Geiss v. Geiss ( 2013 )

Decisions of the Nebraska Court of Appeals
GEISS v. GEISS 861
Cite as 20 Neb. Ct. App. 861
the father. We further conclude that the statute of limita‑
tions and the grace period for service of process have both
expired and that the relation‑back statute is inapplicable in the
instant case. Accordingly, the district court properly dismissed
Rudd’s claim with prejudice. The judgment of the district
court is affirmed.
Affirmed.
Morgan R. Geiss, now known as
Morgan R. Bennett, appellee,
v. Eric M. Geiss, appellant.
___ N.W.2d ___
Filed June 18, 2013. No. A-12-564.
1. Child Custody: Visitation: Appeal and Error. Child custody determinations,
and visitation determinations, are matters initially entrusted to the discretion of
the trial court, and although reviewed de novo on the record, the trial court’s
determinations will normally be affirmed absent an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrains
from acting, and the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit‑
ted for disposition through a judicial system.
3. Appeal and Error. Although an appellate court ordinarily considers only those
errors assigned and discussed in the briefs, the appellate court may, at its option,
notice plain error.
4. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
5. ____: ____: ____. An appellant’s failure to object to the limitation imposed
by the trial judge effectively waives the right to raise that ruling as an error
on appeal.
6. Appeal and Error. An appellate court may consider an issue not raised to the
trial court if such issue amounts to plain error.
7. ____. Plain error may be asserted for the first time on appeal or be noted by the
appellate court on its own motion.
8. Appeal and Error: Words and Phrases. Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected would result in dam‑
age to the integrity, reputation, or fairness of the judicial process.
9. Effectiveness of Counsel. A pro se litigant is held to the same standard as one
who is represented by counsel, and the trial court has the inherent power to com‑
pel conformity with Nebraska procedural practice.
Decisions of the Nebraska Court of Appeals
862 20 NEBRASKA APPELLATE REPORTS
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed.
Nicholas M. Froeschl, of Morrow, Poppe, Watermeier &
Lonowski, P.C., L.L.O., for appellant.
Jeffrey M. Eastman, of Legal Aid of Nebraska, for appellee.
Sievers, Pirtle, and Riedmann, Judges.
Pirtle, Judge.
INTRODUCTION
Eric M. Geiss appeals from the journal entry entered by
the district court for Lincoln County on May 30, 2012, which
denied Eric’s “Complaint to Modify Child Custody.” Eric
asserts the district court abused its discretion when it prohib‑
ited him from cross-examining witnesses and calling any wit‑
nesses of his own. For the reasons that follow, we affirm.
BACKGROUND
The parties were divorced pursuant to a decree of dissolu‑
tion entered by the district court for Lincoln County on August
24, 2009. Pursuant to the decree, Morgan R. Geiss, now
known as Morgan R. Bennett, was awarded primary physical
custody of the minor children of the parties: a daughter, born
in 2003, and a son, born in 2005. Eric was awarded parenting
time according to the visitation schedule the parties had previ‑
ously established.
On June 15, 2010, Eric filed a “Complaint to Modify Child
Custody,” seeking custody of the children. Eric also requested
and was granted an ex parte order awarding him temporary
custody of the children subject to Morgan’s reasonable visita‑
tion. Morgan filed a “Motion to Dissolve Ex Parte Custody
Order and Application for Custody” on June 22. On July 19,
both parties appeared and were represented by counsel at a
hearing regarding temporary custody and support. On July 28,
the court awarded Eric temporary custody of the children.
On July 20, 2011, Morgan filed a “Motion to Waive Parenting
Education and Mediation or Compel and Sanctions,” request‑
ing that Eric be required to complete a parenting course and
Decisions of the Nebraska Court of Appeals
GEISS v. GEISS 863
Cite as 20 Neb. Ct. App. 861
participate in mediation or, in the alternative, that he be prohib‑
ited from presenting evidence at trial on the issues of custody
and visitation. The court’s August 22 journal entry required
Eric to schedule the parenting course and mediation within 14
days. He did not comply with that order.
On October 25, 2011, Morgan filed a second motion, alleg‑
ing Eric failed to schedule an appointment with a mediator
as previously ordered and seeking the same prohibitions as
sanctions that would prohibit him from introducing evidence
relating to custody and parenting time. Morgan’s motion was
set for hearing on November 1. The court’s November 11
journal entry indicated that a hearing was held on the second
motion and that Eric was to complete mediation by December
1. The court indicated the motion for sanctions would be held
in abeyance. On December 14, the district court set a trial
date for March 12, 2012. Eric did not complete mediation by
December 1, 2011, and he did not participate in mediation
prior to trial.
