Scott v. Dorrance ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/29/2023 10:12 AM CDT
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SCOTT V. DORRANCE
Cite as 32 Neb. App. 213Crystal Lee Scott, appellee, v.
Ronald Ellis Dorrance, appellant.
___ N.W.2d ___
Filed August 29, 2023. No. A-22-786.
1. Child Custody: Appeal and Error. 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.
2. Modification of Decree: Child Support: Appeal and Error.
Modification of child support is entrusted to the discretion of the trial
court. An appellate court reviews proceedings for modification of child
support de novo on the record and will affirm the judgment of the trial
court absent an abuse of discretion.
3. Child Custody. While the wishes of a child are not controlling in the
determination of custody, if a child is of sufficient age and has expressed
an intelligent preference regarding child custody, the child’s preference
is entitled to consideration, alongside other factors.
4. ____. The amount of consideration given to a child’s stated preference
regarding child custody will depend on the child’s age and ability to
give reasons for his or her preference.
5. Child Custody: Appeal and Error. Where a trial court’s order modify-
ing child custody demonstrates that the child’s age and reasoning have
been duly considered alongside the child’s stated preference, an appel-
late court will generally defer to the trial court’s credibility determina-
tions in the assessment of facts.
6. Modification of Decree: Child Custody: Proof. Ordinarily, custody
of a minor child will not be modified unless there has been a material
change in circumstances showing either that the custodial parent is unfit
or that the best interests of the child require such action.
7. ____: ____: ____. The showing required to modify custody is a two-
step process: First, the party seeking modification must show a mate-
rial change in circumstances, occurring after the entry of the previous
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SCOTT V. DORRANCE
Cite as 32 Neb. App. 213custody 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.
8. Child Custody. When determining the best interests of the child in the
context of custody, a court must consider, at a minimum, (1) the rela-
tionship of the minor child to each parent prior to the commencement
of the action; (2) the desires and wishes of a sufficiently mature child,
if based on sound reasoning; (3) the general health, welfare, and social
behavior of the child; (4) credible evidence of abuse inflicted on any
family or household member; and (5) credible evidence of child abuse
or neglect or domestic intimate partner abuse.
9. Child Support: Rules of the Supreme Court. Under Neb. Ct. R.
§ 4-215(B) (rev. 2020) of the Nebraska Child Support Guidelines, the
child support paid by the obligor parent is intended to cover up to $250
in nonreimbursed health care costs per child per year before the obligor
parent must contribute to such expenses.
10. ____: ____. To require an obligor parent to contribute to the initial child
support guidelines estimate of $250 per child per year for nonreim-
bursed medical expenses subsumed within the amount of child support
ordered, the trial court must provide an explanation for its deviation
from the guidelines.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed in part, affirmed in part as
modified, and in part reversed and vacated.
Leslie A. Christensen for appellant.
Joni Visek for appellee.
Riedmann, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Ronald Ellis Dorrance (Ronald) appeals from the Sarpy
County District Court’s order denying his request to mod-
ify custody of his two children to a joint physical custody
arrangement. He also challenges the court’s handling of non-
reimbursed health care costs and other direct expenditures
for the children, including, but not limited to, clothing and
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Cite as 32 Neb. App. 213extracurricular activities. We cannot say the court abused its
discretion regarding the request for joint physical custody;
however, we conclude the court did abuse its discretion regard-
ing nonreimbursed health care costs and other direct expendi-
tures. Therefore, we affirm in part, affirm in part as modified,
and in part reverse and vacate.
II. BACKGROUND
1. Iowa Proceedings
Ronald and Crystal Lee Scott (Crystal) were never mar-
ried. They had two children while living in Iowa: Jackson,
born in 2011, and Ryder, born in 2012. In October 2013, the
Pottawattamie County District Court in Iowa entered an order
granting the parties joint legal custody of the children and
awarding Crystal primary physical custody, subject to Ronald’s
parenting time.
In December 2013, Ronald filed a petition for modification,
requesting that the Iowa court reduce his child support obliga-
tion. In August 2014, Ronald amended his petition to also seek
“joint physical care” of the children. He claimed that Crystal
had interfered with his parenting time by moving to Bellevue,
Nebraska, which was an hour away from Mondamin, Iowa,
where Ronald lived at the time. Ronald subsequently amended
his petition further to seek “sole physical care” of the children
and, in the alternative, “shared physical care.”
