737 F.Supp. 711 (1990)
John L. KELLY, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. A. No. 87-1100-C.
United States District Court, D. Massachusetts.
May 21, 1990.
William A. Brown, Boston, Mass., for plaintiff.
George B. Henderson, II, Asst. U.S. Atty., for defendant.

MEMORANDUM
CAFFREY, Senior District Judge.
This case is before the Court on motions by the plaintiff and the defendant. The plaintiff, John L. Kelly, originally brought this action against two individual defendants, Robert Stutman and Carlo Boccia, alleging tort claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80. In the complaint, Kelly asserted claims for defamation (counts two and three) and for negligent failure to investigate (counts one and four). On March 30, 1989, this Court dismissed counts two and three as barred by a statutory exception for defamation suits under the FTCA. See 28 U.S.C. § 2680(h). On the same date, this Court also substituted the United States as a defendant for Stutman and Boccia and dismissed the individual defendants with prejudice pursuant to a recent amendment to the FTCA. See 28 U.S.C. § 2679(d).
*712 The plaintiff has now moved for reconsideration of the dismissal of the individual defendants asserting that the United States was improperly substituted as a defendant. In turn, the defendant United States has moved for summary judgment claiming that this Court has no subject matter jurisdiction under the FTCA to hear this case. For the reasons stated below, the plaintiff's motion for reconsideration should be denied, and the defendant's motion for summary judgment should be granted.

I.
The relevant facts in this case focus on the compromise of a special investigation by the Drug Enforcement Administration ("DEA"). In June 1979, the plaintiff Kelly, a Special Agent for the DEA and Kevin Kenney, another DEA Special Agent, started an investigation into the criminal activities of suspected drug trafficker Frank Lepere. In August 1980, various federal and state agencies including the DEA formed a special task force in Boston to investigate Lepere. Kelly and Kenney were the two DEA Special Agents assigned to the task force.
At this time, Carlo Boccia was an Assistant Special Agent-In-Charge at the DEA Divisional Office in Boston. During the same time, Robert Stutman was the Special Agent-in-Charge who headed the DEA Divisional Office in Boston and who supervised Boccia. Stutman and Boccia remained in these positions at all times relevant to this case.
In late 1980, the task force began gathering information on Lepere. As part of the investigation, the task force began to track the destination of calls made from Lepere's telephone by checking the pen register. In December 1980, Lepere stopped using his telephone indicating that the task force investigation had been compromised.
According to Kelly, the task force came to suspect him of leaking confidential information to Lepere. On January 5, 1981, as alleged in the complaint, Kelly was told by his supervisor, John Morgan, that "they (the task force members) think you are the leak." Sometime later in January 1981, according to the complaint, Boccia contacted Special Agent Kenney concerning the possible leak, and Boccia requested that Kenney watch Kelly to determine whether he was the leak.
At some point in January, according to the complaint, the task force began to meet without Kelly present. In response, as alleged in the complaint, Kelly asked Boccia what was wrong and why he, Kelly, had been removed from the decision-making process of the task force. According to the complaint, Boccia just said that nothing was wrong and that Kelly was no longer needed. Later in January, Kelly volunteered to remove himself from the task force and did so. Even in Kelly's absence, the task force officials continued to discuss the security problems, and, according to the complaint, Kelly remained a suspect.
Almost four years later, the DEA learned the true source of the leaks from the Lepere investigation. In November 1984, Richard Kirvan was arrested in New York, and he told the DEA that David Twoomey, a former Assistant United States Attorney, had compromised the Lepere investigation. Twoomey was subsequently tried and convicted of disclosing confidential enforcement information.
Throughout the time relevant in this case, the DEA promulgated an internal security manual which established the intraagency rules for employee integrity.[1] The purpose of this manual, among other things, was to establish a procedure for investigations by the Office of Internal Security ("OIS"). The manual was structured *713 in three parts: employee responsibilities, management responsibilities, and office of internal security responsibilities.
The manual outlined the DEA policies for reporting violations and complaints to the OIS. For employees, the manuals stated in pertinent part:
8112 REPORTING POSSIBLE VIOLATIONS AND COMPLAINTS
A. Employee Reporting Responsibilities. All DEA employees will promptly report to Regional or Headquarters management officials any activity or situation the employee believes to be improper, illegal, or otherwise in violation of any of the standards of conduct....
B. Employee Reporting Channels. The provisions of Section 8121 concerning matters for resolution by management personnel are pertinent to the employee in determining the proper channel for reporting allegations on complaints. The crucial issue is the good faith of the employee who encounters such situations. Doubts in the mind of the employee as to the proper reporting channels should normally be resolved by reporting the matter through management channels. DEA employees may, at their discretion, report information directly to any DEA Inspector, provided the employee deems the substance of the information to be of an integrity or internal security nature.
For management, the manual had more extensive policies for reporting violations and complaints to the OIS. The manual stated in pertinent part:
8121 REPORTING ALLEGATIONS OR COMPLAINTS TO THE OFFICE OF INTERNAL SECURITY
A. Upon receiving an allegation or complaint which indicates the possible involvement of a DEA employee in any matter described in section 8121.11, Headquarters Office Heads, Regional Directors, Laboratory Directors, or any employee acting in their absence, will:
1. Immediately notify by telephone the Internal Security Field Office having jurisdiction.
2. Document the information by confirming the telephonic report in a memorandum to the appropriate Inspector-in-Charge.
B. To distinguish between those matters requiring reports to the Office of Internal Security for investigation and those which are for management resolution, note that in general:
1. Integrity breakdowns, criminal or civil violations of laws and departmental codes, and instances where public notoriety reach a level detrimental to the DEA or the Department of Justice, must be reported....
2. Conversely, matters such as employee grievances, errors, in judgment, insubordination, job performance and personal conduct deemed unbecoming of a DEA employee are clearly and solely the responsibility of DEA management officials.
In several more provisions, the manual elaborated on which particular matters should be reported to the OIS by management officials. Specifically, in section 8121.11, the manual listed at least twenty definitional categories of matters which must be reported to the OIS. In relevant part, section 8121.11 stated:

8121.11 Matters Which Must Be Reported to the Office of Internal Security. Report the integrity and security matters listed herein to [the OIS]. Recognize that the situations or activities described are not all-inclusive. Also report matters related to those listed, which constitute a breach of integrity or improper conduct beyond that for which management sanctions are appropriate, to [the OIS]....
C. Disclosure of official DEA information to any unauthorized person, any person known or suspected to be involved in drug trafficking or any other criminal activity. Examples of such information include, but are not limited to, the following: ...
2. Identifying investigative targets, regardless of the stage of investigation. (emphasis in original)
*714 For the OIS, the manual established a set of guidelines for investigating allegations and complaints which have been reported by employees or management. The manual provided in pertinent part:
8131 EVALUATION OF ALLEGATIONS
A. Each allegation or complaint will be evaluated by the Office of Internal Security to determine if an investigation will be initiated. A full investigation will generally be initiated upon receiving an allegation or complaint which meets the following criteria:
1. An identified source, who reports apparently accurate information, alleges or complains that
2. An identified DEA employee or another individual
3. Has committed a violation that falls within the investigative responsibility and jurisdiction of the Office of Internal Security.
In those situations where one of the above criterion is not met, a preliminary investigation will be conducted to determine if the facts will substantiate the missing or doubtful element....
B. The decision to proceed with or discontinue an investigation will rest with the Chief Inspector or his designee, subject to post review by the Administrator.
In counts one and four of the complaint, Kelly alleges that Stutman and Boccia violated policies in the DEA internal security manual. Specifically, Kelly asserts in the complaint that Stutman and Boccia failed to report to the OIS any allegations or complaints that Kelly was the leak in the Lepere investigation. Beyond the allegations in the complaint, however, Kelly has not submitted any affidavits or evidence in support of his complaint.[2]
According to affidavits filed by the United States, neither Stutman nor Boccia were aware of any specific factual information which might have indicated that Kelly was the source of the leaks. For this reason, according to the affidavits, neither Boccia nor Stutman ever reported any allegations concerning Kelly to the OIS. According to the affidavits, Stutman and Boccia did have a number of telephone consultations with officials in the OIS about the security problems in the Lepere investigation. In fact, according to the affidavits, the OIS conducted an investigation of another DEA Special Agent on the task force who was subsequently cleared of any alleged wrong-doing. It is clear, however, from the uncontested facts that neither Stutman nor Boccia reported any complaints against Kelly to the OIS.

