Tilson v. Tilson , 307 Neb. 275 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TILSON v. TILSON
Cite as 307 Neb. 275
Jayson H. Tilson, appellant, v. Erica M. Tilson,
appellee, and Kimberly L. Hill,
intervenor-appellee.
___ N.W.2d ___
Filed September 25, 2020. No. S-19-344.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. Judges: Recusal: Appeal and Error. A motion requesting a judge to
recuse himself or herself on the ground of bias or prejudice is addressed
to the discretion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or prejudice as a
matter of law.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
4. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for clear
error the factual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay grounds.
6. Modification of Decree: Appeal and Error. Modification of a dis-
solution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and will be affirmed
absent an abuse of discretion by the trial court.
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7. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determina-
tions based upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. When evidence is in
conflict, the appellate court considers and may give weight to the fact
that the trial court heard and observed the witnesses and accepted one
version of the facts rather than another.
8. Modification of Decree: Attorney Fees: Appeal and Error. In an
action for modification of a marital dissolution decree, the award of
attorney fees is discretionary with the trial court, is reviewed de novo on
the record, and will be affirmed in the absence of an abuse of discretion.
9. Judges: Recusal. A judge should recuse himself or herself when a liti-
gant demonstrates that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or prejudice
was shown.
10. Judges: Recusal: Presumptions. A party alleging that a judge acted
with bias or prejudice bears a heavy burden of overcoming the presump-
tion of judicial impartiality.
11. Judges: Recusal. Opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings,
or of prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.
12. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
13. Rules of Evidence: Hearsay: Proof. In order for statements to be
admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3)
(Reissue 2016), the party seeking to introduce the evidence must demon-
strate (1) that the circumstances under which the statements were made
were such that the declarant’s purpose in making the statements was to
assist in the provision of medical diagnosis or treatment and (2) that the
statements were of a nature reasonably pertinent to medical diagnosis or
treatment by a medical professional.
14. Rules of Evidence: Medical Assistance: Health Care Providers. Neb.
Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), applies to
persons seeking medical assistance from persons who are expected to
provide some form of health care.
15. Modification of Decree: Child Custody: Proof. Ordinarily, custody
of a minor child will not be modified unless there has been a material
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TILSON v. TILSON
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change in circumstances showing either that the custodial parent is unfit
or that the best interests of the child require such action.
16. Parent and Child: Words and Phrases. Parental unfitness means a
personal deficiency or incapacity which has prevented, or will prob-
ably prevent, performance of a reasonable parental obligation in child
rearing and which has caused, or probably will result in, detriment to a
child’s well-being.
17. Modification of Decree: Visitation. Visitation rights established by a
marital dissolution decree may be modified upon a showing of a material
change of circumstances affecting the best interests of the children.
18. Modification of Decree: Words and Phrases. A material change in
circumstances means the occurrence of something which, had it been
known to the dissolution court at the time of the initial decree, would
have persuaded the court to decree differently.
19. Modification of Decree: Visitation: Proof. The party seeking to mod-
ify visitation has the burden to show a material change in circumstances
affecting the best interests of the child.
20. Modification of Decree: Visitation. The best interests of the children
are primary and paramount considerations in determining and modifying
visitation rights.
21. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change in circum-
stances that (1) occurred subsequent to the entry of the original decree
or previous modification and (2) was not contemplated when the decree
was entered.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
David P. Kyker for intervenor-appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Jayson H. Tilson appeals a district court order modifying the
decree that dissolved his marriage. The district court rejected
Jayson’s argument that the original decree was void. It ordered
that custody of Jayson’s three children should remain with
the children’s maternal grandmother, but modified the decree
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TILSON v. TILSON
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as to parenting time and child support. On appeal, Jayson
primarily argues that because, several years ago, he filed a
motion to dismiss his complaint for dissolution, the decree of
dissolution that followed was void, even though he withdrew
the motion to dismiss hours after he filed it. In the alternative,
Jayson challenges admissibility rulings at the modification
hearing and the modification order’s custody, parenting time,
child support, and attorney fees determinations, as well as the
denial of his motion to disqualify the presiding judge. We find
no merit to Jayson’s claims, and we affirm.
BACKGROUND
Motion to Dismiss and Dissolution Decree.
In September 2014, Jayson filed a complaint for dissolution
of his marriage to Erica M. Tilson, who has been incarcer-
ated and is not involved in the current appeal. In December
2014, temporary custody of the couple’s three minor children
was awarded to the maternal grandmother, Kimberly L. Hill
(Kimberly). The court subsequently allowed Kimberly to inter-
vene and appointed a guardian ad litem for the children. In
August 2015, Kimberly and her husband filed a third-party
complaint, asking for grandparent visitation and continued
temporary custody of the children.
On November 16, 2015, the day before a scheduled dissolu-
tion hearing, Jayson filed a motion to dismiss his complaint for
dissolution. The dissolution hearing was held as scheduled on
November 17, with Jayson in attendance.
On December 8, 2015, the court entered a decree of dissolu-
tion, drafted by Jayson’s counsel. Referring to the November
17 hearing, the decree stated, “Upon motion of [Jayson’s]
attorney . . . [Jayson’s] motion to dismiss is withdrawn.”
The decree ordered the continuation of Kimberly’s legal and
physical custody, and as to Jayson, it ordered parenting time
and a contribution toward childcare expenses. Jayson was not
ordered to pay child support. The decree prohibited Jayson
from consuming alcohol within 24 hours prior to or during his
parenting time and ordered him to administer the children’s
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TILSON v. TILSON
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prescribed medications during his parenting time. Erica was
ordered to pay child support and was awarded supervised par-
enting time by arrangement.
Jayson’s February 24, 2017, “Complaint,” Initial
Appeal, and Motion for Judicial Disqualification.
More than a year after the entry of the decree, on February
24, 2017, Jayson filed a “Complaint.” Relevant here, the com-
plaint requested (1) that the decree be vacated as void because
his November 2015 motion to dismiss was self-executing, and
thus the court lacked jurisdiction to enter the decree, and (2)
that in the alternative, the decree be modified to place custody
of the children with him. In an answer and cross-complaint,
Kimberly asked that Jayson’s weekly parenting time be reduced
and “fully supervised.” She also requested child support.
Before any ruling on Jayson’s complaint filed February 24,
2017, Jayson filed additional motions upon which the district
court ruled, and Jayson appealed. We dismissed the appeal.
See Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018). We
concluded that the ruling appealed from was not a final order
because it did nothing more than deny requests for temporary
relief and preserve the status quo pending the determination of
other issues. Id.
On May 5, 2018, Jayson filed a motion for judicial dis-
qualification. As discussed in more detail below, he alleged
several ways in which the presiding judge had exhibited bias.
Following a hearing, the district court overruled the motion.
Trial Addressing February 24, 2017, “Complaint.”
