Herrera v. Herrera ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
HERRERA V. HERRERA
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).
STEFFEN P. HERRERA, APPELLEE,
V.
VICTORIA G. HERRERA, APPELLANT.
Filed March 22, 2022. No. A-21-450.
Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.
Affirmed.
Victoria G. Herrera, pro se.
Robin L. Binning, of Binning & Plambeck, for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
The Douglas County District Court entered an order modifying the November 2017
marriage dissolution decree of Steffen P. Herrera and Victoria G. Herrera. The original decree
granted Victoria sole legal and physical custody of the parties’ four children, subject to Steffen’s
parenting time. In June 2020, following concerning behavior by Victoria which placed the children
at risk of harm, Steffen moved to modify the decree. The modification order awarded Steffen sole
legal and physical custody of the parties’ children, subject to Victoria’s supervised parenting time.
Victoria, pro se, appeals. We affirm.
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II. BACKGROUND
1. DECREE OF DISSOLUTION
Steffen and Victoria were married in 2004. Four children were born during their marriage:
Osiris, born in 2006; Karma, born in 2007; Sylvia, born in 2009; and Viviana, born in 2012.
Victoria also has an older daughter, Alyssa, who was born in 2001 from a prior relationship. Alyssa
lived with the parties during the marriage and with Victoria after the divorce. In 2010, the parties
agreed that Victoria would homeschool their children.
In November 2017, the district court entered a decree dissolving the parties’ marriage. At
trial, Victoria appeared personally with representation. The decree noted that Steffen did not
personally appear and was not represented by an attorney at trial. As will later be described in
further detail, Steffen was in the custody of law enforcement at the time of trial due to criminal
charges filed against him; the charges were subsequently dropped. The decree awarded Victoria
sole legal and physical custody of the parties’ children subject to Steffen’s parenting time as set
forth in the parenting plan attached to the decree. The decree also required Steffen to pay $1,122
per month in child support for four children and $350 per month in alimony.
2. COMPLAINT FOR MODIFICATION
(a) Postdecree Events
Following the entry of the decree, the parties’ children lived with Victoria, and Steffen had
parenting time one day per week and every other weekend. We note that several reports were made
to the Nebraska Department of Health and Human Services in the years following the divorce
concerning the well-being of the children in Victoria’s custody, although the children were never
removed from the home. In the summer of 2019, Steffen moved from Nebraska to Minnesota for
better employment prospects due to his inability to pay the amount of child support and alimony
ordered by the decree. While living in Minnesota, he traveled to Nebraska to exercise his parenting
time with the children and would otherwise keep in contact through phone calls and other methods
of remote communication. After discussing the matter with Victoria, Steffen’s trips to Nebraska
became less frequent due to the COVID-19 pandemic and related travel restrictions.
On June 7 and 8, 2020, a series of events occurred involving Victoria and the children.
Throughout the late night of June 7 and early morning of June 8, Victoria kept the children awake
and exhibited paranoid behaviors that alarmed the older children. During the early morning of June
8, Victoria locked Alyssa and Karma out of the family residence. Shortly thereafter, Victoria had
Osiris, Sylvia, and Viviana get into her vehicle and she then proceeded to drive recklessly to
another location, culminating in a traffic accident. When law enforcement initially contacted
Alyssa at the family residence in response to a dispatch call about a “disturbance,” Alyssa informed
them that her mother had not slept in days and “was acting paranoid and was afraid that everybody
in the apartment complex that they reside [in] was going to die.”
Law enforcement subsequently received a dispatch that there was a “hit-and-run accident
of a vehicle that matched the description” of Victoria’s vehicle. At the scene of the accident, there
was an unoccupied minivan and a truck; the truck owner indicated that “a female and children left
that minivan” and went to a nearby house. When knocking on the door of the house, police heard
“yelling and screaming.” Officers made contact with Victoria inside the house where she was
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“yelling, screaming at one of the residents there as they were trying to calm her down.” The
children were in the living room. An officer observed the children to be “nervous,” “scared,” and
“in shock.” As officers spoke with Victoria, she was behaving “erratically” and “paranoid” with
“fast speech.” Victoria explained to the officers that she feared for the safety of people she knew
as a result of her presence at a protest and comments she posted online. She was worried about a
person at that residence not answering the phone and Victoria “was fearful that they were dead,”
so she “hopped curbs” and was driving in a “reckless manner with the children” in an attempt to
locate the people at that residence.
Officers subsequently arrested Victoria and placed her in the back of the officers’ cruiser.
As the officers transported her to a county corrections facility, Victoria managed to free herself
from her handcuffs and began “banging the Plexiglas partition” which separated the front and back
of the cruiser. She threatened that she was “going to stab” the officers and that she “wanted to
fight, and that if [the officers] were going to fight, that [they] were going to have to shoot her.”
She said she did not believe they were “real police officers” and started yelling out the cruiser’s
window that she was being abducted. Upon arrival at the corrections facility, officers attempted to
remove Victoria from the cruiser. She punched and kicked at the officers, striking one in the face
with the loose handcuff. “She was kicking, punching, scratching, yelling, screaming, and at one
point [an officer] had to take her hand off of [his] partner’s gun,” which Victoria was “attempting
to grab.” Law enforcement eventually restrained Victoria by cuffing her hands and feet and by
putting her in a restraint chair with a “spit mask because she was attempting to spit at officers.”