II.
The first issue presented in this case is whether this Court properly substituted the United States as a defendant and dismissed the individual defendants. The FTCA allows a suit against the government only for personal injuries caused by an "employee of the Government while acting within the scope of his office or employment...." 28 U.S.C. § 1346(b). In 1988, Congress amended the FTCA to require the substitution of the United States as a defendant for an individual defendant where the government employee was acting within the scope of employment. Federal Employees Liability Reform and Tort Compensation Act of 1988, P.L. No. 100-694 §§ 5, 6, 102 Stat. 4564 (codified as amended at 28 U.S.C. §§ 2679(b), 2679(d)). See H.R.Rep. No. 700, 100th Cong., 2d Sess. 6-7, reprinted in, 1988 U.S.Code, Cong. & Admin.News 5945, 5949-50. In relevant part, the amendment provided that:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States ... and the United *715 States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1).
Under the FTCA, the issue of whether an employee was acting within the scope of employment is governed by the law of the state where the alleged negligent act occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). See also Doggett v. United States, 875 F.2d 684, 687 (9th Cir.1988); Nelson v. United States, 838 F.2d 1280, 1282-83 (D.C.Cir.1988); H.R. Rep. No. 700, 100th Cong., 2d Sess. 5-6, reprinted in, 1988 U.S.Code, Cong. & Admin.News 5945, 5949. In Massachusetts, the "conduct of an agent is within the scope of employment if it is of the kind he is employed to perform, ...; if it occurs substantially within the authorized time and space limits, ...; and if it is motivated, at least in part, by a purpose to serve the employer." Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163 (1986) (citations omitted). See also Howard v. Burlington, 399 Mass. 585, 589-90, 506 N.E.2d 102 (1987). Further, courts have not construed the scope of employment restrictively in Massachusetts. Howard, 399 Mass. at 590, 506 N.E.2d 102; Commonwealth v. Jerez, 390 Mass. 456, 462, 457 N.E.2d 1105 (1983).
On March 30, 1989, this Court dismissed the individual defendants pursuant to 28 U.S.C. § 2679(d)(1) as amended by P.L. No. 100-694. The government had presented a certification by the Attorney General that Stutman and Boccia were acting in the scope of their employment, and the government had argued that this certification in combination with the recent passage of P.L. No. 100-694 precluded all judicial review concerning the substitution of the United States as a defendant. On November 29, 1989, in light of newly discovered legislative history, the government filed a supplemental memorandum withdrawing their arguments originally made based on P.L. No. 100-694. Following these developments, the plaintiff Kelly moved for reconsideration of the Court's order.
In moving for reconsideration, Kelly initially argues that the certification from the Attorney General does not foreclose all judicial review of the scope of employment question. Further, upon review of the facts, Kelly claims that Stutman and Boccia were acting beyond the scope of their employment in not referring allegations to the OIS, and thus the Court erred in dismissing claims against the individual defendants. While the former argument has merit, the latter argument does not.
A careful analysis of section 2679(d) does not suggest that an Attorney General's certification as to scope of employment should preclude all judicial review of decisions to substitute the United States as a defendant for individual government employees. First, while the plain language of section 2679(d)(1) mandates the substitution of the United States as a defendant upon certification by the Attorney General, the overall construction of section 2679(d) clearly allows for some judicial review of the Attorney General's scope of employment certifications. 28 U.S.C. § 2679(d). Section 2679(d)(3) expressly provides that a government employee may challenge the Attorney General's refusal to certify scope of employment and may petition a United States district court for judicial review. 28 U.S.C. § 2679(d)(3). Given this express provision allowing judicial review for individual defendants, this Court would be hard pressed to read the plain language of 28 U.S.C. § 2679(d)(1) to implicitly bar judicial review of certifications by potential plaintiffs.
Second, the legislative history of section 2679(d) demonstrates that Congress did not intend that potential plaintiffs be barred from challenging the Attorney General's scope of employment certifications. In a hearing on the proposed FTCA amendments, Deputy Attorney General Frank L. Willmore, who appeared representing the Justice Department, had the following exchange with Representative Barney Frank concerning the specific provisions which became section 2679(d):
Mr. FRANK: What about their objection to the certification?

*716 Mr. WILLMORE: I think the certification is the easiest way to get the scope issue resolved without having the potentially years of litigation over whether an act was within scope. I do not know what their alternative approach is.
Mr. FRANK: Litigation by whom?
Mr. WILLMORE: Litigation maybe by the plaintiff. Maybe the plaintiff wants to sue the employee.
Mr. FRANK: Well, but the plaintiff can still contest the certification, could he not?
Mr. WILLMORE: Yes.
Mr. FRANK: I mean that is not going to void the litigation. It seems to me the certification is a weapon against the employee, not against the plaintiff, because the plaintiff would still have the right to contest the certification if they thought the Attorney General were certifying without justification.
Hearing Before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives, 100th Cong., 2d Sess. 128 (1988).
Willmore later confirmed Rep. Frank's conclusion in a discussion with Rep. Benjamin L. Cardin.
Mr. CARDIN: One of the problems we might have is you might issue a certification and later find out that the facts are such that [a government employee] was not acting within the scope of his employment.
Mr. WILLMORE: Yes. But Chairman Frank is correct that a plaintiff can challenge that certification. So that would be reviewable by a court at some point, probably by a Federal District Court.
Id. at 133.[3] In light of this legislative history, as well as the statutory construction noted above, section 2679(d) does not bar judicial review of a plaintiff's challenge to the Attorney General's certification of scope of employment.
Turning to the facts of this case, a careful review of the Attorney General's scope of employment certification reveals no error. Applying the state law rules of respondeat superior, as noted above, the alleged negligent conduct by Stutman and Boccia was within their scope of employment. The alleged wrongful conduct was a failure to report allegations against Kelly to the OIS. Stutman and Boccia were Kelly's supervisors at the DEA Boston office, and, as alleged in the complaint, are being sued in their capacity as DEA employees. Further, the alleged wrongful conduct occurred within their time and office as DEA employees. In fact, Kelly alleges that Stutman and Boccia violated certain internal security regulations which only apply to DEA employees, and Kelly alleges no wrongful conduct falling outside Stutman's or Boccia's jobs as DEA supervisors. As such, there can be no question that Stutman and Boccia are being sued for alleged wrongful conduct within the scope of their employment, and the Attorney General's certification is clearly supported by undisputed facts in this case. Consequently, Kelly's motion for reconsideration should be denied.