The district court held a trial on Jayson’s February 24,
2017, complaint. At trial, Kimberly testified that she is the
maternal grandmother of the children: M.T., born in 2007;
R.T., born in 2012; and T.T., born in 2013. The children had
lived with Kimberly and her husband since December 2014,
after Jayson was ticketed for leaving them home alone while
he was out drinking at a bar. According to Kimberly, until
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TILSON v. TILSON
Cite as 307 Neb. 275
March 2017, Jayson did not exercise all of his allotted parent-
ing time. Kimberly’s testimony generally showed that while
the children were with her, she took care of all their needs,
including food, clothing, bathing, medical appointments and
prescriptions, counseling, help with schoolwork, and extracur-
ricular activities.
Kimberly testified that she had many concerns about the
children’s safety when they were with Jayson. She estimated
that she observed the children improperly restrained in Jayson’s
vehicle 20 times during the year preceding trial and 50 times
overall, despite talking to Jayson about the issue multiple
times. Kimberly testified that she was also concerned that
Jayson did not give the children their medication consistently,
in particular, an antidepressant that M.T. used in 2015 and
2016. She testified about various dog and cat scratches the
children had received while under Jayson’s care. Kimberly
acknowledged that Jayson had been good about taking the chil-
dren “to the lake and to the park,” but testified he was not good
about supervising them while swimming. As a result, M.T.’s
glasses had been lost and broken, and the two younger children
had gone beyond where they should safely be in the water and
without lifejackets. Kimberly testified that nearly every time
the children returned from these outings, they had been “fried”
by the sun.
Kimberly had concerns about clothing, cleanliness, and
food during the children’s time with Jayson. In late 2015
or early 2016, while Jayson was living at his previous resi-
dence, Kimberly saw cockroaches in M.T.’s school backpack.
Kimberly testified that starting in the summer of 2017, the chil-
dren had lice for a 4-month period and had not had lice when
they left to visit Jayson. She testified that in the year before
trial, the children consistently returned from visits with Jayson
extremely dirty and dressed in clothes that were the wrong size
or inappropriate for the weather. Kimberly also stated that over
the preceding 31⁄2 years, the children usually returned from
Jayson’s home hungry.
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TILSON v. TILSON
Cite as 307 Neb. 275
Kimberly also expressed concerns about the effect Jayson’s
parenting time had on the children’s behavior and school per-
formance. She testified that the children were not doing their
homework while at Jayson’s home. Kimberly testified that after
Jayson’s overnight parenting time was suspended in March
2018, the children’s behavior improved. Before, M.T. was
having urinary accidents about four times a year, but since the
change in visitation, she had not had any. Similarly, when the
two younger children were staying with Jayson overnight, they
misbehaved for 2 days afterward, but since March 2018, any
misbehavior had been short lived and their school performance
had improved.
The children’s guardian ad litem, Candice Wooster, testified
about her investigation in this case. Wooster was not able to
schedule a visit at Jayson’s home and has never been informed
where he lives. She testified that she spoke to Jayson by tele-
phone a handful of times between December 2015 and May
2017. During one call, Jayson hung up on Wooster. In May
2017, Jayson stopped returning her calls. As a result, Wooster
was unable to arrange a home visit with Jayson. She also con-
tacted his attorney and asked if he would like to be present at
a home visit, but this did not result in an opportunity to either
speak with Jayson or visit his home. Wooster testified that
at a hearing during the 3- or 4-month period preceding trial,
Jayson’s counsel submitted an affidavit in which Jayson stated
he would not be speaking to Wooster.
In contrast, Wooster visited Kimberly’s home four or five
times for an hour and found no concerns. Wooster observed
a very loving relationship between Kimberly and the chil-
dren. She saw Kimberly helping the children with their home-
work. When R.T. had a tantrum, Kimberly calmly helped her
through it. She also observed Kimberly’s husband playing with
the children.
Dr. Judith Bothern, a licensed psychologist, testified that
she provided therapy for M.T., R.T., and T.T. from December
2015 until November 2017. Bothern testified that Kimberly
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TILSON v. TILSON
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initiated this therapy. M.T., who had 89 sessions with Bothern,
was Bothern’s primary client in the family. Bothern diagnosed
M.T. with adjustment disorder and major depressive disorder.
Bothern’s treatment plan for M.T. included addressing her rela-
tionship with Jayson and his knowledge of parenting practices.
Pursuant to a court order, Jayson participated in 18 sessions
starting around the same time as the children and continuing
until September 2016.
Bothern testified regarding several safety concerns about
Jayson’s care for M.T. M.T. told her that Jayson did not regu-
larly give M.T. her antidepressant medication, which, accord-
ing to Bothern, could have a significant effect on M.T.’s ability
to modulate her moods, emotions, and behavior. M.T. reported
to Bothern that sometimes when she reminded Jayson about
her medication, he would tell her she had already taken it,
when she had not. Bothern testified, however, that Jayson rec-
ognized the need to be more consistent with the medication and
expressed an intention to make greater efforts.
Bothern testified that she was also concerned about the
children’s physical safety. In April 2017, R.T. presented with
a bruise on her forehead and T.T. presented with bruises on
her chest and her leg, apparently caused by Jayson’s shoot-
ing them with a “Nerf” gun. Bothern testified that this made
her concerned that Jayson had poor judgment about what was
appropriate with the children. In addition, during her last ses-
sion, M.T. told Bothern that Jayson used a pellet gun to shoot
the children for “‘fun.’” As a result, Bothern filed a report with
Child Protective Services (CPS).
Bothern had concerns relating to Jayson’s living situations.
Bothern testified that early on during Jayson’s participation,
he acknowledged that his residence at that time was in dis-
repair and had “trouble with mice and bugs,” but he claimed
he was doing what he could to handle the issue. In early
2016, Jayson’s living situation resulted in five or six children,
including older boys and younger girls, sharing a bedroom.
M.T. reported being very concerned because in the bedroom
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TILSON v. TILSON
Cite as 307 Neb. 275
the boys would expose themselves to her and had touched the
genitals of a female child living in the home, who was about
3 years old at the time. Bothern filed a CPS report as a result.
M.T. also had concerns that the boys were “barging in on her
in the bathroom.” When Bothern discussed these things with
Jayson, he said he would show M.T. how to lock the bath-
room door. But with regard to the incidents in the bedroom,
Bothern said Jayson responded with a “boys will be boys type
of thing.”
Jayson subsequently moved in to the residence of Lexi
Wallen, where the three children shared a bedroom with
Wallen’s daughter. In September 2017, M.T., R.T., T.T., and
Wallen’s daughter, who was approximately 6 years old at the
time, left that residence in the middle of the night and were
returned home by the police. M.T. told Bothern they left
because their bedroom smelled like urine, there was a moldy
hole in the wall, and ants were all over. In her last session,
M.T. told Bothern that there were three mice in the residence,
which Jayson shot at with a pellet gun.
Bothern testified that she was concerned that Jayson had
told M.T. not to tell Kimberly about events in Jayson’s home.
When Bothern reported things M.T. had told her to Jayson,
Jayson would often subject M.T. to “some backlash.” When
Bothern spoke to Jayson about the matter in therapy, he told
M.T. that she could talk to Bothern about anything. But when
Jayson stopped participating in therapy, M.T. reported that
Jayson had told her not to tell Kimberly about certain inci-
dents. M.T. struggled with this because it required her to either
lie to Kimberly or betray Jayson. And in June 2017, M.T.,
then about 9 years old, reported to Bothern that CPS came to
Jayson’s home with the police because R.T. had reported to
someone that Jayson had left the children home alone. When
Jayson got very angry with M.T. over this, she falsely told CPS
and the police it never happened. Additionally, Bothern testi-
fied that many times throughout treatment, the children told her
that Jayson instructed them to misbehave while in Kimberly’s
care. This too caused emotional distress for M.T.
