Anderson v. Anderson ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ANDERSON V. ANDERSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
AMANDA J. ANDERSON, NOW KNOWN AS AMANDA J. SCHAAF, APPELLEE,
V.
RYAN J. ANDERSON, APPELLANT.
Filed November 23, 2021. No. A-21-175.
Appeal from the District Court for Holt County: MARK D. KOZISEK, Judge. Affirmed.
Bergan E. Schumacher, of Bruner, Frank, Schumacher & Husak, L.L.C., for appellant.
Allison Rockey Mason, of Copple, Rockey, Schlecht & Mason, P.C., L.L.O., for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Ryan J. Anderson appeals from an order of the district court for Holt County which denied
his complaint to modify custody of the two children he shares with Amanda J. Anderson, now
known as Amanda J. Schaaf. He specifically assigns and argues that the district court should have
granted him sole legal and physical custody of the children. Ryan also assigns as error the court’s
award of attorney fees to Amanda. For the reasons set forth below, we affirm.
BACKGROUND
Amanda and Ryan were married in April 2008. The parties are parents to two children,
Wyatt, born in 2007, and Shelby, born in 2009. In October 2011, the marriage was dissolved and
an agreed upon decree was entered awarding Amanda sole legal and physical custody of the
children subject to Ryan’s parenting time. Ryan’s parenting time included every other weekend,
from Friday to Sunday, an alternating holiday schedule, and 6 consecutive weeks during the
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summer. An order modifying the decree was entered on November 5, 2012, which increased
Ryan’s child support payments to $837 per month but did not modify his parenting time with the
children.
On September 20, 2019, Ryan filed the operative complaint for modification seeking legal
and physical custody of the children. Ryan alleged that several material changes in circumstances
had occurred. Specifically, Ryan asserted (1) Amanda was not providing a safe environment for
the children and had exposed the children to dangerous situations, (2) Amanda was not meeting
the children’s emotional, financial, and physical needs, and (3) the children, now, desired to live
with him. He further requested that if custody was modified, child support should be recalculated.
Amanda, acting without counsel, filed a response to the complaint to modify generally denying
the allegations and requesting that the complaint be dismissed.
Prior to trial, Amanda was served with discovery documents, including requests for
admissions. These requests for admissions included requests that Amanda admit that it was in the
best interests of Wyatt and Shelby for Ryan to be awarded sole physical and legal custody. Amanda
did not complete the requests for admissions. At a subsequent hearing held March 9, 2020, in
which Amanda did not appear, Ryan put forth evidence that Amanda was served with the requests
and did not respond to them. The district court deemed the requests admitted.
Trial was ultimately held on December 21 and 22, 2020. By this time, Amanda was
represented by counsel. Ryan and Amanda testified extensively. Ryan also presented testimony
from his mother, father, and fiance. Amanda also presented testimony from her father, as well as
the children’s school principal and guidance counselor. Wyatt and Shelby, 13 and 11 respectively
at the time of trial, were both interviewed by the court in camera with counsel present. By
agreement of the parties, the district court ordered that the children’s testimonies were not to be
shared with the parents. We will only discuss the children’s testimony generally and as necessary.
At the time of trial, Amanda lived with her husband, Trent Schaaf, and their 5-year-old
daughter, Ryli, in addition to Wyatt and Shelby, in a two-bedroom “trailer house” on 200 acres of
ranch land they owned in rural Holt County. They also owned a three-bedroom home in Inman.
However, they had primarily lived in the trailer house on the ranch for the year prior to trial. Shelby
and Ryli share one bedroom and Amanda and Trent share the other bedroom. Amanda explained
that Wyatt had an area in what would have been the dining room where he sleeps on a futon and
had a dresser. She admitted that he did not have privacy at the present time. Amanda and Trent
operate a cow/calf operation on the property and also raise chickens and goats on the property.
Amanda explained that their current living arrangement is temporary until they are able to build a
new house on the property. No evidence was offered as to when the house would be built.
In addition to working on the ranch, Amanda is employed full time as a registered nurse.
