Tilson v. Tilson , 307 Neb. 275 ( 2020 )


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    11/20/2020 08:08 AM CST
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    TILSON v. TILSON
    Cite as 
    307 Neb. 275
    Jayson H. Tilson, appellant, v. Erica M. Tilson,
    appellee, and Kimberly L. Hill,
    intervenor-appellee.
    ___ N.W.2d ___
    Filed September 25, 2020.   No. S-19-344.
    1. Judgments: Jurisdiction: Appeal and Error. 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.
    2. Judges: Recusal: Appeal and Error. A motion requesting a judge to
    recuse himself or herself on the ground of bias or prejudice is addressed
    to the discretion of the judge, and an order overruling such a motion will
    be affirmed on appeal unless the record establishes bias or prejudice as a
    matter of law.
    3. Rules of Evidence. 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.
    4. Trial: Evidence: Appeal and Error. A trial court has the discretion to
    determine the relevancy and admissibility of evidence, and such deter-
    minations will not be disturbed on appeal unless they constitute an abuse
    of that discretion.
    5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
    under the residual hearsay exception, an appellate court reviews for clear
    error the factual findings underpinning a trial court’s hearsay ruling and
    reviews de novo the court’s ultimate determination to admit evidence
    over a hearsay objection or exclude evidence on hearsay grounds.
    6. Modification of Decree: Appeal and Error. Modification of a dis-
    solution decree is a matter entrusted to the discretion of the trial court,
    whose order is reviewed de novo on the record, and will be affirmed
    absent an abuse of discretion by the trial court.
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    7. Evidence: Appeal and Error. In a review de novo on the record, an
    appellate court is required to make independent factual determina-
    tions based upon the record, and the court reaches its own independent
    conclusions with respect to the matters at issue. When evidence is in
    conflict, the appellate court considers and may give weight to the fact
    that the trial court heard and observed the witnesses and accepted one
    version of the facts rather than another.
    8. Modification of Decree: Attorney Fees: Appeal and Error. In an
    action for modification of a marital dissolution decree, the award of
    attorney fees is discretionary with the trial court, is reviewed de novo on
    the record, and will be affirmed in the absence of an abuse of discretion.
    9. Judges: Recusal. A judge should recuse himself or herself when a liti-
    gant demonstrates that a reasonable person who knew the circumstances
    of the case would question the judge’s impartiality under an objective
    standard of reasonableness, even though no actual bias or prejudice
    was shown.
    10. Judges: Recusal: Presumptions. A party alleging that a judge acted
    with bias or prejudice bears a heavy burden of overcoming the presump-
    tion of judicial impartiality.
    11. Judges: Recusal. Opinions formed by the judge on the basis of facts
    introduced or events occurring in the course of the current proceedings,
    or of prior proceedings, do not constitute a basis for a bias or partiality
    motion unless they display a deep-seated favoritism or antagonism that
    would make fair judgment impossible.
    12. Appeal and Error. 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.
    13. Rules of Evidence: Hearsay: Proof. In order for statements to be
    admissible under Neb. Evid. R. 803(3), 
    Neb. Rev. Stat. § 27-803
    (3)
    (Reissue 2016), the party seeking to introduce the evidence must demon-
    strate (1) that the circumstances under which the statements were made
    were such that the declarant’s purpose in making the statements was to
    assist in the provision of medical diagnosis or treatment and (2) that the
    statements were of a nature reasonably pertinent to medical diagnosis or
    treatment by a medical professional.
    14. Rules of Evidence: Medical Assistance: Health Care Providers. Neb.
    Evid. R. 803(3), 
    Neb. Rev. Stat. § 27-803
    (3) (Reissue 2016), applies to
    persons seeking medical assistance from persons who are expected to
    provide some form of health care.
    15. Modification of Decree: Child Custody: Proof. Ordinarily, custody
    of a minor child will not be modified unless there has been a material
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    change in circumstances showing either that the custodial parent is unfit
    or that the best interests of the child require such action.
    16.    Parent and Child: Words and Phrases. Parental unfitness means a
    personal deficiency or incapacity which has prevented, or will prob-
    ably prevent, performance of a reasonable parental obligation in child
    rearing and which has caused, or probably will result in, detriment to a
    child’s well-being.
    17.    Modification of Decree: Visitation. Visitation rights established by a
    marital dissolution decree may be modified upon a showing of a material
    change of circumstances affecting the best interests of the children.
    18.    Modification of Decree: Words and Phrases. A material change in
    circumstances means the occurrence of something which, had it been
    known to the dissolution court at the time of the initial decree, would
    have persuaded the court to decree differently.
    19.    Modification of Decree: Visitation: Proof. The party seeking to mod-
    ify visitation has the burden to show a material change in circumstances
    affecting the best interests of the child.
    20.    Modification of Decree: Visitation. The best interests of the children
    are primary and paramount considerations in determining and modifying
    visitation rights.
    21.    Modification of Decree: Child Support: Proof. A party seeking to
    modify a child support order must show a material change in circum-
    stances that (1) occurred subsequent to the entry of the original decree
    or previous modification and (2) was not contemplated when the decree
    was entered.
    Appeal from the District Court for Lancaster County: Robert
    R. Otte, Judge. Affirmed.
    Matt Catlett, of Law Office of Matt Catlett, for appellant.
    David P. Kyker for intervenor-appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    Jayson H. Tilson appeals a district court order modifying the
    decree that dissolved his marriage. The district court rejected
    Jayson’s argument that the original decree was void. It ordered
    that custody of Jayson’s three children should remain with
    the children’s maternal grandmother, but modified the decree
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    as to parenting time and child support. On appeal, Jayson
    primarily argues that because, several years ago, he filed a
    motion to dismiss his complaint for dissolution, the decree of
    dissolution that followed was void, even though he withdrew
    the motion to dismiss hours after he filed it. In the alternative,
    Jayson challenges admissibility rulings at the modification
    hearing and the modification order’s custody, parenting time,
    child support, and attorney fees determinations, as well as the
    denial of his motion to disqualify the presiding judge. We find
    no merit to Jayson’s claims, and we affirm.
    BACKGROUND
    Motion to Dismiss and Dissolution Decree.
    In September 2014, Jayson filed a complaint for dissolution
    of his marriage to Erica M. Tilson, who has been incarcer-
    ated and is not involved in the current appeal. In December
    2014, temporary custody of the couple’s three minor children
    was awarded to the maternal grandmother, Kimberly L. Hill
    (Kimberly). The court subsequently allowed Kimberly to inter-
    vene and appointed a guardian ad litem for the children. In
    August 2015, Kimberly and her husband filed a third-party
    complaint, asking for grandparent visitation and continued
    temporary custody of the children.
    On November 16, 2015, the day before a scheduled dissolu-
    tion hearing, Jayson filed a motion to dismiss his complaint for
    dissolution. The dissolution hearing was held as scheduled on
    November 17, with Jayson in attendance.
    On December 8, 2015, the court entered a decree of dissolu-
    tion, drafted by Jayson’s counsel. Referring to the November
    17 hearing, the decree stated, “Upon motion of [Jayson’s]
    attorney . . . [Jayson’s] motion to dismiss is withdrawn.”
    The decree ordered the continuation of Kimberly’s legal and
    physical custody, and as to Jayson, it ordered parenting time
    and a contribution toward childcare expenses. Jayson was not
    ordered to pay child support. The decree prohibited Jayson
    from consuming alcohol within 24 hours prior to or during his
    parenting time and ordered him to administer the children’s
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    prescribed medications during his parenting time. Erica was
    ordered to pay child support and was awarded supervised par-
    enting time by arrangement.
    Jayson’s February 24, 2017, “Complaint,” Initial
    Appeal, and Motion for Judicial Disqualification.
    More than a year after the entry of the decree, on February
    24, 2017, Jayson filed a “Complaint.” Relevant here, the com-
    plaint requested (1) that the decree be vacated as void because
    his November 2015 motion to dismiss was self-executing, and
    thus the court lacked jurisdiction to enter the decree, and (2)
    that in the alternative, the decree be modified to place custody
    of the children with him. In an answer and cross-complaint,
    Kimberly asked that Jayson’s weekly parenting time be reduced
    and “fully supervised.” She also requested child support.