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Bothern testified that she was also concerned about supervi-
sion being delegated to M.T. For example, Bothern recounted
that in the spring of 2016, T.T. had incurred a bad scrape on
her face from falling off a retaining wall while under M.T.’s
supervision. Bothern testified that around the same time, M.T.
had been “terrified” during a swimming outing when a 4-year-
old child in their group fell into the water and M.T. felt
responsible for bringing her to safety. In October 2017, M.T.,
then about age 9, reported that Jayson told her it was her
responsibility to take care of her 1- or 2-month-old brother
while Jayson and a friend were drinking beer in the home and
Wallen was away. Bothern further testified that once in her
clinic, she observed Jayson instruct M.T. to take the younger
children to the bathroom and also observed Jayson instruct
M.T. to retrieve the younger children when they went into
the toy room without an adult; in Bothern’s view, these were
“[i]nappropriate” expectations to be placing on M.T. at her
level of development.
Bothern testified that she never performed a psychological
evaluation on Jayson. Rather, she tried to work with Jayson
to understand M.T.’s developmental needs and expectations,
along with appropriate discipline and parenting. Bothern char-
acterized Jayson as “very easy to work with”; he always
responded well in the clinic and was respectful. Bothern testi-
fied that Jayson improved in identifying problem areas, but
“not so much in follow through.” In Jayson’s later sessions,
Bothern observed that he was frequently not following through
on her recommendations about intervening with the children.
Dr. Colleen M. Lecher, a licensed mental health profes-
sional, testified that she had provided therapy to M.T. and R.T.,
whom she first met in November 2017 upon Bothern’s retire-
ment. Lecher testified that she had never met Jayson and that
he was not involved in the children’s treatment.
Lecher, who had conducted 20 sessions with M.T., testi-
fied that she had diagnosed M.T. with adjustment disorder and
depression with symptoms of sadness, confusion, and anxiety.
Lecher’s treatment goals for M.T. were to increase her ability
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TILSON v. TILSON
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to express her emotions and grief over the loss of her mother
and to practice relaxation techniques when feeling stressed.
Lecher testified that for the numerous adults involved in M.T.’s
life, she set a goal of meeting the children’s needs of safety
and stabilization at home and at school because those issues
“looked like a big problem for the group.” Lecher described
safety and stabilization as making sure transitions are positive
and doing everything to be appropriate and consistent, to take
care of needs, and to provide structure for adjustment so that
the children can “trust their environment.”
Lecher observed that M.T. felt compelled to meet the needs
of the younger children in Jayson’s home as a parenting figure.
Lecher opined that the responsibilities M.T. was given for the
younger children put their safety at risk because her knowledge
of how to care for them was limited and she had no supervision
or instruction regarding how to provide care. This, in Lecher’s
view, also posed a risk to M.T.’s emotional well-being. M.T.
told Lecher about an occasion prior to November 2017 when
the children were left home alone completely unsupervised and
she was scared. Lecher testified this was likely a traumatic
memory for M.T. and an “attachment strain” that could cause
mistrust of her main caregivers, in addition to the initial risk of
having been left home alone.
M.T. reported to Lecher that there were times she wanted
to call Kimberly and tell her she was scared or unhappy at
Jayson’s house, but she thought she would be punished for
doing so. M.T. told Lecher that even if she had a cell phone of
her own while at Jayson’s house, she feared that Jayson would
be able to discover that she called Kimberly and she would be
grounded or in trouble with Jayson if she did.
M.T. shared with Lecher that she saw Jayson drinking alco-
hol and getting drunk with his friends. M.T. told Lecher that
one time, she crawled underneath a bed at Jayson’s residence
and found alcohol there. On several occasions, M.T. also
brought up the presence in Jayson’s living room of what she
called marijuana and said she believed there were other illegal
drugs in the home as well. M.T.’s mother was incarcerated for
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drug offenses, and she was worried that Jayson would go to
jail too. Lecher considered accessible alcohol and drugs in the
home to be a safety risk for the children.
Within the first 2 months of treatment, M.T. told Lecher that
Jayson transported her in a car without a seatbelt. Around the
same time, M.T. also said she was scared because Jayson was
texting while driving. Lecher testified that on approximately
four occasions at the beginning of treatment, M.T. said that the
children did not have enough food at Jayson’s house and would
go home to Kimberly’s house hungry. M.T. also expressed con-
cerns to Lecher about three mice in Jayson’s house.
Lecher observed that during the first 3 months of therapy,
M.T. was secretive about what went on during visitations and
struggled with knowing what to say and to whom because she
did not want to get in trouble or get anyone else in trouble. She
told Lecher that Jayson had told her to keep certain things that
go on in his house “secret,” but when Lecher tried to follow up,
M.T. was very guarded because she was afraid she would get in
trouble. In Lecher’s opinion, this was a safety risk. M.T. told
Lecher that she loved Jayson, but M.T. also had concerns about
Jayson’s ability to provide safety and to be in a relationship
with her, listen to her, communicate with her, and understand
her needs. M.T. expressed to Lecher that she believed Jayson
could meet these needs, but he would need help to do that
before she felt safe with him. Since the decrease in Jayson’s
parenting time to Wednesday evenings and Saturdays, M.T.
had reported feeling less stressed, enjoying planned activities
with Jayson, and being happier with their relationship. Lecher
observed that since the change, M.T. was able to concentrate
and focus more, her mood was more stabilized, and she was
more willing to talk about her feelings.
Lecher started seeing R.T. in family sessions shortly after
Lecher began treating M.T., and she began treating R.T. on
March 1, 2019. Lecher diagnosed R.T. with adjustment disor-
der with “disturbance of conduct.” Lecher explained that this
means that R.T. is adjusting to transitions in her living arrange-
ments and separation from her parents and communicating
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through negative conduct rather than words. R.T.’s treatment
goals were the same as M.T.’s, and she required safety and sta-
bilization in the home, consistency, and plans for de-escalating
her “meltdown[s]” and making her feel calm. Like M.T., R.T.
had reported that Jayson had instructed her not to disclose
to Kimberly everything that went on at his house; R.T. also
referred to this information as “secrets” and was very guarded
when Lecher asked for more information, fearing she would
get into trouble.
Jayson testified that in addition to being the father of M.T.,
R.T., and T.T., he was the father of a son born in 2006, as
well as a son born to Wallen in 2017. Jayson testified that his
younger son lived with him and Wallen, along with Wallen’s
two children, in a three-bedroom, two-bathroom trailer home
that belonged to Wallen. Jayson testified that he and Wallen
had been in a relationship and lived together for approximately
2 years. Jayson asked the court not to grant access to the chil-
dren to anyone other than himself. Jayson generally denied or
explained the bases for the concerns voiced by other witnesses.