Trent also works full time as a driver for UPS. Ryan testified that he lived in Grand Island and was
employed full time as a street maintenance worker for the city of Grand Island. He lives in a three
bedroom home owned by his fiance.
The evidence demonstrated a number of areas of disagreement between the parties. Ryan
contends that the children are required to do an excessive amount of chores in their mother’s home.
Ryan does not require the children to do a regular set of chores at his house due to the limited time
he has with them. At Amanda’s residence, the children had regular responsibilities. Shelby was
expected to help with dishes, clean the floor, and fold laundry. Wyatt regularly performed outside
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chores such as watering the chickens and goats, and providing hay to the cows. Amanda also
explained that the children only had to perform these chores every 2 to 3 days and that they could
complete them in 15 to 20 minutes. The children indicated that the chores they did were more
frequent, but did not take a significant period of time to complete.
Denise Meyer, the school counselor, testified that Shelby previously complained to her that
she has too many chores and that she would get into trouble if she does not complete them. Ryan
believed that the chores took away time that the children should have been devoting to homework.
Amanda testified that the children rarely brought schoolwork home to work on. Her testimony was
confirmed by the children. Amanda testified the children had ample time to complete any
schoolwork they did bring home.
Ryan alleged that there were incidents involving Trent and the children that he categorized
as abuse. Although Ryan has not seen the incidents firsthand, he stated that according to Wyatt
and Shelby, Trent had thrown things at them and dunked Shelby’s head underwater. Ryan’s mother
and father also testified to being told that Trent had put Shelby’s head underwater as a method of
punishment for excessive crying. Ryan reported the incident where Shelby’s head was placed
underwater to the Department of Health and Human Services as child abuse; however, he does not
believe that they are pursuing the allegation any longer.
The children’s testimony only partially corroborated the foregoing testimony. Amanda
denied that Trent ever put Shelby’s head underwater as a form of discipline. Rather, she explained
that Shelby had “night terrors” and this incident occurred as a result of such an event. Shelby
became very hot when she had night terrors and was hard to rouse from her sleep. On this occasion,
they carried Shelby to the bathroom and Trent put cool washcloths and towels on her back and
neck to try to cool her down. Amanda explained that Shelby was upset upon waking because she
was in a different room and had had cool and wet applications of a washcloth. Ryan testified that
Shelby has not had night terrors at any time while in his care.
Ryan also expressed concern about Trent’s anger. Ryan testified that there was an incident
where Trent “got up in [his] face” and threatened him. Meyer, the school counselor, also testified
that Shelby disclosed to her that Trent yells a lot. Amanda conceded that she has seen Trent spank
both Wyatt and Shelby as a form of discipline. However, Amanda stated that she has not observed
that the children were afraid of Trent and that spanking was only used as a “last resort” for
discipline. With respect to other allegations regarding Trent’s anger, she explained that Trent is a
loud person but that when he raises his voice at the children, it is frequently at a time where he is
concerned for their safety. Although she conceded that she and Trent argue in front of the children,
she denied that any of their arguments get physical. The children’s testimony was mixed on this
issue, but did acknowledge that Trent does yell frequently.
Ryan testified that both children have requested to live with him. Amanda testified that
neither of the children had expressed a desire to move to her. In their in-camera testimony, only
Shelby expressed a desire to live with Ryan. Shelby also told the court that Wyatt does not want
to live with Ryan. The court found that Wyatt was of sufficient age and comprehension to allow
consideration of his opinion. The court did not find Shelby to be of adequate comprehension and
maturity so as to allow consideration of her wishes.
Ryan testified as to his concerns about Amanda’s neglect of the children’s vision care.
Ryan testified that he learned that Wyatt needed glasses in 2013 or 2014 and that he and his fiance
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took Wyatt to an optometrist in order to obtain glasses. According to Ryan, he learned through
Wyatt that Amanda threw the glasses away. Ryan also presented medical records indicating that
Wyatt did not wear his glasses for a few months in 2016 and that his glasses were broken for most
of the year in 2019. According to the medical records, Wyatt was diagnosed with astigmatism and
needed to wear glasses on a full-time basis. Ryan also presented evidence that Shelby did not
receive an eye exam from an optometrist until shortly before the trial.
