Shandera v. Schultz ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:12 PM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
Donald L. Shandera III, father of the minor
child Austyn M. Shandera, appellee, v.
K aitlyn A nn Schultz, appellant.
___ N.W.2d ___
Filed January 19, 2016. No. A-14-1158.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion. In such de novo review, when the evidence is in
conflict, the appellate court considers, and may give weight to, the fact
that the trial court heard and observed the witnesses and accepted one
version of the facts rather than another.
2. Child Custody. Nebraska’s removal jurisprudence does not apply to a
child born out of wedlock where there has been no prior adjudication
addressing child custody or parenting time. However, it is proper to
give some consideration to the factors in Farnsworth v. Farnsworth, 257
Neb. 242, 597 N.W.2d 592 (1999), in determining custody based on the
child’s best interests.
3. ____. To prevail on a motion to remove a minor child, the custodial par-
ent must first satisfy the court that he or she has a legitimate reason for
leaving the state. After clearing that threshold, the custodial parent must
next demonstrate that it is in the child’s best interests to continue living
with him or her.
4. ____. There are three broad considerations in deciding whether removal
is in a child’s best interests: (1) each parent’s motives for seeking or
opposing the move, (2) the potential that the move holds for enhanc-
ing the quality of life for the child and the custodial parent, and (3)
the impact such a move will have on contact between the child and the
noncustodial parent.
5. ____. In deciding whether removal is in a child’s best interests, the
court considers the child’s quality of life, which may be further broken
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SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
down into numerous factors that can be considered by the trial court in
assessing the potential for enhancing the quality of life for the child and
custodial parent.
6. Evidence: Appeal and Error. Where the credible evidence is in conflict
on a material issue of fact, the appellate court considers, and may give
weight to, the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another.
7. Jurisdiction: Appeal and Error. When the jurisdictional question does
not involve a factual dispute, determination of the issue is a matter of
law, which requires an appellate court to reach a conclusion independent
from the trial court.
8. Child Custody: Jurisdiction: States. The Uniform Child Custody
Jurisdiction and Enforcement Act was enacted to serve the following
purposes: (1) to avoid interstate jurisdictional competition and conflict
in child custody matters, (2) to promote cooperation between courts of
other states so that a custody determination can be rendered in a state
best suited to decide the case in the interest of the child, (3) to discour-
age the use of the interstate system for continuing custody controversies,
(4) to deter child abductions, (5) to avoid relitigation of custody issues,
and (6) to facilitate enforcement of custody orders.
9. ____: ____: ____. In order for a state to exercise jurisdiction over a
child custody dispute, that state must be the home state as defined by
the Uniform Child Custody Jurisdiction and Enforcement Act or fall
under limited exceptions to the home state requirement specified by
the act.
10. ____: ____: ____. The Uniform Child Custody Jurisdiction and
Enforcement Act provides that a state has jurisdiction to make an initial
custody determination only if it is the home state of the child on the
date of the commencement of the proceeding or was the home state of
the child within 6 months before the commencement of the proceeding
and the child is absent from the state but a parent or person acting as a
parent continues to live in the state.
11. Paternity: Child Custody. It is well settled that in paternity cases, an
unwed mother is initially entitled to automatic custody of the child, but
that the issue must ultimately be resolved on the basis of the fitness of
the parents and the best interests of the child.
12. Attorney Fees: Words and Phrases. The term “frivolous,” as used
in Neb. Rev. Stat. § 25-824(2) (Reissue 2008), connotes an improper
motive or legal position so wholly without merit as to be ridiculous.
13. Actions. Any doubt about whether a legal position is frivolous or taken
in bad faith should be resolved in favor of the one whose legal position
is in question.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
Appeal from the District Court for Washington County: John
E. Samson, Judge. Affirmed.
Karen S. Nelson, of Schirber & Wagner, L.L.P., for appellant.
Kelly T. Shattuck, of Vacanti Shattuck, for appellee.
Pirtle, R iedmann, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Kaitlyn Ann Schultz (Kaitlyn) appeals from an order of the
district court for Washington County finding that Donald L.
Shandera III is the biological father of Austyn M. Shandera and
awarding custody of Austyn to Donald. Based on the reasons
that follow, we affirm.
