NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Rickey Arnez Jackson appeals an order of the district court for Buffalo County, Nebraska, awarding custody of the parties' minor child to Nicole Lea Hasselbalch. On appeal, Jackson challenges the court's denial of a request to change venue, the court's failure to interview the minor child, and the court's awarding of custody to Nicole. We find no merit to Jackson's assertions of error, and we affirm. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

II. BACKGROUND

This case concerns custody of a minor child, Sydney Hasselbalch. Sydney was born to Jackson and Hasselbalch in June 2002. At the time of Sydney's birth, Jackson was married and the father of two other children and Hasselbalch was not married. At the time of Sydney's birth, both Jackson and Hasselbalch were residing in Lincoln, Nebraska.

Jackson was present at Sydney's birth, and he testified that he had consistent contact with Sydney for the first couple years of her life. In October 2003, a paternity action in the district court for Lancaster County, Nebraska, resulted in a finding that Jackson was Sydney's father.

In October 2005, Hasselbalch secured a protection order against Jackson. Jackson's contact with Sydney was significantly limited by the protection order.

In the summer of 2006, Hasselbalch met Clinton Williams. She began cohabitating with him and, eventually, had two children with him. In September 2007, Hasselbalch moved with Sydney and Williams to Kearney, Nebraska, where she was employed as a nurse at a hospital. In October 2008, they moved to San Antonio, Texas, where she was employed as a traveling nurse. From the summer of 2006 through February 2009, Jackson had no contact with Sydney.

In February 2009, Hasselbalch was pregnant, working full time, caring for an infant and Sydney, and experiencing difficulties caring for Sydney. Hasselbalch telephoned her mother, Dee Artz, in Kearney and requested that Artz travel to Texas and bring Sydney back to Nebraska to help out the situation. Artz took Sydney into her physical custody and cared for her in Kearney. Beginning in February 2009, Jackson re-established and maintained consistent contact with Sydney, including caring for her on weekends in Lincoln.

In May 2009, Hasselbalch moved to Fort Worth, Texas. In July, she moved back to San Antonio. In November 2009, she returned to Kearney and resided with Artz. On or about December 10, Hasselbalch moved to Lincoln; Sydney continued to reside with Artz in Kearney. In late December, Hasselbalch moved to Reno, Nevada; Sydney remained in Kearney. In April 2010, Hasselbalch moved to Colorado; Sydney remained in Kearney. In July 2010, Hasselbalch moved to Omaha, Nebraska; Sydney remained in Kearney.

On December 10, 2009, Artz filed a petition in the county court for Buffalo County, Nebraska, seeking to be appointed Sydney's guardian. The court appointed Artz as temporary guardian. Hasselbalch learned of the guardianship proceedings afterward, when Artz refused to allow Hasselbalch to take Sydney with her to Nevada.

On February 16, 2010, Jackson, in the district court for Buffalo County, filed a complaint seeking custody of Sydney. Jackson requested temporary custody and made allegations that Williams had abused Sydney and that Hasselbalch had failed to protect her. As a result of the complaint and a supporting affidavit filed by Jackson, the district court entered an order granting temporary custody to Jackson. The court specifically ordered that Jackson's custodial parenting time was "designed to be with [Jackson] and his family and not with [Artz]. The court, however, believes it appropriate that [Jackson] contact the education providers in Kearney and Lincoln, Nebraska, to determine if an immediate transfer of the child is feasible and not academically harmful." Despite this, it appears from the record that Jackson never made such an inquiry and, instead, allowed Artz to keep physical custody of Sydney until the trial in the present case.

On July 30, 2010, Jackson filed a request to have the court interview Sydney, in chambers, at the time of the final hearing on Jackson's complaint. On September 2, Jackson filed a motion seeking to change venue of the case to Lancaster County.

On September 9, 2010, the district court held a hearing on Jackson's motion to change venue. We have not been provided any transcription of that hearing, but the court entered an order on September 16 and denied the motion. The court held that Jackson chose to file the proceedings in Buffalo County and that, by doing so, he had waived consideration of whether Buffalo County was the appropriate venue.

On September 27 and 28, 2010, trial was held on Jackson's complaint for custody. Both parties adduced testimony and evidence, including the factual background set forth to this point.

Jackson adduced evidence to support his assertions that Hasselbalch's boyfriend, Williams, had been abusive toward Sydney. He adduced testimony from a school guidance counselor who recounted an incident where one of Sydney's teachers had indicated that Sydney was afraid of Williams and that Williams had verbally abused Sydney, calling her fat and ugly. Jackson testified to an incident where Jackson alleges Williams confronted Jackson and Jackson's daughter with a gun. He also testified to an incident where Sydney had told him about Williams' dragging Sydney across a room by her hair.

