Kee v. Gilbert , 32 Neb. Ct. App. 1 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/13/2023 09:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KEE V. GILBERT
Cite as 32 Neb. App. 1Paw Kee, appellee, v. Christian
L. Gilbert, appellant.
___ N.W.2d ___
Filed June 6, 2023. No. A-22-317.
1. Child Custody: Jurisdiction: Appeal and Error. The question whether
jurisdiction should be exercised under the Uniform Child Custody
Jurisdiction and Enforcement Act is entrusted to the discretion of the
trial court and is reviewed by an appellate court de novo on the record
for abuse of discretion.
2. ____: ____: ____. In considering whether jurisdiction exists under the
Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdic-
tional question that does not involve a factual dispute is determined by
an appellate court as a matter of law, which requires an appellate court
to reach a conclusion independent from the trial court.
3. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion.
4. Child Support: Appeal and Error. An appellate court reviews child
support determinations de novo on the record, but the trial court’s deci-
sion will be affirmed absent an abuse of discretion.
5. Paternity: Attorney Fees: Appeal and Error. An award of attorney
fees in a paternity action is reviewed de novo on the record to determine
whether there has been an abuse of discretion by the trial judge. Absent
such an abuse, the award will be affirmed.
6. Child Custody: Jurisdiction: Courts: Records. Neb. Rev. Stat.
§ 43-1235 (Reissue 2016) does not require a verbatim transcription of
the consultation between two courts after a hearing; rather, a sufficient
record of the courts’ posthearing consultation is made when the courts
enter orders memorializing the substance of their communication.
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KEE V. GILBERT
Cite as 32 Neb. App. 17. Child Custody. When deciding custody issues, the court’s paramount
concern is the child’s best interests.
8. Evidence: Appeal and Error. When evidence is in conflict, the appel-
late 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 the other.
9. Child Support: Appeal and Error. Whether a child support order
should be retroactive is entrusted to the discretion of the trial court,
and an appellate court will affirm its decision absent an abuse of
discretion.
10. Child Support: Taxation: Presumptions. In general, the custodial par-
ent is presumptively entitled to the federal tax exemption for a depen-
dent child.
11. Child Support: Taxation: Waiver. A court may exercise its equitable
powers and order the custodial parent to execute a waiver of his or her
right to claim the tax exemption for a dependent child if the situation of
the parties so requires.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Courtney R. Ruwe and Adam E. Astley, of Astley Putnam,
P.C., L.L.O., for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Christian L. Gilbert appeals the decision of the Lancaster
County District Court in a paternity action brought by Paw
Kee (Paw). The district court determined that Christian was the
father of Cylise Gilbert, awarded sole legal and physical cus-
tody of Cylise to Paw subject to Christian’s specified parenting
time, and ordered Christian to pay child support and attorney
fees. On appeal, Christian challenges the district court’s juris-
diction, its award of custody and parenting time, and its award
of child support and attorney fees. We affirm.
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Cite as 32 Neb. App. 1II. BACKGROUND
Paw and Christian, who never married, are the parents
of Cylise, born in 2016 in Iowa. Paw was originally from
Burma; she and Christian met through a job-training program
in Chadron, Nebraska. After Paw graduated from the program,
she moved to Iowa to live with Christian.
On January 9, 2020, Paw filed a complaint for paternity,
custody, and child support in the district court for Lancaster
County. In her complaint, Paw stated that she and Cylise
had been residents of Nebraska since she “fled her home in
Iowa where she resided with [Christian] to escape immedi-
ate risk of harm due to [his] mistreatment and abuse.” She
claimed that Nebraska had jurisdiction over this matter pur-
suant to Nebraska’s Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), Neb. Rev. Stat. §§ 43-1226 to
43-1266 (Reissue 2016 & Cum. Supp. 2022); she specifi-
cally pointed to § 43-1238(a). Paw sought a paternity order
establishing Christian as Cylise’s father; awarding her sole
legal and physical custody, subject to Christian’s parenting
time; determining child support and requiring Christian to pay
a percentage of any childcare expenses and medical, dental,
and vision costs not paid by insurance in accordance with
the Nebraska Child Support Guidelines; awarding her the
“deductions/exemptions/child care tax credit” for Cylise “each
and every year”; and awarding her attorney fees and costs.
Paw also sought a temporary restraining order to protect her
and Cylise from harassment and harm, noting that Christian
had a third degree domestic assault case pending in the dis-
trict court wherein she was the victim. On January 13, Paw
filed an ex parte motion for temporary custody, which was
granted that same day.
On January 23, 2020, Christian filed a motion to dismiss
for lack of jurisdiction under the UCCJEA. He claimed that
he filed a petition to establish paternity, custody, and child
support in an Iowa district court on December 17, 2019.
He alleged that Iowa was Cylise’s home state as defined
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Cite as 32 Neb. App. 1under the UCCJEA and that Iowa had not declined to exer-
cise jurisdiction.
A jurisdiction hearing and hearing on Christian’s motion
to dismiss was held in the Lancaster County District Court
on February 10, 2020, with Judge Richard Clogg from the
Iowa district court appearing telephonically. Details regard-
ing the hearing will be set forth as necessary in our analy-
sis. Following the hearing and a consultation between the
judges, the Lancaster County District Court entered an order
on February 14, stating the Iowa district court declined juris-
diction and, therefore, the Lancaster County District Court had
jurisdiction over the matter; the court overruled and denied
Christian’s motion to dismiss. That same day, a copy of the
Iowa court’s order was filed with the clerk of the Lancaster
County District Court wherein the Iowa court declined juris-
diction, noting that “a court with jurisdiction may decline to
act if another state is a more appropriate forum.” Christian’s
Iowa case was dismissed.
On May 8, 2020, the Lancaster County District Court entered
a temporary order based “on the agreement of the parties”
granting Paw physical custody of Cylise, subject to Christian’s
parenting time. Christian was to have parenting time every
other weekend from Friday at 5 p.m. until Monday before
noon; all pickups and drop-offs were to occur at Cylise’s
daycare in Lincoln, Nebraska, and Christian was responsible
for all transportation. Christian was also to have video visita-
tion with Cylise every Tuesday and Thursday evening, as well
as on Sunday evening on the weekends that he did not have
in-person parenting time. The temporary order was signed by
the court, and “[a]pproved as to form and content” by both par-
ties and their attorneys.
On December 11, 2020, Christian, now represented by new
counsel, filed a “Motion to Reconsider and Vacate, Motion
to Modify, and Objection to and Motion to Strike ‘Notice of
Trial.’” Christian essentially claimed that the district court
should vacate its previous orders because Nebraska lacked
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Cite as 32 Neb. App. 1jurisdiction. Alternatively, Christian suggested that “[a]ssum-
ing solely for the sake of argument that [Nebraska] had and has
jurisdiction under the UCCJEA to make a child custody deter-
mination,” then had the court known of events that occurred
since the temporary order was entered, the court would have
and now should award him temporary legal and physical cus-
tody. Following a December 18 hearing on Christian’s motion,
the court entered an order on March 15, 2021, overruling all
requested relief except Christian’s request “to Strike ‘Notice
of Trial.’”