III.
The next issue presented in this case is whether this Court has subject matter jurisdiction over this action. The FTCA acts as a limited waiver of sovereign immunity by the United States government. The FTCA generally grants jurisdiction in United States District Court to sue the government
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b).
The FTCA also includes a number of exceptions to this waiver of sovereign immunity. *717 28 U.S.C. § 2680(a-n). In the exception relevant to this case, the FTCA provides that the grant of jurisdiction shall not apply to
[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). "If a discretionary function was involved, the fact that critical factors were not considered or that the decision was negligently made will not bring the challenged conduct outside of the exception." Ayer v. United States, 902 F.2d 1038, 1041 (1st Cir.1990) (citing Dube v. Pittsburgh Corning, 870 F.2d 790, 797 (1st Cir.1989)).
The Supreme Court has identified several factors in analyzing whether the discretionary function exception applies. First, "it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764. In examining this first factor, a court must "consider whether the action is a matter of choice for the acting employee." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). "[I]f the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function to protect." Id.
Second, "assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of a kind that the discretionary function was designed to shield." Id. The discretionary function exception expresses a congressional intent to "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764. "The exception properly construed, therefore protects only governmental actions and decisions based on considerations of public policy." Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959.
Turning to this case, the government argues that Kelly's claims for negligent investigation of the leaks in the Lepere investigation are barred by the discretionary function exception. Specifically, the government argues that reporting allegations or complaints against DEA agents to the OIS involves choice and judgment, and Congress did not intend such internal security policy judgments to be the subject of tort actions. In response, Kelly asserts that the internal security manual provides no discretion for management in reporting allegations or complaints of disclosing confidential DEA information. As such, Kelly argues that the discretionary function exception does not apply in this case. After careful review of the internal security manual, the government's argument is persuasive.
To begin, the manual creates a general procedure for reporting internal security problems applicable to all DEA employees. The manual states that employees must report "any activity or situation the employee believes to be improper, illegal, or otherwise in violation of the standards of conduct." The manual also provides that an employee must consider the management policies and use their "good faith" in deciding how to report the violations. Further, an employee "may, at their discretion, report information" to a DEA Inspector "provided the employee deems the substance to be of an integrity or internal security nature." The manual does not provide any further guidelines or definitions specifying the parameters of this general employee responsibility.
*718 Applying the factors announced by the Supreme Court, a DEA employee's conduct in deciding whether to report an internal security problem is clearly protected under the discretionary function exception. First, the language of the manual clearly suggests that employees must exercise their judgment in deciding which activities should be reported and to whom the reports should be made. An employee must only report activities he or she "believes" to be improper or illegal. An employee must make a "good faith" judgment in deciding where to report violations and complaints. Further, the employee must use "their discretion" in evaluating the substance of the activity and how to report the activity. In this context, it is clear that an employee's decision whether to report is an exercise of their discretion.
Second, a DEA employee's judgment as to what incidents to report and how to report them involves basic public policy considerations. The DEA and its employees have substantial interests in maintaining internal and public integrity. The DEA, as an international law enforcement agency, conducts complex and often confidential investigations. Breaches of integrity may harm the success of these investigations and even threaten the security of individual agents. The DEA also needs to promote public confidence in the integrity and dependability of the agency. Where accusations may be made against the DEA or its agents, the DEA needs a mechanism to resolve promptly and fairly any internal security problems. The internal security manual and its reporting policies respond to these fundamental policy concerns. A DEA employee, in exercising judgment under those policies, also decides fundamental issues of policy concerning internal and public integrity. In sum, the reporting of internal security problems by DEA employees is a discretionary function protected from suit by 28 U.S.C. § 2680(a).
Turning to the responsibility for supervisors, the manual creates a more specific procedure for reporting internal security allegations and complaints applicable to DEA management. The manual requires that DEA management should make reports to the OIS "[u]pon receiving an allegation or complaint which indicates the possible involvement of DEA employee in [an internal security problem]." Further, the manual provides guidelines for management "[t]o distinguish between those matters requiring reports to the Office of Internal Security for investigation and those which are for management resolution...." In making these assessments, the manual provides further definitions and criteria for determining which matters should be reported and which matters will be investigated by the OIS.
The provision most relevant to this case is section 8121.11 of the manual. Within the context of the manual, section 8121.11 appears as a definitional list of different possible internal security matters. Specifically, part C(2) of section 8121.11 states that "[d]isclosure of official DEA information to ... any person known or suspected to be involved in drug trafficking" is a matter which must be reported to the OIS.
Again applying the Supreme Court factors, a DEA supervisor's conduct in evaluating what allegations and complaints to report are similarly protected by the discretionary function exception. First, the reporting policies for management requires the exercise of judgment and choice by supervisors. DEA supervisors must decide whether "an allegation or complaint" involves an internal security problem which should be reported to the OIS or whether the matter should be handled internally. Because of this inherently discretionary task, the manual has provided guidelines and criteria for determining which matters to report and which not to report. In making this decision, the supervisor must review the definitional list in section 8121.11 to see whether any provisions are applicable.[4] Further, management implicitly has *719 to assess whether the allegation or complaint satisfies the established criteria necessary to initiate an OIS investigation.[5] Therefore, a DEA supervisor's decision whether to report an allegation or complaint to the OIS is a product of their discretion.
The reporting policies for management also involve public policy judgments. As noted above, all DEA employees are acting under the manual to protect the internal and public integrity of the DEA. In addition, supervisors have special policy judgments both in managing their investigations and supervising DEA agents. Supervisors must consider employee relations, individual job performance, and departmental resources in deciding what complaints to report and which not to report. Furthermore, supervisors must pay particular attention to the confidentiality of investigations and the safety of particular agents under their direct supervision. In light of the Supreme Court factors discussed above, the reporting of internal security problems by DEA management is a discretionary function protected from suit by 28 U.S.C. § 2680(a).[6]
In conclusion, any conduct by Stutman or Boccia, as DEA employees or supervisors, in failing to make reports to the OIS was a discretionary act involving choice and policy judgment. Thus, the discretionary function exception of the FTCA divests this Court of subject matter jurisdiction to hear Kelly's remaining claims. This exception applies whether or not Stutman and Boccia were negligent in exercising their discretion under the internal security manual. See 28 U.S.C. § 2680(a) (the exception applies "whether or not the discretion involved be abused."). Since this Court has no subject matter jurisdiction, there are no genuine issues of material fact for adjudication and summary judgment is appropriate. For all these reasons, the government's motion for summary judgment on counts one and four should be granted.
Order accordingly.
NOTES
[1]  The government has provided copies of two DEA manuals in its affidavits to this Court. The first manual called the "Internal Security Manual" was drafted in 1979 and remained in effect until 1983. The second manual called the "Planning and Inspection Manual" was drafted in 1983 and incorporated the Internal Security Manual with some minor revisions. The provisions relevant to this case are substantively the same in both manuals. Furthermore, the alleged duty of care arose and nearly all the alleged negligent conduct occurred while the first Internal Security Manual was in effect. Therefore, for purposes of clarity and efficiency, this Court shall only examine the first Internal Security Manual.
[2]  This Court also notes with disfavor that Kelly has not even filed a statement of disputed facts in response to the government's motion for summary judgment. Under Local Rule 18, "[o]ppositions to motions for summary judgment shall include a concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried...."
[3]  The position that plaintiffs may challenge scope of employment certifications was reiterated by Rep. Frank in later discussions during the same hearings. See id. at 197.
[4]  The fact that a particular situation may be covered by section 8121.11 and, therefore, must be reported to the OIS does not eliminate the discretionary nature of the choice to be made by DEA supervisors. Section 8121.11 does not alter the overall procedure for reporting certain allegations or complaints to the OIS and not others. Nor does section 8121.11 eliminate the judgment which management must employ in determining whether parts of section 8121.11 apply to any given circumstance.
[5]  Under the OIS responsibilities, the manual states that a full investigation will be conducted only where "an identified source" reports "accurate information" about "an identified DEA employee" and the matter is within the jurisdiction of the OIS. While these criteria appear within the section for OIS responsibilities, this Court recognizes that it is reasonable to infer that management has some responsibility for and knowledge of the OIS aspects of the internal security investigative procedure. Furthermore, the government has filed unopposed affidavits by DEA officials stating that it was policy within the DEA to evaluate these OIS criteria before deciding to make an official report to the OIS.
[6]  In the complaint, Kelly has not specifically asserted any further claims of negligence on the part of Boccia or Stutman. It is conceivable, however, that Kelly could claim that the DEA, as a federal agency, was negligent in drafting the particular procedures and provisions in the DEA internal security manual. This Court notes that any such claims would also be barred by the discretionary function exception.