Amanda’s testimony was in conflict with Ryan’s. She disputed that she threw Wyatt’s
original glasses away and instead testified that the glasses were in a filing cabinet, in perfect
condition. Amanda testified that the records were inaccurate with respect to Wyatt not wearing
glasses in 2016 and reflecting that the glasses were broken in 2019. She explained that Wyatt
refused to wear his glasses at school. Amanda also testified that Wyatt only needs his glasses to
view the board at school. Because Wyatt does not like to wear glasses at school, Amanda and Trent
have given him the option to wear contacts which he is now beginning to use. Amanda conceded
that Shelby did not receive an eye exam from an optometrist until 2019 but noted that she received
regular eye exams at school, none of which gave any indication of vision problems. Amanda
testified that Shelby did not report any issues with respect to her vision, but did at some point
report experiencing headaches when she would read. Amanda took Shelby to an optometrist close
to trial. According to Amanda, Shelby’s vision was determined to be 20/20, but the optometrist
found that Shelby needed to wear glasses with prisms embedded therein to train her eyes to remain
focused forward when they relax. Her eyes were drifting apart when at rest, leading to the
headaches.
Ryan expressed concern about Amanda not taking care of the children’s dental needs as
well. Ryan presented evidence that the children did not have dental appointments in 2015, 2016,
and 2018. Specifically with respect to Wyatt, Ryan testified that Wyatt had needed braces for at
least 2 years but was only recently seen by an orthodontist. Ryan explained that he had a discussion
with Amanda about Wyatt obtaining braces.
Amanda testified that during the times when the children did not have dental appointments,
the children’s teeth were examined by a group that performed fluoride rinses and educates children
about caring for their teeth at school. Amanda testified that she did not delay getting Wyatt braces
but that Wyatt needed to complete a series of steps, including needing to have baby teeth pulled
before he could obtain braces. Both parties testified that a program of orthodontic treatment had
been devised and that Wyatt was in the process of receiving braces. Neither Ryan nor Amanda
testified to the children having cavities or any other dental issues since the decree was entered.
Ryan testified as to his concerns that Amanda and Trent could not provide for the children’s
financial needs. He received letters from the school that during the 2019-20 school year, the
children owed money on their lunch accounts. There was a negative balance for the school lunch
account in the amount of approximately $374. Ryan contacted the school and created a separate
lunch account with his money to ensure that the children could eat lunch at school. The school
principal explained that when children at the school did not have money to pay for the school
lunches, the school provides an alternate lunch that is less expensive than the normal meal. The
principal testified that Wyatt and Shelby had this alternate lunch once or twice. When the principal
explained to Wyatt and Shelby that they were to eat this alternate lunch, she observed that they
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were very upset by it. The children also testified that they were embarrassed to have to eat the
alternate lunch. However, everyone agreed that the children never went without lunch at school.
Amanda explained that during the 2019-20 school year, they were unable to pay the balance
on the school lunch account. She explained that she was a full-time student and only working part
time. During the same period, Trent was suspended from his job due to an accident he was involved
in while working. He was not paid for approximately 1 month. In addition, Amanda had a medical
procedure performed and a miscarriage. She missed a significant amount of work as a result.
Amanda further explained that they did not have the money to pay off the lunch account in its
entirety but agreed to a payment plan with the school to pay off the school lunch account. Amanda
and Trent have paid the entire lunch account.
Ryan also presented evidence regarding multiple civil judgments entered against both
Amanda and Trent during the 5 years preceding the modification proceedings. While many of the
judgments were for only a few hundred dollars, there was a civil judgment entered against Trent
in the amount of $20,432.13. The district court received these judgments into evidence but iterated
to Ryan that while it was receiving the evidence, it was going to place “very little” weight on these
judgments.