Having been given leave to file his answer out of time,
Christian filed his answer and counterclaim on April 16, 2021,
wherein he admitted that he was Cylise’s father. In his counter-
claim, Christian requested that the district court decree him to
be Cylise’s father, award him sole legal and physical custody
of Cylise, adopt a parenting plan that served Cylise’s best
interests, order Paw to pay child support in accordance with
the Nebraska Child Support Guidelines and an equitable por-
tion of childcare expenses and necessary health care expenses
not covered by health insurance, and award him attorney fees
and costs. Christian also raised the affirmative defense of lack
of jurisdiction to Paw’s complaint.
Five days of trial took place over the course of several
months: July 22 and 23, August 31, and October 7, 2021, and
February 8, 2022. The parties stipulated that paternity was
not an issue and that Christian was Cylise’s father. The dis-
trict court accepted the stipulation. Paw (via an interpreter),
Christian, and several other witnesses testified, and numerous
exhibits were received into evidence. The evidence relevant
to the issues on appeal will be discussed as necessary in
our analysis.
On January 4, 2022, Christian filed an application for an
order to show cause, claiming that Paw was in contempt for
depriving him of 5½ hours of parenting time on December
24, 2021, and for not communicating directly with him that
day. A hearing on the order to show cause was held on
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Cite as 32 Neb. App. 1February 18, 2022. In its order entered on March 31, the dis-
trict court found that Paw’s violation of the temporary order
regarding parenting time was not willful and that Christian
failed to meet his burden of proof by clear and convincing
evidence. The court also found that the temporary order rec-
ommended, but did not require, the parties to communicate
directly and therefore, there was no violation of the temporary
order in that regard.
The district court entered its decree on March 31, 2022,
finding that Christian was Cylise’s father. The court found
that Christian committed domestic intimate partner abuse and
awarded Paw sole legal and physical custody of Cylise, sub-
ject to Christian’s specified parenting time. Christian was to
have regular parenting time every other weekend from Friday
at 5 p.m. to Sunday at 8 p.m., and summer parenting time
was to follow the regular parenting time schedule; a holiday
parenting time schedule was also established. Christian was
responsible for all transportation, and the parent not exercising
parenting time was allowed up to 10 minutes of daily tele-
phone contact with Cylise. Christian was ordered to pay $535
per month in child support commencing on April 1, 2022,
and retroactive from February 1, 2020. Paw was awarded the
dependency and tax exemption benefits for Cylise each year.
Christian was ordered to pay 64 percent of all nonreimbursed
reasonable and necessary health care expenses for Cylise after
the threshold amount of $250 per calendar year was met.
Christian was also ordered to pay 64 percent of all childcare
expenses incurred as a result of education or work, as well as
64 percent of Cylise’s activity and education expenses. The
parties were to utilize “AppClose” to discuss Cylise unless
an emergency arose. Finally, Christian was ordered to pay
$30,000 of Paw’s attorney fees and costs.
On April 1, 2022, Christian filed a motion for new trial,
a motion to vacate, and a motion to alter or amend judg-
ment. Following a hearing on those motions, the district court
entered an amended decree on April 21, wherein the court
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KEE V. GILBERT
Cite as 32 Neb. App. 1stated that “[t]he retroactive commencement of child sup-
port establishes an arrearage in the amount of $13,375.00,”
“and commencing April 1, 2022, [Christian] shall pay such
judgment in the amount of $300.00 per month until paid in
full.” The district court overruled Christian’s motions for
new trial and to vacate. The motion to alter or amend was
“sustained, in part, and overruled, in part, as reflected in this
Amended Decree.”
Christian appeals.
III. ASSIGNMENTS OF ERROR
Christian assigns eight errors, which we consolidate as fol-
lows: The district court erred in (1) exercising its child custody
jurisdiction and not making a record of its communication
with Judge Clogg, (2) awarding exclusive legal and physical
custody of Cylise to Paw and adopting and ordering its par-
enting plan, (3) refusing exhibit 36, (4) using its retroactive
and prospective child support determinations and awarding
Paw the exclusive entitlement to the income tax exemption
for Cylise, and (5) ordering Christian to pay attorney fees and
requiring them to be paid to Paw’s attorney.
IV. STANDARD OF REVIEW
[1] The question whether jurisdiction should be exercised
under the UCCJEA is entrusted to the discretion of the trial
court and is reviewed by an appellate court de novo on the
record for abuse of discretion. Hogan v. Hogan, 308 Neb. 397,
954 N.W.2d 868 (2021).
[2] In considering whether jurisdiction exists under the
UCCJEA, a jurisdictional question that does not involve a
factual dispute is determined by an appellate court as a matter
of law, which requires an appellate court to reach a conclu-
sion independent from the trial court. Hogan, supra.[3] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
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Cite as 32 Neb. App. 1discretion by the trial court, whose judgment will be upheld in
the absence of an abuse of discretion. Franklin M. v. Lauren
C., 310 Neb. 927, 969 N.W.2d 882 (2022).
[4] An appellate court reviews child support determinations
de novo on the record, but the trial court’s decision will be
affirmed absent an abuse of discretion. See State on behalf
of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 N.W.2d
222 (2011).
[5] An award of attorney fees in a paternity action is
reviewed de novo on the record to determine whether there has
been an abuse of discretion by the trial judge. Absent such an
abuse, the award will be affirmed. Cross v. Perreten, 257 Neb.
776, 600 N.W.2d 780 (1999).
V. ANALYSIS
1. Jurisdiction
Christian assigns that the district court erred in exercising
its child custody jurisdiction because Iowa was Cylise’s home
state and Iowa did not properly decline to exercise its child
custody jurisdiction. Christian further claims that the district
court erred by not making a record of its communication with
Judge Clogg from Iowa.
(a) UCCJEA
Section 43-1238 of Nebraska’s UCCJEA states in rele-
vant part:
(a) Except as otherwise provided in section 43-1241
[temporary emergency jurisdiction], a court of this state
has jurisdiction to make an initial child custody determi-
nation only if:
(1) this state is the home state of the child on the date
of the commencement of the proceeding or was the home
state of the child within six months before the commence-
ment of the proceeding and the child is absent from this
state but a parent or person acting as a parent continues to
live in this state;
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Cite as 32 Neb. App. 1(2) a court of another state does not have jurisdiction
under subdivision (a)(1) of this section, or a court of the
home state of the child has declined to exercise jurisdic-
tion on the ground that this state is the more appropriate
forum under section 43-1244 [inconvenient forum] or
43-1245 [reason of conduct], and:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
a significant connection with this state other than mere
physical presence; and
(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and per-
sonal relationships;
(3) all courts having jurisdiction under subdivision
(a)(1) or (a)(2) of this section have declined to exercise
jurisdiction on the ground that a court of this state is the
more appropriate forum to determine the custody of the
child under section 43-1244 or 43-1245[.]
....
(c) Physical presence of, or personal jurisdiction over,
a party or a child is not necessary or sufficient to make a
child custody determination.
