Smith v. King ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/24/2020 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
SMITH v. KING
Cite as 29 Neb. Ct. App. 152
Ashley R. Smith, appellee, v.
Gerald E. King, Jr., appellant.
___ N.W.2d ___
Filed November 24, 2020. No. A-19-999.
1. Child Custody: Appeal and Error. An appellate court reviews child
custody determinations de novo on the record, but the trial court’s deci-
sion will normally be upheld absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Contracts: Compromise and Settlement. A settlement agreement is
subject to the general principles of contract law.
4. ____: ____. To have a settlement agreement, there must be a definite
offer and an unconditional acceptance.
5. 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.
6. 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.
7. Paternity: Child Custody: Visitation: Moot Question. Any issues
regarding temporary custody and parenting time become moot upon
entry of the decree of paternity establishing permanent custody and par-
enting time.
8. Contracts: Parties: Intent. To create a contract, there must be both an
offer and an acceptance; there must also be a meeting of the minds or a
binding mutual understanding between the parties to the contract.
9. Contracts: Parties. A binding mutual understanding or meeting of the
minds sufficient to establish a contract requires no precise formality
or express utterance from the parties about the details of the proposed
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
agreement; it may be implied from the parties’ conduct and the sur-
rounding circumstances.
10. Contracts: Parties: Intent. The determination of the parties’ intent to
make a contract is to be gathered from objective manifestations—the
conduct of the parties, language used, or acts done by them, or other
pertinent circumstances surrounding the transaction.
11. Contracts: Parties. A fundamental and indispensable basis of any
enforceable agreement is that there be a meeting of the minds of the
parties as to the essential terms and conditions of the proposed contract.
12. Compromise and Settlement. An alleged oral compromise and settle-
ment agreement not made in open court is unenforceable where it is in
violation of the statute of frauds or in violation of a court rule requiring
all stipulations and agreements of counsel or parties to a suit to be in
writing, signed by the parties or their attorneys.
13. ____. A settlement agreement made in open court on the record, agreed
to by all of the parties to the litigation and approved by the court,
is enforceable.
14. Attorney and Client: Compromise and Settlement. Although lawyers
retain apparent authority to make procedural and tactical decisions
through the existence of the attorney-client relationship, a lawyer cannot
settle a client’s claim without express authority from the client.
15. ____: ____. Where there has been nothing beyond a mere employment
or retainer of the lawyer to represent the client in a cause and the lawyer
has acquired no other authority to enter into a settlement (such as acqui-
escence in open court), if the lawyer seeks to enter a settlement, the
opposing party should ascertain whether the lawyer has received actual
authority from the client to take such action.
16. Attorney and Client: Compromise and Settlement: Appeal and
Error. Disputes over a lawyer’s authority to settle are factual issues to
be resolved by the trial court; however, an appellate court will not set
aside a trial court’s factual findings regarding settlement disputes unless
such findings are clearly erroneous.
17. Trial: Evidence: Appeal and Error. The reopening of a case to receive
additional evidence is a matter within the discretion of the district
court and will not be disturbed on appeal in the absence of an abuse of
that discretion.
18. Trial: Time. In a case tried to the court without a jury, a motion for
specific findings of fact must be made before final submission of the
case to the court.
19. Child Custody. When deciding custody issues, the court’s paramount
concern is the child’s best interests.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
SMITH v. KING
Cite as 29 Neb. Ct. App. 152
20. Child Support: Rules of the Supreme Court. A trial court has the
authority to order a parent to pay the categories of expenses speci-
fied in Neb. Rev. Stat. § 42-364.17 (Reissue 2016), in addition to the
monthly child support obligation calculated under the guidelines.
Appeal from the District Court for Douglas County: Gary
B. Randall, Judge. Affirmed as modified.
Sandra Stern for appellant.
Chris Pomerleau, of Nebraska Legal Group, for appellee.
Moore, Chief Judge, and Bishop and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Gerald E. King, Jr., appeals from the decree of paternity
entered by the Douglas County District Court which granted
Ashley R. Smith primary physical custody of their two chil-
dren, subject to Gerald’s parenting time of every other weekend
and one evening on the “off” week. Gerald assigns numerous
errors related to the temporary hearing and order, the amount
of parenting time he received in the decree, and the award of
attorney fees to Ashley. He also challenges the district court’s
decision to not grant his in forma pauperis (IFP) request for
transcription of court hearings or, alternatively, to not order
Ashley to pay for the same so that he could adequately prepare
for his motion for new trial. We affirm as modified.
II. BACKGROUND
Gerald and Ashley were in a relationship for a number of
years, but never married. During the course of their relation-
ship, they had two children: a son, Cipher King, born in 2005,
and a daughter, Phoenix King, born in 2011. The parties ended
their relationship in 2014 or 2015, and they proceeded for
some time without court involvement regarding custody and
child support. Ashley ultimately filed a complaint for establish-
ment of paternity, custody, and support in 2017.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
SMITH v. KING
Cite as 29 Neb. Ct. App. 152
1. Initial Pleadings and Temporary
Hearing and Order
On June 8, 2017, Ashley filed a complaint for establishment
of paternity, custody, and support. She alleged that Gerald was
the father of Cipher and Phoenix. Ashley sought sole legal and
physical custody of the children, and she asked that child sup-
port be ordered in accordance with the Nebraska Child Support
Guidelines. She also asked that Gerald be required to pay her
attorney fees.
After a September 1, 2017, hearing on temporary matters
at which Gerald appeared pro se and Ashley appeared with
counsel, the district court entered an order on September 7.
The court determined that Gerald was the children’s father.
Ashley was awarded temporary custody of the children; how-
ever, Gerald was awarded parenting time “every other weekend
from [Friday] after school, or 3:00pm, whichever is earliest,”
through Sunday at 7 p.m., and he was also awarded the “‘off’
Thursday evening from after school, or 3:00pm, whichever is
earliest through 8:00pm.” Gerald was ordered to pay child sup-
port in the amount of $706 per month, beginning September 1.
He was also ordered to pay 40 percent of any noncovered med-
ical expenses after Ashley had paid the first $480 per calendar
year on behalf of the child and 40 percent of any work- and
education-related childcare expenses.
On March 8, 2018, Gerald, now with counsel, filed an
answer and “cross-complaint” wherein he acknowledged his
paternity and sought joint legal and physical custody of the
children, with equal parenting time for the parties. He asked
that child support be ordered in accordance with the Nebraska
Child Support Guidelines. On March 30, Gerald filed a motion
for temporary orders seeking equal parenting time pending
trial. On June 6, he filed a motion asking the district court
to set a trial date and to award him summer parenting time
pending the trial. And on June 12, he filed a motion to amend
the temporary child support order retroactive to September
1, 2017. According to the “Judges Notes” appearing in our
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
transcript, the district court denied any further temporary hear-
ings pending trial.
On August 2, 2018, Ashley filed a contempt action against
Gerald for failure to follow the September 2017 temporary
order regarding parenting time and child support. The resolu-
tion of this action does not appear in our record.
2. Trial Begins
Trial began on September 28, 2018, and continued on
October 1. Both parties appeared with counsel. Several wit-
nesses testified, and numerous exhibits were received into
evidence.
According to Ashley’s testimony, she and Gerald were in
a relationship on and off for 11 years. They stopped living
together in October 2015, but Gerald believed it was 2014.
Prior to when they stopped living together, Ashley was the
primary caretaker for the children. She fed them, bathed them,
helped them with their schoolwork, and provided the majority
of their transportation. Ashley was also paying for all of the
childcare costs and children’s activities. However, according to
Gerald’s testimony, they shared parenting and household duties
and he also paid for household expenses; he even stated that
when Phoenix was born, he was the primary caretaker because
he was not working at the time.
After the parties stopped living together, Ashley and the
children moved in with her mother, where they have remained.
Gerald stayed with a friend for a few months. Ashley stated
Gerald would “just call” and ask to see the children, and
“[i]t would just be kind of sporadic.” However, according to
Gerald, he saw the children “daily” while staying with his
friend, but he did not keep them overnight. After staying with
his friend, Gerald lived in a few different places. For the first
few months, Gerald had the children every weekend. Then the
parties tried alternating parenting time on a daily basis, but
that did not last very long. Then, beginning in February 2017,
the parties alternated parenting time on a weekly basis. Ashley
testified that she “never had a say in [their] arrangements”
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
during the alternating daily or weekly parenting time. Ashley
filed the paternity action in June, and the temporary custody
and parenting time schedule was put into place in September,
wherein Ashley got primary physical custody and Gerald had
parenting time every other weekend and every other Thursday.
However, Gerald would occasionally keep the children beyond
his parenting time without Ashley’s agreement; Ashley called
the police two times and was able to get them. Gerald had also
picked the children up from school on a day he did not have
parenting time.
Exhibit 8 contains text messages between Gerald and Ashley.
We include a sampling of those text messages here, includ-
ing all typographical and grammatical errors. On September
11, 2017 (year based on Ashley’s testimony), Gerald and
Ashley texted:
[Ashley:] . . . [I]t is not your day. If I need to get the
police involved I will
I will be picking cipher up when I leave here at 3.
[Gerald:] You can spend ya day all mad cuz I got him
and flip but that’s on you me and cipher is gonna have a
good time keep ya bad vibes to yaself
[Ashley:] It’s done.
You did this
[Gerald:] Call the cops now then save some time I wel-
come you doing that while I’m with him lol
Cops cops cops
You think you can scare me with cops lol lol lol
[Ashley:] I am not trying to scare anyone, but this is
exactly why I went to court so when you do this BS I
have a leg to stand on
I will be there to get cipher at 3
....
