IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
CERVANTES V. DARNELL
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).
RHETT CERVANTES, APPELLANT AND CROSS-APPELLEE,
V.
KASSANDRA DARNELL, APPELLEE AND CROSS-APPELLANT.
Filed June 20, 2015. No. A-16-876.
Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Affirmed.
Bergan E. Schumacher, of Bruner Frank, L.L.C., for appellant.
Michael J. Synek for appellee.
INBODY, RIEDMANN, and ARTERBURN, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
Rhett Cervantes appeals and Kassandra Darnell cross-appeals from an order entered by the
district court for Buffalo County modifying an order of paternity and support entered on September
5, 2014. On appeal, Rhett argues the district court erred in failing to reopen evidence after the
conclusion of trial and determining there had not been a material change in circumstance since
entry of the prior order. On cross-appeal, Kassandra argues the district court erred in excluding
evidence offered by Kassandra at trial, failing to apply the child support order retroactively to the
first day of the month following the filing date of the application for modification, failing to order
Rhett to pay her attorney fees, and allowing Rhett to proceed on appeal in forma pauperis. For the
reasons set forth below, we cannot affirm all actions taken by the district court after the notice of
appeal. We affirm the orders of the district court entered on August 11, 2016, and September 9,
2016, regarding custody, support, attorney fees, and exclusion of evidence. We also affirm the
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district court’s September 14, 2016, and November 17, 2016 orders granting in forma pauperis
status to appellant. We decline to review any other orders entered on September 14, 2016, or later
for reasons set out hereafter.
II. BACKGROUND
The district court first entered an order in 2008 establishing paternity and child support for
the parties’ two children, Izek, born in 2007, and Cody, born in 2008. The children had lived with
Kassandra from birth until 2014. On September 5, 2014, the district court modified the paternity
and support order pursuant to a joint stipulation of the parties. The September 2014 order awarded
the parties joint legal and physical custody of the children with specific parenting time allotted to
the parties. Rhett received primary placement of the children during the school year and Kassandra
received parenting time one night per week and every other weekend. Kassandra received primary
placement of the children during summer vacation. Kassandra was obligated under the order to
pay $50 per month in child support.
Rhett filed a complaint to modify the September 2014 order on October 27, 2015. Rhett
alleged that there had been a material change in circumstance in that Kassandra had “placed the
children in harm by exposing them to an unsafe environment.” Rhett requested sole legal and
physical custody of the children with a modification of parenting time granted to Kassandra. Rhett
also requested a recalculation of the child support award. Kassandra filed an answer and
counterclaim for modification on March 17, 2016. In her counterclaim Kassandra alleges that the
parties have not followed the September 2014 parenting plan, that Rhett interfered with her
parenting time, and that the communication between the parties had broken down. Kassandra
requested that the district court either award her sole custody of the children or maintain the
September 2014 order with the revised provision that she be awarded primary placement of the
children. Kassandra also requested recalculation of the child support award. The parties proceeded
to trial on April 19, May 4, and July 5, 2016.
Rhett and Kassandra were never married. Rhett has 3 other children. He does not have
custody of these 3 children, but does exercise parenting time and provides support. Kassandra has
one other daughter who resides with her. Currently, both parties reside in Kearney, Nebraska.
At the time of trial, Rhett was 29 years old and employed at Baldwin Filters. Since the
September 2014 order, Rhett has been, by all accounts, a supportive father. Rhett is very involved
with the children’s academics. Multiple school officials testified during Rhett’s case. Darleen
Farwell, the elementary school’s secretary, testified that Rhett checks in with the school multiple
times per week regarding how the children behaved that day. Kara Longshore, Izek’s teacher,
testified that Rhett speaks with her once or twice per week regarding Izek’s schoolwork and
behavior. Mark Stute, the principal at the elementary school, testified he saw Rhett at the school
multiple times per week. Although the children were rarely assigned work to do at home, Ms.
Longshore testified that Rhett is very involved in Izek’s reading program, as well as his math and
language arts program. Ms. Longshore testified that Rhett had attended every parent-teacher
conference at the school.