(Emphasis supplied.) See, also, § 43-1243 (simultaneous
proceedings).
Section 43-1235 states:
(a) A court of this state may communicate with a court
in another state concerning a proceeding arising under
the [UCCJEA].
(b) The court may allow the parties to participate in the
communication. If the parties are not able to participate
in the communication, they shall be given the opportunity
to present facts and legal arguments before a decision on
jurisdiction is made.
(c) Communication between courts on schedules, cal-
endars, court records, and similar matters may occur
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Cite as 32 Neb. App. 1without informing the parties. A record need not be made
of the communication.
(d) Except as otherwise provided in subsection (c) of
this section, a record shall be made of a communication
under this section. The parties shall be informed promptly
of the communication and granted access to the record.
(e) For the purposes of this section, record means
information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retriev-
able in perceivable form.
We note that Iowa’s version of the UCCJEA can be found in
Iowa Code Ann. § 598B (West 2020).
(b) Hearing and Orders
A hearing on Christian’s motion to dismiss for lack of
jurisdiction was held in the Lancaster County District Court
on February 10, 2020, with Judge Clogg from the Iowa dis-
trict court appearing telephonically. Paw was present with her
Nebraska counsel. Christian was present with his Nebraska
counsel, and his Iowa counsel appeared telephonically. When
Judge Clogg noted that Paw did not have counsel in Iowa,
her Nebraska counsel stated that she was also licensed in
Iowa and that she would enter “essentially a limited appear-
ance in the Iowa case” at that point because Paw “didn’t want
to retain counsel in Iowa until there was a determination as
to jurisdiction.”
Paw’s counsel made argument as to why the case should
be heard in Nebraska, including, but not limited to, the fact
that Paw is the only legal parent of the child; Paw came to
Nebraska in September 2019 because of an abusive relation-
ship with Christian; Christian had a pending Nebraska case for
domestic assault of Paw; Christian had the financial resources
to defend his case, whereas Paw had limited funds; and the
child had daycare and family in Nebraska and had Medicaid
in Nebraska.
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Cite as 32 Neb. App. 1Christian’s counsel argued that Iowa was the child’s home
state and that the case should be heard in Iowa. Counsel stated
that Christian had signed a paternity acknowledgment in
Iowa, the child was born in Iowa and lived with both parties
in Iowa until October 2019, Christian assisted Paw with her
move to Nebraska in October, and the domestic violence issue
occurred shortly thereafter in Nebraska and Christian was
currently on diversion. Counsel stated that 2 weeks after Paw
moved to Nebraska, she texted Christian to come get Cylise
because she did not want him anymore, so Christian came
and got him. Cylise lived in Iowa from mid-October 2019 to
January 14, 2020, which is the date that law enforcement in
Iowa took the child from preschool. Counsel further stated
that Christian filed a petition to establish paternity, custody,
and support in Iowa on December 17, 2019, and while Paw
received constructive notice, she was not formally served.
Paw’s counsel responded that Paw never had constructive
notice; that the child did not live in Iowa after mid-October
2019, but, rather, the child went back and forth between the
parents; that Christian refused on several occasions to let
Paw know where the child was; and that Christian repeatedly
told Paw that she had no rights because she is from a differ-
ent country.
After hearing arguments from both parties, the Lancaster
County District Court noted the UCCJEA envisioned that the
judges from both states consult and make a determination on
jurisdiction, and he asked whether Judge Clogg was available
to stay on the phone for consultation, to which Judge Clogg
replied, “Yes.” Counsel for the parties were asked whether they
had any objection to that procedure, and counsel for both par-
ties stated, “No, Your Honor.” The Lancaster County District
Court adjourned the hearing but said it would stay on the
phone with Judge Clogg and then let counsel know as soon as
a decision was made.
On February 14, 2020, the Lancaster County District
Court filed an order stating that a hearing was held on
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Cite as 32 Neb. App. 1Christian’s motion to dismiss and the telephonic hearing was
had with Judge Clogg of the Jasper County, Iowa, District
Court. The order stated, “The Jasper County, Iowa District
Court has declined jurisdiction . . . finding that Jasper County,
Iowa is an inconvenient forum”; “[a] copy of the order from
the Jasper County, Iowa District Court will be filed with
the Clerk of the District Court in this case.” Therefore, the
Lancaster County District Court concluded that it had juris-
diction over the matter and overruled and denied Christian’s
motion to dismiss. That same day, a copy of the Iowa court’s
order was filed with the clerk of the Lancaster County District
Court. The Iowa order recounted that a hearing was held with
the parties and their counsel; that after the hearing, the courts
conferred regarding jurisdiction; and that it was declining
jurisdiction because another state was a more appropriate
forum. Christian’s Iowa case was dismissed.
A temporary order “on the agreement of the parties” was
entered on May 8, 2020, awarding Paw physical custody of
Cylise and Christian parenting time every other weekend.
On December 11, 2020, nearly 9 months after the jurisdic-
tion issue was decided, Christian, now represented by new
counsel, filed a motion asserting that the district court should
vacate its earlier orders because Nebraska lacked jurisdiction.
Christian claimed that Iowa’s declination of jurisdiction (1)
was void because it had not acquired personal jurisdiction over
Paw in its case and (2) was not properly based on Nebraska
being a more convenient forum because relevant factors were
not considered and because the parties were not allowed to
submit information on the relevant factors. Christian further
argued that assuming for the sake of argument that Nebraska
had jurisdiction, temporary custody should have been awarded
to Christian.
In its order filed on March 15, 2021, the Lancaster County
District Court overruled Christian’s “Motion to Reconsider
and Vacate, Motion to Modify.” The court determined that
it had subject matter jurisdiction and could exercise that
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Cite as 32 Neb. App. 1jurisdiction under the UCCJEA; that Iowa, the child’s home
state, declined its jurisdiction because it found that Nebraska
was the more appropriate forum; and that the Iowa order was
not void for lack of personal jurisdiction because “Iowa’s ver-
sion of the UCCJEA expressly says that personal jurisdiction
over a party is not necessary to make a child-custody deter-
mination” and Iowa did have personal jurisdiction because
Paw’s attorney entered a limited appearance for her in the
Iowa case for purposes of determining which court would
exercise jurisdiction. The court also found that it could not
review alleged errors committed by the Iowa court regard-
ing that court’s consideration of statutory factors. Finally, the
court concluded that changing temporary custody was not in
Cylise’s best interests.
(c) Nebraska Has Jurisdiction
There is seemingly no dispute that Iowa was Cylise’s home
state. However, Nebraska had jurisdiction to make the initial
child custody determination in this case because Iowa declined
to exercise jurisdiction. See § 43-1238(a). Christian contends
that Iowa did not “actually” decline jurisdiction because its
order stated only that it “should” decline its authority. We are
not persuaded by Christian’s argument. The Iowa order states,
in relevant part:
Iowa Code section 598B.207 provides that a court
with jurisdiction may decline to act if another state is
a more appropriate forum. In taking into account the
relevant factors, including those listed in the statute, the
court finds that the Iowa district court should decline
its authority to decide this case in keeping with section
598B.207.