The internal security manual is promulgated under the broad statutory authority given to each executive department to prescribe regulations for the conduct of employees. 5 U.S.C. § 301. In relevant part, section 301 provides:
The head of an Executive Department ... may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.
5 U.S.C. § 301. In light of the factors noted by the Supreme Court, the specific content of internal security policies is a matter of choice delegated by statute to the executive of the Department of Justice, and the internal security policies involve numerous public policy judgments concerning the best procedure for protecting the security interests of the DEA. Thus, any conduct by the DEA in drafting the provisions of the internal security manual are immune from suit under the FTCA.


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/16/2019 12:07 AM CDT

                                                          - 602 -
                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                   BLANK v. BLANK
                                                   Cite as 303 Neb. 602

                                        M arissa R enee Blank, appellant, v.
                                          Caleb Robert Blank, appellee.
                                                      ___ N.W.2d ___

                                            Filed July 12, 2019.    No. S-18-751.

                 1. Divorce: Child Custody: Child Support: Property Division: Alimony:
                    Attorney Fees: Evidence: Appeal and Error. In an action for the dis-
                    solution of marriage, an appellate court reviews de novo on the record
                    the trial court’s determinations of custody, child support, property divi-
                    sion, alimony, and attorney fees; these determinations, however, are
                    initially entrusted to the trial court’s discretion and will normally be
                    affirmed absent an abuse of that discretion.
                 2. Judges: Words and Phrases. A judicial abuse of discretion exists when
                    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
                    ing a litigant of a substantial right and denying just results in matters
                    submitted for disposition.
                 3. Evidence: 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.
                 4. Due Process. Due process principles protect individuals from arbitrary
                    deprivation of life, liberty, or property without due process of law.
                 5. Due Process: Notice. Due process does not guarantee an individual
                    any particular form of state procedure; instead, the requirements of due
                    process are satisfied if a person has reasonable notice and an oppor-
                    tunity to be heard appropriate to the nature of the proceeding and the
                    character of the rights which might be affected by it.
                 6. Constitutional Law: Due Process. The determination of whether pro-
                    cedures afforded an individual comport with constitutional requirements
                    for procedural due process presents a question of law.
                 7. Child Custody. The factual inquiry for awarding joint custody is sub-
                    stantially different from that for an award of sole custody.
                                   - 603 -
             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                             BLANK v. BLANK
                             Cite as 303 Neb. 602

 8. ____. When a trial court determines at a general custody hearing that
    joint physical custody is, or may be, in a child’s best interests, but
    neither party requested joint custody, the court must give the parties
    an opportunity to present evidence on the issue before imposing joint
    custody.
 9. ____. Joint physical custody must be reserved for those 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 par-
    ents or confuse the child’s sense of direction, and will provide a stable
    atmosphere for the child to adjust, rather than perpetuating turmoil or
    custodial wars.
10. ____. A trial court’s decision to award joint legal or physical custody
    can be made without parental agreement or consent so long as it is in the
    child’s best interests.
11. ____. The best interests of the child are the primary consideration for
    developing custodial plans.
12. ____. In considering a child’s best interests in the development of
    custodial plans, it is a common occurrence and a court is permitted to
    supply a party with final decisionmaking authority in some areas to
    avoid future impasses which could negatively affect the child while
    maintaining both parents’ rights to consultation and participation in
    important decisions.

   Appeal from the District Court for Phelps County: Terri S.
H arder, Judge. Affirmed.
  Jeffrey P. Ensz, of Lieske, Lieske & Ensz, P.C., L.L.O., for
appellant.
   John D. Icenogle, of Bruner Frank, L.L.C., for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Funke, J.
   Marissa Renee Blank appeals the district court’s decree of
dissolution dissolving her marriage to Caleb Robert Blank and
awarding joint legal and physical custody of the parties’ two
minor children. On appeal, Marissa claims the court erred in
awarding joint custody without advance notice when neither
                              - 604 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

party made such request. Marissa also claims the court erred in
determining that the case did not involve domestic abuse and in
not making the statutorily required additional findings. Finally,
Marissa claims the court abused its discretion in determining
joint custody was in the children’s best interests. For the rea-
sons set forth herein, we affirm.

                        BACKGROUND
   Marissa and Caleb were married on May 19, 2011. The
parties have two minor children: a daughter, who was born in
2011, and a son, who was born in 2014.
   Marissa filed a complaint for dissolution of marriage in
February 2017. In the complaint, Marissa stated, “I am and my
spouse is able to provide support for the child(ren)” and asked
that the court “[a]ward [j]oint legal custody of the children of
this marriage.” Caleb signed a voluntary appearance acknowl-
edging receipt of a copy of the complaint.
   At the same time the complaint was filed, Marissa offered
a proposed parent-created parenting plan which was signed by
both parties. This proposed plan outlined that Marissa would
have legal custody in that she “shall have the legal respon-
sibility and authority to make final decisions concerning the
parenting functions necessary to raising the child(ren).” The
proposed plan additionally listed Marissa’s residence as the
principal place of residence subject to the terms of the plan. As
to parenting time and holidays, the proposed plan detailed that
the parties’ work schedules would dictate the parenting times
and indicated that the parties would be able to work together to
minimize either party’s paying for daycare. No order adopting
this plan was entered by the district court.
   Caleb filed another proposed parenting plan signed by both
parties on May 11, 2017. This proposed plan established that
the “parties shall share joint legal and physical custody of the
minor children and as such, shall maintain the legal respon-
sibility and authority to make final decisions concerning the
parenting functions necessary for raising the minor children.”
                              - 605 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

The proposed plan explained that the children’s principal resi-
dences would be with both Marissa and Caleb and outlined a
parenting time schedule for Caleb. This plan also contained
references to the parties’ ability to coordinate adjustments to
the schedule and discuss parenting decisions with each other.
Again, no order adopting the plan was entered by the dis-
trict court.
   On May 23, 2017, Caleb filed a motion for temporary
orders seeking “joint temporary legal and physical care, cus-
tody[,] and control” of the children. Following a hearing on
the motion, the court entered a “Temporary Order/Parenting
Plan.” That order awarded temporary legal and physical cus-
tody to Marissa and declared that each parent have full and
equal access to the children’s education and medical records
and the authority to make emergency decisions affecting the
health or safety of the children. The order further provided
a parenting plan with continuous and easy telephone access
and midweek, every-other-weekend, and alternating-holiday
parenting time.
   A trial was held on the complaint in June 2018 on the
remaining issues to be decided, including “custody of the par-
ties’ two minor children, parenting time, and financial issues
concerning the children.”
   Marissa testified as to the care of the children. She opined
that throughout the children’s lives, she was the primary care-
taker. She explained that she took 2 months off work to stay
home after their daughter was born, that she worked only part
time after returning to the work force, and that she would split
her work shifts in order to go home to breastfeed because their
daughter “wouldn’t take a bottle.” Marissa further explained
that she was primarily the one to take the children to events
and activities. Marissa testified that Caleb would take care of
the children when she was working and he was off but that
when both parents where available to care for the children, the
responsibilities fell solely on her. Marissa also testified that
following the temporary order, the children were performing
                              - 606 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