    Before any ruling on Jayson’s complaint filed February 24,
    2017, Jayson filed additional motions upon which the district
    court ruled, and Jayson appealed. We dismissed the appeal.
    See Tilson v. Tilson, 
    299 Neb. 64
    , 
    907 N.W.2d 31
     (2018). We
    concluded that the ruling appealed from was not a final order
    because it did nothing more than deny requests for temporary
    relief and preserve the status quo pending the determination of
    other issues. 
    Id.
    On May 5, 2018, Jayson filed a motion for judicial dis-
    qualification. As discussed in more detail below, he alleged
    several ways in which the presiding judge had exhibited bias.
    Following a hearing, the district court overruled the motion.
    Trial Addressing February 24, 2017, “Complaint.”
    The district court held a trial on Jayson’s February 24,
    2017, complaint. At trial, Kimberly testified that she is the
    maternal grandmother of the children: M.T., born in 2007;
    R.T., born in 2012; and T.T., born in 2013. The children had
    lived with Kimberly and her husband since December 2014,
    after Jayson was ticketed for leaving them home alone while
    he was out drinking at a bar. According to Kimberly, until
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    TILSON v. TILSON
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    March 2017, Jayson did not exercise all of his allotted parent-
    ing time. Kimberly’s testimony generally showed that while
    the children were with her, she took care of all their needs,
    including food, clothing, bathing, medical appointments and
    prescriptions, counseling, help with schoolwork, and extracur-
    ricular activities.
    Kimberly testified that she had many concerns about the
    children’s safety when they were with Jayson. She estimated
    that she observed the children improperly restrained in Jayson’s
    vehicle 20 times during the year preceding trial and 50 times
    overall, despite talking to Jayson about the issue multiple
    times. Kimberly testified that she was also concerned that
    Jayson did not give the children their medication consistently,
    in particular, an antidepressant that M.T. used in 2015 and
    2016. She testified about various dog and cat scratches the
    children had received while under Jayson’s care. Kimberly
    acknowledged that Jayson had been good about taking the chil-
    dren “to the lake and to the park,” but testified he was not good
    about supervising them while swimming. As a result, M.T.’s
    glasses had been lost and broken, and the two younger children
    had gone beyond where they should safely be in the water and
    without lifejackets. Kimberly testified that nearly every time
    the children returned from these outings, they had been “fried”
    by the sun.
    Kimberly had concerns about clothing, cleanliness, and
    food during the children’s time with Jayson. In late 2015
    or early 2016, while Jayson was living at his previous resi-
    dence, Kimberly saw cockroaches in M.T.’s school backpack.
    Kimberly testified that starting in the summer of 2017, the chil-
    dren had lice for a 4-month period and had not had lice when
    they left to visit Jayson. She testified that in the year before
    trial, the children consistently returned from visits with Jayson
    extremely dirty and dressed in clothes that were the wrong size
    or inappropriate for the weather. Kimberly also stated that over
    the preceding 31⁄2 years, the children usually returned from
    Jayson’s home hungry.
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    TILSON v. TILSON
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    Kimberly also expressed concerns about the effect Jayson’s
    parenting time had on the children’s behavior and school per-
    formance. She testified that the children were not doing their
    homework while at Jayson’s home. Kimberly testified that after
    Jayson’s overnight parenting time was suspended in March
    2018, the children’s behavior improved. Before, M.T. was
    having urinary accidents about four times a year, but since the
    change in visitation, she had not had any. Similarly, when the
    two younger children were staying with Jayson overnight, they
    misbehaved for 2 days afterward, but since March 2018, any
    misbehavior had been short lived and their school performance
    had improved.
    The children’s guardian ad litem, Candice Wooster, testified
    about her investigation in this case. Wooster was not able to
    schedule a visit at Jayson’s home and has never been informed
    where he lives. She testified that she spoke to Jayson by tele-
    phone a handful of times between December 2015 and May
    2017. During one call, Jayson hung up on Wooster. In May
    2017, Jayson stopped returning her calls. As a result, Wooster
    was unable to arrange a home visit with Jayson. She also con-
    tacted his attorney and asked if he would like to be present at
    a home visit, but this did not result in an opportunity to either
    speak with Jayson or visit his home. Wooster testified that
    at a hearing during the 3- or 4-month period preceding trial,
    Jayson’s counsel submitted an affidavit in which Jayson stated
    he would not be speaking to Wooster.
    In contrast, Wooster visited Kimberly’s home four or five
    times for an hour and found no concerns. Wooster observed
    a very loving relationship between Kimberly and the chil-
    dren. She saw Kimberly helping the children with their home-
    work. When R.T. had a tantrum, Kimberly calmly helped her
    through it. She also observed Kimberly’s husband playing with
    the children.
    Dr. Judith Bothern, a licensed psychologist, testified that
    she provided therapy for M.T., R.T., and T.T. from December
    2015 until November 2017. Bothern testified that Kimberly
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    TILSON v. TILSON
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    initiated this therapy. M.T., who had 89 sessions with Bothern,
    was Bothern’s primary client in the family. Bothern diagnosed
    M.T. with adjustment disorder and major depressive disorder.
    Bothern’s treatment plan for M.T. included addressing her rela-
    tionship with Jayson and his knowledge of parenting practices.
    Pursuant to a court order, Jayson participated in 18 sessions
    starting around the same time as the children and continuing
    until September 2016.
    Bothern testified regarding several safety concerns about
    Jayson’s care for M.T. M.T. told her that Jayson did not regu-
    larly give M.T. her antidepressant medication, which, accord-
    ing to Bothern, could have a significant effect on M.T.’s ability
    to modulate her moods, emotions, and behavior. M.T. reported
    to Bothern that sometimes when she reminded Jayson about
    her medication, he would tell her she had already taken it,
    when she had not. Bothern testified, however, that Jayson rec-
    ognized the need to be more consistent with the medication and
    expressed an intention to make greater efforts.
    Bothern testified that she was also concerned about the
    children’s physical safety. In April 2017, R.T. presented with
    a bruise on her forehead and T.T. presented with bruises on
    her chest and her leg, apparently caused by Jayson’s shoot-
    ing them with a “Nerf” gun. Bothern testified that this made
    her concerned that Jayson had poor judgment about what was
    appropriate with the children. In addition, during her last ses-
    sion, M.T. told Bothern that Jayson used a pellet gun to shoot
    the children for “‘fun.’” As a result, Bothern filed a report with
    Child Protective Services (CPS).
    Bothern had concerns relating to Jayson’s living situations.
    Bothern testified that early on during Jayson’s participation,
    he acknowledged that his residence at that time was in dis-
    repair and had “trouble with mice and bugs,” but he claimed
    he was doing what he could to handle the issue. In early
    2016, Jayson’s living situation resulted in five or six children,
    including older boys and younger girls, sharing a bedroom.
    M.T. reported being very concerned because in the bedroom
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    the boys would expose themselves to her and had touched the
    genitals of a female child living in the home, who was about
    3 years old at the time. Bothern filed a CPS report as a result.
    M.T. also had concerns that the boys were “barging in on her
    in the bathroom.” When Bothern discussed these things with
    Jayson, he said he would show M.T. how to lock the bath-
    room door. But with regard to the incidents in the bedroom,
    Bothern said Jayson responded with a “boys will be boys type
    of thing.”
    Jayson subsequently moved in to the residence of Lexi
    Wallen, where the three children shared a bedroom with
    Wallen’s daughter. In September 2017, M.T., R.T., T.T., and
    Wallen’s daughter, who was approximately 6 years old at the
    time, left that residence in the middle of the night and were
    returned home by the police. M.T. told Bothern they left
    because their bedroom smelled like urine, there was a moldy
    hole in the wall, and ants were all over. In her last session,
    M.T. told Bothern that there were three mice in the residence,
    which Jayson shot at with a pellet gun.
    Bothern testified that she was concerned that Jayson had
    told M.T. not to tell Kimberly about events in Jayson’s home.