During her testimony, Amanda offered an explanation as to the multiple civil judgments
entered against her and Trent. In 2015, following the birth of Ryli, Amanda was hospitalized for 2
weeks and unable to work for 3 months. Upon returning to work, she was only able to work part
time for the first 6 weeks. Following this convalescence Amanda made the decision to become a
nurse. This required her to attend Northeast Community College for 1 year in order to take classes
needed to enter nursing school. She then attended nursing school for 2 years before becoming an
RN in 2020. As a full-time student she could only work part time during this 3-year period. During
this period, she also had further medical issues surrounding another pregnancy which resulted in
an influx of medical bills and lost income due to complications and the ultimate loss of the twins
she had carried. She testified that her health issues are resolved now and she is in a much better
position financially.
At the time of trial, she was working approximately 36 hours per week and is paid between
$25 and $28.75 per hour depending on whether she is working daytime, nighttime, or weekend
shifts. Amanda testified that she and Trent had not contested the judgments against them and had
rejected advice to seek bankruptcy protection. She testified that many of the judgments had been
paid and that she and Trent planned to pay off all of the judgments now that their income had
stabilized and increased.
Ryan’s allegations with respect to Amanda and Trent failing to provide a safe environment
centered on his concern that Wyatt was operating a tractor and other vehicles at the ranch. Ryan
opined that he did not think it is safe for Wyatt to drive vehicles without adult supervision. Ryan
admitted that he has never personally observed Wyatt’s driving skills but has observed videos on
Wyatt’s phone taken while he was driving the tractor. Ryan conceded on cross-examination that
he does not know if Wyatt received any training about operating the vehicles, nor does he know
what the rules about operating the vehicles are while in Amanda’s care.
Amanda testified that Wyatt is allowed to operate their tractor, a pickup, and a
four-wheeler, but may only drive them on their property. The primary purpose for driving the
tractor and pickup have to do with ranch related chores and responsibilities such as providing hay
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to the cattle. Amanda testified that she and Trent have both provided training to Wyatt about
operating these vehicles. It was noted at trial that as of his next birthday, Wyatt would be eligible
to apply for a school permit.
Ryan also testified that the children were struggling academically while in Amanda’s care.
Ryan explained that if he were to receive custody he would assist the children with their homework
to improve their grades in subjects that they struggled with. On cross-examination, however, Ryan
conceded that he has not attended any parent-teacher conferences and that until it was brought out
at trial, he did not know that Wyatt has had an individualized education plan (IEP) for several
years. He did state that he had called and talked to teachers on occasion. He also stated he had full
access to the children’s education records online, but had never reviewed them such as to discover
the information regarding the IEP.
Amanda testified that she does not believe the grades for the children are as important as
the efforts the children make in school. She also testified that she does not expect her children to
be straight “A” students. She explained that the kids are of average capabilities and she expects
their grades to be reflective of that. Amanda explained that due to Wyatt’s struggles with school,
he underwent tests which resulted in the adoption of an IEP. She also pointed out that while both
children have struggled in a couple areas, they have received A’s and B’s in most of their subjects.
Their school records bear out this testimony.
Meyer, the school counselor, also confirmed that she has not talked with Ryan about how
the children are performing in school. The school principal also testified as to the details of Wyatt’s
IEP. She confirmed that she has not had a meeting with Ryan regarding the details of the IEP.
Outside of her responses to Ryan’s allegations, Amanda testified that both children were
involved in a variety of activities. Both kids were involved in youth sports programs and 4-H. In
addition, Shelby participated in dance. Wyatt participated in FFA. Both children showed animals
in the county fair. She further testified to the presence of extended family in the area who provided
additional support to the children.
The district court entered its order on February 11, 2021, denying Ryan’s request for
modification. The district court determined that Ryan failed to show that any material change of
circumstance had occurred.
The district court addressed and rejected each of the specific allegations that Ryan raised.