BACKGROUND
Kaitlyn and Donald were in a relationship and began liv-
ing together in April 2010. In October 2012, Kaitlyn felt the
relationship was no longer working and she moved out. She
subsequently became pregnant and moved back in with Donald
in May 2013. Austyn was born in August 2013.
Over Thanksgiving 2013, Kaitlyn went to visit her mother
in Georgia, and upon returning, she ended her relationship with
Donald and she and Austyn moved out of Donald’s home. On
December 4, Kaitlyn moved her belongings out of Donald’s
home. Kaitlyn then moved to Texas with Austyn, where they
continued to live at the time of trial.
On December 9, 2013, Donald filed a petition to establish
paternity and custody. A temporary order was entered on May
28, 2014, allowing Kaitlyn to stay in Texas pending trial and
granting Donald five 2-week blocks of parenting time before
the trial date.
Trial was held on September 3, 2014. Both parties testified,
as well as several other witnesses. Donald testified that Kaitlyn
had talked to him about moving with Austyn to Texas, but that
he did not agree to the move, because he did not want Austyn
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SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
to leave. Kaitlyn told Donald and friends that she was leaving
Nebraska to get a better job and better housing. Further, she
told Donald that she had a job in Texas that was going to pay
$35 an hour, but this turned out not to be true.
When Kaitlyn went on maternity leave, she was work-
ing at a nursing home in Omaha, Nebraska, making $18.22
an hour. When she went back to work in October 2013, she
started working for a different nursing home located in Blair,
Nebraska. She took a pay cut, earning $17 per hour, but it
allowed her to be closer to Austyn because she no longer had
to drive to Omaha. She worked from 2 to 10 p.m. on Mondays,
Wednesdays, and Fridays. On the days she worked, she would
take Austyn to daycare around 1:30 p.m. and Donald would
pick her up around 6 p.m. Kaitlyn testified that on Tuesdays
and Thursdays, she was the sole caregiver for Austyn until
around 10 p.m. because Donald was taking college classes on
those days after work. Kaitlyn testified that she was primarily
responsible for feeding Austyn, changing diapers, clothing and
bathing Austyn, attending doctor appointments, and putting
Austyn down for naps. Kaitlyn also testified that she was often
the primary caregiver on the weekends, because Donald was
helping his family with harvesting.
Donald testified that while Kaitlyn was on maternity leave,
he would routinely wake up each morning with Austyn and
give her a bottle before he went to work and would put her
to bed almost every night. When he got home from work, he
would spend time with Austyn. Donald testified that when
Kaitlyn went back to work after maternity leave and was
working until 10 p.m., he would pick up Austyn from daycare
around 6 p.m. and take care of her the rest of the evening.
Kaitlyn acknowledged that Donald was a good father and
that she did not have concerns about his parenting abil-
ity, but ­testified that his help with Austyn was generally at
her request.
The evidence showed that Donald has lived in Nebraska
for all but 2 years of his life, had recently completed college,
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SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
and had maintained steady employment. The home in Blair
where Kaitlyn and Donald were living when Austyn was born
was owned by Donald’s parents. At the time of trial, Donald
continued to live in the three-bedroom home. Donald’s parents
also live in Blair. Donald also testified that he has numerous
family members that live within about an hour’s drive of Blair.
Kaitlyn’s father lives in Texas, and her mother lives in Georgia.
Kaitlyn acknowledged that her only family support in Texas
was her father.
When Kaitlyn and Austyn first moved to Texas, they lived
with Kaitlyn’s father. At the time of trial, she had been rent-
ing a two-bedroom apartment for her and Austyn since April
2014, which was somewhere between 20 to 40 minutes from
her father’s home. When Kaitlyn first moved to Texas, she
obtained a job earning $22 an hour. She did not have health
benefits, and Austyn was on Medicaid. At the time of trial,
she was working at a different job, where she was earn-
ing $23.50 an hour and had full benefits. Kaitlyn was also
attending a community college, working toward a degree
in nursing.
Kaitlyn acknowledged that there was no financial advantage
to her move to Texas. She testified that from the time she went
back to work after maternity leave until she moved to Texas,
Austyn’s daycare provider, who was a friend, had not charged
her anything for daycare. Kaitlyn testified that at some point,
the provider was going to start charging her $100 per week, or
$400 per month. Kaitlyn testified that in Texas, she was incur-
ring $580 per month in childcare.
