Schriner v. Schriner , 25 Neb. Ct. App. 165 ( 2017 )

Nebraska Supreme Court Online Library
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SCHRINER v. SCHRINER
Cite as 25 Neb. Ct. App. 165
Cecil Scott Schriner, appellee, v.
Sara Jane Schriner, appellant.
___ N.W.2d ___
Filed October 24, 2017. No. A-16-890.
1. Child Custody: Appeal and Error. An appellate court reviews child
custody determinations de novo on the record, but the trial court’s deci-
sion will normally be upheld absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Visitation: Appeal and Error. Parenting time determinations are also
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
4. Child Custody: Appeal and Error. 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.
5. Modification of Decree: Attorney Fees: Appeal and Error. 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.
6. Appeal and Error. To be considered by an appellate court, an error
must be both specifically assigned and specifically argued in the brief of
the party asserting the error.
7. Trial: Appeal and Error. The conduct of final argument is within the
discretion of the trial court, and a trial court’s ruling regarding final
argument will not be disturbed absent an abuse of discretion.
8. Visitation. The best interests of the children are the primary and para-
mount considerations in determining and modifying parenting time.
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9. ____. The right of parenting time is subject to continuous review by the
court, and a party may seek modification of a parenting time order on
the grounds that there has been a material change in circumstances.
10. Modification of Decree: Words and Phrases. In the context of marital
dissolutions, a material change in circumstances means the occurrence
of something which, had it been known to the dissolution court at the
time of the initial decree, would have persuaded the court to decree
differently.
11. Modification of Decree: Proof. The burden is upon the party seeking
the modification of decree to show that there has been a material change
of circumstances.
12. Child Custody. Pursuant to Neb. Rev. Stat. § 43-2929(1)(b)(ix) (Reissue
2016), the parenting plan shall include provisions for safety when a pre-
ponderance of the evidence establishes child abuse or neglect, domestic
intimate partner abuse, unresolved parental conflict, or criminal activity
which is directly harmful to a child.
13. Attorney Fees. Customarily, attorney fees are awarded only to prevail-
ing parties or assessed against those who file frivolous suits.
14. ____. In awarding attorney fees, a court should consider the nature of
the case, the amount involved in the controversy, the services actually
performed, the results obtained, the length of time required for prepara-
tion and presentation of the case, the novelty and difficulty of the ques-
tions raised, and the customary charges of the bar for similar services.
Appeal from the District Court for Franklin County: Stephen
R. Illingworth, Judge. Affirmed.
Sara Jane Schriner, pro se.
Kristi L. Hilliard and Michael R. Snyder, of Snyder, Hilliard
& Cochran, L.L.O., for appellee.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Bishop, Judge.
Sara Jane Schriner appeals from the decision of the district
court for Franklin County reducing her parenting time, restrict-
ing her participation in routine health-related appointments of
the parties’ children, ordering her to attend an anger manage-
ment course and counseling, and ordering her to pay $7,500 of
her ex-husband’s attorney fees. We affirm.
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BACKGROUND
Cecil Scott Schriner and Sara were married in 2005. Two
children were born during their marriage—one son in 2007 and
another son in 2009. Sara also had two teenage children from
a prior relationship.
In February 2014, the district court entered a decree dissolv-
ing the parties’ marriage. The decree indicates that during the
marriage, the parties had resided on a farm, and that Cecil was
a grain farmer and Sara had worked in the U.S. postal system
but resigned in November 2009 to be a “stay at home mother.”
The district court awarded Cecil legal and physical custody of
the parties’ two children, subject to Sara’s parenting time every
Tuesday and Thursday evening (after school until 7:30 p.m.)
and on alternating weekends (Friday after school until 5:30
p.m. on Sunday). Sara was also to get 6 consecutive weeks
of parenting time every summer, during which Cecil would
get parenting time on alternating weekends. Sara was ordered
to pay child support in the amount of $617 per month. Sara
appealed, and in an unpublished memorandum opinion, this
court affirmed the district court’s decision regarding custody,
but reversed and remanded the child support determination for
further proceedings. See Schriner v. Schriner, 22 Neb. Ct. App.
xxv (No. A-14-371, May 22, 2015). Our mandate issued on
October 29, 2015. On November 23, the district court’s order
on mandate was filed and ordered that Sara pay child sup-
port in the amount of $321 per month, beginning on February
1, 2014. There were further pleadings, orders, and two more
appeals regarding child support (both dismissed for lack of
jurisdiction) that need not be discussed here as they are not
relevant to the current appeal.
On December 3, 2014, prior to the custody portion of the
decree being affirmed on appeal, Sara filed a complaint for
modification of parenting time. She alleged that since the entry
of the decree in February, there had been a material and sub-
stantial change in circumstances justifying a modification of
parenting time, specifically: Cecil applied to and was accepted
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by the “LEAD 34 program,” a 2-year program “operated by a
non-profit Nebraska Agricultural Leadership Council” in coop-
eration with other “institutions of higher learning throughout
Nebraska”; the program began in September and included
“extensive time away from home”; Cecil refused to allow
Sara the right of first refusal for parenting time during his
participation in the LEAD program; Cecil refused to notify
Sara in advance of the children’s medical and other appoint-
ments in such a manner that she could attend the appointments;
Cecil continually refused to have any discussions regarding
the health of the children; Cecil refused to notify Sara of the
children’s activities in such a manner that would allow her
to attend the activities; Cecil refused to provide Sara with
information regarding the preschool that the younger child
attended; and Cecil refused to provide the names and contact
information for the children’s daycares, daycare providers, or
nannies. Sara asked the court to enter an order modifying her
parenting time, ordering Cecil to notify her of all of the chil-
dren’s appointments and activities, ordering Cecil to provide
names and contact information for all childcare providers, and
awarding attorney fees and costs to her.