IT IS THEREFORE ORDERED that this case is dis-
missed, without prejudice, at [Christian’s] costs.
As noted by Paw, the Iowa court “dismissed the case, which
is an act terminating the Court’s jurisdiction.” Brief for
appellee at 22 (emphasis in original). A reading of the Iowa
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Cite as 32 Neb. App. 1court’s order shows that it declined jurisdiction because another
state was a more appropriate forum.
Just like he argued to the district court in his December
2020 motion to reconsider and vacate, Christian once again
argues that Iowa’s declination of jurisdiction was void because
it had not acquired personal jurisdiction over Paw in its case.
And like the district court, we find that the Iowa order was not
void for lack of personal jurisdiction, because Iowa’s version
of the UCCJEA expressly says that personal jurisdiction over a
party is not necessary to make a child custody determination.
See Iowa Code Ann. § 598B.201(3) (West 2020) (“[p]hysical
presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child-custody determi-
nation”). See, also, § 43-1238 (nearly identical provision in
Nebraska statute). Additionally, Paw’s attorney entered a lim-
ited appearance for her in the Iowa case for purposes of deter-
mining which court would exercise jurisdiction. And, as noted
by Paw, “[she] is the only party who has standing to assert a
defect in process or service of process on her.” Brief for appel-
lee at 24 (emphasis omitted).
Finally, Christian argues that the Lancaster County District
Court erred in not making a record of its communication with
Judge Clogg because no bill of exceptions was made of their
telephonic communication. Section 43-1235(b) provides that
the court of this state may allow the parties to participate in
the communication with the court in another state concern-
ing proceedings arising under the UCCJEA, but if the parties
are not able to participate in the communication, they must
be given the opportunity to present facts and legal arguments
before a decision on jurisdiction is made. Section 43-1235(b)
was satisfied in this case when a hearing was held in the
Lancaster County District Court on February 10, 2020, with
Judge Clogg from the Iowa district court appearing telephoni-
cally, where both parties were present with counsel represent-
ing them in both states, and where the parties were given the
opportunity to present facts and legal arguments regarding
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Cite as 32 Neb. App. 1jurisdiction; a bill of exceptions was made of the forego-
ing hearing.
Christian claims that a bill of exceptions was also required
to be made of the private telephonic consultation between the
Lancaster County District Court judge and Judge Clogg that
took place after the hearing. However, Christian points to no
authority requiring a verbatim transcription of the judges’
posthearing consultation. We note that § 43-1235 provides
that with the exception of communication between courts
on schedules, calendars, court records, and similar matters,
a “record shall be made” of a communication between the
courts concerning a proceeding arising under the UCCJEA,
and “[t]he parties shall be informed promptly of the com-
munication and granted access to the record.” § 43-1235(d).
And as set forth previously, a “record means information
that is inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable
form.” § 43-1235(e). Section 43-1235 mirrors Unif. Child
Custody Jurisdiction and Enforcement Act (1997) § 110, 9
(part IA) U.L.A. 497 (2019). The comment to § 110 states in
relevant part:
This section does require that a record be made of
the conversation and that the parties have access to that
record in order to be informed of the content of the
conversation. The only exception to this requirement
is when the communication involves relatively incon-
sequential matters such as scheduling, calendars, and
court records. Included within this latter type of com-
munication would be matters of cooperation between
courts under Section 112. A record includes notes or
transcripts of a court reporter who listened to a confer-
ence call between the courts, an electronic recording of
a telephone call, a memorandum or an electronic record
of the communication between the courts, or a memo-
randum or an electronic record made by a court after
the communication.
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Cite as 32 Neb. App. 1Unif. Child Custody Jurisdiction and Enforcement Act (1997),
supra, comment, 9 (part IA) U.L.A. at 498 (emphasis sup-
plied). If “notes” by a court reporter, or a memorandum made
by a court “after the communication,” can constitute a “record,”
then a verbatim transcription is clearly not required. Id.
[6] Here, both judges entered orders recounting that a hear-
ing was held with both courts and the motion to dismiss was
argued. The bill of exceptions from the hearing noted that the
judges were going to stay on the phone for consultation and
that neither party objected to that procedure. The Iowa order
also noted that after the telephonic hearing, both courts con-
ferred regarding jurisdiction. The orders from both courts also
stated that Iowa was declining jurisdiction, because there was
a more convenient or appropriate forum. The orders of the
courts memorialized the substance of their communication, and
the orders therefore sufficiently constituted “information that
is inscribed on a tangible medium or that is stored in an elec-
tronic or other medium and is retrievable in perceivable form.”
§ 43-1235(e). We find that § 43-1235 does not require a verba-
tim transcription of the consultation between two courts after
a hearing; rather, a sufficient record of the courts’ posthearing
consultation is made when the courts enter orders memorial-
izing the substance of their communication.
For the foregoing reasons, we find that Nebraska properly
exercised jurisdiction in this case.
2. Custody and Parenting Time
Christian claims that the district court erred in awarding
legal and physical custody of Cylise to Paw. He argues that
the court’s custody determinations were based on findings that
were contradicted by the evidence and were a complete misap-
plication of the law. He further argues that the district court did
not provide him enough parenting time with Cylise and should
not have made him responsible for all transportation.
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Cite as 32 Neb. App. 1(a) General Principles of Law
[7] When deciding custody issues, the court’s paramount
concern is the child’s best interests. Smith v. King, 29 Neb.
App. 152, 953 N.W.2d 258 (2020). The best interests inquiry
has its foundation in both statutory and case law. Neb. Rev.
Stat. § 43-2923(6) (Reissue 2016) provides that in determining
custody and parenting arrangements:
[T]he court shall consider the best interests of the minor
child, which shall include, but not be limited to, consid-
eration of . . . :
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if
of an age of comprehension but regardless of chrono-
logical age, when such desires and wishes are based on
sound reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member . . . ; and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
Other pertinent factors include the moral fitness of the child’s
parents, including sexual conduct; respective environments
offered by each parent; the age, sex, and health of the child
and parents; the effect on the child as a result of continuing
or disrupting an existing relationship; the attitude and stabil-
ity of each parent’s character; and parental capacity to provide
physical care and satisfy educational needs of the child. Robb
v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
Domestic intimate partner abuse means an act of abuse and
a pattern or history of abuse evidenced by one or more of the
following acts: physical or sexual assault, threats of physical
assault or sexual assault, stalking, harassment, mental cruelty,
emotional abuse, intimidation, isolation, economic abuse,
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Cite as 32 Neb. App. 1or coercion against any current or past intimate partner, or an
abuser using a child to establish or maintain power and control
over any current or past intimate partner, and, when they con-
tribute to the coercion or intimidation of an intimate partner,
acts of child abuse or neglect or threats of such acts, cruel
mistreatment or cruel neglect of an animal, or threats of such
acts, and other acts of abuse, assault, or harassment, or threats
of such acts against other family or household members. See
Neb. Rev. Stat. § 43-2922(8) (Cum. Supp. 2022).