Kaitlyn’s mental health was also brought up as an issue of
concern. Kaitlyn had been treated for attention deficit disorder
and anxiety since she was 10 years old. She testified that at
one point, she was taking the highest possible dosage of medi-
cation to treat her mental health issues. Due to safety concerns
for the baby when she was pregnant, at the suggestion of her
psychiatrist, she discontinued the medications during preg-
nancy and during the time she was breastfeeding Austyn. As
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SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
of the date of trial, Kaitlyn had not resumed her medication
and had not seen a psychiatrist about what medication she
should be taking.
Following trial, the court found that Donald was Austyn’s
biological father and awarded Donald sole custody of Austyn,
subject to Kaitlyn’s reasonable parenting time.
ASSIGNMENTS OF ERROR
Kaitlyn assigns that the trial court erred in (1) applying
Nebraska’s removal jurisprudence to an initial custody determi-
nation in a paternity action, (2) failing to make findings under
the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), and (3) failing to give her preference in custody
of Austyn.
STANDARD OF REVIEW
[1] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
discretion by the trial court, whose judgment will be upheld in
the absence of an abuse of discretion. In such de novo review,
when the evidence is in conflict, the appellate court considers,
and may give weight to, the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than another. Citta v. Facka, 19 Neb. Ct. App. 736, 812
N.W.2d 917 (2012).
ANALYSIS
Custody.
Kaitlyn first assigns that the trial court erred in applying
Nebraska’s removal jurisprudence to an initial custody deter-
mination in a paternity action. In its order, the court found
that both parties were fit parents and that therefore, the court
needed only to determine the best interests of Austyn in regard
to which parent should have sole custody. The court stated
that a factor affecting the best interests of the child was the
fact that Kaitlyn had moved to Texas and intended to stay in
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23 Nebraska A ppellate R eports
SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
Texas regardless of the outcome of the custody determination.
The trial court noted that Nebraska’s jurisprudence regarding
the removal of minor children from the State of Nebraska did
not mandatorily apply to a child born out of wedlock where
there has been no prior adjudication addressing child custody
and parenting time. However, the court stated that based on
the instructive language in Coleman v. Kahler, 17 Neb. Ct. App.
518, 766 N.W.2d 142 (2009), it gave some consideration
to the factors set forth in Farnsworth v. Farnsworth, 257
Neb. 242, 597 N.W.2d 592 (1999) (factors used to determine
whether custodial parent should be allowed to remove child
from state), in determining Austyn’s best interests. The court
further found that although it considered the removal factors,
Kaitlyn did not have the burden of proof in regard to estab-
lishing the factors.
[2] In Coleman v. Kahler, supra, a father and mother were
in a relationship from which two children were born, but
they were never married. Various orders regarding paternity
and child support were entered, but no custody determina-
tions were made, and the mother eventually moved with the
children out of state. Id. The trial court awarded custody of
the parties’ minor children to the mother, finding that it was
in the best interests of the children to award the mother cus-
tody and to allow her to remove the children out of the state.
Id. On appeal, the father asserted that the trial court erred in
denying his request for custody and in allowing the mother
to remove the children, because she did not meet the test set
forth in Farnsworth. The mother argued that the Farnsworth
test was inapplicable. Coleman v. Kahler, supra. This court
held that Nebraska’s removal jurisprudence does not apply
to a child born out of wedlock where there has been no prior
adjudication addressing child custody or parenting time. Id.
However, we further held that it was proper to give some con-
sideration to the Farnsworth factors in determining custody
based on the child’s best interests. The Coleman court then set
out the three broad considerations enunciated in Farnsworth
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23 Nebraska A ppellate R eports
SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
used in considering whether removal is in the children’s
best interests, and applied them to the evidence presented
in Coleman.
[3-5] Farnsworth v. Farnsworth, supra, provides that to
prevail on a motion to remove a minor child, the custodial
parent must first satisfy the court that he or she has a legiti-
mate reason for leaving the state. After clearing that thresh-
old, the custodial parent must next demonstrate that it is in
the child’s best interests to continue living with him or her.