[Gerald:] Bitch this is my son fuck whatever you on
If I was hurting him or mistreating him or had him in
danger then cool but flipping the fuck out cuz I’m simple
with im yea go fuck ya self
....
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
You are a female that younger than me you have no
power or authority over me I am sorry we didn’t work
but you don’t get to decide when I see my kids cuz
we didn’t[.]
On September 12, Gerald texted, “I got one son and one
daughter in this world that I helped create and bring into this
world there’s no stranger thatbdont know me or my kids gonna
dictate what I can and can’t do with them.” In October, the par-
ties were arguing about parenting time and transportation and
Gerald texted:
You ain’t sacrificing shit it should be week to week this
bullshit you on where you think you have the only right
to OUR kids and how to raise them I don’t give two shits
about a lawyer Judge or court none of them was involved
in us making these kids and you can have them pump ya
head but the real is you on bullshit[.]
On October 11, the parties were again arguing over the parent-
ing time schedule, and Ashley texted Gerald saying, “All of
this is reported back to a judge.” Gerald replied:
Haha report I don’t give a fuck either
....
Report fuck the judge
Report fuck ya lawyer
Report fuck them all
Report when my schedule change none of this every
other week shit will apply
Report these are my kids and they have zero authority
over me
Report how much of a bitch you are[.]
During his testimony, Gerald said he sent the text messages
because he was upset about the situation and wanted to spend
more time with his children.
Gerald agreed that he would follow court orders. However,
he acknowledged that he had kept the children longer than
his parenting time and that he had picked them up from school
when it was not his day. Also, between September 1, 2017,
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
and June 2018, he paid a total of only around $1,050 in court-
ordered child support. He said, “I had a house, kids, rent and
stuff that was due. So I financially could not . . . .” He stated
he also paid some money directly to the court after June 2018.
(According to a Department of Health and Human Services
payment history report, between June 26 and September 14,
Gerald had paid $1,200; he never once paid his full monthly
obligation.) Gerald acknowledged that he had not paid for any
childcare; he said he did not know that child support and
childcare were different. Gerald admitted receiving receipts for
Phoenix’s childcare costs, but he denied receiving receipts
for Cipher’s childcare costs.
According to Ashley, Gerald had been physical with her
on “multiple occasions.” Ashley said there had been “slaps to
the face,” most recently 3 years ago, and “hair pulling,” most
recently when she was 8 months pregnant with their daughter.
According to Ashley, both children had witnessed incidents
when Gerald was physical with her. Gerald had also called
her names, like “bitch,” in front of the children. According
to Gerald, there was “a lot of lies and embellishment” in
Ashley’s testimony. He acknowledged that their relationship
was not appropriate, and he confirmed that Ashley hit him
multiple times.
Ashley said she witnessed an incident when Gerald was
“aggressive” and grabbed Phoenix’s arm when she tried to go
to Ashley. And Cipher was crying and upset when he called and
told her that Gerald “struck him for letting the dog out.”
Ashley was also aware that Gerald smoked marijuana around
the children; “this Sunday” Ashley picked Cipher up from
Gerald’s house and “had to roll down the windows because
[Cipher] reeked so heavily of marijuana.” Gerald testified that
he was charged with possession of marijuana twice and con-
firmed he was convicted of possession of marijuana, but he
did not specify whether it was once or twice. Ashley acknowl-
edged that she had smoked marijuana in the past, the last time
being 4 to 5 years ago, and that at that time, she had smoked
it in front of the children. Ashley also acknowledged she was
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
convicted of “DUI” 5 years ago, but said the children were not
in the car at the time. Gerald testified that he has seen Ashley
drive with the children after she had been drinking.
Ashley’s mother, with whom Ashley and the children have
lived for 4 or 5 years, testified that Ashley is an “amazing” par-
ent and is “an absolutely wonderful role model.” The children
are “extremely well-behaved.” As to Gerald’s temperament,
Ashley’s mother said, “Numerous times I’ve heard him on the
other end of a phone call conversation with Ashley knowing
that the children were within earshot, and I could overhear such
profanity and degrading language used to my daughter.”
Ashley testified that she was asking for sole legal and
physical custody. Ashley preferred that Gerald not have par-
enting time on school nights because he did not have reliable
transportation. She stated that when she was out of town for
a week, their son was tardy three times. Additionally, it was
important to Ashley that the children have consistency on
school nights.
However, Gerald said that “[t]here’s no concern” with him
being able to get the children to school on time. He claimed
it was Ashley or her mother who took the children to school
late and caused them to be tardy three times during the current
school year. Gerald wanted to have parenting time on an alter-
nating weekly basis, like he had prior to the September 2017
temporary order. He thought it would be “fair” for both parents
to have half of the time with the children because “there [were]
no problems prior,” “no issues.” If the court was not inclined
to give him equal parenting time, Gerald’s alternative proposal
was for 6 out of every 14 nights—every other week from
Friday at 8 a.m. to Wednesday at 8 a.m., and then overnight on
the Tuesday of his “off week” (Tuesday at 8 a.m. to Wednesday
at 8 p.m.). He also wanted parenting time on half of all school
holidays and half of the summer.
Gerald testified that he told Cipher what happened at court
at the temporary hearing “[b]ecause his mother lies to him”;
“before anything ever started,” she told Cipher everything was
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
going to stay the same. Gerald showed Cipher the affidavits
that Ashley and her mother presented to the court at the tempo-
rary hearing against Gerald. Text messages between Gerald and
Ashley were received into evidence and reveal the following:
Ashley texted Gerald, “Why would you bother cipher with our
issues while he is at school, . . . [h]e is not your friend or your
support - he is your child and he did not have to find out what
is going on via text.” Gerald responded:
He wanted to know what happened so I told him I let
him read what you and ya mom said about me on the
affidavit and all he should know the truth not the sugar
coated lies you and ya momma tell him
So when I’m. It around and he can’t come here for a
week it because of you not me you did this all[.]
Ashley replied, “[M]y affidavit is true.”
Gerald told the children they would be testifying at trial.
“What I told them is you guys need to tell the truth and this is
your opportunity to express to the judge what you want. I don’t
know what you want.” He said, “I did promise them that if I
had more time with them then I can take more trips with them
because they want to go places. And I express to them I don’t
currently have the time to take them . . . .”
The district court recessed for lunch on October 1, 2018, but
never came back on the record that day. However, as revealed
through subsequent motions and hearings, it appears that the
district court met with the parties’ counsel in chambers after
the lunch recess on October 1. The “Judges Notes” for October
2 appear in our transcript and state: “Matter came up for Trial,
[named counsel] appeared as counsel of record. [Gerald’s
counsel] to prepare a Decree.” The next action that appears in
our record is a motion filed on October 5.
3. Motions and Hearing
On October 5, 2018, Ashley filed a motion asking the dis-
trict court to reconsider and amend its findings from the trial
held on September 28 and October 1, to enlarge the record
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
to allow rebuttal witnesses and closing statements, to clarify
the decision of the court, and to order a new trial.
The district court and the parties’ counsel apparently met
again in November 2018, but such proceedings do not appear
in our record. However, the “Judges Notes” for November 16
appear in our transcript and state: “Matter came up for Motion
to Clarify. Trial continued to 1/23/19 at 10a.m.” On November
28, Gerald filed a motion for entry of decree. He alleged that
after trial was held on September 28 and October 1, his coun-
sel was instructed to prepare a decree; his counsel forwarded
a proposed decree and parenting plan to Ashley’s counsel on
October 2; and Ashley filed a motion for clarification as to
certain terms of the decree, which was heard before the court
on November 16, and certain matters were clarified. Gerald
alleged that the decree attached to his motion reflected the
nature of the proceedings as well as the court’s findings and
orders, with the exception that Gerald added a paragraph pro-
viding that both parties shall be awarded 7 days parenting time
of their choosing each year, to accommodate for special events
that each parent may want to spend with the children.
On November 29, 2018, Ashley again filed a motion asking
the district court to reconsider and amend its findings from the
trial held on September 28 and October 1, to enlarge the record
to allow rebuttal witnesses and closing statements, to clarify
the decision of the court, and to order a new trial. Gerald filed
an objection to Ashley’s motion.
At a hearing on December 4, 2018, the parties appeared
on the foregoing motions. At this hearing, the district court
stated, “I know we had a hearing in my office on October — I
don’t know if it was October 5th or after that . . . .” Ashley’s
counsel then stated, “[W]e came here [in November,] and the
Court made a decision that we would schedule a two-hour
opportunity for us in January [2019] to finish the testimony,
not only of my client, but also of [Gerald] and allow the parties
to submit their closing arguments.” Ashley’s counsel further
stated, “So regarding [Gerald’s] motion to enter the decree,”
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
Ashley would object because the case has not been closed. The
court stated:
Well, let’s be clear. We had trial and you — the trial was
not completed. We took a break. We had to get another
date. I told both of you what I thought would be appro-
priate based on the evidence that I’ve heard. You both
then said okay. We’ll try to put together a decree. That
was not on the record. And since then we’ve had another
hearing in which you’ve disagreed as to what the two
of you thought you had agreed to which the Court was
going [sic] propose. I think that this is — I don’t think
either one of you is correct a hundred percent. And appar-
ently you feel like [Gerald’s counsel] is continuing to add
things that your client was not willing to agree to. I think
we’ll just finish the trial in January.
Gerald’s counsel objected to “re-opening this matter.” The fol-
lowing colloquy then took place.
[Gerald’s counsel:] You’re right. We had a two-day
trial. I had witnesses. [Ashley’s counsel] had witnesses.