well, and that the schedule is very structured for their benefit.
Marissa testified about the parties’ working relationship and
agreed they have made accommodations for each other with
regard to the children’s care. Marissa further testified that fol-
lowing the temporary order, the parties were able to communi-
cate and work together civilly. Marissa testified that both she
and Caleb have new relationships and, with those parties, new
houses in which the children stay.
   Marissa asserted that she was the primary parent to take the
children to the doctor when they were sick and that the parties
agreed not to vaccinate the children. However, Marissa did
admit Caleb was the one who took the children to the doctor
for chicken pox and lice following the temporary order.
   Caleb testified that the parties shared the childcare responsi-
bilities equally when both parents were home. However, Caleb
explained that because he works more, Marissa would watch
the children more when he was not home. Caleb explained
that when Marissa was working, he would make supper,
prepare baths, and put the children to bed. Caleb also testi-
fied that while he initially agreed not to vaccinate the chil-
dren, he would now seek to have them vaccinated if given
legal custody.
   Caleb admitted that he had punched a couple of holes in
a basement wall within 2 or 3 years prior to trial while the
children were upstairs in the home. Caleb explained, “An argu-
ment, I honestly do not recall what it was about, escalated; and
I just — I got really angry. So I walked away. I went into the
basement of the marital home, and I punched the wall.” Caleb
also admitted that he had “open hand smacked” Marissa at
one point due to a disagreement which occurred “so far in the
past.” Marissa agreed on rebuttal to her attorney’s questioning
that Caleb “slapped you at some point in the relationship.”
However, Caleb also testified that while Marissa was watching
their son, she kicked a hole in a door out of frustration, and
testimony was received that Marissa is more physical with the
children than Caleb.
                              - 607 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

   Marissa requested that the court grant her sole custody and
testified that she did not believe a shared custody arrange-
ment was in the children’s best interests. Specifically, Marissa
responded as follows to questioning on direct examination:
         Q [by Marissa’s counsel:] There was some talk — well,
      maybe not. Rather do you believe that a shared custody
      arrangement where you split time would be in the chil-
      dren’s best interest?
         A [by Marissa:] No.
         Q Why do you feel that way?
         A I feel that way because Caleb rushed into a new rela-
      tionship, not only a new relationship but a new relation-
      ship where she had kids as well. And I don’t feel that his
      relationship with the kids was a strong enough bond for
      them not to worry if he’s still going to love them.
         ....
         Q Do you believe there’s any question as to who the
      primary caretaker was during your marriage between you
      and Caleb?
         ....
         A No.
         Q Who was the primary caretaker?
         A It was me.
         Q Do you believe — is that part of your reason why
      you believe that a shared custody arrangement would not
      be appropriate?
         A Yes.
   In response to questioning on cross-examination about her
concerns “about joint custody” because Caleb had “rushed
into a . . . relationship,” Marissa agreed that she began her
new relationship and moved in with her significant other
before Caleb’s new relationship. Counsel for Marissa argued
during closing argument that this case is not appropriate for
joint custody or a shared custody arrangement, “as clearly
there’s enough conflict in here that that could create a problem
                              - 608 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

for the children” and cause a “significant upheaval” of the
children’s current structure, which was working.
   Caleb, in turn, requested that the court award him full cus-
tody. Alternatively, Caleb asked for an award of joint custody,
responding as follows on direct examination:
         Q [by Caleb’s counsel:] And if the Court doesn’t grant
      you sole legal and physical custody, are you asking the
      Court to award you joint?
         A Yes.
         Q Are you willing to coparent with [Marissa]?
         A Yes.
         Q And how would you go about doing that?
         A Communication, open mindedness. I understand and
      respect that she is their mother, and they will always love
      her as they will always love me. And I will do my best to
      foster a positive relationship with their mother as I feel
      is needed for them.
         ....
         Q . . . Do you believe that joint custody is a via-
      ble option?
         A It could be.
         Q Are you willing to work for it?
         A Yes.
         ....
         Q Do you believe that it’s in the children’s best inter-
      est that joint legal custody be granted?
         A Yes.
   Counsel for Caleb also addressed joint custody during clos-
ing arguments, asserting, “[I]t’s [not] good public policy to
throw out joint custody simply because [Marissa] doesn’t want
to put in any effort to do it” and “We’ve heard a lot of testi-
mony from [Caleb] who says he’s been more than willing to
attempt to coparent as a joint family.”
   Following trial, the court entered a decree dissolving the
marriage and awarding the parties joint legal and physical cus-
tody of the children. Additionally, the decree ordered that, in
                                  - 609 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                            BLANK v. BLANK
                            Cite as 303 Neb. 602

the event of impasses after discussion of major issues, Caleb
“shall make the decision with respect to issues of health and
religion” and Marissa “shall make the decision on education.”
The court specifically found this was not a domestic abuse case
as defined in Nebraska’s Parenting Act, that the parties have the
ability to coparent and make contributions to the children, and
that joint custody is in the children’s best interests. The court
again declared that each parent have full and equal access to
the children’s education and medical records and the authority
to make emergency decisions affecting the health or safety of
the children. In an attached parenting plan, the court instructed
that the parties share parenting time on a week-on-week-off
basis with assigned midweek and holiday parenting times for
the parent who does not have the children at that time.

                 ASSIGNMENTS OF ERROR
   Marissa assigns, restated, that the district court erred in
(1) awarding joint physical custody without advanced notice
when neither party made such request, (2) not finding this to
be a domestic abuse case and failing to make the statutorily
required additional findings in awarding joint physical custody,
and (3) abusing its discretion in determining joint physical cus-
tody was in the children’s best interests.

                   STANDARD OF REVIEW
   [1-3] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s
determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however,
are initially entrusted to the trial court’s discretion and will
normally be affirmed absent an abuse of that discretion.1 A
judicial abuse of discretion exists when reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters submitted

1
    Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017).
                                   - 610 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             BLANK v. BLANK
                             Cite as 303 Neb. 602

for disposition.2 When evidence is in conflict, an appellate
court considers, and may give weight to, the fact that the trial
judge heard and observed the witnesses and accepted one ver-
sion of the facts rather than another.3

                           ANALYSIS
                    Notice of Joint Custody
                          Consideration
   Neb. Rev. Stat. § 42-364(1)(b) (Reissue 2016) requires
a court to determine physical custody based upon the best
interests of a child and such determination shall be made by
incorporating (i) a parenting plan developed by the parties,
if approved by the court, or (ii) a parenting plan developed
by the court based upon evidence produced after a hearing in
open court if no parenting plan is developed by the parties and
approved by the court. Section 42-364(3) allows for a joint
physical custody award if (a) 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) 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.
   Marissa contends that the district court erred in award-
ing joint physical custody because neither party made such a
request prior to trial and the court did not provide notice of
its consideration. In arguing the parties lacked notice and an
opportunity to be heard on the issue of joint physical custody,
Marissa cites Hill v. Hill,4 a Nebraska Court of Appeals case
utilizing our opinion in Zahl v. Zahl.5

2
    Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).
3
    Erin W., supra note 1.
4
    Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013).
5
    Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
                                    - 611 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              BLANK v. BLANK
                              Cite as 303 Neb. 602