Wallen also testified and provided details that generally dis-
counted the concerns brought up by other witnesses.
District Court Order Disposing of
February 24, 2017, “Complaint.”
The district court denied the relief Jayson requested in his
February 24, 2017, complaint. It found that Jayson’s motion to
dismiss the dissolution complaint had not rendered the decree
void or unlawful.
Regarding custody, the district court stated that it had
“observed the parties, the witnesses and their demeanors, and
made determinations as to credibility.” It continued, “To the
extent the court’s recitation of the facts differ from a party’s
position on those facts, the court’s recitation will constitute
the court’s findings of disputed facts.” In particular, the dis-
trict court noted that Jayson’s failure to meet with the guard-
ian ad litem “casts doubt upon his true motivations” and
“works against his credibility and position that he is fit, has
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satisfactory living arrangements for the children, has the chil-
dren’s best interests in mind, and can care for them appropri-
ately.” The district court decided that the parental preference
principle had been rebutted by showings of parental forfeiture
and unfitness and that the best interests of the children “‘lie
elsewhere.’” It awarded Kimberly legal and physical custody
of the children.
Addressing parenting time, the district court found that
Kimberly had proved a material change in circumstances and
that the children’s best interests required changes to Jayson’s
parenting time then in effect. Jayson received parenting time
every other week from Thursday afternoon through Sunday
afternoon and for designated holidays and 4 weeks total dur-
ing the summer, a change from the initial decree’s schedule
of Friday evenings through Monday mornings and Wednesday
evenings through Thursday mornings.
As to child support, the district court completed child sup-
port worksheets based in part on Kimberly’s suggested calcu-
lations and found a material change in circumstances. For the
first time, it ordered Jayson to pay child support on a perma-
nent basis, in the amount of $587 per month.
The district court found that the remainder of the dissolution
decree was to stay in effect and that any other relief sought
was denied. The parties were ordered to pay their own attor-
ney fees.
Subsequent Motions and Amended Order.
Jayson filed a motion for new trial and a motion to vacate,
alter, or amend the judgment. The latter motion again asserted,
among other things, that the dissolution decree was void. The
district court denied the motions, with the exception of the
issue of child support.
At a subsequent hearing on the child support issue, Jayson
testified regarding his employment history and income. As
of February 26, 2019, Jayson was unemployed and looking
for employment and also spending time with his young son.
Jayson testified that he did not believe he should be ordered to
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pay child support because he “takes care of” the children when
he has them. Kimberly testified that shortly after December
2015, when Jayson began exercising less parenting time than
was awarded him in the original decree, her expenses increased
because the children were with her more often.
The district court completed new child support worksheets
and entered an order amending the child support aspects of the
judgment to require Jayson to pay $236 per month. Jayson was
not required to contribute to childcare expenses.
Jayson now appeals.
ASSIGNMENTS OF ERROR
Jayson assigns that the district court erred in not vacating
the decree and declaring it to be void. In the alternative, Jayson
assigns that the district court erred in (1) denying Jayson’s
motion for disqualification for judicial bias, (2) receiving the
children’s statements to therapists and the therapists’ opinions,
(3) not modifying the decree to award custody to Jayson, (4)
modifying the decree as to parenting time and child support,
and (5) not awarding Jayson attorney fees.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. Simms v. Friel, 302 Neb.
1, 921 N.W.2d 369 (2019).
[2] A motion requesting a judge to recuse himself or herself
on the ground of bias or prejudice is addressed to the discre-
tion of the judge, and an order overruling such a motion will be
affirmed on appeal unless the record establishes bias or preju-
dice as a matter of law. McCullough v. McCullough, 299 Neb.
719, 910 N.W.2d 515 (2018).
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make dis-
cretion a factor in determining admissibility. Lindsay Internat.
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Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133 (2018).
A trial court has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. Id.
[5] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection or exclude evidence on hearsay grounds.
Pantano v. American Blue Ribbon Holdings, 303 Neb. 156, 927
N.W.2d 357 (2019).
[6,7] Modification of a dissolution decree is a matter
entrusted to the discretion of the trial court, whose order is
reviewed de novo on the record, and will be affirmed absent
an abuse of discretion by the trial court. Jones v. Jones, 305
Neb. 615, 941 N.W.2d 501 (2020). In a review de novo on
the record, an appellate court is required to make independent
factual determinations based upon the record, and the court
reaches its own independent conclusions with respect to the
matters at issue. When evidence is in conflict, the appellate
court considers and may give weight to the fact that the trial
court heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. Dooling v. Dooling, 303
Neb. 494, 930 N.W.2d 481 (2019).
[8] In an action for modification of a marital dissolution
decree, the award of attorney fees is discretionary with the trial
court, is reviewed de novo on the record, and will be affirmed
in the absence of an abuse of discretion. Garza v. Garza, 288
Neb. 213, 846 N.W.2d 626 (2014).
ANALYSIS
Motion to Vacate Decree as Void.
We begin with Jayson’s contention that the district court erred
by not vacating the decree and declaring it void. Jayson takes
the position that the motion to dismiss he filed on November
16, 2015, terminated the dissolution action. According to
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Jayson, because the district court did not have jurisdiction of
the matter after he filed his motion, the entire decree, which
includes custody and child support orders, was void and should
have been vacated.
Jayson’s argument rests on his understanding that he, as the
party that filed the dissolution action, had an absolute right to
voluntarily dismiss it and that his filing of the motion to dis-
miss had the effect of immediately terminating the action with-
out need for additional action by the district court. In short,
Jayson claims that his November 16, 2015, motion dismissed
the action by operation of law the moment it was filed.
Kimberly disagrees, arguing that Jayson did not have the
right to unilaterally dismiss the action. Although she concedes
that a plaintiff has the right to unilaterally dismiss an action
without prejudice under some circumstances, she contends
Jayson did not have such a right in this case, because she had
filed a third-party complaint seeking temporary custody or visi-
tation, which remained pending at the time of Jayson’s motion
to dismiss.
It does not appear that when he filed his November 16,
2015, motion, Jayson or his counsel believed that Jayson could
unilaterally terminate the dissolution proceedings. Jayson filed
a motion to dismiss, which would seem to request that the
district court take action to effectuate a dismissal rather than
notifying it and the other parties of a self-executing dismissal.
See Black’s Law Dictionary 1168 (10th ed. 2014) (defining
“motion” as “written or oral application requesting a court
to make a specified ruling or order”). But even if that issue
is set to the side and, further, even if we assume that Jayson
is correct that he could and did, in fact, dismiss the dissolu-
tion proceeding at the moment he filed his motion to dis-
miss, we still disagree with Jayson that the subsequent decree
was void.
If the dissolution action was terminated the moment Jayson
filed his motion to dismiss, the action was effectively rein-
stated. While Jayson is correct that an order of dismissal or
dismissal by operation of law generally divests a court of
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jurisdiction to take any further action in the matter, we have
also held that parties may move to reinstate a dismissed action,
that such a motion is treated as a motion to vacate, and that
courts generally have jurisdiction to vacate an order of dis-
missal and reinstate a case. See Molczyk v. Molczyk, 285 Neb.