In addition to the children’s academics, Rhett is very involved with their religious
upbringing. Roger Anderson, a licensed pastor, testified that Rhett and his children are in church
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every Sunday. Anderson testified that Rhett is training to become a licensed pastor as well. He
testified that Rhett works with a support group for previously incarcerated individuals, a young
persons’ Bible study group, and the church’s youth basketball program. Stan Murdoch, the senior
pastor at Rhett’s church, testified that he meets with Rhett once per week for training to become a
licensed pastor. Murdoch testified that all the interactions he has seen between Rhett and his
children have been positive.
By almost all accounts, Rhett has implemented significant positive changes in his life as to
sobriety, living a productive and law-abiding life, and becoming an active parent in his children’s
lives. Rhett testified that he initiated this modification action because he believed Kassandra was
not providing a safe environment for their children. Rhett testified to a number of concerns he had,
including Kassandra’s lack of involvement with the children’s education, her inappropriate
behavior in front of the children, guns and knives left within the reach of the children, the children
returning from her parenting time with injuries, losing Cody’s EpiPen, and Kassandra allowing
drug use around the children during her parenting time.
Rhett testified that after the children come home from weekend parenting time with
Kassandra, they are typically hungry, tired, and less focused. He testified that they do not listen as
well as before her parenting time. He additionally testified that they have come back from
Kassandra’s parenting time without completing their homework. Rhett testified that the living
situation at Kassandra’s home is chaotic. Rhett testified that he believed that a friend had been
staying at Kassandra’s home for an extended period of time, in addition to the other residents.
Rhett testified about numerous incidents that he felt were inappropriate behaviors in front
of their children. Rhett testified that he used to be friends with some of the people that Kassandra
associates with regularly. He testified that he believes drug use is prevalent at Kassandra’s home
and that the children have returned from Kassandra’s parenting time with their clothes smelling of
marijuana. Rhett testified that he personally observed marijuana being smoked in front of the
children at a barbeque.
In addition to the drug use, Rhett testified that Kassandra has acted inappropriately in the
presence of the children during arguments between them. Rhett testified that law enforcement had
to be called on one occasion because Kassandra was attempting to take the children from his home
when it was not her parenting time. Both parties testified that they can no longer communicate
effectively and that Rhett is no longer welcome at Kassandra’s residence.
Rhett testified that he had observed several guns around Kassandra’s residence in February
2015. Rhett testified that he observed 2 handguns and a rifle that were outside of a gun safe. He
testified that this concerned him greatly because his children enjoy playing cops and robbers and
could easily reach the guns. Rhett testified that he had also observed knives at Kassandra’s
residence. He testified he observed buck knives and hunting knives laying on the coffee table in
the residence.
Rhett testified that he was concerned with the children’s safety because they would return
from Kassandra’s residence with bruises and injuries, but conceded that he never took the children
to the doctor for these injuries. Rhett also testified that Cody lost his EpiPen during Kassandra’s
parenting time. Rhett testified that Cody losing his EpiPen is very concerning for him because
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Cody could potentially go into anaphylactic shock and die before an ambulance could arrive if he
ingested something containing an allergen.
At trial, Kassandra called two friends and her father’s longtime girlfriend to testify on her
behalf. Jessica Rouse, Karen Keith, and Sara Hansen all testified that they had observed Kassandra
with her children on multiple occasions and that Kassandra was a good and loving mother. All 3
witnesses had been to Kassandra’s residence and testified that it was a clean and safe environment.
They additionally testified that the children were always dressed in clean clothes and that
Kassandra regularly cooked for the children.
At the time of trial, Kassandra was 26 years old. Kassandra graduated high school in 2007.
She received her cosmetology license in 2010 and her certified nursing assistant’s license in 2015.
At the time of trial, she worked at Daylight Donuts in Kearney.
Kassandra lives with her significant other, Trenton Devitt, in a three-bedroom residence.
Kassandra testified that when Izek and Cody are at Kassandra’s residence, they sleep in the same
room as Devitt’s son, Carson. Kassandra’s daughter and Devitt’s daughter sleep in the second
bedroom, and Kassandra and Devitt occupy the third bedroom.
During Kassandra’s testimony, she denied nearly all of Rhett’s claims that she does not
provide a safe environment for their children. Kassandra denied that she was not actively involved
in her children’s education. Kassandra admitted that she had not been to a parent-teacher
conference in the last year, but testified it was due to her work schedule and inability to effectively
communicate with the children’s school. Kassandra testified that there was an incident at the
children’s school when she tried to remove them from school early to take a trip to visit her mother.
