Hays v. Hays ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
HAYS V. HAYS
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).
SHANE C. HAYS, APPELLEE,
V.
KATIE M. HAYS, NOW KNOWN AS KATIE M. SMITH, APPELLANT.
Filed November 1, 2022. No. A-21-956.
Appeal from the District Court for Scotts Bluff County: ANDREA D. MILLER, Judge.
Affirmed.
Alex M. Lierz, of Rembolt Ludtke, L.L.P., for appellant.
Audrey M. Long, of A. Elliott Law, P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and BISHOP and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Katie M. Hays, now known as Katie M. Smith, appeals an order of the district court for
Scotts Bluff County which modified the 2017 decree of dissolution which dissolved her marriage
to Shane C. Hays. The district court modified the decree in two ways. The district court altered the
previously awarded parenting time schedule from a 5-2/2-5 schedule to a week on/week off
arrangement. The court also modified the parties’ joint legal custody arrangement such that Shane
would have the “final say” for decisions related to the health care and activities of the children.
Katie would have the “final say” for decisions related to education and religion.
On appeal from the district court’s modification order, Katie asserts that the district court
erred in denying the requests she prayed for in her complaint to modify with respect to physical
custody and parenting time and by altering legal custody and parenting time as outlined above.
Katie also challenges numerous pretrial decisions made by the district court. Specifically, she
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assigns and argues that the district court erred when it overruled her motion to strike Shane’s
untimely answer and counterclaim. She also assigns and argues that the district court erred when
it sustained Shane’s motion for her to undergo a mental health examination pursuant to Neb. Ct.
R. Disc. § 6-335 and overruling her motion in limine to exclude the psychologist’s report and
testimony. Finally, she challenges the district court’s findings that Shane was not in contempt of
the prior order of the court and that Shane should not be required to pay her attorney fees.
Upon our review, we affirm the district court’s decisions in all respects.
BACKGROUND
Shane and Katie were married in October 2010. Two children were born of the marriage,
Reese, born in 2012, and Knox, born in 2015. The parties were divorced pursuant to an agreed
upon decree of dissolution entered by the district court on November 14, 2017. As part of the 2017
decree, Shane and Katie were awarded joint legal and physical custody of the children with
parenting time split 50/50. Shane’s weekly parenting time ran from 6:30 p.m. Sunday to 6:30 p.m.
Tuesday. Katie’s weekly parenting time began at 6:30 p.m. on Tuesday and ended at 6:30 p.m. on
Thursday. Weekend parenting time was alternated. In September 2018, the district court entered
an order approving a stipulated modification between Shane and Katie. The modification changed
the time for the parties’ weekly parenting time such that Shane had parenting time from 8 a.m. on
Monday to 8 a.m. on Wednesday. Katie had parenting time from 8 a.m. on Wednesday to 8 a.m.
on Friday. The parties continued to alternate weekends. In addition, the party who did not have
physical possession of the children had the right to telephone the children every day between 6:30
p.m. and 7:30 p.m.
In November 2019, the district court entered a second modification order following a trial
on a complaint to modify filed by Shane. The district court declined to modify either the parenting
time schedule or the award of joint physical and legal custody. However, as relevant to the present
appeal, the district court did find that the daily telephone calls were “problematic.” The district
court modified its prior order on telephone visitation to require that each parent would have a
minimum of two telephone calls with the children during periods when the other parent had 5
consecutive days of parenting time.
On May 29, 2020, Shane filed an ex parte emergency motion to enforce parenting time. In
the motion, he alleged that Katie attempted to deny his regular weekend of parenting time and his
summer parenting time, thus preventing him from taking the children on vacation. The district
court entered an order providing Shane with certain specified parenting time.
On September 2, 2020, Katie filed the present complaint for modification wherein she
alleged that a substantial and material change in circumstances existed affecting the best interests
of the children. She asserted that Shane failed to effectively communicate with her and delegated
his parental authority to his current wife, Haley Hays. Katie alleged that Shane refused to allow
Katie to communicate with Alexandria Osborn, the daycare provider that Shane used for the
children and encouraged Osborn to not share information about the children with Katie. Katie also
asserted that Shane repeatedly and continually took steps to alienate the children from Katie. She
alleged that Shane failed to provide a nurturing and appropriate environment for the children.
Based on these allegations, Katie requested that the parenting plan be modified to provide her with
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additional parenting time. She did not request any change to the court’s prior orders as to legal or
physical custody.
Also on September 2, 2020, Katie filed a verified motion for order to show cause. In
addition to restating many of the allegations contained in the complaint to modify, Katie alleged
that Shane and Haley disparaged and denigrated her by calling her names in the presence of the
children. Katie also alleged that Shane refused to pay his share of the children’s expenses for
medical care and extracurricular activities. The district court entered an order to show cause as to
why Shane should not be held in contempt.
On January 18, 2021, Shane filed his answer and counterclaim to Katie’s complaint for
modification. In his answer, Shane generally denied the allegations in Katie’s complaint for
modification. In his counterclaim he asserted that Katie’s complaint for modification and verified
motion for order to show cause were filed with unclean hands. He alleged that Katie intentionally
interfered with his parenting time and refused to allow the children to participate in extracurricular
activities. Although he essentially asserted that Katie’s actions were in contempt of the court’s
prior orders, he did not request the district court to find her in contempt. Shane instead requested
that he be awarded “primary custody” of the children, that Katie’s parenting time be restricted, and
that Katie be prohibited from “checking on” the children at daycare during Shane’s parenting time
and “showing up unannounced” at Shane’s home during his parenting time. Shane also requested
an order requiring Katie to attend counseling.
On January 22, 2021, Katie filed a motion to strike Shane’s answer and counterclaim on
the basis that such answer and counterclaim were untimely filed. In her motion, Katie specifically
requested that the answer and counterclaim be stricken or dismissed. In the alternative, Katie
requested that the trial be continued in order to allow her to conduct additional discovery regarding
the allegations contained in Shane’s filing. Shane objected to the motion to strike, generally noting
that through discovery he had notified Katie as to the reasons why he was seeking custody and the
reasons he believed Katie was unfit as a parent. It was his belief that Katie had been notified that
he was seeking custody and the reasons therefor.