We had continued into the second day . . . . We had one
more day slotted for that trial, and I had a couple wit-
nesses and I was going to ask you to speak to the minor
children. You told us at the beginning of the trial that you
would if you deemed it to be necessary. So it wasn’t a
hundred percent. It wasn’t a given. We proceeded through
lunch. You called us back to your chambers and you said,
Here’s what I am inclined to do.
THE COURT: I said basically here’s what I’m thinking
based on what I heard.
[Gerald’s counsel:] Right. And based on that, I rep-
resented to the Court, we’re fine with that, Your Honor.
We will not present anymore witnesses. We rested. There
was no request by [Ashley’s counsel] to put on additional
witnesses, to present a rebuttal, to present a closing
argument. In fact, [Ashley’s counsel] asked for clarifica-
tion on certain things that you ordered. You were very
specific in your orders. . . . You advised me [to] prepare
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Cite as 29 Neb. Ct. App. 152
the decree. You ordered six days out of . . . 14 to
[Gerald], eight days out of 14 to [Ashley]. You ordered
joint custody — joint physical custody, sole legal custody
to [Ashley]. You said whatever the guidelines say the
guidelines say with regard to child support. . . . [T]here
was a specific question about attorney’s fees. You said
yes, anything related to the contempt matter. There was
a specific question . . . about how much [Gerald] should
pay towards arrears, and you said $300 a month, which I
interpreted to be total arrears for child care and child sup-
port, and we have a disagreement on what you intended. .
. . I think my decree that’s submitted is 100 percent what
you ordered, but for that paragraph. You said the parent-
ing plan that the parties mediated. You said 50 percent of
the summer. Those were all things that Your Honor stated
in chambers. There wasn’t a court reporter. . . . The only
arguable thing [we] didn’t do was closing, and [Ashley’s
counsel] didn’t ask for it. And I highly doubt that his
closing will change Your Honor’s opinion. . . .
....
THE COURT: . . . . The issue is, you haven’t rested
on the record. [Ashley’s counsel] wants more time. He
doesn’t agree. And so I don’t think I can force the — we
didn’t — we should have brought the parties out and
entered the terms of that on the record, and then it would
have been done. We didn’t do that.
....
THE COURT: . . . . I’m just saying because it wasn’t
completed in the proper way — and I’m taking responsi-
bility for part of that — I think we have to finish the trial
if [Ashley’s counsel] isn’t happy with it. I don’t think we
have any other choice. I don’t think I can force the entry
of this decree because we didn’t bring the parties out and
put it on the record. And that’s on me.
....
THE COURT: . . . . I mean, the bottom line is, when
we had our conversation, I told you that based on what
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Cite as 29 Neb. Ct. App. 152
I had heard because it was so close to being at the end,
this is what I thought would likely happen. At that point
in time, I don’t recall strong-arming anybody into saying
this is what it should be, and I believe a settlement was
reached. But because that wasn’t memorialized, because
we didn’t come back out in the courtroom and put in on
the record at that time, I don’t believe it’s enforceable by
the Court. I think you get a chance to finish, if that’s what
you want.
[Ashley’s counsel:] It is what I want, Your Honor. And
I also don’t want there to be a confusion about — it’s
truly unfortunate that anybody that day thought there was
a settlement.
THE COURT: You said yes, I believe the case can
be resolved because I told you what you [sic] thought
was happening. You were in my office. It wasn’t on the
record. I understand that.
....
[Ashley’s counsel:] And in no way was [sic] speaking
for my client agreeing to a settlement of —
THE COURT: That’s why I’m not entering the decree.
(Emphasis supplied.)
4. Trial Resumes
Trial resumed on January 23, 2019. Gerald rested his case,
with the exception that he still wanted the district court to
speak to the children: “If after the case in chief you feel like
you are not going to give [Gerald] at least six days out of 14,
I would continue to ask you to speak with the children[,] [b]ut
I will rest my case . . . .” Ashley’s counsel called Gerald to
the stand.
Gerald acknowledged that he and Ashley have had alterca-
tions and that he has pushed her to the ground, but he claimed
he pushed her in self-defense after she grabbed him by the
hair and “pulled out a couple of [his] dreads.” He denied that
the children witnessed the pushing incident, which he believed
occurred in 2009, and he stated he had not been physical
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with Ashley in “over seven, eight, nine years.” He also
said he tries to refrain from having arguments with her via
text message.
Gerald testified that in September 2018, right before trial, he
gave Cipher tickets to a professional football game in Kansas
City, Missouri, for his birthday; the game was on October 28.
The game was during Ashley’s weekend with the children,
and although she said that Cipher could go, she “didn’t really
specify how that was going to happen, which is what [Gerald]
was trying to accomplish for months.” Because the game was
at noon, Gerald wanted to pick Cipher up and drive to Kansas
City the day before; Ashley said he could pick Cipher up the
day of the game. When he arrived to pick Cipher up the day
before the game, Ashley told Cipher that she would take him
to the game, but “[Cipher] continued to proceed with me to
my car. I didn’t force anything.” Gerald acknowledged that
text messages received into evidence show his frustration
with Ashley for changing her mind about letting Cipher go to
the game.
We include a portion of those text messages here, including
all typographical and grammatical errors:
[Ashley:] And it’s my weekend, my choice.
If I said no he could not go you would have to accept
that, but I am saying he can go Sunday morning drive two
and a half hours to KC and be there by the 12 kickoff
They are not leaving Saturday. Period
[Gerald:] Watch us
....
[Ashley:] It’s Sunday or nothing.
....
[Gerald:] Sunday is not an option is the best way I can
put it to
I don’t care about the consequences will leave a
Saturday[.]
Gerald testified that he was frustrated that Ashley refused
to work with him on their parenting schedule to accommodate
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the trip. There was some testimony about his understanding
of the parties’ parenting agreement following the second day
of trial on October 1, 2018. We include the relevant exchanges
here, although not necessarily in the order they occurred.
Gerald’s counsel asked, “We had trial on September 28th
and October 1st of 2018?” And Gerald responded, “Correct.”
Gerald’s counsel further asked, “And we started a new parent-
ing time schedule; is that correct?” Gerald again responded,
“Correct.” Gerald’s counsel also asked him, “And the last court
hearing that we had, the Court awarded you, your understand-
ing was, six out of 14 days?” Gerald replied, “Correct.” During
another exchange, the following colloquy was had:
[Gerald’s counsel:] The last day of trial when the Court
ordered that you would have this much time, you’re [sic]
schedule wasn’t —
[Ashley’s counsel:] Well, objection, Your Honor. That
misstates facts not in evidence. The Court never ordered
anything.
[Gerald:] No. When the new order was put in, no.
[Gerald’s counsel:] Let’s stop for a moment. Your
Honor, I just want to . . . clarify for the record what the
last — the previous day of trial was. I think I have it in
the proposed decree, if I can look at that. October 1st.
Gerald testified that he had given Cipher the football tickets as
a birthday gift earlier in September, prior to trial. There was
then discussion about Gerald’s plans to take Cipher to Kansas
City a day earlier than Ashley desired:
[Gerald’s counsel:] Okay. And there was really no
Court order at that point, was there?
[Gerald:] Not really. I mean, it was still confusing to
me to understand what the Court order was, and I just
figured we could be amicable, me and her, about the sit­
uation. She just refused to work with me.
Gerald’s counsel asked, “You were going to start your week
on/week off on a different weekend, but [Ashley] told you no
specifically?” Gerald responded, “Correct. I tried to do that so
we wouldn’t have this issue, but she made it so we would.”
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During Ashley’s testimony, she said that when Gerald first
bought the football tickets, he did not ask to purchase tickets
for a game during her parenting time weekend. It was not until
after Gerald gave the tickets to Cipher that Ashley realized the
game fell on her weekend. “And then we went to court, and
with the new arrangement, it wasn’t anything against Gerald,”
but Ashley and the children had other plans that weekend; “it
wasn’t intentional that I was trying to keep him away from
[Cipher] on this weekend.” Ashley stated, “I have the same
weekends I had before our October 1st order was put in.”
Gerald testified that he took Cipher to the game and that
he gave Ashley makeup parenting time the next weekend dur-
ing his scheduled parenting time. Gerald said that prior to the
game, he tried to work it out with Ashley “so we wouldn’t
have this issue, but she made it so we would. . . . She knew
we would come back here. This was all plotted.” He further
stated, “I know she did it purposely. I’ve been with this woman
for 11 years. I know her.” Ashley testified that she agreed
Gerald could pick up Cipher the day of the game, and there
was no reason they needed to leave the day before, but that is
what happened.
Gerald was also confronted with text messages he sent to
Ashley in November 2017 wherein he used profanity, called
her names, and told her to “Go suck a AIDS dick.” Again,
Gerald testified that he was just upset at the time he sent the
text messages.
Gerald testified that he was still seeking “50/50” custody
and parenting time. Gerald’s counsel asked, “[Y]our under-
standing was the Court gave you six out of 14 days” after the
first 2 days of trial, and Gerald responded, “Correct.” But his
“preference” was still 7 out of 14 days. It was also Gerald’s
understanding that Ashley would owe him child support under
an “8/6” parenting time schedule.
A witness testified that she had seen Gerald and Ashley
argue more than once in the past year, most recently on
Christmas 2018. On Christmas, Gerald and Ashley were
both at her house and, according to the witness, Gerald was
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yelling at Ashley, “Ash, why the fuck you keep taking me
through this. I’m tired of going through this shit with you with
the kids back and forth to court.” The witness said Ashley
replied that it was Christmas and that they did not need to be
arguing. The witness also confirmed that she had observed
Gerald smoke marijuana around his children within the past
2 years. The witness had observed Ashley smoke marijuana
around the children in the past, but not in the last 4 years.