Kassandra testified the school officials would not release the children without Rhett’s consent. She
testified that this incident explained the acrimony between her and the school and why they rarely
communicate with her. The school officials testified that much of the school communication is
published online. The remaining school information and communications are generally sent
through the student’s journal, the school newsletter, or automated phone system.
Kassandra testified that she was involved in and agreed with the decision to have the
children transfer to another school. She also testified that she did not oppose the children attending
summer school, but that Rhett did not contact her in advance about Rhett’s decisions. Kassandra
testified that she learned of Rhett’s wish to enroll the children in summer school through his
attorney. Kassandra did not object to summer school so long as it did not interfere with her
parenting time in the summer. She additionally testified that no one from the school had ever
contacted her with any concerns about the children’s behavior.
Kassandra testified that she supports the children’s participation in church and church
activities. Kassandra was involved with the children’s medical decisions until Rhett unilaterally
changed the children’s primary care physician. Kassandra testified that she was the person who
took the children to their allergist. Kassandra testified that Cody only had a slight peanut allergy
and that he could eat peanuts and be fine. However, she does not allow Cody to eat peanuts during
her parenting time. Kassandra testified that Cody receives an injection to help with his allergies
and that he does carry an EpiPen. Regarding the instance where the EpiPen was allegedly lost at
her home, Kassandra testified that she has searched the residence multiple times. She has never
found the EpiPen and questions that it was misplaced there.
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Regarding the alleged injuries the children have sustained while in her care, Kassandra
testified that none of the injuries required medical attention. Kassandra testified that her boys are
active children and will have a minor scrape or bruise occasionally. However, she was unaware of
any of Rhett’s complained of injuries.
Kassandra testified that she and Rhett had co-parented without incident until October 2015.
She testified that after that time, Rhett stopped communicating with her and started involving
attorneys. Kassandra stated that she felt betrayed by this behavior. Kassandra admitted to yelling
at Rhett during the incident when Rhett called the police, but testified that she was angry because
he was accusing her of drug use and not permitting her to visit her children. Kassandra denied
Rhett’s claims that she takes prescribed medications for mental health issues. She testified that she
has never been diagnosed nor prescribed medication for any condition, mental health or otherwise.
Kassandra denied any other argument between her and Rhett in front of the children.
Kassandra testified that she and her boyfriend own guns. She testified that as soon as they
are done hunting or shooting, the guns are cleaned and locked away. Kassandra testified that the
guns are never laying around the house for long periods of time and that there is always an adult
present when guns are out. She testified that they own a gun safe, which is located in the basement.
Kassandra testified that the children have been shooting with her and Devitt, but it was closely
supervised. Kassandra testified that she does not own any hunting knife and does not believe Devitt
owns any type of hunting knife. She testified that she only owns steak knives, and that those are
kept in a cabinet out of the reach of the children.
Kassandra testified that she does not allow drug use at her home. Kassandra was unaware
of any occasion or barbeque where someone would have been smoking marijuana. She testified
that she has never smelled the odor of marijuana on her children or their clothing.
Before the conclusion of trial, the district court held in camera interviews with the children,
with only the court reporter and attorneys present. While the district court stated on the record that
the children’s interviews provided little helpful information, the court did note in its findings that
the boys stated they had no unsupervised access to firearms, that they were not fearful of living at
their mother’s home, and in fact, enjoyed living there.
After the conclusion of trial, but before the district court entered its order, Rhett filed a
motion to reopen evidence. Rhett alleged new evidence was discovered after the closing of trial
that would affect the district court’s determination. The district court held a hearing on the matter
and denied Rhett’s motion. The district court entered its order on the complaint for modification
on August 11, 2016. The court found no material change in circumstance and did not modify the
September 2014 order. Both parties filed motions for new trial or to alter or amend the order. On
September 9, 2016, the district court overruled Rhett’s motion in its entirety and altered its August
11, 2016, order and ordered Rhett to pay Kassandra $60 per month. The district court denied
Kassandra’s request for attorney fees in that order.
