Anderson v. Keller ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ANDERSON V. KELLER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
SCOTT R. ANDERSON, APPELLANT,
V.
KIMBERLY K. KELLER, NOW KNOWN AS KIMBERLY K. GARRISON, APPELLEE.
Filed March 31, 2020. No. A-19-731.
Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Reversed
and remanded for further proceedings.
Radley E. Clemens for appellant.
Krisanne C. Weimer, of Weimer Law, P.C., for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
INTRODUCTION
Scott R. Anderson brought an action against Kimberly K. Keller, now known as Kimberly
K. Garrison, seeking to modify custody of their minor child. The Douglas County District Court
granted Kimberly’s motion to dismiss. Because we find that Scott was denied due process, we
reverse and remand for further proceedings.
BACKGROUND
The record before us contains no bill of exceptions. Therefore, all information comes from
the transcripts provided to this court on appeal.
Although not in the record before us, the parties were apparently subject to a February 2009
paternity decree and parenting plan regarding their minor child (born in 2007) wherein Kimberly
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was awarded sole custody, subject to Scott’s parenting time. The parenting time Scott was to
receive is not specified in our record.
On December 14, 2015, Scott filed an application for modification, alleging that there had
been a material change in circumstances since the paternity decree was entered in February 2009.
Scott alleged that since the decree: he had consistently exercised parenting time in excess of what
was set forth in the parenting plan; the parties had never followed the holiday parenting plan; and
Kimberly failed to allow him to have telephone access to their child. Scott alleged it would be in
the child’s best interests for the parties to have joint legal and physical custody.
In a temporary order filed on February 27, 2017, the district court noted that Scott had
filed an application for modification on December 14, 2015, and that Kimberly filed a
“Cross-Complaint” for modification on February 23, 2016 (Kimberly’s pleading is not in our
record, nor was it requested in a praecipe). The court also stated that the matter came before it on
Kimberly’s motion for temporary order (neither Kimberly’s pleading nor a bill of exceptions from
this hearing appear in our record, nor were they requested in a praecipe). The court stated that
“[u]ntil further order of the Court,” Scott was to have parenting time with the parties’ child 4 hours
every Sunday, with such parenting time to be supervised by a specified neutral third party. The
court ordered that the parties’ child be enrolled in therapy with a specified provider, and that the
parties cooperate with and follow all recommendations made by the therapist. The parties were
also ordered to enroll in family therapy with a specified provider (different than the child’s
therapist), and to cooperate with and follow all recommendations made by the therapist. “Until
further order of the Court,” Scott was not to have “voice or text phone access” to the child. A status
hearing was set for March 23, 2017, “to determine the progress of therapy and [Scott’s] parenting
time.”
The district court’s order filed on April 11, 2017, states that a status hearing was held on
March 23 (no bill of exceptions for this hearing appears in our record, nor was one requested in a
praecipe). The court found and ordered that Scott’s parenting time as set forth in its prior February
27 order was to be “suspended until the minor child’s therapist . . . advises that unsupervised
parenting time is appropriate.” “In the meantime, parenting time shall be supervised in the manner
determined” by the child’s counselor and the family counselor, and “[t]he counselors shall set all
parameters for the visits.” A further status hearing was scheduled for May 15. (We note that no
bill of exceptions or order relating to a hearing on May 15 appear in our record, nor were they
requested in a praecipe.)
On August 10, 2017, Scott filed a motion for removal of counselors, seeking to remove
both the child’s counselor and the family counselor. Scott alleged that on July 20 he requested
update reports pursuant to the district court’s temporary order dated April 11, and that after
additional requests on August 1, both counselors failed to file any reports with him or the court.
He asked the court to remove both counselors, and to substitute a new named clinical psychologist.
He also sought “returned normalization of visitation” with his child. The notice of hearing at the
bottom of Scott’s motion stated that a hearing was scheduled for September 18. (We note that no
bill of exceptions or order relating to a hearing on September 18 appear in our record, nor were
they requested in a praecipe.)
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In an order filed on December 20, 2017, the district court stated that a hearing was held on
December 18 regarding Scott’s motion for holiday visitation (neither Scott’s pleading nor a bill of
exceptions from this hearing appear in our record, nor were they requested in a praecipe). The
district court “overruled and denied” Scott’s motion.
On March 26, 2018, Scott filed a motion for review and normalization of custody. He
“move[d] the court for an order granting [him] a Review of Counselor’s actions & time-tables; as
well as custodial normalizaiont [sic], pursuant to normal Wilson v. Wilson visitation” because (1)
the child had not received “full visitation” with him since January 2017, and it would be in the
child’s best interests to “resume normal custodial relations,” and (2) he had been denied normal
visitation since January 2017 and “the counselors . . . [had] failed to file a time-schedule, pursuant
to the Court’s Temporary instructions in Dec. of 2017.” The notice of hearing at the bottom of
Scott’s motion stated that a hearing was scheduled for April 26, 2018. However, on Kimberly’s
motion, the matter was continued to May 16.