On February 17, 2015, the Iowa court entered an order
declining to grant Ronald “primary physical care” of the chil-
dren or to award him “shared physical care” because it found
that Ronald and Crystal did not get along well enough to
facilitate such an arrangement. However, it found that Crystal’s
move to Bellevue constituted a material change in circum-
stances. As such, it modified the custody order to require
that Ronald provide transportation at the beginning of his
parenting time and that Crystal provide transportation at the
end of Ronald’s parenting time. It also altered Ronald’s par-
enting time to every other week from Thursday at 6 p.m. to
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during the summer months. Ronald’s child support obliga-
tion was reduced to $914 per month. Under the modified order,
Ronald and Crystal were responsible for paying 68 percent and
32 percent of the children’s “uncovered medical expenses,”
respectively.
2. Current Proceedings
(a) Complaint to Modify
On June 10, 2021, Ronald filed a “Complaint to Modify”
in Nebraska after registering the Iowa order. Ronald alleged
that “there h[ad] been substantial and material changes in cir-
cumstances,” including that Ronald moved from Mondamin to
Bellevue, that the children had “reached an age and maturity
level” such that “additional parenting time between the minor
children and [Ronald] [wa]s in the minor children’s best inter-
ests,” and that the children desired additional parenting time
with Ronald. He asked that the district court award the parties
joint physical custody of the children and that his “child sup-
port obligation . . . be reviewed and determined in accordance
with the Nebraska Child Support Guidelines pursuant to his
request for joint physical custody.” Crystal filed an answer
denying the material allegations in Ronald’s complaint.
(b) Trial
Trial was held on June 23, 2022. The parties offered exhibits
and witness testimony, and the court interviewed Jackson and
Ryder in camera. We now set forth the evidence relevant to the
issues on appeal.
(i) Move to Nebraska
Ronald and Crystal testified about their moves from Iowa
to Nebraska. Crystal and the children lived in Missouri Valley,
Iowa, and Ronald lived in Mondamin. According to Crystal,
the two towns are 15 minutes apart. Crystal testified that she
and the children moved to Bellevue in 2015 to be closer to
friends and family after her father passed away and she no
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Cite as 32 Neb. App. 213longer had family nearby in Iowa. Bellevue is an hour away
from Mondamin, where Ronald remained until he moved to
Bellevue in 2021.
Ronald testified that in 2013, when the Iowa court entered
the initial custody order, he worked for an electrical union,
which meant that he had little flexibility with his work hours.
With his job in Iowa, Ronald struggled to take the children
to school on time. However, when he moved to Bellevue, he
obtained new employment that did not pose a scheduling con-
flict with the children’s school dropoff time.
(ii) Coparenting Difficulties
Ronald testified that he supported the children’s relation-
ship with Crystal. As an example of his support, Ronald stated
that he encouraged the children to speak with their mother
whenever they were “in the same area” for a “baseball game
or school activity.” However, when Crystal was asked whether
there had “been a change in the ability of [Ronald and her]
to coparent,” Crystal responded that “[t]here ha[d] not been
any change.” She stated that she and Ronald were “not able
to coparent,” they could “never come to an agreement,” and
“[t]here [was] the slightest issue on every discussion that
[they] ha[d] together.” Crystal further stated that although the
district court required the parties to participate in mediation,
“[n]othing was resolved” during mediation.
A major point of contention between the parties was the
children’s participation in sports. Ronald stated that he and
Crystal had a “mutual agreement” that Crystal would make
decisions regarding the children’s participation in fall sports
and he would make decisions regarding the children’s partici-
pation in spring sports. Crystal characterized the “agreement”
differently. She stated that Ronald “just paid for baseball, and
[she] paid for football”; however, they “never really verbally
agreed” to the arrangement. She stated that she would prefer
that they “come to an agreement together” regarding the chil-
dren’s participation in sports and that in the case of an impasse,
she would have final say.
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Cite as 32 Neb. App. 213Ronald disagreed with Crystal’s decision to have the chil-
dren “play[] football at Bellevue,” but because football is a
fall sport, he considered Crystal’s decision final and “let it
go.” Ronald unilaterally switched the children from a select
baseball team to a recreational team that he coached. He stated
that he did so because the children were complaining “about
coaching, attitudes, [and] the stress they felt” with the select
team. He further stated that he observed the coach for the
select team “screaming, yelling, [and] cussing at the kids.” He
said the children cried at the select team’s practices and “they
were scared.”