Rhett filed his notice of appeal on September 14, 2016. Rhett filed an application to proceed
in forma pauperis with his notice of appeal. On the same day, September 14, 2016, the district
court granted Rhett’s application to proceed in forma pauperis on appeal. Kassandra filed an
objection to Rhett’s motion to proceed in forma pauperis on October 14, 2016. Buffalo County,
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Nebraska filed an objection to Rhett’s motion to proceed in forma pauperis on appeal on November
15, 2016. The district court overruled both motions on November 17, 2016. Buffalo County did
not appeal the district court’s ruling.
Meanwhile, the parties filed a stipulation regarding the child support order on November
4, 2016. The parties requested the district court vacate its child support orders dated September 9,
2016, and September 14, 2016. We note that the September 14, 2016 child support order is not in
the record before us. A review of the record reveals that on September 13, 2016, Kassandra filed
a motion for order nunc pro tunc alleging that the district court in its September 9, 2016 order
inadvertently ordered child support based on only one child being supported instead of two and
requested that child support be adjusted to $102 per month for the children and then left at the $60
per month for one child. The September 9 order set child support for the children at $60 per month
even though the attached child support calculation indicated that child support should be $102 per
month for 2 children and $60 per month for 1 child. While it is likely that the September 14, 2016
order corrects this oversight and conforms to the motion, we do not know specifically what that
order states. In any event, the parties jointly requested an order requiring Rhett pay Kassandra
$114 per month in child support in the November 4 stipulation. However, they resubmitted for
decision the issue of retroactivity. On November 16, 2016, the district court vacated its child
support orders dated September 9, 2016, and September 14, 2016, and ordered Rhett to pay $114
per month, commencing September 1, 2016.
III. ASSIGNMENTS OF ERROR
Restated and consolidated, Rhett argues on appeal that the district court erred in (1) failing
to grant his motion to reopen evidence; and (2) determining that the modification of the parties’
custody arrangement was not warranted. Restated, reordered, and consolidated, Kassandra argues
on appeal that the district court erred in (1) excluding evidence offered by Kassandra at trial; (2)
failing to apply the child support order retroactively to the first day of the month following the
filing date of the application for modification; (3) failing to order Rhett to pay her attorney fees;
and (4) allowing Rhett to proceed on appeal in forma pauperis.
IV. STANDARD OF REVIEW
Child custody determinations are matters 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Id.
In child custody cases, where the credible evidence is in conflict on a material issue of fact,
the 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 over another. Id.
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V. ANALYSIS
1. RHETT’S APPEAL
(a) Motion to Reopen Evidence
Rhett argues the district court erred in denying his motion to reopen evidence after the close
of trial.
The reopening of a case to receive additional evidence is a matter within the discretion of
the district court and will not be disturbed on appeal in the absence of an abuse of that discretion.
Thompson v. Thompson, 18 Neb. App. 363, 782 N.W.2d 607 (2010). Among factors traditionally
considered in determining whether to allow a party to reopen a case to introduce additional
evidence are (1) the reason for the failure to introduce the evidence, i.e., counsel’s inadvertence, a
party’s calculated risk or tactic, or the court’s mistake; (2) the admissibility and materiality of the
new evidence to the proponent’s case; (3) the diligence exercised by the requesting party in
producing the evidence before his or her case closed; (4) the time or stage of the proceedings at
which the motion is made; and (5) whether the new evidence would unfairly surprise or unfairly
prejudice the opponent. Myhra v. Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (2008).
Rhett argues that the new material evidence would have borne significant weight on the
district court’s decision on his complaint to modify. Rhett also argues that he had no way of
discovering the evidence because the incident occurred after the close of trial. The district court
held a hearing on the matter and denied Rhett’s motion. The factual record on Rhett’s motion to
reopen is very limited. The district court determined that Rhett did not provide sufficient evidence
of the incident and if the court were to allow reopening of the evidence, it may have to reopen
discovery. The district court determined that the best use of Rhett’s new evidence would be in
support of a new complaint to modify.