Id. There are three broad considerations in deciding whether
removal is in a child’s best interests: (1) each parent’s motives
for seeking or opposing the move, (2) the potential that the
move holds for enhancing the quality of life for the child
and the custodial parent, and (3) the impact such a move will
have on contact between the child and the noncustodial par-
ent. Id. The second consideration, the child’s quality of life,
may be further broken down into numerous factors that can
be considered by the trial court in assessing the potential for
enhancing the quality of life for the child and custodial par-
ent. See id.
Kaitlyn contends that based on the court’s holding in
Coleman v. Kahler, 17 Neb. Ct. App. 518, 766 N.W.2d 142 (2009),
it was proper for the trial court to give some consideration to
the three broad considerations in Farnsworth v. Farnsworth,
257 Neb. 242, 597 N.W.2d 592 (1999), to assist in determining
Austyn’s best interests, but that the court erred in doing a com-
plete Farnsworth analysis. She contends that by weighing all
the Farnsworth factors used to determine whether removal is
in a child’s best interests, the court failed to consider Austyn’s
best interests in regard to custody. Specifically, she suggests
that the court failed to consider that she has been Austyn’s
primary caregiver since December 2013, when she moved to
Texas when Austyn was 4 months old.
The Coleman court said that it was proper to give some
consideration to the Farnsworth factors in determining cus-
tody and set out the three broad considerations enunciated
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SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
in Farnsworth used in considering whether removal is in the
children’s best interests. As previously stated, the Farnsworth
case sets out many factors that can be considered under the
quality-of-life consideration. The trial court in the present
case specifically addressed a number of the quality-of-life fac-
tors. It also discussed whether Kaitlyn had a legitimate reason
for leaving the state and her reasons for seeking the move.
Therefore, the trial court did not do a complete Farnsworth
analysis, as Kaitlyn contends. Other than the legitimate rea-
son for leaving the state discussion, the trial court considered
only the three broad considerations set out in Farnsworth and
was following what the Coleman case held was appropriate
to consider.
The trial court first discussed whether Kaitlyn had a legiti-
mate reason to leave the state and concluded that there was no
compelling economic reason which justified removing Austyn
from the state and that Kaitlyn’s motivation was solely to
make herself happy.
The trial court next discussed each parent’s motives for
seeking or opposing the removal. The court mentioned that
Kaitlyn testified that she was “miserable” in Nebraska and
that she is happy in Texas. She also testified that she wanted
to live near her father. The court found that her motive for
removing Austyn to Texas was not entirely to keep Austyn
away from Donald. The court further found that although
Kaitlyn and Donald may have discussed Kaitlyn and Austyn’s
moving to Texas, there was not a mutual agreement about
the relocation.
The trial court next discussed some of the quality-of-life
removal factors as set forth in Farnsworth—specifically, the
emotional, physical, and developmental needs of the child; the
extent to which Kaitlyn’s income will be enhanced; the degree
to which housing and living conditions would be improved;
the quality of the relationship between the child and each
parent; and the strength of the child’s ties to the community
and extended family. In discussing these factors, the trial
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SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
court noted that the child was only 1 year old, but that once
she reached school age, she would attend school in the Blair
school district if she lived in Nebraska. There was evidence
indicating this was an above-average school district, and there
was no evidence regarding the quality of the school district
she would attend in Texas. The court noted, as previously
discussed, that there was no financial advantage to living in
Texas for Kaitlyn. In regard to living conditions, Austyn had
been living in a three-bedroom home in Blair before moving
to Texas, whereas in Texas, she lives in an apartment. The
court stated that if the child lives in Texas, she will have a
relationship and bond with Kaitlyn, but that the relationship
with Donald would be extremely limited. It stated that the
quality of the relationship with both parents would be better if
Austyn lived in close proximity to both parents, but that that
would not be possible, given that Kaitlyn indicated she was
going to stay in Texas regardless of whether she was awarded
custody. The court noted that only Austyn’s maternal grand­
father lives in Texas. In Nebraska, however, there was a strong
support system of family that lived within a 2-hour drive
of Blair, including paternal grandparents, great-grandparents,
aunts, uncles, and cousins.
