Hudson v. Hudson ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/14/2023 09:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
HUDSON V. HUDSON
Cite as 31 Neb. App. 630Amber L. Hudson, now known as
Amber L. Cozad, appellant, v.
Anthony D. Hudson, appellee.
___ N.W.2d ___
Filed March 14, 2023. No. A-22-189.
1. Modification of Decree: Appeal and Error. Modification of a dis-
solution decree 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 by the trial court.
2. Pleadings: Due Process: Words and Phrases. A court’s determina-
tion of questions raised by the facts, but not presented in the pleadings,
should not come at the expense of due process. While the concept of due
process defies precise definition, it embodies and requires fundamen-
tal fairness.
3. Constitutional Law: Due Process. Generally, procedural due process
requires parties whose rights are affected by a proceeding to be given
timely notice, which is reasonably calculated to inform the person con-
cerning the subject and issues involved in the proceeding; a reasonable
opportunity to refute or defend against a charge or accusation; a reason-
able opportunity to confront and cross-examine adverse witnesses and
present evidence on the charge or accusation; representation by counsel,
when such representation is required by the constitution or statute; and a
hearing before an impartial decisionmaker.
4. ____: ____. The determination of whether the procedures afforded to an
individual comport with constitutional requirements for procedural due
process presents a question of law.
5. Rules of the Supreme Court: Pleadings: Implied Consent. The key
inquiry of Neb. Ct. R. Pldg. § 6-1115(b) for express or implied consent
to trial of an issue not presented by the pleadings is whether the parties
recognized that an issue not presented by the pleadings entered the case
at trial.
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HUDSON V. HUDSON
Cite as 31 Neb. App. 6306. ____: ____: ____. Implied consent for purposes of Neb. Ct. R. Pldg.
§ 6-1115(b) may arise in two situations: First, the claim may be intro-
duced outside of the complaint—in another pleading or document—and
then treated by the opposing party as if pleaded. Second, consent may
be implied if during the trial the party acquiesces or fails to object to the
introduction of evidence that relates only to that issue.
7. Implied Consent: Proof. Implied consent may not be found if the
opposing party did not recognize that new matters were at issue during
trial. The pleader must demonstrate that the opposing party understood
that the evidence in question was introduced to prove new issues.
8. Pleadings: Judgments. Even when a party does not move to amend
pleadings, a court may constructively amend pleadings on unpleaded
issues in order to render a decision consistent with the trial.
9. Pleadings: Appeal and Error. Permission to amend a pleading is
addressed to the discretion of the trial court, and an appellate court will
not disturb the trial court’s decision absent an abuse of discretion.
10. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change of circum-
stances which occurred subsequent to the entry of the original decree
or a previous modification which was not contemplated when the prior
order was entered.
11. Divorce: Modification of Decree: Child Support. The paramount
concern and question in determining child support, whether in the initial
marital dissolution action or in proceedings for modification of decree,
is the best interests of the child.
12. Divorce: Modification of Decree. A change of circumstances not within
the reasonable contemplation of the parties at the time of the decree may
be the basis for modification of a decree.
13. Divorce. Although a parent may have contemplated incurring childcare
expenses at some point in the future, many items within the realm of
contemplation at the time of dissolution remain uncertain or speculative.
14. Divorce: Modification of Decree. To determine whether to modify an
award with respect to childcare expenses, it is necessary for the court to
compare the need for work-related childcare at the time of the original
decree with the need for such childcare at the time of the modifica-
tion hearing.
Appeal from the District Court for Cherry County: Mark D.
Kozisek, Judge. Reversed and remanded with directions.
Loralea L. Frank, of Bruner, Frank, Schumacher, Husak &
Simpson, L.L.C., for appellant.
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630Michael J. Synek for appellee.
Moore, Riedmann, and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Amber L. Hudson, now known as Amber L. Cozad, appeals
from an order of the Cherry County District Court modifying
the decree dissolving her marriage to Anthony D. Hudson. She
claims multiple errors relating to the district court’s failure to
grant her childcare expenses. We reverse the district court’s
decision declining to address childcare expenses and remand
the matter with directions to apportion childcare expenses from
the time of trial forward. Any decision regarding a retroactive
childcare award is at the trial court’s discretion based on the
evidence adduced at trial, which we set forth in detail in this
opinion to assist on remand.
II. BACKGROUND
1. July 2020 Decree
Amber and Anthony married in 2011 and had two chil-
dren—Riley Hudson, born in 2016, and Callie Hudson, born
in 2019. The parties’ marriage was dissolved by decree on July
30, 2020. Anthony was not represented by counsel at that time;
Amber has been represented by the same counsel throughout
the dissolution and modification proceedings. The decree was
entered pursuant to a “Marital Settlement Agreement”; it gave
Amber sole legal and physical custody of the children, subject
to Anthony’s parenting time. The parenting plan incorporated
in the settlement agreement stated that Anthony’s parenting
time included “one weekend visitation per month . . . in
Valentine, Nebraska,” as well as “four (4) weeks of summer
parenting time . . . each summer commencing summer 2024.”
The parenting plan further specified that Anthony would be
responsible for all transportation necessary for him to exercise
his parenting time.
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630The child support calculation included in the decree showed
gross taxable income of $4,828 per month for Anthony and
$1,560 per month for Amber. It also included “Gross Unearned
Taxable Income” of $2,200 per month for Anthony. Anthony
was attributed a net monthly income of $5,067.48 on which
child support was calculated. This resulted in an order that
Anthony pay $1,100 per month in child support for the parties’
two children.