Crystal claimed that Ronald did not discuss the decision
to change the children’s baseball team with her and that the
children “were very upset and cried” when he moved them to
the recreational team. When asked about her opinion regard-
ing Ronald’s decision, she stated that she felt it was “a back
down of [the children’s] skills.” Crystal wanted the children
to return to the select team because the children’s “friends
that they[‘d] grown up with since kindergarten [were] on
the team, and they enjoy[ed] the team, and [they had] all
bec[o]me a family.”
Ronald admitted that he did not discuss the decision to
change the children’s baseball team with Crystal. When asked
whether he believed he should discuss such a decision with
Crystal outside the presence of the children, he stated that he
“wish[ed] it could be. But it never is.”
(iii) Children’s In Camera Interviews
The district court separately interviewed Jackson and Ryder
in camera at the onset of trial. Although both boys were 10
years old at the time of trial, Jackson was 11 months older and
was entering sixth grade, while Ryder was entering fifth grade.
The parties’ attorneys were present. Following the interviews,
the court informed Ronald and Crystal that it was putting a
“protective order over [the children’s] testimony” that would
remain in effect until the court issued its decision, meaning
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to in chambers” until the court’s order was issued.
The children described their living arrangements with Ronald
and Crystal. They stated that they had their own bedrooms at
Ronald’s house. Their chores at Ronald’s house included pick-
ing up their clothing, washing dishes, and doing laundry. They
also had chores when they were with Crystal, including doing
dishes, cleaning their rooms, and sweeping. Jackson stated that
he does not always complete his chores and that as a conse-
quence, he would “either get yelled at or get [his] electronics
taken away” by Ronald or Crystal.
Jackson stated that Ronald informed him he would be
“talk[ing] to a judge in a little room.” When asked whether
Ronald told him “anything that might be important to tell the
judge,” Jackson responded, “The truth.” Jackson stated that he
knew Ronald and Crystal were “fighting between how many
days they should get” with the children. He stated that Crystal
had not told him her desired outcome, but Ronald told him
“he wants seven/seven.” Ryder informed the court that his
parents told him he would be speaking with a judge. When
asked whether his parents instructed him what to say to the
court, he responded, “No.” Later at trial, Ronald testified that
he spoke to the children about the hearing, but that he “kept it
very vague and simple.” He also denied telling them what to
say to the court.
The court asked Jackson about whether he liked the sum-
mer parenting schedule being on an alternating weekly basis
between Ronald and Crystal. Jackson responded that he liked
it because “it’s fair.” Jackson informed the court that his par-
ents fought during the school year about their parenting time.
He stated that he “[did]n’t think [Ronald and Crystal] would
be fighting a lot anymore if it was seven/seven for [his]
whole life.” When the court asked Jackson what he would
“like to see happen going forward,” Jackson responded,
“[N]ot them fighting.” When the court asked Ryder whether
there was “anything that [he] would like to see different
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Cite as 32 Neb. App. 213than the way it is right now,” Ryder responded, “My mom and
dad’s fighting.”
(c) District Court’s Order
On September 27, 2022, the district court entered an order
declining to grant Ronald joint physical custody of the children
with Crystal. Although the court found that Ronald demon-
strated a material change in circumstances related to his move
from Mondamin to Bellevue, it found that he failed to prove
that modifying the child custody arrangement was in the best
interests of the children. The court reasoned that, although
Ronald and Crystal’s relationship had improved over time, it
was “not to the point that they [could] effectively coparent.”
The court pointed out that the parties still had “animosity”
between them and that they engaged in “bickering and name
calling.” It noted that “[c]onflict, such as disagreements over
the minor children’s sporting teams, result[ed] in sadness and
disappointment with the minor children.” The court concluded
that changing the existing custody arrangement would cause
further animosity between Ronald and Crystal and that the
“conflict would increase with the shuffling of schedules.”
It further found that “the parties [we]re unable to meet the
greater cooperation needed for joint custody” and that the
existing custody arrangement provided the children with nec-
essary certainty and stability. It therefore did not award the
parties joint physical custody or otherwise modify Ronald’s
parenting time.
The district court did, however, modify Ronald’s child sup-
port obligation, reducing his obligation to $705 per month
for two children and $428 per month for one child. It also
required that Ronald continue providing the children health
insurance and that nonreimbursed health care costs be divided
45 percent to Crystal and 55 percent to Ronald. The court
further ordered that “pursuant to §4-212 of the Nebraska
Child Support Guidelines, all reasonable and necessary direct
expenditures made solely for the children including but not
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Cite as 32 Neb. App. 213limited to clothing and extracurricular activities shall be allo-
cated such that [Crystal] shall pay forty-five percent (45%)
and [Ronald] shall pay fifty-five percent (55%).”