[6] In addition to considering the factors in Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), the trial
court considered the credibility of the witnesses, stating that
it was concerned about Kaitlyn’s overall credibility and that
it found Donald to be a more credible witness than Kaitlyn.
Where the credible evidence is in conflict on a material issue
of fact, the appellate court considers, and may give weight to,
the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another. See
Citta v. Facka, 19 Neb. Ct. App. 736, 812 N.W.2d 917 (2012).
The court also considered the stability of each parent and
the physical environment offered by each parent. The trial
court stated that Kaitlyn has had a series of jobs over the years
and has had difficulty maintaining long-term employment for
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Cite as 23 Neb. Ct. App. 521
miscellaneous reasons. It further noted that Kaitlyn moved to
Texas with the child without having stable employment or a
permanent residence before the move. Also, Kaitlyn admitted
that she has been prescribed psychotropic medications and has
taken such medications since she was 10 years old. She stopped
taking the medications when she was pregnant, but was still off
the medications and had not consulted with a doctor regarding
her continued use of the medications. The court also mentioned
that although Kaitlyn has been more actively involved in the
physical care of the child, Donald was entrusted with the care
of the child when the parties were living together and recently
had been actively involved as a result of the temporary order
which gave him parenting time.
The trial court considered many factors in making a custody
decision in the best interests of Austyn. The court could not
ignore the fact that Kaitlyn was living in Texas and Donald
was living in Nebraska, and it took those circumstances into
account in determining best interests. Based on Coleman v.
Kahler, 17 Neb. Ct. App. 518, 766 N.W.2d 142 (2009), it was
proper for the court to consider the removal factors set out in
Farnsworth v. Farnsworth, supra, that it did in determining
Austyn’s best interests for custody purposes. Further, the trial
court recognized that Kaitlyn did not have the burden of proof
that she would have in a true removal case.
Based on our de novo review of the record, the trial court
did not abuse its discretion in finding that it was in Austyn’s
best interests to award Donald sole custody.
UCCJEA.
Kaitlyn assigns that the trial court erred in failing to make
a finding as to whether it had jurisdiction under the UCCJEA,
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2008 & Cum.
Supp. 2014), to make a custody determination. She contends
that the trial court, on its own motion, should have made a
determination under § 43-1244 that it was an inconvenient
forum and lacked jurisdiction, because by the time of trial,
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Austyn had resided in Texas longer than in Nebraska and had
significant connections with Texas.
[7] In considering whether jurisdiction existed under the
UCCJEA, when the jurisdictional question does not involve a
factual dispute, determination of the issue is a matter of law,
which requires an appellate court to reach a conclusion inde-
pendent from the trial court. Zimmerman v. Biggs, 22 Neb.
App. 119, 848 N.W.2d 653 (2014).
[8] The UCCJEA was enacted to serve the following pur-
poses: (1) to avoid interstate jurisdictional competition and
conflict in child custody matters, (2) to promote cooperation
between courts of other states so that a custody determination
can be rendered in a state best suited to decide the case in the
interest of the child, (3) to discourage the use of the interstate
system for continuing custody controversies, (4) to deter child
abductions, (5) to avoid relitigation of custody issues, and
(6) to facilitate enforcement of custody orders. Zimmerman v.
Biggs, supra.
[9,10] The most basic proposition under the UCCJEA
is that in order for a state to exercise jurisdiction over a
child custody dispute, that state must be the home state as
defined by the UCCJEA or fall under limited exceptions to
the home state requirement specified by the act. § 43-1238;
Zimmerman v. Biggs, supra. The UCCJEA provides that a
state has jurisdiction to make an initial custody determina-
tion only if it is the home state of the child on the date of
the commencement of the proceeding or was the home state
of the child within 6 months before the commencement of
the proceeding and the child is absent from the state but a
parent or person acting as a parent continues to live in the
state. § 43-1238; Zimmerman v. Biggs, supra. “Home state,”
defined in § 43-1227(7), means
the state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months
immediately before the commencement of a child custody
proceeding. In the case of a child less than six months
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of age, the term means the state in which the child lived
from birth with any of the persons mentioned. A period
of temporary absence of any of the mentioned persons is
part of the period.