The decree stated that the parties would each be respon-
sible for 50 percent “of the out-of-pocket medical expenses
of the minor children.” The decree also included the follow-
ing provision:
It is further ordered that pursuant to the Nebraska Child
Support Guidelines §4-212, both parents shall share in all
reasonable and necessary direct expenditures made solely
for the child(ren) such as clothing and extracurricular
activities shall be allocated between the parents for the
minor children of which they participate in. [Anthony]
shall be responsible for 50% and [Amber] shall be respon-
sible for 50% of the cost.
The decree was silent as to childcare expenses.
2. Amber’s Complaint for
Modification
A little over 4 months after entry of the July 2020 decree,
Amber filed a “Complaint for Modification” on December 8.
It alleged that the decree did not order daycare because the
minor children were not attending daycare, but that since that
time, Amber was employed full time and was incurring daycare
costs. Anthony entered a voluntary appearance on February
23, 2021, and a month later on March 24, Amber filed a
“Dismissal” of her modification action.
3. Anthony’s Complaint for
Modification
A week after Amber’s dismissal of her modification action,
Anthony filed a “Complaint for Modification” on March 31,
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HUDSON V. HUDSON
Cite as 31 Neb. App. 6302021. He alleged there had been a material change in circum-
stances since the entry of the decree because he had “changed
jobs” and his “gross income . . . decreased below . . . $4,828
per month.” He also moved to Lincoln, Nebraska; remarried;
and planned to move to Pennsylvania. The complaint further
stated that the order improperly included the provision relat-
ing to clothing and extracurricular activities, because Anthony
did not agree to the inclusion of the provision and Neb. Ct. R.
§ 4-212 (rev. 2011) of the Nebraska Child Support Guidelines
“only applies to cases when a specific provision for joint phys-
ical custody is ordered and each party’s parenting time exceeds
142 days per year.”
Anthony requested that the district court modify the decree
to reduce his child support obligation, terminate the provision
relating to clothing and extracurricular activities, grant the par-
ties joint legal custody, and increase Anthony’s parenting time.
He also requested that the court require Amber to “bear part of
the cost for transporting the children to and from [Anthony’s]
parenting times.”
Amber filed an “Answer and Counterclaim” on August 5,
2021, wherein she denied the material allegations of Anthony’s
complaint and further asserted that Anthony had already “moved
outside of the jurisdiction of Nebraska.” She made various alle-
gations related to Anthony’s absence from the children’s lives
in support of her position that the district court should require
supervision during Anthony’s parenting time with the children
or reduce his parenting time. She further asserted that “[i]t is
appropriate to modify the child support obligation and associ-
ated out of pocket expenses in accordance with the Nebraska
Child Support Guidelines.”
4. Pretrial Proceedings
On December 16, 2021, the parties filed a “Joint Final
Witness and Exhibit List.” The list of possible witnesses
included Brenda Stankoski and Jim Fox, Amber’s daycare
providers. The document also listed “[d]aycare receipts for
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630minor children” as one of Amber’s exhibits. In the document,
the parties marked each anticipated exhibit with an “A,” “B,”
or “C.” The pretrial order, which we further discuss below,
explained the markings. Exhibits marked with an “A” included
those that would be “admitted without objection upon offer
by either party.” The parties waived foundational objections
to the exhibits marked with a letter “B.” The parties reserved
all objections on exhibits marked with a “C.” The “[d]aycare
receipts” were marked with a “C.”
On December 17, 2021, the district court held a pretrial
conference at which time the parties discussed the issues to be
litigated at trial. Anthony’s counsel indicated that the issues to
be litigated included “modification of child support and related
issues, which would be the financial issues[,] . . . modifications
in the parenting plan” due to Anthony’s move to Pennsylvania,
and legal custody of the children. When asked by the court
what Amber pled in her counterclaim, Amber’s counsel stated,
“[m]odification and child support and agree to the mate-
rial change and that he lives in Pennsylvania.” Anthony then
entered a general denial of Amber’s counterclaim. The par-
ties also discussed the “Joint Final Witness and Exhibit List”
with the court. When the court inquired about the exhibits
marked with a letter “C,” Anthony’s counsel stated that he
reserved his objections to those exhibits because he had not yet
reviewed them.
Later that day, the district court entered a pretrial order,
where it identified the following as “the legal and factual
issues”:
(1) Modification of parenting plan as to time, place and
manner of parenting time based upon [Anthony’s] move
to the State of Pennsylvania;
(2) Apportionment of costs associated with parenting
time;
(3) Modification seeking joint legal custody;
(4) Modification of child support[;]
(5) Attorney fees and costs[.]
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630The order then stated that the issues identified in the order
“do not preclude any other issues properly raised by the
pleadings.”
5. Trial
Trial took place on February 4, 2022. The parties had
reached agreement on several issues, including that there was
a material change in circumstances warranting modification
of Anthony’s child support obligation and that the district
court should terminate the clothing and extracurricular activi-
ties provision from the decree. Each party testified, along
with Anthony’s new wife, and multiple exhibits were received
into evidence.