A hearing on Katie’s motion to strike was held on January 28, 2021. Katie argued that she
was prejudiced by the untimely filing because Shane’s answer and counterclaim raised a number
of new issues that were not disclosed in discovery or depositions. Shane’s counsel asserted that
she forgot to file the answer and counterclaim, however, she also noted that the district court had
equitable powers to modify a parenting plan pursuant to the best interests of the children. Shane’s
counsel stated
[s]o regardless if this Court does or does not allow my client’s Answer and Counterclaim,
this Court is going to hear the same evidence that’s been provided to [Katie] and her
attorney as to why we object to the complaint as modified and are requesting changes to
be made. . . . If the Court is so inclined to grant time to [Katie] to, I guess, further depose,
further discover, whatever it is they think they need even though all evidence has been
provided to [Katie], my client is not objecting to a continuance of the trial.
At the close of the hearing, the district court explained that contrary to its normal practice, it had
set the trial date prior to the deadline for the responding party to file its answer and counterclaim
had passed. The district court explained that, as a result of this departure from normal procedure,
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no status hearing was set wherein it would normally catch procedural deficiencies well in advance
of trial. The district court concluded that Shane should have an opportunity to have the issues
raised in his answer and counterclaim heard. The court overruled the motion to strike and allowed
the untimely filing of the answer and counterclaim. The district court also continued the trial to
April 20, 2021, to allow Katie time to conduct further discovery and fully explore the matters
contained within the answer and counterclaim.
On February 4, 2021, Shane filed a motion for a § 6-335 exam specifically praying for an
order to require Katie to submit to a mental health evaluation. At the hearing on the motion, two
affidavits were received into evidence, one from Shane and one from Shane’s wife, Haley. The
district court also received into evidence Osborn’s deposition. In Shane’s affidavit, he asserted that
he had serious concerns for Katie’s mental stability. He alleged that she has a problem with alcohol
abuse and has exhibited signs of intoxication during telephone calls with the children. In addition,
he asserted that the reason that he opposed any change in parenting time was his concern for
Katie’s antagonistic and aggressive behavior. He believed that Katie’s mental health deteriorated
since 2018 when he began his relationship with Haley. Both Shane and Haley’s affidavits
described in detail a number of specific events in which there were conflicts between Katie and
Shane or between Katie and the children. Shane and Haley asserted that these behaviors were
caused by Katie’s mental health struggles. In her deposition, Osborn testified that she felt harassed
and threatened by Katie. She explained that there was one incident where Katie threatened to call
the Department of Health and Human Services because she would not communicate with Katie.
In another incident, Katie arrived at the daycare in an angry state such that it was disruptive to her
operation of the child care. Osborn believed that Katie was very aggressive in asserting her
frustrations.
Following a hearing on Shane’s motion for a § 6-335 exam, the district court granted
Shane’s request. The district court ordered that Katie submit to a mental health examination after
Shane submits to Katie the name, address, and professional credentials of the proposed mental
health professional. In addition, Shane was ordered to submit to a mental health examination if
Katie wished to request and pay for such an examination.
Dr. Gage Stermensky, a licensed psychologist who is board certified in biofeedback and
psychophysiological intervention, was selected to complete the mental health evaluation.
Stermensky’s report was completed and sent to Katie on April 18, 2021, 2 days prior to the
commencement of trial.
Katie filed a motion in limine on April 19, 2021, requesting that Stermensky’s testimony
and his report be excluded from the evidence at trial. Katie asserted that she had not received all
documents and records that Stermensky was provided for review. Katie further alleged that she
was misled by Shane’s counsel as to what records were provided to Stermensky. She asserted that
Stermensky relied on recordings of telephone calls between her and the children that she believed
were illegally obtained under state and federal law. In addition, she asserted that she did not receive
the report until 2 days before trial. She requested the court to either exclude Stermensky’s report
and testimony or, in the alternative, continue the trial so that she could have additional time to
review, prepare, and gather evidence. Shane objected to the motion in limine. He asserted that
Katie was notified in April 2018 that he would be recording telephone conversations between Katie
and the children. He noted that the recordings stopped in 2019 by agreement of the parties. He
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further noted that Stermensky stated that the recordings of these conversations were of poor quality
and, thus, difficult to discern. The district court overruled Katie’s motion in limine, but ordered
that Stermensky’s trial testimony not be given until either May 24 or 27, 2021, to give Katie
additional time to prepare.
We recount Stermensky’s testimony prior to addressing the other evidence received at trial.
Stermensky testified that in conducting his evaluations, he considers information from interviews,
collateral information, and psychological testing. He explained that he conducted a psychosocial
interview of Katie which covered various aspects of her psychosocial history, family history,
employment history, medical history, mental health history, substance abuse history, educational
history, and relationship history. The interview lasted approximately 1 hour 30 minutes. He
testified that he reviewed collateral records including Facetime recordings of telephone calls
between Katie and the children, affidavits, police reports, and daycare records. The police reports
that he reviewed were regarding Katie’s arrest for driving under the influence in 2017, but he noted
this charge was ultimately dismissed. Stermensky explained that he did not consider some of the
collateral information provided to him given that he could not independently substantiate its
veracity.
In the course of Stermensky’s testimony, he indicated that he diagnosed Katie with a
moderate alcohol use disorder. He based this diagnosis primarily on information he obtained
during his interview with Katie. Specifically, Stermensky cited to information received from Katie
that in high school, she was found guilty of being a minor in possession of alcohol. Despite this
conviction, Katie reported that her drinking escalated during her high school years as a result of
what she perceived to be a lack of supervision from her parents. During the interview, Katie
reported that she would drink alcohol 1 to 4 times per week when she first married Shane.
