                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                           STATE ON BEHALF OF JAYDEN G. V. JUSTIN B.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


           STATE OF NEBRASKA ON BEHALF OF JAYDEN G., A MINOR CHILD, APPELLEE,
                                                 V.

                JUSTIN B., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT,
                      AND TARA G., THIRD-PARTY DEFENDANT, APPELLEE.



                           Filed November 22, 2016.      No. A-16-334.


       Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed.
       Matt Catlett, of Law Office of Matt Catlett, for appellant.
       Vanessa J. Gordon and Ryan David Patrick, of Gordon Law, L.L.C., for appellee Tara G.


       INBODY and PIRTLE, Judges, and MCCORMACK, Retired Justice.
       INBODY, Judge.
                                       I. INTRODUCTION
       Justin B. appeals from an order of the district court for Lancaster County denying his
complaint for modification seeking sole legal and physical custody of the parties’ daughter, Jayden
G., and child support from Tara G. Justin also appeals the district court’s decision to: not award
him attorney fees; deny his pretrial motions to continue trial, for appointment of a Rule 706 expert,
for a Rule 35 examination of Jayden, and for appointment of a guardian ad litem for Jayden; and
deny his motion to alter or amend and motion for new trial.
                                  II. STATEMENT OF FACTS
       Justin and Tara, although never married, are the parents of Jayden, born September 2009.
On June 15, 2011, the Lancaster County District Court awarded Tara legal and physical custody
of Jayden. On July 22, 2015, Justin filed a complaint for modification seeking legal and physical



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custody of Jayden, claiming a material and substantial change in circumstances justified the
modification. Justin claimed Tara failed to ensure Jayden’s consistent school attendance;
maintained a filthy, cluttered, and unsuitable residence; operated a retail “vape shop” out of her
residence using “E-juice chemicals” and allowing various individuals into her residence; failed to
provide proper nutrition for Jayden; failed to pay a $900 judgment regarding child care; had
unstable personal relationships; allowed others to care for Jayden before offering Justin an
opportunity to care for her; failed to list Justin on records relating to Jayden; and was terminated
from previous employers.
        The case was set for trial. Prior to trial, Justin filed a motion to continue trial and motions
for an appointment of an expert to make a recommendation regarding Jayden’s best interests under
Neb. Rev. Stat. § 27-706 (Reissue 2008); an examination of Jayden’s mental and physical
condition under Neb. Ct. R. Disc. § 6-335; and an appointment of a guardian ad litem on behalf of
Jayden pursuant to Neb. Rev. Stat. § 42-358 (Reissue 2008). The district court denied the motions.
        The Lancaster County District Court held a trial on December 21, 2015. The trial court
heard testimony regarding Tara’s residence and Justin’s parenting time. Tara testified that she
resides in a 2-bedroom home in Tecumseh with Jayden, but previously resided in an apartment in
Lincoln with her ex-husband, Eric F. Tara testified she moved to Tecumseh to have family support,
to be closer to Justin’s mother, Tammy B.; father, Steve B.; and ex-stepmother, Roseanne B.; while
she finished her RN courses, and because of the schools for Jayden. Justin testified he resides in
Lincoln, has lived at the same residence for 8 years, has been employed with the same company
for 7 years, and illustrated his parenting time when both parties resided in Lincoln, including his
involvement in dropping off and picking up Jayden at school. Tara stated that prior to the move
from Lincoln to Tecumseh, Justin exercised most of his parenting time with Jayden at Tammy’s
home in Tecumseh. Tammy stated Justin would come down to her home once in a while before
Tara moved to Tecumseh and that now Justin would stay and exercise his parenting time at her
home. Justin also claimed he did not know Tara moved to Tecumseh until Jayden told him, and
that the move has diminished his parenting time with Jayden. Tara testified that when she moved
to Tecumseh, she volunteered to “drive [Jayden] up” and would be willing to address the
geographical distance Justin had to travel to exercise his parenting time.
        The court also heard testimony regarding Tara’s home. Justin testified that he has observed
Tara’s residence with “stuff all over the floor,” that he “could barely walk,” and that “it was kind
of unclean.” Tara provided the trial court with pictures of her residence. Steve testified Tara’s
residence is “usually fairly picked up.”
        The trial court also heard testimony regarding Tara and Jayden’s relationship with Eric.
Tara testified she had been married, and divorced, to Eric twice. Justin, Tammy, and Steve testified
Jayden will call Eric, “dad,” “daddy,” or “Daddy Eric.” Tara testified she did not encourage Jayden
to refer to Eric as “father,” “daddy,” or “dad.”
        Moreover, the court heard testimony regarding Jayden’s education and school attendance.
Tara testified Jayden was absent from school for 7½ days throughout the entire school year. Tara
also testified she has not received any communication from the school that Jayden is in any form
of referral program for educational neglect or truancy, or that Jayden’s teachers have expressed
any concern about her behavior. Tara indicated Jayden excels in school work, is at the top of her