First, the court determined that Wyatt’s operation of tractors and other vehicles while on the ranch
was not “shocking nor unimaginable” by a child who “appeared to be mature enough to operate
the equipment in the manner that he does.” The court further found that the evidence failed to
establish that Trent’s behavior amounted to abuse or negatively affected the children. The court
noted that the past financial struggles had only affected the children insofar as them having to eat
a different school lunch due to a negative balance on the lunch account. The court found that this
issue did not constitute a material change in circumstances because the negative balance occurred
due to circumstances that were not likely to occur again. Next, the district court determined that
there was no evidence that showed Amanda compromised the children’s vision and dental health
by not having more frequent visits. In addition, the district court determined that there was
evidence to show that Amanda was appropriately meeting the children’s visual and dental health
needs. The district court also explained that Wyatt not having his own room in Amanda’s current
residence was not a material change in circumstances.
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With respect to the children’s desires as to where they wished to live, the district court
found that Wyatt had reached an age of comprehension to express his wishes and desires and had
stated his preference to live on the ranch with Amanda. The district court determined that Shelby
has not reached the age of comprehension. The district court observed that Shelby’s reasons for
wanting to live with Ryan were “rather shallow and failed to show she had given much serious
thought to the significance of a move and how it might impact herself and her family.” As such,
the district court did not place weight on Shelby’s opinion.
Pursuant to the agreement of the parties, the court recalculated child support based on the
parties’ current income. This computation resulted in a reduction of Ryan’s child support
obligation. Finally, the court awarded Amanda $7,500 for attorney fees she had incurred pursuant
to the modification action. However, the court deducted $3,360 from this award to offset childcare
expenses Ryan had previously paid for a period of time that the children were not receiving
childcare.
Ryan now appeals to this court.
ASSIGNMENTS OF ERROR
Ryan assigns and argues that the district court erred in denying his request for modification
because it did not give sufficient weight to the requests for admissions that were deemed admitted
and because it failed to find a material change in circumstances. Ryan also assigns and argues that
the district court erred in not ordering Amanda to pay child support. Finally, he assigns and argues
that the district court erred in awarding Amanda attorney fees.
STANDARD OF REVIEW
Modification of a judgment or decree relating to child custody, visitation, or support is a
matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record,
and will be affirmed absent an abuse of discretion. Windham v. Kroll, 307 Neb. 947, 951 N.W.2d
744 (2020).
In an action for modification of a marital dissolution decree, the award of attorney fees is
discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d 768 (2020).
A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and denying just results in matters
submitted for disposition. Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
ANALYSIS
Ryan first argues that the district court erred in denying his request for modification.
Custody of a minor child will not ordinarily be modified absent a material change in circumstances,
which shows either that the custodial parent is unfit or that the best interests require such action.
Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020). Specifically, the movant must show two
elements: (1) since entry of the most recent custody order, there has been a material change in
circumstances that affects the child’s best interests and (2) that it would be in the child’s best
interests to change custody. Id. It is the burden of the party seeking modification to show a material
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change in circumstances. Id. Thus, as a threshold issue, Ryan had the burden to show that a material
change in circumstances occurred.
Material Change in Circumstances.
In the present case, the district court determined that there was not a material change in
circumstances and denied Ryan’s request for modification. Upon our de novo review of the record,
we find no abuse of discretion in this finding.
A material change in circumstances is the occurrence of something that, if it had been
known at the time the most recent custody order was entered, would have persuaded that court to
decree differently. Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020). Before custody is
modified, it should be apparent that any material change in circumstances alleged will be
permanent or continuous, not merely transitory or temporary. Id.Ryan’s allegations that Amanda was not able to support the children’s financial and
physical needs were not supported by evidence that any of these issues would be permanent or
continuous. To the contrary, the evidence showed that these issues were temporary. While Ryan
presented significant testimony and evidence with respect to the issue of Amanda not being able
to pay off the children’s lunch accounts in 2019-20 and that she and Trent had both had judgments
entered against them, he presented no evidence that either demonstrated any serious repercussions
to the children or that indicated that these financial problems were likely to occur again. Amanda
conceded that she had been behind in the payment for school lunches. However, she explained that
the nonpayment occurred because of a confluence of events over the past few years that was
unlikely to occur again. Specifically, Amanda was working only part time while attending nursing
school full time, there were unexpected medical bills, and Trent had a temporary loss of his
income. Added to those issues were separate periods where Amanda could not work due to health
issues including two pregnancies. Amanda is, now, working full time and earning more money in
her new profession. She testified that she is ahead in the payments for the lunch account and that
she and Trent are working on paying off their obligations.