    When Bothern reported things M.T. had told her to Jayson,
    Jayson would often subject M.T. to “some backlash.” When
    Bothern spoke to Jayson about the matter in therapy, he told
    M.T. that she could talk to Bothern about anything. But when
    Jayson stopped participating in therapy, M.T. reported that
    Jayson had told her not to tell Kimberly about certain inci-
    dents. M.T. struggled with this because it required her to either
    lie to Kimberly or betray Jayson. And in June 2017, M.T.,
    then about 9 years old, reported to Bothern that CPS came to
    Jayson’s home with the police because R.T. had reported to
    someone that Jayson had left the children home alone. When
    Jayson got very angry with M.T. over this, she falsely told CPS
    and the police it never happened. Additionally, Bothern testi-
    fied that many times throughout treatment, the children told her
    that Jayson instructed them to misbehave while in Kimberly’s
    care. This too caused emotional distress for M.T.
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    Bothern testified that she was also concerned about supervi-
    sion being delegated to M.T. For example, Bothern recounted
    that in the spring of 2016, T.T. had incurred a bad scrape on
    her face from falling off a retaining wall while under M.T.’s
    supervision. Bothern testified that around the same time, M.T.
    had been “terrified” during a swimming outing when a 4-year-
    old child in their group fell into the water and M.T. felt
    responsible for bringing her to safety. In October 2017, M.T.,
    then about age 9, reported that Jayson told her it was her
    responsibility to take care of her 1- or 2-month-old brother
    while Jayson and a friend were drinking beer in the home and
    Wallen was away. Bothern further testified that once in her
    clinic, she observed Jayson instruct M.T. to take the younger
    children to the bathroom and also observed Jayson instruct
    M.T. to retrieve the younger children when they went into
    the toy room without an adult; in Bothern’s view, these were
    “[i]nappropriate” expectations to be placing on M.T. at her
    level of development.
    Bothern testified that she never performed a psychological
    evaluation on Jayson. Rather, she tried to work with Jayson
    to understand M.T.’s developmental needs and expectations,
    along with appropriate discipline and parenting. Bothern char-
    acterized Jayson as “very easy to work with”; he always
    responded well in the clinic and was respectful. Bothern testi-
    fied that Jayson improved in identifying problem areas, but
    “not so much in follow through.” In Jayson’s later sessions,
    Bothern observed that he was frequently not following through
    on her recommendations about intervening with the children.
    Dr. Colleen M. Lecher, a licensed mental health profes-
    sional, testified that she had provided therapy to M.T. and R.T.,
    whom she first met in November 2017 upon Bothern’s retire-
    ment. Lecher testified that she had never met Jayson and that
    he was not involved in the children’s treatment.
    Lecher, who had conducted 20 sessions with M.T., testi-
    fied that she had diagnosed M.T. with adjustment disorder and
    depression with symptoms of sadness, confusion, and anxiety.
    Lecher’s treatment goals for M.T. were to increase her ability
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    to express her emotions and grief over the loss of her mother
    and to practice relaxation techniques when feeling stressed.
    Lecher testified that for the numerous adults involved in M.T.’s
    life, she set a goal of meeting the children’s needs of safety
    and stabilization at home and at school because those issues
    “looked like a big problem for the group.” Lecher described
    safety and stabilization as making sure transitions are positive
    and doing everything to be appropriate and consistent, to take
    care of needs, and to provide structure for adjustment so that
    the children can “trust their environment.”
    Lecher observed that M.T. felt compelled to meet the needs
    of the younger children in Jayson’s home as a parenting figure.
    Lecher opined that the responsibilities M.T. was given for the
    younger children put their safety at risk because her knowledge
    of how to care for them was limited and she had no supervision
    or instruction regarding how to provide care. This, in Lecher’s
    view, also posed a risk to M.T.’s emotional well-being. M.T.
    told Lecher about an occasion prior to November 2017 when
    the children were left home alone completely unsupervised and
    she was scared. Lecher testified this was likely a traumatic
    memory for M.T. and an “attachment strain” that could cause
    mistrust of her main caregivers, in addition to the initial risk of
    having been left home alone.
    M.T. reported to Lecher that there were times she wanted
    to call Kimberly and tell her she was scared or unhappy at
    Jayson’s house, but she thought she would be punished for
    doing so. M.T. told Lecher that even if she had a cell phone of
    her own while at Jayson’s house, she feared that Jayson would
    be able to discover that she called Kimberly and she would be
    grounded or in trouble with Jayson if she did.
    M.T. shared with Lecher that she saw Jayson drinking alco-
    hol and getting drunk with his friends. M.T. told Lecher that
    one time, she crawled underneath a bed at Jayson’s residence
    and found alcohol there. On several occasions, M.T. also
    brought up the presence in Jayson’s living room of what she
    called marijuana and said she believed there were other illegal
    drugs in the home as well. M.T.’s mother was incarcerated for
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    drug offenses, and she was worried that Jayson would go to
    jail too. Lecher considered accessible alcohol and drugs in the
    home to be a safety risk for the children.
    Within the first 2 months of treatment, M.T. told Lecher that
    Jayson transported her in a car without a seatbelt. Around the
    same time, M.T. also said she was scared because Jayson was
    texting while driving. Lecher testified that on approximately
    four occasions at the beginning of treatment, M.T. said that the
    children did not have enough food at Jayson’s house and would
    go home to Kimberly’s house hungry. M.T. also expressed con-
    cerns to Lecher about three mice in Jayson’s house.
    Lecher observed that during the first 3 months of therapy,
    M.T. was secretive about what went on during visitations and
    struggled with knowing what to say and to whom because she
    did not want to get in trouble or get anyone else in trouble. She
    told Lecher that Jayson had told her to keep certain things that
    go on in his house “secret,” but when Lecher tried to follow up,
    M.T. was very guarded because she was afraid she would get in
    trouble. In Lecher’s opinion, this was a safety risk. M.T. told
    Lecher that she loved Jayson, but M.T. also had concerns about
    Jayson’s ability to provide safety and to be in a relationship
    with her, listen to her, communicate with her, and understand
    her needs. M.T. expressed to Lecher that she believed Jayson
    could meet these needs, but he would need help to do that
    before she felt safe with him. Since the decrease in Jayson’s
    parenting time to Wednesday evenings and Saturdays, M.T.
    had reported feeling less stressed, enjoying planned activities
    with Jayson, and being happier with their relationship. Lecher
    observed that since the change, M.T. was able to concentrate
    and focus more, her mood was more stabilized, and she was
    more willing to talk about her feelings.
    Lecher started seeing R.T. in family sessions shortly after
    Lecher began treating M.T., and she began treating R.T. on
    March 1, 2019. Lecher diagnosed R.T. with adjustment disor-
    der with “disturbance of conduct.” Lecher explained that this
    means that R.T. is adjusting to transitions in her living arrange-
    ments and separation from her parents and communicating
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    through negative conduct rather than words. R.T.’s treatment
    goals were the same as M.T.’s, and she required safety and sta-
    bilization in the home, consistency, and plans for de-escalating
    her “meltdown[s]” and making her feel calm. Like M.T., R.T.
    had reported that Jayson had instructed her not to disclose
    to Kimberly everything that went on at his house; R.T. also
    referred to this information as “secrets” and was very guarded
    when Lecher asked for more information, fearing she would
    get into trouble.
    Jayson testified that in addition to being the father of M.T.,
    R.T., and T.T., he was the father of a son born in 2006, as
    well as a son born to Wallen in 2017. Jayson testified that his
    younger son lived with him and Wallen, along with Wallen’s
    two children, in a three-bedroom, two-bathroom trailer home
    that belonged to Wallen. Jayson testified that he and Wallen
    had been in a relationship and lived together for approximately
    2 years. Jayson asked the court not to grant access to the chil-
    dren to anyone other than himself. Jayson generally denied or
    explained the bases for the concerns voiced by other witnesses.
    Wallen also testified and provided details that generally dis-
    counted the concerns brought up by other witnesses.
    District Court Order Disposing of
    February 24, 2017, “Complaint.”