During Jackson's testimony, he maintained that he had not previously been convicted of a crime. Nonetheless, he acknowledged to having several convictions for driving under suspension and one conviction for possession of marijuana. Although he denied being convicted of any offenses related to violating the protection order, Hasselbalch adduced evidence indicating that he was convicted of violating the protection order and served time in jail related to the conviction. In addition, Hasselbalch presented an exhibit that Jackson acknowledged was a copy of his criminal history in Lancaster County, showing seven convictions for driving under suspension, a conviction for criminal trespass, a conviction for disturbing the peace, and a conviction for possession of marijuana.

Hasselbalch testified to a number of incidents involving Jackson, including him flattening her car tires, physically pushing her, and verbally abusing her. She testified to an incident where Jackson broke into her apartment during the time that the protection order was in place. She also testified that Jackson had told her that he sells drugs. She testified that she had never intended Artz to keep Sydney for a long period of time and that Artz had kicked her out of the home in Kearney in December 2010 and refused to allow Sydney to go with her. She adduced evidence indicating that Artz had spoken ill of her in front of Sydney and had stopped having contact with Hasselbalch's sister after her sister refused to cooperate with Artz' attempt to secure a guardianship over Sydney. She also adduced evidence that Artz and her husband had loaned money to Jackson so he could pay counsel to bring the present action.

Hasselbalch testified that she was no longer involved with Williams beyond the relationship necessary because the two have two children together. She testified that she was now living in Lincoln, that she was employed at a hospital (rather than as a traveling nurse), and that she intended to remain employed there on a permanent basis.

At the conclusion of all of the evidence, and after both parties had rested, Jackson requested a ruling on his motion for the court to interview Sydney, in chambers. Jackson requested the court interview Sydney to determine whether she was sufficiently mature to provide an appropriately based opinion about custody. The court indicated, "We will adjourn to chambers, and I will interview Sydney there." Jackson's counsel then asked the court if there was "a particular person [the court] want[ed] to go to school to pick up Sydney." When the court learned that Sydney was not present at the courthouse, the court held, "Then the motion is denied."

At the conclusion of the trial, the court specifically noted that it had "not heard more disingenuous testimony and observed more deceitful behaviors in a case by all the parties involved." On October 4, 2010, the court entered an order awarding custody to Hasselbalch. In its 10-page order, the court recounted an accurate factual history that is supported by the testimony and the assertions and denials that were evident throughout the trial testimony. The court also set forth a parenting and visitation schedule and resolved issues related to child support. This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Jackson assigns three errors. First, Jackson asserts that the district court erred in denying his motion to change venue. Second, Jackson asserts that the court erred in not interviewing Sydney. Third, Jackson asserts that the court erred in awarding custody to Hasselbalch.

IV. ANALYSIS

1. CHANGE OF VENUE

Jackson first asserts that the district court erred in denying his motion to change venue to Lancaster County. He asserts that the court erred in finding he had waived his right to challenge the appropriate venue by electing to file this action in Buffalo County. We find no abuse of discretion by the district court in denying the motion to change venue.

Neb. Rev. Stat. § 25-410 (Reissue 2008) provides that, for the convenience of the parties and witnesses or in the interest of justice, a district court of any county may transfer any civil action to the district court of any other county in the state. An appellate court will not disturb the ruling of the lower court on a motion to change venue in a civil action unless an abuse of discretion is shown. Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993); Bittner v. Miller, 226 Neb. 206, 410 N.W.2d 478 (1987). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Wilson v. Misko, supra.

Jackson filed this action in Buffalo County on February 16, 2010. He resided in Lancaster County at the time, but Sydney was residing in Buffalo County with Artz; Hasselbalch resided outside of Nebraska. Sydney had been born in Lancaster County, and the prior paternity action and paternity order occurred in Lancaster County. Hasselbalch returned to Nebraska in July. On September 2, Jackson filed his motion seeking to change venue to Lancaster County.

On September 9, 2010, the district court held a hearing on Jackson's motion seeking to change venue to Lancaster County. We have not been provided any transcription of that hearing or any evidence that might have been presented by Jackson in support of the motion.