When a court is required to develop a parenting plan,
Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) permits limita-
tions to parenting time or other access for a parent if the
preponderance of the evidence demonstrates the parent has,
among other things, “committed child abuse or neglect,”
committed “domestic intimate partner abuse,” or “interfered
persistently with the other parent’s access to the child.” If a
parent is found to have engaged in such activity, “limits shall
be imposed that are reasonably calculated to protect the child
or child’s parent from harm.” Id. Further, the limitations per-
mitted by § 43-2932 include, but are not limited to, “alloca-
tion of sole legal custody or physical custody to one parent”;
“[s]upervision of the parenting time, visitation, or other access
between a parent and the child”; “[e]xchange of the child
between parents through an intermediary or in a protected
setting”; “[r]estraints on the parent from communication with
or proximity to the other parent or the child”; “[d]enial of
overnight physical custodial parenting time”; and “[a]ny other
constraints or conditions deemed necessary to provide for
the safety of the child, a child’s parent, or any person whose
safety immediately affects the child’s welfare.” The parent
found to have engaged in the behavior specified in subsec-
tion (1) of § 43-2932 has the burden of proving that legal or
physical custody, parenting time, visitation, or other access
to that parent will not endanger the child or the other parent.
§ 43-2932(3).
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Cite as 32 Neb. App. 1(b) Evidence at Trial
(i) Christian’s Testimony
Christian, who was 24 years old at the time of trial, testi-
fied that he met Paw at a job-training program in Chadron,
Nebraska, in 2014 when he was 17 years old; she was 19
years old at the time. Paw was originally from Burma, and he
helped her learn English and tutored her. Christian finished
the program in February 2016 and moved back to Iowa to
start working as a carpenter. Paw graduated from the program
in May and moved to Iowa to live with Christian. Cylise was
born later that year. Christian worked from 6 a.m. to 2:30
p.m. Monday through Friday. Paw stayed home with Cylise,
but Christian “had a major role in taking care of Cylise after
work” because Paw would “lock herself in the [bed]room” and
“do her own thing” because she had been with Cylise all day.
Christian took care of Cylise’s needs from 2:30 p.m. to 6 a.m.
On weekends, they either spent time with Christian’s family
or traveled to see Paw’s family in Lincoln. Christian made all
of Cylise’s doctor appointments and attended all appointments
with Paw because she still had a language barrier.
In November 2017, Christian was injured at work but con-
tinued working light duty. Paw started working outside of the
home in the spring of 2018, when Cylise was approximately
18 months old. She worked second shift, from 2 or 3 p.m.
until 10 or 11 p.m. and had “mandatory Saturdays most of the
time.” Christian stayed home with Cylise when Paw worked
second shift. She eventually ended up switching to first shift,
and they hired a family friend to babysit Cylise. Both par-
ties worked the same shift for about 5 weeks, but starting
in October, Christian’s employer paid him “to stay home”
while they went through the workers’ compensation settlement
process, so Christian was able to care for Cylise; Christian
accepted a workers’ compensation settlement a little over a
year later, in November 2019.
Christian testified that there were physical altercations
with Paw during their relationship. Christian said that Paw
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Cite as 32 Neb. App. 1slapped him across the face when he was holding Cylise,
who was 2 weeks old at the time. Then, during the summer
of 2017, Christian and Paw were arguing while he was driv-
ing them and she “was slapping and trying to punch me in
the side of the head”; Cylise was in the car at the time. After
that, there were “[m]ore than 20” times that Paw slapped him
through September 2019; she used a closed fist on a “[c]ouple
occasions” and kicked him “a handful of times.” Christian
denied ever slapping, pushing, or hitting Paw, or throwing any
objects at her during that same timeframe.
Christian stated that Paw’s friend August Moo (August) and
her two children came to live with them in March 2019 and
stayed for 5 months. Christian had an affair with August during
that time.
On October 4, 2019, Christian and Paw traveled to Lincoln
with Cylise so that they could help Paw’s mother look at
a house that was for sale. On the morning of October 5,
Christian “woke up . . . to Paw . . . going through [his] phone.”
Christian said Paw “locked herself in the bathroom and when
[he] knocked on the door, she opened the door, grabbed [him]
by [his] shirt, pulled [him] into the bathroom, followed by a
punch in the face” and then asked him why August was mes-
saging him. After a discussion, Paw forgave Christian, and
they were going to “work through it.” However, later that day,
Paw called him a liar, said he cheated on her and she did not
want to be with him, and said he needed to take Cylise and
go back to Iowa. Christian took Cylise back to Iowa and did
not see Paw again until October 21 at her mother’s apartment
in Lincoln.
On October 21, 2019, Christian and Cylise traveled to
Lincoln after receiving messages from Paw’s relative.
Christian said he thought he and Paw “were basically going
to have a mediation with the family talking about our relation-
ship and possibly getting back together.” When he arrived,
he had a family friend wait with Cylise, who was sitting
in Christian’s car. Christian went inside the apartment. He
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Cite as 32 Neb. App. 1said that when Paw saw that he was there, “before any conver-
sation started she just started saying something to her mother
in their language and she got on the phone and walked away
and she came to me and started pushing me and hitting me
and telling me that I needed to leave”; Christian said he tried
to restrain her so that she would stop hitting him and told her
he was going to leave. Christian started to leave the apart-
ment and saw “cop lights outside the apartment” and “two
officers walking up to the apartment.” After speaking with the
officers, Christian was arrested and taken to jail. Christian’s
brother bailed him out of jail the next day, then they got
Cylise from Paw’s mother and went back to Iowa; a condition
of Christian’s bond was that he have no contact with Paw. As
a result of the incident, Christian was charged with domestic
assault of Paw, and he ultimately completed a pretrial diver-
sion program in “late 2020.”
Christian denied ever reaching a custody or parenting time
agreement with Paw wherein the parties would alternate time
with Cylise every 2 weeks. However, on November 8, 2019,
Paw picked Cylise up for a 2-week “visit,” and then Christian
and his mother picked Cylise up in Lincoln at the end of those
2 weeks. Christian contacted an attorney in Iowa on December
6 to pursue custody of Cylise, and counsel advised Christian
to not let Cylise leave Iowa. Counsel then filed a custody
lawsuit in Iowa in mid-December. Paw’s next in-person con-
tact with Cylise was on January 14, 2020, when she came to
Christian’s parents’ home with Iowa law enforcement and an
ex parte custody order from Nebraska. Christian showed the
officer the document his lawyer gave him, but the officer said
the Nebraska order controlled, and Paw ended up taking Cylise
back to Nebraska.
The stipulated temporary custody order was subsequently
entered on May 8, 2020, after which Christian was allowed
parenting time every other weekend and video chats. Christian
stated that the video chats were generally “very unproduc-
tive” because Cylise was distracted, other children were in
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Cite as 32 Neb. App. 1the room and taking the phone trying to speak to Christian,
and Paw “would cut off the phone early.” During in-person
parenting time, Cylise’s behavior “was very poor” and he told
Christian he did not have to listen. Additionally, Cylise was
always “covered in little bed bug bites” and his complexion
“was very dirty”—he had eczema that could be controlled
with a daily application of cream. Christian took Cylise to
the doctor multiple times to get him checked out and to get
more cream.