She was booked on multiple charges, including three counts of child neglect, resisting arrest, and
assault on an officer. Victoria was subsequently placed on mental health diversion for these
charges.
After Victoria was taken into police custody, the children’s paternal and maternal
grandmothers helped provide for their care and to prevent foster placement. Steffen was apprised
of the circumstances and subsequently remained in frequent contact with the children. The
children’s paternal grandmother thereafter worked with the Nebraska Department of Health and
Human Services to develop a safety plan for the children.
(b) Pretrial Proceedings
Steffen filed a complaint on June 12, 2020, requesting modification of the November 2017
decree. Steffen alleged that a material change in circumstances had occurred in that it was no
longer in the children’s best interests for Victoria to have sole legal and physical custody. Steffen
also filed an ex parte motion that same day, requesting temporary custody of the parties’ children
and permission to remove the children from Nebraska to Minnesota during the pendency of the
modification proceeding. The district court entered an ex parte order on June 15, 2020, granting
Steffen’s requests for temporary custody and removal.
Following a hearing held on June 25, 2020, the district court entered a temporary order
requiring the children to be returned from Minnesota to Nebraska, stating that it was “not
comfortable with the children remaining removed from the State of Nebraska on a temporary basis
pending trial.” The court ordered that Steffen would retain temporary legal and physical custody
of the children subject to Victoria’s supervised parenting time. Steffen was given permission by
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the court to place the children in the care of their paternal grandparents during the course of this
action.
On July 10, 2020, Victoria, then pro se, filed an answer denying the allegations in Steffen’s
complaint for modification. She subsequently retained counsel and filed an “Application for
Complaint Citation” on August 4, requesting the district court to cite Steffen for contempt due to,
among other allegations, Steffen claiming the parties’ children as tax exemptions and receiving
“stimulus checks for the children” that Victoria claimed she was entitled to receive as the custodial
parent. An August 5 order temporarily suspended Steffen’s child support obligation under the
November 2017 decree. We also note that Steffen returned to Nebraska prior to trial upon securing
new employment.
(c) Trial Testimony
Trial was held over the course of 2 days in February 2021, a third day in March, and a final
day in April. Prior to trial, Victoria had retained new counsel. Numerous exhibits were offered and
received. The parties both testified and each called several witnesses. In addition to other third
parties, Steffen called the children’s maternal and paternal grandmothers to testify on his behalf,
and Victoria called two of her cousins to testify on her behalf. There was significant crossover
between the testimonies of Steffen and Victoria and the testimony of these familial witnesses, and
we focus primarily on the parties’ testimonies regarding their relationships with the children.
(i) Osiris and Karma
Over Victoria’s objection, Osiris, age 14, and Karma, age 13, testified in chambers with
the trial judge, attorneys, and guardian ad litem present. The district court ordered the children’s
testimony to not be shared with either Steffen or Victoria. The children’s testimony is sealed, and
while we have reviewed and considered their testimony in our de novo review of the record, we
will not recount it here.
(ii) Dr. Glenda Cottam
Dr. Glenda Cottam is a clinical psychologist who began to provide “therapeutic support for
the [parties’] children” in July 2020. She testified regarding her interactions with and observations
of the parties’ four children. In general, she did not believe the children were coached or otherwise
instructed to tell her particular things by third parties.
Dr. Cottam described Osiris as “[g]uarded, soft-spoken, sad, [and] kind of worried about
what was going to happen in the future.” Dr. Cottam’s mental health diagnosis for Osiris included
“anxiety . . . and depression . . . not otherwise specified” that was “[n]ot quite to the level of major
depression.” According to Dr. Cottam, “[t]here were some challenges on the academic screens”
that she administered to Osiris. She noted that Osiris’ “math score [in this testing] was suggestive
of a third-grade equivalency,” although his “other scores in . . . word reading, sentence
comprehension, and spelling were all in the average range.” She believed that continued
counseling was “necessary for Osiris” due to several factors such as changed family dynamics and
attendance of public school rather than homeschooling among other personal changes.
Dr. Cottam also testified regarding Osiris’ relationship with his parents. She stated that
Osiris’ “relationship with his mother is not very good at all right now,” in part due to the lingering
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emotional effects of the incident on June 8, 2020. Dr. Cottam’s understanding was that during
Victoria’s parenting time, Osiris was “withdrawn, [did not] interact much, [and] just kind of maybe
goes into his own shell” while “actively avoid[ing] contact,” although she believed that “there
could be some healing if there is some family therapy [and] if they find some common grounds of
activities that they enjoy doing together[.]” She testified that unsupervised parenting time between
Victoria and Osiris “would not in any way be a good idea” due to risks of further estrangement
between the two. Conversely, Dr. Cottam testified that Osiris “has a good relationship with his
father,” “looks up to [him],” and “wants to be with [him] very, very much.” She believed there
may be some lingering issues due to Steffen’s move to Minnesota and limited contact, but she did
not believe there were any concerns with Steffen having legal and physical custody despite
Steffen’s criminal history.