After Ashley rested her case, counsel proceeded to clos-
ing arguments.
5. District Court’s Decree
The district court’s decree of paternity was filed on May
8, 2019. The court ordered that Gerald was the children’s
father. Pursuant to the decree and the attached parenting plan,
Ashley was awarded sole legal custody and primary physical
custody of the children. Gerald was awarded parenting time
every other weekend from Friday at 4 p.m. until Monday at
8 a.m. and every other Thursday from 4 to 7 p.m. (before the
weekend in which he does not have parenting time). Each
parent was to have 2 weeks of uninterrupted parenting time
during the summer. A holiday parenting time schedule was
also established.
Gerald was ordered to pay child support in the amount of
$665 per month for the two children, beginning February 1,
2019. He was also ordered to pay 38 percent of any noncov-
ered medical expenses after Ashley had paid the first $480
annually per child and 38 percent of any work-related child-
care expenses. All childcare expenses that accrued during the
temporary order were preserved. The court noted that Gerald
had paid $1,050 as partial payment toward childcare amounts
due and owing under the temporary order, but as of May 1,
2019, still owed $2,612.40 in childcare arrearages; the court
ordered him to pay $200 per month toward those arrearages.
The order stated, “The parties shall each purchase the chil-
dren clothing in an approximately equal amount.” And Gerald
was ordered to pay $2,885 of Ashley’s attorney fees within
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30 days of the decree “due to his inability to follow the tem-
porary order regarding parenting time, child support obliga-
tions, and child care obligations and the legal fees incurred by
[Ashley] due to same.”
6. Postdecree Motions,
Hearings, and Rulings
On May 15, 2019, a “Defendant’s Motion to Reconsider,
Motion to Alter or Amend, Motion for New Trial” (motion
to reconsider) was filed by Gerald. On June 6, Gerald filed
a motion requesting the district court to “enter an IFP Order
allowing him to receive a transcription of the proceedings
or an order for [Ashley] to pay for transcription of these
proceedings” prior to hearing and argument on his motion
to reconsider. On June 28, the district court denied Gerald’s
motion for a transcription of the proceedings; Gerald appealed
that decision, and on August 5, Gerald’s interlocutory appeal
in case No. A-19-695 was dismissed by this court for lack
of jurisdiction.
A hearing on Gerald’s motion to reconsider was held on
September 18, 2019. During the hearing, Gerald’s counsel
repeatedly contended that the district court should have spo-
ken to the children prior to entering its decree. Counsel stated,
“[W]hen we rested [at trial], for the record, we said we’re
rested conditioned on six out of 14 days. If Your Honor is not
going to order that, please set it for further hearing and speak
with the children.” The court responded by stating that because
it did not grant Gerald’s request, it was overruled. Counsel
replied, “Okay. I did not have an opportunity to make an offer
of proof because I did not know that you were going to over-
rule it.” Counsel continued:
I would have made an offer of proof as to what the chil-
dren would testify to had I known that you were not going
to order six out of 14 days and you had no intention of
speaking with the children. I would have made an offer of
proof and, I’ll do that today.
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According to counsel, “[I]f Phoenix and Cipher were called to
testify in chambers with no parents present and just the attor-
neys and Your Honor, that Cipher and Phoenix would say that
they love their father.” Counsel continued:
[Not having] six out of 14 days is traumatizing to them.
The testimony that mom portrayed dad to be not keeping
a house, not feeding them [nutritious meals], is inaccu-
rate. That he was more than loving. He’s always put their
needs ahead of his own. And that it’s extremely impor-
tant for them to have quality time with their father. That
would be the offer of proof . . . .
Gerald’s counsel also challenged the amount of parenting
time awarded to Gerald and the way child support was ordered.
Additionally, counsel stated, “I realize that this [is] a motion
for new trial, but [Gerald] would like specific findings of fact
pursuant to [Neb. Rev. Stat. §] 25-1127 [(Reissue 2016)].”
Pursuant to its order filed on September 26, 2019, and
its order nunc pro tunc filed on October 3, the district court
denied the entirety of Gerald’s motion to reconsider, “with the
exception of the following, which has been stipulated to by the
Parties.” Gerald’s child support obligation under the temporary
order was amended as follows:
From the time period of September 1, 2017 through May
1, 2019, Gerald owes a total of $7,986.00. Said amount is
calculated based upon the following:
i. From September 1, 2017 through September 30,
2018, [Gerald’s] child support obligation to [Ashley] is in
the amount of $650.00 per month.
ii. From October 1, 2018 through May 1, 2019,
[Ashley’s] child support obligation to [Gerald] is in the
amount of $58.00 per month.
iii. This Order does not obligate [Ashley] to any
past or current child support obligation. The purpose of
the description of subparagraphs i,ii, and iii is solely
to explain the computation of [Gerald’s] Child Support
Obligation from September 1, 2017 through May 1, 2019.
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Commencing May 1, 2019, Gerald’s child support obligation
“shall adhere to the Decree of Paternity dated May 8, 2019.”
7. Appeal
Gerald now appeals the paternity decree filed on May 8,
2019, and the October 3 order nunc pro tunc denying his
motion for reconsideration.
III. ASSIGNMENTS OF ERROR
Gerald assigns, summarized and reordered, that the district
court erred (1) in various ways at the temporary hearing and
in the temporary order; (2) by not enforcing the settlement of
the parties that was reached in the presence of the trial court;
(3) by not allowing the children to testify; (4) by not granting
his request for specific findings of fact; (5) by not awarding
him more parenting time; (6) by ordering him to purchase
approximately one-half of the children’s clothing; (7) by order-
ing him to pay a portion of Ashley’s attorney fees; and (8) by
not granting his IFP request for transcription of proceedings or,
alternatively, in not ordering Ashley to pay for the same so that
he could prepare for his motion for reconsideration.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews child custody determina-
tions de novo on the record, but the trial court’s decision will
normally be upheld absent an abuse of discretion. Randy S. v.
Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019). An abuse
of discretion occurs when a trial court bases its decision upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence. Id.
[3,4] A settlement agreement is subject to the general prin-
ciples of contract law. Strategic Staff Mgmt. v. Roseland,
260 Neb. 682, 619 N.W.2d 230 (2000). To have a settlement
agreement, there must be a definite offer and an unconditional
acceptance. Id.
[5] An appellate court reviews child support determinations
de novo on the record, but the trial court’s decision will be
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affirmed absent an abuse of discretion. See State on behalf
of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 N.W.2d
222 (2011).
[6] 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. Statute of Limitations
Due to the gap in time between the children’s births (2005
and 2011) and the filing of Ashley’s complaint in this mat-
ter (2017), we initially note that the procedure for obtaining
a determination of paternity is set forth in Neb. Rev. Stat.
§§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp. 2018).
Section 43-1411 provides that a paternity action may be insti-
tuted “by (1) the mother or the alleged father of such child,
either during pregnancy or within four years after the child’s
birth . . . or (2) the guardian or next friend of such child or the
state, either during pregnancy or within eighteen years after
the child’s birth.” Paternity can also be established by a nota-
rized acknowledgment of paternity. See, § 43-1409 (signing
of notarized acknowledgment, whether under § 43-1408.01 or
otherwise, by alleged father creates a rebuttable presumption
of paternity as against alleged father); § 43-1408.01 (during
period immediately before or after in-hospital birth of child
whose mother not married, person in charge of hospital or
designated representative shall provide mother and alleged
father documents and written instructions to complete nota-
rized acknowledgment of paternity; acknowledgment, if signed
by both parties and notarized, shall be filed with Department
of Health and Human Services at same time as certificate of
live birth); Benjamin M. v. Jeri S., 307 Neb. 733, ___ N.W.2d
___ (2020) (proper legal effect of signed, notarized acknowl-
edgment of paternity is finding that individual who signed
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as father is in fact legal father; establishment of paternity by
properly executed acknowledgment is equivalent of establish-
ment of paternity by judicial proceeding); Tyler F. v. Sara P.,
306 Neb. 397, 945 N.W.2d 502 (2020) (same).
A notarized acknowledgment of paternity does not appear
in the record before us. Furthermore, Ashley’s complaint and
Gerald’s counterclaim were filed in the parties’ individual
capacities and were filed outside of the 4-year statute of limi-
tations set forth in § 43-1411. However, Gerald did not raise
a statute of limitations defense to Ashley’s complaint, and
instead, he acknowledged his paternity of the children. The
statute of limitations is an affirmative defense which is waived
if not asserted. See Benjamin M. v. Jeri S., supra (statute of
limitations does not operate by its own force as bar, but, rather,
operates as defense to be pleaded by party relying upon it and
is waived if not pleaded). See, also, Manker v. Manker, 263
Neb. 944, 644 N.W.2d 522 (2002). In Manker, a father argued
that the mother of their child was barred from bringing a pater-
nity action more than 4 years after the child’s birth, as set forth
in § 43-1411. However, the Nebraska Supreme Court stated
that “[t]he statute of limitations is an affirmative defense which
is waived if not asserted by demurrer or answer.” Manker v.
Manker, 263 Neb. at 952, 644 N.W.2d at 531. The Supreme
Court pointed out that the father had acknowledged paternity
and his obligation to pay support in his answer, and such an
affirmative allegation was “a judicial admission which consti-
tutes a waiver of all controversy with respect to those issues.”
Id. at 953, 644 N.W.2d at 531. As such, the Supreme Court
found no error in the district court’s determination that the
claims were not time barred.