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class, is extremely intelligent, and takes advanced courses. Justin testified Jayden does very well
in school and that she is very smart.
         The court also heard testimony regarding Tara’s employment. Tara testified she operates
an establishment selling electronic cigarette supplies. Tara also testified the only customers that
would come to her home to purchase supplies were her friends, but someone might tag along with
the friend. Tara also testified she was previously employed by Correct Care Solution and Belle
Terrace as an LPN, but was terminated.
         Further, the trial court heard testimony regarding Tara listing Justin as a contact for Jayden,
Justin’s ability to use his phone at work, and the type of arrangements Tara would make for others
to care for Jayden. Tara testified she previously listed Eric as Jayden’s parent for an after school
program form, even though he was just a step-parent. Tara admitted Justin was not listed on the
document, but stated she did not list Justin because she believed he was not going to be able to
answer his phone at work. Tara testified Justin cannot take his phone into his work building and
that there are times she texts him to assist with pick-up, drop-off, or watching Jayden, and that
several hours go by without a response. Tammy also testified Justin cannot carry his phone at
work. Tara stated that by the time Justin responds, she generally has already made other
arrangements for Jayden’s care. Tara also stated Justin was listed as being able to pick up Jayden
from the after school program. Tara additionally testified Roseanne would care for Jayden
regularly.
         The court also heard testimony regarding Jayden’s health and hygiene. Justin claimed
Jayden is getting “a little bit heavier” and her clothes are getting tight. Further, Justin claimed
Jayden’s hygiene was poor and “she’s reeked pretty good a few times, like a teenage boy.” Tammy
also indicated Jayden was chubbier and her clothes were a “getting a little bit too tight on her.”
Tammy also claimed Jayden “had some really stinky body odor” and expressed other concerns
about her appearance. However, Roseanne indicated she has never had any concern for Jayden’s
hygiene, cleanliness, or eating habits. Steve also stated he did not have any concern about Jayden’s
cleanliness or hygiene.
         The court also heard testimony from Justin and Tammy regarding Jayden’s concerning
behavior. Justin claimed Jayden has been acting aggressively towards him, that she will not listen
to him, and that she will randomly hit him. However, Justin stated he never notified Tara of his
concerns regarding Jayden’s behavior.
         The trial court determined Justin failed to present sufficient evidence to show a material
change of circumstances existed to support a modification of custody and parenting time, and
declined to change custody, parenting time, and child support, or award attorney fees.
                                 III. ASSIGNMENTS OF ERROR
        On appeal, Justin’s assignments of error, consolidated and restated, are that the trial court
abused its discretion in: (1) not awarding custody of Jayden to Justin and not adopting Justin’s
parenting plan; (2) not modifying child support; (3) not awarding Justin attorney fees; (4) denying
Justin’s pretrial motions to continue trial, appointment of a Rule 706 expert, for a Rule 35
examination of Jayden, and for an appointment of a guardian ad litem for Jayden; and (5) denying
Justin’s motion to alter or amend the judgment and for a new trial.



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                                   IV. STANDARD OF REVIEW
         Child custody determinations are matters initially entrusted to the discretion of the trial
court, and although reviewed de novo on the record, the trial court’s determination will normally
be affirmed absent an abuse of discretion. State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68,
871 N.W.2d 230 (2015). See also, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). The
same standard applies to the modification of child support. Johnson v. Johnson, 290 Neb. 838, 862
N.W.2d 740 (2015).
         The district court’s decision on a request for attorney fees is reviewed de novo on the record
and will be affirmed in the absence of an abuse of discretion. Carter v. Carter, 276 Neb. 840, 758
N.W.2d 1 (2008). This standard of review applies regardless of whether the court awarded or
denied attorney fees. See Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 (2013).
         A motion for continuance is addressed to the discretion of the trial court, whose ruling will
not be disturbed on appeal in the absence of an abuse of discretion. Breci v. St. Paul Mercury Ins.
Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
         The granting or denying of a motion to compel a physical or mental examination of a party
is grounded in the discretion of the trial court; absent an abuse of that discretion, the trial court’s
ruling must stand. Thynne v. City of Omaha, 217 Neb. 654, 351 N.W.2d 54 (1984); see also, Coffey
v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003).
         The appointment of a guardian ad litem for a child is a matter within the discretion of the
trial court. Robinson v. Robinson, 236 Neb. 879, 464 N.W.2d 193 (1991).
         An appellate court reviews a denial of a motion for new trial or, in the alternative, to alter
or amend the judgment, for an abuse of discretion. Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d
878 (2016).
         In a review de novo on the record, an appellate court reappraises the evidence as presented
by the record and reaches its own independent conclusions on the matters at issue. Freeman v.
Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013). When evidence is in conflict, 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. Id.
         An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Schrag v. Spear, supra. A judicial abuse of discretion requires that the reasons or rulings
of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right
and a just result. Id.
                                            V. ANALYSIS
                                     1. CUSTODY MODIFICATION
        Justin argues the trial court abused its discretion when it denied his request for physical
and legal custody of Jayden because there was a material change in circumstances to show that
Tara was unfit to retain custody. Justin argued the evidence at trial indicated that Tara: had unstable
employment and personal relationships; operated a questionable and unsafe home business;
unjustifiably moved with Jayden to Tecumseh; maintained an unclean residence; caused it so