On January 26, 2015, Cecil filed an answer and “Cross-
Complaint.” In his answer, he alleged that Sara’s complaint
was frivolous and that she is able to pay his attorney fees
for a frivolous action and should be ordered to pay his fees
and court costs. In his “Cross-Complaint,” Cecil alleged that
since the entry of the divorce decree, there had been a mate-
rial change in circumstances that justified a modification of
the parenting time. He alleged that Sara had (1) engaged in a
pattern of taking out her anger at Cecil in front of their chil-
dren; (2) engaged in a course of action where she willfully
and intentionally “poison[ed] the mind[s]” of their children;
(3) made false accusations about Cecil to and in front of
their children in an attempt to make them angry or prejudice
them against Cecil; (4) engaged in disruptive behavior in
front of their children at parenting time exchanges, medical
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appointments, public outings, and other events; (5) engaged
in behaviors wherein she set Cecil up for failure, embar-
rassment, or frustration in front of their children or others;
and (6) failed and refused to cooperate with parenting time
adjustments and used the frequency of the exchanges to send
“harassing and annoying” text messages to Cecil. Cecil asked
the court to modify the parenting time schedule to “a standard
every other weekend schedule or another similar schedule.”
He also asked the court to enter additional orders “regarding
behavior parameters and guidelines that should be met by the
parties when co-parenting [the] children including notification
procedures, and contempt procedures for behaviors that tend
to or attempt to poison the minds of the minor children.” In
his amended “Cross-Complaint” filed on June 22, Cecil also
alleged that a material change in circumstances had occurred,
because Sara was picking the children up from school without
his knowledge or consent and because she refused to allow
the children to participate in activities during her parenting
time. He also requested that the district court restrict Sara’s
participation in the children’s medical care and extracur-
ricular activities.
Trial on both parties’ complaints to modify parenting time
was held on March 9 and May 4, 2016. Sara appeared pro se,
and Cecil was represented by counsel.
Cecil testified that he has had temporary custody of the boys
since May 2011 (when they were 2 and 4 years old) and that
he was granted full custody in January 2014. At the time of the
divorce, Cecil proposed a parenting plan allowing for Tuesday
and Thursday midweek parenting time because a presenter at
his required “divorce class” “suggested heavily that children
under the age of kindergarten never go more than three days
without seeing their other parent.” By the time of the modifi-
cation hearing, the boys were 7 and 8 years of age. Cecil and
Sara have mediated twice since the decree, but the parties
have had ongoing conflict. Both parties testified regarding
their struggles.
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Sara testified that in July 2014, Cecil was given the oppor-
tunity to go back to school when he was accepted to the
LEAD program. From July to December, Sara requested the
dates of the program and asked to have the boys on those
days, but Cecil refused. Cecil also refused to tell Sara who
was watching the boys during that time. Sara said that from
September 2014 to March 2016, there were “over 45 nights”
that Cecil was at LEAD program seminars, but Sara had the
boys less than half of those nights. “So, the main reason for
me filing for more time with the boys was because [Cecil] was
not going to be in the state, country or around the area, and
it would have been a great opportunity to allow me to have
that time.”
Cecil testified that the LEAD program began in August or
September of 2014 and lasted until March 2016. It was basi-
cally seminars, most of them lasting 3 days from Sunday to
Tuesday, and then there were two 2-week seminars. He had
given Sara more than 20 extra overnight parenting times
when he attended the LEAD seminars, but he said she still
“demand[ed]” more time; she never wanted to “trade week-
ends,” and she only wanted extra weekends. Over the past
2 years, Cecil had attempted to make a “reasonable trade”
with Sara more than 20 times, for the LEAD program or at
Christmastime, but she refused (even if he was trading 5 days
for 1). Cecil did not tell Sara specifically where the boys
would be each time he left town for the LEAD program, but
“[t]hey’re either with me or they’re with my parents,” and
testified that Sara knows that. He also said he does not spe-
cifically tell her where the boys will be because she is “so
harassing and burdensome.” When Sara asked him to give
examples of dates and times when she was “harassing and bur-
densome,” Cecil responded, “I don’t catalog and mark down
on a calendar every time you followed me home or bothered
my friends or family, stopped in unexpectedly or unannounced
like you do.”
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Cecil testified that he does not want to allow Sara to have
the “first right of daycare” and that he believes she wants the
children anytime they are not under his direct supervision. He
said Sara sends text messages “hammering me that it’s wrong
for me to send them to my parents or to my sister’s for some
play time when she wasn’t notified first and that she should
have them first and not somebody else.” Cecil said that the
boys need to be involved with their extended family and should
be able to spend the night with their grandparents or cousins,
and even with friends.
Cecil testified that on Tuesday and Thursday nights, Sara’s
parenting time was supposed to end at 7:30 p.m., but that she
would keep the boys until 8:30 or 9 p.m. without his permis-
sion. And many times Sara would ask for extended time to
attend her older children’s events. Cecil said he gives Sara
some extra time, but sometimes it is not long enough for them
to stay until the end of the event; then the boys are mad at
Cecil because “it’s been imposed on them that it’s my fault
they [had] to leave early.” When Cecil granted extended time
on Tuesdays and Thursdays, it disrupted the boys’ sleep sched-
ule and not all of their homework got done.