Christian believed that it was in Cylise’s best interests for
the district court to award sole legal and physical custody to
him, and he submitted a proposed parenting plan to the court.
Christian believed he could effectively set aside any differ-
ences with Paw in order to coparent Cylise and stated that he
had been trying to do so ever since the lawsuit was filed, but
that she had not reciprocated. Christian stated that Cylise had a
support system in Iowa and loved being around family.
Christian testified that August and her two children moved
in with him around March 2020. He and August had a baby
later in 2020 and were expecting another baby in the fall of
2021. Their home has four bedrooms, and Christian was in
the process of putting in egress windows to get two additional
bedrooms in the basement up to code.
(ii) Paw’s Testimony
Paw testified that she and Christian were living in Iowa
when Cylise was born in 2016. Paw said that she was the
one who primarily took care of Cylise. Paw started working
after Cylise turned 1 year old, and she and Christian hired a
family friend to care for Cylise when they both worked. At
some point, Christian became unemployed. When Paw got
home from work, Christian would go out with his friends
“[m]ost of the times.” Paw stated that she and Christian
took Cylise to doctor appointments together because she did
“not know how to speak English that much.” In February
or March 2019, August moved into the parties’ home with
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Cite as 32 Neb. App. 1August’s two children, and sometimes Paw took care of
those children.
Although she could not remember the month, Paw testi-
fied that sometime in 2019, Christian accused her of cheating
on him. Christian also told Paw, and she believed him, that
because she was an immigrant, if they broke up and she fought
for custody, she would not even have a “50/50” chance and
would probably end up going back to the refugee camp.
Paw stated that on October 5, 2019, the parties were in
Lincoln visiting her mother when Paw found out Christian had
been cheating on her. Paw slapped Christian’s face, he pushed
her and yelled at her, and he locked her in the bathroom. Paw
was “mad” and “really angry” and told Christian to take Cylise
and go back to Iowa, but she stayed in Lincoln. Paw acknowl-
edged that on October 5, she told Christian’s stepmother that
she wanted Christian to have custody of Cylise and that she
did not even want to have “50/50” custody. Paw said the par-
ties ended their relationship and she moved to Lincoln because
Christian was “controlling, abusive, and cheating.” Prior to
moving, Paw did not report any abuse, nor did she tell other
people about the abuse.
The next time that Paw saw Christian was at her mother’s
apartment in Lincoln on October 21, 2019. She said that
the parties were inside and “[Christian] asked me to move
. . . and I didn’t move so he pushed me and we had a con-
flict,” and Paw injured her right elbow. Paw’s family members
called the police, and Christian was arrested. Cylise, who
was in Christian’s car during the incident, stayed with Paw
after Christian was arrested but was picked up by Christian’s
relatives the next day and taken back to Iowa. Later, after her
coworkers asked her about her elbow injury, Paw posted a pic-
ture of the injury on a social media website on November 1 and
said it was from cooking, even though that was not true.
After Paw moved to Lincoln, she and Christian reached an
understanding that they would alternate parenting time every
2 weeks. However, when Paw went to pick Cylise up from
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Cite as 32 Neb. App. 1Christian in Iowa on December 27, 2019, they were not there.
Paw filed her complaint on January 9, 2020, and asked for tem-
porary custody. She was not aware of Christian’s custody case
in Iowa and was never served with his complaint.
Under the stipulated temporary order, Christian picks Cylise
up from daycare every other week on Friday at 5 p.m. and
drops him off at daycare on Monday at noon. During holidays
or if there was bad weather, Paw gave Christian extra time.
When Cylise returns from parenting time with Christian, Cylise
sometimes acts like a “bully” to other children; the interpreter
explained that the term in the Burmese language usually means
he wants to be in charge over the children. Cylise has also
had online communication with Christian since it was court-
ordered in May 2020.
Paw testified that Cylise was “well and he is happy” since
being in Nebraska. Paw’s relatives, friends, and “supports”
are in Nebraska. She believed that she provided a stable home
for Cylise. They moved into a house in November 2019, and
six other people currently live in the home with them. Cylise
was enrolled to start kindergarten in Lincoln for the 2021-22
school year. Paw wanted the parenting time changed so that
Cylise is returned on Sunday evenings once school starts. Paw
did not think that Cylise should move to Iowa with Christian
because Christian has a “temper issue,” an “anger issue,” and
Paw does not want him “yelling at the kids.” Paw believed that
she and Christian are able to coparent and talk to one another.
She also believed that it would be good if they could make
decisions for Cylise together, but if they could not agree, she
wanted the court to decide for them or she wanted to make the
final decision.
(iii) Other Witnesses’ Testimony
Mayme Myint (Mayme), Paw’s sister, testified that when
Paw and Christian were in a relationship, he was “very con-
trol [sic] with [Paw],” he argued “every little thing,” and
he sometimes called Paw a “bitch.” When asked if she ever
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Cite as 32 Neb. App. 1heard Paw talking poorly about Christian, Mayme responded,
“No.” Mayme stated that Paw did most of the parenting of
Cylise when the parties were in a relationship. Mayme cur-
rently sees Paw and Cylise multiple times each week. Cylise
has a clean place to live with space to play.
When asked if Christian ever threatened her family, Mayme
responded, “Yes.” She explained, “[Christian] said [Paw]
would go to jail for two year [sic] and we have to pay his —
his Iowa lawyer fee and both here and he said [Paw] slander
[sic] his name and that it [sic] can go to jail for three months.”
And “he said [Paw] is not a citizen so it can be a differ-
ent charge.”
Leslie Gilbert (Leslie), Christian’s stepmother, was asked
which of the parties exercised a greater portion of the parental
responsibilities for Cylise from the time of his birth through
the end of September 2019. Leslie felt that Christian was
more involved day to day in making sure Cylise was fed,
bathed, clothed, and changed. She observed that there was
affection between Christian and Cylise, that they played and
did activities together, and that Christian was able to redirect
Cylise’s behaviors.
During Christian and Paw’s relationship, Leslie observed
arguments between them, but she never observed physical
violence. On October 22, 2019, Paw contacted Leslie to let
her know that Christian had been arrested after they got into
an argument; Paw was willing to tell the police that it was
both their faults, because she did not want Christian to go to
jail. Leslie told Paw that she was “going to see what’s going
on,” and “[i]f I can bail him out, that’s what I’m going to do.”
Leslie’s son was able to bail Christian out of jail, and Paw
allowed Cylise to go back to Iowa. Leslie continued to have
daily contact with Paw via text messages or video calls; the
daily contact was still occurring at the commencement of trial.
On December 27, 2019, Leslie texted Paw when she found
out that Paw was not allowed to pick Cylise up in Iowa,
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Cite as 32 Neb. App. 1and Leslie offered to take Cylise to see Paw. Leslie cares
about Paw and cares that they have a good relationship.