    [4-6] Both Zahl and Hill evaluated the notice requirement
under a due process analysis. Due process principles pro-
tect individuals from arbitrary deprivation of life, liberty, or
property without due process of law.6 Due process does not
guarantee an individual any particular form of state proce-
dure; instead, the requirements of due process are satisfied if
a person has reasonable notice and an opportunity to be heard
appropriate to the nature of the proceeding and the character of
the rights which might be affected by it.7 The determination of
whether procedures afforded an individual comport with con-
stitutional requirements for procedural due process presents a
question of law.8
    [7,8] The parties in Zahl both sought sole custody of their
child. However, after a general custody hearing in which the
parties only presented evidence on why he or she would be
the best sole custodian, the trial court awarded joint legal and
physical custody.9 No reference to joint custody was made dur-
ing or prior to the hearing absent the mother’s testimony at
the end of the hearing that she would be willing to cooperate
if joint custody was imposed.10 In reversing the trial court’s
decision, we explained that the factual inquiry for awarding
joint custody is substantially different from that for an award
of sole custody.11 As such and because neither party requested
it, the parties were not put on notice that joint custody was in
issue and the parties were entitled to a new hearing with such
notice.12 We held that when a trial court determines at a general
custody hearing that joint physical custody is, or may be, in a

 6
     Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
 7
     Id.
 8
     Id.
 9
     Zahl, supra note 5.
10
     Id.
11
     See id.
12
     Id.
                                 - 612 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                           BLANK v. BLANK
                           Cite as 303 Neb. 602

child’s best interests, but neither party requested joint custody,
the court must give the parties an opportunity to present evi-
dence on the issue before imposing joint custody.13
   Similarly, in Hill, both parties requested sole custody, nei-
ther party requested joint physical custody prior to trial, and
both parties presented evidence on their requests for sole
custody.14 The only evidence presented on joint custody was
testimony from the father that, while he wanted sole custody,
he was willing to perform under a joint custody arrangement if
ordered.15 Nevertheless, the trial court awarded joint physical
custody.16 Utilizing our holding in Zahl, the Court of Appeals
reversed the trial court’s decision, concluding the trial court
had abused its discretion in not giving the parties an oppor-
tunity to present evidence on the issue before imposing joint
physical custody.17
   The instant case is distinguishable from the facts of Zahl
and Hill. Unlike the parties in those cases, Marissa and Caleb
had notice prior to trial that joint custody was at issue. In the
complaint, Marissa asked for “[j]oint legal custody,” did not
request a specific physical custody arrangement, and provided
that both parents were capable of providing support for the
children and were fit and proper people to have care, custody,
and control of the children. In his May 11, 2017, proposed par-
enting plan which was signed by Marissa, Caleb requested that
the “parties . . . share joint legal and physical custody of the
minor children.” This plan proposed designating both Marissa’s
and Caleb’s homes as the children’s principal residences and
contained references to the parties’ ability to coordinate adjust-
ments to the schedule and discuss parenting decisions with

13
     See id.
14
     Hill, supra note 4.
15
     Id.
16
     Id.
17
     Id.
                              - 613 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

each other. Finally, in his May 23 motion for temporary orders,
Caleb again sought joint legal and physical care, custody, and
control of the children. Accordingly, these filings provided
Marissa and Caleb reasonable notice unlike the complete lack
of prior notice in Zahl and Hill.
   Moreover, it is clear from the record that Marissa understood
joint physical custody was at issue during the trial. As the first
witness, Marissa responded to direct examination from her
counsel questioning whether she believed “a shared custody
arrangement where [she would] split time” with Caleb was in
the children’s best interests. Testifying she did not believe such
shared custody was appropriate, Marissa explained the reasons
why she did not support joint custody, namely her opinion
that Caleb rushed into a new relationship with another person
with children and her belief that she was the primary caretaker
of the children while they were married. In closing argu-
ments, Marissa’s counsel again addressed the question of joint
physical custody, arguing this case is not appropriate for joint
custody or a shared custody arrangement “as clearly there’s
enough conflict in here that that could create a problem for the
children” and cause a “significant upheaval” of the children’s
current structure, which was working.
   Considering all of the above, Marissa had reasonable notice
that joint custody was at issue during the trial, had an oppor-
tunity to be heard on the issue of joint custody during the trial,
and presented evidence on the issue of joint custody during
the trial. As such, the district court did not err in considering
joint physical custody.
               Domestic A buse Determination
   Marissa argues awarding joint physical custody constituted
an abuse of discretion because Caleb testified that he “open
hand smacked” Marissa once during the parties’ marriage
and punched holes in the basement walls. Marissa argues this
testimony established Caleb committed domestic intimate part-
ner abuse against her. However, the district court determined
                               - 614 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                         BLANK v. BLANK
                         Cite as 303 Neb. 602

this was not a domestic abuse case as defined by Nebraska’s
Parenting Act. As such, the court made no additional findings
pursuant to Neb. Rev. Stat. § 43-2932(3) (Reissue 2016).
   Nebraska’s Parenting Act establishes certain requirements
for the development of a parenting plan in cases where a par-
ent is found to have committed child abuse or neglect, child
abandonment, or domestic intimate partner abuse or to have
interfered with the other parent’s access to the child.18 Section
43-2932(3) explains the additional requirements if a court
determines a parent committed domestic abuse, stating:
      If a parent is found to have engaged in any activity speci-
      fied in subsection (1) of this section, the court shall not
      order legal or physical custody to be given to that parent
      without making special written findings that the child and
      other parent can be adequately protected from harm by
      such limits as it may impose under such subsection. The
      parent found to have engaged in the behavior specified in
      subsection (1) of this section has the burden of proving
      that legal or physical custody, parenting time, visitation,
      or other access to that parent will not endanger the child
      or the other parent.
   Under Neb. Rev. Stat. § 43-2922(8) (Reissue 2016),
“[d]omestic intimate partner abuse” means an act of abuse as
defined in Neb. Rev. Stat. § 42-903 (Reissue 2016) and a pat-
tern or history of abuse evidenced by one or more of the fol-
lowing acts:
      Physical or sexual assault, threats of physical assault or
      sexual assault, stalking, harassment, mental cruelty, emo-
      tional abuse, intimidation, isolation, economic abuse, or
      coercion against any current or past intimate partner, or
      an abuser using a child to establish or maintain power
      and control over any current or past intimate partner,
      and, when they contribute to the coercion or intimidation
      of an intimate partner, acts of child abuse or neglect or

18
     § 43-2932.
                                - 615 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                          BLANK v. BLANK
                          Cite as 303 Neb. 602

      threats of such acts, cruel mistreatment or cruel neglect
      of an animal as defined in section 28-1008, or threats of
      such acts, and other acts of abuse, assault, or harassment,
      or threats of such acts against other family or house-
      hold members.
   The first sentence of § 43-2922(8) directs us to § 42-903(1)(a)
to determine if domestic abuse occurred. Section 42-903(1)(a)
defines “[a]buse” as “[a]ttempting to cause or intentionally and
knowingly causing bodily injury with or without a dangerous
instrument” to a family or household member. Spouses and
former spouses are considered household members.19
   Returning to § 43-2922(8), we must examine the remain-
der of the factors which would require the making of spe-
cial written findings. After identifying an act of abuse per
§ 42-903(1)(a), the rest of § 43-2922 is puzzling. The language
indicates that the act of abuse previously identified must be
coupled with a “pattern” or “history,” suggesting that before
the factual findings are required, the Legislature wanted more
than one act of abuse.20 In contrast, § 43-2922 also states “one”
act, suggesting perhaps a single act of abuse would trigger the
requirement for specific factual findings. There are further
interpretations not posited here.
   Because of the word “and” before “pattern” or “history,” we
believe the most logical reading of § 43-2922 is that there must
be more than one act of abuse. However, if the Legislature
intended that one act be sufficient, it can revise the statu-
tory language.
   However, we need not resolve the tension here to determine
there was a failure of proof before the trial court. In this case,
no evidence was received that Caleb’s actions caused or were
intended to cause bodily injury or placed Marissa in fear of
such injury and the record does not demonstrate a pattern or
history of similar acts.