    The district court denied the relief Jayson requested in his
    February 24, 2017, complaint. It found that Jayson’s motion to
    dismiss the dissolution complaint had not rendered the decree
    void or unlawful.
    Regarding custody, the district court stated that it had
    “observed the parties, the witnesses and their demeanors, and
    made determinations as to credibility.” It continued, “To the
    extent the court’s recitation of the facts differ from a party’s
    position on those facts, the court’s recitation will constitute
    the court’s findings of disputed facts.” In particular, the dis-
    trict court noted that Jayson’s failure to meet with the guard-
    ian ad litem “casts doubt upon his true motivations” and
    “works against his credibility and position that he is fit, has
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    satisfactory living arrangements for the children, has the chil-
    dren’s best interests in mind, and can care for them appropri-
    ately.” The district court decided that the parental preference
    principle had been rebutted by showings of parental forfeiture
    and unfitness and that the best interests of the children “‘lie
    elsewhere.’” It awarded Kimberly legal and physical custody
    of the children.
    Addressing parenting time, the district court found that
    Kimberly had proved a material change in circumstances and
    that the children’s best interests required changes to Jayson’s
    parenting time then in effect. Jayson received parenting time
    every other week from Thursday afternoon through Sunday
    afternoon and for designated holidays and 4 weeks total dur-
    ing the summer, a change from the initial decree’s schedule
    of Friday evenings through Monday mornings and Wednesday
    evenings through Thursday mornings.
    As to child support, the district court completed child sup-
    port worksheets based in part on Kimberly’s suggested calcu-
    lations and found a material change in circumstances. For the
    first time, it ordered Jayson to pay child support on a perma-
    nent basis, in the amount of $587 per month.
    The district court found that the remainder of the dissolution
    decree was to stay in effect and that any other relief sought
    was denied. The parties were ordered to pay their own attor-
    ney fees.
    Subsequent Motions and Amended Order.
    Jayson filed a motion for new trial and a motion to vacate,
    alter, or amend the judgment. The latter motion again asserted,
    among other things, that the dissolution decree was void. The
    district court denied the motions, with the exception of the
    issue of child support.
    At a subsequent hearing on the child support issue, Jayson
    testified regarding his employment history and income. As
    of February 26, 2019, Jayson was unemployed and looking
    for employment and also spending time with his young son.
    Jayson testified that he did not believe he should be ordered to
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    pay child support because he “takes care of” the children when
    he has them. Kimberly testified that shortly after December
    2015, when Jayson began exercising less parenting time than
    was awarded him in the original decree, her expenses increased
    because the children were with her more often.
    The district court completed new child support worksheets
    and entered an order amending the child support aspects of the
    judgment to require Jayson to pay $236 per month. Jayson was
    not required to contribute to childcare expenses.
    Jayson now appeals.
    ASSIGNMENTS OF ERROR
    Jayson assigns that the district court erred in not vacating
    the decree and declaring it to be void. In the alternative, Jayson
    assigns that the district court erred in (1) denying Jayson’s
    motion for disqualification for judicial bias, (2) receiving the
    children’s statements to therapists and the therapists’ opinions,
    (3) not modifying the decree to award custody to Jayson, (4)
    modifying the decree as to parenting time and child support,
    and (5) not awarding Jayson attorney fees.
    STANDARD OF REVIEW
    [1] 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 inde-
    pendent of the lower court’s decision. Simms v. Friel, 
    302 Neb. 1
    , 
    921 N.W.2d 369
     (2019).
    [2] A motion requesting a judge to recuse himself or herself
    on the ground of bias or prejudice is addressed to the discre-
    tion of the judge, and an order overruling such a motion will be
    affirmed on appeal unless the record establishes bias or preju-
    dice as a matter of law. McCullough v. McCullough, 
    299 Neb. 719
    , 
    910 N.W.2d 515
     (2018).
    [3,4] 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 dis-
    cretion a factor in determining admissibility. Lindsay Internat.
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    Sales & Serv. v. Wegener, 
    301 Neb. 1
    , 
    917 N.W.2d 133
     (2018).
    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.
    [5] Apart from rulings under the residual hearsay exception,
    an appellate court reviews for clear error the factual findings
    underpinning a trial court’s hearsay ruling and reviews de novo
    the court’s ultimate determination to admit evidence over a
    hearsay objection or exclude evidence on hearsay grounds.
    Pantano v. American Blue Ribbon Holdings, 
    303 Neb. 156
    , 
    927 N.W.2d 357
     (2019).
    [6,7] 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. Jones v. Jones, 
    305 Neb. 615
    , 
    941 N.W.2d 501
     (2020). In a review de novo on
    the record, an appellate court is required to make independent
    factual determinations based upon the record, and the court
    reaches its own independent conclusions with respect to the
    matters at issue. When evidence is in conflict, the appellate
    court considers and may give weight to the fact that the trial
    court heard and observed the witnesses and accepted one ver-
    sion of the facts rather than another. Dooling v. Dooling, 
    303 Neb. 494
    , 
    930 N.W.2d 481
     (2019).
    [8] In an action for modification of a marital dissolution
    decree, the award of attorney fees is discretionary with the trial
    court, is reviewed de novo on the record, and will be affirmed
    in the absence of an abuse of discretion. Garza v. Garza, 
    288 Neb. 213
    , 
    846 N.W.2d 626
     (2014).
    ANALYSIS
    Motion to Vacate Decree as Void.
    We begin with Jayson’s contention that the district court erred
    by not vacating the decree and declaring it void. Jayson takes
    the position that the motion to dismiss he filed on November
    16, 2015, terminated the dissolution action. According to
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    Jayson, because the district court did not have jurisdiction of
    the matter after he filed his motion, the entire decree, which
    includes custody and child support orders, was void and should
    have been vacated.
    Jayson’s argument rests on his understanding that he, as the
    party that filed the dissolution action, had an absolute right to
    voluntarily dismiss it and that his filing of the motion to dis-
    miss had the effect of immediately terminating the action with-
    out need for additional action by the district court. In short,
    Jayson claims that his November 16, 2015, motion dismissed
    the action by operation of law the moment it was filed.
    Kimberly disagrees, arguing that Jayson did not have the
    right to unilaterally dismiss the action. Although she concedes
    that a plaintiff has the right to unilaterally dismiss an action
    without prejudice under some circumstances, she contends
    Jayson did not have such a right in this case, because she had
    filed a third-party complaint seeking temporary custody or visi-
    tation, which remained pending at the time of Jayson’s motion
    to dismiss.
    It does not appear that when he filed his November 16,
    2015, motion, Jayson or his counsel believed that Jayson could
    unilaterally terminate the dissolution proceedings. Jayson filed
    a motion to dismiss, which would seem to request that the
    district court take action to effectuate a dismissal rather than
    notifying it and the other parties of a self-executing dismissal.
    See Black’s Law Dictionary 1168 (10th ed. 2014) (defining
    “motion” as “written or oral application requesting a court
    to make a specified ruling or order”). But even if that issue
    is set to the side and, further, even if we assume that Jayson
    is correct that he could and did, in fact, dismiss the dissolu-
    tion proceeding at the moment he filed his motion to dis-
    miss, we still disagree with Jayson that the subsequent decree
    was void.
    If the dissolution action was terminated the moment Jayson
    filed his motion to dismiss, the action was effectively rein-
    stated. While Jayson is correct that an order of dismissal or
    dismissal by operation of law generally divests a court of
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    jurisdiction to take any further action in the matter, we have
    also held that parties may move to reinstate a dismissed action,
    that such a motion is treated as a motion to vacate, and that
    courts generally have jurisdiction to vacate an order of dis-
    missal and reinstate a case. See Molczyk v. Molczyk, 
    285 Neb. 96
    , 
    825 N.W.2d 435
     (2013). Here, the record indicates that
    Jayson filed a motion to withdraw his motion to dismiss on
    November 17, 2015. Although framed as a motion to withdraw
    his motion to dismiss, our law treats motions according to their
    substance and not their title. See Gerber v. P & L Finance
    Co., 
    301 Neb. 463
    , 
    919 N.W.2d 116
     (2018). The substance of
    a motion to withdraw a motion to dismiss asks that the action
    continue. Accordingly, even if the action was automatically
    dismissed upon Jayson’s motion, Jayson’s motion to withdraw
    the motion to dismiss operated as a motion to vacate the dis-
    missal and reinstate the action, a request that the district court
    had jurisdiction to entertain. Under this scenario, the district
    court effectively granted the motion to reinstate by recognizing
    that Jayson desired that the action continue and proceeding to
    enter a decree.