On appeal, Jackson has asserted that the motion to change venue should have been granted because the parties, prior events related to the parties, and Williams were all located in Lancaster County at the time of trial. He argues that Williams was beyond the subpoena power of the Buffalo County District Court and that he was unable to call or examine Williams and was unable to present evidence concerning Williams and Jackson's assertion that Williams posed a continuing threat to Sydney.

We find no abuse of discretion by the district court in denying Jackson's motion. Jackson elected to bring the action in Buffalo County at a time when the only real connection Buffalo County had to the case was that Sydney was then residing there with Artz; this remained true at the time of the motion to change venue. Despite Jackson's assertions that he was limited in presenting evidence, he has not demonstrated in the record presented to us that he was unable to present any evidence or that he attempted and was unable to secure testimony from any witness. In addition, although not determinative, we note that inasmuch as Jackson was the plaintiff in this action, he has not demonstrated that he was prevented from dismissing the action entirely and refiling it in another appropriate venue if the venue he initially chose presented significant difficulties. We find no merit to this assignment of error.

2. INTERVIEW OF SYDNEY

Jackson next asserts that the district court erred in failing to interview Sydney to determine if she was of sufficient maturity for her opinion on custody to be given consideration. We find no abuse of discretion.

Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2010) provides that custody shall be determined on the basis of the best interests of the child, as defined in the Parenting Act. The Parenting Act provides that considerations related to the best interests of the child shall include the desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning. Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2010). While the wishes of the child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, her preference is entitled to consideration. Donscheski v. Donscheski, 17 Neb.App. 807, 771 N.W.2d 213 (2009). A trial court's ruling on a motion to conduct an in camera interview of a minor child in custody proceedings is reviewed for an abuse of discretion. See id.

In Donscheski v. Donscheski, supra, the biological mother of a 12-year-old boy sought to modify a prior custody arrangement and to remove the boy from the jurisdiction to Georgia. In her application to modify and in her answer to an interrogatory which was in evidence, she specifically alleged that the boy had expressed a preference to live in Georgia. She also filed a motion asking the court to conduct an in camera interview with the boy. The trial court refused to do so, and this court reversed. In reversing the trial court's decision, we noted that there had been specific allegations that the minor had expressed a preference, that the minor was 12 years old, and that the minor received mostly A's and B's in school.

Unlike the situation presented in Donscheski v. Donscheski, supra, in the present case there was no assertion that Sydney had expressed any preference or opinion on the issue of custody. Sydney was only 8 years of age at the time of trial, and although there was testimony presented to suggest that she was generally well adjusted in school, there was no evidence presented to demonstrate that she was of sufficient age and maturity to express an intelligently based opinion. Moreover, there was evidence adduced to suggest that Artz had spoken negatively of Hasselbalch in Sydney's presence, that Sydney had been in Artz' physical custody for approximately 18 months prior to trial, and that Sydney was impressionable. When Jackson renewed his request to have the court interview Sydney and requested a ruling on the request at trial, Sydney was not present or available to be interviewed in camera. Under all of these circumstances, we do not find an abuse of discretion by the trial court in denying the request to interview Sydney in camera.

3. CUSTODY

Finally, Jackson challenges the district court's award of custody to Hasselbalch. Based on our de novo review of the record, we do not find an abuse of discretion.

Child custody determinations are initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Donscheski v. Donscheski, supra; Coleman v. Kahler, 17 Neb.App. 518, 766 N.W.2d 142 (2009). A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Vogel v. Vogel, supra.

Our review of the entire record in this case demonstrates that neither Jackson nor Hasselbalch is unfit. There was conflicting evidence presented concerning actions and efforts of both with respect to parenting during Sydney's young life. Hasselbalch's previous employment as a traveling nurse appears to have been a significant factor in her frequent moves, but she was no longer employed in such a position at the time of trial. Hasselbalch's relationship with Williams was a significant factor pointed to by Jackson as a basis for awarding him custody; however, Hasselbalch testified that she was no longer involved in a relationship with Williams at the time of trial. Despite a temporary custody order granting him custody and directing that custody was not to remain with Artz, Jackson appears to have made no effort to take custody of Sydney and, instead, allowed her to remain in the physical custody of Artz. Jackson testified that this was to prevent Sydney's having to change schools. The trial court was not presented with a clear case where one party was unfit, and we find no abuse of discretion by the court in ordering that custody be awarded to Hasselbalch.

V. CONCLUSION

We find no merit to Jackson's assignments of error. We find no abuse of discretion by the district court with respect to its rulings denying Jackson's motion to change venue, denying Jackson's motion to interview Sydney in chambers, or awarding custody of Sydney to Hasselbalch. We affirm.

AFFIRMED.