Ronald appeals.
III. ASSIGNMENTS OF ERROR
Ronald assigns that the district court erred in (1) fail-
ing to consider the minor children’s wishes, (2) failing to
award Ronald and Crystal joint physical custody or to increase
Ronald’s parenting time, (3) failing to require Crystal to pay
the first $250 in nonreimbursed health care costs per child
each year, and (4) allocating reasonable and necessary direct
expenditures pursuant to Neb. Ct. R. § 4-212 (rev. 2011) of the
Nebraska Child Support Guidelines.
IV. STANDARD OF REVIEW
[1] 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).
[2] Modification of child support is entrusted to the dis-
cretion of the trial court. Hotz v. Hotz, 301 Neb. 102, 917
N.W.2d 467 (2018). An appellate court reviews proceedings
for modification of child support de novo on the record and
will affirm the judgment of the trial court absent an abuse of
discretion. Id.V. ANALYSIS
1. Joint Physical Custody
In Ronald’s first two assigned errors, he contends the dis-
trict court abused its discretion in failing to consider the chil-
dren’s wishes and, ultimately, in failing to award joint physical
custody of the children to the parties or, alternatively, addi-
tional parenting time to him. We first address the children’s
testimony.
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[3-5] While the wishes of a child are not controlling in the
determination of custody, if a child is of sufficient age and has
expressed an intelligent preference, the child’s preference is
entitled to consideration, alongside other factors. See Jaeger
v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020). The amount
of consideration will depend on the child’s age and ability
to give reasons for his or her preference. Id. For example, in
cases where a child’s stated preference is given significant
consideration, the child was typically over 10 years old. See
id. More consideration will be afforded where additional fac-
tors that bear on the child’s best interests undergird the child’s
stated preference and reasoning. Id. Where a trial court’s order
demonstrates that the child’s age and reasoning have been duly
considered alongside the child’s stated preference, we will gen-
erally defer to the trial court’s credibility determinations in our
assessment of facts. Id.At the time of trial in June 2022, Jackson was about to turn
11 years old and Ryder had just turned 10. There was nothing
compelling in either child’s testimony related to apportion-
ment of time between their parents and the children’s best
interests. While Jackson did express that he felt the alternating
weeks between his parents in the summer was “fair” and that
he did not think his parents “would be fighting a lot anymore
if it was seven/seven for [his] whole life,” the court concluded
that the children “lack[ed] the requisite maturity and sophisti-
cation to weigh-in on the[] proceedings.” It specifically found
that the “children d[id] not want to be involved in these deci-
sions and expressed that they d[id] not want to be the focus
of the[] proceedings.” The court also expressed concern that
“Ronald coached the children” and questioned if “this coach-
ing . . . influenced the minor children’s ability to testify to
certain facts or events.”
In our review of the children’s testimony, we observe that
the children did not express their wishes beyond what they
considered “fair” for their parents and what they believed
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desire to preserve peace between Ronald and Crystal. He stated
that Ronald told him that he wanted a “seven/seven” custody
arrangement. When the court asked Jackson what he would
“like to see happen going forward,” Jackson responded, “[N]ot
them fighting.” When the district court asked Ryder whether
there is “anything that [he] would like to see different than
the way it is right now,” Ryder only indicated that he did not
want Ronald and Crystal to fight. There is nothing in the record
to indicate the court failed to consider the children’s wishes;
rather, the court concluded there was no material change in cir-
cumstances based upon their testimony that warranted chang-
ing the parenting time arrangement. We cannot say the court
abused its discretion in reaching that decision.
(b) Joint Physical Custody
[6,7] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing either that the custodial parent is unfit or that the best
interests of the child require such action. Jones v. Jones, 305
Neb. 615, 941 N.W.2d 501 (2020). The Nebraska Supreme
Court has described this showing as a two-step process: First,
the party seeking modification must show a material change in
circumstances, occurring after the entry of the previous cus-
tody order and affecting the best interests of the child. See id.Next, the party seeking modification must prove that changing
the child’s custody is in the child’s best interests. Id.[8] When determining the best interests of the child in the
context of custody, a court must consider, at a minimum, (1)
the relationship of the minor child to each parent prior to
the commencement of the action; (2) the desires and wishes
of a sufficiently mature child, if based on sound reasoning;
(3) the general health, welfare, and social behavior of the
child; (4) credible evidence of abuse inflicted on any fam-
ily or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse. Id. Other
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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. The one constant is that the
child’s best interests are always the standard by which any
custody or parenting time determination is made. Id.Ronald contends the district court erred in failing to grant
joint physical custody of the children or award him additional
parenting time. He argues that the factors relevant to the best
interests of the children weigh in favor of modifying the cus-
tody arrangement. He points out that he plays an active role in
the children’s education and extracurricular activities, he has a
flexible work schedule and the ability to timely transport the
children to and from school, and Ronald and Crystal do not
have disagreements about the children’s education, religion, or
medical care.