    For these reasons, we find that the district court did not err
    in concluding that the decree was not void. We thus proceed to
    address Jayson’s alternative assignments of error.
    Motion for Judicial Disqualification.
    [9,10] Before moving to Jayson’s substantive challenges to
    the modification order, we address his claim that the district
    court judge erred in not recusing himself. A motion request-
    ing a judge to recuse himself or herself on the ground of bias
    or prejudice is addressed to the discretion of the judge, and
    an order overruling such a motion will be affirmed on appeal
    unless the record establishes bias or prejudice as a matter of
    law. McCullough v. McCullough, 
    299 Neb. 719
    , 
    910 N.W.2d 515
     (2018). A judge should recuse himself or herself when a
    litigant demonstrates that a reasonable person who knew the
    circumstances of the case would question the judge’s impar-
    tiality under an objective standard of reasonableness, even
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    though no actual bias or prejudice was shown. Thompson v.
    Millard Pub. Sch. Dist. No. 17, 
    302 Neb. 70
    , 
    921 N.W.2d 589
    (2019). Such instances in which the judge’s impartiality might
    reasonably be questioned specifically include where the judge
    has a personal bias or prejudice concerning a party or a party’s
    lawyer. See In re Interest of J.K., 
    300 Neb. 510
    , 
    915 N.W.2d 91
     (2018). A party alleging that a judge acted with bias or
    prejudice bears a heavy burden of overcoming the presumption
    of judicial impartiality. Thompson v. Millard Pub. Sch. Dist.
    No. 17, supra. Jayson has not satisfied this burden.
    Jayson’s brief contends there were many instances in which
    the district court demonstrated bias. Because Jayson did not
    raise some of those allegations before the district court, we will
    not consider them all. See Weber v. Gas ’N Shop, 
    278 Neb. 49
    ,
    54, 
    767 N.W.2d 746
    , 750 (2009) (“[a]n appellate court will not
    consider an issue on appeal that was not presented to or passed
    upon by the trial court”). See, also, In re Interest of Michael
    N., 
    302 Neb. 652
    , 
    925 N.W.2d 51
     (2019). Instead, we confine
    our review to alleged instances of judicial bias that were raised
    below and on appeal; and we conclude that the presiding judge
    did not err in declining to remove himself from the case.
    The allegations of bias that Jayson has made below and on
    appeal arise from hearings in June 2017 and February 2018
    relating to temporary alterations of his parenting time. At the
    hearings, the presiding judge twice allowed Kimberly’s counsel
    additional time to submit exhibits in proper form, over Jayson’s
    objections. On one of those occasions, the judge granted a con-
    tinuance. The judge also allowed the guardian ad litem to offer
    opinions despite Jayson’s objection. Further, the judge asked
    Jayson’s counsel whether Jayson’s affidavit stated that he
    would not answer any questions posed by any court-appointed
    guardian ad litem.
    [11] Jayson’s allegations of bias relate to the presiding
    judge’s courtroom administration and evidentiary and substan-
    tive rulings. But “‘judicial rulings alone almost never consti-
    tute a valid basis for a bias or partiality motion’” directed to a
    trial judge. Huber v. Rohrig, 
    280 Neb. 868
    , 875, 791 N.W.2d
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    590, 598 (2010), quoting Liteky v. United States, 
    510 U.S. 540
    ,
    
    114 S. Ct. 1147
    , 
    127 L. Ed. 2d 474
     (1994). See, also, Young v.
    Govier & Milone, 
    286 Neb. 224
    , 
    835 N.W.2d 684
     (2013). Nor
    can a judge’s ordinary efforts at courtroom administration be a
    basis for bias or partiality. 
    Id.
     Opinions formed by the judge on
    the basis of facts introduced or events occurring in the course
    of the current proceedings, or of prior proceedings, do not con-
    stitute a basis for a bias or partiality motion unless they display
    a deep-seated favoritism or antagonism that would make fair
    judgment impossible. In re Interest of J.K., 
    supra.
    Our review of the record reveals nothing in the district
    judge’s rulings or other actions that indicates bias or prejudice
    necessitating recusal. Accordingly, we conclude that the dis-
    trict court did not abuse its discretion when it denied Jayson’s
    motion for recusal.
    Evidentiary Rulings at Modification Hearing.
    Jayson also challenges the district court’s modification of
    the dissolution decree. Relevant to that issue are admissibility
    rulings at the modification hearing that Jayson also disputes.
    We address those rulings now.
    [12] First, Jayson argues that the district court erred in
    admitting testimony based on statements that the children
    and Kimberly made to Bothern and Lecher. He claims those
    statements were inadmissible hearsay. However, Jayson only
    assigns that the district court erred in receiving the children’s
    statements, and to be considered by an appellate court, an
    alleged error must be both specifically assigned and spe-
    cifically argued in the brief of the party asserting the error.
    Fetherkile v. Fetherkile, 
    299 Neb. 76
    , 
    907 N.W.2d 275
     (2018).
    Therefore, we will address only the admissibility of the chil-
    dren’s statements to the therapists.
    Jayson is correct in identifying the children’s statements
    as hearsay, because it was not the declarants who testified
    to them and they were received for the truth of the matters
    asserted. See, Neb. Evid. R. 801(3), 
    Neb. Rev. Stat. § 27-801
    (3)
    (Reissue 2016). However, we conclude that they fall under the
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    medical purpose exception to the hearsay rule and were there-
    fore properly admitted.
    [13] Under the medical purpose exception, “[s]tatements
    made for purposes of medical diagnosis or treatment and
    describing medical history, or past or present symptoms, pain,
    or sensations, or the inception or general character of the cause
    or external source thereof insofar as reasonably pertinent to
    diagnosis or treatment” are not excluded by the hearsay rule.
    Neb. Evid. R. 803(3), 
    Neb. Rev. Stat. § 27-803
    (3) (Reissue
    2016). Rule 803(3) is based on the notion that a person seeking
    medical attention will give a truthful account of the history and
    current status of his or her condition in order to ensure proper
    treatment. See, State v. Beeder, 
    270 Neb. 799
    , 
    707 N.W.2d 790
     (2006), disapproved on other grounds, State v. McCulloch,
    
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007); State v. Hardin, 
    212 Neb. 774
    , 
    326 N.W.2d 38
     (1982). In order for statements to
    be admissible under rule 803(3), the party seeking to introduce
    the evidence must demonstrate (1) that the circumstances under
    which the statements were made were such that the declarant’s
    purpose in making the statements was to assist in the provision
    of medical diagnosis or treatment and (2) that the statements
    were of a nature reasonably pertinent to medical diagnosis or
    treatment by a medical professional. State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
     (2017).
    Jayson asserts, without additional elaboration, that state-
    ments made by M.T. and R.T. to Bothern and Lecher were not
    made for the purposes of or reasonably pertinent to medical
    diagnosis or treatment. To the extent Jayson implies that the
    mental health professional services provided by Bothern and
    Lecher were not medical in nature and that therefore, the medi-
    cal purpose exception cannot apply, we disagree.
    [14] Our prior cases in this area do not support an argument
    that the medical purpose exception cannot apply to statements
    made to mental health professionals. First of all, we have
    stated that “[a]lthough the heart of the rule 803(3) exception
    lies in statements made by a patient to a treating physician,
    the exception casts its net wider than the patient-physician
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    relationship.” State v. Vigil, 
    283 Neb. 129
    , 136, 
    810 N.W.2d 687
    , 695 (2012). As a general rule, then, this hearsay excep-
    tion applies to persons seeking medical assistance from per-
    sons who are expected to provide some form of health care.