In describing Karma, Dr. Cottam noted that she was “very insecure [and] very shy” with
“very poor” self-confidence. Dr. Cottam diagnosed Karma with “major depression” and
“significant anxiety.” As with Osiris, Dr. Cottam administered several tests regarding Karma’s
academic proficiency. She testified that the results indicated that Karma had “some challenges
with processing speed” but otherwise fell into average ranges in other metrics. Dr. Cottam also
observed that Karma was having difficulties in her social development and making friends. She
felt that Karma was making some progress in these areas despite continuing struggles with her
mental health, although Dr. Cottam noted that Karma’s “depression was significant enough” just
prior to trial that she “urged the consideration of an age-appropriate antidepressant.”
Dr. Cottam described Karma’s relationship with Victoria as “strained,” noting that there
were “some challenges in the attachment and bonding with her mother.” She believed there were
“trust issues that need to be worked out in therapy prior to moving forward” from supervised
parenting time, as Karma “worried about [Victoria] being mad at her [and] yelling at her.” Dr.
Cottam did not have any concerns regarding Karma’s relationship with Steffen.
Dr. Cottam had less concerns with respect to Sylvia’s well-being. She diagnosed Sylvia
with an “[a]djustment disorder” and described that Sylvia was experiencing “[a] little bit of
anxiety, a little bit of confusion, [and] some uncertainty,” although Sylvia had substantially
improved since July 2020. Sylvia also had lower academic scores in the tests administered by Dr.
Cottam, indicating “some challenges with math [and] spelling.” Sylvia also was initially “having
pretty significant problems with reading” in that she was “reading significantly below her grade
average” due to not being “taught to read”; however, Dr. Cottam felt that Sylvia would get caught
up through school, “especially if she continues to have a little bit of extra help with reading and
tutoring.” We note that Dr. Cottam’s assessment concerning Sylvia’s reading ability mirrors the
testimony given by Kristin Quinn, a reading specialist teacher who had been working with Sylvia
to advance her reading ability. Dr. Cottam expressed that she did “[n]ot really” have any concerns
if Sylvia were placed in Victoria’s custody, although she was “worried about going back to the
idea of homeschool” and not “having traditional medical and dental appointments.” She further
observed that Sylvia’s relationship with Steffen “[s]eem[ed] to be a positive relationship” and
otherwise had little concern with his parenting other than his move to Minnesota.
Dr. Cottam had similar concerns regarding Viviana. She diagnosed Viviana as having an
adjustment disorder that was “[p]retty mild.” Like Sylvia, Viviana’s test results also indicated that
she was initially “way below grade level” with respect to academic proficiency, although Dr.
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Cottam also noted that Viviana was making “good progress” in school. Dr. Cottam believed that
Viviana had a “fairly good relationship” with Victoria, and she did not have any concerns about
Viviana’s relationship with Steffen.
Dr. Cottam also testified specifically regarding Steffen and Victoria. She noted that her
interactions with both parents were limited, and she had not conducted a parenting assessment of
either parent before trial. Based on her interactions with Steffen, Dr. Cottam’s “main concern was
that he didn’t stay in Nebraska to be hands-on” with the children. Conversely, Dr. Cottam was
concerned that Victoria had “some type of mental health condition,” but Dr. Cottam elected not to
give a specific diagnosis due to her limited interactions with Victoria.
Concerning the children’s placement with their paternal grandparents during the pendency
of this matter, Dr. Cottam believed the children all “have an excellent relationship” with their
paternal grandmother, Karen Smith-Clopton, and “feel secure[,] safe, and comfortable” in
Smith-Clopton’s home.
(iii) Angela Mitchell
Angela Mitchell is a child and family specialist with the Nebraska Department of Health
and Human Services. She first had contact with the family in June 2017 following an intake which
reported allegations of physical and educational neglect. During the investigation, Victoria
provided Mitchell with documentation that she was certified to homeschool the children, but she
denied Mitchell’s request to interview the children and did not provide information concerning the
children’s educational progress. Mitchell denied seeing the children during this investigation,
testifying that a coworker also assigned to investigate observed the children instead. No safety
threats were identified in Victoria’s home during this investigation, and Mitchell closed the intake
due to insufficient evidence indicating any neglect had occurred. Mitchell investigated subsequent
intakes in October 2017 and March 2018 concerning similar allegations of neglect and isolation.
During these investigations, Victoria provided Mitchell “very limited access to the children.” Both
intakes were closed due to the absence of identified safety threats or evidence of potential neglect
and isolation.
Following the events on June 7 and 8, 2020, Mitchell investigated the intake received after
the accident occurred. At that time, the children had been placed with Smith-Clopton, and Mitchell
carried out an unannounced visit of Smith-Clopton’s residence on June 9. During this visit, she
privately interviewed the children concerning the events on June 7 and 8, as well as other
household circumstances. Mitchell testified that the children were “behind . . . where they should
have been educationally” and were “not being taught at home” except for “every once in a while
[when] their older sister[, Alyssa,] would teach them if she didn’t have to work.” Other issues
discovered included the children’s lack of historic medical or dental care and reports from Sylvia
and Viviana expressing that they were afraid to “go back to [Victoria’s] home due to . . . bugs in
the home.” The children were subsequently “safety-planned . . . out of [Victoria’s] home” and
placed in Smith-Clopton’s home.