In an order filed on June 18, 2018, the district court stated that a hearing was held on May
16 regarding Scott’s motion to resume his parenting time (no bill of exceptions from this hearing
appears in our record, nor was it requested in a praecipe). The district court found and ordered:
Scott’s parenting time as set forth in the prior order dated April 11, 2017, “shall continue to be
suspended and supervised until the minor child’s therapist . . . advises that unsupervised parenting
time is appropriate,” “[i]n the meantime, parenting time shall be supervised in the manner
determined by” the child’s therapist and the family counselor; “the minor child shall not take her
cellular phone into the therapy sessions and [Kimberly] shall not email or text the child during
therapy sessions”; Scott “shall be allowed to attend public events such as games or school events
for the minor child but shall not act in a manner that disrupts the child or her events,” and “[i]n the
event it becomes a problem for the child, this shall be discussed in therapy and appropriate
boundaries established”; the minor child shall continue to see her therapist and the parties shall
follow all recommendations made by the therapist in regard to the minor child and family therapy;
and Scott and the minor child shall continue in therapy with the family therapist, and follow her
recommendations including any ideas for parenting time.
On August 27, 2018, Scott filed a motion for visitation, alleging that he was denied
visitation at the child’s summer activities “due to information provided by [Kimberly],” regarding
dates of such activities. Accordingly, Scott sought an order for “normal visitation & custody.” The
notice of hearing at the bottom of Scott’s motion stated that a hearing was scheduled for September
26.
In an order filed on November 26, 2018, the district court stated that a hearing was held on
September 26 regarding Scott’s motion for visitation (no bill of exceptions from this hearing
appears in our record, nor was it requested in a praecipe). The district court stated that Scott’s
motion was “denied at this time.” Kimberly’s counsel was ordered to “continue to present [the
child’s] school activities schedules” to Scott’s counsel “well prior to any of said activities,” and to
provide the court with a verification copy of any and all school activity reports. “Any other
motions, at this time, shall be held in abeyance, until further order of the Court.”
On February 14, 2019, Scott filed a motion for inclusion or replacement of counselors. He
asked the district court for an order granting him “an [i]nclusion” of two named counselors in the
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family counseling previously ordered by the court, and stated that said counselors “may further be
substituted into counseling” if the current family counseling group chose to recuse themselves.
Scott alleged that he had attempted to add or substitute his named counselors, but that Kimberly’s
actions (i.e. refusing to consent) prevented such addition or substitution. Scott further alleged that
at the last family counseling session on January 17, the family counselor indicated it may be in the
parties’ best interests to transfer counseling. Scott stated he “should be awarded custodial
normalization, pursuant to normal Wilson v. Wilson visitation,” and that a new counseling
professional would facilitate the reunification of the father/daughter relationship. The notice of
hearing at the bottom of Scott’s motion stated that a hearing was scheduled for March 28. It appears
this hearing was ultimately held on April 16. However, there is not a bill of exceptions or an order
regarding any hearing held on April 16 in our record, nor were they requested in a praecipe.
On June 17 and 21, 2019, Scott filed a motion and an amended motion to compel entry of
an order, asking the district court “for an order entering the attached Order, all in accordance with
the Court’s findings made on April 16.” Scott alleged: his counsel “drafted the attached Order
(marked Exh. ‘A’ herein) . . . all pursuant to the Court’s request at said hearing”; the order was
forwarded to Kimberly’s counsel on April 24 “to make any required revisions, and forward directly
to the Court”; Kimberly’s counsel “advised she desired modifications to the Order, which were
executed by” Scott’s counsel; and his counsel sent the modified order back to Kimberly’s counsel
on May 10 “only to discover that [Kimberly’s] counsel” “would not execute the Amended Order,”
“(see Exhibit ‘B’).” The attached Exhibit A was a proposed order showing next steps in the case,
i.e. that Scott’s motion for inclusion or replacement of counselors, and Kimberly’s motion for
attorney fees, would be held in abeyance and continued to a future date after the completion of
several items (including that Scott attend a parenting class, and that the parties sign certain releases
for the current therapists to communicate with the proposed new therapist) and then a status
hearing would be scheduled. The attached Exhibit B consisted of letters from Scott’s counsel to
Kimberly’s counsel regarding modifications to the proposed order. Scott asked the court to grant
his motion to compel and enter the attached order. The notice of hearing at the bottom of both of
Scott’s motions stated that a hearing was scheduled for July 1.