    Vacanti v. Master Electronics Corp., 
    245 Neb. 586
    , 
    514 N.W.2d 319
     (1994).
    More specifically, our cases have applied this hearsay excep-
    tion to statements made for purposes of obtaining a mental
    health diagnosis or mental health treatment. In In re Interest of
    B.R. et al., 
    270 Neb. 685
    , 
    708 N.W.2d 586
     (2005), we applied
    the medical purpose exception to statements a foster mother
    made to a therapist regarding evidence that the minor patient
    may have been sexually abused. Although our primary focus in
    that case was whether statements from someone other than the
    child herself could be admitted, we concluded that the state-
    ments fell within the exception as long as the declarant’s pur-
    pose in making the statements was to assist in the provision of
    medical diagnosis or treatment, the declarant’s statements were
    reasonably pertinent to such diagnosis or treatment, and a doc-
    tor would reasonably rely on such statements. We determined
    that statements to the child’s therapist setting forth evidence
    that the child had been sexually abused met these requirements
    and were thus admissible.
    Later, in State v. Vigil, supra, we applied the exception to
    statements made during a child advocacy center forensic inter-
    view regarding a sexual assault. There, we considered the dual
    medical and investigatory purposes of the interview. We held
    that even when an interview is conducted for both medical
    and investigatory purposes, the medical purpose exception will
    apply if the statements were made in legitimate and reason-
    able contemplation of medical diagnosis or treatment. Relying
    on our decision in In re Interest of B.R. et al., supra, we held
    that when an individual is alleged to be the victim of sexual
    assault, “statements reasonably pertinent to medical diagnosis
    and treatment of both physical and psychological trauma” were
    admissible under rule 803(3). State v. Vigil, 283 Neb. at 141,
    810 N.W.2d at 698 (emphasis supplied).
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    Our cases are consistent with those of federal appeals courts.
    A recent opinion from the Third Circuit Court of Appeals
    noted that every federal court of appeals that has considered
    the issue has concluded that statements to mental health profes-
    sionals for purposes of diagnosis or treatment are admissible
    under the medical purpose exception to the hearsay rule in the
    Federal Rules of Evidence. See U.S. v. Gonzalez, 
    905 F.3d 165
    (3d Cir. 2018), cert. denied ___ U.S. ___, 
    139 S. Ct. 2727
    , 
    204 L. Ed. 2d 1120
     (2019) (collecting cases).
    Having determined that statements made to mental health
    professionals can fall within the medical purpose exception to
    the hearsay rule, we must consider whether the statements at
    issue here met the necessary requirements: that the declarant’s
    purpose in making the statements was to assist in the provision
    of medical diagnosis or treatment, that the declarant’s state-
    ments were reasonably pertinent to such diagnosis or treatment,
    and that a medical professional would reasonably rely on such
    statements. Whether a statement was both taken and given in
    contemplation of medical diagnosis or treatment is a factual
    finding made by the trial court in determining the admissi-
    bility of the evidence under rule 803(3), and we review that
    determination for clear error. State v. Vigil, supra. Applying
    that standard here, we find no clear error on the part of the
    district court.
    In the case before us, Kimberly sought assistance for M.T.
    and R.T. from Bothern and Lecher, health care profession-
    als expected to provide mental or psychological health care.
    Bothern diagnosed M.T. with adjustment disorder along with
    depression. In treating M.T., Bothern testified that it was nec-
    essary to address her relationship with Jayson and his parent-
    ing practices. Lecher made the same diagnosis for M.T., and
    her treatment goals included helping the adults in M.T.’s life
    meet M.T.’s needs for safety and stabilization. This entailed
    providing structure and consistency so that M.T. could trust
    her environment. Lecher set the same treatment goals for R.T.,
    whom she also diagnosed with adjustment disorder. Statements
    by M.T. and R.T. relating to their relationship with Jayson
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    and their time under his care were integral to their diagno-
    sis and treatment, and considering the context in which they
    were made, the statements could be reasonably relied upon.
    We find no error in admitting the disputed testimony over
    Jayson’s objections.
    Second, Jayson argues that the testimony of Bothern and
    Lecher lacked foundation and relevance because of what he
    claims are admissions that they could not offer opinions about
    Jayson’s parental fitness or the best interests of the children.
    But even if such admissions exist, it does not follow that
    Bothern and Lecher lacked knowledge relevant to issues that
    the district court had to resolve in this case. Whether in the
    form of opinions or personal observations, the testimony of
    Bothern and Lecher was relevant to custody and parenting
    time because it painted a picture of the children’s time and
    ­relationship with Jayson, the children’s perception of it, and the
    effects it was having on them.
    As for foundation, the testimony of Bothern and Lecher was
    based on their personal knowledge. They both spent time with
    the children in therapy over the course of months or years,
    with Bothern spending some therapeutic time with Jayson,
    and as explained above, the therapy itself necessarily focused
    on Jayson’s parenting time and his relationship with the chil-
    dren. Therefore, we are not persuaded that the district court
    abused its discretion in admitting the therapists’ testimony over
    Jayson’s relevance and foundation objections.
    We proceed to consider Jayson’s remaining claims in light of
    this admissible evidence.
    Child Custody.
    [15] Jayson challenges the district court’s determination
    that custody of the children should remain with Kimberly.
    This matter has come to us by way of modification proceed-
    ings. 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,
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    305 Neb. 615, 
    941 N.W.2d 501
     (2020). Jayson does not argue
    that there has been a material change in circumstances, but
    argues that modification of the decree to award him custody is
    required under the parental preference principle.
    The parental preference principle establishes a presumption
    that the best interests of a minor child are served by plac-
    ing custody with his or her parent. See In re Guardianship of
    K.R., 
    304 Neb. 1
    , 
    932 N.W.2d 737
     (2019). We agree that the
    parental preference principle governs our analysis. But based
    on this record and our standard of review, we conclude that the
    parental preference principle did not require the district court
    to place the children with Jayson.
    The parental preference principle applies to child custody
    controversies between a biological or adoptive parent on one
    hand and one who is neither a biological or adoptive par-
    ent on the other. See In re Guardianship of D.J., 
    268 Neb. 239
    , 
    682 N.W.2d 238
     (2004). In those cases, the parent has a
    superior right to and is entitled to custody of the child unless
    the third party negates the parental preference principle. See
    
    id.
     On many occasions, we have recognized that the parental
    preference principle can be overcome by a showing that the
    parent is unfit or has forfeited the right to custody. See In re
    Guardianship of K.R., 
    supra
     (collecting cases). In addition, in
    Windham v. Griffin, 
    295 Neb. 279
    , 288, 
    887 N.W.2d 710
    , 717
    (2016), we indicated that the preference could be “negated by a
    demonstration that the best interests of the child lie elsewhere.”
    We cautioned, however, that we viewed cases in which the best
    interests of the child defeated the parental preference principle
    as “exceptional” and further explained that a third party could
    not overcome the parental preference principle merely by
    showing that he or she would be able to provide more ameni-
    ties for the child. 
    Id. at 290
    , 887 N.W.2d at 718.
    In this case, the district court concluded that the parental
    preference principle applied, but found that Kimberly was
    nonetheless entitled to custody. The district court found the
    parental preference principle was overcome because Jayson
    was unfit to have custody of the children, he had forfeited his
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    right to custody, and it was in the best interests of the children
    for Kimberly to have custody.
    Jayson argues that the district court erred by finding that he
    was unfit or forfeited his right to custody. As for the district
    court’s conclusion that it was in the children’s best interests for
    Kimberly to have custody, he argues that the parental prefer-
    ence principle cannot be overcome by a showing that it is in
    the children’s best interests for someone other than the parent
    to have custody and urges us to overrule Windham v. Griffin,
    
    supra,
     to the extent it holds otherwise.
    We find that it is not necessary for us to consider whether
    Jayson forfeited his right to custody or whether the parental
    preference principle was overcome by a showing that it was in
    the children’s best interests for Kimberly to have custody. Even
    if Jayson’s arguments on those points have merit, the parental
    preference principle would still be negated by a showing that
    Jayson is unfit. And, as we will explain, viewing the admis-
    sible evidence through the lens of the district court’s credibility
    determinations, we cannot say that the district court abused its
    discretion in finding Jayson was unfit.