We agree with the district court. Utilizing the test prescribed by us in Myhra, supra, it is
clear that the event triggering the motion occurred after the trial was over, therefore, it could not
have been produced during the trial. While the new evidence may be material, its admissibility is
unknown. The only information provided to the district court were somewhat generalized
statements of counsel. The witness(es) who would testify about the event were not identified, nor
was any other significant foundation laid for the purported testimony. No affidavits in support of
the motion were offered, nor was there even any detailed offer of proof. The motion was made
after the case was submitted for decision. As the district court noted, further discovery may be
necessary to avoid unfair surprise or prejudice to Kassandra. Therefore, we cannot say that the
district court abused its discretion in failing to reopen the evidence. As noted by the district court,
if the new evidence is truly material, Rhett could file a new complaint to modify upon resolution
of this action. In the interim, given Rhett’s decision to appeal, he could seek temporary orders from
the district court if he believed immediate action was necessary. We find that the district court did
not abuse its discretion in denying Rhett’s motion to reopen evidence.
(b) Failure to Modify Custody Arrangement
Rhett next argues the district court erred in failing to find that he proved there was a
material change in circumstance that warranted a modification of the child custody arrangement.
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A child custody modification case requires the party seeking modification to: (1) show that
a material change in circumstances has occurred after the entry of the previous custody order and
affecting the best interests of the child; and (2) prove that changing the child’s custody is in the
child’s best interests. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). A material
change in circumstances means the occurrence of something which, had it been known at the time
of the initial decree, would have persuaded the court to decree differently. State on behalf of Jakai
C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015). The party seeking modification of child
custody bears the burden of showing as an initial matter that there has been a change in
circumstances. Id.
The child’s best interests requires a parenting arrangement and plan which provides for a
child’s safety, emotional growth, health, stability, physical care, and regular and continuous school
attendance and progress. Neb. Rev. Stat. § 43-2923(1) (Reissue 2016). Moreover, § 43-2923 sets
forth a non-exhaustive list of factors to consider in determining the child’s best interests in regard
to custody. Such factors include: the child’s relationship with each parent, the child’s desires, the
child’s general health and well-being, and credible evidence of abuse inflicted on the child by any
family or household member. In addition to the “best interests” factors provided in § 43-2923, a
court making a child custody determination may consider: the moral fitness of the child’s parents;
respective environments offered by each parent; the emotional relationship between the child and
parents; the age, sex, and health of the child and parents; the effect on the child as a result of
continuing or disrupting an existing relationship; the attitude and stability of each parent’s
character; and the parental capacity to provide physical care and satisfy the educational needs of
the child. Schrag, supra.
The district court found that Rhett failed to prove the existence of a material change in
circumstance since the stipulated September 2014 order. We find no error in the court’s finding.
The district court repeatedly noted that while Rhett may have improved his parenting skills since
the September 2014 order that improvement alone did not equate to a material change in
circumstance. The district court noted that even though both parties testified that they no longer
communicate effectively, they had communicated productively in the past. The court determined
that the parties have the ability to communicate, and restore a productive co-parenting relationship.
Therefore, the court found that no change was necessary as to legal custody.
Regarding physical custody, there is no question that if true, many of the concerns raised
by Rhett could lead a court to conclude that a material change in circumstance exists. Rhett testified
to observing one occasion of adult marijuana use in Kassandra’s driveway. He also testified about
smelling the odor of marijuana on the children’s clothes. He testified about seeing guns and knives
in the residence. He and his witnesses also testified about minor injuries sustained by the children
while in Kassandra’s care and her general lack of involvement in their education.
However, Kassandra’s testimony flatly denied that the children had been exposed to drug
use or that they had access to guns or knives. Her testimony was that the guns were only out of the
gun safe when an adult was present and in control of the weapon. The children’s interviews
corroborated her testimony. They reported no exposure to drug use. They reported no exposure to
loaded guns unless they were closely supervised. Kassandra did admit that she was not closely
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involved with the school, but at least some of her failures were attributable to past work schedules.
She was very engaged in their sports and activities.
We also take note, as did the district court, that for the bulk of the trial, the primary changes
contained in Rhett’s parenting plan consisted of (1) giving him sole legal custody and (2) changing
the summer parenting time from Kassandra having the children all summer, with Rhett having an
evening and alternating weekends, to a two week off and on schedule. Only after the district court
pointed out the seeming disconnect between Rhett’s allegations of unsafe living conditions,
vis-a-vis the requested relief, did Rhett argue for vastly restricted parenting time for Kassandra.