Sara testified that on Tuesday and Thursday nights, she
feeds the boys, they do homework, they play, and she gives
them baths. She said that sometimes they attended ball games
or wrestling practice and that they also spend time with Sara’s
older children. The boys’ bedtime is 8 p.m., “[a]nd so sending
them to Cecil’s at 7:30 is — disrupts their bedtime. If I could
just give them a bath, send them to bed, then we would be
done.” Sara also said:
I have four children. The Tuesdays and Thursday nights
until 7:30 is disruptive to everybody’s schedule. We
don’t know if we have award banquets those nights. We
don’t know if we have ball games those nights. I have
missed a lot of ball games for [my two older children]. .
. . I asked [Cecil] if I could take [the boys] to Minden[,
Nebraska,] to [their half sister’s] very last volleyball
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game [in November 2015]. They were playing subdis-
tricts. [Cecil] refused to allow me to take the boys to the
last game, which meant I didn’t get to stay at the last
game either.
Cecil testified that Sara did go to the subdistrict high school
volleyball game in Minden. He said he tried trading nights
with Sara, but she apparently did not agree to a trade. So she
brought the boys home to her house, Cecil picked them up at
8 p.m. instead of 7:30 p.m., and then Sara went back to the
game. He acknowledged that he denied Sara’s request that he
pick the boys up at the high school, even if she reimbursed
him for mileage. On cross-examination, Sara testified she
missed “over half” of her daughter’s volleyball games. But
she was confronted with several dates where either she sent
Cecil a text message to say they would be late getting back to
his house because they were at volleyball or Cecil picked the
boys up from the volleyball game. If Cecil agreed to pick the
boys up from a home game at the school, Sara said it was a
benefit to him (rather than an accommodation made for her)
because the school is closer than her house where he would
have picked the boys up. Later, she said that just because
she was at a game does not mean that she stayed for the
entire game because she would have left early to get the boys
home. Sara said she also “asked [Cecil] if we could stay and
watch [my older son’s] first varsity [basketball] appearance
[in December 2015]. [Cecil] refused. And so I missed [my
son’s] first basketball game.” “[M]y older kids never know
if I’m going to be there or if I’m not going to be there.” “I
have failed my older two children over and over because of
[Cecil’s] actions.”
According to Sara, during parenting time exchanges, the
boys have cried, bitten, lashed out, run, and hid. Cecil “has
done everything possible to alienate me from the boys.” Sara
does not “speak badly” about Cecil and his family to the boys.
“When the boys are with me, we spend our time . . . hanging
out. We don’t spend our time trying to get them to hate [Cecil].”
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Cecil, however, testified that Sara is “pitting” the boys
against him. Some of the problems stem from when Cecil tells
Sara that the boys cannot stay late; she then tells the boys that
they “can’t go to a game because daddy won’t let them.” For
the past 2 years, after having parenting time with Sara, the
boys are sometimes upset with Cecil, and their behavior is
“[v]ery disruptive and toxic.” He said that when he picks the
boys up from Sara’s house, they will yell at him, tell him that
they hate him, and slam the door in his face. Cecil testified that
when the boys leave Sara’s house on Tuesday and Thursday
evenings, they are upset “[a]bout half the time.”
Sara’s various witnesses, including the principal and a
“­paraeducator” from the boys’ school, testified that they have
seen Sara and Cecil at various events and activities and wit-
nessed no disruptive behavior by Sara. Sara called another
witness who has children that go to school with Sara’s older
children. The witness observed parenting time exchanges
between Cecil and Sara at various events and said that for the
most part the exchanges were good, but there were a couple
times when the boys did not want to go with Cecil when they
were supposed to.
Cecil’s brother-in-law testified that at a basketball game in
December 2014, the boys were standing by Sara and one of the
boys asked her for money to buy candy. Sara spoke loudly, “so
everybody [could] hear,” and said, “I don’t have any money.
Your daddy took it all.”
Cecil wanted the court to remove Sara’s midweek parent-
ing time “to try and calm the chaos in the boys’ lives.” He
said that they need structure. In response to Cecil’s request to
eliminate the Tuesday and Thursday exchanges, Sara said:
I have no problems with getting rid of the exchanges.
Allow them to spend the nights. There is no reason that
the boys cannot spend Tuesday and Thursday night with
me, and I can get them to school the next day. . . . This
would allow me to not have to choose between going to
my older kids’ events or staying with my boys for the
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[parenting] time. These last two years I’ve had to be split,
and it’s been chaos for both my older children and my
younger children.
According to Cecil, in addition to fighting about exchanges,
it is a fight if he tries to give Sara time, if he tries to trade
her time, and any time he sends her a message regarding the
doctor or the dentist. The constant turmoil between Cecil and
Sara is “wearing” on the boys. “They get to struggle with
who’s right or wrong, what’s a truth or a lie, who’s telling
the truth, who’s lying.” He is asking the court to “remove the
exchanges so there’s no fighting[,] [l]et’s quit the Tuesday and
Thursday mid-week [parenting times]. It removes the conflict
of after school activities that are predominantly on Tuesday
and Thursday evenings. And then Sara can put them on the bus
Monday morning.” (Sara would lose Tuesday and Thursday
evenings every week, but would get an extra overnight of par-
enting time on Sunday on her scheduled weekends.)
Both Sara and Cecil testified about other difficulties they
have had beyond the Tuesday and Thursday evening exchanges.