(a) Amber’s Opening Statement
Amber’s counsel indicated during her opening statement that
“[Amber’s] position is if the Court is going to retroactively
decrease [Anthony’s] child support, based on his request, then
he should be required to, in fact, contribute to his percentage
on that retroactive support for purposes of daycare expenses
that [Amber] was incurring during that time.” The district
court questioned whether Amber had “pray[ed] for” childcare
expenses in her counterclaim. Amber’s counsel argued that
because child support was generally at issue, so too were child-
care expenses. She further stated that at the time the decree
was entered, Anthony’s child support obligation was calculated
to include childcare expenses, but that this was not noted in
the record.
(b) Anthony’s Testimony
Anthony testified regarding his financial circumstances and
his recent move out of state. He had previously served in
the U.S. Army from 2008 through 2013, including serving a
year in Afghanistan. He was honorably discharged from the
military, and due to disabilities sustained during his service, he
received approximately $1,100 per month in nontaxable dis-
ability pay. According to Anthony, at the time he and Amber
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630divorced, his gross earned taxable income was not actually
$4,828 per month as reflected in the child support calculation.
He was in fact working 40 hours per week “plus normally
anywhere from 10 to 15 hours of overtime,” earning $16.50
per hour. Anthony’s counsel pointed out that for Anthony’s
gross earned taxable income to be $4,828 per month, he would
have to have been earning a higher wage of approximately
$27.85 per hour. At the time of the divorce, Anthony moved
to Lincoln, Nebraska, and his pay rate had changed four times
since the divorce. He had most recently obtained employ-
ment with a private security company in Pennsylvania, where
he would be working 50 hours per week at a rate of $22.10
per hour. Anthony remarried in February 2021 and moved to
Pennsylvania with his wife in August 2021.
During cross-examination of Anthony, Amber’s counsel
asked Anthony whether he “underst[oo]d that now that child
support is decreasing, [he would] need to contribute to the day-
care costs for the minor children,” to which Anthony responded,
“Yes, ma’am, I don’t have a problem with that.” The district
court then interjected, asking the parties whether “there [was]
an agreement on daycare.” Anthony’s counsel stated that the
parties had not reached agreement on the issue, adding, “[i]n
fact, my argument was going to be similar to your comments
at the beginning. I don’t think it was pleaded.” However, on
redirect, the following colloquy took place between Anthony’s
counsel and Anthony:
[Counsel:] Okay. The child care is something that you
and I have talked about and you said you’re willing to pay
it, and that’s if the Court orders it, you’re willing to pay
whatever the Court orders, right?
[Anthony:] Yes, sir.
[Counsel:] You’re going to follow the Court’s orders?
[Anthony:] Yes, sir.
[Counsel:] As far as whether or not the Court is going
to order it or if it’s been properly pleaded, you can’t say
at this point, right?
[Anthony:] No, sir.
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630(c) Amber’s Testimony
Amber testified about her childcare needs and associated
costs. She stated that the children both go to daycare “full
time”; “Callie goes to Brenda Stankoski; Riley spends most
of his daycare time with [Amber’s] grandpa, Jim Fox.” Amber
stated that she had incurred childcare expenses in 2021 and
continued to incur childcare expenses in 2022. Amber’s coun-
sel asked Amber whether she was requesting that Anthony
“pay daycare effective [sic] a new order.” Anthony’s counsel
objected to the question as “beyond the scope of the plead-
ings.” The district court overruled the objection. Anthony’s
counsel then made a “continuing objection on [the] topic,”
which the court noted. The court allowed the remainder of
Amber’s evidence related to childcare expenses without condi-
tioning its admissibility to any later findings by the court.
Amber testified that she was requesting that Anthony be
required to contribute to childcare expenses “based on the per-
centage of the child support calculation.” She also requested
a credit for the childcare expenses she had incurred in 2021.
She stated that she pays Fox $240 per month for childcare
and pays Stankoski $25 per child, per day, in addition to a
weekly $10 charge for food. The district court asked whether
there were “cancelled checks or bank statements that . . .
show [the] payments” to Fox. Amber’s counsel indicated that
she had evidence relating to the payments and further stated
that Anthony’s counsel stipulated to the admissibility of the
evidence. Anthony’s counsel did not contest this statement.
Amber’s counsel then offered into evidence exhibit 9, which
included a written statement signed by Fox, stating that in
“2021 [Amber] paid [him] $240 a month, for a sum of $2880
for the year for daycare for Riley and Callie.” Exhibit 9
also included two emails from Stankoski: the first stated that
“Amber paid $5926.00 for daycare” for Riley and Callie in
2021, and the second stated that she would be charging “$25
per day per child” in addition to a $10 weekly charge for
each child. Anthony’s counsel specifically stated that he had
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630“[n]o objection” to exhibit 9, after which the court received the
exhibit into evidence.
During cross-examination, Amber testified that in 2020,
she worked “one or two days [a] week . . . from 7 to 3,” but
that she spent the rest of her time throughout the week with
the children. Anthony’s counsel questioned Amber about her
current work schedule and the children’s corresponding day-
care attendance. The following colloquy took place between
Anthony’s counsel and Amber:
[Counsel:] . . . What’s the time that you clock into
work . . . ?
[Amber:] Between 8 and 8:30. I’m not able to drop my
kids off at daycare until 8 o’clock.
[Counsel:] And what time does your day end at [work]?
[Amber:] . . . Depends on the day, what I’m doing.
Anywhere from — Last night I got home at 6:30.
[Counsel:] What’s your normal — what’s your aver-
age time?