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(iv) Jeffrey Wagner
Attorney Jeffrey Wagner was appointed guardian ad litem for the children by the district
court in a stipulated order entered on August 19, 2020. Following his appointment, he spoke with
Victoria, Steffen, the children, Dr. Cottam, and the children’s grandmothers.
Wagner spoke with the children both as a group and individually. He described them as
“very reserved,” “very quiet,” and “very soft-spoken” when he met them as a group. Based on his
conversations with Osiris and Karma, Wagner testified that he had concerns that the children were
not actually being homeschooled but instead were “left to their own devices in trying to forge an
educational path forward.” These conversations with the children also raised concerns regarding
the children not being taken to doctors when ill, the “lack of standard Western medical care,” and
the occasional “lack of food.” He observed the children to be “very thin” but could not tell whether
the children were “underweight.”
Wagner also testified that the children presented as “sad and sullen,” although he noted
that Sylvia and Viviana appeared less so than Osiris and Karma. With respect to the two oldest
children, Wagner felt a “sad sense of isolation by these kids in [Victoria’s] home,” believing that
they were “being limited as to what they could do and where they could go and not generally
having what we would characterize as a typical” upbringing with “normal peer relationships.” He
also did not believe the children were coached by a third party, testifying that the children “spoke
with age-appropriate terms” and described the same events “a little differently.”
Wagner met with Victoria early on in this matter. Wagner had concerns about Victoria’s
mental health prior to this meeting based on his understanding of the incident on June 8, 2020, and
these concerns remained after meeting with Victoria. He testified that at the time of trial, he had
not received any documentation of mental health treatment undergone by Victoria or of any
prognosis or diagnosis provided by a mental health professional. He felt that Victoria “did not
seem to appreciate the gravity” of the events that transpired on June 7 and 8. Wagner further
testified that he had concerns about Victoria’s “ability to make rational decisions in the children’s
best interest regarding educational needs [and] health care.”
Regarding Steffen, Wagner expressed limited concerns regarding his relationships with
the children. Wagner affirmed that he was aware of Steffen’s criminal history and, to an extent,
the circumstances of Steffen’s previous convictions and charges; Steffen’s criminal history did not
cause Wagner concern regarding Steffen being granted custody of the children. Wagner did note
concerns regarding Steffen’s move to Minnesota, but he testified that this was alleviated upon
Steffen’s return to Nebraska. Wagner recommended that Steffen be granted legal and physical
custody of the children subject to Victoria’s supervised parenting time.
(v) Michael Flairty
Michael Flairty was the appointed supervisor of Victoria’s parenting time with the children
in accordance with the stipulated order entered on August 19, 2020. Flairty affirmed that he did
not observe “anything inappropriate” during Victoria’s parenting time, although he noted that
Osiris “kind of shut[] down” when the children visited their mother. Flairty had no concerns with
any of the locations where parenting time occurred, including Victoria’s residence. He described
that the first visit he supervised was not “productive” and required him to “redirect both the
children and the mom” due to an argument between Victoria and Osiris. He also testified that the
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children initiated conversations regarding the custody modification and that Victoria “appear[ed]
to listen” and responded to the children’s concerns in some amount of depth.
(vi) Steffen
Steffen testified regarding his criminal history. At the time of the parties’ divorce, Steffen
was involved in an incident for which he was initially charged with attempted murder. He testified
that this charge “was dropped on [his] intake,” and he was subsequently charged with two counts
of terroristic threats. His testimony indicates that these charges were “dropped” and “expunged
from [his] record” because “it was a self-defense case.” His criminal history also includes
convictions for traffic offenses such as driving under the influence of alcohol.
Regarding his move to Minnesota, Steffen testified that he could not afford his child
support and alimony obligations under the November 2017 decree due to his level of income. He
moved to Minnesota in June 2019 following a job offer he believed to be more lucrative than others
available in Nebraska. Prior to trial, Steffen made employment and housing arrangements enabling
his return to Nebraska, including accommodations for the parties’ children, and he moved back to
Nebraska in February 2021.
In addition to his concerns regarding the events on June 7 and 8, 2020, Steffen testified as
to other concerns about the children following the parties’ divorce. Steffen acknowledged that he
had agreed for Victoria to homeschool their children while they were married, but he described
that the children’s homeschooling was initially more “regular” in that the children were being
taught “at certain times” on a scheduled basis. Steffen testified that after their divorce, he felt the
homeschooling “started to degrade” to the point that “[i]f [the children] didn’t want to learn
something, they didn’t have to.” Steffen also claimed that Victoria prevented him from being
involved with the children’s education while she had custody. He further testified of his preference
for “traditional doctors [and] dentists” for the children over “home remedy” treatments, and he
made medical, dental, and counseling appointments for the children following the temporary order
granting him custody of the children.
Steffen testified that his relationships with the children have been positive despite the
difficulties stemming from his work schedule and his subsequent move to Minnesota. He felt the
children were improving after their time in counseling and their enrollment in public school and
otherwise appeared more outgoing and “active than they have in the past.”
(vii) Victoria
Victoria testified regarding her homeschooling of the parties’ children. She provided
documentation received from the Nebraska Department of Education indicating that her requests
to homeschool the children were approved over the years. She gathered educational materials
based on her research, including books, magazines, and games to aid the children’s education in
reading, writing, math, and other subjects. She explained that she avoided “forced education” and
instead tailored her homeschooling to the children’s individual interests, facilitating the children’s
education in the directions indicated by their curiosity and desire to learn about particular subjects.