Sara testified that in the summer of 2014, she asked Cecil for
a schedule of the boys’ activities so that she could attend, but
he refused. She said Cecil would not tell her until the activity
was over or would tell her at the last minute. Sara asked Cecil
if on her Christmas parenting time, the boys could participate
in the program at her church, and on his Christmas parenting
time, the boys could participate in the program at his church,
but he refused to bring the boys to the practices at Sara’s
church during his parenting time. (Both parents are Lutheran,
but they go to different churches.) In May 2015, Cecil refused
to switch Sundays so that the boys could attend their half
brother’s confirmation; Cecil said it was Sara who refused to
switch weekends.
Sara testified that another reason she filed for modifica-
tion was “because [Cecil] refuses to give me notification of
[the boys’] medical and dental appointments. Not only their
appointments, but their conditions. So, I don’t know how to
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treat them after something has been diagnosed.” However,
Cecil asked that he, as the custodial parent, be the only person
that is allowed to go to routine dental and doctor visits because
when he and Sara are both there, the boys “become immature
for their age, and they run to [Sara] and cling to her to try and
get out of the situation.” Additionally, Sara is “[v]ery uncoop-
erative” at appointments, “[s]he’ll either try and take control of
the show or she’ll try and — and make it uncomfortable.”
Dr. Jessica Meeske is a pediatric dentist and has been pro-
viding dental care for the parties’ children since December
2011. She testified that the boys’ dental visits are “stressful”
for two reasons:
The first is, is that the boys just have very age-­
inappropriate behavior, and it makes it difficult to provide
both routine dental care as well as dental treatment and
— and it takes two to three times as long. Their behavior
also spills over to the other patients that are in the clinic
or in the waiting room, which can cause a lot of anxiety
for other families whose kids are there to be seen that
day. The second reason that it becomes stressful is that
[Cecil and Sara] in the past in — in the dental office have
not always gotten along, and there’s times that the focus
is on the two of them not getting along as opposed to us
being focused on trying to take care of the boys.
According to Dr. Meeske, “there was just a lot of hostility on
[Sara’s] part directed at [Cecil].” Cecil has “been very help-
ful” and has been willing to take advice regarding dental care
suggestions. And when one of the boys is not behaving during
a visit, Cecil is willing to take direction from the staff to step
out of the examination room and allow them to work with the
child one-on-one. As for Sara, Dr. Meeske testified that it was
evident that she clearly loves her boys and wants to do what
she can to help the children. However, her intentions are “mis-
placed” and she
assumes the role of the helicopter parent and then it’s
very difficult for the boys to take direction from [staff]
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because the boys act as the victim. And then [Sara]
comes in and tries to act as the rescuer. And once the
whole theatric starts, it’s very hard to get the boys’
attention, even for simple things like sitting in the chair
and counting their teeth and doing a checkup, let alone
treatment.
Dr. Meeske said that recently Sara has made “a better effort”
to try to let the boys do more on their own, but “there’s been
so many negative dental experiences that, you know, now it’s
been three steps back.”
According to Dr. Meeske, Sara also “point[s] the finger at
[Cecil]” regarding problems with the boys’ dental treatment or
behavior, and she even goes so far as “trying to embarrass”
him in the dental office. When the boys see that kind of inter-
action, it causes their behavior to get worse. Dr. Meeske has
never observed Cecil “fighting back or picking fights” with
Sara. On cross-examination, Dr. Meeske stated that the interac-
tion between Cecil and Sara has “gotten a lot better.” However,
since 2014, there have been ongoing problems with the boys
being apprehensive and scared at dental appointments. Cecil
is willing to follow staff suggestions, but Sara’s reaction (e.g.,
saying “don’t push him if he doesn’t want to do anything”)
causes the child’s behavior to escalate. Dr. Meeske testified
that it would be in the boys’ best interests if Cecil brought the
boys to her office. She is “more than willing to go the extra
mile to communicate with [Sara] on the boys’ care, whether
that be by phone or e-email or if she wants to come in and visit
. . . personally.”
In an order filed on August 25, 2016, the district court
generally found in favor of Cecil. After recounting the evi-
dence from the modification hearing, the court said that most
of Sara’s energy is “focused on her anger over the divorce
and alienating the children” and that “[s]he has been disrup-
tive, controlling and rude during [parenting time] exchanges.”
“Based on the totality of the evidence,” the court decided to
“decrease some of her [parenting time] because she is not
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acting in the best interests of the children in promoting their
emotional growth.” Accordingly, the district court sustained
Cecil’s “Cross-Complaint” to modify Sara’s parenting time
to every other weekend; her Tuesday and Thursday parenting
times were terminated. “To reduce parental contact,” the district
court said Sara “shall deliver the children to the school bus on
Mondays after her weekend [parenting time].” The court said it
was “unable to set out specific parameters on behaviors to be
met other than the parties should treat each other with respect
in front of the children and not make disparaging remarks
about each other.” However, the court ordered Sara to attend
and complete an anger management course and counseling “to
address her co-parenting issues.” The district court restricted
Sara’s participation in medical, dental, optometric, and derma-
tology appointments as follows:
A. [Cecil] is not required to notify [Sara] of routine
medical, dental, optometric and dermatology appoint-
ments. [Sara] may not participate in those appointments
as the atmosphere she creates is not in the best interests
of the children. [Cecil] shall advise [Sara] of the relevant
information on the results of the visits by email or text
message after they occur.
B. Both parties shall advise each other of any emer-
gency room visits as soon as possible.
Regarding names and contact information for childcare pro-
viders, the district court ordered the parties to notify each
other of the names and contact information for “regular” paid
providers; this does not include babysitters for short periods of
time. Finally, the district court awarded $7,500 in attorney fees
to Cecil, because Sara “prevailed on one issue, i.e., day care
notification, which [Cecil] agreed to,” and because “her modi-
fication was frivolous and she acted in bad faith by attempting
to alienate the children and then asking for more parenting
time.” The court denied the parties’ other requests. Sara’s
motion to set aside judgment and application for new trial was
overruled. Sara now appeals.