Austyn was born in Nebraska in August 2013 and remained
in Nebraska until Kaitlyn took her to Texas in December 2013.
Donald filed his complaint on December 9. There is some dis-
agreement on whether Kaitlyn left Nebraska on December 4 or
December 10; however, it is immaterial in determining whether
the trial court had jurisdiction. The determination of whether
the trial court had jurisdiction is based on whether Nebraska
was Austyn’s home state when the action was commenced. The
UCCJEA defines “[c]ommencement” as “the filing of the first
pleading in a proceeding.” § 43-1227(5).
It is apparent from the record that Nebraska was the home
state of Austyn when the action was filed. The record indicates
that the current proceeding was the first to establish paternity
of Austyn, and there is no indication of any prior custody order
concerning Austyn.
Under § 43-1238, the district court had jurisdiction to make
an initial custody determination. The trial court found that it
had jurisdiction over the parties and the subject matter of this
action when it entered the temporary order on May 28, 2014,
and when it entered the decree on December 2. We also note
that the record does not contain any request by Kaitlyn for
the court to decline to exercise its jurisdiction because it was
an inconvenient forum. Kaitlyn’s assignment of error is with-
out merit.
Preference in Custody.
[11] Kaitlyn next assigns that the trial court erred in failing
to give her preference in determining custody of Austyn. She
contends that in Nebraska, it is well settled that in paternity
cases, an unwed mother is initially entitled to automatic cus-
tody of the child, but that the issue must ultimately be resolved
on the basis of the fitness of the parents and the best interests
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of the child. See Citta v. Facka, 19 Neb. Ct. App. 736, 812 N.W.2d
917 (2012). See, also, State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). She
argues, therefore, that she was “entitled to a presumption of
custody unless [Donald] could overcome that presumption.”
Brief for appellant at 26-27.
Kaitlyn is correct in that an unwed mother is initially
entitled to automatic custody of the child when the child is
born. However, once an action to determine custody is filed,
the issue of custody must ultimately be resolved on the basis
of the fitness of the parents and the best interests of the child.
Citta v. Facka, supra. In the present case, the trial court found
both parents to be fit and, therefore, the only issue for the
court to consider in determining custody was the best interests
of Austyn. There is no merit to Kaitlyn’s final assignment
of error.
Donald’s Motion for Attorney Fees.
During the pendency of this appeal, Donald’s attorney filed
a motion for attorney fees, in which he alleged: “[Kaitlyn’s]
appeal of this matter is frivolous and is a waste of this Court’s
resources.” Kaitlyn’s attorney filed an objection, in which
she alleged Donald’s motion was premature and asserted the
appeal was not “frivolous.”
[12,13] Neb. Rev. Stat. § 25-824(2) (Reissue 2008) provides:
Except as provided in subsections (5) and (6) of this
section, in any civil action commenced or appealed
in any court of record in this state, the court shall
award as part of its judgment and in addition to any
other costs otherwise assessed reasonable attorney’s fees
and court costs against any attorney or party who has
brought or defended a civil action that alleges a claim or
defense which a court determines is frivolous or made in
bad faith.
The term “frivolous,” as used in subsection (2) of this sec-
tion, connotes an improper motive or legal position so wholly
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
SHANDERA v. SCHULTZ
Cite as 23 Neb. Ct. App. 521
without merit as to be ridiculous. Peter v. Peter, 262 Neb.
1017, 637 N.W.2d 865 (2002). Any doubt about whether a
legal position is frivolous or taken in bad faith should be
resolved in favor of the one whose legal position is in ques-
tion. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d
427 (2010).
Upon our de novo review of the record presented to us
and the written briefs filed by the parties, and after granting
and hearing oral argument in this matter, we find Kaitlyn’s
appeal was not frivolous or made in bad faith, and as a result,
Donald’s motion for attorney fees is denied.
CONCLUSION
We conclude that the trial court did not err in considering
some of the factors used in a removal case in making an initial
custody determination in a paternity action. We further con-
clude that the trial court did not err in failing to make findings
under the UCCJEA and did not err in failing to give Kaitlyn
preference in custody of Austyn. Accordingly, the order of
the trial court awarding Donald sole custody of Austyn is
affirmed. Donald’s motion for attorney fees is denied.
A ffirmed.