Ryan raised the issue of Wyatt not having his own separate room presently in Amanda’s
home as a repercussion of Amanda’s inability to provide proper support. Although Wyatt currently
does not have his own room in Amanda’s current residence, Amanda testified that their current
living arrangement was merely temporary and that they had plans to construct a new home which
would replace the trailer house they have on the ranch and their house in Inman. Moreover, the
testimony of Amanda, Wyatt, as well as the school counselor and school principal demonstrated
that Wyatt enjoys living on the ranch and has aspirations to be a rancher. Accordingly, we find no
abuse of discretion in the district court’s findings that the children’s housing is not so detrimental
to their interests that it rises to the level of a material change of circumstances. Moreover, we note
that to the extent that the present house is less than optimal, the evidence indicates that it is not
intended to be the family’s permanent residence.
The most concerning of Ryan’s allegations is that Trent abused Shelby by placing her head
under the faucet when she was upset. Ryan and his mother testified as to their understanding of
this incident based on their conversations with the children. The children gave contradictory
testimony with respect to this incident, one claiming it occurred and the other stating it did not.
Amanda also explained that this incident occurred when Shelby had night terrors and did not occur
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in the manner that Ryan described. Instead, she explained that she and Trent placed washcloths
and towels on Shelby’s neck to cool her off. These cool towels woke Shelby up, leaving her
disoriented. The school counselor explained that Shelby disclosed specific negative comments
regarding Trent but did not mention any claims of abuse. We give weight to the fact that the district
court heard and observed the witnesses testify at trial and assess their ability to have seen and heard
the events about which they testified. The district court did not find the evidence sufficient to
consider the actions of Trent to constitute abuse. We find no abuse of discretion in the district
court’s findings.
The remaining allegations that Ryan raises concerned the physical safety of the children
on the ranch, their health, and their educational progress. Specifically, Ryan believes that it is
unsafe for Wyatt to operate vehicles on the farm without supervision or training. He believes that
the children are being required to do an excessive number of chores, which among other things,
keeps them from doing their homework. He explained how he thinks Amanda’s actions are
contributing to the children struggling academically. Finally, he contended that Amanda had not
made sure that the children received adequate dental and vision care.
Amanda’s testimony was in conflict with all of Ryan’s contentions. Amanda testified that
she and Trent trained Wyatt in how to operate the vehicles and had observed him to operate them
safely. Amanda testified as to the limited scope and duration of the chores that the children were
required to do. Amanda testified fully about the children’s dental care and the fact that they had
not experienced issues with cavities. She also explained the steps that had to be completed before
Wyatt could obtain braces. We do note our concern that Amanda reported Shelby was having
headaches whenever she read, but only recently had this problem addressed by an optometrist.
However, Amanda did testify that she expected that Shelby would receive prescription glasses
with prisms to correct the issue. As to the children’s education, Amanda did not deny that the
children have struggled with some subjects. However, the evidence demonstrates that she had
assisted the children with their work, is involved in their educational programming, and
communicates frequently with the school regarding their progress. In contrast, while there was
some evidence of Ryan talking with school personnel, the evidence demonstrated that he has not
been closely engaged in their educational programs as evidenced by his lack of knowledge about
Wyatt’s IEP. Based on the evidence adduced at trial we find no abuse of discretion in the district
court’s findings that none of these issues constitute a material change of circumstances.
While the district court did not make a specific credibility determination on the record, it
is clear based on its decision to deny the request for modification and its reasoning within its order
that it generally believed the testimony of Amanda and her supporting witnesses over the testimony
of Ryan and his witnesses. In child custody cases, where the credible evidence is in conflict on a
material issue of fact, the appellate court considers, and may give weight to, the fact that the trial
judge heard and observed the witnesses and accepted one version of the facts rather than another.