In this case, both parties acknowledged that Gerald is the
father of Cipher and Phoenix, and both parties sought a deter-
mination of paternity, custody, and child support. Therefore, as
in Manker v. Manker, supra, we find such acknowledgments
to constitute a waiver of all controversy with respect to these
issues and conclude that the claims are not time barred.
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2. Temporary Hearing
and Order
[7] Gerald contends that the district court erred in various
ways at the temporary hearing and in the temporary order
and that such errors resulted in his not receiving a sufficient
amount of parenting time. However, any issues regarding tem-
porary custody and parenting time became moot upon entry
of the decree of paternity establishing permanent custody and
parenting time. See, State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (tem-
porary order rendered moot when permanent custody order
entered); Mann v. Rich, 18 Neb. Ct. App. 849, 794 N.W.2d 183
(2011) (any issue relating to temporary order is moot after it is
replaced by more permanent order).
To the extent that Gerald takes issue with the effects of the
temporary order on child support matters, the paternity decree
on May 8, 2019, and the subsequent orders on September 26
and October 3 corrected the amount of Gerald’s monthly child
support owed under the temporary order. And Gerald does not
claim error with respect to the recalculation of the monthly
child support obligation owed under the temporary order.
3. Settlement Agreement
Gerald contends the district court erred by not enforcing the
settlement of the parties that was reached in the presence of
the trial court in chambers on October 1, 2018.
As set forth previously, the district court met with the par-
ties’ counsel in chambers after the lunch recess on October 1,
2018. Apparently, discussion was had as to how the court was
inclined to rule based on what it had heard so far at trial, and
rather than resuming trial, the parties thereafter attempted to
draft a decree but could not agree on the terms they thought the
court had indicated. Several motions were filed.
On October 5, 2018, Ashley filed a motion for the district
court “to reconsider and amend its findings from the paternity
trial held September 28 and October 1 of 2018, to enlarge the
record to allow rebuttal witnesses and closing statements as
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neither were allowed, to clarify the decision of this Court, and
for a new trial.” In support of her motion, Ashley stated:
16. [Gerald] is not capable of being a joint-physical
custody parent and it is not in the children’s best inter-
ests that the children spend almost half their time with
[Gerald].
17. The trial abruptly ended at 11:30am on October 1,
2018 in the middle of [Gerald’s] testimony after the Court
had originally taken a break for lunch.
18. [Ashley] was not allowed rebuttal witnesses.
19. [Ashley] was not allowed . . . a closing argument.
20. [Gerald] is in contempt for not following the
temporary order regarding parenting time, child support
arrears, and child care expenses.
21. The Court did not provide a detailed purge plan and
Counsel for Parties disagree as to said purge plan.
22. The Court did not provide a detailed timeline for
which [Gerald] must pay a portion of [Ashley’s] attor-
ney fees.
23. Clarity is needed regarding the obligation of the
parents to ensure the children attend extracurricular
activities.
24. The Court’s decision is not in the best interests of
the minor children[.]
25. The Court’s decision regarding custody is contrary
to law.
The district court and parties’ counsel apparently met again
in November 2018, but such proceedings do not appear in our
record. However, the “Judges Notes” for November 16 appear
in our transcript and state: “Matter came up for Motion to
Clarify. Trial continued to 1/23/19 at 10a.m.”
On November 28, 2018, Gerald filed a motion for entry of
decree. Gerald alleged:
[T]rial was held . . . on September 28, 2018 and October
1, 2018. [Gerald’s] counsel was instructed to prepare a
Decree. [Gerald’s] counsel forwarded [Ashley’s] Counsel
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a proposed Decree and Parenting Plan the following
day on October 2, 2018. [Ashley] filed a Motion for
Clarification as to certain terms of the Decree, which was
heard before the Court on November 16, 2018 and certain
matters were clarified.
Gerald attached a proposed decree which he believed was
“wholly reflective of the nature of the proceedings as well as
the Court’s finding and Orders,” with the exception that Gerald
added a paragraph providing that both parties shall be awarded
the 7 days of parenting time of their choosing each year, to
accommodate for special events that each parent may want to
spend with the minor children. In relevant part, the proposed
decree awarded sole legal custody to Ashley, but awarded the
parties joint physical custody—Ashley was to have parent-
ing time 8 out of every 14 days and Gerald was to have par-
enting time 6 out of every 14 days; the parties were to have
equal parenting time during the summer.
On November 29, 2018, Ashley again filed a motion for the
court “to reconsider and amend its findings from the paternity
trial held September 28 and October 1 of 2018, to enlarge the
record to allow rebuttal witnesses and closing statements as nei-
ther were allowed, to clarify the decision of this Court, and for
a new trial.” In support of her motion, Ashley made the same
statements as in her October 5 motion. Also, on November 29,
Gerald filed an objection to Ashley’s motion.
At a hearing on December 4, 2018, the parties and the dis-
trict court set forth their recollections of what had transpired
following the lunch recess on October 1. Gerald’s counsel
contended that the parties had reached a settlement in cham-
bers and wanted the court to enforce the settlement and enter
the proposed decree wherein the parties were to have joint
physical custody—Gerald was to have parenting time 6 out of
every 14 days. However, the court noted that Ashley’s counsel
did not agree and wanted to finish the trial. Ashley’s coun-
sel stated that in November, the court “made a decision that
we would schedule a two-hour opportunity for us in January
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[2019] to finish the testimony, not only of my client, but also
of [Gerald] and allow the parties to submit their closing argu-
ments,” and therefore, Ashley objected to Gerald’s motion to
enter a decree.
The district court recollected that when they had trial, it was
not complete; that during a break, the court informed the par-
ties’ counsel what it thought would be appropriate based on the
evidence it had heard; and that the parties’ counsel said they
would try to put together a decree, but since then counsel dis-
agreed as to what they thought the court was going to propose.
The court did not think “either [was] correct a hundred per-
cent.” The court said that “we’ll just finish the trial in January.”
Gerald objected to “re-opening this matter.” During the discus-
sion that followed, the district court stated:
I believe a settlement was reached [on October 1, 2018].
But because that wasn’t memorialized, because we didn’t
come back out in the courtroom and put in on the record
at that time, I don’t believe it’s enforceable by the Court.
I think you get a chance to finish, if that’s what you want.
Trial thereafter resumed on January 23, 2019.
We have previously set forth the parties’ testimony from
January 23, 2019. The testimony suggests that the parties had
an understanding of a new parenting time arrangement after
October 1, 2018, which, according to Gerald, gave him parent-
ing time 6 out of 14 days. And upon our review of the record,
it appears the parties started exercising an 8/6 parenting time
schedule. Besides the testimony of the parties, Ashley’s coun-
sel stated during closing arguments that “even after the second
day of trial, [Ashley] allow[ed] [Gerald] to have six days every
14 days because it seemed as those [sic] perhaps there was
something going on with the Court’s direction.”
At the motion for reconsideration, the following colloquy
was had:
[Gerald’s counsel:] And, Your Honor, after trial, on
September 28th and October 1st, you knew everything
that happened at the temporary hearing. And you had
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two days of trial and you said this man needs to have
more time with his children, and you gave him six out of
14 days. Six out of 14 days.
[Ashley’s counsel:] Objection, Your Honor. That mis-
states facts not in evidence. There was no order.
THE COURT: Sustained.
[Gerald’s counsel:] Your Honor, it’s been stipulated to.
It’s in all the testimony.
THE COURT: No, it’s sustained.
[Gerald’s counsel:] Your Honor, after October 1st of
2018, [Gerald] had six out of 14 days that’s been stipu-
lated to on the record. We had a trial.
[Ashley’s counsel:] Objection, Your Honor. That mis-
states facts not in evidence. There’s nothing stipulated to
as far as the time is concerned on the record.
[Gerald’s counsel:] It’s permeated in the record, Your
Honor.
THE COURT: The motion is sustained.
[Gerald’s counsel:] It permeates the record.
THE COURT: Objection is sustained. Excuse me.
Additionally, at trial, Gerald’s understanding was that
Ashley would owe him child support under an 8/6 parenting
time schedule. And in the district court’s order nunc pro tunc,
Gerald’s temporary child support obligation was amended, in
part because Ashley owed Gerald child support from October
1, 2018, through May 1, 2019. This would again suggest the
parties were operating under a different parenting time arrange-
ment after the first 2 days of trial. In this instance, we have
Gerald, who claims there was an agreement reached in cham-
bers during the break from trial on October 1, which explains
why trial ceased that day and the parties started exercising par-
enting time under an 8/6 schedule. The district court appears
to also indicate there was a settlement agreement, but Ashley
claims there was no agreement.
[8-11] A settlement agreement is subject to the general
principles of contract law. Strategic Staff Mgmt. v. Roseland,
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260 Neb. 682, 619 N.W.2d 230 (2000). To have a settlement
agreement, there must be a definite offer and an unconditional
acceptance. Id. See, also, Linscott v. Shasteen, 288 Neb. 276,
847 N.W.2d 283 (2014) (to create contract, there must be both
offer and acceptance; there must also be meeting of minds or
binding mutual understanding between parties to contract). A
binding mutual understanding or meeting of the minds suf-
ficient to establish a contract requires no precise formality
or express utterance from the parties about the details of the
proposed agreement; it may be implied from the parties’ con-
duct and the surrounding circumstances. Linscott v. Shasteen,
supra. The determination of the parties’ intent to make a
contract is to be gathered from objective manifestations—the
conduct of the parties, language used, or acts done by them,
or other pertinent circumstances surrounding the transaction.
Id. A fundamental and indispensable basis of any enforceable
agreement is that there be a meeting of the minds of the parties
as to the essential terms and conditions of the proposed con-
tract. Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d
808 (2015).