However, the record shows that the parties struggled to make
decisions regarding the children. Crystal broadly testified that
“[t]here ha[d] not been any change” in the parties’ ability to
coparent. She stated that they could “never come to an agree-
ment” and “[t]here [wa]s the slightest issue on every discussion
that [they] ha[d] together.” According to Crystal, “[n]othing
was resolved” during the parties’ court-ordered mediation.
Additionally, a significant portion of trial was dedicated to the
children’s involvement in sports and the parties’ inability to
adequately communicate regarding their disagreement on such
issues. Ronald himself stated that he wished they could discuss
decisions regarding the children’s involvement in sports, but
they simply could not.
The district court appropriately emphasized the factors of
stability in the children’s routines and minimalization of con-
tact and conflict between the parents. The court noted that,
although “the communication between Crystal and Ronald
ha[d] improved over the years, it [was] not to the point that
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Cite as 32 Neb. App. 213they [could] effectively coparent.” It stated that Ronald and
Crystal often disagreed, which “result[ed] in sadness and dis-
appointment with the minor children.” It further stated that
modifying the existing custody arrangement would “cause
further animosity between Crystal and Ronald” and “conflict
would increase with the shuffling of schedules.” It concluded
that Ronald and Crystal could not “meet the greater coopera-
tion needed for joint custody” and that the existing arrange-
ment provided the children with the “certainty and stability”
they needed.
While we agree with Ronald that there is some evidence in
the record to support potentially increasing his parenting time,
there is also evidence that weighs against it, as described
above. We therefore cannot find that the district court abused
its discretion in finding that Ronald failed to meet his burden
of showing that joint physical custody was in the best inter-
ests of the children and in declining to change the existing
custody or parenting time arrangement.
2. Nonreimbursed Health
Care Costs
Ronald argues that the district court erred when it failed
to order that Crystal be responsible for the first $250 of the
children’s nonreimbursed health care costs each year prior to
allocating such costs between the parties. Ronald correctly
points out that the Nebraska Child Support Guidelines provide
in relevant part:
Children’s health care expenses are specifically included
in the guidelines amount of up to $250 per child per year.
. . . All nonreimbursed reasonable and necessary chil-
dren’s health care costs in excess of $250 per child per
year shall be allocated to the obligor parent as determined
by the court, but shall not exceed the proportion of the
obligor’s parental contribution . . . .
Neb. Ct. R. § 4-215(B) (rev. 2020).
[9,10] The district court ordered that Crystal be respon-
sible for 45 percent of nonreimbursed health care costs and
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which was an appropriate apportionment of such costs given
their parental contribution percentages under the child sup-
port guidelines. However, the court did not limit Ronald’s
contribution to only those costs in excess of $250 per child
per year. As set forth in § 4-215(B), health care expenses
are specifically included in the guidelines amount for up to
$250 per child per year; in other words, the child support
paid by the obligor parent is intended to cover up to $250 in
nonreimbursed health care costs per child per year before the
obligor parent must further contribute to such expenses. See
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 960,
932 N.W.2d 692, 712 (2019) (guidelines estimate for nonre-
imbursed medical expenses, which at time was $480 per child
per year, is “‘subsumed within the amount of child support
that is ordered’” and “‘[a]ny nonreimbursed expenses exceed-
ing $480 are [then] prorated between the parties’”). While the
Nebraska Supreme Court has indicated that the “guidelines do
not require the trial court to expressly identify any party as
being responsible for the first $480 of nonreimbursed health
care expenses [now $250], . . . they do require a court to allo-
cate nonreimbursed health care expenses in excess of $480
per year ‘to the obligor parent as determined by the court,’”
which “‘shall not exceed the proportion of the obligor’s
parental contribution.’” Id. at 960-61, 932 N.W.2d at 712.