On June 25, 2019, Kimberly filed a motion to dismiss the “above-captioned cause”
alleging: there had been a lack of prosecution to move forward with the case; Scott refused to
follow the district court’s orders on multiple occasions; Scott consistently submitted inaccurate
orders that were contrary to the court’s ruling; more than 2 years had gone by and Scott refused to
follow the instructions from the child’s counselor; and in over 2 years, there had been no steps
taken by Scott for reunification with his child. The notice of hearing at the bottom of Kimberly’s
motion stated that the motion would be heard on July 1. The certificate of service at the bottom of
her motion states that a true and correct copy of her motion “was served upon the following by
causing same to be filed using the Nebraska Justice System which provided E-Service” on June
25; it then lists Scott’s counsel and counsel’s purported email address (this email address is the
same email address listed for Scott’s counsel on the “Certificate of Appeal to the Nebraska Court
of Appeals”).
On June 30, 2019, Scott filed a resistance to Kimberly’s motion to dismiss, claiming that
he did not receive the motion until June 28. Scott further alleged: he “duly submitted his Orders
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for [Kimberly’s] signature on numerous occasions, for the 4/16 hearing & counsel never signed
same”; he “was forced to file the Motion to Enter Order, after numerous letters to [Kimberly’s]
counsel to execute the Order for the Court”; “[Kimberly’s] counsel never proposed an Order for
the 4/16/19 hearing & is the only dilatory party herein”; Kimberly’s motion to dismiss had “not
been properly noticed, time wise,” to Scott’s counsel, who desired additional time to resist; and
Kimberly’s counsel set the motion to dismiss “improperly, on top of [Scott’s] Motion to Enter
Order, without sufficient time notice to [Scott’s] counsel.” Also on June 30, Scott filed a motion
to continue Kimberly’s “recently filed Motion to Dismiss” scheduled for July 1.
In its order filed on July 2, 2019, the district court stated that on July 1 Scott’s amended
motion to compel entry of order and Kimberly’s motion to dismiss came on for hearing. (We note
that although Scott requested the bill of exceptions for the July 1 hearing in his praecipe, a filed
affidavit from the court reporter states that the reporter “has searched her notes and finds that she
has made no record in connection with the case, and therefore, there will be no bill of exceptions
from the District Court of Douglas County, Nebraska.”) In its order, the district court stated:
A Decree of paternity was entered on the 25th day of February, 2009 and on
December 14, 2015 [Scott] filed an application for modification which is still pending.
The Court finds that [Scott] has failed to follow the instructions of the minor child’s
counselor which has negated any attempts for reunification of [Scott] with the minor child.
The Court further finds that [Scott] has failed to demonstrate a material change in
circumstances which would justify an order of modification and, therefore, [Kimberly’s]
motion to dismiss the pending application for modification should be sustained and
[Scott’s] amended motion to compel entry of order should be overruled and denied.
Scott timely filed his notice of appeal on July 25, 2019.
ASSIGNMENTS OF ERROR
Scott assigns, summarized, (1) the district court improperly determined that his application
for modification should be dismissed based upon an untimely filing by Kimberly, (2) he was denied
due process of law, and (3) the court erred in not affirming his request for use of his own
independent counselor, and in upholding a motion to dismiss, without allowing for an evidentiary
hearing.
STANDARD OF REVIEW
Child custody determinations are 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Id. A judicial abuse of discretion requires that the reasons or rulings of the trial court be
clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.
Id.
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Dismissal of a civil action for lack of prosecution is addressed to the discretion of a trial
court, whose ruling, in the absence of an abuse of discretion, will be upheld on appeal. Jones v.
Jones, 284 Neb. 361, 821 N.W.2d 211 (2012).
ANALYSIS
Scott contends that the district court should not have dismissed his modification action.
However, Kimberly asserts that the district court did not abuse its discretion in dismissing Scott’s
modification action “that had been pending for three years six months and eighteen days,” for lack
of prosecution. Brief for appellee at 4. And that the effect of the dismissal was to “place the parties
back to where they were before the modification was filed,” i.e. that Scott’s “parental rights, as
contained in the February 2009 decree, remain.” Id. at 6. We agree with Scott that the district court
should not have dismissed his modification action following a nonevidentiary hearing on July 1,
2019, but we can also appreciate Kimberly’s arguments related to the protracted nature of the
proceedings.
The plaintiff bears the responsibility to prosecute a case with reasonable diligence.
Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). In the absence of a showing
of good cause, a litigant’s failure to prosecute a civil action, resulting in noncompliance with the
Nebraska Supreme Court’s progression standards for civil actions in district courts, is a basis to
dismiss an action on account of a lack of diligent prosecution. Id. See, also, Neb. Ct. R. § 6-101
(rev. 2013) (case progression standards in district and county court cases; for domestic relations
cases, 50-percent of cases disposed of in 180 days and 95-percent of cases disposed of in 1 year,
but time is excluded for mediation and parent education). A district court has discretionary power
to dismiss a case for want of prosecution and such dismissal is also within the court’s inherent
power. Jones v. Jones, 284 Neb. 361, 821 N.W.2d 211 (2012). See, also, Neb. Rev. Stat. § 25-1149
(Cum. Supp. 2018). The power to dismiss for want of prosecution is necessary in order to prevent
undue delays in the disposition of pending cases and to avoid congestion in the trial courts. Jones
v. Jones, supra. A dismissal can also be based upon a litigant’s failure to obey an order of the court
concerning the proceedings in the action. See, Neb. Rev. Stat. § 25-601 (Reissue 2016);
Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993) (trial court
ordered plaintiffs to make their petitions more definite and certain, but plaintiffs refused; petitions
dismissed without prejudice). See, also, Jones v. Jones, supra.
It appears that Scott has been active in this case since filing his application to modify in
December 2015, and particularly following the district court’s temporary order filed on February
27, 2017, as we have set forth previously. Although the district court ultimately granted Kimberly’s
motion to dismiss (which alleged in part a failure to prosecute), the reasons stated by the district
court went to the heart of the merits of the case, i.e. whether Scott demonstrated a material change
in circumstances warranting a modification of custody. The court’s order did not dispose of the
case solely based on a lack of prosecution. Instead, the court found that Scott had not demonstrated
a material change in circumstances; to make such a finding would have required an evidentiary
hearing, and as noted in the court reporter’s affidavit, no such hearing was held on July 1, 2019.
See, Neb. Ct. R. § 1-203 (rev. 2010) (court reporting personnel must comply with any Nebraska
Supreme Court rule relating to official court reporters and have a duty to make a verbatim record
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of all proceedings in the court to which they are appointed in accordance with Neb. Ct. R. App. P.
§ 2-105); § 2-105(A)(1) (rev. 2018) (court reporting personnel shall in all instances make a
verbatim record of the evidence offered at trial or other evidentiary proceeding; this record may
not be waived). But, see, § 2-105(A)(2) (motion hearing does not require verbatim record unless
requested). The district court’s July 2, 2019, order refers to a July 1 hearing, and on appeal, both
parties refer to a hearing on that date as well. The lack of a verbatim record for July 1 suggests it
was taken up only as a motion hearing and not for the purpose of receiving evidence. And without
evidence, the court could not enter an order concluding that Scott failed to demonstrate a material
change in circumstances and dismiss his complaint on that basis, as we explain next.
Although Scott initially claimed that he was denied his due process rights, “under the 2nd
Amendment to the Constitution and the other Amendments thereto, as well as the Constitution of
the State of Nebraska,” brief for appellant at 5, he subsequently modified this assertion in his reply
brief, stating he was “unquestionably denied his due process rights under the U.S. Const. Amend
V & XIV, Neb Const. Art. 1 Section 3,” reply brief at 8. We do find that Scott was denied due
process.
A party seeking modification must show a material change in circumstances, occurring
after the entry of the previous custody order and affecting the best interests of the child, next, the
party seeking modification must prove that changing the child’s custody is in the child’s best
interests. State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015). The
district court dismissed Scott’s application to modify after finding (1) Scott failed to follow the
instructions of the minor child’s counselor which negated any attempts for reunification with the
minor child, and (2) that Scott failed to demonstrate a material change in circumstances which
would justify an order of modification. But, as discussed above, the district court did not conduct
an evidentiary hearing before making such findings of fact, and thus Scott was denied an
opportunity to be heard and to prove his case that there was a material change of circumstances
affecting the child’s best interests. It is fundamental to due process that a person has reasonable
notice and an opportunity to be heard appropriate to the nature of the proceeding and the character
of the rights which might be affected by it. Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019).
Under the circumstances of this case, the district court abused its discretion by dismissing Scott’s
modification action without an evidentiary hearing. Accordingly, we reverse the dismissal and
remand the matter for further proceedings.
Because we find that the dismissal was improper and that further proceedings are required,
we need not address Scott’s other assigned errors. See Johnson v. Nelson, 290 Neb. 703, 861
N.W.2d 705 (2015) (appellate court not obligated to engage in analysis not necessary to adjudicate
case and controversy before it).
CONCLUSION
For the reasons stated above, we reverse and remand for further proceedings.
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
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