Eric obtained new counsel, who filed a motion to continue
on March 6, 2012, which motion indicated the attorney was
recently retained and needed time to prepare for trial. Trial was
moved from March 12 to May 30. On March 19, Eric filed
his “Certificate of Participation in Parenting Act Education
Course.” Morgan’s “Certificate of Participation in Parenting
Education Course” was filed in the district court on May
19, 2011.
On April 5, 2012, Eric’s attorney filed a motion to withdraw
and the court allowed the withdrawal.
On May 30, 2012, Eric appeared for trial without an attor‑
ney and was asked if he would like to make an opening state‑
ment and whether he opposed Morgan’s receiving custody.
Eric made no opening statement and stated he was opposed to
Morgan’s receiving custody. The trial judge stated:
[D]o you understand that you were ordered by [a judge]
on two separate occasions to attend mediation[?] You
apparently failed to do that, and so the Court will permit
you to testify here today, but you, as a sanction for failure
to conform to the parenting plan, will be prevented from
Decisions of the Nebraska Court of Appeals
864 20 NEBRASKA APPELLATE REPORTS
calling any witnesses in opposition to the motion or com‑
plaint filed by the defendant.
Eric responded that he understood.
The district court rules of the 11th Judicial District provide:
Mediation must be scheduled or a hearing on a quali‑
fied request for a waiver of mediation must be scheduled
no later than 120 days after the filing of the complaint.
Failure of any party to schedule or attend mediation will
result in sanctions which may include being prohibited at
trial from presenting any evidence on the issues of cus‑
tody or parenting time.
Rules of Dist. Ct. of 11th Jud. Dist. 11-4(A)(v) (rev. 2012).
Morgan testified and called witnesses, including her new
husband, a friend, a coworker, and Eric. The witnesses testi‑
fied regarding transportation for parenting time, tax exemp‑
tions for the children, and the children’s progress in school.
Morgan also entered exhibit 3 into evidence, showing she had
contacted a mediator and signed a “Consent to Participate” in
mediation form on June 25, 2011. At the close of Morgan’s
testimony, the court stated: “[T]he record will reflect that
the Court is not allowing [Eric] any cross-examination of
[Morgan] or any of [her] witnesses because of his failure
to comply with [a judge’s] order on two occasions ordering
[Eric] to enroll in the mediation, which was not done.” The
court did give Eric the opportunity to make a statement in his
own behalf regarding why he should retain custody or why
the court should not change custody to Morgan, and Eric said
the following:
The children have lived with me for the last — over
three years, and they started living with me the end of
March 2009. Morgan called me and said she couldn’t deal
with — the kids want to live with me, she couldn’t deal
with them anymore, so they have been living with me
ever since.
As for me refusing to let her see the kids, the only rea‑
son that I have not met her is I cannot afford to meet her,
Your Honor. I can’t afford to meet her every two weeks.
That’s the only reason that I have. As for — I have been
doing this — they have been living with me for three
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Cite as 20 Neb. Ct. App. 861
years. I am not the greatest father in the world, just like
there is no one is the greatest parent. I do my best. I love
my children, and I would do anything for them.
The court determined, based upon the evidence at trial,
that there were not sufficient grounds to support Eric’s com‑
plaint to modify and that the ex parte custody should not have
changed from Morgan to Eric. The court stated the parties
“originally agreed to joint custody with residential placement
in [Morgan], and that’s probably where the situation should
have remained.”
Eric timely filed his notice of appeal on June 25, 2012.
ASSIGNMENTS OF ERROR
Eric asserts the district court abused its discretion when it
prohibited him from cross-examining Morgan’s witnesses and
prohibited him from presenting any witnesses on his behalf.
STANDARD OF REVIEW
[1] Child custody determinations, and visitation determina‑
tions, are matters initially entrusted to the discretion of the
trial court, and although reviewed de novo on the record, the
trial court’s determinations will normally be affirmed absent an
abuse of discretion. McLaughlin v. McLaughlin, 264 Neb. 232,
267 N.W.2d 577 (2002).
[2] A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act
or refrains from acting, and the selected option results in a
decision which is untenable and unfairly deprives a litigant of
a substantial right or a just result in matters submitted for dis‑
position through a judicial system. Id.
[3] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. State v. Nadeem, 284
Neb. 513, 822 N.W.2d 372 (2012).
ANALYSIS
We begin our analysis by taking judicial notice of the trial
court’s local rules because they were properly filed with the
Clerk of the Nebraska Supreme Court. Mann v. Rich, 16 Neb.
App. 848, 755 N.W.2d 410 (2008).