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Jayden had a large number of unexcused absences from school; failed to comply with court orders
regarding listing both parents’ names on Jayden’s enrollment records; and allowed Jayden to have
poor hygiene, gain weight, wear ill-fitting clothes, and act with bad behavior.
        A child custody modification case requires the party seeking modification must: (1) show
that a material change in circumstances has occurred after the entry of the previous custody order
and affecting the best interests of the child; and (2) prove that changing the child’s custody is in
the child’s best interests. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). A material
change in circumstances means the occurrence of something which, had it been known at the time
of the initial decree, would have persuaded the court to decree differently. State on behalf of Jakai
C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015). The party seeking modification of child
custody bears the burden of showing as an initial matter that there has been a change in
circumstances. Id.
        The child’s best interests requires a parenting arrangement and plan providing for a child’s
safety, emotional growth, health, stability, physical care, and regular and continuous school
attendance and progress. Neb. Rev. Stat. § 43-2923(1) (Cum. Supp. 2014). Moreover, § 43-2923
sets forth a non-exhaustive factor list to consider in determining the child’s best interests in regard
to custody. Such factors include: the child’s relationship with each parent; the child’s desires; the
child’s general health and well-being; and credible evidence of abuse inflicted on the child by any
family or household member. In addition to the “best interests” factors provided in § 43-2923, a
court making a child custody determination may consider: the moral fitness of the child’s parents,
including the parents’ sexual conduct; respective environments offered by each parent; the
emotional relationship between the child and parents; the age, sex, and health of the child and
parents; the effect on the child as a result of continuing or disrupting an existing relationship; the
attitude and stability of each parent’s character; and the parental capacity to provide physical care
and satisfy the educational needs of the child. Schrag v. Spear, supra.
        The trial court determined Justin did not present sufficient evidence to show a material
change of circumstances existed to support a modification of custody and parenting time. Based
on our de novo review, we find no abuse of discretion in the trial court’s determination that there
was not a material change in circumstances that justified granting Justin legal and physical custody
of Jayden.
        The trial court was presented with conflicting testimony regarding whether a custody
change would be in Jayden’s best interests. The trial court heard conflicting testimony regarding
the care, cleanliness, hygiene, and health of Jayden, and the cleanliness and upkeep of Tara’s home.
Further, the court heard testimony that Justin is able to exercise his parental time with Jayden and
he currently chooses to exercise that time at his mother’s residence in Tecumseh. Tara indicated
she was open to arranging a more suitable geographic location to assist with Justin exercising his
parenting time. Moreover, the court heard testimony that Justin is unable to use his phone during
the workday and that Tara is able to make other arrangements to care for Jayden if she is unable.
Tara also indicated she has family to support her in Tecumseh, including Justin’s mother, father,
and ex-stepmother, who all still play an active role in Jayden’s life.
        The court heard testimony that despite Jayden having a number of school absences, Tara
has not received any communication from Jayden’s teachers or the school expressing concern