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ASSIGNMENTS OF ERROR
Sara assigns, restated, that the district court erred by (1)
admitting irrelevant evidence and excluding relevant evidence;
(2) making no finding that a material change in circumstances
occurred warranting this modification; (3) reducing, rather
than increasing, her parenting time; (4) restricting her notifica-
tions of and participation in the children’s appointments and
activities; (5) ordering her to attend an anger management
course and counseling; and (6) ordering her to pay $7,500 of
Cecil’s attorney fees.
STANDARD OF REVIEW
[1,2] An appellate court reviews child custody determina-
tions de novo on the record, but the trial court’s decision will
normally be upheld absent an abuse of discretion. Flores v.
Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). An
abuse of discretion occurs when a trial court bases its deci-
sion upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
[3] Parenting time determinations are also matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion. State
on behalf of Maddox S. v. Matthew E., 23 Neb. Ct. App. 500, 873
N.W.2d 208 (2016).
[4] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, 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. Robb v. Robb, 268 Neb. 694, 687
N.W.2d 195 (2004).
[5] 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
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in the absence of an abuse of discretion. Garza v. Garza, 288
Neb. 213, 846 N.W.2d 626 (2014).
ANALYSIS
Errors Argued But Not Assigned.
[6] Sara argues, but does not assign as error, that the district
court (1) should have given her the first right to daycare, (2)
was biased against her and denied her motion to disqualify
the judge, and (3) overruled her motion to have a guardian
ad litem appointed for the boys “to help the courts figure out
what was in the boys’ best interests.” Brief for appellant at 21.
To be considered by an appellate court, an error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. Mock v. Neumeister, 296 Neb. 376,
892 N.W.2d 569 (2017). See, also, Friedman v. Friedman, 290
Neb. 973, 863 N.W.2d 153 (2015) (pro se litigant will receive
same consideration as if represented by attorney, and pro se
litigant held to same standards as one represented by counsel).
Therefore, we will not address these arguments.
Evidentiary Issues.
Sara claims that the district court erred in admitting irrel-
evant evidence and excluding relevant evidence. We briefly
address each of her claims in turn.
Sara argues that “[t]he trial court received unknown ‘docu-
ments’ handed to the Judge from [Cecil’s] counsel during
closing arguments that were unseen by [Sara].” Brief for appel-
lant at 20. The record reflects that during closing arguments,
Cecil’s counsel approached the bench and stated, “Although
I’m not offering it into evidence, I have drafted a proposed
order for review.” The record does not indicate whether a
copy of the proposed order was previously given to Sara or
whether she was given a copy at the time it was presented to
the court. During closing arguments, Cecil’s counsel discussed
the evidence from trial alleged to support the proposed order.
Although any case-related communication with the judge,
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verbal or written, should include the presence of, or a copy to,
the opposing party and/or his or her counsel, Cecil’s proposed
order was neither offered nor received as evidence. To the
extent Cecil’s counsel failed to provide a copy of the proposed
order to Sara simultaneous to or in advance of providing it to
the court, such practice is not to be condoned. However, Sara’s
suggestion that this was an evidentiary error is not supported
by the record.
[7] Sara further asserts she was not given an opportunity
“to do rebuttal oral arguments or written closing arguments.”
Brief for appellant at 20. As will be discussed later, the request
made by Cecil’s attorney during closing arguments that Sara
be ordered to attend an anger management course and counsel-
ing came as a surprise to Sara, and therefore Sara claims she
“did not have an opportunity to defend herself from [Cecil’s]
closing argument requesting this.” Id. at 17. However, the
conduct of final argument is within the discretion of the trial
court, and a trial court’s ruling regarding final argument will
not be disturbed absent an abuse of discretion. See Sundeen v.
Lehenbauer, 229 Neb. 727, 428 N.W.2d 629 (1988). We find
no abuse of discretion here. The record reflects that both par-
ties were treated equally and fairly by the court in this regard,
and both parties were permitted to make closing arguments
without any restrictions placed on their time. Further, after the
district court’s order was entered, Sara filed a “Motion to Set
Aside Judgment and Application for New Trial,” which specifi-
cally raised the issue that Sara did not have an opportunity “to
defend herself against the order for these classes.” Sara was
then provided an opportunity to discuss all matters contained
in her motion at the hearing scheduled for that purpose; the
district court overruled Sara’s requests in an order entered
September 13, 2016. We will address the court’s order on this
issue in more detail later.
Sara also claims the court “relied on psychological assump-
tions of Sara made by a Pediatric Dentist” and considered
actions that happened before the date of the decree. Brief for
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appellant at 21. The record does not support Sara’s claim the
district court “relied on psychological assumptions” made by
Dr. Meeske. The court did note Dr. Meeske’s testimony that
she observed hostility by Sara toward Cecil in the office, that
Sara is a “‘Helicopter Parent or Rescuer’” of the boys which
causes them to act out, and that “[i]n the last 3 or 4 years
this has happened more than once.” It is true that things that
happened “3 or 4 years” ago would have happened before the
date of the decree. However, Dr. Meeske testified that there
have been “ongoing” problems with Sara’s actions at dental
appointments which makes it difficult for staff to provide both
routine dental care as well as dental treatment. The court did
not err in considering the “ongoing” problems testified to by
Dr. Meeske.