The children also participated in activities with other children who were similarly homeschooled.
She testified that the children’s homeschooling has remained the same since the parties’ divorce,
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and she disagreed with the assessments of the children’s socialization and education provided by
the witnesses called by Steffen.
Regarding the children’s medical needs, Victoria testified that she has taken the children
to doctors on several occasions. She recalled that the children had “regular checkups” when they
were “infants and toddlers,” and she had also taken the children in to see medical professionals for
injuries and evaluation for stomach and skin issues. Victoria affirmed that she “sometimes use[s]
homeopathic healing or natural remedies” such as “essential oils” for some of the children’s
difficulties such as an “earache,” allergies, “chapped lips,” and skin issues. She believed these
remedies have generally been “pretty successful” in treating the children’s health problems.
Victoria characterized the incident on June 8, 2020, as the result of an “anxiety attack”
stemming from multiple stressors, including financial difficulties, the COVID-19 pandemic, and
civil unrest occurring in Omaha around that time. She testified that as part of her participation in
the mental health diversion program for the charges resulting from the incident, she is “supervised
weekly by a case manager” and “attend[s] therapy sessions . . . and anger management therapy
weekly.” She reported that she has not had a similar “anxiety attack” since the June 8 incident.
Victoria testified as to the positive relationships she has with her children, including during
her supervised parenting time after the commencement of this action. While she noted that Osiris
was a “little standoffish” during the first visit, her visits generally were positive for the children
and herself. She felt that “there was a lot more separation between” her and the children after she
retained an attorney, and it took more time for the children to “warm up” during the visits. Victoria
also believed that Steffen and others had “interfered” with her relationships and visits with the
children both prior to and during the pendency of this action.
(d) Modification Order
The district court entered an “Order of Modification” on May 11, 2021. After a thorough
summary of the evidence presented at trial, the court found that a material change in circumstances
had occurred that warranted modification of the November 2017 decree. The court observed:
Since [the entry of the November 2017 decree,] the evidence is clear that the children have
been isolated, resulting in social anxiety. Further, [Victoria’s] chosen method for home
schooling has not provided the children with the educational progress that they will need
to develop into thriving adults. [Her] claims that the children are receiving an education
complementary to what they should or would receive in traditional school is not supported.
[Victoria] was involved in a significant criminal incident on June 8, 2020, resulting in the
children being removed from her care. She is currently involved in a mental health
diversion program, yet provided no evidence of a professional diagnosis or treatment plan.
She claims it was a one time “panic attack,” however, there is no evidence to support her
self-made diagnosis. She lacks insight and acceptance of any of the issues raised from the
[guardian ad litem], Dr. Cottam, Ms. Quinn, or either grandmother. Rather she argues they
are just making things up and coaching the children.
The court further noted that it considered and gave weight to the testimony of Osiris and Karma in
its findings, concluding that the evidence did not indicate that their testimony was coached.
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In evaluating the children’s best interests, the district court awarded Steffen sole legal and
physical custody of the children subject to Victoria’s supervised parenting time as set forth in the
parenting plan attached to the order. The parenting plan provided Victoria supervised parenting
time “on alternate weekends, Friday, Saturday, and Sunday for three (3) hours on each day.” The
parenting plan further encouraged Victoria to participate in family therapy with the children
provided by a separate therapist.
In addition to the modification of custody, the district court further modified the November
2017 decree’s award of child support. The order required Victoria to pay $70 per month in child
support to Steffen, retroactive to August 1, 2020. The court terminated Steffen’s prior child support
obligation under the November 2017 decree as of June 12, 2020, and Steffen’s alimony obligation
under the November 2017 decree remained in full force.
The district court entered a second order on May 11, 2021, concluding that Steffen was not
in willful and contumacious contempt of court as to the allegations raised in Victoria’s
“Application for Contempt Citation.” The court denied and dismissed the contempt application.
Victoria appeals.
III. ASSIGNMENTS OF ERROR
Victoria, pro se, assigns 22 errors on appeal; however, many errors are vaguely expressed.
A generalized and vague assignment of error that does not advise an appellate court of the issue
submitted for decision will not be considered except to the extent that it is narrowed by the specific
arguments asserted in the appellant’s brief. Finley-Swanson v. Swanson, 20 Neb. App. 316, 823
N.W.2d 697 (2012). In a similar vein, many errors lack corresponding arguments in the body of
Victoria’s brief. In order to be considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the party asserting the error. See U.S.
Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460 (2019). These briefing
requirements apply equally to represented litigants and pro se litigants. See Friedman v. Friedman,
290 Neb. 973, 863 N.W.2d 153 (2015) (pro se litigant will receive same consideration as if he or
she had been represented by attorney, and concurrently, that litigant is held to same standards as
one who is represented by counsel). Accordingly, we consider only those errors sufficiently
assigned and argued by Victoria in her initial brief on appeal. Further, we note that Victoria’s reply
brief discusses issues not raised or argued in her initial brief. To the extent that Victoria raises
additional errors and issues in her reply brief, we decline to address them. See Linscott v. Shasteen,
288 Neb. 276, 847 N.W.2d 283 (2014) (errors not assigned in appellant’s initial brief are waived
and may not be asserted for first time in reply brief).