Decisions of the Nebraska Court of Appeals
866 20 NEBRASKA APPELLATE REPORTS
The district court for Lincoln County is part of the 11th
Judicial District. Rule 11-4 of the district court rules of the
11th Judicial District was originally approved by the Nebraska
Supreme Court on November 3, 1995, and though it has been
amended over the years, it remains in effect. Rule 11-4(A)(v)
was approved by the Supreme Court on April 25, 2012.
Rule 11-4(A)(v) states as follows:
Mediation must be scheduled or a hearing on a quali‑
fied request for a waiver of mediation must be scheduled
no later than 120 days after the filing of the complaint.
Failure of any party to schedule or attend mediation will
result in sanctions which may include being prohibited at
trial from presenting any evidence on the issues of cus‑
tody or parenting time.
At the time of the parties’ dissolution, the parties developed
a parenting plan pursuant to Neb. Rev. Stat. § 43-2929 (Reissue
2008). The plan provides, in relevant part, that
in the event one or both of the parties wish to change the
terms of this Plan in the future, and the parties are unable
to agree on the terms of such change, the parties shall
attempt to mediate their disagreements by talking to a
third person or persons who may be able to help the par‑
ties come to an agreement.
In Nebraska, modification proceedings relating to support,
custody, parenting time, visitation, other access, or removal
of children from the jurisdiction of the court are commenced
by filing a complaint to modify. See Neb. Rev. Stat. § 42-364
(Cum. Supp. 2012). Such modification proceedings are gov‑
erned by the Parenting Act. According to § 42-364(6), an
action for modification filed before July 1, 2010, may be
referred to mediation, specialized alternative dispute resolu‑
tion, or other alternative dispute resolution process. On and
after July 1, 2010, the parties shall be referred to mediation
or specialized alternative dispute resolution as provided in the
Parenting Act.
In this case, on June 15, 2010, Eric filed a complaint to
modify the child custody arrangement. On the same day, he
filed an “Application for Temporary Custody and Ex Parte
Order,” requesting the temporary care, custody, and control of
Decisions of the Nebraska Court of Appeals
GEISS v. GEISS 867
Cite as 20 Neb. Ct. App. 861
the parties’ minor children. The court granted Eric’s motion
and entered an ex parte temporary custody order on the
same day.
Morgan filed a “Motion to Dissolve Ex Parte Custody Order
and Application for Custody” on June 22, 2010. On July 19,
both parties appeared and were represented by counsel at a
hearing regarding temporary custody and support. On July 28,
the court awarded Eric temporary custody of the children.
On July 20, 2011, Morgan filed a “Motion to Waive
Parenting Education and Mediation or Compel and Sanctions,”
citing Neb. Rev. Stat. §§ 43-2928 (Reissue 2008) and 43-2937
(Cum. Supp. 2012), as well as the district court rules of the
11th Judicial District. She requested that Eric be required to
complete a parenting course and participate in mediation or, in
the alternative, that he be prohibited from presenting evidence
at trial on the issues of custody and visitation.
On August 22, 2011, the trial court ordered Eric to schedule
the parenting course and mediation within 14 days. He failed
to do so.
On October 25, 2011, Morgan filed a second motion, alleg‑
ing Eric failed to schedule an appointment with a mediator
as previously ordered and seeking the same prohibitions as
sanctions. Specifically, she requested he be prohibited from
introducing evidence relating to custody and parenting time.
Morgan’s motion was set for hearing on November 1. The
court’s November 11 journal entry indicated that a hearing
was held on the second motion and that Eric was to complete
mediation by December 1. Eric did not complete mediation at
any time.
A notice of trial was filed on December 14, 2011, and trial
was set for March 12, 2012. Eric obtained new counsel, who
filed a motion to continue on March 6 which indicated the
attorney was recently retained and needed time to prepare for
trial. Trial was postponed from March 12 to May 30.
On the day of trial, Eric appeared without counsel. The trial
court determined that Eric understood he was ordered on two
separate occasions to attend mediation and that he failed to do
so. Eric confirmed his understanding that this was a failure to
conform to the parties’ parenting plan, and as a result, the court
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imposed sanctions as provided by rule 11-4(A)(v). Eric did not
object to the sanctions imposed at the time of trial.
Eric now asserts the district court violated his procedural
due process rights. Specifically, he asserts the trial court
deprived him of a substantial right by prohibiting him from
cross-­examining witnesses and presenting any witnesses on
his behalf.
[4,5] However, Eric did not request a continuance or object
to the sanctions imposed prior to or during trial. This court has
held that failure to make a timely objection waives the right
to assert prejudicial error on appeal. Garrett v. Garrett, 3 Neb.
App. 384, 527 N.W.2d 213 (1995). In Garrett, the appellant
asserted the trial court erroneously limited the time for his
cross-examination. This court held that an appellant’s failure to
object to the limitation imposed by the trial judge effectively
waived his right to raise that ruling as an error on appeal. Id.