Sara argues that the court used “double hearsay from [Cecil]”
to find that she alienated the boys from him. Brief for appel-
lant at 21. We need not specifically address the “double hear-
say” issue, because even without considering such statements
(e.g., that Sara told the boys that Cecil lied to the judge), there
was sufficient evidence to modify Sara’s parenting time. See
Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015)
(erroneous admission of evidence in bench trial not reversible
error if other relevant evidence, properly admitted, sustains
trial court’s necessary factual findings; in such case, reversal
warranted only if record shows trial court actually made factual
determination, or otherwise resolved factual issue or question,
through use of erroneously admitted evidence).
The remainder of Sara’s evidentiary allegations regarding
statements made by the court, or evidence “ignored” by the
court, brief for appellant at 23, do not go to the actual admis-
sibility of evidence and therefore need not be discussed. See
Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004) (in
child custody cases, where credible evidence is in conflict on
material issue of fact, appellate court considers, and may give
weight to, fact that trial judge heard and observed witnesses
and accepted one version of facts rather than another).
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Material Change in Circumstances
and Parenting Time.
[8-11] The best interests of the children are the primary
and paramount considerations in determining and modifying
parenting time. Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526
(2001); State on behalf of Maddox S. v. Matthew E., 23 Neb.
App. 500, 873 N.W.2d 208 (2016). The right of parenting time
is subject to continuous review by the court, and a party may
seek modification of a parenting time order on the grounds
that there has been a material change in circumstances. State
on behalf of Maddox S. v. Matthew E., supra. See, also, Smith-
Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997).
In the context of marital dissolutions, a material change in
circumstances means the occurrence of something which, had
it been known to the dissolution court at the time of the ini-
tial decree, would have persuaded the court to decree differ-
ently. Peterson v. Peterson, 239 Neb. 113, 474 N.W.2d 862
(1991). The burden is upon the party seeking the modification
of decree to show that there has been a material change of
circumstances. See Sullivan v. Sullivan, 249 Neb. 573, 544
N.W.2d 354 (1996).
Sara asserts that the district court “failed to find any material
change in circumstances that would warrant any modification.”
Brief for appellant at 11. Although the district court’s order did
not specifically say there had been a material change in circum-
stances, its order nevertheless included findings which implic-
itly established a material change in circumstances. The court
pointed out Sara’s behaviors in which she was “attempt[ing]
to alienate the boys from [Cecil].” It went on to note, “The
more time she gets, the more she wants. She is inflexible in her
demands and most of her energy is focused on her anger over
the divorce and alienating the children.” Further, our de novo
review of the record supports that there was a material change
in circumstances affecting the boys’ best interests, namely,
that these parents needed a modified parenting plan that would
minimize opportunities for ongoing conflict. See State on
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behalf of Maddox S. v. Matthew E., supra (ongoing conflict can
constitute material change in circumstances).
In fact, Sara and Cecil agreed that exchanges after her
Tuesday and Thursday parenting time lead to conflict and
“chaos” as evidenced by their testimony detailed above.
However, they both proposed different solutions: Sara pro-
posed that the court give her overnight parenting time on
those nights, and Cecil proposed that the court take away her
parenting time on Tuesday and Thursday evenings in exchange
for an additional overnight of parenting time on her scheduled
weekends. Either scenario would limit the majority of parent-
ing time exchanges between the parties, because exchanges
would essentially occur when the boys got on or off the school
bus at the appropriate parent’s home. However Sara’s pro-
posed plan of allowing her Tuesday and Thursday overnight
parenting times would result in having the boys switch homes
every weeknight; this schedule would not provide structure
and stability to the boys’ lives. The district court did not abuse
its discretion by modifying the parenting plan to eliminate
Sara’s parenting time on Tuesday and Thursday evenings, and
extending her scheduled weekends by adding another over-
night of parenting time on Sunday.
Children’s Appointments and Activities.
Sara argues that the district court erred in restricting her
notifications of and participation in the boys’ appointments
and activities. Sara cites us to Deacon v. Deacon, 207 Neb.
193, 297 N.W.2d 757 (1980), disapproved on other grounds,
Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002), to
support her claim that she should not be denied access to her
children. However, Deacon is a case where the noncustodial
parent was denied the right of parenting time, and it is not
applicable here.
In its order, the district court denied Sara’s request to
require Cecil to notify her of medical, dental, and optometric
appointments. The district court restricted Sara’s participation
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in medical, dental, optometric, and dermatology appointments
as follows:
A. [Cecil] is not required to notify [Sara] of routine
medical, dental, optometric and dermatology appoint-
ments. [Sara] may not participate in those appointments
as the atmosphere she creates is not in the best interests
of the children. [Cecil] shall advise [Sara] of the relevant
information on the results of the visits by email or text
message after they occur.
B. Both parties shall advise each other of any emer-
gency room visits as soon as possible.
The court also denied Sara’s requests to require Cecil to notify
her of school programs, “as [Sara], as a parent, may obtain the
school . . . calendar from the School District,” and of any spe-
cial or holiday church programs involving the children, because
“as set out in the Decree, [Sara] is disruptive in [Cecil’s]
church” and “[s]he has the children every other Sunday, where
she can participate with the children in her church.”
Cecil has sole legal and physical custody of the boys.
Having legal custody means that Cecil has the authority and
responsibility for making fundamental decisions regarding the
children’s welfare, including choices regarding education and
health. See Neb. Rev. Stat. § 43-2922(13) (Reissue 2016).