[Amber:] 40 hours a week.
[Counsel:] What’s your average time you end your
workday?
[Amber:] I try to get back by 5 o’clock because that’s
when daycare closes.
[Counsel:] But sometimes you work longer.
[Amber:] Correct.
[Counsel:] Now, is Riley going to school at Valentine
Public School?
[Amber:] Yes.
[Counsel:] What grade?
[Amber:] He is a preschooler.
[Counsel:] What time does he have to be at school?
[Amber:] 12 o’clock.
[Counsel:] What time does school end?
[Amber:] 3:30.
[Counsel:] When Riley’s at school, are you still paying
the daycare for him to [Fox]?
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Cite as 31 Neb. App. 630[Amber:] I pay [Fox] costs for food and costs for gas
to take him back and forth to school. I don’t actually pay
daycare/babysitter. It’s cost of food and cost of gas. That’s
an expense —
[Counsel:] So that 240 amount that’s on Exhibit 9 is
not actually a daycare cost, you’re just reimbursing for
food and gas?
[Amber:] That’s whatever you want to call it. I con-
sider it daycare, child care. Child care.
[Counsel:] How many hours a day is Riley spending
with [Fox] for daycare?
[Amber:] It really depends. Usually from — I would
say 8:30, until he goes to school; after school until any-
where between 5 and 6.
And if I am not back to get Callie from daycare,
my mom will get her and take her to [Fox’s] until I’m
off work.
[Counsel:] What hours is Callie in daycare?
[Amber:] 8, 8:30 to 5.
[Counsel:] And so the daycare quotes you have, the
$25 a day, that’s just for Callie?
[Amber:] Riley goes on Fridays when he does not
have school.
THE COURT: Wait a minute. I thought he was with
[Fox].
[Amber:] Most every day but Friday. Sometimes he
does go another day during the week, also. That’s why
the — why the cost for [Fox] is an average.
[Counsel:] Does [Fox] ever give you any money back?
You pay him 240; does he ever give you anything back?
[Amber]: He does not.
[Counsel]: Does he ever say you don’t have to pay
me 240?
[Amber]: He might have said it, but I still don’t feel
that’s right, because he is incurring those charges. He
shouldn’t have to take that expense.
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630(d) Closing Arguments
During closing arguments, Anthony’s attorney argued that
childcare had not been pled and that pleading out-of-pocket
expenses “does not signify that you want a change in . . .
child care. If you want to change child care, plead child care.”
Anthony’s attorney argued that nothing was mentioned about
childcare during the pretrial conference. Amber’s attorney
responded that “under a notice pleading requirement . . .
[i]t’s clearly pled as an out-of-pocket expense and it’s clearly
articulated within the guidelines.” The court interjected, stat-
ing, “Don’t tell me it’s clearly pled because it isn’t. You pled
for generic out-of-pocket expenses and then we had a pretrial
conference, we identified the issues, and that was certainly not
one of them that was raised.” Amber’s attorney argued that
there was no “unfair surprise,” Anthony’s counsel had a copy
of the childcare expense, and there had been correspondence
about it.
6. District Court’s Orders
A week after trial, on February 11, 2022, Amber filed a
“Motion to Amend the Pleadings to Conform to the Evidence.”
In her motion, she stated that “[e]vidence of substantial day-
care costs [was] presented at trial[] without objection of the
opposing party.” As such, she claimed the issue was tried with
the implied consent of Anthony. She requested that the district
court “allow the pleadings to be amended to conform to the
evidence produced at trial.” No notice of hearing was included
in the motion.
On February 23, 2022, the district court entered an “Order
on Trial Stipulations” where it accepted the trial stipulations
attached to the order. The parties’ “Trial Stipulation” set forth
“the existence of certain facts” and the parties’ agreement
“to the resolution of certain issues.” Toward the end of the
document, there is a list of issues under the subheading,
“Remaining unresolved issues recited at the commencement of
the final hearing[,]” which included items lettered “l.” through
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HUDSON V. HUDSON
Cite as 31 Neb. App. 630“s.,” all typed, followed by a handwritten item “t. Retroactive
Day Care.”
On February 25, 2022, the district court entered an order
modifying the parties’ decree. Sole legal and physical cus-
tody of the children remained with Amber, subject to the
“Amended Parenting Plan.” The court found that Anthony had
proved a material change in circumstances warranting modifi-
cation of child support. As such, the court reduced Anthony’s
child support obligation to “$834.00 per month when there
are two children subject to the order, and $579.00 per month
when there is one child subject to the order.” The modifica-
tion was applied retroactively beginning April 1, 2021, the
day after the action was filed. As such, the court found that
Anthony had “‘overpaid’ by $4,896” and credited that amount
“first against his attorney fee obligation and then to his sup-
port obligation.”
The court declined to require Amber to pay transportation
costs associated with Anthony’s exercise of his parenting time.
It pointed out that the parties “originally agreed that Anthony
would be responsible for all transportation costs knowing
he would be living a significant distance from Valentine.”
Anthony was living in Lincoln at the time. The court observed,
“Now those costs have substantially increased because of his
second move to Pennsylvania” and he “now wants Amber to
pay a portion of those increased costs.” The court concluded
that the “equities of the case do not compel that outcome.”
The court stated that Anthony made the move knowing his
children lived in Valentine and that Amber should “not be
required to pay for the increased costs associated with that
unilateral decision.”