To require an obligor parent to contribute to the initial child
support guidelines estimate of $250 per child per year (pre-
viously $480 per year) for nonreimbursed medical expenses
subsumed within the amount of child support ordered, the
trial court must provide an explanation for its deviation from
the guidelines. See id. at 961, 932 N.W.2d at 712 (while “trial
court may have had a sound reason for wanting [obligor par-
ent] to pay such costs . . . no explanation was provided in the
decree, so we have no basis upon which to review a deviation
from the guidelines”). See, also, Neb. Ct. R. § 4-203 (rev.
2020), which states that the child support guidelines “shall
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child support obligations shall be established in accordance
with the provisions of the guidelines unless the court finds
that one or both parties have produced sufficient evidence to
rebut the presumption”; if the court deviates from a provision
in the guidelines, it must provide a “reason for the deviation
. . . in the findings portion of the decree or order.”
Since the district court did not provide any explanation for
deviating from the child support guidelines, it was an abuse
of discretion for the court to fail to set off the first $250 in
nonreimbursed health care costs per child per year before
triggering Ronald’s obligation to contribute to such costs.
We therefore modify the district court’s September 27, 2022,
order to conform with § 4-215 by triggering Ronald’s obli-
gation for such costs only after the first $250 in such costs
have been paid per child per year. Proof of payment of those
costs shall be provided to Ronald by Crystal before Ronald’s
obligation for 55 percent of such costs per child per year shall
be triggered.
3. Reasonable and Necessary
Direct Expenditures
The district court ordered that “pursuant to §4-212 of the
Nebraska Child Support Guidelines, all reasonable and neces-
sary direct expenditures made solely for the children includ-
ing but not limited to clothing and extracurricular activities
shall be allocated such that [Crystal] shall pay forty-five per-
cent (45%) and [Ronald] shall pay fifty-five percent (55%).”
Ronald agrees that if he had been awarded joint physical cus-
tody of the children, this provision in the court’s order would
have been “correct.” Brief for appellant at 25. However, since
he was not awarded joint physical custody, he contends the
court erred in ordering him to pay such costs. We agree that
the trial court abused its discretion by ordering such costs
under a provision of the child support guidelines applicable to
joint physical custody orders.
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Cite as 32 Neb. App. 213Section 4-212 of the child support guidelines is titled “Joint
physical custody” and provides in relevant part:
When a specific provision for joint physical custody
is ordered and each party’s parenting time exceeds 142
days per year, it is a rebuttable presumption that support
shall be calculated using worksheet 3. . . . If child sup-
port is determined under this paragraph, all reasonable
and necessary direct expenditures made solely for the
child(ren) such as clothing and extracurricular activi-
ties shall be allocated between the parents, but shall not
exceed the proportion of the obligor’s parental contribu-
tions (worksheet 1, line 6). For purposes of these guide-
lines, a “day” shall be generally defined as including an
overnight period.
Since the district court declined to grant the parties joint
physical custody, § 4-212 was not applicable. Further, Ronald’s
child support obligation was not calculated using worksheet 3
(calculation for joint physical custody). Accordingly, we find
that the court abused its discretion in ordering Ronald to pay
55 percent of all reasonable and necessary direct expenditures
in addition to his child support obligation. We reverse and
vacate that portion of the court’s order.
4. Attorney Fees
In the conclusion section of her brief, Crystal requests an
award of “a reasonable attorney fee of $7,500 for the repeated
cost of litigating modifications that are not warranted.” Brief
for appellee at 14. To the extent her request is an attempt
to designate as error the district court’s failure to award her
attorney fees at trial, we decline to address the issue because
Crystal failed to properly present it as an assigned error on
cross-appeal. See In re Estate of Graham, 301 Neb. 594, 919
N.W.2d 714 (2018) (when brief of appellee fails to present
proper cross-appeal pursuant to Neb. Ct. R. App. P. § 2-109
(rev. 2022), appellate court may decline to consider its mer-
its). To the extent Crystal requests attorney fees on appeal,
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Cite as 32 Neb. App. 213her request does not comply with the appellate court rules for
seeking such an award.
VI. CONCLUSION
In summary, we affirm the portion of the district court’s
September 27, 2022, order allocating nonreimbursed health
care costs between the parties, but modify it to trigger Ronald’s
obligation for 55 percent of those costs only after proof of
payment of the first $250 per child per year of such costs. We
reverse and vacate the portion of the order requiring Ronald
to pay reasonable and necessary direct expenditures under
§ 4-212 of the child support guidelines, since joint physical
custody was not awarded. We affirm the remainder of the
court’s order.
Affirmed in part, affirmed in part as modified,
and in part reversed and vacated.