Victoria assigns and argues, consolidated and restated, that the district court (1) lacked
subject matter jurisdiction in this matter because Steffen had not resided with the parties’ children
in Nebraska for at least 6 months prior to his filing of the complaint for modification, (2) erred in
appointing a guardian ad litem at a closed hearing without Victoria present, (3) erred in allowing
the admission of certain witness testimonies and exhibits at trial, (4) should have recused itself due
to misconduct and bias, (5) abused its discretion in finding that a material change in circumstances
had occurred, and (6) abused its discretion in granting Steffen sole legal and physical custody of
the parties’ children subject to Victoria’s supervised parenting time.
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IV. STANDARD OF REVIEW
A jurisdictional question that does not involve a factual dispute is determined by an
appellate court as a matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision. Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019).
In the absence of plain error, when an issue is raised for the first time in an appellate court,
the issue will be disregarded inasmuch as a trial court cannot commit error regarding an issue never
presented and submitted for disposition in the trial court. Schnell v. Schnell, 12 Neb. App. 321,
673 N.W.2d 578 (2003).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by such rules; judicial discretion is involved only when the rules make discretion a
factor in determining admissibility. Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d 768 (2020). A trial
court has the discretion to determine the relevancy and admissibility of evidence, and such
determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.
Id.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. Id. A judicial abuse of discretion exists if the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in
matters submitted for disposition. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
V. ANALYSIS
1. SUBJECT MATTER JURISDICTION
Victoria argues that “[b]efore [Steffen] can proceed, he has to be living with his children
[for] at least 6 months prior to filing a [modification] claim in their home state.” Brief for appellant
at 26. We understand this assertion to contest the district court’s subject matter jurisdiction to enter
the order modifying the parties’ decree.
Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the
general class or category to which the proceedings in question belong and to deal with the general
subject matter involved. Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018). Parties cannot confer
subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may
subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Id. A
lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.
Id. A ruling made in the absence of subject matter jurisdiction is a nullity. Spady v. Spady, 284
Neb. 885, 824 N.W.2d 366 (2012).
In support of her argument, Victoria cites to Neb. Rev. Stat. § 43-1227(13) (Reissue 2016),
which defines a “[p]erson acting as a parent” as:
[A] person other than a parent, who:
(A) has physical custody of the child or has had physical custody for a period of six
consecutive months, including any temporary absence, within one year immediately before
the commencement of a child custody proceeding; and
(B) has been awarded legal custody by a court or claims a right to legal custody
under the law of this state.
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Victoria appears to argue that because Steffen has not lived with the children for at least 6 months,
he cannot be a “[p]erson other than a parent” and therefore could not have commenced this action.
However, this statute is not applicable to this matter. Steffen is not a “[p]erson acting as a parent”
for the parties’ children, he is one of their parents; he is the children’s father, just as Victoria is
their mother.
Moreover, the district court’s jurisdiction does not hinge on where Steffen resided in
relation to the children. A district court has exclusive and continuing jurisdiction under the
Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) over custody and visitation
issues if the court made the initial child custody determination. Neb. Rev. Stat. § 43-1239 (Reissue
2016). Exclusive and continuing jurisdiction remains with the district court under the UCCJEA
until jurisdiction is lost under § 43-1239(a) or until the court declines to exercise jurisdiction under
Neb. Rev. Stat. § 43-1244 (Reissue 2016) on the basis of being an inconvenient forum.
Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016). Jurisdiction is lost under
§ 43-1239(a) if neither the child nor the child and one parent have a significant connection with
Nebraska and substantial evidence concerning custody is no longer available in the State, or if a
court determines that the child and parents no longer reside in Nebraska. Floerchinger v.
Floerchinger, supra.
The parties were married in Nebraska, and the Douglas County District Court entered the
November 2017 decree dissolving the parties’ marriage and establishing the parties’ initial custody
arrangement for their children. The children and Victoria have continued to reside in Nebraska
since the entry of the November 2017 decree. Accordingly, the district court had jurisdiction to
hear this modification action.
2. APPOINTMENT OF GUARDIAN AD LITEM
Victoria also appears to contest the district court’s appointment of Wagner as guardian ad
litem for the children. She claims that Wagner was appointed “[i]n a closed hearing . . . without
legal reason to do so” because the children “were not in juvenile court jurisdiction.” Brief for
appellant at 26. However, the record does not evidence any objection to Wagner’s appointment as
guardian ad litem, and his appointment occurred through a stipulated order signed by Steffen’s
counsel and Victoria’s first counsel. In the absence of plain error, when an issue is raised for the
first time in an appellate court, the issue will be disregarded inasmuch as a trial court cannot
commit error regarding an issue never presented and submitted for disposition in the trial court.
Schnell v. Schnell, supra. Also, Neb. Rev. Stat. § 42-358 (Reissue 2016) provides for the
appointment of a guardian ad litem in matters involving child custody. See Matthews v. Matthews,
267 Neb. 604, 676 N.W.2d 42 (2004). On our review of the record, we cannot say that the district
court erred in appointing a guardian ad litem for the children in this case.