However, she reported that she had decreased her use of alcohol to drinking 1 to 2 drinks two
nights per week. Stermensky indicated that he also based his diagnosis of moderate alcohol use
disorder on collateral information he received, such as Katie’s arrest for driving under the influence
in 2017, her failure to pass a breath test during an orientation period for a job she had obtained at
a hospital, and a Facetime recording where it appeared that Katie may have been intoxicated when
talking to the children.
Stermensky testified that he also diagnosed Katie with unspecified personality disorder
based on the combination of the results of Katie’s clinical testing, her responses during the
interview, and his review of the collateral records. He observed that Katie possessed traits
associated with narcissistic, borderline, and histrionic disorders. He did not feel there were enough
traits found within any of those specific disorders to make a full diagnosis but found there was still
personality dysfunction as a result of these traits. He testified that he observed Katie to exhibit
entitlement behaviors and to possess a desire to have people comply with her expectations while
not believing that she had to follow the rules which applied to other people. He described her
condition to result at times in arrogant, haughty, and impulsive behavior. Stermensky
recommended that Katie undergo evidence-based personality disorder treatment and anger
management. He noted that she needed to develop responsibility and empathy. He also believed
Katie and the children would benefit from parent-child interaction therapy.
Outside of Stermensky’s testimony regarding Katie’s mental health, the remaining
evidence presented at the modification trial focused almost exclusively on the contentious nature
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of the relationship between Shane and Katie and the effects of that strained relationship on the
children. A major point of contention between Shane and Katie is the children’s extracurricular
activities. The evidence revealed that both children are involved in multiple activities.
According to Katie’s testimony, Shane routinely enrolls the children in extracurricular
activities without first consulting her. Then, if she opposed his decisions regarding the activities,
he would become angry. For example, Katie testified that Shane enrolled Reese in gymnastics
without her permission. Such activity took place in part during her parenting time. She explained
that “he just went up to the gymnastics place and signed her up and said she will be doing it on my
time, there’s nothing you can do.” According to Katie, Shane also enrolled the children in
swimming lessons without talking with her first and Shane continued to have Reese participate in
basketball over Katie’s objections. Katie testified that because the children might only attend the
activities during Shane’s parenting time, it seems that the children do not know “if they’re
supposed to tell me about [the extracurricular activities] sometimes.” Katie expressed that it would
be good for only one parent to have the “final say” in what activities Reese and Knox participate
in if she and Shane cannot come to an agreement.
Katie also presented evidence that she and Shane do not agree on how to balance the
children’s activities with needed discipline. Katie testified that she disallowed the children from
participating in activities as a punishment for misbehavior. However, according to Katie, when she
informed Shane about the punishment she wished him to continue, he responded that he would not
enforce her wishes during his parenting time. In contrast, Shane testified that Katie often used the
children’s activities as a weapon, threatening to withhold the children from their activities if she
was not permitted to speak to the children on the telephone as outlined in the parenting plan. Haley
testified that by the time of trial, Katie chose to no longer take the children to their activities during
her parenting time.
The parties also appear to disagree on what constitutes unacceptable behavior by the
children. Katie expressed concern about specific incidents wherein she believed a child had been
overly aggressive or hurtful to the other. Katie testified that when she attempts to communicate
with Shane about behavioral issues such as this, Shane denies that the behaviors occur when the
children are with him. Shane and Haley both testified that they have not observed the negative
behaviors that Katie reports to exist in her home. Shane explained that he believes the children’s
behavior is “normal” and does not believe that their behavior is “out of line.” He believes that
Katie’s descriptions of the children’s behavior are exaggerated and are made to show that
“something is wrong with the way [he is] parenting.”
Katie presented evidence that the children’s behavior worsened when the children returned
to Katie’s home after being with Shane. Katie Mueller has been the children’s nanny for the past
5 years when they are in Katie’s home. Mueller testified to her belief that the children’s behavior
is worse right after they return from Shane’s home. Similarly, Katie’s husband, Derek Smith,
testified that when the children return from Shane’s home, they are exhausted and require
additional attention. Derek corroborated Katie’s observations that Reese and Knox are sometimes
aggressive toward each other including hitting, pinching, and kicking each other.
Shane testified that Katie’s behavior at the children’s activities has become problematic.
Both parties routinely attend the children’s activities. Haley testified that she has observed Katie
interfere in the children’s activities by following them around and distracting them while an
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activity is in progress. This typically happens when the activity occurs during Shane’s scheduled
parenting time. To the contrary, according to Haley, when she and Shane attend the children’s
activities during Katie’s parenting time, they do not interact with the children, but rather simply
observe. Haley also testified that Katie and Derek often make it a point to sit close to them when
the activity falls on Shane’s parenting time creating tension. She believes that the children are
aware of this tension.
The parties also disagree on how to address the children’s mental health needs. Katie
believes that Shane prematurely ended Reese’s individual therapy sessions. Shane denied Katie’s
assertion. He explained that although he initially did not know that Reese was enrolled in therapy,
he allowed Reese to continue therapy weekly for approximately 1 year before Reese’s counselor
recommended that Reese no longer attend. Despite the counselor’s recommendation, Shane
continued to allow Reese to participate in therapeutic sessions. However, Shane testified that
currently, Reese’s counselor no longer wanted to have Reese as a patient until such time as Shane
and Katie improved their coparenting abilities. Katie testified that Knox has also been referred to
therapy but had not attended as a result of Shane’s objections. According to Katie, Shane
responded that he would only consider the children attending counseling if Katie independently
attended counseling. During the modification proceedings, Shane initially testified that he does
not believe that either Reese or Knox currently need therapy. However, after reading Stermensky’s
report, he later acknowledged that the children may benefit from therapy.
The parties have also had disagreements regarding deviations from the court ordered
parenting plan. For example, in November 2020, Shane and Haley had symptoms of COVID-19.
Shane contacted Katie to ask her if she wanted additional time with the children so they would not
get sick. He asked that the time he forwent be given back to him at some point. Katie agreed.