The district court did not award Amber childcare expenses.
The February 25, 2022, modification order explained:
The first time the court heard that daycare (childcare) was
at issue was at trial. That subject had not been broached
in the pleadings nor at the Pretrial Conference when
the pending issues were specifically identified. Amber
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Cite as 31 Neb. App. 630argues that her generalized request for modification of
child support and “associated out of pocket expenses” in
accordance with the [Guidelines] properly placed the day
care matter at issue. Under her interpretation of notice
pleading any expenditure of money is “out of pocket”
and there would be no limit to the issues raised at trial
or to the relief requested if it involves money. Such an
expansive interpretation is unwarranted. And while issues
not raised by the pleadings may be tried by express
or implied consent of the parties, no such consent was
given. Anthony objected to the testimony regarding day-
care as beyond the scope of the pleadings.
Pleadings frame the issues . . . . Procedural due proc­
ess is at play. Amber did not plead a material change in
circumstances nor did she request an award of childcare
expenses until the time of trial.
When reviewing the pleadings it is apparent that
the apportionment of direct expenses per §4-212 of
the Guidelines was the issue. The Decree, prepared by
Amber’s counsel, erroneously included that language
because no joint custody had been awarded. Both parties
recognized the mistake. It seems much more probable
that Amber was referring to the apportionment language
relating to a joint custody arrangement and those out of
pocket expenses rather than to a previously unmentioned
and unaddressed day care issue.
Amber labors under the misconception that childcare
is “an associated out of pocket expense” of child support;
that the two go hand-in-hand. If child support is in play
[then] so too are childcare expenses. . . .
The nexus Amber seeks is not found in the Guidelines. . . .
Amber also ignores fundamental law that requires
proof of a material change in circumstances before a
decree will be modified. There was no evidence of any
material change regarding childcare expense[s] since
the Decree was entered; only the tit for tat. In fact,
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Cite as 31 Neb. App. 630Anthony’s income is now less . . . . [T]hat cannot be
the material change warranting an award of childcare
expenses at this juncture. Nor is Anthony’s move to
Pennsylvania a material change warranting modification
and an initial award of childcare expenses.
Day care was not an issue at the time the Decree was
entered; it was not awarded nor was it even mentioned.
In opening Amber suggested that the parties bartered
child support for day care at the time settlement was
reached. The income information presented to the court
and the child support calculation attributed roughly dou-
ble Anthony’s actual income to arrive at the child support
suggesting he had no bartering skills. Moreover, the court
notes Anthony was not represented and doubts he had the
legal sophistication to barter for anything, let alone an
increase in support in exchange for paying no childcare
costs. Amber’s attorney certainly should have known the
difference between child support and childcare and using
an incorrect income amount to determine child support
was improper. Bottom line, Amber now seeks to add
something after the fact and also have it relate back in
time without any showing of a material change. The court
declines to do so.
On March 21, 2022, Amber timely appealed from the district
court’s February 25 “Order Modifying Decree.”
III. ASSIGNMENT OF ERROR
Amber assigns that the district court abused its discretion
by not modifying its prior decree to require Anthony to pay
childcare expenses. As part of that assignment of error, she
identifies five ways in which the district court erred: (1) find-
ing she had not properly pled for relief related to childcare
expenses, (2) not finding that Anthony received sufficient
notice that childcare expenses would be an issue at trial, (3)
not finding that Anthony consented to raising the issue of
childcare at trial, (4) not scheduling for hearing her motion to
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Cite as 31 Neb. App. 630amend the pleadings to conform to the evidence, and (5) not
finding a material change in circumstances warranting modifi-
cation of the decree to include childcare expenses.
IV. STANDARD OF REVIEW
[1] Modification of a dissolution decree 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 by the trial court. Tilson v. Tilson, 307 Neb. 275, 948
N.W.2d 768 (2020).
V. ANALYSIS
This case provides a good example of the importance of
carefully drafting pleadings. It also demonstrates, however, that
inadequate pleadings need not preclude an equitable outcome,
especially when considering the best interests of a child.
1. Adequacy of Pleadings
Amber contends the district court erred when it found she
did not properly plead childcare expenses in her counterclaim.
We find no error in the court’s finding in that regard. Amber’s
counterclaim alleged a material change in circumstances
affecting the children’s best interests such that “custody and
parenting time of the parties” should be modified. Seven of
the eight reasons listed thereafter related to parenting time.
The final allegation states, “It is appropriate to modify the
child support obligation and associated out of pocket expenses
in accord­ance with the Nebraska Child Support Guidelines.”
Amber argues that childcare expenses are a part of “associ-
ated out of pocket expenses.” This argument is not persuasive,
especially when keeping her counterclaim language in context
with Anthony’s complaint, which alleged that the decree con-
tained a provision related to each parent’s 50-percent contribu-
tion to the children’s reasonable and necessary direct expend­
itures, such as clothing and extracurricular activities, despite
there being no provision for joint physical custody. Further,
as Anthony points out in his brief, just prior to the filing
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Cite as 31 Neb. App. 630of his complaint to modify, Amber had filed a complaint to
modify specifically seeking childcare expenses in which her
request for childcare expenses was clearly stated; it was not
couched in terms of out-of-pocket expenses. Amber dismissed
that action immediately prior to the filing of Anthony’s com-
plaint, and yet the specific request for childcare expenses was
not renewed in Amber’s counterclaim. Although we agree with
the district court that childcare expenses were not properly
pled, that does not end our analysis. We must also consider
whether there was sufficient notice to and consent by Anthony
to litigate the issue, and we must determine whether it was an
abuse of discretion for the district court not to consider those
same factors when declining to award childcare expenses for
the parties’ two minor children.