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about her behavior, or that Jayden is in a referral program for educational neglect or truancy. The
testimony provided that Jayden is very smart, does very well in school, and is at the top of her
class.
         As the trial court was able to hear and observe the witnesses and accepted one version of
the facts rather than another, upon our de novo review, we conclude the trial court did not abuse
its discretion when it denied Justin’s request for physical and legal custody of Jayden because there
was no material change in circumstances.
                                 2. CHILD SUPPORT MODIFICATION
        On appeal, Justin appeals the trial court’s order concerning child support modification.
Essentially, Justin argues the trial court erred in ordering him to pay child support because the
court erred in denying him sole legal and physical custody of Jayden. Given our resolution of
Justin’s first assignment of error regarding Jayden’s custody, we find that the trial court did not err
in denying Justin’s request for child support.
                                   3. DENIAL OF ATTORNEY FEES
       Justin also claims the trial court abused its discretion in not awarding him attorney fees.
Similar to the assignment of error regarding child support, Justin argues the trial court erred not
awarding him attorney fees because the court erred in denying him sole legal and physical custody
of Jayden. Based on our conclusion regarding Justin’s assignment of error concerning Jayden’s
custody, we find that the trial court did not err in not awarding Justin attorney fees.
                                       4. PRETRIAL MOTIONS
                          (a) Motion for Appointment of Rule 706 Expert
        Justin argues the trial court abused its discretion in denying his motion for an appointment
of a Rule 706 expert to make findings and recommendations regarding Jayden’s best interests.
        It is within the trial court’s discretion whether to appoint an expert witness. Neb. Rev. Stat.
§ 27-706(1). Section 27-706(1) states that “[t]he judge may on his own motion or on the motion
of any party enter an order to show why expert witnesses should not be appointed. . . .” (Emphasis
added.)
        There is no indication as to why the trial court needed the assistance of a Rule 706 expert
to make findings and recommendations regarding Jayden’s best interests. The trial court has the
ultimate ability to determine a child’s best interests, as it is able to hear testimony, to receive
exhibits, and to thoughtfully weigh and consider the evidence before it regarding the best interests
of a child. As discussed above, the trial court is given a large quantity of factors to review in its
consideration for a child’s best interests. As such, the trial court did not abuse its discretion in
denying this request.
                                (b) Motion for Rule 35 Examination
      Justin also argues the trial court abused its discretion in denying his motion for a Rule 35
examination of Jayden.




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       Neb. Ct. R. Disc. § 6-335, also known as Rule 35, states:

       When the mental or physical condition . . . of a party, or of a person in the custody or under
       the legal control of a party, is in controversy, the court in which the action is pending may
       order the party to submit to a physical or mental examination by one or more physicians,
       or other persons licensed or certified under the laws to engage in a health profession, or to
       produce for examination the person in his or her custody or legal control. The order may
       be made only on motion for good cause shown and upon notice to the person to be
       examined and to all parties and shall specify the time, place, manner, conditions, and scope
       of the examination and the person or persons by whom it is to be made.

(Emphasis added.)
        The Nebraska Supreme Court has determined that the “in controversy” and “good cause”
requirements must be fulfilled by a movant’s affirmative showing that the physical or mental
condition to be verified by the requested examination is actually controverted and that good cause
exists for the examination’s order. Cty. of Hall ex rel. Tejral v. Antonson, 231 Neb. 764, 437
N.W.2d 813 (1989). Mere conclusory allegations of pleadings do not provide a satisfactory
threshold to order the examination. Id.
        In this instance, there is no indication that Jayden’s mental or physical health is in
controversy. There was no testimony regarding Jayden’s mental or physical health beyond
concerns that she might be overweight, smell on occasion, or throw tantrums or have occasional
behavior problems. Such concerns are not “in controversy,” as it not unusual for a child at Jayden’s
age to exhibit such occasional issues. There was no good cause for ordering such examinations
and, therefore, the trial court did not abuse its discretion in denying this request.
                        (c) Motion for Appointment of Guardian Ad Litem
        Justin argues the trial court abused its discretion in denying his motion for an appointment
of a guardian ad litem for Jayden.
        Neb. Rev. Stat. § 42-358 authorizes a court to appoint an attorney or guardian ad litem to
protect the child’s interests of and allows the attorney or guardian ad litem to recover his or her
fees. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004); see also, Mathews v. Mathews,
267 Neb. 604, 676 N.W.2d 42 (2004). The appointment of a guardian ad litem for a child is a
matter within the discretion of the trial court. Robinson v. Robinson, 236 Neb. 879, 464 N.W.2d
193 (1991). Such an appointment may be done at the request of a party or upon the court’s own
motion. See Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 (1974).
        Once again, there was no testimony presented indicating the necessity for an appointment
of a guardian ad litem. Although it is paramount that the child’s interests be protected, in this
instance, there is no indication that Jayden’s interests or safety were in jeopardy and the trial court
appropriately denied the motion. Therefore, we determine the trial court did not abuse its discretion
in denying the motion for an appointment of a guardian ad litem.




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                                       VI. CONCLUSION
       On appeal, we find the trial court did not abuse its discretion in not awarding custody of
Jayden to Justin, in not modifying child support, and in not awarding Justin attorney fees.
Moreover, we find the trial court did not abuse its discretion in denying Justin’s pretrial motions
for appointment of a Rule 706 expert, for a Rule 35 examination of Jayden, and for an appointment
of a guardian ad litem for Jayden. As such, we additionally conclude that the trial court did not
abuse its discretion in denying Justin’s motion to continue trial, motion to alter or amend, and
motion for new trial.
                                                                                        AFFIRMED.




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