It appears to us that much of the decision rendered by the district court comes down to an
assessment of credibility. Where the credible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the circumstances that the trial judge heard and
observed the witnesses and accepted one version of the facts rather than another. Coffey v. Coffey,
11 Neb. App. 788, 661 N.W.2d 327 (2003). Therefore, upon our de novo review we find that the
district court did not err in finding that there had been no material change in circumstance
necessitating a modification of the previous child custody order.
2. KASSANDRA’S APPEAL
(a) Exclusion of Evidence
Kassandra argues the district court erred by excluding evidence she attempted to offer at
trial. This evidence related to Rhett’s criminal history prior to the stipulated September 2014 order.
She argues this criminal history was relevant to the issues of custody and parenting time.
A party seeking to modify a child support order must show a material change of
circumstances which occurred subsequent to the entry of the original decree or a previous
modification which was not contemplated when the prior order was entered. Kramer v. Kramer,
15 Neb. App. 518, 731 N.W.2d 615 (2007). In determining whether the custody of a minor child
should be changed, the evidence of the custodial parent’s behavior during the year or so before the
hearing on the complaint to modify is of more significance than the behavior prior to that time.
Schrag, supra.
The parties stipulated to the custody and parenting time schedule agreement in the
September 2014 order. Kassandra was aware of Rhett’s previous encounters with law enforcement
and did not object to the custody arrangement approved by the district court in 2014. Attempting
to introduce evidence of behavior prior to the previous order was not relevant to whether there had
been a material change in circumstance since the entry of that order. We find the district court did
not err in excluding Kassandra’s evidence of Rhett’s prior criminal history.
(b) Retroactivity of Child Support
Kassandra argues the district court erred because the court should have terminated
Kassandra’s prior child support obligation effective October 31, 2015, and ordered Rhett to pay
retroactive child support effective November 1, 2015.
Preliminarily, we must address which district court order is applicable on appeal. Neb. Rev.
Stat. § 42-351(2) (Reissue 2016) provides that during the pendency of an appeal, the district court
retains jurisdiction to “provide for such orders regarding custody, visitation, or support or other
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appropriate orders in aid of the appeal process.” This section allows a district court to, inter alia,
enter support and visitation orders pending appeal, but it does not grant authority to hear and
determine anew the very issues then pending on appeal and to enter permanent orders addressing
these issues during the appeal process. Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165
(1999). Orders entered as a result of a hearing expressly held on new motion to modify the decree
which were filed while the initial appeal was pending are not appropriate. Id. This is especially
true when the district court does not state that it is entering its order pursuant to Neb. Rev. Stat.
§ 42-351(2) or that the order is a temporary order. Id.
Rhett perfected his appeal on September 14, 2016. The parties filed a stipulation regarding
the child support order on November 4, 2016. The parties requested the district court to vacate its
child support orders dated September 9, 2016, and September 14, 2016. The parties requested an
order requiring Rhett pay Kassandra $114 per month in child support. On November 16, 2016, the
district court vacated its child support orders dated September 9, 2016, and September 14, 2016,
and ordered Rhett to pay $114 per month, commencing September 1, 2016, the same day it ordered
that Rhett’s child support should begin in the September 9, 2016 order. The district court entered
an order on November 18, 2016, clarifying that the child support order would not be retroactive.
The child support order entered on September 14, 2016, is not in the record before us on
appeal. The district court did not have jurisdiction to enter any permanent order after the September
14, 2016 notice of appeal was filed. Therefore, the operative order on appeal is the order of
September 9, 2016. The nunc pro tunc order dated September 14, 2016, may be valid if that order
was file stamped prior to the notice of appeal. Alternatively, it may be valid pursuant to Neb. Rev.
Stat. § 25-2001(3), which provides that clerical mistakes in an order arising from oversight may
be corrected by an order nunc pro tunc at any time before the case is submitted for decision in the
appellate court.
The November 16, 2016, and November 18, 2016 orders are void. The district court lost
jurisdiction to enter permanent orders regarding child support once the appeal was perfected. Since
child support, including the issue of retroactivity was litigated and addressed in the district court’s
September 9, 2016 order, the permanent orders entered in November regarding child support were
void and of no effect. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016); Nuttleman v. Julch,
228 Neb. 750, 424 N.W.2d 333 (1988).
We note, however, that the September 9, 2016 order found in the record specifically reflects
the court’s finding that Rhett’s child support obligation should not be retroactive, but should begin
on the first day of the month following the court’s original order on the modification action,
September 1, 2016. Therefore, we can review that order.