August testified that she has known Paw since they went to
high school together in Thailand, and they reconnected via a
social media website in the United States. August and two of
her children temporarily lived with Paw, Christian, and Cylise
in their Iowa home from March to August 2019. August did not
observe any arguments or physical altercations between Paw
and Christian while she was living with them. August stated
that when she was living with them, Christian did more of the
feeding, bathing, and grooming of Cylise than Paw. Paw and
Christian took care of August’s children when she worked, and
August trusted Paw to take care of her children.
August testified that she and Christian started a relation-
ship in July 2019, she moved out of Paw and Christian’s home
in August, and she stopped communicating with Christian in
October. In October, Paw took to social media to accuse August
of being the person Christian was “cheating on her with.” In
private online messages with Paw, contained in exhibit 34,
August said that she was not the only woman he cheated on her
with. August also said that she had been pregnant, “he” pushed
her and she fell and could not breathe, she had blood all over
herself, and she “took some medicine that I should take so I
loss [sic] that child.” During questioning, August stated that the
“he” in exhibit 34 was Christian, but that she made the incident
up because Paw had “destroyed my character on social media.”
During his testimony, Christian denied pushing August down
and causing a miscarriage.
August stated that Paw sent her a private message say-
ing that she did not want anything to do with Christian and
that she wanted to “[s]tart . . . over” without Christian and
Cylise. August resumed communicating with Christian in
mid-January 2020, and she and her two children moved back
into his home in February. She currently lived with Christian,
their child (born later in 2020), and her two other children;
Cylise also lives with them during Christian’s parenting
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Cite as 32 Neb. App. 1time. August was currently pregnant with her and Christian’s
second child when the trial commenced. When asked if she
had any hesitancy in leaving her children with Christian,
August responded, “No.”
(c) District Court’s March 31, 2022, Decree
The district court found that Paw’s testimony was credible,
whereas Christian’s and August’s testimony was not credible.
The court found that Cylise had primarily resided with Paw
for 2 years and was thriving. Paw and Cylise had a strong
bond and a good relationship. He was enrolled in school, was
healthy, and had his daily needs met. The court stated that
while Paw’s living arrangement was not perfect, it provided
greater stability for Cylise, and that she could meet his ongo-
ing developmental needs.
The district court stated that Christian spent a considerable
amount of time discussing his parenting after Cylise’s birth
but focused less on his current parenting. The court stated
that Christian’s testimony generally disputed Paw’s testimony
regarding the care of Cylise after his birth and during times
when neither parent was working; the court found “the facts
on each [party’s] parenting are as testified to by [Paw].” The
court noted that Christian disputed the allegations of abuse,
but that he acknowledged past physical confrontations with
Paw and an October 2019 incident of domestic assault, even
though he blamed Paw for the incident.
The district court stated that the evidence at trial showed
communication between the parties remained difficult, there
was unresolved parental conflict, and “[t]he tumultuous rela-
tionship between the parties includes frequent arguments.” The
court found that “[m]ost concerning was [Paw’s] testimony
regarding the physical and emotional abuse she suffered from
[Christian],” in particular the assault in October 2019, and
that Christian “has repeatedly tried to convince her that she
has no rights to her child because of her refugee status.” The
court found Paw’s testimony about Christian’s abuse to be
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Cite as 32 Neb. App. 1credible and a cause for concern. The court found that it was
in Cylise’s best interests that the parties “have less contact
with each other, not more.” The court found that Christian had
committed domestic intimate partner abuse and that he did
not meet his burden to prove that legal or physical custody,
parenting time, visitation, or other access to Cylise would not
endanger the child. The court found that Paw and Cylise may
be adequately protected from harm by the limits the court
imposed in the parenting plan.
The district court awarded Paw sole legal and physical
custody of Cylise, subject to Christian’s specified parent-
ing time. Christian was to have regular parenting time every
other weekend from Friday at 5 p.m. to Sunday at 8 p.m., and
summer parenting time was to follow the regular parenting
time schedule; a holiday parenting time schedule was also
established. He was also awarded up to 10 minutes of daily
telephone contact with Cylise when he was not exercising
parenting time.
Christian argues that the district court’s custody determina-
tion rested entirely on its finding of domestic intimate partner
abuse and that it was Paw, not Christian, who committed
domestic intimate partner abuse. Initially, we note that domes-
tic intimate partner abuse was not the sole reason for the
court’s custody determination. The court also considered the
parties’ parenting history and current circumstances and found
that Paw’s home provided greater stability for Cylise.
[8] As to the domestic intimate partner abuse, there was
conflicting evidence in the record. Christian testified to sev-
eral instances of abuse by Paw through September 2019. Paw
testified that she and Christian got into a physical altercation
after she found out that that he was cheating on her. She also
testified that Christian was abusive and controlling during
their relationship, pushed her and caused her to injure her
elbow, and told her that she had no rights to Cylise because
she was an immigrant and that if she fought for custody,
she would probably go back to a refugee camp. Mayme also
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Cite as 32 Neb. App. 1testified regarding Christian’s threats that Paw would have to
go to jail and have to pay his attorney fees. Christian denied
all of this. However, when evidence is in conflict, the appel-
late 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 the other. Lindblad v. Lindblad,
309 Neb. 776, 962 N.W.2d 545 (2021). Additionally, Christian
was arrested and charged with domestic assault following the
October 2019 incident with Paw, and he subsequently com-
pleted a pretrial diversion program. The physical incident,
along with the threats (made to Paw and her family) regarding
Paw’s immigration or refugee status in the event of a custody
dispute, satisfied the pattern of conduct necessary for a find-
ing of domestic intimate partner abuse.
Based on our review of the record, we cannot say that the
district court abused its discretion in awarding sole legal and
physical custody of Cylise to Paw. Nor can we say that the
court abused its discretion in awarding Christian parenting
time every other weekend from Friday at 5 p.m. to Sunday at
8 p.m., daily telephone contact, and specified holiday parent-
ing time. Although Christian argues that he should have been
awarded parenting time for “a majority of the summer,” as
Paw agreed this was a possibility in her testimony, we cannot
say the court abused its discretion by ordering that summer
parenting time follow the regular parenting time schedule,
particularly given Cylise’s young age and the court’s concerns
related to the domestic intimate partner abuse. We also find no
abuse of discretion in the court’s decision to make Christian
responsible for all transportation.
We note that Christian also claimed that the district court
abused its discretion in refusing to receive exhibit 36, text
messages alleged to be between Paw and Christian. The dis-
trict court’s basis for refusing this exhibit was that Christian
did not identify it in his pretrial memorandum, something
Christian said was a “typographical error.” We find no abuse
of discretion in the court’s decision to refuse an exhibit that
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Cite as 32 Neb. App. 1the other party was not made aware of ahead of time. See
Furstenfeld v. Pepin, 23 Neb. App. 155, 869 N.W.2d 353(2015) (where Nebraska Evidence Rules commit evidentiary
question at issue to discretion of trial court, appellate court
reviews admissibility of evidence for abuse of discretion).