Although Katie offered Shane some make up parenting time for the time he lost, by the time of
trial, more than 5 months later, Shane had not received all of the days he missed. Another example
of the parties’ inability to be flexible with one another occurred in August 2020, when Katie was
required to go to Denver to give birth to her youngest child due to a complication. When she went
to Denver, Shane asked that Reese and Knox stay with him, but Katie denied his request. On the
other hand, Katie testified that she did not receive her extra parenting time over the summer as
delineated in the parenting plan. The parenting plan required her to inform Shane by a certain date
which days she wanted to exercise for her vacation. However, Shane testified that because Katie
informed him late as to what days she wanted, he did not consent to her having the extra days.
Shane also presented evidence as to instances where Katie interfered with or denied his
parenting time. Shane explained that he communicated with Katie about wanting the children to
attend a scheduled vacation with him, but he and Katie could not reach an agreement on this issue
without seeking involvement from the district court. In addition, Shane testified that Katie has
driven by his house unannounced to check on the children.
The children’s transitions between the parties’ homes have been particularly contentious.
In fact, Haley testified that she began to attend the exchanges because of how difficult the
transitions had become. Shane and Haley both testified that they have called law enforcement
multiple times to assist in parenting exchanges. Katie testified that Shane frequently yells at her
during these exchanges. According to Katie, at these exchanges, Shane would also allege that the
children were not sick and that Katie was drunk. She also testified that Shane would make threats
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toward the children. Haley testified that during an exchange prior to their extended summer
vacation time with the children, Katie simply refused to bring the children and Reese began to cry.
There was one particularly contentious exchange that occurred on December 18, 2020,
which was immediately before Shane was to have holiday parenting time with the children for 9
days. Katie testified that prior to the exchange, she attempted to discuss with Shane when she
would have telephone calls with the children during Shane’s holiday time with the children,
however, Shane did not respond. Shane testified that when he arrived at the exchange, Katie began
yelling at him demanding specific times that she would be allowed to talk to the children on the
telephone. Shane testified that Katie would not let the children get out of her vehicle until she
received the specific times to speak to the children and additional telephone calls. Haley began
recording the exchange because Katie was “completely crazy” and the recording was received into
evidence. The video does demonstrate that Katie is insistent on knowing when she can talk to the
children on the telephone and will not allow Shane to retrieve the children from her car until he
satisfies her demands. Shane does accuse Katie of being drunk and is seen on the video saying that
he is tired of her “bullshit.” Katie does not allow the children to leave the car until Shane has
obtained assistance from a police officer.
Katie contended that Shane worked with Osborn to ensure that Osborn did not provide
information about the children to Katie. The children have attended an in-home daycare center
owned and operated by Osborn during Shane’s parenting time since December 2018. Osborn
testified that Katie arrived at the daycare three or four times unannounced wanting to see Reese
and Knox. Osborn observed that Katie was upset during the times that she was at the daycare.
However, she conceded on cross-examination that these visits would last less than 10 minutes and
that Katie never raised her voice toward her. Although Osborn testified that Shane never explicitly
asked her to stop communicating with Katie, she independently decided to limit her
communication with Katie because she did not feel comfortable with her. Similarly, Shane denied
that he ever told Osborn not to speak with Katie regarding the children. However, he subsequently
clarified that he told Osborn that she should handle the situation with Katie however Osborn felt
was appropriate, but that if he were in her situation, he would not deal with her.
According to Katie, she wanted to speak with Osborn because of concerns she had been
made aware of, specifically about certain music being played at the daycare center, Knox being
made fun of, and someone sharing a picture of knives with Reese. According to Katie, she initially
attempted to speak to Shane about these issues but Shane denied that there was anything wrong.
She attempted to call Osborn but Osborn did not return her telephone call. Katie also attempted to
have an in-person meeting with Osborn but Osborn initially refused. Osborn ultimately agreed to
meet with Katie if Shane, Haley, and Derek were also present at the meeting. Prior to agreeing to
this meeting, Osborn testified that Katie threatened to contact the Department of Health and
Human Services. Osborn and Katie both testified that there were no resolutions to the issues that
Osborn and Katie had, even after this meeting. Following the meeting, Katie did agree that she
would notify Osborn before visiting the daycare, but Osborn testified that Katie has not honored
this promise.
Shane and Katie have also had conflicts related to medical appointments for the children.
Katie believes that it is important for one parent to have the “final say” with respect to medical
decisions and that she should be granted that power. Shane testified that these conflicts arose after
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his marriage to Haley. Haley is a nurse practitioner at an urgent care located near Shane’s house.
Shane testified that he takes the children to the urgent care due to its location and his familiarity
with the medical providers who work there. According to Shane, Katie is opposed to utilizing the
urgent care for the children’s medical needs. Shane testified about two specific incidents where
Katie’s behavior interfered with medical appointments for the children. Shane testified that he took
Knox to the urgent care when he thought that Knox had COVID-19. Katie showed up and “made
a big scene where it was so embarrassing and so uncomfortable” that Shane rescheduled the
appointment. In another incident, Shane took Knox to the urgent care for an x-ray. Katie acted
aggressively in the room during the x-ray. Finally, Shane testified that Katie does not always
inform him of medical appointments she schedules for the children.
The parties’ telephone calls with the children are another point of contention. As we
discussed above, the contentious nature of the telephone calls led the district court to modify the
decree to limit the number of calls between the children and the nonpossessory parent. In 2018,
both parties recorded telephone calls that occurred between the children and the other party.
However, this recording of telephone calls stopped in 2019. Derek testified that he is not allowed
to talk to the children on the telephone when they are with Shane. Shane explained that Katie either
denies or interrupts his telephone calls with the children. In addition, he observed Katie make
derogatory comments toward Haley and Shane during her telephone conversations with the
children. Haley testified that she and Shane encourage Reese and Knox to talk to Katie and Derek
on the telephone. She also testified that she observes the telephone calls between Shane and the
children when they are with Katie. She believes that Katie attempts to end the telephone calls
prematurely and the children’s engagement with Shane is typically poor.