2. Notice and Consent to Litigation
of Childcare Expenses
Amber contends that even if her pleading was insufficient,
the district court should have found that Anthony had sufficient
notice childcare expenses would be an issue at trial and that he
impliedly consented to litigate the issue.
(a) Notice
[2-4] A court’s determination of questions raised by the
facts, but not presented in the pleadings, should not come at
the expense of due process. Simons v. Simons, 312 Neb. 136,
978 N.W.2d 121 (2022). While the concept of due process
defies precise definition, it embodies and requires fundamental
fairness. Id. Generally, procedural due process requires parties
whose rights are affected by a proceeding to be given timely
notice, which is reasonably calculated to inform the person
concerning the subject and issues involved in the proceed-
ing; a reasonable opportunity to refute or defend against a
charge or accusation; a reasonable opportunity to confront and
cross-examine adverse witnesses and present evidence on the
charge or accusation; representation by counsel, when such
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a hearing before an impartial decisionmaker. Id. The deter-
mination of whether the procedures afforded to an individual
comport with constitutional requirements for procedural due
process presents a question of law. Id.When Amber introduced the issue of childcare expenses
by identifying childcare receipts and witnesses in the “Joint
Final Witness and Exhibit List” filed in December 2021, no
objections were raised, although objections were reserved.
The record indicates that prior to trial, Anthony’s counsel dis-
cussed litigation of the issue with Amber’s counsel and stipu-
lated to the admissibility of the “[d]aycare receipts.” Although
Anthony’s counsel had marked the “[d]aycare receipts” with a
“C” on the “Joint Final Witness and Exhibit List,” indicating
that he had reserved all objections to the evidence, he stated
during the pretrial conference that he had done so because
he had not yet received a copy of these and other exhibits.
Notably, there was no surprise by Anthony at trial when he
was asked by Amber’s counsel whether he understood that with
child support decreasing he would need to contribute to day-
care costs for the children. Anthony responded, “Yes, ma’am,
I don’t have a problem with that.” Additionally, Anthony con-
firmed his counsel’s statement that childcare was something he
and his counsel had talked about and that Anthony was will-
ing to pay it if the court ordered it. The record supports our
conclusion that Anthony had sufficient notice childcare would
be an issue at trial and that therefore, procedural due process
was satisfied.
(b) Implied Consent
We next consider Amber’s argument that Anthony impliedly
consented to litigation of childcare expenses and therefore, the
district court should have granted her “Motion to Amend the
Pleadings to Conform to the Evidence.” The amendment of a
pleading is governed by Neb. Ct. R. Pldg. § 6-1115. Section
6-1115(b) provides in part:
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Cite as 31 Neb. App. 630When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may
be necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion of
any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of
these issues.
[5] The key inquiry of § 6-1115(b) for express or implied
consent to trial of an issue not presented by the pleadings is
whether the parties recognized that an issue not presented by
the pleadings entered the case at trial. United Gen. Title Ins.
Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015). Amber
does not allege that Anthony gave express consent to litiga-
tion of childcare expenses. As such, we limit our analysis to
implied consent.
[6,7] Implied consent for purposes of § 6-1115(b) may
arise in two situations. See United Gen. Title Ins. Co. v.
Malone, supra.
“‘First, the claim may be introduced outside of the
complaint—in another pleading or document—and then
treated by the opposing party as if pleaded. Second, con-
sent may be implied if during the trial the party acqui-
esces or fails to object to the introduction of evidence that
relates only to that issue.
“‘Implied consent may not be found if the opposing
party did not recognize that new matters were at issue
during trial. The pleader must demonstrate that the oppos-
ing party understood that the evidence in question was
introduced to prove new issues.’”
Id. at 1028-29, 858 N.W.2d at 216.
Anthony argues that he could not have consented to lit-
igation of childcare expenses, because he objected to the
topic during trial. We acknowledge that Anthony made a
continuing objection to the issue of childcare expenses on the
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Cite as 31 Neb. App. 630ground that it had not been pled in Amber’s counterclaim; the
district court permitted the continuing objection. Therefore,
the second manner in which implied consent may arise as
described above—by acquiescing or failing to object to the
evidence (at least in part)—is not supported by the record.
However, the record does show that Anthony impliedly con-
sented to litigation of childcare expenses under the first situa-
tion described above, in that the claim for childcare expenses
arose at least implicitly at the pretrial conference via the joint
pretrial document submitted to the court at that time. In the
December 2021 “Joint Final Witness and Exhibit List,” Amber
listed “[d]aycare receipts for minor children” as an exhibit
and named Stankoski and Fox, Amber’s childcare providers,
as possible witnesses. Anthony was aware of Stankoski’s and
Fox’s roles as childcare providers because Amber had provided
Anthony the “[d]aycare receipts” which stated the amounts
Stankoski and Fox had each charged Amber for childcare serv­
ices in the past and the rates they would charge Amber in the
future. Although it is possible that Fox’s testimony could have
been relevant to a properly pled claim, the “[d]aycare receipts”
and Stankoski’s testimony could only have been relevant to the
issue of childcare expenses. As such, Anthony had notice that
childcare expenses, an issue not specifically pled, had entered
the case.