    [16] Parental unfitness means a personal deficiency or inca-
    pacity which has prevented, or will probably prevent, perform­
    ance of a reasonable parental obligation in child rearing and
    which has caused, or probably will result in, detriment to a
    child’s well-being. In re Guardianship of K.R., 
    304 Neb. 1
    , 
    932 N.W.2d 737
     (2019). Evidence of unfitness should be focused
    upon a parent’s ability to care for a child, and not any other
    moral failings a parent may have. In re Interest of Lakota Z. &
    Jacob H., 
    282 Neb. 584
    , 
    804 N.W.2d 174
     (2011). Evidence of
    a parent’s past failings is pertinent only insofar as it suggests
    present or future faults. 
    Id.
     Parental unfitness must be shown
    by clear and convincing evidence. See In re Guardianship of
    D.J., supra.
    The district court heard evidence that under Jayson’s care,
    the children’s physical well-being was at risk. This included
    evidence of poor living conditions. Jayson had acknowledged
    that his earlier residence was in disrepair and had issues
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    with mice and insect infestations. Kimberly testified that at
    the time Jayson lived there, she found cockroaches in M.T.’s
    school backpack. There was evidence that at Jayson’s next resi-
    dence with Wallen, similar problems persisted, including mice
    and a months-long lice issue. In September 2017, the children
    left Jayson’s residence in the middle of the night due to an odor
    of urine, a moldy hole in the wall, and the presence of ants in
    their bedroom. While Jayson insists his home was in a much
    better condition than portrayed by Kimberly’s witnesses, he
    passed up the opportunity to have a third party, the guardian
    ad litem, visit it.
    Other evidence showed a risk to the children’s safety.
    Kimberly testified that the children often returned from
    Jayson’s home with animal bites or scratches. During the year
    before trial, the children routinely returned from Jayson’s
    house hungry, dirty, and dressed in clothing that was either the
    wrong size or inappropriate for the weather. At that time, M.T.
    reported that she had been punished by losing a meal and told
    Lecher that she did not have enough food to eat when she was
    at Jayson’s house. During the year preceding trial, M.T. also
    reported that for “‘fun,’” Jayson had shot the children with a
    pellet gun. Also during the year before trial, M.T. reported the
    presence of drugs and alcohol in Jayson’s home, which she
    was able to access, and said she had observed Jayson intoxi-
    cated, when the decree prohibited Jayson from consuming
    alcohol within 24 hours prior to or during his parenting time.
    Kimberly testified that Jayson often transported the children
    without proper car restraints, and during the year before trial,
    M.T. also reported that Jayson had transported her without
    a seatbelt and had texted while driving. Evidence was also
    introduced that Jayson did not supervise the children prop-
    erly, including during swimming outings. When the children
    were returned from swimming outings with Jayson, Kimberly
    testified that they were nearly always sunburned. Sometimes
    Jayson entrusted M.T. with supervising the younger children,
    leaving them home alone, when, according to Bothern and
    Lecher, M.T. was not developmentally ready to supervise
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    others. According to Lecher, this posed an initial safety risk to
    the children and also could diminish M.T.’s ability to trust her
    caregivers, posing a future safety risk.
    In addition to issues of physical health and safety, there was
    evidence that Jayson had not routinely contributed financially
    to the children’s care. Until these proceedings, Jayson was
    not obligated to pay child support, but there was no evidence
    that he had otherwise contributed to their maintenance aside
    from childcare expenses he paid after contempt proceedings
    and what was incidental to his limited and inconsistent parent-
    ing time.
    The record in this case also contains evidence that Jayson’s
    parental shortcomings have been or probably will be detrimen-
    tal to his children’s mental and emotional well-being. At the
    time of trial, both M.T. and R.T. were undergoing treatment
    for adjustment disorders. An atmosphere of safety and stabili-
    zation was part of their treatment, but their experience under
    Jayson’s care, described above, was inconsistent with these
    mental health needs. And in assessing parental fitness, we have
    considered a parent’s ability to meet the particular needs of a
    child. See In re Guardianship of K.R., 
    304 Neb. 1
    , 
    932 N.W.2d 737
     (2019).
    Other evidence also showed that Jayson posed a detriment
    to the children’s mental and emotional well-being. Contrary
    to the initial decree, in 2015 and 2016, Jayson was inconsist­
    ent about giving M.T. antidepressant medication she needed
    regularly to modulate her moods, emotions, and behavior,
    despite reminders from M.T. herself. Jayson’s “boys will be
    boys” response to M.T.’s concerns about older boys at his
    previous residence exposing themselves to her and touching
    the genitals of a young girl in the home could be understood
    as dismissive. And Jayson consistently put the children, espe-
    cially M.T., in a position that required them to choose whether
    they were loyal to him or to Kimberly. He asked them to
    keep the goings-on at his home “secret,” and if the children
    did disclose such information, they would be in trouble
    with Jayson. This caused internal struggles for M.T. Fearing
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    discovery and punishment, M.T. reported that she did not feel
    free to call Kimberly if she was scared or unhappy at Jayson’s
    house. In June 2017, CPS and the police came to the home
    after Jayson left the children home alone, and due to Jayson’s
    anger with M.T. over the situation, M.T. lied about the mat-
    ter. Lecher observed that M.T. had an “attachment strain” as
    a result of being left home alone. Jayson caused further emo-
    tional turmoil for M.T. by telling the children to misbehave
    for Kimberly.
    Jayson’s detrimental effect on the children’s mental and
    emotional health was evident when his visitation was tem-
    porarily reduced. Kimberly testified that when visits with
    Jayson were scaled back, the children’s behavior and school
    performance improved, and Lecher testified that upon Jayson’s
    reduced visitation, M.T. became less stressed, more stable in
    her mood, able to focus more, and more open about her feel-
    ings. M.T. was also happier with her relationship with Jayson,
    whom she loved, but she questioned his ability to provide for
    her safety and understand her needs.
    Despite Jayson’s expressing intentions to improve as a par-
    ent, this history, along with other testimony, is evidence that at
    the time of trial, he did not have either the will or the capac-
    ity to do so. According to Bothern, she observed that Jayson
    frequently did not follow through with her recommendations,
    even though he was easy to work with in the clinic. This may
    not, on its own, demonstrate unfitness, but it could reasonably
    be understood as demonstrating a reluctance or inability to
    change his parenting practices.
    We have reviewed the testimony of Jayson and Wallen,
    in which they either denied or explained the circumstances
    above and generally cast a positive light on Jayson as a par-
    ent. But the district court’s order demonstrates that it did not
    find this testimony to be credible. In child custody cases,
    where the credible evidence is in conflict on a material issue
    of fact, the appellate court considers, and may give weight to,
    the fact that the trial judge heard and observed the witnesses
    and accepted one version of the facts rather than another.
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    Dooling v. Dooling, 
    303 Neb. 494
    , 
    930 N.W.2d 481
     (2019).
    Because this court is not positioned to pass on the credibility
    of the witnesses like the district court was, we defer to the
    district court’s credibility determinations in our assessment of
    the facts.
    Jayson argues that this case is “nothing like notable paren-
    tal preference cases in which the appellate court affirmed the
    lower court’s decision to award custody . . . of a child to a
    nonparent.” Brief for appellant at 24 (emphasis in original),
    citing In re Guardianship of K.R., 
    304 Neb. 1
    , 
    932 N.W.2d 737
    (2019); State on behalf of Lilliana L. v. Hugo C., 
    26 Neb. App. 923
    , 
    924 N.W.2d 743
     (2019); and State on behalf of Combs v.
    O’Neal, 
    11 Neb. App. 890
    , 
    662 N.W.2d 231
     (2003). But the
    cases Jayson cites are as different from one another as they
    are from this one. And, even if the cases presented by Jayson
    shared some factual similarities with this case, our analysis
    would not depend on a fact-for-fact comparison.