Katie also presented evidence about Shane allowing the children to drive golf carts or four-
wheelers without supervision. Ricci Ayala, a waitress at the Mitchell Golf Course, testified that
she witnessed Reese driving a golf cart unsupervised with Knox as a passenger. Derek also testified
that he observed Reese driving a golf cart without any supervision. Shane acknowledged that when
he lived on the Mitchell Golf Course, Reese would drive around Shane’s property and play two of
the holes on the golf course. However, Shane denied that Reese drove the golf cart without his
supervision.
At the close of evidence, the district court entered an order which found that joint legal
custody remained in the children’s best interests and should therefore continue. However, the
district court directed that if the parties cannot reach agreement, Shane was granted the “final say”
with regard to decisions related to the children’s health and extracurricular activities while Katie
was granted the “final say” with regard to decisions involving education and religion. The district
court found that although communication between Shane and Katie needed to improve, they were
able to communicate when they are “forced” to communicate with each other. The district court
expressed concern that Shane and Katie would not include the other in major decisions if either
was given full legal custody. The district court reminded the parties that they are to discuss and
make decisions together regarding the children. It is only after a thorough discussion between the
parties results in no resolution that a party could invoke their final decisionmaking authority.
The district court also found that joint physical custody remained in the children’s best
interests. The district court noted that although Shane and Katie had a longstanding contentious
relationship which had become even more heated in recent times, the children still had a loving
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relationship with each parent and the parents love the children. The district court further noted that
it was concerned with Katie’s interactions with Osborn and Haley, but that those interactions alone
did not justify a change in the amount of parenting time either party would enjoy. However, the
district court found that a new parenting time schedule that would minimize the number of
transitions between the parties’ homes (and interactions of the parents) was in the best interests of
the children. The district court ordered that the parenting schedule be modified to alternating weeks
with the transition to take place every Monday at 7:30 a.m. During the school year, the possessory
parent will simply take the children to school at that time with the nonpossessory parent then
picking them up after school. The court noted that the new plan’s design was to reduce the
children’s exposure to continued disagreements of the parties. Telephonic parenting time for the
nonpossessory parent was ordered to occur on Tuesday and Thursday evenings at 7:30 p.m. The
court approved the parties agreed upon holiday parenting time schedule. The district court also
ordered each party to attend both individual and family counseling designed to improve
communication and reduce conflict between the parties.
The district court found that Katie and Shane were both frustrating each other’s parenting
time equally. The district court wrote “[w]hile this is certainly not acceptable both parties come to
this court with unclean hands seeking a finding of contempt. Neither party will be held in contempt
of court, however both parties are admonished to follow the parenting plan. . . .” With respect to
the requests for attorney fees, the district court found that each party was to pay their own attorney
fees.
Both parties filed motions to alter or amend the decision of the district court. The district
court did not alter its prior order, but did provide some clarification as to its provisions.
Katie appeals to this court from the district court’s order of modification.
ASSIGNMENTS OF ERROR
Renumbered and restated, Katie assigns and argues that the district court erred in denying
her motion to strike Shane’s untimely answer and counterclaim, in sustaining Shane’s motion for
a § 6-335 examination over her objection, and in overruling her motion in limine which sought to
exclude Stermensky’s report and testimony. Katie also assigns and argues that the district court
abused its discretion in modifying legal custody to give Shane the “final say” with regard to
decisions involving the children’s health care and extracurricular activities, in denying Katie’s
request to have increased parenting time, in declining to find Shane in contempt of court, and in
declining to award Katie attorney fees.
STANDARD OF REVIEW
Decisions regarding discovery are directed to the discretion of the trial court, and will be
upheld in the absence of an abuse of discretion. U.S. Bank Nat. Assn v. Peterson, 284 Neb. 820,
823 N.W.2d 460 (2012). The party asserting error in a discovery ruling bears the burden of
showing that the ruling was an abuse of discretion. Id.As a general rule, the granting or withholding of permission to file a late pleading rests in
the discretion of the trial court. Buffalo County. v. Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996).
Modification of a judgment or decree relating to child custody, visitation, or support is a
matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record,
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and will be affirmed absent an abuse of discretion. Windham v. Kroll, 307 Neb. 947, 951 N.W.2d
744 (2020).
A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and denying just results in matters
submitted for disposition. U.S. Bank Nat. Assn v. Peterson, supra.
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which (1) the trial
court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are
reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt
and of the sanction to be imposed is reviewed for abuse of discretion. Hossaini v. Vaelizadeh, 283
Neb. 369, 808 N.W.2d 867 (2012).
ANALYSIS
Katie’s Motion to Strike.
Katie asserts that her motion to strike and dismiss Shane’s answer and counterclaim should
have been granted as a matter of law because his answer and counterclaim were untimely filed.
She argues that she was prejudiced because she was forced to start over in her preparation for trial
on Shane’s counterclaim. Shane concedes that his answer and counterclaim were not timely filed.
But he asserts that Katie was not disadvantaged by the late filing and thus, was not harmed by the
district court’s decision overruling her motion to strike.
Neb. Ct. R. Pldg. § 6-1112(a) provides that “[a] defendant shall serve an answer within 30
days after being served with the summons and complaint or completion of service by publication.”
However, Neb. Ct. R. Pldg. § 6-1106(b) provides for the enlargement of such period after its
expiration as follows:
When by these rules or by a notice given thereunder or by order of court an act is required
or allowed to be done at or within a specified time, the court for cause shown may at any
time in its discretion (1) with or without motion or notice order the period enlarged if
request therefor is made before the expiration of the period originally prescribed or as
extended by a previous order, or (2) upon motion made after the expiration of the specified
period permit the act to be done where the failure to act was the result of excusable neglect.
The court may not extend the time for taking any action specified in any statute, except to
the extent and under the conditions stated in the statutes.
The Nebraska Supreme Court has not defined what “excusable neglect” means in the
context of § 6-1106(b)(2) but the Eighth Circuit and other federal courts have stated that the
determination of whether neglect is excusable “is an equitable one, taking account of all relevant
circumstances.” Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010). The
circumstances relevant to this equitable determination include “the danger of prejudice to the
[other party], the length of the delay and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable control of the movant, and whether
the movant acted in good faith.” Pioneer Investment Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993).