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). As the trier of fact, the district court
observed the witnesses’ demeanor and was in the best position to judge the veracity of their
testimony. See id. We, therefore, find no abuse of discretion in the manner in which it weighed the
evidence, nor in its ultimate finding that Ryan failed to prove a material change of circumstance.
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Requests for Admissions.
Prior to trial, Ryan submitted requests for admissions to Amanda. Included were requests
that Amanda admit that it was in the best interests of the children for Ryan to be awarded sole legal
and physical custody of the children. Amanda did not file responses to Ryan’s requests resulting
in Ryan’s motion to have the requests deemed admitted and the court’s subsequent journal entry
deeming the requests admitted. At trial, the requests and the court’s journal entry were offered by
Ryan and received into evidence by the court. On appeal, Ryan argues that the district court did
not give sufficient weight to these admissions in determining whether to grant custody of the
children to Ryan.
Under Rule 36, if the request for admission seeks information that is permissible under
Neb. Ct. R. Disc. § 6-326, the request can ask a party to admit facts in dispute, the ultimate facts
in a case, or facts as they relate to the law applicable to the case. Tymar v. Two Men and a Truck,
282 Neb. 692, 805 N.W.2d 648 (2011). A party that seeks to claim another party’s admission, as
a result of that party’s failure to respond properly to a request for admission, must prove service
of the request for admission and the served party’s failure to answer or object to the request and
must also offer the request for admission as evidence. Id. If the necessary foundational
requirements are met and no motion is sustained to withdraw an admission, a trial court is obligated
to give effect to the provisions of Rule 36 which require that the matter be deemed admitted. Id.In the present case, Ryan proved service of the requests for admissions and Amanda’s
failure to respond to the requests. Ryan also offered these requests for admissions as evidence. The
district court then deemed these requests admitted. At no point during the pendency of the case did
Amanda request to withdraw her admissions. Ryan argues that the district court is obligated to
give effect to these admissions.
However, in cases involving child custody, the failure to answer requests for admissions
cannot circumvent the court’s duty to independently assess a child’s best interests in determining
the child’s custodial arrangement. Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012). In
Citta, the father, prior to a trial on a paternity action, served the mother with requests for
admissions asking the mother to admit that the father was a fit and proper parent to the child, and
that it was in the best interests of the child for physical custody to be granted to the father. The
mother failed to respond to the requests for admissions. Id. At trial, the district court received the
requests for admissions but did not issue a ruling on the motion to deem the requests for admissions
admitted. Id. On appeal, the father argued that the district court erred in not deeming the requests
for admissions admitted. Id. We determined that while the district court erred in not deeming the
admissions admitted based upon the mother’s failure to timely answer or object to the requests for
admissions, the trial court was not bound by the resulting admissions in deciding the child’s
custody. We first noted authority from other states which found that rules of civil procedure did
not function to obviate the court’s obligation to make an independent determination of the child’s
best interests as to custody. We then stated:
Nebraska statutory and case law already explicitly applies the same principle to
parties’ agreements addressing child custody. It is well established in Nebraska that a trial
court has an independent responsibility to determine questions of custody of minor children
according to their best interests, which responsibility cannot be controlled by an agreement
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or stipulation of the parties. See, e.g., Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007);
Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000); Lautenschlager v.
Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978); Deterding v. Deterding, 18 Neb.
App. 922, 797 N.W.2d 33 (2011); Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585(2004); Zerr v. Zerr, 7 Neb. App. 885, 586 N.W.2d 465 (1998). This public policy is
embodied in Neb. Rev. Stat. § 42-366(2) (Reissue 2008), which specifically excepts
agreements as to custody of minor children from being binding upon the court.