The district court did limit Sara’s notification of and par-
ticipation in “routine medical, dental, optometric and derma-
tology appointments.” But the court ordered Cecil to advise
Sara of the relevant information on the results of the visits
by email or text message after they occur. Furthermore, Sara
has a statutory right to access the boys’ medical records. See
Neb. Rev. Stat. § 42-381 (Reissue 2016) (unless court orders
to contrary, each parent shall continue to have full and equal
access to education and medical records of his or her child;
either parent may make emergency decisions affecting health
or safety of his or her child while in physical custody of such
parent). After our de novo review of the record, including Dr.
Meeske’s testimony that Sara’s presence interferes with the
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staff’s ability to work with the children, we find that the dis-
trict court did not abuse its discretion in limiting notification
of and participation in “routine medical, dental, optometric
and dermatology appointments.”
As to school and church programs, we are reviewing only
whether Cecil should be required to notify Sara of such pro-
grams. As stated by the court, “[Sara], as a parent, may obtain
the school . . . calendar from the School District.” See, also,
§ 42-381 (unless court orders to contrary, each parent shall
continue to have full and equal access to education and medical
records of his or her child). As to the children’s church pro-
grams, as noted by the district court, “as set out in the Decree,
[Sara] is disruptive in [Cecil’s] church.” The decree reflects
that at the hearing on dissolution, the minister of Cecil’s
church testified that Sara causes a commotion when she attends
and that as a result, the minister “directed her away from the
church.” Since the entry of the original decree, Sara demon-
strated a continued inability to be respectful toward Cecil in
a public setting. At a basketball game in December 2014, the
boys were standing by Sara when one of the boys asked her for
money to buy candy. Sara spoke loudly, “so everybody [could]
hear,” and said, “I don’t have any money. Your daddy took it
all.” Accordingly, we find the district court did not abuse its
discretion when it denied Sara’s request to require Cecil to
notify her of school and church programs.
As noted, the court addressed only Cecil’s obligation to
notify Sara of these various school and church activities; the
court did not prohibit her from attending them. Naturally,
the best situation for the children is for both parents to be in
attend­ance, in a supportive role, at such activities. However,
this ideal cannot be achieved if one parent engages in disre-
spectful behavior toward the other parent in the presence of
their children. Not only does this adversely impact the activity
for their own children, but it also interferes with the enjoy-
ment of the event by other children and their families. In this
case, as in other cases the courts see too often, even though
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both parents clearly love their children, they nevertheless
fail to see how their inability to get along and cooperatively
coparent is adversely impacting their children. Accordingly,
it is not an abuse of discretion for a district court to use
reasonable measures to minimize the harm of unresolved
parental conflict on children.
Counseling and Anger Management.
Sara argues that the district court erred in ordering her to
attend an anger management course and counseling. She says
that this was not addressed at trial, that she did not have an
opportunity to defend herself from Cecil’s closing arguments
requesting the order, and that she was not given the oppor-
tunity to give rebuttal closing arguments. She further argues
that there is no evidence to support such an order by the dis-
trict court.
[12] To the extent that Sara was “blindsided” by Cecil’s
request during closing arguments that she be ordered to attend
an anger management course and counseling, Sara did not
make an objection at the time the request was made. Further,
we have already addressed that the district court has discre-
tion with regard to the conduct of final arguments and also
that Sara was able to raise and argue this particular issue at
the hearing on her motion for new trial. Assuming without
deciding that she properly preserved the issue for appeal, we
find no abuse of discretion by the district court. See Neb.
Rev. Stat. § 43-2929(1)(b)(ix) (Reissue 2016) (parenting plan
shall include provisions for safety when preponderance of
evidence establishes child abuse or neglect, domestic inti-
mate partner abuse, unresolved parental conflict, or crimi-
nal activity directly harmful to child). See, also, Neb. Rev.
Stat. § 43-2930(2)(e) (Reissue 2016) (after contested hearing,
court shall enter temporary parenting order that includes,
if appropriate, requirement that parent complete program of
intervention for perpetrators of domestic violence, program
for drug or alcohol abuse, or program designed to correct
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another factor as condition of parenting time); Neb. Rev. Stat.
§ 43-2928 (Reissue 2016) (in all proceedings under Parenting
Act, court may order second-level parenting education when
factual determination of unresolved parental conflict has been
identified; such course shall, among other things, include
information about potentially harmful impact of unresolved
parental conflict on child and use of effective communication
techniques and protocols).
In his amended “Cross-Complaint,” Cecil alleged that Sara
had engaged in a pattern of taking out her anger at Cecil in
front of their children; engaged in a course of action where
she willfully and intentionally “poison[ed] the mind[s]” of
their children; made false accusations about Cecil in front of
their children in an attempt to make them angry or prejudice
them against Cecil; engaged in disrupting behavior in front of
their children; and engaged in behaviors wherein she set Cecil
up for failure, embarrassment, or frustration in front of their
children. Although Sara’s attendance at an anger management
course and counseling were not specifically requested prior to
trial, Sara’s anger and co-parenting issues were raised. Those
issues were also addressed at trial. Although Sara presented
testimony from witnesses who did not observe any disruptive
behavior by Sara, Cecil testified and presented witness testi-
mony to the contrary. For example, Cecil testified that Sara
tells the boys they “can’t go to a game because daddy won’t
let them.” He further stated that the past 2 years, after having
parenting time with Sara, the boys are sometimes upset with
Cecil—they will yell at him, tell him that they hate him, and
slam the door in his face. And Dr. Meeske testified that Sara
“point[s] the finger at [Cecil]” regarding problems with the
boys’ dental treatment or behavior, and she even goes so far
as “trying to embarrass” him in the dental office. When the
boys see that kind of interaction, it causes their behavior to
get worse. 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
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heard and observed the witnesses and accepted one version of
the facts rather than another. Robb v. Robb, 268 Neb. 694, 687
N.W.2d 195 (2004).