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Katie filed her complaint for modification on September 2, 2020. Shane filed his answer
and counterclaim asking for sole physical custody and restricted parenting time for Katie on
January 18, 2021. Katie filed a motion to strike Shane’s pleading that same day. Shane did not file
a motion for leave to file his answer and counterclaim out of time. However, in a hearing on Katie’s
motion to strike, Shane’s attorney asserted that due to her own oversight, an answer and
counterclaim had not been timely filed. She asserted that Katie would not be negatively impacted
by the late filing because the district court already possessed the necessary equitable powers to
determine custody and parenting time based on the pleadings before it and the best interests of the
children.
Shane’s attorney did not offer a reason for her failure to timely file the answer and
counterclaim other than inadvertent oversight. The question here is whether Katie was prejudiced
by the late filing. We cannot say that the district court abused its discretion in allowing Shane to
file his answer and counterclaim out of time. In so finding, we note first that the district court
continued the trial for over 2 months after the answer and counterclaim were filed to allow Katie
additional time for further discovery and preparation. We also note that the district court accepted
some of the responsibility for the late filing given its departure from normal procedure in setting
the case for trial before the deadline for filing the answer had passed. The court stated that as a
result of its actions, no status hearings were set at which the court and the parties would have
noticed sooner the lack of a responsive pleading having been filed by Shane. The bottom line of
the court’s holding was its desire that all issues existing between the parties be litigated in this
proceeding.
Even if Shane had not filed a late answer and counterclaim, a trial court has an independent
responsibility to determine questions of custody and parenting time of minor children according
to their best interests, which responsibility cannot be controlled by an agreement or stipulation of
the parties. Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018). A court is required to review
a parenting plan and determine if it meets the requirements of the Parenting Act and if is in the
best interests of the minor child or children. Id. Any evidence that Shane would have presented in
opposition to Katie’s request for modification would also support his answer and counterclaim.
Since the district court had an independent duty to fashion a parenting plan which is in the best
interests of the children and since Katie was granted additional time to prepare for any additional
issues raised in Shane’s pleadings, we find that no real prejudice was suffered by Katie as a result
of the late filing.
Finally, we note that there was no real harm to Katie. While there was a delay, the court
did not grant Shane the relief he requested in his counterclaim. Shane asked for sole physical and
legal custody, as well as restricting Katie’s parenting time. The district court did not grant these
requests.
We find no abuse of discretion in the district court’s decision to allow the late filing of
Shane’s answer and counterclaim and its denial of Katie’s motion to strike.
Shane’s Motion for Mental Health Examination.
Katie assigns and argues that the district court abused its discretion in sustaining Shane’s
motion for a § 6-335 examination over Katie’s objection. She asserts that Shane should have been
judicially estopped from moving for a § 6-335 exam because Shane represented to the court, during
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the hearing on Katie’s motion to strike, that all evidence in their possession had previously been
provided to Katie, and that the evidence that would be heard at trial would be the same, regardless
of whether his answer and counterclaim were allowed. She further asserts that even if her judicial
estoppel argument fails, the motion should have been overruled because Shane did not show “good
cause” for a mental health examination.
The doctrine of judicial estoppel holds that one who has successfully and unequivocally
asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a
subsequent proceeding. In re Loyal W. Sheen Family Trust, 263 Neb. 477, 640 N.W.2d 653 (2002).
The doctrine protects the integrity of the judicial process by preventing a party from taking a
position inconsistent with one successfully and unequivocally asserted by the same party in a prior
proceeding. Id. Whether judicial estoppel is applicable turns on whether the court has accepted
inconsistent positions from a party. Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009).
The requirement that the position be successfully asserted means that the party must have been
successful in getting the first court to accept the position. Id. And absent such acceptance, the
doctrine of judicial estoppel does not apply. Id. Judicial acceptance requires the court to adopt the
position urged by the party, either as a preliminary matter or as part of a final disposition.
We find that judicial estoppel does not apply in the present case. We first note that none of
the cases cited by Katie apply judicial estoppel to procedural matters such as whether discovery
has been completed. Katie asserts that it should apply herein because Shane, in opposition to
Katie’s motion to strike, stated that allowance of his answer and counterclaim would not require
any further discovery or production of evidence. Katie requested that if her motion to strike was
overruled, she wanted a continuance to conduct further discovery and further prepare for trial.
Shane’s counsel noted that he did not oppose such a continuance. When the district court overruled
the motion to strike, it granted Katie’s request for a continuance. The district court also noted that
it was allowing the answer and counterclaim to stand because of its own departure from normal
procedure that would have revealed the lack of a responsive pleading at a time well before trial.
Moreover, as we discussed above, in modification of child custody actions, the district court has
an independent duty to determine and order a parenting plan that is in the best interests of the
children. To find that Shane was precluded from conducting any further discovery leading to the
production of relevant evidence while Katie could do so would not serve the fact finding process
and serve the best interests of the children. Based on the record before us, we find no basis for
applying the doctrine of judicial estoppel.
Next, we turn to Katie’s argument that Shane failed to show good cause for his motion to
conduct a mental health examination.
Section 6-335(a) provides in relevant part:
When the mental or physical condition (including the blood group) of a party, or of a person
in the custody or under the legal control of a party, is in controversy, the court in which the
action is pending may order the party to submit to a physical or mental examination by one
or more physicians, or other persons licensed or certified under the laws to engage in a
health profession, or to produce for examination the person in his or her custody or legal
control. The order may be made only on motion for good cause shown and upon notice to
the person to be examined and to all parties and shall specify the time, place, manner,
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conditions, and scope of the examination and the person or persons by whom it is to be
made.
Generally the requirements of “in controversy” and “good cause” contained within § 6-335
are not satisfied by mere conclusory allegations or pleadings, but are fulfilled by a movant’s
affirmative showing that the condition to be verified by the requested examination, physical or
mental, is actually controverted and that good cause exists for ordering the examination. Huber v.
Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010). To obtain discovery under § 6-335, the requisite
showing does not require the movant to prove the movant’s case on the merits at an evidentiary
hearing, but may include a showing by an appropriate affidavit or other suitable information
presented to a court whereby the court can perform its function under § 6-335. Huber v. Rohrig,
supra. When requesting a physical or mental examination, a movant’s ability or inability to obtain
the desired information without the requested examination is relevant to a court’s decision whether
to order an examination under § 6-335(a). Huber v. Rohrig, supra.
In Huber v. Rohrig, supra, the Supreme Court found that the movant did not demonstrate
good cause for a psychological evaluation when the movant requested such examination after the
other party had already completed a neuropsychological examination which included a
psychological clinical interview. In addition, the Supreme Court found that the movant failed to
demonstrate any insufficiency in the medical and other reports supplied to the movant by the other
party because such information was relevant to the other parties’ cognitive abilities. Id.
In the present case, Katie does not contest that her mental health was in controversy but
argues that Shane failed to adequately demonstrate that there was good cause to order such a mental
health examination. We note that Katie offered no exhibits at the hearing that would demonstrate
that she had undergone any type of psychological assessment or evaluation that had been provided
in discovery. At the hearing, Shane provided his own affidavit and one authored by Haley detailing
concerning and erratic behaviors they had seen Katie exhibit. Haley’s affidavit also details her
training and experience in the area of mental health conditions which she has as a licensed nurse
practitioner. In addition, the deposition of Osborn demonstrated that Katie showed up at the
daycare in such an angry state that was so disruptive that she could not care for the other children
in her child care center. Based on the record before us, we cannot say that the district court abused
its discretion in finding that Shane demonstrated good cause for a § 6-335 mental health evaluation.
Katie’s Motion in Limine.
Katie asserts that with respect to his conclusions and diagnosis of her mental condition,
Stermensky relied in part on recordings of telephone and Facetime conversations between herself
and the children. She asserts that these recordings were made in violation of Nebraska statutes.
Katie asserts that because the recordings were illegally obtained, Stermensky’s opinions are tainted
and should not have been received and considered by the district court. Alternatively, Katie asserts
that Stermensky’s report and testimony should have been excluded because his report was
untimely disclosed to her. We address these arguments, in turn.
Under Neb. Rev. Stat. § 86-290(2)(c) (Reissue 2016), “it is not unlawful for a person not
acting under color of law to intercept a wire, electronic, or oral communication when such person
is a party to the communication or when one of the parties to the communication has given prior
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consent. . . .” Under the same set of statutes, “oral communication” means: “[a]ny oral
communication uttered by a person exhibiting an expectation that such communication is not
subject to interception under circumstances justifying such expectation but does not include any
electronic communication.” Neb. Rev. Stat. § 86-283 (Reissue 2016).
Even if we assume that Shane and Haley were not parties to the conversations, Katie did
not demonstrate that she had an expectation that the communication was not subject to Shane’s
monitoring and the circumstances certainly did not justify this expectation. The conversations
between Katie and the children occurred while the children were in Shane’s home apparently
utilizing Shane’s telephone while he was exercising his parenting time. The communications were
prearranged by the parties. According to Shane, Katie was notified that conversations between her
and the children would be recorded. Moreover, there was evidence that both parties had previously
recorded conversations between each other and the children. It was only after an agreement was
reached between the parties that such recordings ultimately ceased. Based on the evidence before
the court, we find no abuse of discretion by the district court in overruling Katie’s motion in limine
on the grounds that Stermensky reviewed and considered illegally recorded conversations between
the children and Katie.
Katie asserts, alternatively, that Stermensky’s report should not have been considered
because it was not timely disclosed to her. We find this assignment of error to be without merit.
Although we do not find a civil case on point, we note that in criminal cases, the Supreme Court
explained that when a continuance will cure the prejudice caused by belated disclosure, a
continuance should be requested by counsel and granted by the trial court. State v. Lotter, 255 Neb.
456, 586 N.W.2d 591 (1998). A continuance will not cure every instance of belated disclosure
such as in the case of lost or destroyed evidence or missing witnesses. Id.Katie received Stermensky’s report on April 18, 2021, one day after it was completed. The
following day, Katie filed her motion in limine to exclude the report and testimony of Stermensky,
or in the alternative to continue trial which was to start April 20, 2021. The district court ultimately
found that Stermensky’s testimony would not be heard until May 24, 2021. During this time,
Katie’s counsel was able to complete a deposition of Stermensky. Katie’s counsel also admitted
that she reviewed the collateral records that Stermensky relied upon in completing his report. Any
purported prejudice to Katie due to the timing of the report was cured when the district court
postponed Stermensky’s testimony to provide additional time to allow Katie to depose Stermensky
and complete discovery.
For the reasons set forth above, we find no abuse of discretion in the district court’s
decision to overrule Katie’s motion in limine.
Modification of Physical Custody.
Katie assigns and argues error with respect to the district court’s determination that the
parties should maintain joint physical custody. However, in her complaint to modify, Katie did not
request a modification of joint physical custody. Katie requested increased parenting time. Only
Shane requested a modification of physical custody. And he does not appeal. As such, we need not
address this assignment of error.
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Modification of Parenting Plan.
Parenting time 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. Winkler v. Winkler, 31 Neb. App. 162, 978 N.W.2d 346(2022). The best interests of the children are the primary and paramount considerations in
determining and modifying parenting time. Id. The right of parenting time is subject to continual
review by the court, and a party may seek modification of a parenting time order on the grounds
that there has been a material change in circumstances. Id.Under the circumstances of this case, we cannot say it was an abuse of discretion to modify
the parenting plan. The evidence adduced demonstrated constant conflict between Shane and
Katie. Many incidents involving conflict between the parties occurred in the presence of the
children. The court found that due to the continued deterioration of the relationship and
communication between the parties, a new plan that limited contact between the parties was needed
to serve the children’s best interests. Of most importance to the court was limiting the parties’
contact with each other while in the presence of the children. These conflicts had led to law
enforcement being contacted multiple times to assist in exchanges. The court’s response to the
parties’ inability to interact productively was not to take away parenting time from either party but
to minimize their time together. In so doing, the court reduced the transitions between the parties
to once per week and required that during most of the year, the parties need not be present together
during the transition, since one party would drop the children off on Monday mornings, and the
other would then pick the children up after school. The court also took steps to simplify telephone
visitation periods and eliminated the issues which previously existed surrounding summer
visitation, given the week on, week off schedule. We agree that all of the modifications made by
the district court serve the children’s best interests and were necessitated by a material change of
circumstances. We find no abuse of discretion in the district court’s modification of the parenting
plan.