3. EVIDENTIARY ISSUES
Victoria alleges multiple violations of the Nebraska Rules of Evidence in this matter.
Victoria’s arguments concerning these issues are somewhat disjointed and nonspecific; we will
identify those arguments sufficiently raised and proceed to address them in turn.
Victoria argues that several witnesses, including Dr. Cottam, Wagner, Mitchell, Quinn, and
the children’s paternal and maternal grandmothers, lacked personal knowledge regarding the
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children’s circumstances while in her custody, yet were allowed to testify in violation of Neb. Rev.
Stat. § 27-602 (Reissue 2016) (witness may not testify to matter unless evidence is sufficient to
support finding witness has personal knowledge of matter). However, no objections were made on
this basis in response to the witnesses’ testimonies. Having reviewed the record for plain error and
finding none, we need not address these complaints further. See Schnell v. Schnell, supra (in
absence of plain error, issue raised for first time in appellate court will be disregarded inasmuch
as trial court cannot commit error regarding issue never presented and submitted for disposition in
trial court). See, also, State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020) (appellate court is
not inclined to readily find plain error in testimony to which opposing party did not object).
Victoria also claims that several lay witnesses gave testimony concerning medical or
psychological matters which these witnesses were not qualified to provide. However, except for
Smith-Clopton’s testimony that she believed the children appeared “underweight” when she took
them in after the June 2020 incident, Victoria did not object to these witnesses’ testimonies at trial.
Having reviewed the record for plain error and finding none, we need not address these allegations
further. See, State v. Senteney, supra; Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578(2003). With respect to Smith-Clopton’s testimony that she believed the children appeared
underweight, the district court overruled the objection and determined that her testimony was
admissible as a layperson’s opinion. We agree with the district court’s determination, as this
opinion was premised on Smith-Clopton’s personal observations of the children and life
experience, and her opinion was therefore rationally based on her perception. See Neb. Rev. Stat.
§ 27-701 (Reissue 2016) (lay witness opinion testimony permitted when rationally based on
perception of witness and helpful to determination of fact in issue). We conclude the district court
did not abuse its discretion in allowing Smith-Clopton’s testimony regarding this matter.
Victoria further alleges evidentiary error regarding the admission of exhibits of social
media posts relating to Victoria’s spirituality and corresponding cross-examination regarding these
social media posts. She argues that the exhibits and related cross-examination were irrelevant and
violated Neb. Rev. Stat. § 27-610 (Reissue 2016) as well as her constitutional rights. Section
27-610 states: “Evidence of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature [his/her] credibility is impaired
or enhanced.” Victoria only raised objections concerning the relevance of the admitted exhibits,
and the district court overruled these objections. We conclude that the district court did not abuse
its discretion in overruling Victoria’s relevance objections, as these exhibits were relevant to
Victoria’s character and patterns of behavior, and they did not impair or enhance her credibility.
To the extent that Victoria alleges other errors regarding this evidence, we find no plain error by
the district court. See, State v. Senteney, supra; Schnell v. Schnell, supra.The remainder of Victoria’s evidentiary allegations do not go to the actual admissibility of
the testimony and exhibits received at trial. Rather, these allegations contest the weight and
credibility assigned by the district court in its evaluation of the evidence presented at trial and
therefore need not be addressed in further detail. See Donald v. Donald, 296 Neb. 123, 892 N.W.2d
100 (2017) (when evidence is in conflict, 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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4. RECUSAL OF DISTRICT COURT JUDGE
Victoria asserts the district court should have recused itself due to its failure to act
impartially in this matter. She claims the court “practiced law throughout” the trial, brief for
appellant at 46, and otherwise acted “arbitrarily” in modifying the custody of the parties’ children,
id. at 45 (emphasis omitted). She also alleges the court impermissibly “allow[ed] hearsay” and
accepted such hearsay as true despite the court’s statements to the contrary. Id. (emphasis omitted).
She claims the alleged instances of misconduct were all done impermissibly to benefit Steffen in
this case and warranted the district court’s recusal.
We first observe that Victoria never motioned for or otherwise requested the district court
to recuse itself. To the extent that we evaluate this allegation for plain error, see Schnell v. Schnell,
supra, the record does not support Victoria’s allegations of judicial misconduct, bias, or partiality.
We observe no instances of judicial misconduct concerning the district court’s handling of the
parties or of the evidence adduced at trial. That the court permitted examination that was
unfavorable to Victoria and ultimately ruled unfavorably against her does not demonstrate bias or
a failure to be impartial. Such issues go toward the weight and credibility to be assigned to the
evidence presented, and an appellate court may give weight to the trial court that heard and
observed the witnesses. See Donald v. Donald, supra.
5. MODIFICATION OF NOVEMBER 2017 DECREE
Prior to the modification of a child custody order, two steps of proof must be taken by the
party seeking the modification. First, the 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. Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019). Next, the party
seeking modification must prove that changing the child’s custody is in the child’s best interests.
Id.(a) Material Change in Circumstances
A material change in circumstances has been defined as the occurrence of something that,
if it had been known at the time the most recent custody order was entered, would have persuaded
the court to decree differently. See Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020). Due
consideration of a variety of factors that bear on the best interests of the child, which may include
the child’s wishes, will determine whether finding a material change in circumstances is justified.