Finally, Sara contends that the closing arguments from Cecil
“brought in fictitious opinions from people that did not tes-
tify at trial as they referred to a Joel, Dr. Meidlinger and Mr.
Snyder.” Brief for appellant at 17. However, her argument is
not supported by the record. During closing arguments, Cecil’s
counsel referenced a radio segment she heard on the way to
court that morning (“Joel” was the speaker on the radio), as
an analogy for the parties’ situation; the words of “Joel” were
not offered as an opinion. “Dr. Meidlinger” was appointed
to perform a custody evaluation for the original divorce, and
counsel made a passing reference to that opinion in her clos-
ing. During closing arguments, Cecil’s counsel mentioned a
discussion she had with “Mr. Snyder” (her co-counsel) about
what could possibly be done to address Cecil’s issues with
Sara’s behavior, and “Mr. Snyder” said that they should ask the
court to order therapy for Sara. Accordingly, contrary to Sara’s
assertions, there were no “fictitious opinions” offered during
closing arguments.
After our de novo review of the record, we cannot say the
district court abused its discretion in ordering Sara to attend
an anger management course and counseling to address her
co-parenting issues. Second-level parenting education can be
ordered for situations involving unresolved parental conflict.
See § 43-2928. Also, when there is evidence of parental behav-
ior which is harmful to a child, a court shall order provisions
for the safety of a child as may be needed when a preponder-
ance of the evidence establishes unresolved parental conflict.
See § 43-2929(1)(b)(ix).
Attorney Fees.
Cecil submitted an affidavit and itemized bill from his attor-
ney reflecting $17,582.84 in actual legal services and expenses
since December 2014, as well as an estimate of an additional
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$1,500 for attending the second day of the modification trial,
for a total of $19,082.84. The district court ordered that Sara
pay $7,500 of Cecil’s attorney fees at a rate of $125 per month
and that if her payments should “be delinquent for more than
30 days, the remaining amount due is converted to a [j]udge-
ment” with interest accruing until paid.
Sara asserts the district court erred in ordering her to pay
Cecil’s attorney fees because (1) contrary to the court’s find-
ing, her complaint for modification was not frivolous or made
in bad faith, and (2) she cannot afford to pay the fees.
[13] 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 recov-
ery 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 cases. Id.
Thus, there was authority, in the present case, for the awarding
of attorney fees to Cecil. See id.
[14] In awarding such fees, a court should consider the
nature of the case, the amount involved in the controversy, the
services actually performed, the results obtained, the length of
time required for preparation and presentation of the case, the
novelty and difficulty of the questions raised, and the custom-
ary charges of the bar for similar services. See id.
The award of an attorney fee judgment against Sara in
favor of Cecil was not an abuse of discretion, even without
considering the district court’s finding that Sara’s modification
action was frivolous. The original decree was filed in February
2014, and Sara filed the current complaint to modify custody
in December of that year. Counsel for Cecil successfully chal-
lenged Sara’s complaint to modify parenting time, and counsel
pursued and succeeded in a “Cross-Complaint” for modifica-
tion. As noted by the district court, Sara prevailed on one
issue, the daycare notification, to which Cecil agreed.
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These parties have been involved in extensive litigation
since the entry of the decree in February 2014, and most of
the litigation has been instigated by Sara. In addition to the
current modification action, Sara filed two other modification
pleadings regarding child support: a complaint to modify in
June 2014 and a “Motion to Modify Order on Mandate” in
December 2015. And this is the fourth appeal filed by Sara. She
appealed the following: (1) the original decree (in an unpub-
lished memorandum opinion, this court affirmed the district
court’s decision regarding custody, but reversed and remanded
the child support determination for further proceedings, see
Schriner v. Schriner, 22 Neb. Ct. App. xxv (No. A-14-371, May
22, 2015)); (2) the ruling on the June 2014 complaint to modify
child support, which she filed 4 months after the decree was
entered (in case No. A-15-055, in a minute entry dated October
5, 2015, this court dismissed Sara’s appeal for lack of jurisdic-
tion); (3) the ruling on her December 2015 “Motion to Modify
Order on Mandate” as to child support (in case No. A-15-1223,
in an order dated January 29, 2016, this court dismissed Sara’s
appeal for lack of jurisdiction); and (4) the current order on
modification. At times, more than one appeal or complaint
has been pending simultaneously. These ongoing actions have
caused the parties to incur significant legal expenses, except
for Sara when proceeding pro se.
Sara claims she cannot afford to pay Cecil’s attorney fees in
this action because her child support obligation takes her “well
below poverty level” and she is already working two jobs.
Brief for appellant at 23. The parties’ specific financial situ-
ations were not discussed at the parenting time modification
hearing. But according to the child support worksheet, Sara’s
monthly net income is $1,640.28. Her child support obligation
is $321 per month, leaving her $1,319.28 per month. Payment
of $125 per month toward attorney fees would not put her
below the “[b]asic subsistence limitation” for one person, but
does put her below “the [federal] poverty guidelines updated
annually in the Federal Register” for a three-person household
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(remembering that Sara has two other children from a prior
relationship). See Neb. Ct. R. § 4-218 (rev. 2017). However,
we are mindful that Sara received a $300,000 property settle-
ment through mediation with Cecil in 2013. Under the cir-
cumstances of this case, we cannot conclude that an award of
attorney fees to Cecil was an abuse of discretion.
CONCLUSION
For the reasons stated above, we affirm the decision of the
district court.
A ffirmed.