and therefore he should be granted
sole custody because he is more likely to foster a meaningful
relationship with the noncustodial parent. While we review
child custody determinations de novo on the record, the trial
court’s decision will normally be upheld absent an abuse of
discretion.5 As we have recognized above, the current parenting
Act differs very little from the previous statutory scheme, and
therefore case law addressing a change in custody is still gen-
erally applicable. The fact that one parent might interfere with
the other’s relationship with the child is a factor the trial court
may consider in granting custody, but it is not a determinative
factor.6 And while interference with the other parent’s visitation
rights can arise to a material change in circumstances suffi-
cient to alter a parenting plan, there is no indication at pres-
ent that kamal will ignore the trial court’s order.7 We find the
district court did not abuse its discretion in granting custody
to kamal.
The same principles apply to Imroz’ contention that the
district court did not award him adequate parenting time. The
4 See, also, Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003).
5 Maska v. Maska, 274 Neb. 62, 742 N.W.2d 42 (2007).
6 Id.
7 See, Hibbard v. Hibbard, 230 Neb. 364, 431 N.W.2d 637 (188); Coffey,
supra note 4.
122 	277 NebRASkA RepORTS

parenting plan grants Imroz visitation every other weekend,
every Wednesday from 6 p.m. to Thursday at 6 p.m., and 10
consecutive days in the summer. The district court also outlined
the visitation schedule for holidays. The district court made it
clear that the division of parenting time between the parties
was devised in the best interests of the child.
because we find that the district court did not commit an
abuse of discretion in its division of parenting time, we affirm
the order of the district court. Imroz’ assignment of error as to
parenting time is without merit. We are therefore not required
to address the issue of child support, as Imroz admitted that
the district court’s findings as to child support were correct if
custody remained with kamal.
diStrict court did not A buSe itS diScretion
When it reStricted pArtieS’ A bility to
remove child from country
Imroz finally argues that the district court erred when it
restricted his ability to travel with his child outside of the
country. In its order, the district court forbade both parties from
taking the child out of the country without written permission
from the other parent. Imroz stated that he wishes to take his
child to bangladesh to visit family, specifically the child’s
great-grandmother.
The only finding the district court made with respect to its
order that Imroz not take his child out of the country with-
out kamal’s written permission was that kamal feared Imroz
would take the child to bangladesh and not return. kamal’s
fear was supported by the fact that Imroz once took the child
out of the state without informing her.
The 	prohibition 	is 	not 	absolute, 	however, 	and 	kamal
expressed her willingness to allow the child to travel outside
the country when he is a little older. We cannot say the trial
court abused its discretion in this matter. Imroz’ final assign-
ment of error is also without merit.
CONCLUSION
We find that the district court correctly interpreted the stan-
dards of the current parenting Act. We also find that the district
kAMAL v. IMROz 	123
Cite as 277 Neb. 116

court did not abuse its discretion when devising the parenting
plan and by granting custody of the parties’ child to kamal.
Nor did the court abuse its discretion by restricting either party
from taking the child out of the country without the written
consent from the other parent. We therefore affirm the district
court’s order.
A ffirmed.
Steven S., Appellee , v.
mAry S., AppellAnt.
760 N.W.2d 28
Filed January 30, 200. 	No. S-08-622.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion independent of
the lower court’s decision.
2. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the tribunal from
which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may
be reviewed on appeal are (1) an order which affects a substantial right and
which determines the action and prevents a judgment, (2) an order affecting a
substantial right made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action after judgment
is rendered.
5. Actions: Statutes. Special proceedings include every special civil statutory
remedy not encompassed in civil procedure statutes which is not in itself an
action.
6. Actions: Statutes: Words and Phrases. An action is any proceeding in a court
by which a party prosecutes another for enforcement, protection, or determina-
tion of a right or the redress or prevention of a wrong involving and requiring the
pleadings, process, and procedure provided by the statute and ending in a final
judgment. every other legal proceeding by which a remedy is sought by original
application to a court is a special proceeding.
7. Actions: Modification of Decree. proceedings regarding modification of a mari-
tal dissolution, which are controlled by Neb. Rev. Stat. § 42-364 (Reissue 2008),
are special proceedings.
124 	277 NebRASkA RepORTS