It would be inconsistent with this underlying policy to allow a party, by simply
failing to answer discovery requests, to accomplish the very result that the party cannot
obtain by express agreement. Accordingly, we agree with the courts of other states that the
failure to respond to requests for admission regarding child custody does not control the
issue. Just as parties in a proceeding to dissolve a marriage cannot control the disposition
of matters pertaining to minor children by agreement, Deterding v. Deterding, supra, the
operation of Rule 36 cannot take the issue of custody away from the trial court’s
responsibility to independently determine what is in the best interests of the children.
Accordingly, we hold that admissions made by a party’s failure to answer requests
for admissions, like agreements made by a party, cannot circumvent the court’s duty to
independently assess a child’s best interests in determining the child’s custodial
arrangement.
Citta v. Facka, 19 Neb. App. at 746-47, 812 N.W.2d at 927.
In his brief, Ryan recognizes the court’s independent responsibility to determine the best
interests of the children, but claims that the district court gave no consideration to the admissions
in its order. While we agree that the court made no mention of the admissions in its order, the
admissions were one of many exhibits received at trial along with 2 full days of testimony. The
court is not obligated to mention every item of evidence in the rationale for its decision. It is clear
from the findings and order that the district court found that little weight should be given to the
admissions.
Moreover, we note that the district court never actually reached the best interests question,
finding that Ryan had failed to prove any material change of circumstance. We have found no
abuse of discretion in the district court’s determination. To the extent Ryan argues that the
admissions made relate to material changes of circumstance, his argument fails. None of the
requests for admissions ask Amanda to admit that any of the five alleged material changes of
circumstances listed in the complaint to modify have occurred. Therefore, there being no
admission to an alleged material change of circumstance, we find this assignment of error to be
without merit.
Child Support.
Ryan argues that the district court erred in requiring him to pay child support to Amanda.
However, Ryan’s argument is contingent on the success of his previous argument that the district
court erred in failing to award him sole legal and physical custody of the children. Because we
have found that the district court did not abuse its discretion by denying Ryan’s complaint to
modify we also find no error in the district court’s decision to require Ryan to pay child support.
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We note that neither party assigns error to the amount of child support the court has ordered to be
paid.
Attorney Fees.
Ryan argues that the district court erred in awarding Amanda attorney fees because she did
not request attorney fees in her response to his complaint to modify. He also argues that the
evidence did not support such an award.
Attorney fees and expenses may be recovered only where provided for by statute or when
a recognized and accepted uniform course of procedure has been to allow recovery of attorney
fees. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014). Customarily, attorney fees are
awarded only to prevailing parties or assessed against those who file frivolous suits. Id. A uniform
course of procedure exists in Nebraska for the award of attorney fees in dissolution and
modification cases. Id.Ryan is correct insofar as he asserts that Amanda did not request attorney fees in her
response to his complaint to modify. Amanda, acting without counsel, only requested a dismissal
of the complaint to modify in her response. However, at trial, she testified that she was requesting
attorney fees and presented an affidavit detailing the hours of work spent on the case by her
attorney and the resulting attorney fees she had incurred. When she testified and offered the
affidavit into evidence, Ryan made no objection. Therefore, Ryan’s argument that Amanda is
precluded from requesting attorney fees is being raised for the first time on appeal. We generally
do not consider issues raised for the first time on appeal and decline to do so here. See Weaver v.
Weaver, 28 Neb. App. 716, 948 N.W.2d 265 (2020).
We do, however, review the court’s award. Upon our review of the record, we note that the
case did not present unique or novel issues; however, it did include an appearance at a pretrial
hearing, preparation for trial, and 2 days of trial, in addition to briefs submitted to the court. The
affidavit and attached detailing of the hours of work spent substantiate the attorney fees that were
awarded. We further note that the fees incurred by Amanda were twice the amount awarded by the
court. Accordingly, we find this assignment of error to be without merit.
CONCLUSION
Based upon our de novo review of the record, we find that the district court did not abuse
its discretion in denying Ryan’s request to modify custody of his children such that he be awarded
sole legal and physical custody. We also find no abuse of discretion in the district court’s award
of child support and attorney fees.
AFFIRMED.
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