    Taken alone, many of Jayson’s individual parental short-
    comings might not amount to unfitness. However, the parental
    fitness analysis is a fact-intensive inquiry. See In re Interest of
    Noah C., 
    306 Neb. 359
    , 
    945 N.W.2d 143
     (2020). Accordingly,
    we must review the record in this case in totality, rather than
    focusing on whether any one piece of evidence, viewed in
    isolation, demonstrates unfitness. Having done so in this case,
    and given the deference we owe to the trial court’s credibility
    determinations, we cannot say that the district court abused its
    discretion in finding Jayson unfit by clear and convincing evi-
    dence and ordering that custody remain with Kimberly.
    Parenting Time.
    Jayson asserts that even if the district court did not err in
    its custody determination, it erred in modifying his parenting
    time. The district court modified Jayson’s unsupervised parent-
    ing time to every other week from Thursday afternoon through
    Sunday afternoon and designated holidays, plus summer visita-
    tion. Under the initial decree, Jayson’s unsupervised parent-
    ing time had been previously scheduled for Friday evenings
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    through Monday mornings and Wednesday evenings through
    Thursday mornings.
    [17-20] Visitation rights established by a marital dissolution
    decree may be modified upon a showing of a material change
    of circumstances affecting the best interests of the children.
    VanSkiver v. VanSkiver, 
    303 Neb. 664
    , 
    930 N.W.2d 569
     (2019).
    A material change in circumstances means the occurrence of
    something which, had it been known to the dissolution court at
    the time of the initial decree, would have persuaded the court
    to decree differently. 
    Id.
     The party seeking to modify visitation
    has the burden to show a material change in circumstances
    affecting the best interests of the child. 
    Id.
     The best interests
    of the children are primary and paramount considerations in
    determining and modifying visitation rights. 
    Id.
    Jayson argues the district court could only modify his parent-
    ing time if Kimberly proved that between the December 2015
    decree and the modification proceedings, a material change of
    circumstances had taken place and Kimberly failed to prove
    such a change. We disagree. Evidence during this time period
    showed that Jayson was inconsistent in exercising his parent-
    ing time, and when he did, it negatively affected the children’s
    mental and physical well-being. There was also testimony that
    the children had a therapeutic need for stability and consist­
    ency, which Jayson was not able to provide. Thus, it was not an
    abuse of discretion for the district court to find there had been
    a material change of circumstances regarding parenting time
    that affected the best interests of the children.
    Jayson also argues the district court abused its discretion in
    modifying Jayson’s parenting time, because the district court
    modified it to a “level below” the parenting time Kimberly
    requested in her answer and cross-complaint. Brief for appel-
    lant at 32. The parenting time ordered by the district court did
    differ from that requested by Kimberly, but it is not so clear
    to us that it was a “level below,” as Jayson contends. The
    district court’s parenting time order granted Jayson less time
    with the children than Kimberly requested, but it also granted
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    Jayson unsupervised time when Kimberly requested that it
    be “fully supervised.” In any event, we are not convinced by
    Jayson’s position.
    Jayson argues that Eric H. v. Ashley H., 
    302 Neb. 786
    , 
    925 N.W.2d 81
     (2019), precluded the district court from reducing
    Jayson’s parenting time below that requested by Kimberly. In
    that case, we held that a district court did not abuse its discre-
    tion by concluding that sexual abuse by the child’s stepfather
    was the only material change of circumstances alleged in a
    complaint to modify and therefore within the scope of the
    modification proceeding. Jayson makes no argument here that
    Kimberly relied on evidence outside the scope of her pleadings
    to demonstrate a material change of circumstances.
    Kimberly’s answer and cross-complaint alleged several
    material changes in circumstances affecting the children’s best
    interests and requested a change to the parenting time schedule.
    Jayson was on notice that parenting time was at issue, and he
    had the opportunity to put on any and all evidence pertinent
    to the parenting time schedule. See Fetherkile v. Fetherkile,
    
    299 Neb. 76
    , 
    907 N.W.2d 275
     (2018) (due process requires
    reasonable notice and opportunity to be heard appropriate to
    nature of proceeding and character of rights to be affected).
    We conclude that the district court did not exceed the scope of
    the pleadings or rule without notice to Jayson in modifying his
    parenting time.
    Child Support.
    Jayson argues that the district court erred in modifying the
    decree to impose a child support obligation on him, when none
    existed before. Jayson does not dispute the district court’s cal-
    culation of the amount of child support or that Kimberly, as a
    third party, could be entitled to child support. See Neb. Ct. R.
    § 4-222 (rev. 2011) (if child resides with third party, court shall
    order each parent to pay to third party his or her respective
    amount of child support). Instead, Jayson contends that there
    was no material change in circumstances to justify any modifi-
    cation to his child support obligation.
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    [21] A party seeking to modify a child support order must
    show a material change in circumstances that (1) occurred
    subsequent to the entry of the original decree or previous modi-
    fication and (2) was not contemplated when the decree was
    entered. Hotz v. Hotz, 
    301 Neb. 102
    , 
    917 N.W.2d 467
     (2018).
    According to Jayson, there was no material change in circum-
    stances as to child support because there was no evidence that
    his income or the children’s expenses had increased since the
    original decree and because custody remained with Kimberly.
    We find no merit to this argument.
    Although Jayson asserts that there was no change in cus-
    tody between the original decree and the order modifying
    it, a closer analysis reveals a more complicated picture.
    The initial decree provided that Kimberly had physical and
    legal custody of the children. The decree scheduled Jayson’s
    parenting time for Friday evenings through Monday morn-
    ings and Wednesday evenings through Thursday mornings.
    Supervised parenting time with Erica was by arrangement.
    Under this schedule, the amount of time the children were to
    spend with Jayson was nearly equal to the amount of time the
    children were to spend with Kimberly. In fact, this schedule
    provided for the children to spend more nights with Jayson
    than with Kimberly. And we have previously explained that
    a trial court can effectively establish a joint physical custody
    arrangement by awarding nearly equal parenting time even
    if it uses a different label to describe the arrangement. See
    State on behalf of Kaaden S. v. Jeffery T., 
    303 Neb. 933
    , 
    932 N.W.2d 692
     (2019). See, also, 
    Neb. Rev. Stat. § 43-2922
    (20)
    (Reissue 2016) (defining physical custody as authority and
    responsibility regarding child’s place of residence and exer-
    tion of continuous parenting time for significant periods of
    time). In the order modifying the decree, however, the district
    court reduced Jayson’s parenting time to every other week
    from Thursday afternoon through Sunday afternoon and des-
    ignated holidays, with 4 weeks total during the summer. After
    the modification order, Jayson clearly did not have physical
    custody of the children.
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    Regardless of whether there was a change in custody,
    Kimberly’s regular time with the children increased signifi-
    cantly between the original and modified decrees. And even
    when Jayson’s blocks of summer parenting time are consid-
    ered, her overall time with the children was no longer roughly
    equivalent to Jayson’s. Under the modified decree, the children
    would spend more than twice as many nights with Kimberly
    than they would with Jayson. Further, Kimberly testified that
    the more time she had the children, the more expenses she
    incurred. This permanent change to Jayson’s parenting time
    and the corresponding increase in expenses for Kimberly were
    not contemplated at the time of the original decree, and we
    conclude that they amounted to a material change in circum-
    stances, which permitted modification of Jayson’s child sup-
    port obligation. But see Brodrick v. Baumgarten, 
    19 Neb. App. 228
    , 
    809 N.W.2d 799
     (2011) (finding temporary change to
    amount of parenting time did not amount to material change
    in circumstances).
    Attorney Fees.
    Jayson contends that the district court erred in declining to
    award him attorney fees. This argument is based on his posi-
    tion that he should have prevailed in this matter. Because we
    have found no merit to Jayson’s other claims, we conclude
    that the district court did not abuse its discretion in rejecting
    this one. See Noonan v. Noonan, 
    261 Neb. 552
    , 
    624 N.W.2d 314
     (2001).
    CONCLUSION
    For the reasons set forth above, we find no error on the part
    of the district court and affirm.
    Affirmed.