Whether a child support order should be retroactive is entrusted to the discretion of the trial
court, and we will affirm its decision absent an abuse of discretion. Freeman v. Groskopf, 286 Neb.
713, 838 N.W.2d 300 (2013). Absent equities to the contrary, child support modifications should
generally apply retroactively to the first day of the month following the complaint’s filing. Id.
Additionally, in determining whether to apply a modification retroactively, the ability to pay is an
important factor. Id.
In this case, the evidence surrounding Rhett’s financial status demonstrates that if
retroactive child support was ordered by the court, a financial hardship would exist for him and
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the children. We are mindful that although Rhett carries the burden to pay child support pursuant
to the agreed upon calculation, Rhett had the children in his primary possession during the
applicable period of retroactivity. The district court found it was in the children’s best interests if
it did not order Rhett to pay retroactive child support. We find that the district court did not abuse
its discretion in its decision.
(c) Attorney Fees
Kassandra argues the district court erred in not awarding her attorney fees. Kassandra
argues that because Rhett brought an unsuccessful attempt to modify their child custody order, he
should be responsible for her attorney fees.
The award of attorney fees depends on multiple factors that include the nature of the case,
the services performed and results obtained, the earning capacity of the parties, the length of time
required for preparation and presentation of the case, customary charges of the bar, and the general
equities of the case. Burcham v. Burcham, Neb. App. 323, 886 N.W.2d 536, 546 (2016).
We find that the district court did not err in refusing to award Kassandra attorney fees.
There were no novel issues of law and Kassandra filed a counterclaim to modify the September
2014 order. Although unsuccessful, Rhett had justifiable concerns about the children’s safety and
well-being while in Kassandra’s care. Therefore, we find that that the district court did not err in
not awarding Deanna attorney fees.
(d) Appeal In Forma Pauperis
Kassandra argues that the district court erred in allowing Rhett to proceed on appeal in
forma pauperis.
Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) provides, in pertinent part:
An application to proceed in forma pauperis shall be granted unless there is an objection
that the party filing the application (a) has sufficient funds to pay costs, fees, or security or
(b) is asserting legal positions which are frivolous or malicious. The objection to the
application shall be made within thirty days after the filing of the application or at any time
if the ground for the objection is that the initial application was fraudulent. Such objection
may be made by the court on its own motion or on the motion of any interested person. . . .
Ordinarily, a trial court’s decision regarding a litigant’s right to proceed in forma pauperis will not
be disturbed on appeal unless the decision amounts to an abuse of discretion. Fine v. Fine, 4 Neb.
App. 101, 537 N.W.2d 642 (1995).
In this case, Rhett filed his application to proceed in forma pauperis on September 14,
2016. Kassandra filed her objection on October 14, 2016. The district court held an evidentiary
hearing on the objection on November 10, 2016. The district court overruled Kassandra’s objection
to Rhett’s proceeding in forma pauperis on appeal on November 17, 2016. We have found no
instance where an appellee cross-appealed the decision of the district court granting appellant’s
motion to proceed in forma pauperis on appeal. However, the statute provides that “any interested
person” may file an objection. Assuming, without deciding, that Kassandra qualifies as an
“interested person,” we find that the district court did not abuse its discretion in allowing Rhett to
proceed in forma pauperis on appeal.
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VI. CONCLUSION
We find that the district court did not err in denying Rhett’s motion to reopen evidence.
We also find that the district court did not err in finding that there had not been a material change
in circumstance since the previous order of modification. We further find the district court did not
err in excluding evidence Kassandra offered at trial. Additionally, we find that the district court
did not err in refusing to order Rhett pay retroactive child support and did not err in refusing to
award Kassandra attorney fees. We find, however, that the district court orders entered on
November 16, 2016, and November 18, 2016, regarding child support are void and of no effect.
Finally, we find that the district court did not err in allowing Rhett to proceed in forma pauperis
on appeal.
AFFIRMED.
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