See id.Victoria argues that the evidence adduced at trial does not demonstrate that a material
change in circumstances has occurred justifying the district court’s modification. She specifically
states that Steffen “testified and confirmed that nothing had changed” since the entry of the
November 2017 decree, and she claims the finding of a material change in circumstances was
premised entirely on the events occurring on June 8, 2020. Brief for appellant at 28.
On our review of the record, we find the district court did not abuse its discretion in finding
that a material change of circumstances had occurred. In addition to the evidence concerning the
events of June 8, 2020, there is evidence in the record regarding the children’s circumstances prior
to those events concerning their physical, mental, and educational well-being. Notably, Dr. Cottam
testified about the symptoms of depression and anxiety exhibited by the children, especially Osiris
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and Karma, and her work with the children indicated that these mental health issues stemmed in
part from the children’s circumstances while living with Victoria. Multiple witnesses, including
Dr. Cottam, Mitchell, and Quinn, also testified regarding the children’s level of education, and we
note the recurrent indications that all of the children were, in some form, struggling with subjects
such as math and reading. While Victoria argues that the evidence she presented at trial rebutted
the evidence presented by Steffen, these arguments go toward the weight and credibility to be
assigned to the parties’ respective evidence. It is evident from the order of modification that the
district court found the testimony and exhibits offered by Steffen to be credible and to constitute
evidence that would have caused the dissolution court to have decreed differently during the
parties’ divorce. Given that this modification action substantially depended on the court’s
evaluation of the parties’ respective witnesses and exhibits, we give weight to the district court
that heard and observed the witnesses in this matter. See Donald v. Donald, supra. Accordingly,
we find the district court did not abuse its discretion in finding a material change in circumstances.
(b) Best Interests
When deciding custody issues, the court’s paramount concern is the child’s best interests.
Lasu v. Lasu, 28 Neb. App. 478, 944 N.W.2d 773 (2020). The foundation for the inquiry into the
child’s best interests lies in both statutory and case law. Neb. Rev. Stat. § 43-2923(6) (Reissue
2016) provides that in determining custody and parenting time arrangements:
[T]he court shall consider the best interests of the minor child, which shall include, but not
be limited to, consideration of . . . :
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member . . . ;
and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.
In addition to considering these statutory factors, our case law instructs that when making
determinations as to the allocation of parenting time that is in a child’s best interests, a trial court
should also consider the parties’ ability to communicate on issues such as transportation,
homework, discipline, medical and dental appointments, and extracurricular activities. State on
behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019). Other relevant
considerations include stability in the child’s routine, minimalization of contact and conflict
between the parents, and the general nature and health of the individual child. Id. No single factor
is determinative, and different factors may weigh more heavily in the court’s analysis, depending
on the evidence presented in each case. Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020).
Victoria argues that the evidence received at trial could not support a finding that Steffen
having sole legal and physical custody of the children subject to Victoria’s supervised parenting
time was in the children’s best interests. Victoria asserts that a preponderance of the evidence must
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demonstrate “multiple occurrences of child abuse or neglect” before a parent may lose custody
and be limited to supervised parenting time. Brief for appellant at 29. Victoria’s argument on this
matter appears to rely on Neb. Rev. Stat. § 43-2932 (Reissue 2016), which requires the district
court to incorporate limitations on custody and parenting time if a preponderance of the evidence
demonstrates that a parent has “committed child abuse or neglect,” “child abandonment,”
“domestic intimate partner abuse,” or otherwise “interfered persistently with the other parent’s
access to the child.” This statute imposes an affirmative obligation on the district court to limit
custody and parenting time in light of evidence of such conduct; it does not, as Victoria argues,
preclude the court from changing custody of a child from one parent to the other in the absence of
such conduct. Changing custody falls within the modification court’s discretion, and the relevant
inquiry is whether changing custody to the noncustodial parent would be in the child’s best
interests. See Korth v. Korth, 309 Neb. 115, 958 N.W.2d 683 (2021).
In considering the children’s best interests, we bear in mind again the same testimony set
forth previously concerning the children’s health and education as testified to by Dr. Cottam,
Mitchell, and Quinn, as well as the testimony provided by the parties, their extended family, and
the children. Those same concerns regarding the children’s physical and mental health while in
Victoria’s custody, including their education, are also applicable to the question of the children’s
best interests. These witnesses did not raise similar concerns toward Steffen, and we observe the
substantial evidence regarding Steffen’s arrangements to have the children see various
professionals concerning their education and health. Victoria primarily alleges that the witnesses
who testified favorably toward Steffen were lying or otherwise engaged in bad faith assessments
of the circumstances. However, these issues go toward the weight and credibility of the witnesses,
and it is evident from the district court’s order that it found changing custody in this case to be in
the children’s best interests and concluded the evidence favorable to Steffen to be more credible.
Having reviewed the record, we give weight to the district court’s evaluation of the evidence
presented in this case. See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017). Although
the evidence presented by the parties is in conflict, we cannot say the district court abused its
discretion in awarding Steffen sole legal and physical custody of the parties’ children subject to
Victoria’s supervised parenting time.
VI. CONCLUSION
For the reasons set forth above, we affirm the order of modification entered by the district
court in all respects.
AFFIRMED.
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