96, 825 N.W.2d 435 (2013). Here, the record indicates that
Jayson filed a motion to withdraw his motion to dismiss on
November 17, 2015. Although framed as a motion to withdraw
his motion to dismiss, our law treats motions according to their
substance and not their title. See Gerber v. P & L Finance
Co., 301 Neb. 463, 919 N.W.2d 116 (2018). The substance of
a motion to withdraw a motion to dismiss asks that the action
continue. Accordingly, even if the action was automatically
dismissed upon Jayson’s motion, Jayson’s motion to withdraw
the motion to dismiss operated as a motion to vacate the dis-
missal and reinstate the action, a request that the district court
had jurisdiction to entertain. Under this scenario, the district
court effectively granted the motion to reinstate by recognizing
that Jayson desired that the action continue and proceeding to
enter a decree.
For these reasons, we find that the district court did not err
in concluding that the decree was not void. We thus proceed to
address Jayson’s alternative assignments of error.
Motion for Judicial Disqualification.
[9,10] Before moving to Jayson’s substantive challenges to
the modification order, we address his claim that the district
court judge erred in not recusing himself. A motion request-
ing a judge to recuse himself or herself on the ground of bias
or prejudice is addressed to the discretion of the judge, and
an order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter of
law. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d
515 (2018). A judge should recuse himself or herself when a
litigant demonstrates that a reasonable person who knew the
circumstances of the case would question the judge’s impar-
tiality under an objective standard of reasonableness, even
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though no actual bias or prejudice was shown. Thompson v.
Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589
(2019). Such instances in which the judge’s impartiality might
reasonably be questioned specifically include where the judge
has a personal bias or prejudice concerning a party or a party’s
lawyer. See In re Interest of J.K., 300 Neb. 510, 915 N.W.2d
91 (2018). A party alleging that a judge acted with bias or
prejudice bears a heavy burden of overcoming the presumption
of judicial impartiality. Thompson v. Millard Pub. Sch. Dist.
No. 17, supra. Jayson has not satisfied this burden.
Jayson’s brief contends there were many instances in which
the district court demonstrated bias. Because Jayson did not
raise some of those allegations before the district court, we will
not consider them all. See Weber v. Gas ’N Shop, 278 Neb. 49,
54, 767 N.W.2d 746, 750 (2009) (“[a]n appellate court will not
consider an issue on appeal that was not presented to or passed
upon by the trial court”). See, also, In re Interest of Michael
N., 302 Neb. 652, 925 N.W.2d 51 (2019). Instead, we confine
our review to alleged instances of judicial bias that were raised
below and on appeal; and we conclude that the presiding judge
did not err in declining to remove himself from the case.
The allegations of bias that Jayson has made below and on
appeal arise from hearings in June 2017 and February 2018
relating to temporary alterations of his parenting time. At the
hearings, the presiding judge twice allowed Kimberly’s counsel
additional time to submit exhibits in proper form, over Jayson’s
objections. On one of those occasions, the judge granted a con-
tinuance. The judge also allowed the guardian ad litem to offer
opinions despite Jayson’s objection. Further, the judge asked
Jayson’s counsel whether Jayson’s affidavit stated that he
would not answer any questions posed by any court-appointed
guardian ad litem.
[11] Jayson’s allegations of bias relate to the presiding
judge’s courtroom administration and evidentiary and substan-
tive rulings. But “‘judicial rulings alone almost never consti-
tute a valid basis for a bias or partiality motion’” directed to a
trial judge. Huber v. Rohrig, 280 Neb. 868, 875, 791 N.W.2d
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590, 598 (2010), quoting Liteky v. United States, 510 U.S. 540,
114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). See, also, Young v.
Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013). Nor
can a judge’s ordinary efforts at courtroom administration be a
basis for bias or partiality. Id. Opinions formed by the judge on
the basis of facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings, do not con-
stitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair
judgment impossible. In re Interest of J.K., supra.
Our review of the record reveals nothing in the district
judge’s rulings or other actions that indicates bias or prejudice
necessitating recusal. Accordingly, we conclude that the dis-
trict court did not abuse its discretion when it denied Jayson’s
motion for recusal.
Evidentiary Rulings at Modification Hearing.
Jayson also challenges the district court’s modification of
the dissolution decree. Relevant to that issue are admissibility
rulings at the modification hearing that Jayson also disputes.
We address those rulings now.
[12] First, Jayson argues that the district court erred in
admitting testimony based on statements that the children
and Kimberly made to Bothern and Lecher. He claims those
statements were inadmissible hearsay. However, Jayson only
assigns that the district court erred in receiving the children’s
statements, and to be considered by an appellate court, an
alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error.
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
Therefore, we will address only the admissibility of the chil-
dren’s statements to the therapists.
Jayson is correct in identifying the children’s statements
as hearsay, because it was not the declarants who testified
to them and they were received for the truth of the matters
asserted. See, Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3)
(Reissue 2016). However, we conclude that they fall under the
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medical purpose exception to the hearsay rule and were there-
fore properly admitted.
[13] Under the medical purpose exception, “[s]tatements
made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to
diagnosis or treatment” are not excluded by the hearsay rule.
Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue
2016). Rule 803(3) is based on the notion that a person seeking
medical attention will give a truthful account of the history and
current status of his or her condition in order to ensure proper
treatment. See, State v. Beeder, 270 Neb. 799, 707 N.W.2d
790 (2006), disapproved on other grounds, State v. McCulloch,
274 Neb. 636, 742 N.W.2d 727 (2007); State v. Hardin, 212
Neb. 774, 326 N.W.2d 38 (1982). In order for statements to
be admissible under rule 803(3), the party seeking to introduce
the evidence must demonstrate (1) that the circumstances under
which the statements were made were such that the declarant’s
purpose in making the statements was to assist in the provision
of medical diagnosis or treatment and (2) that the statements
were of a nature reasonably pertinent to medical diagnosis or
treatment by a medical professional. State v. Mora, 298 Neb.
185, 903 N.W.2d 244 (2017).
Jayson asserts, without additional elaboration, that state-
ments made by M.T. and R.T. to Bothern and Lecher were not
made for the purposes of or reasonably pertinent to medical
diagnosis or treatment. To the extent Jayson implies that the
mental health professional services provided by Bothern and
Lecher were not medical in nature and that therefore, the medi-
cal purpose exception cannot apply, we disagree.
[14] Our prior cases in this area do not support an argument
that the medical purpose exception cannot apply to statements
made to mental health professionals. First of all, we have
stated that “[a]lthough the heart of the rule 803(3) exception
lies in statements made by a patient to a treating physician,
the exception casts its net wider than the patient-physician
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relationship.” State v. Vigil, 283 Neb. 129, 136, 810 N.W.2d
687, 695 (2012). As a general rule, then, this hearsay excep-
tion applies to persons seeking medical assistance from per-
sons who are expected to provide some form of health care.
Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d
319 (1994).