Modification of Legal Custody.
Katie asserts that the district court erred in awarding Shane “final say” with respect to
decisions regarding the children’s health and extracurricular activities.
Legal custody focuses entirely on decisionmaking authority and is defined as the authority
and responsibility for making fundamental decisions regarding the child’s welfare, including
choices regarding education and health. State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933,
932 N.W.2d 692 (2019). Joint legal custody is the joint authority and responsibility for making
major decisions regarding the child’s welfare, while sole legal custody essentially establishes that
one party will have the final say in decisions. Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309(2021).
Appellate review of joint legal custody issues has often focused on the parties’ ability to
communicate. See, e.g., Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). However,
appellate courts review custody decisions for an abuse of discretion 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. State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d
208 (2016).
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In State on behalf of Maddox S. v. Matthew E., supra, this court affirmed the district court
maintaining joint legal custody despite the parents not being able to communicate effectively. The
child’s guardian ad litem testified that the parents were engaged in a power struggle where there
was an issue of who was in control and who had power. Id. The district court modified the
parenting plan to specifically divide joint legal custody responsibilities between the parties in a
manner to minimize contact and conflict between them. Id. We wrote that “[a]lthough still
encouraging mutual decision-making, the court’s specific division between the parties as to who
has final say on the larger child-rearing decisions splits the parenting ‘control’ and will hopefully
minimize conflict between the parties.” Id. at 520, 873 N.W.2d at 220.
In the present case, the district court clearly found that the parties cannot communicate
effectively. However, the district court still sought to encourage mutual decisionmaking because
of its concern that either parent would not include the other if given sole legal custody. As such,
the district court continued to require the parties to communicate and seek consensus on all major
decisions regarding the children. However, the court recognized that the “final say” had to be
apportioned between the parties in the event that they could not reach agreement. Pursuant to that
conclusion, the district court gave Shane final decisionmaking authority over health and
extracurricular activities and Katie final authority over decisions regarding education and religion.
Again, it is apparent that the district court in making its decision was seeking to minimize
the conflict between the parties for the sake of the children’s best interests. The court’s decision is
supported by the record. There was significant evidence that medical appointments were a part of
a larger power struggle between the parties of who had control over the children. Katie would
make medical appointments without involving Shane. Both parties sought to control which
medical providers the children would see. There was also testimony that Katie had been disruptive
when the children were taken to medical appointments by Shane. There was conflicting testimony
about why the children stopped counseling and whether further counseling was justified.
In addition, there was significant evidence that the parties disagreed about which activities
that the children should participate in. The undisputed evidence shows that Katie was willing to
withhold the children from their activities during her parenting time when she felt such
withholding served some purpose in the parties’ ongoing disagreements. As such, the court was
justified in granting Shane final say over activities and health care decisions. We find no abuse of
discretion in the court’s modification of legal custody.
Contempt.
Katie’s verified motion to show cause alleged multiple instances for which Shane should
be held in contempt for failing to follow the parenting plan. On appeal, Katie asserts that the district
court erred in not finding Shane in contempt for failure to follow the parenting plan regarding
parenting time. The district court found that Katie and Shane both attempted to find each other in
contempt and that both parties had frustrated the parenting time of the other. Accordingly, the
district court found that Katie and Shane both had unclean hands and declined to find either party
in contempt.
Under the doctrine of unclean hands, a person who comes into a court of equity to obtain
relief cannot do so if he or she has acted inequitably, unfairly, or dishonestly as to the controversy
in issue. Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280, 817 N.W.2d 758 (2012).
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Generally, conduct which forms a basis for a finding of unclean hands must be willful in nature
and be considered fraudulent, illegal, or unconscionable. Id.Katie alleged that Shane violated the parenting plan because he did not allow Katie to have
additional make-up summer parenting time for time she had lost. Shane asserted that Katie
submitted her proposed dates after the deadline set in the parenting plan, thus forfeiting her
extended parenting time. It was undisputed that Katie did not provide Shane with all of the make-
up parenting time he wanted for a period when he and Haley had COVID-19. In addition, it was
undisputed that Katie threatened to remove the children from extracurricular activities if she did
not receive her telephone calls. In short, the record makes clear that both parties looked for
opportunities to skirt the edges of their obligations under the parenting plan and relished the
opportunity to deny the other something that they wished to receive, whether that be parenting
time or the children’s involvement in activities deemed important for the children. The evidence
demonstrates that both parents at times have placed greater emphasis on winning a point against
the other than acting in the children’s best interests. As such, the court’s conclusion that both
parties had unclean hands as to their willingness to follow the parenting plan is supported by the
evidence. For these reasons, we find no clear error in the district court’s factual findings and no
abuse of discretion in the district court’s decision to decline finding Shane in contempt of the
court’s prior orders.
Attorney Fees.
Attorney fees and expenses may be recovered only where provided for by statute or when
a recognized and accepted uniform course of procedure has been to allow recovery of attorney
fees. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014). Customarily, attorney fees are
awarded only to prevailing parties or assessed against those who file frivolous suits. Id. A uniform
course of procedure exists in Nebraska for the award of attorney fees in dissolution and
modification cases. Id. Additionally, in dissolution cases, as a matter of custom, attorney fees and
costs are awarded to prevailing parties. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
Katie was not the prevailing party in either the modification or contempt action. Because
we affirm the district court’s decision, we find no abuse of discretion in the district court’s decision
not to award Katie attorney fees.
CONCLUSION
For the reasons set forth above, we affirm the district court’s decisions in all respects.
AFFIRMED.
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