We find Eric’s failure to make a timely objection at trial con‑
stitutes a waiver of his due process argument.
[6-8] Still, an appellate court may consider an issue not
raised to the trial court if such issue amounts to plain error.
State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012). Plain
error may be asserted for the first time on appeal or be noted
by the appellate court on its own motion, and we elect to
review for plain error in this case. See Nolan v. Campbell, 13
Neb. Ct. App. 212, 690 N.W.2d 638 (2004). Plain error is error
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. Id.
Eric asserts that although Morgan requested sanctions, noth‑
ing in the record indicates the court ever informed him that
his failure to mediate would have such dire consequences.
Eric states that as an unrepresented litigant, he was not “fully
aware of the potential consequences” brought about by failure
to complete mediation. Brief for appellant at 14.
[9] This argument is without merit, as this court and the
Nebraska Supreme Court have repeatedly held that a pro se
litigant is held to the same standard as one who is repre‑
sented by counsel, and the trial court has the inherent power
to compel conformity with Nebraska procedural practice.
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Cite as 20 Neb. Ct. App. 861
See Prokop v. Cannon, 7 Neb. Ct. App. 334, 583 N.W.2d 51
(1998). See, also, State v. Lindsay, 246 Neb. 101, 517 N.W.2d
102 (1994).
Further, the parties agreed to mediation in the parenting
plan, the court is permitted by the Nebraska Revised Statutes to
order mediation, and Eric was specifically ordered on at least
two occasions to attend mediation. Also, as discussed above, it
is clear that the court rules allow for sanctions of the type and
severity sought by Morgan, and upon review of the evidence,
we find no error in the trial court’s application of sanctions in
accordance with its local rules.
We also find no error in the court’s determination that Eric
did not meet his burden to show a material change of circum‑
stances had occurred or that it was in the best interests of the
children to change custody.
The evidence shows that Morgan was the primary caregiver
prior to the parties’ dissolution and that the children resided
with Morgan when the parties separated in November 2008.
Morgan transported the children to and from school, provided
meals, bathed them, and performed their bedtime routines.
The parties’ parenting plan states the parties agreed that the
best interests of the minor children would be served by plac‑
ing physical custody with Morgan. There is no evidence that
Morgan attempted to prevent Eric from seeing the children for
scheduled parenting time; rather, she agreed to expand Eric’s
parenting time without a court mandate.
In June 2010, Eric petitioned the district court for an ex
parte custody order and it was granted. The evidence shows
that in the 2 years Eric has had physical custody, the children
have not had regular medical or dental checkups and Eric
admitted he smokes in the home and around the children.
The evidence also shows that Eric has resided with multiple
roommates, including an “on-and-off” girlfriend and another
friend. Eric asked the girlfriend to care for the children when
he spent 11⁄2 days in jail for an unpaid fine for a traffic vio‑
lation. Morgan testified that she was denied visitation with
the children and that Eric listens to telephone conversations
between Morgan and the children. It is clear the parties have
had trouble communicating.
Decisions of the Nebraska Court of Appeals
870 20 NEBRASKA APPELLATE REPORTS
The trial court determined that the joint custody arrangement
has not worked and that the best interests of the children would
be served by placing their permanent custody in Morgan, sub‑
ject to the court’s standard parenting plan. The evidence sup‑
ports this conclusion, and having found no evidence of plain
error, we affirm the decision of the trial court.
CONCLUSION
We find Eric waived his claim that his due process rights
were violated, and we find no plain error in the trial court’s
application of sanctions for Eric’s failure to comply with the
parties’ parenting plan and the applicable court rules.
Affirmed.
Riedmann, Judge, concurring.
I concur with the result, but would do so without reliance
upon Rules of the Dist. Ct. of the 11th Jud. Dist. 11-4 (rev.
2012), for the reason that rule 11-4(A)(v) was not approved by
the Nebraska Supreme Court until April 25, 2012. Prior to that
date, the Nebraska Supreme Court had not approved the lan‑
guage that allowed the court to prohibit a party from introduc‑
ing evidence as a sanction for failure to mediate. Trial in this
matter was held on May 30. In terms of procedural due proc­
ess, I do not believe that the short timespan between approval
of the rule and the date on which it was imposed provided ade‑
quate notice to Eric. That being said, the trial court had inher‑
ent power to impose the sanction. See Custom Fabricators v.
Lenarduzzi, 259 Neb. 453, 610 N.W.2d 391 (2000). Morgan’s
two prior motions requesting such sanctions provided adequate
notice to Eric that failure to mediate could result in the trial
court’s prohibiting him from adducing evidence. I would there‑
fore affirm the trial court’s order based upon the court’s inher‑
ent power to impose the sanction.