More specifically, our cases have applied this hearsay excep-
tion to statements made for purposes of obtaining a mental
health diagnosis or mental health treatment. In In re Interest of
B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005), we applied
the medical purpose exception to statements a foster mother
made to a therapist regarding evidence that the minor patient
may have been sexually abused. Although our primary focus in
that case was whether statements from someone other than the
child herself could be admitted, we concluded that the state-
ments fell within the exception as long as the declarant’s pur-
pose in making the statements was to assist in the provision of
medical diagnosis or treatment, the declarant’s statements were
reasonably pertinent to such diagnosis or treatment, and a doc-
tor would reasonably rely on such statements. We determined
that statements to the child’s therapist setting forth evidence
that the child had been sexually abused met these requirements
and were thus admissible.
Later, in State v. Vigil, supra, we applied the exception to
statements made during a child advocacy center forensic inter-
view regarding a sexual assault. There, we considered the dual
medical and investigatory purposes of the interview. We held
that even when an interview is conducted for both medical
and investigatory purposes, the medical purpose exception will
apply if the statements were made in legitimate and reason-
able contemplation of medical diagnosis or treatment. Relying
on our decision in In re Interest of B.R. et al., supra, we held
that when an individual is alleged to be the victim of sexual
assault, “statements reasonably pertinent to medical diagnosis
and treatment of both physical and psychological trauma” were
admissible under rule 803(3). State v. Vigil, 283 Neb. at 141,
810 N.W.2d at 698 (emphasis supplied).
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Our cases are consistent with those of federal appeals courts.
A recent opinion from the Third Circuit Court of Appeals
noted that every federal court of appeals that has considered
the issue has concluded that statements to mental health profes-
sionals for purposes of diagnosis or treatment are admissible
under the medical purpose exception to the hearsay rule in the
Federal Rules of Evidence. See U.S. v. Gonzalez, 905 F.3d 165
(3d Cir. 2018), cert. denied ___ U.S. ___, 139 S. Ct. 2727, 204
L. Ed. 2d 1120 (2019) (collecting cases).
Having determined that statements made to mental health
professionals can fall within the medical purpose exception to
the hearsay rule, we must consider whether the statements at
issue here met the necessary requirements: that the declarant’s
purpose in making the statements was to assist in the provision
of medical diagnosis or treatment, that the declarant’s state-
ments were reasonably pertinent to such diagnosis or treatment,
and that a medical professional would reasonably rely on such
statements. Whether a statement was both taken and given in
contemplation of medical diagnosis or treatment is a factual
finding made by the trial court in determining the admissi-
bility of the evidence under rule 803(3), and we review that
determination for clear error. State v. Vigil, supra. Applying
that standard here, we find no clear error on the part of the
district court.
In the case before us, Kimberly sought assistance for M.T.
and R.T. from Bothern and Lecher, health care profession-
als expected to provide mental or psychological health care.
Bothern diagnosed M.T. with adjustment disorder along with
depression. In treating M.T., Bothern testified that it was nec-
essary to address her relationship with Jayson and his parent-
ing practices. Lecher made the same diagnosis for M.T., and
her treatment goals included helping the adults in M.T.’s life
meet M.T.’s needs for safety and stabilization. This entailed
providing structure and consistency so that M.T. could trust
her environment. Lecher set the same treatment goals for R.T.,
whom she also diagnosed with adjustment disorder. Statements
by M.T. and R.T. relating to their relationship with Jayson
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and their time under his care were integral to their diagno-
sis and treatment, and considering the context in which they
were made, the statements could be reasonably relied upon.
We find no error in admitting the disputed testimony over
Jayson’s objections.
Second, Jayson argues that the testimony of Bothern and
Lecher lacked foundation and relevance because of what he
claims are admissions that they could not offer opinions about
Jayson’s parental fitness or the best interests of the children.
But even if such admissions exist, it does not follow that
Bothern and Lecher lacked knowledge relevant to issues that
the district court had to resolve in this case. Whether in the
form of opinions or personal observations, the testimony of
Bothern and Lecher was relevant to custody and parenting
time because it painted a picture of the children’s time and
­relationship with Jayson, the children’s perception of it, and the
effects it was having on them.
As for foundation, the testimony of Bothern and Lecher was
based on their personal knowledge. They both spent time with
the children in therapy over the course of months or years,
with Bothern spending some therapeutic time with Jayson,
and as explained above, the therapy itself necessarily focused
on Jayson’s parenting time and his relationship with the chil-
dren. Therefore, we are not persuaded that the district court
abused its discretion in admitting the therapists’ testimony over
Jayson’s relevance and foundation objections.
We proceed to consider Jayson’s remaining claims in light of
this admissible evidence.
Child Custody.
[15] Jayson challenges the district court’s determination
that custody of the children should remain with Kimberly.
This matter has come to us by way of modification proceed-
ings. Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing either that the custodial parent is unfit or that the
best interests of the child require such action. Jones v. Jones,
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305 Neb. 615, 941 N.W.2d 501 (2020). Jayson does not argue
that there has been a material change in circumstances, but
argues that modification of the decree to award him custody is
required under the parental preference principle.
The parental preference principle establishes a presumption
that the best interests of a minor child are served by plac-
ing custody with his or her parent. See In re Guardianship of
K.R., 304 Neb. 1, 932 N.W.2d 737 (2019). We agree that the
parental preference principle governs our analysis. But based
on this record and our standard of review, we conclude that the
parental preference principle did not require the district court
to place the children with Jayson.
The parental preference principle applies to child custody
controversies between a biological or adoptive parent on one
hand and one who is neither a biological or adoptive par-
ent on the other. See In re Guardianship of D.J., 268 Neb.
239, 682 N.W.2d 238 (2004). In those cases, the parent has a
superior right to and is entitled to custody of the child unless
the third party negates the parental preference principle. See
id. On many occasions, we have recognized that the parental
preference principle can be overcome by a showing that the
parent is unfit or has forfeited the right to custody. See In re
Guardianship of K.R., supra (collecting cases). In addition, in
Windham v. Griffin, 295 Neb. 279, 288, 887 N.W.2d 710, 717
(2016), we indicated that the preference could be “negated by a
demonstration that the best interests of the child lie elsewhere.”
We cautioned, however, that we viewed cases in which the best
interests of the child defeated the parental preference principle
as “exceptional” and further explained that a third party could
not overcome the parental preference principle merely by
showing that he or she would be able to provide more ameni-
ties for the child. Id. at 290, 887 N.W.2d at 718.
In this case, the district court concluded that the parental
preference principle applied, but found that Kimberly was
nonetheless entitled to custody. The district court found the
parental preference principle was overcome because Jayson
was unfit to have custody of the children, he had forfeited his
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right to custody, and it was in the best interests of the children
for Kimberly to have custody.
Jayson argues that the district court erred by finding that he
was unfit or forfeited his right to custody. As for the district
court’s conclusion that it was in the children’s best interests for
Kimberly to have custody, he argues that the parental prefer-
ence principle cannot be overcome by a showing that it is in
the children’s best interests for someone other than the parent
to have custody and urges us to overrule Windham v. Griffin,
supra, to the extent it holds otherwise.
We find that it is not necessary for us to consider whether
Jayson forfeited his right to custody or whether the parental
preference principle was overcome by a showing that it was in
the children’s best interests for Kimberly to have custody. Even
if Jayson’s arguments on those points have merit, the parental
preference principle would still be negated by a showing that
Jayson is unfit. And, as we will explain, viewing the admis-
sible evidence through the lens of the district court’s credibility
determinations, we cannot say that the district court abused its
discretion in finding Jayson was unfit.