Further, § 6-1115(b) provides in part:
If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party
fails to satisfy the court that the admission of such evi-
dence would prejudice the party in maintaining the party’s
action or defense upon the merits.
While Anthony did object at trial on the ground that child-
care expenses were not an issue pled in Amber’s counter-
claim, a trial court may nevertheless allow the pleadings to be
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Cite as 31 Neb. App. 630amended “and shall do so freely” when the merits of the action
will be furthered and the admission of such evidence will not
prejudice the objecting party. See § 6-1115(b). Anthony can-
not demonstrate prejudice, since he confirmed his attorney’s
statements that childcare was something the attorney and he
had talked about and that Anthony was willing to pay it if the
court ordered it. Additionally, when Amber’s counsel asked
Anthony whether he “underst[oo]d that now that child sup-
port is decreasing, [he would] need to contribute to the day-
care costs for the minor children,” Anthony responded, “Yes,
ma’am, I don’t have a problem with that.” Also, when exhibit
9, which contained Stankoski’s and Fox’s childcare charges,
was offered, Anthony’s attorney specifically stated there was
no objection to its receipt by the court.
In summary, we agree with Amber that there was sufficient
notice to Anthony regarding the issue of childcare and that
based upon the record as described above, Anthony impliedly
consented to litigating the issue. That leaves the question of
whether the district court abused its discretion by not allowing
Amber to amend her pleading to conform to the evidence.
3. Request to Amend Pleading
to Conform to Evidence
This case was tried on February 4, 2022. Amber filed her
motion to amend the pleadings on February 11, but did so
without scheduling it for hearing. The district court entered
its modification order on February 25. Amber claims the
court should have scheduled a hearing on her motion and that
the court’s issuance of “a final order before a hearing on the
motion could occur was an abuse of discretion.” Brief for
appellant at 13.
On the other hand, Anthony claims the district court did
not have to consider Amber’s motion to amend the plead-
ings, because she failed to comply with the local district court
rule that requires any motion to be accompanied by a notice
of the date and time of the hearing and that states the court
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by such notice of hearing and proof of service.’” Brief for
appellee at 23 (emphasis omitted) (quoting Rules of Dist. Ct.
of Eighth Jud. Dist. 8-3).
[8,9] Although Anthony raises a valid point, we are also
mindful that “[e]ven when a party does not move to amend
pleadings, a court may constructively amend pleadings on
unpleaded issues in order to render a decision consistent with
the trial.” Simons v. Simons, 312 Neb. 136, 160, 978 N.W.2d
121, 143 (2022). Therefore, regardless of whether Amber fol-
lowed proper procedures for placing the issue of amendment
before the court, we can consider whether the district court
abused its discretion by failing to constructively amend the
pleadings in order to render a decision consistent with the
trial and evidence related to the request to modify childcare
expenses. See Simons v. Simons, supra (permission to amend
pleading is addressed to discretion of trial court, and appel-
late court will not disturb trial court’s decision absent abuse
of discretion).
In this case, the issue of childcare expenses was fully
litigated. Amber provided testimony and submitted evidence
to the district court regarding her past and future childcare
expenses. Anthony thoroughly cross-examined Amber about
her work schedule and resulting childcare needs, as well as
the cost of childcare services for each of the children. Anthony
stated there was no objection to the receipt of exhibit 9,
which contained Stankoski’s and Fox’s childcare charges for
2021 and going forward. Additionally, the district court ques-
tioned Amber about whether she actually paid the amounts
for childcare reflected in the exhibits. The following colloquy
took place:
THE COURT: I draw a distinction between saying I’m
paying [Fox] $240 a month and actually paying it. That’s
what I was wondering about.
[Amber’s counsel:] Are you actually paying that day-
care cost, [Amber]?
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[Amber’s counsel:] And how did you pay that? Did you
write checks . . . ?
[Amber:] Paid him in check.
Exhibit 9 was offered and received at that time, with Anthony’s
counsel specifically indicating “[n]o objection to that.” The
court then inquired:
THE COURT: So have you paid [Fox] $240 for 12
months in 2021?
[Amber:] I did.
THE COURT: And then have you paid him $240 per
month for . . . this month?
[Amber:] Yes, for —
THE COURT: For January, excuse me?
[Amber:] For January and February, yes.
THE COURT: Okay.
Because Anthony had notice that Amber intended to litigate
the childcare issue at trial and had the opportunity to thor-
oughly examine Amber on the issue, the court should have
constructively amended the pleadings in order to render a deci-
sion consistent with the evidence received at trial. We there-
fore find that the court abused its discretion when it declined
to consider Amber’s request for an allocation of childcare
expenses between the parties based solely on the reason that
the issue was not properly pled. However, before directing a
remand on the apportionment of childcare expenses, we must
also consider whether the district court abused its discretion
in concluding there was no material change in circumstances
related to those childcare expenses.