19
     See § 42-903(3).
20
     See § 43-2922(8).
                                    - 616 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              BLANK v. BLANK
                              Cite as 303 Neb. 602

   As to the slapping incident, Caleb testified that he “open
hand smacked” Marissa at one point during their relationship
due to a disagreement which occurred “so far in the past.” He
did not recall any other surrounding circumstances and pro-
vided no testimony on the cause, effect, or intent of the action.
While Marissa answered “Yes” to questioning as to whether
Caleb “slapped [her] at some point during the relationship,”
she offered no other testimony or evidence on the incident.
   Though we agree that an “open hand smack[]” may intend,
cause, or place someone in fear of the requisite bodily injury,
we have no evidence that such was the case here. There is no
testimony on the severity, effect, or surrounding circumstances
on which we can rely to determine the intention or result of the
action. No evidence was adduced as to any redness, bruising,
swelling, or other injury sustained. Marissa never contended
that Caleb placed her in fear of bodily injury or in fear for her
or the children’s safety.
   In addition, there is no testimony of a pattern or history of
similar actions. An 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.21 Without more, we cannot say the district court erred
in its determination that the testimony on the “open hand
smack[]” did not amount to domestic intimate partner abuse.
   The record is similarly void of details as to the circum-
stances surrounding Caleb’s punching holes in the basement
wall. Caleb testified that he punched these holes 2 or 3 years
prior to trial, explaining, “An argument, I honestly do not
recall what it was about, escalated; and I just — I got really
angry. So I walked away. I went into the basement of the
marital home, and I punched the wall.” Although Caleb testi-
fied the children were in the house, he explained they were
not with him when he punched the wall. No other testimony

21
     See Erin W., supra note 1.
                                   - 617 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             BLANK v. BLANK
                             Cite as 303 Neb. 602

or evidence was received on when this occurred, the con-
text of the argument, if anyone else was in the basement,
how long after the argument took place Caleb punched the
wall, whether Caleb had a history of similar acts, or any
other information that would inform whether Caleb intention-
ally placed Marissa in fear of bodily injury. Again, on the
record before us, we cannot say the district court erred in its
determination that the testimony on Caleb’s punching holes
in the basement wall did not amount to domestic intimate
partner abuse.

                      Sufficiency of Evidence
   Marissa assigns the court abused its discretion in awarding
joint physical custody, arguing the evidence presented at trial
did not justify such an award. Specifically, Marissa claims the
evidence demonstrated the parties’ relationship was “replete
with conflict.”22
   [9] Marissa is correct that we have said joint physical cus-
tody must be reserved for those cases where, in the judgment of
the trial court, the parents are of such maturity that the arrange-
ment will not operate to allow the child to manipulate the par-
ents or confuse the child’s sense of direction, and will provide
a stable atmosphere for the child to adjust, rather than perpetu-
ating turmoil or custodial wars.23 However, we have also noted
that § 42-364(3)(b) specifically provides that a court may order
joint custody “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.”24 And we have affirmed
a trial court’s decision not to modify an award of joint legal
custody even though the evidence showed that the parties

22
     Brief for appellant at 12.
23
     See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
24
     Accord Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
                                   - 618 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                             BLANK v. BLANK
                             Cite as 303 Neb. 602

continued to have difficulty communicating and cooperating
with one another.25
   In this case, there was sufficient evidence to support the
court’s determination that joint custody was in the children’s
best interests. Marissa and Caleb testified that both parties
watched and cared for the children during the parties’ relation-
ship. Both parties explained that they have been communicating
and working together civilly while the temporary custody order
has been in place and have each made accommodations for the
other with regard to the children’s care. Marissa and Caleb
detailed that when the children got chicken pox and lice during
the pendency of these proceedings, Marissa communicated the
issues to Caleb, Caleb took them to treatment, and Marissa and
Caleb communicated about the implementation of the treat-
ment. There was testimony concerning the parties’ decision not
to vaccinate the children and Caleb’s openness to do so in the
future, but nothing in the record or decree demonstrates that
the court relied on this testimony in making its physical cus-
tody determination. Although Marissa testified that she did not
believe joint custody was appropriate due to Caleb’s new rela-
tionship and her being the children’s primary caretaker, Caleb
testified that joint custody would be a viable option that he
would be willing to work for utilizing “[c]ommunication” and
“open mindedness.”
   As previously stated, an appellate court reviews de novo
on the record the trial court’s determinations of custody; these
determinations, however, are initially entrusted to the trial
court’s discretion and will normally be affirmed absent an
abuse of that discretion.26 Taking into account that the trial
judge heard and observed the witnesses and the evidence pre-
sented27 on the parties’ relationships with their children, ability

25
     See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d
     230 (2015).
26
     Erin W., supra note 1.
27
     See id.
                                     - 619 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              BLANK v. BLANK
                              Cite as 303 Neb. 602

to parent, communication, and history of working together for
the children’s care, the district court did not err in determining
that joint custody was in the children’s best interests.

                       Division
                             of Decisionmaking
                            Authority
   Marissa makes an additional argument in her brief that
the court’s division of final decisionmaking authority, which
awarded Marissa final authority over education issues and
Caleb final authority over health and religion issues, is “entirely
counter to the law regarding joint custody.”28 Marissa makes
no specific argument on why such division is improper, and
her assignments of error challenge only the court’s award of
joint physical custody. Nevertheless, the court acted within its
authority in dividing the final decisionmaking duties between
the parties.
   [10] “Joint legal custody” is the mutual authority and respon-
sibility of the parents for making mutual fundamental decisions
regarding the child’s welfare, including choices regarding edu-
cation and health.29 A trial court’s decision to award joint legal
or physical custody can be made without parental agreement
or consent so long as it is in the child’s best interests.30
   [11,12] The best interests of the child are the primary con-
sideration for developing custodial plans. In considering such
best interests, it is a common occurrence and a court is permitted
to supply a party with final decisionmaking authority in some
areas to avoid future impasses which could negatively affect
the child while maintaining both parents’ rights to consulta-
tion and participation in important decisions.31 Such grants of

28
     Brief for appellant at 12.
29
     § 43-2922(11).
30
     § 42-364(3).
31
     See, e.g., Boyer v. Boyer, 24 Neb. App. 434, 889 N.W.2d 832 (2017); State
     on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208
     (2016).
                              - 620 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

final decisionmaking authority were made in this case, and we
find no violation of the court’s discretion to do so.

                         CONCLUSION
   The parties had sufficient notice and opportunity to be
heard on the issue of joint physical custody, and the record
fails to establish by a preponderance of the evidence that this
is a domestic abuse case requiring additional findings under
§ 43-2932(3). As such, and because there was sufficient
evidence to support the court’s finding that joint physical
custody is in the children’s best interests, the district court
did not err in awarding joint physical custody. Accordingly,
we affirm.
                                                   A ffirmed.