[16] Parental unfitness means a personal deficiency or inca-
pacity which has prevented, or will probably prevent, perform­
ance of a reasonable parental obligation in child rearing and
which has caused, or probably will result in, detriment to a
child’s well-being. In re Guardianship of K.R., 304 Neb. 1, 932
N.W.2d 737 (2019). Evidence of unfitness should be focused
upon a parent’s ability to care for a child, and not any other
moral failings a parent may have. In re Interest of Lakota Z. &
Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011). Evidence of
a parent’s past failings is pertinent only insofar as it suggests
present or future faults. Id. Parental unfitness must be shown
by clear and convincing evidence. See In re Guardianship of
D.J., supra.
The district court heard evidence that under Jayson’s care,
the children’s physical well-being was at risk. This included
evidence of poor living conditions. Jayson had acknowledged
that his earlier residence was in disrepair and had issues
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with mice and insect infestations. Kimberly testified that at
the time Jayson lived there, she found cockroaches in M.T.’s
school backpack. There was evidence that at Jayson’s next resi-
dence with Wallen, similar problems persisted, including mice
and a months-long lice issue. In September 2017, the children
left Jayson’s residence in the middle of the night due to an odor
of urine, a moldy hole in the wall, and the presence of ants in
their bedroom. While Jayson insists his home was in a much
better condition than portrayed by Kimberly’s witnesses, he
passed up the opportunity to have a third party, the guardian
ad litem, visit it.
Other evidence showed a risk to the children’s safety.
Kimberly testified that the children often returned from
Jayson’s home with animal bites or scratches. During the year
before trial, the children routinely returned from Jayson’s
house hungry, dirty, and dressed in clothing that was either the
wrong size or inappropriate for the weather. At that time, M.T.
reported that she had been punished by losing a meal and told
Lecher that she did not have enough food to eat when she was
at Jayson’s house. During the year preceding trial, M.T. also
reported that for “‘fun,’” Jayson had shot the children with a
pellet gun. Also during the year before trial, M.T. reported the
presence of drugs and alcohol in Jayson’s home, which she
was able to access, and said she had observed Jayson intoxi-
cated, when the decree prohibited Jayson from consuming
alcohol within 24 hours prior to or during his parenting time.
Kimberly testified that Jayson often transported the children
without proper car restraints, and during the year before trial,
M.T. also reported that Jayson had transported her without
a seatbelt and had texted while driving. Evidence was also
introduced that Jayson did not supervise the children prop-
erly, including during swimming outings. When the children
were returned from swimming outings with Jayson, Kimberly
testified that they were nearly always sunburned. Sometimes
Jayson entrusted M.T. with supervising the younger children,
leaving them home alone, when, according to Bothern and
Lecher, M.T. was not developmentally ready to supervise
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others. According to Lecher, this posed an initial safety risk to
the children and also could diminish M.T.’s ability to trust her
caregivers, posing a future safety risk.
In addition to issues of physical health and safety, there was
evidence that Jayson had not routinely contributed financially
to the children’s care. Until these proceedings, Jayson was
not obligated to pay child support, but there was no evidence
that he had otherwise contributed to their maintenance aside
from childcare expenses he paid after contempt proceedings
and what was incidental to his limited and inconsistent parent-
ing time.
The record in this case also contains evidence that Jayson’s
parental shortcomings have been or probably will be detrimen-
tal to his children’s mental and emotional well-being. At the
time of trial, both M.T. and R.T. were undergoing treatment
for adjustment disorders. An atmosphere of safety and stabili-
zation was part of their treatment, but their experience under
Jayson’s care, described above, was inconsistent with these
mental health needs. And in assessing parental fitness, we have
considered a parent’s ability to meet the particular needs of a
child. See In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d
737 (2019).
Other evidence also showed that Jayson posed a detriment
to the children’s mental and emotional well-being. Contrary
to the initial decree, in 2015 and 2016, Jayson was inconsist­
ent about giving M.T. antidepressant medication she needed
regularly to modulate her moods, emotions, and behavior,
despite reminders from M.T. herself. Jayson’s “boys will be
boys” response to M.T.’s concerns about older boys at his
previous residence exposing themselves to her and touching
the genitals of a young girl in the home could be understood
as dismissive. And Jayson consistently put the children, espe-
cially M.T., in a position that required them to choose whether
they were loyal to him or to Kimberly. He asked them to
keep the goings-on at his home “secret,” and if the children
did disclose such information, they would be in trouble
with Jayson. This caused internal struggles for M.T. Fearing
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discovery and punishment, M.T. reported that she did not feel
free to call Kimberly if she was scared or unhappy at Jayson’s
house. In June 2017, CPS and the police came to the home
after Jayson left the children home alone, and due to Jayson’s
anger with M.T. over the situation, M.T. lied about the mat-
ter. Lecher observed that M.T. had an “attachment strain” as
a result of being left home alone. Jayson caused further emo-
tional turmoil for M.T. by telling the children to misbehave
for Kimberly.
Jayson’s detrimental effect on the children’s mental and
emotional health was evident when his visitation was tem-
porarily reduced. Kimberly testified that when visits with
Jayson were scaled back, the children’s behavior and school
performance improved, and Lecher testified that upon Jayson’s
reduced visitation, M.T. became less stressed, more stable in
her mood, able to focus more, and more open about her feel-
ings. M.T. was also happier with her relationship with Jayson,
whom she loved, but she questioned his ability to provide for
her safety and understand her needs.
Despite Jayson’s expressing intentions to improve as a par-
ent, this history, along with other testimony, is evidence that at
the time of trial, he did not have either the will or the capac-
ity to do so. According to Bothern, she observed that Jayson
frequently did not follow through with her recommendations,
even though he was easy to work with in the clinic. This may
not, on its own, demonstrate unfitness, but it could reasonably
be understood as demonstrating a reluctance or inability to
change his parenting practices.
We have reviewed the testimony of Jayson and Wallen,
in which they either denied or explained the circumstances
above and generally cast a positive light on Jayson as a par-
ent. But the district court’s order demonstrates that it did not
find this testimony to be credible. 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 rather than another.
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Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
Because this court is not positioned to pass on the credibility
of the witnesses like the district court was, we defer to the
district court’s credibility determinations in our assessment of
the facts.
Jayson argues that this case is “nothing like notable paren-
tal preference cases in which the appellate court affirmed the
lower court’s decision to award custody . . . of a child to a
nonparent.” Brief for appellant at 24 (emphasis in original),
citing In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737
(2019); State on behalf of Lilliana L. v. Hugo C., 26 Neb. Ct. App.
923, 924 N.W.2d 743 (2019); and State on behalf of Combs v.
O’Neal, 11 Neb. Ct. App. 890, 662 N.W.2d 231 (2003). But the
cases Jayson cites are as different from one another as they
are from this one. And, even if the cases presented by Jayson
shared some factual similarities with this case, our analysis
would not depend on a fact-for-fact comparison.