3. Child Support and
Tax Exemption
(a) Child Support
Christian claims that the district court erred in both its
retroactive and prospective child support determinations. He
argues that by ordering retroactive child support, the court
effectively rewrote the stipulated May 8, 2020, temporary
order “in which Paw . . . implicitly agreed to no child sup-
port pending final judgment, and failed to account for the
fact that Christian was responsible for all transportation in
order to exercise his parenting time.” Brief for appellant at
36. He further argues that he does not have the ability to meet
both his prospective and retroactive child support obligations.
Additionally, the prospective child support order does not
account for the fact that Christian will be responsible for all
transportation costs.
In its child support calculation, the district court attributed
a monthly gross earned taxable income of $1,816.53 to Paw
and of $3,853.20 to Christian, with each having “1.5 [e]xemp-
tions.” Neither party disputes the attributed incomes.
[9] The temporary order dated May 8, 2020, was agreed
upon by the parties. It determined temporary custody and par-
enting time, as well as stated that Christian was responsible for
all transportation. The temporary order was silent as to tempo-
rary child support. Christian acknowledges:
It is of course not unusual for a court to order a father of
a child born out of wedlock to pay retroactive child sup-
port in a paternity action. See, e.g., Henke v. Guerrero,
13 Neb. App. 337 (2005). That is because children born
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Cite as 32 Neb. App. 1out of wedlock are entitled to the same support as chil-
dren born in wedlock. Id.Brief for appellant at 37. However, he claims it is “unprece-
dented in a case such as this where the father had, irrespective
of a formal adjudication of paternity, already supported the
child prior to the commencement of the action.” Id. (emphasis
omitted). While it is true that Christian supported Cylise prior
to the commencement of the action, there is no evidence of
support once Paw commenced the action in January 2020.
And contrary to Christian’s assertion, there is no evidence
that Paw “implicitly stipulated to no temporary child support,
vis-a-vis the May 8, 2020” temporary order, or that no support
was ordered because he was responsible for all transporta-
tion. Id. at 37. We find that the district court did not abuse its
discretion in ordering retroactive support from February 2020.
Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015)
(whether child support order should be retroactive is entrusted
to discretion of trial court, and decision will be affirmed
absent abuse of discretion).
Christian also argues that he cannot afford to pay both pro-
spective child support ($535 per month) and retroactive child
support ($300 per month), but the district court specifically
stated that it considered his ability to pay. We note that in
his testimony, Christian testified that he received a lump-sum
workers’ compensation settlement at the end of 2019. He said it
was a $113,000 settlement, and he ultimately received $76,000
to $78,000 after attorney fees. We find no abuse of discretion
in the court’s award of retroactive child support.
As to Christian’s argument that the prospective child sup-
port order does not account for the fact that Christian will be
responsible for all transportation costs, we note that he did not
ask the district court for a deviation for such costs.
(b) Tax Exemption
[10,11] Christian claims that the district court erred in
awarding Paw the exclusive entitlement to the income tax
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Cite as 32 Neb. App. 1exemption for Cylise every year. Christian contends that the
entitlement should have been allocated equally since he is
required to provide all transportation and pay retroactive child
support and attorney fees. The child dependency exemption
is entrusted to the discretion of trial courts. See Anderson v.
Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015). A tax depen-
dency exemption is an economic benefit nearly identical to an
award of child support or alimony. Id. In general, the custodial
parent is presumptively entitled to the federal tax exemption
for a dependent child. Id. But a court may exercise its equi-
table powers and order the custodial parent to execute a waiver
of his or her right to claim the tax exemption for a dependent
child if the situation of the parties so requires. Id. We find no
abuse of discretion in the district court’s decision to award the
income tax exemption for Cylise to Paw.
4. Attorney Fees
Christian contends that the district court erred in requiring
him to pay Paw’s attorney fees and in requiring the attorney
fees to be paid directly to Paw’s attorney.
Christian argues that an award of attorney fees made in
favor of a litigant belongs to the litigant and not to the attorney
who performed the services. We note that in its order, the dis-
trict court stated, “Judgment is entered against [Christian] and
in favor of [Paw] in the amount of $30,000.00 for [her] attor-
ney fees and costs incurred herein.” It then set out the method
of payment, wherein it said that Christian was to pay $500 per
month to Paw’s counsel through the district court clerk. Paw
was awarded attorney fees and judgment was entered “in favor
of [Paw]”; we find no error in this regard. We now turn to the
award of attorney fees in general.
Paw requested that Christian pay her attorney fees and
costs, and her attorney’s affidavits were received into evi-
dence. The affidavits stated that the attorney fees and expenses
are “fair, necessary, and reasonable,” and each stated that
counsel was forced to perform additional legal work due to
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Cite as 32 Neb. App. 1Christian’s continuous use of delay tactics. Although each
affidavit states that it contains an itemization, each contains
only an invoice. The invoice dated July 23, 2021, is for attor-
ney fees totaling $36,672.50, plus expenses totaling $365.41.
Another invoice, dated February 7, 2022, is for an additional
$11,977.50 in attorney fees and $118.83 in expenses incurred
since July 23, 2021. A third invoice, dated February 18, 2022,
shows an additional $2,170 in attorney fees had been incurred;
the affidavit noted in part that counsel “[had] been forced to
perform additional legal services as a result of [Christian’s]
Application for Order to Show cause filed in bad faith and in
a frivolous manner.”
Christian testified about his attorney fees as well. He said
that his previous attorney in Nebraska billed him approxi-
mately $24,000 and that his current attorney has billed him as
well. His current attorney’s affidavits were received into evi-
dence and show that from November 18, 2020, to October 6,
2021, Christian was billed $25,051.44, which included $91.14
in expenses; an additional $1,200 in attorney fees was incurred
from October 7, 2021, through February 8, 2022, for 4 hours
of trial; $1,200 in attorney fees and $18.62 in expenses had
been incurred December 24, “202[1],” through February 17,
2022; and counsel estimated an additional $300 in attorney
fees would be incurred to “[a]ttend/conduct hearing on order to
show cause” on February 18.
The filing of an affidavit or presentation of other evidence
will always be the preferable way to support the award of
attorney fees, but if the contents of the record show the
allowed fee not to be unreasonable, then that fee would not be
untenable or an abuse of discretion. See Garza v. Garza, 288
Neb. 213, 846 N.W.2d 626 (2014).
In this case, the district court stated that the affidavits
of Paw’s counsel contained invoices, not itemization, and
that although a detailed itemization may not be specifi-
cally required, it would have assisted the court in determin-
ing whether the larger fee that was requested was fair and
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Cite as 32 Neb. App. 1reasonable. The court said it considered the relevant factors
and ordered Christian to pay $30,000 of Paw’s attorney fees
and costs.
Christian claims he cannot afford to pay attorney fees. But,
as noted by Paw, Christian testified to receiving a large work-
ers’ compensation settlement. And while Christian claims that
the fees were unreasonable, we note that both parties incurred
significant attorney fees over the course of this case and that
the attorney fees incurred by Paw were no more than those
incurred by Christian. We find no abuse of discretion in the
district court’s award of attorney fees.
VI. CONCLUSION
For the reasons stated above, we affirm the district court’s
amended decree dated April 21, 2022.
Affirmed.