[12,13] An alleged oral compromise and settlement agree-
ment not made in open court is unenforceable where it is in
violation of the statute of frauds or in violation of a court rule
requiring all stipulations and agreements of counsel or parties
to a suit to be in writing, signed by the parties or their attor-
neys. In re Estate of Mithofer, 243 Neb. 722, 502 N.W.2d 454
(1993), citing Omaha Nat. Bank v. Mullenax, 211 Neb. 830,
320 N.W.2d 755 (1982). Conversely, a settlement agreement
made in open court on the record, agreed to by all of the parties
to the litigation and approved by the court, is enforceable. In re
Estate of Mithofer, supra.
There is no court rule in Douglas County, which is in the
Fourth Judicial District, requiring all settlements to be in writ-
ing, signed by the parties or their attorneys. Compare Rules
of Dist. Ct. of Fourth Jud. Dist. 4-6 (rev. 1995) (when case
is resolved by settlement stipulation, case shall be placed
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on inactive status until settlement consummated, at which time
case shall be dismissed; if settlement stipulation not consum-
mated, case may be reinstated to active status upon motion of
any party), with Rules of Dist. Ct. of Second Jud. Dist. 2-3
(rev. 1995) (all agreements of counsel or parties to suit must
be reduced to writing and signed by parties making same and
filed with clerk, or they will not be recognized or considered
by court), Rules of Dist. Ct. of Fifth Jud. Dist. 5-3 (rev. 2001),
and Rules of Dist. Ct. of Seventh Jud. Dist. 7-3 (rev. 1995). In
the present case, custody and parenting time decisions would
not be subject to the statute of frauds, and there is no court rule
requiring that all settlements be in writing or be made orally on
the record of the court. In this case, it is alleged there was an
oral agreement made in chambers, which counsel for Gerald
understood to be a settlement agreement, and which the district
court understood to be a settlement, but which it acknowledged
had not been placed on the record.
This court has previously addressed the enforcement of an
oral settlement agreement. In Furstenfeld v. Pepin, 23 Neb.
App. 155, 869 N.W.2d 353 (2015), Lisa Pepin (Lisa) filed
a complaint against her former husband, Justin Furstenfeld
(Justin), to modify the parenting time and support provisions
of their dissolution decree. During the ensuing litigation, Lisa,
her counsel, and Justin’s counsel met to conduct a telephonic
deposition of Justin, who was residing out of state. Instead of
conducting a deposition, however, the parties, through their
attorneys, engaged in settlement negotiations and an apparent
agreement was reached. After reaching this agreement, coun-
sel for both parties jointly contacted the district court judge
to notify the court of the agreement and to remove the matter
from the court’s trial calendar. Lisa’s counsel proceeded to
prepare a stipulation containing the terms of the parties’ agree-
ment. Justin refused to sign the stipulation. Lisa filed a motion
to enforce the settlement agreement. Specifically, her motion
stated that she sought to enforce the oral agreement reached by
the parties.
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At a hearing on the motion, Lisa testified as to her under-
standing of what transpired at the meeting that led to the pur-
ported agreement. A copy of the stipulation was received into
evidence.
Lisa’s counsel also called Justin’s counsel as a witness to
testify in order to provide foundation for an email regarding
the oral settlement agreement and to establish that Justin and
his counsel engaged in communications during the settlement
negotiation meeting. Justin’s counsel acknowledged that the
day before the meeting, he sent an email to Lisa’s counsel
which contained the terms on which Justin offered to settle
the case. The next day, Justin’s counsel arrived at opposing
counsel’s office to conduct a telephonic deposition of Justin.
Justin’s counsel confirmed that settlement negotiations ensued,
an agreement was reached, and he and Lisa’s counsel con-
tacted the court to inform it that the matter had been settled.
Later that day, Justin’s counsel received an email from Lisa’s
counsel’s assistant which stated that it included the stipulation
for modification of decree based on the agreement reached that
morning. The email further stated that Lisa’s counsel would
“‘work up’” a child support calculation that “‘matche[d]’” a
certain figure to attach to the stipulation. Furstenfeld v. Pepin,
23 Neb. Ct. App. at 161, 869 N.W.2d at 360. Justin’s counsel sent
the following response to Lisa’s assistant:
“I believe this accurately reflects the agreement. I’ll
send to [Justin], and once he returns to me the executed
original, I will get it to [Lisa’s counsel]. The trial date
has been removed from the judge’s calendar, so we’re not
under a rush, although I think we told the judge we’d get
it to him for approval by the end of next week. Neither
party will need to appear since we’re not changing cus-
tody or parenting time.”
Id. On cross-examination, Justin’s counsel stated that Justin
had not given him the right to sign off on anything. Later in the
hearing, Justin testified that he did not authorize his attorney to
make the settlement offer contained in the email.
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The district court entered an order finding that the parties had
entered into a binding settlement agreement that resolved all
material terms of the dispute. The court further found that the
proposed stipulation entered into evidence accurately reflected
the terms of the parties’ agreement. The court approved the
terms of the stipulation and directed Lisa’s counsel to prepare
an order consistent with the stipulation; the court subsequently
signed the prepared order. Justin appealed.
On appeal, this court found that Justin had not rebutted the
presumption that his attorney was authorized to make state-
ments on his behalf. This court further found that the district
court did not err in allowing Justin’s counsel to be questioned
on a limited basis because counsel’s testimony was material
and relevant to the issue being litigated and there was no other
witness that could have provided the evidence. Additionally,
this court found no error in the district court’s conclusion
that a settlement agreement may be established by the testi-
mony of the attorney of the party sought to be bound; plain
statutory language supported such a result. See Neb. Rev.
Stat. § 7-107 (Reissue 2012) (powers of attorneys include the
power to bind client by counsel’s agreement in respect to any
proceeding within scope of proper duties and powers; but no
evidence of any such agreement is receivable except statement
of attorney, attorney’s written agreement signed and filed with
clerk, or entry thereof upon records of court). This court con-
cluded the record contained sufficient evidence for the district
court to have sustained Lisa’s motion to enforce the settle-
ment agreement.
Both Furstenfeld v. Pepin, 23 Neb. Ct. App. 155, 869 N.W.2d 353
(2015), and one of the cases cited therein, Lennon v. Kearney,
132 Neb. 180, 271 N.W. 351 (1937), involve a lawyer’s
­authority to enter into a settlement agreement. And both cases
state, “[W]hen an attorney appears in a cause, there is a pre-
sumption that the attorney has authority and that presumption
continues until the want of such authority is established,” and
the “burden of proof of such want of authority is upon the
party asserting the same.” Furstenfeld v. Pepin, 23 Neb. Ct. App.
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at 166, 869 N.W.2d at 363 (other case cited therein for propo-
sition did not involve a settlement), citing Lennon v. Kearney,
supra (two cases cited therein for proposition did not involve
a settlement). However, a reading of both cases reveals that it
was not the presumption of authority that actually decided the
result. Rather, in both cases, it was the opposing party—i.e.,
the party wanting to enforce the settlement—that put on evi-
dence as to the lawyer’s authority to settle. Having the oppos-
ing party present evidence of a lawyer’s authority to settle is in
line with the Nebraska Supreme Court’s holding in Luethke v.
Suhr, 264 Neb. 505, 650 N.W.2d 220 (2002), a case also cited
in Furstenfeld v. Pepin, supra.
[14-16] In Luethke v. Suhr, 264 Neb. at 513, 650 N.W.2d at
226, the Nebraska Supreme Court held:
[A]lthough lawyers retain apparent authority to make
procedural and tactical decisions through the existence of
the attorney-client relationship, a lawyer cannot settle a
client’s claim without express authority from the client.
In other words, where there has been nothing beyond a
mere employment or retainer of the lawyer to represent
the client in a cause and the lawyer has acquired no other
authority to enter into a settlement (such as acquiescence
in open court), if the lawyer seeks to enter a settlement,
the opposing party should ascertain whether the lawyer
has received actual authority from the client to take such
action. A party who enters a settlement agreement without
verifying the opposing counsel’s actual authority to settle
does so at his or her peril.
Disputes over a lawyer’s authority to settle are factual issues to
be resolved by the trial court; however, an appellate court will
not set aside a trial court’s factual findings regarding settlement
disputes unless such findings are clearly erroneous. See id.
This case before us is distinguishable from Furstenfeld
v. Pepin, 23 Neb. Ct. App. 155, 869 N.W.2d 353 (2015), in
that Gerald did not call Ashley’s counsel to testify regarding
the settlement agreement, including any email exchanges or
other written correspondence to that effect in preparation of
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the proposed decree following the in-chambers meeting on
October 1, 2018. Thus, our review is limited to the informa-
tion provided in the motions filed after October 1; the hear-
ing on December 4; the parties’ testimony from the third day
of trial on January 23, 2019; and the proceedings and orders
that followed. That limited information does not affirmatively
establish that there was a meeting of the minds regarding any
alleged settlement agreement in this case on October 1, 2018,
or that Ashley’s counsel had received actual authority to settle
based upon the discussions held in chambers between the court
and the attorneys. Had Gerald’s counsel put on evidence simi-
lar to that in Furstenfeld v. Pepin, supra, if such existed, and
further established that Ashley’s counsel had authority to settle
based on the discussions held in chambers, if that was the
case, see Luethke v. Suhr, supra, we may have reached a dif-
ferent decision. However, based on the limited record before
us as to this issue, we cannot conclude there was an enforce-
able settlement agreement following the discussions held in
chambers on October 1.
4. Allowing Children
to Testify
Gerald contends that the district court erred by not allowing
the children to testify.
In determining custody and parenting arrangements, the
court is to consider the best interests of the minor child, one
such factor of which is “[t]he 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.” Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016).