Taken alone, many of Jayson’s individual parental short-
comings might not amount to unfitness. However, the parental
fitness analysis is a fact-intensive inquiry. See In re Interest of
Noah C., 306 Neb. 359, 945 N.W.2d 143 (2020). Accordingly,
we must review the record in this case in totality, rather than
focusing on whether any one piece of evidence, viewed in
isolation, demonstrates unfitness. Having done so in this case,
and given the deference we owe to the trial court’s credibility
determinations, we cannot say that the district court abused its
discretion in finding Jayson unfit by clear and convincing evi-
dence and ordering that custody remain with Kimberly.
Parenting Time.
Jayson asserts that even if the district court did not err in
its custody determination, it erred in modifying his parenting
time. The district court modified Jayson’s unsupervised parent-
ing time to every other week from Thursday afternoon through
Sunday afternoon and designated holidays, plus summer visita-
tion. Under the initial decree, Jayson’s unsupervised parent-
ing time had been previously scheduled for Friday evenings
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through Monday mornings and Wednesday evenings through
Thursday mornings.
[17-20] Visitation rights established by a marital dissolution
decree may be modified upon a showing of a material change
of circumstances affecting the best interests of the children.
VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019).
A material change in circumstances means the occurrence of
something which, had it been known to the dissolution court at
the time of the initial decree, would have persuaded the court
to decree differently. Id. The party seeking to modify visitation
has the burden to show a material change in circumstances
affecting the best interests of the child. Id. The best interests
of the children are primary and paramount considerations in
determining and modifying visitation rights. Id.
Jayson argues the district court could only modify his parent-
ing time if Kimberly proved that between the December 2015
decree and the modification proceedings, a material change of
circumstances had taken place and Kimberly failed to prove
such a change. We disagree. Evidence during this time period
showed that Jayson was inconsistent in exercising his parent-
ing time, and when he did, it negatively affected the children’s
mental and physical well-being. There was also testimony that
the children had a therapeutic need for stability and consist­
ency, which Jayson was not able to provide. Thus, it was not an
abuse of discretion for the district court to find there had been
a material change of circumstances regarding parenting time
that affected the best interests of the children.
Jayson also argues the district court abused its discretion in
modifying Jayson’s parenting time, because the district court
modified it to a “level below” the parenting time Kimberly
requested in her answer and cross-complaint. Brief for appel-
lant at 32. The parenting time ordered by the district court did
differ from that requested by Kimberly, but it is not so clear
to us that it was a “level below,” as Jayson contends. The
district court’s parenting time order granted Jayson less time
with the children than Kimberly requested, but it also granted
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Jayson unsupervised time when Kimberly requested that it
be “fully supervised.” In any event, we are not convinced by
Jayson’s position.
Jayson argues that Eric H. v. Ashley H., 302 Neb. 786, 925
N.W.2d 81 (2019), precluded the district court from reducing
Jayson’s parenting time below that requested by Kimberly. In
that case, we held that a district court did not abuse its discre-
tion by concluding that sexual abuse by the child’s stepfather
was the only material change of circumstances alleged in a
complaint to modify and therefore within the scope of the
modification proceeding. Jayson makes no argument here that
Kimberly relied on evidence outside the scope of her pleadings
to demonstrate a material change of circumstances.
Kimberly’s answer and cross-complaint alleged several
material changes in circumstances affecting the children’s best
interests and requested a change to the parenting time schedule.
Jayson was on notice that parenting time was at issue, and he
had the opportunity to put on any and all evidence pertinent
to the parenting time schedule. See Fetherkile v. Fetherkile,
299 Neb. 76, 907 N.W.2d 275 (2018) (due process requires
reasonable notice and opportunity to be heard appropriate to
nature of proceeding and character of rights to be affected).
We conclude that the district court did not exceed the scope of
the pleadings or rule without notice to Jayson in modifying his
parenting time.
Child Support.
Jayson argues that the district court erred in modifying the
decree to impose a child support obligation on him, when none
existed before. Jayson does not dispute the district court’s cal-
culation of the amount of child support or that Kimberly, as a
third party, could be entitled to child support. See Neb. Ct. R.
§ 4-222 (rev. 2011) (if child resides with third party, court shall
order each parent to pay to third party his or her respective
amount of child support). Instead, Jayson contends that there
was no material change in circumstances to justify any modifi-
cation to his child support obligation.
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[21] A party seeking to modify a child support order must
show a material change in circumstances that (1) occurred
subsequent to the entry of the original decree or previous modi-
fication and (2) was not contemplated when the decree was
entered. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
According to Jayson, there was no material change in circum-
stances as to child support because there was no evidence that
his income or the children’s expenses had increased since the
original decree and because custody remained with Kimberly.
We find no merit to this argument.
Although Jayson asserts that there was no change in cus-
tody between the original decree and the order modifying
it, a closer analysis reveals a more complicated picture.
The initial decree provided that Kimberly had physical and
legal custody of the children. The decree scheduled Jayson’s
parenting time for Friday evenings through Monday morn-
ings and Wednesday evenings through Thursday mornings.
Supervised parenting time with Erica was by arrangement.
Under this schedule, the amount of time the children were to
spend with Jayson was nearly equal to the amount of time the
children were to spend with Kimberly. In fact, this schedule
provided for the children to spend more nights with Jayson
than with Kimberly. And we have previously explained that
a trial court can effectively establish a joint physical custody
arrangement by awarding nearly equal parenting time even
if it uses a different label to describe the arrangement. See
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019). See, also, Neb. Rev. Stat. § 43-2922(20)
(Reissue 2016) (defining physical custody as authority and
responsibility regarding child’s place of residence and exer-
tion of continuous parenting time for significant periods of
time). In the order modifying the decree, however, the district
court reduced Jayson’s parenting time to every other week
from Thursday afternoon through Sunday afternoon and des-
ignated holidays, with 4 weeks total during the summer. After
the modification order, Jayson clearly did not have physical
custody of the children.
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Regardless of whether there was a change in custody,
Kimberly’s regular time with the children increased signifi-
cantly between the original and modified decrees. And even
when Jayson’s blocks of summer parenting time are consid-
ered, her overall time with the children was no longer roughly
equivalent to Jayson’s. Under the modified decree, the children
would spend more than twice as many nights with Kimberly
than they would with Jayson. Further, Kimberly testified that
the more time she had the children, the more expenses she
incurred. This permanent change to Jayson’s parenting time
and the corresponding increase in expenses for Kimberly were
not contemplated at the time of the original decree, and we
conclude that they amounted to a material change in circum-
stances, which permitted modification of Jayson’s child sup-
port obligation. But see Brodrick v. Baumgarten, 19 Neb. Ct. App.
228, 809 N.W.2d 799 (2011) (finding temporary change to
amount of parenting time did not amount to material change
in circumstances).
Attorney Fees.
Jayson contends that the district court erred in declining to
award him attorney fees. This argument is based on his posi-
tion that he should have prevailed in this matter. Because we
have found no merit to Jayson’s other claims, we conclude
that the district court did not abuse its discretion in rejecting
this one. See Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d
314 (2001).
CONCLUSION
For the reasons set forth above, we find no error on the part
of the district court and affirm.
Affirmed.