4. Material Change in
Circumstances
In its February 25, 2022, modification order, the district
court set forth the issues identified at the pretrial confer-
ence, which included, “Apportionment of costs associated with
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Cite as 31 Neb. App. 630parenting time.” Additionally, the court set forth the issues
identified at the time of trial, which included, “Initiation of
childcare expense apportionment and if the court modifies
child support retroactively to the time of filing then the court
should enter a retroactive childcare expense order requiring
Anthony to pay a portion of those costs incurred by Amber
for that same retroactive period of time.” Then, at the onset
of its analysis, the district court stated, “Based upon the
stipulations made and the evidence adduced the court finds a
material change in circumstances and will address the parties’
claims for relief.” However, later in the order, when address-
ing the childcare issue, the order states, as set forth in more
detail previously, that “[t]here was no evidence of any mate-
rial change regarding childcare expense since the Decree was
entered; only the tit for tat.” It concluded that since Anthony’s
income was less presently than at the time of the decree, it
could not be a material change warranting an award of child-
care expenses. Also, Anthony’s move to Pennsylvania did not
constitute a material change warranting an “initial award of
childcare expenses.” The court did not consider the change in
Amber’s employment status since the entry of the decree. The
court stated that childcare “was not an issue at the time the
Decree was entered; it was not awarded nor was it even men-
tioned.” The court appeared troubled by the fact that “the par-
ties bartered child support for day care at the time settlement
was reached” and that “Amber’s attorney certainly should have
known the difference between child support and childcare and
using an incorrect income amount to determine child support
was improper.” It concluded, “Bottom line, Amber now seeks
to add something after the fact and also have it relate back
in time without any showing of a material change. The court
declines to do so.”
[10-13] A party seeking to modify a child support order
must show a material change of circumstances which occurred
subsequent to the entry of the original decree or a previous
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Cite as 31 Neb. App. 630modification which was not contemplated when the prior order
was entered. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865(2002). The paramount concern and question in determin-
ing child support, whether in the initial marital dissolution
action or in proceedings for modification of decree, is the
best interests of the child. Id. A change of circumstances not
within the reasonable contemplation of the parties at the time
of the decree may be the basis for modification of a decree.
See Albers v. Albers, 213 Neb. 471, 329 N.W.2d 567 (1983).
Although a parent may have contemplated incurring childcare
expenses at some point in the future, many items within the
realm of contemplation at the time of dissolution remain uncer-
tain or speculative. See Robbins v. Robbins, 3 Neb. App. 953,
536 N.W.2d 77 (1995).
[14] This court has held:
In determining whether to modify an award with respect
to childcare expenses, this court has compared the need
for work-related childcare at the time of the original
decree with the need for such childcare at the time of the
modification hearing. See, Mace v. Mace, 9 Neb. App.
270, 610 N.W.2d 436 (2000) (original decree did not
mention childcare expenses, and trial court did not err
in modifying decree to require contribution for childcare
expenses by noncustodial parent where custodial parent
had held jobs requiring childcare after original decree, did
not require childcare at time of modification hearing, but
testified that she may secure job necessitating childcare in
future); Robbins v. Robbins, 3 Neb. App. 953, 536 N.W.2d
77 (1995) (mere fact that before original decree parties
do not require childcare but anticipate future changes of
employment and potential for childcare expenses to arise
is not sufficient for holding that such expenses are reason-
ably contemplated).
Gartner v. Hume, 12 Neb. App. 741, 765, 686 N.W.2d 58,
79 (2004).
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Cite as 31 Neb. App. 630As in Mace v. Mace, 9 Neb. App. 270, 610 N.W.2d 436(2000), the parties’ July 2020 decree makes no mention of
childcare expenses. The evidence at the modification trial
included Amber’s testimony that in 2020, she worked “one or
two days [a] week . . . from 7 to 3” and, outside of those hours,
she stayed with the children. However, at the time of trial, her
work hours had increased to “40 hours a week.” She testified
that she arrives at work “[b]etween 8 and 8:30” and that while
she “tr[ies] to get back by 5 o’clock,” her return from work
“[d]epends on the day.”
Amber testified that Riley is in Fox’s care from “8:30,
until [Riley] goes to school” from “12 o’clock” to “3:30,”
and then “until anywhere between 5 and 6.” She also stated
that Callie is in daycare with Stankoski from “8, 8:30 to 5.”
Amber stated that on days where she is unable to leave work
in time to pick up Callie from daycare at 5 p.m., Fox watches
Callie until Amber is able to leave work. In addition to her
testimony on the matter, Amber submitted “[d]aycare receipts”
into evidence, which the district court received without objec-
tion from Anthony. The “[d]aycare receipts” included a state-
ment signed by Fox stating that he charged Amber “$2880 for
the year for daycare for Riley and Callie.” The exhibits also
included emails from Stankoski wherein she stated that Amber
paid $5,926 in childcare expenses in 2021 and that she charges
$25 per day per child in addition to a weekly $10 charge for
each child. Anthony presented no evidence contesting Amber’s
claim for childcare expenses, and in fact, Anthony testified
during cross-examination that he did not “have a problem”
with contributing to childcare expenses.
Given the uncontested evidence demonstrating that Amber’s
work hours increased substantially since the time of the
decree, thus impacting her childcare expenses, the district
court abused its discretion when it declined to find the evi-
dence supported a material change in circumstances related to
childcare expenses.
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Cite as 31 Neb. App. 630VI. CONCLUSION
For the foregoing reasons, we reverse the district court’s
decision declining to address childcare expenses and remand
the matter with directions to apportion childcare expenses from
the time of trial forward; any decision regarding a retroactive
award is at the trial court’s discretion based on the evidence
adduced at trial.
Reversed and remanded with directions.