   Miller‑Lerman, J., concurring.
   I concur with the majority reading of Neb. Rev. Stat.
§ 43‑2922 (Reissue 2016) to the effect that before special find-
ings under § 43‑2922 are required, the evidence must show an
act of abuse as defined in Neb. Rev. Stat. § 42‑903 (Reissue
2016) and, in addition (per § 43‑2922), a pattern or history
of abuse.
   The majority concludes that there was not sufficient evi-
dence to find an act of abuse under § 42‑903 on this record.
I disagree.
   Section 42‑903(1)(a) defines “[a]buse” as, inter alia,
“[a]ttempting to cause or intentionally and knowingly caus-
ing bodily injury with or without a dangerous instrument” to a
family or household member.
   On this record, both parties agree that during a “[d]isagree-
ment,” Caleb “slapped” or “open hand smacked” Marissa.
   I believe these undisputed facts show that Caleb was
“[a]ttempting to cause . . . bodily injury,” § 42‑903(1)(a), and
therefore, that “an act of abuse” for purposes of § 43‑2922 was
shown. However, because there was no “pattern” or “history”
as those terms are used in the text of § 43‑2922, I agree with
                               - 621 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         BLANK v. BLANK
                         Cite as 303 Neb. 602

the majority that the court was not required to make special
findings under § 43‑2922.
   Papik, J., concurring.
   I agree with the court’s determination that the district court
was not required to make special written findings under Neb.
Rev. Stat. § 43‑2932 (Reissue 2016) because the record did not
show that Caleb committed domestic intimate partner abuse.
While the court reaches that conclusion by finding a lack of
evidence that a slap caused bodily injury or was an attempt
to cause bodily injury, I write separately to note that I would
reach the same conclusion via a different route.
   As the court points out, domestic intimate partner abuse is
defined by Neb. Rev. Stat. § 43‑2922(8) (Reissue 2016) as
follows:
      [A]n act of abuse as defined in section 42‑903 and a
      pattern or history of abuse evidenced by one or more of
      the following acts: Physical or sexual assault, threats of
      physical assault or sexual assault, stalking, harassment,
      mental cruelty, emotional abuse, intimidation, isolation,
      economic abuse, or coercion against any current or past
      intimate partner, or an abuser using a child to establish or
      maintain power and control over any current or past inti-
      mate partner, and, when they contribute to the coercion
      or intimidation of an intimate partner, acts of child abuse
      or neglect or threats of such acts, cruel mistreatment or
      cruel neglect of an animal as defined in section 28‑1008,
      or threats of such acts, and other acts of abuse, assault, or
      harassment, or threats of such acts against other family or
      household members.
   The court suggests that a single act of abuse under Neb.
Rev. Stat. § 42‑903 (Reissue 2016) might qualify as domestic
intimate partner abuse under one possible interpretation of this
definition. While the court does acknowledge that this is not
the most logical reading, I would go further and hold that the
text cannot be interpreted in this way.
                              - 622 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

   The definition of domestic intimate partner abuse has two
elements separated by the word “and.” § 43‑2922(8). The
first element is an act of abuse under § 42‑903. The second
element is a “pattern or history of abuse.” § 43‑2922(8). The
statute goes on to provide that the second element, the pattern
or history of abuse, must be evidenced by “one or more” of a
number of enumerated acts, some of which again include the
word “abuse.” Id. If, however, a single instance of abuse could
count as the act of abuse for the first element and establish
the requisite pattern or history, the pattern or history ele-
ment of the statute would serve no purpose. This runs counter
to our practice of giving effect to all parts of a statute and
rejecting interpretations that would render parts of the statute
superfluous. See State v. Clemens, 300 Neb. 601, 915 N.W.2d
550 (2018).
   I can see only one way that this statute could be interpreted
to allow for a single instance of abuse to satisfy the defini-
tion: to give the word “and” separating the two elements of the
definition discussed above a disjunctive rather than conjunctive
meaning. See § 43‑2922(8). We do have some precedent for
departing from the ordinary, grammatical meaning of “and”
and “or” in some cases. We have said that we may do so where
“a strict reading would lead to an absurd or unreasonable
result and defeat the intent of the statute.” See, e.g., Hoiengs
v. County of Adams, 245 Neb. 877, 900‑01, 516 N.W.2d 223,
240 (1994).
   I have some questions about how judges are to go about
determining that a particular policy result is absurd or unrea-
sonable given that it is the Legislature’s function to declare
public policy rather than ours. See, e.g., Mays v. Midnite
Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018). See, also, John
F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387
(2003). It seems to me that this practice can be squared with
the judiciary’s role in a system of separated powers only if it is
limited to instances in which the result of applying the gram-
matical meaning of the text is so bizarre that the Legislature
                              - 623 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        BLANK v. BLANK
                        Cite as 303 Neb. 602

could not possibly have intended it. See Antonin Scalia &
Bryan Garner, Reading Law: The Interpretation of Legal Texts
237‑38 (2012).
   I cannot say that the result reached by interpreting this
statute to mean what it says meets this test. While there are
undoubtedly policy arguments for imposing the additional
parenting plan requirements of § 43‑2932 even when there
has been a single act of abuse, it is not unthinkable that the
Legislature would require both an act of abuse and a pat-
tern or history before imposing these requirements. Drawing
the precise line at which these requirements apply strikes
me as a matter of legislative judgment, which is subject to
reconsideration not by this court, but, if it so chooses, by the
Legislature.
   Because I do not understand the requirements of § 43‑2932
to be triggered by a single act of abuse, I do not believe the
statute applied in this case. There was evidence that Caleb
slapped Marissa, but Marissa has not shown us additional evi-
dence sufficient to demonstrate a pattern or history. I would
affirm the decision of the district court on this basis.


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 07-4796

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ARTURO ROMERO-CASTILLO, a/k/a Arturo Romero,

                Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00424-RJC)

Submitted:   May 2, 2008                      Decided:   May 13, 2008

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James E. Gronquist, NIXON, PARK, GRONQUIST and FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Arturo Romero-Castillo appeals his 84-month sentence for

illegal reentry into the United States by a deported alien, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2000).         Romero-Castillo

contends that the district court abused its discretion in imposing

his sentence because it failed to adequately consider the factors

set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).

           We review the reasonableness of a sentence for abuse of

discretion.   Gall v. United States, 128 S. Ct. 586, 596 (2007).     We

presume that a sentence imposed within the properly calculated

guidelines range is reasonable.     United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007); see Rita v. United States, 127 S. Ct.

2456, 2462-68 (2007).    A district court must explain the sentence

it imposes sufficiently for this court to effectively review its

reasonableness, but need not mechanically discuss all the factors

listed in § 3553(a). United States v. Montes-Pineda, 445 F.3d 375,

380 (4th Cir. 2006).    The court’s explanation should indicate that

it considered the § 3553(a) factors and the arguments raised by the

parties.   Id.   We do not evaluate the adequacy of the district

court’s explanation “in a vacuum,” but also consider “[t]he context

surrounding a district court’s explanation.”     Id. at 381.

           Romero-Castillo   has    not   overcome    the   presumptive

reasonableness of his sentence within the guidelines range, and the

district court did not abuse its discretion.         The district court

                                   -2-
discussed the § 3553(a) factors and, in particular, extensively

discussed Romero-Castillo’s contention that his substance abuse

problems constituted a mitigating factor that warranted a sentence

below the guidelines range. In considering the need to protect the

public and the most effective way to treat Romero-Castillo’s

addiction, the district court found that a sentence within the

guidelines range, although not at the high end of the sentencing

range for which the Government advocated, was sufficient but not

greater than necessary.    In light of the evidence of Romero-

Castillo’s extensive criminal history, which included at least

eight convictions for driving while impaired or intoxicated, two

controlled substance offenses involving sales of marijuana to

undercover police officers, and several instances of entering the

United States illegally, the district court reasonably determined

within its discretion that the nature of his offense justified the

sentence imposed.

          We affirm the sentence imposed by the district court. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                          AFFIRMED

                               -3-