While the wishes of a child are not controlling in the deter-
mination of custody, if a child is of sufficient age and has
expressed an intelligent preference, the child’s preference is
entitled to consideration. Vogel v. Vogel, 262 Neb. 1030, 637
N.W.2d 611 (2002). In those cases where the child’s preference
was given significant consideration, the child was typically
over 10 years old. See id.
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Prior to trial, Gerald’s counsel subpoenaed Cipher and
Phoenix to appear at trial on September 28, 2018. When trial
began on September 28, it was noted during Ashley’s opening
argument that the children were brought to court that morning.
After opening arguments were completed, the district court
indicated that after hearing the evidence, the attorneys could
converse and decide when to arrange for the court to hear from
the children. At the time of trial, Cipher was 13 years old and
Phoenix was 7 years old. After questioning three witnesses,
Ashley’s counsel stated that “[e]xcept for rebuttal purposes,”
there were no more witnesses for Ashley. Gerald’s counsel
also called three witnesses on September 28 and continuing
on October 1, including Gerald and Ashley. It was agreed
that Ashley’s counsel could ask rebuttal questions of Ashley,
outside the scope of redirect, so that she would not have to be
recalled as a witness.
After Ashley was excused from the stand on October 1,
2018, the district court asked if there was any further evidence
from either party. Gerald’s counsel said they were supposed to
have “some witnesses” there; after being given a brief recess
to look for the witnesses, counsel stated that one of the wit-
nesses was “ten minutes” away and that the other could not be
reached. Counsel also said:
I do have a request that you speak with the children
before the proceeding concludes. And I don’t really want
to make closing arguments until you have spoken with the
children, Your Honor. If you’re willing to entertain wait-
ing until — breaking for lunch and I’ll just put on two
witnesses, and then I’ll ask you to speak to the children.
Ashley’s counsel objected, expressing concerns about Gerald’s
admission that he had talked with the children about problems
between the parties and what they have “been told to say.”
Gerald’s counsel replied that Gerald just wanted his chil-
dren to be heard and that he did not tell them how to testify.
Counsel “respectfully request[ed] that [the court] take a few
minutes” with the children. Gerald’s counsel continued, stating,
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“[T]he parents do not need to be present. Counsel does not
need to ask questions. But I would ask that Your Honor at least
speak with the children in this matter.” The court indicated it
would “think about that.” Trial then broke for lunch, but coun-
sel met with the court in chambers.
As noted previously, there were various motions filed and
hearings held to determine whether the case had been resolved.
But trial resumed on January 23, 2019. On January 23, Gerald’s
counsel stated:
I’ve decided to rest with the exception that I still would
like you to speak to the children. If after the case in chief
you feel like you are not going to give [Gerald] at least six
days out of 14, I would continue to ask you to speak with
the children. But I will rest my case, Your Honor.
Ashley’s counsel proceeded to call Gerald as a witness and
questioned him, in part, about events that occurred since they
had last been in trial on October 1, 2018, including the situa-
tion regarding the Kansas City trip. Another witness testified
about a verbal altercation she witnessed between Gerald and
Ashley on Christmas 2018. And Ashley was called as a rebut-
tal witness to testify about the situation regarding the Kansas
City trip. Counsel then rested Ashley’s case, and the attorneys
proceeded to closing arguments.
As set forth previously, in the May 2019 paternity decree,
the district court awarded Ashley primary physical custody of
the children and awarded Gerald regular parenting time every
other weekend from Friday at 4 p.m. until Monday at 8 a.m.
and every other Thursday from 4 to 7 p.m. (before the weekend
in which he does not have parenting time).
At the hearing on Gerald’s motion to reconsider, the follow-
ing colloquy was had.
[Gerald’s counsel:] . . . . [W]hen we rested [on January
23, 2019], for the record, we said we’re rested condi-
tioned on six out of 14 days. If Your Honor is not going
to order that, please set it for further hearing and speak
with the children. The matter concluded on January 23rd.
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THE COURT: And the Court overruled both
your motions.
....
THE COURT: Well, I didn’t grant it, so it’s overruled.
[Gerald’s counsel:] Okay. I did not have an opportunity
to make an offer of proof because I did not know that
you were going to overrule it. The way we left things on
January 23rd, [Ashley’s counsel] had submitted a pro-
posed decree to you. I had submitted a proposed decree
to you. And I said, Your Honor, if you’re not going to do
six out of 14 days, I want you to speak to the children.
And I was —
THE COURT: When did the court become Let’s Make
a Deal?
....
THE COURT: It’s my decision whether or not I felt it
was appropriate to talk with the children.
[Gerald’s counsel:] I understand that.
THE COURT: And it’s not Let’s Make a Deal. And you
can’t say if you’re not going to do this, Judge, then you
got to do that.
[Gerald’s counsel:] Your Honor, I would have made
an offer of proof as to what the children would testify to
had I known that you were not going to order six out of
14 days and you had no intention of speaking with the
children. I would have made an offer of proof and, I’ll do
that today.
On appeal, Gerald argues that the district court erred when
it failed to hear testimony from the children. However, when
the trial resumed on January 23, 2019, Gerald’s counsel stated:
I’ve decided to rest with the exception that I still would
like you to speak to the children. If after the case in chief
you feel like you are not going to give [Gerald] at least
six days out of 14, I would continue to ask you to speak
with the children. But I will rest my case, Your Honor.
Thus, counsel rested, but attempted to make the rest con-
ditioned on how the court might decide the case, and if the
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court was not going to rule in Gerald’s favor, counsel appar-
ently expected the court to reopen the case to hear from the
children. That is borne out later, at the hearing on the motion
for reconsideration, when counsel addressed the district court
and stated:
January 23rd, through May of 2019, there was no order
from Your Honor. And I was assuming that if Your Honor
was going to enter less than six out of 14 days, you would
have contacted [opposing counsel] and myself and said,
Hey, I need to speak to the children.
[17] Regardless of counsel’s assumptions or Gerald’s wishes
that the court speak to the children, once the attorneys rested
their cases, the matter was submitted. At that point, the court
was under no obligation to reopen the case to receive testimony
from the children. The court was not required to tip its hand
regarding its ruling in order to allow Gerald’s counsel to decide
whether or not to present more evidence through the children’s
testimony before resting Gerald’s case. Because counsel rested,
we cannot find any error by the district court in its determina-
tion to enter its decision without reopening the case to hear
from the children. The reopening of a case to receive additional
evidence is a matter within the discretion of the district court
and will not be disturbed on appeal in the absence of an abuse
of that discretion. Myhra v. Myhra, 16 Neb. Ct. App. 920, 756
N.W.2d 528 (2008).
5. Specific Findings of Fact
and Parenting Time
Gerald contends the district court erred by not granting his
request for specific findings of fact and by not awarding him
more parenting time.
(a) Specific Findings of Fact
[18] Neb. Rev. Stat. § 25-1127 (Reissue 2016) provides
in relevant part, “Upon the trial of questions of fact by the
court, it shall not be necessary for the court to state its find-
ing, except, generally, for the plaintiff or defendant, unless one
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of the parties request[s] it . . . .” In a case tried to the court
­without a jury, a motion for specific findings of fact must be
made before final submission of the case to the court. See
Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991).
See, also, In re Estate of Wiley, 150 Neb. 898, 36 N.W.2d 483
(1949) (after court has announced decision, request made for
separate findings of fact and conclusions of law came too late).
Gerald did not ask the district court to make specific findings
of fact under § 25-1127 until the hearing on his motion for
reconsideration. Because Gerald’s request was not made until
after the case was submitted to the court, the court was not
under any obligation to provide specific findings.
(b) Parenting Time
Gerald argues that the district court should have awarded
him parenting time with his children “at least 6 out of 14 days
during the school year, 1⁄2 of holidays and 1⁄2 of the summer as
this was in the children’s best interest[s].” Brief for appellant
at 34 (emphasis omitted).
[19] When deciding custody issues, the court’s paramount
concern is the child’s best interests. Citta v. Facka, 19 Neb.
App. 736, 812 N.W.2d 917 (2012). The best interests inquiry
has its foundation in both statutory and case law. Section
43-2923(6) provides that in determining custody and parent-
ing 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 chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
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(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).
The record reveals a contentious relationship between Gerald
and Ashley. While both parents appear to love their chil-
dren, Ashley appears to have a more even temperament. And
Gerald has put the children in the middle of his disputes with
Ashley—e.g., when he showed Cipher affidavits Ashley and
her mother presented to the court and when he made Cipher
choose between going to an out-of-town football game a day
earlier than Ashley would allow or missing the game. Based
on the evidence from trial set forth previously, we cannot say
the district court abused its discretion when it awarded Gerald
regular parenting time every other weekend from Friday at
4 p.m. until Monday at 8 a.m. and every other Thursday from
4 to 7 p.m. (before the weekend in which he does not have
parenting time).
6. Clothing Costs
Gerald argues the district court erred when it ordered him
to purchase approximately one-half of the children’s clothing,
even though his child support obligation was based on a sole
custody calculation. We agree, as discussed below.
[20] In Kelly v. Kelly, post p. 198, ___ N.W.2d ___ (2020),
released the same day as this opinion, we set forth the pro-
gression of the law regarding child support and various
expenses considered in support orders. Prior to the Nebraska
Child Support Guidelines, Nebraska statutory law addressed
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various expenses, including clothing, to be considered in sup-
port orders. See, Neb. Rev. Stat. § 42-369(3) (Cum. Supp.
2018); Kelly v. Kelly, supra. Later, in 1987, the Nebraska
Child Support Guidelines were created. See Kelly v. Kelly,
supra. See, also, Neb. Rev. Stat. § 42-364.16 (Reissue 2016)
(requires Nebraska Supreme Court to create guidelines that
serve as rebuttable presumption in setting child support obli-
gations). Then, in 2008, the Legislature passed 2008 Neb.
Laws, L.B. 1014, § 33, codified at Neb. Rev. Stat. § 42-364.17
(Reissue 2016), which specifically sets forth certain categories
of expenses—“necessary medical, dental, and eye care, medi-
cal reimbursements, day care, extracurricular activity, educa-
tion, and other extraordinary expenses of the child”—that
could be considered in determining parents’ financial respon-
sibilities related to their children. See Kelly v. Kelly, supra.
A trial court has the authority to order a parent to pay the
categories of expenses specified in § 42-364.17, in addition
to the monthly child support obligation calculated under the
guidelines. See Kelly v. Kelly, supra. Because the broader,
more general terms contained in § 42-369(3) preceded the
adoption of the ­guidelines and the passage of § 42-364.17, we
construe the guidelines and § 42-364.17 to control what cat-
egories of expenses can be ordered to be paid in addition to a
monthly child support obligation when child support has been
calculated using the basic net income and support calculation,
worksheet 1. Kelly v. Kelly, supra. See Neb. Ct. R. ch. 4, art.
2, worksheet 1 (rev. 2016).
As applicable here, when considering § 42-364.17 and
what expenses a parent may be ordered to pay in addition to
his or her monthly child support obligation which has been
calculated using the basic net income and support calcula-
tion, worksheet 1, the only category under which clothing
could possibly qualify would be “extraordinary expenses.” As
stated in Kelly v. Kelly, post at 198, ___ N.W.2d at ___, “We
conclude that such expenses fall within the basic necessities
intended to be covered by a monthly child support obligation
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calculated using the basic net income and support calcula-
tion, worksheet 1, and do not rise to the level of ‘extraordi-
nary expenses.’”
However, an order requiring Gerald to purchase one-half of
the children’s clothing would have been appropriate had the
court ordered joint physical custody. Neb. Ct. R. § 4-212 (rev.
2011), regarding joint physical custody, provides in relevant
part: “If child support is determined under this paragraph, all
reasonable and necessary direct expenditures made solely for
the child(ren) such as clothing and extracurricular activities
shall be allocated between the parents, but shall not exceed
the proportion of the obligor’s parental contributions . . . .”
But, in this case, Gerald’s child support obligation was based
on Ashley’s primary custody of the children, and thus, Gerald
could be required to pay for only a portion of the children’s
clothing if it rose to the level of an “extraordinary expense.”
And we have already determined that clothing is a basic neces-
sity intended to be covered by a monthly child support obliga-
tion which has been calculated using worksheet 1.
The district court abused its discretion in ordering that “[t]he
parties shall each purchase the children clothing in an approxi-
mately equal amount.” Accordingly, we reverse this portion of
the decree, and the decree is modified accordingly.
7. Attorney Fees
Gerald argues that the district court erred in ordering him to
pay $2,885 of Ashley’s attorney fees “in light of the fact that
[he] was shorted 26 days of parenting time due to the entry of
an erroneous temporary order and because he was making good
faith efforts to pay financial obligations owed in the temporary
order.” Brief for appellant at 49.
An affidavit from Ashley’s attorney was received into evi-
dence and stated that counsel had “personally spent at least
11.8 hours of work related to temporary hearing and contempt
issues” and that counsel’s office had also incurred fees and
expenses; counsel’s rate was $275 per hour. Counsel’s para-
legal had also worked on the case for 6.4 hours at a rate of
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$150 per hour. Ashley testified that she incurred attorney fees
related to three temporary hearings—the original temporary
hearing plus two additional temporary hearings requested by
Gerald—and she had to file a contempt action when Gerald
would not follow the temporary parenting time and child sup-
port orders. Ashley was not asking that Gerald be ordered to
pay for all of her attorney fees, acknowledging that she was
“responsible for initiating the custody” proceedings. But she
requested an award of attorney fees “to offset the charges that
wouldn’t have occurred if [Gerald] would have followed the
[temporary] ruling.”
The district court ordered Gerald to pay $2,885 of Ashley’s
attorney fees “due to his inability to follow the temporary order
regarding parenting time, child support obligations, and child
care obligations and the legal fees incurred by [Ashley] due
to same.”
The record is clear that Gerald was not prepared for the
temporary hearing in September 2017, at which he appeared
pro se. Following the temporary hearing and order, he failed
to follow the parenting time schedule and failed to fulfill
his child support obligation. After Gerald obtained counsel,
he sought further temporary orders, necessitating Ashley to
employ her counsel’s services. Gerald’s attempts to obtain fur-
ther temporary orders regarding parenting time and child sup-
port were not successful. At the time trial commenced, Gerald
had not paid any of the court-ordered childcare costs and he
was behind in paying child support. Between September 2017
and June 2018, Gerald paid only $1,050. Between June 26,
2018, and the completion of trial on January 23, 2019, Gerald
had paid a little more than $2,000; he never once paid his full
monthly obligation. By the time trial concluded, Gerald was
thousands of dollars in arrears in child support (approximately
$10,000 in arrears and interest as of January 23, 2019, but we
recognize that the temporary child support order was modified
in the final decree). Accordingly, we find no abuse of discre-
tion by the trial court, and we affirm its award of $2,885 in
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attorney fees to Ashley. See Cross v. Perreten, 257 Neb. 776,
600 N.W.2d 780 (1999) (award of attorney fees in paternity
action reviewed de novo on record to determine whether there
has been abuse of discretion by trial judge; absent such abuse,
award will be affirmed).
8. Transcription Costs in Preparation
for Motion for New Trial
Gerald contends that the district court erred by not granting
his IFP request for transcription of court hearings or, alterna-
tively, in not ordering Ashley to pay for the same so that he
could “adequately prepare for Motion for New Trial.” Brief for
appellant at 47 (emphasis omitted).
After the paternity decree was filed on May 8, 2019, Gerald
filed his motion to reconsider on May 15. At a hearing on May
31, Gerald’s counsel mentioned that she had previously sent a
letter to the court requesting that an IFP order be entered for
Gerald because he requested a “transcript” of the entirety of
the proceedings so counsel could have them before the hearing
on the motion to reconsider. Counsel renewed the IFP request
on the record and requested that the court grant the IFP, that
a “transcript be prepared,” and that the hearing be continued
until counsel had the opportunity to review the transcript.
On June 6, 2019, Gerald filed a “Motion for Transcript.”
Gerald requested that the district court “enter an IFP Order
allowing him to receive a transcription of the proceed-
ings or an order for [Ashley] to pay for transcription of
these proceedings” prior to his hearing and argument on his
motion to reconsider. In his affidavit attached to the motion,
Gerald states:
In order for [him] to have procedural and substantive due
process and a fair proceeding, given the unusual progres-
sion and unusual length of these proceedings, counsel for
[Gerald] needs to review the entirety of the over eight (8)
month time period of trial and also hearings that occurred
prior when [Gerald] was pro se.
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Gerald also believed that the court needed to review the evi-
dence in its entirety when making a final ruling on his motion
to reconsider.
A hearing was held on June 27, 2019, regarding Gerald’s
request that the district court enter an IFP order for him to be
able to receive “a copy of the complete transcript” or, alter-
natively, to order Ashley to pay for it. Received into evidence
was Gerald’s affidavit with pay stubs attached ($2,169.46 gross
and $1,123.67 net from April 21 to May 18, 2019), and his
2018 W-2 wage and tax statement ($31,490.12 for the year);
he claimed his monthly expenses set forth in the affidavit
exceeded his income. The court noted that according to the
pay stubs, Gerald was not working full time—he was working
approximately 60 hours in a 2-week period. The court stated,
“I have no information for why he’s not working full time. I
don’t find him to be below the poverty level, and I’m not sure
how it’s going to support the request to proceed IFP.” Gerald
then asked the court to order Ashley to pay for the transcript.
Ashley’s counsel argued she should not have to pay for it.
Counsel noted that Gerald argues he does not have the ability
to pay for the transcript, but he had purchased plane tickets to
take the children to New York. The court stated, “I’m not going
to order [Ashley to] pay for the transcript.” On June 28, 2019,
the district court denied Gerald’s motion for a transcription of
the proceedings.
Neb. Rev. Stat. § 25-2301.01 (Reissue 2016) states:
Any county or state court, except the Nebraska Workers’
Compensation Court, may authorize the commencement,
prosecution, defense, or appeal therein, of a civil or crimi-
nal case in forma pauperis. An application to proceed in
forma pauperis shall include an affidavit stating that the
affiant is unable to pay the fees and costs or give security
required to proceed with the case, the nature of the action,
defense, or appeal, and the affiant’s belief that he or she
is entitled to redress.
(Emphasis supplied.) Gerald’s desire to have the earlier pro-
ceedings transcribed was not absolutely necessary to his
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SMITH v. KING
Cite as 29 Neb. Ct. App. 152
motion to reconsider, and we therefore find that it is not the
type of “required” fees and costs anticipated by the statute.
Additionally, we are unaware of any authority, and Gerald
points us to none, that would require Ashley to pay for a tran-
scription of the proceeding so that Gerald could prepare for a
hearing on his own motion.
VI. CONCLUSION
We reverse the portion of the paternity decree which states,
“The parties shall each purchase the children clothing in an
approximately equal amount.” The May 8, 2018, paternity
decree is modified accordingly. We otherwise affirm the pater-
nity decree, as well as the October 3 order nunc pro tunc deal-
ing with Gerald’s child support obligation.
Affirmed as modified.