                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                  MALCHOW V. ARMBRUSTER


  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).


                            RAY D. MALCHOW, APPELLEE,
                                        V.
           WENDY J. ARMBRUSTER, ALSO KNOWN AS WENDY FREEBORN, APPELLANT.


                            Filed March 11, 2014.   No. A-13-235.


       Appeal from the District Court for Gage County: PAUL W. KORSLUND, Judge. Affirmed.
       Lyle J. Koenig, of Koenig Law Firm, for appellant.
       Chris A. Johnson, of Conway, Pauley & Johnson, P.C., for appellee.


       IRWIN, MOORE, and BISHOP, Judges.
       IRWIN, Judge.
                                     I. INTRODUCTION
         This appeal concerns a dispute over the custody and visitation schedule for Alexxandra
Malchow (Alexx), the minor child of Ray D. Malchow and Wendy J. Armbruster (Wendy). In
the proceedings below, Ray filed a motion to modify the parties’ visitation arrangement and
Wendy filed a motion to change custody of Alexx from Ray to Wendy. The district court granted
Ray’s request to modify the parties’ visitation arrangement and denied Wendy’s request to
change custody. Wendy appeals from this decision. On appeal, Wendy challenges certain
evidentiary rulings made by the district court; asserts that the court erred in modifying the
visitation schedule and not changing custody from Ray to Wendy; and disputes the court’s award
of attorney fees to Ray. For the reasons set forth below, we affirm the decision of the district
court in its entirety.
                                     II. BACKGROUND
      These proceedings involve Alexx, born in January 2002. Ray is Alexx’s biological father,
and Wendy is Alexx’s biological mother. Ray and Wendy have never been married.


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                                    1. PROCEDURAL HISTORY
         Alexx has lived with Ray since she was approximately 3 months old. Initially, this living
arrangement was the result of a voluntary agreement between the parties so that Wendy could
attend college and Ray’s mother could provide daycare for Alexx. However, in April 2004, the
district court entered a formal custody order concerning Alexx. In the order, the court found that
both Ray and Wendy were good parents who were capable of providing care to Alexx. The court
went on to find that given that Alexx had resided with Ray for the previous 2 years, it would be
in her best interests to remain in his custody subject to Wendy’s “liberal parenting time.” That
parenting time was to include every other weekend, specified holidays, and 6 weeks during the
summer.
         In March 2006, the district court entered an order modifying the April 2004 custody
order. This subsequent order is not included in our record, but apparently, the order altered only
the parties’ visitation schedule by awarding Wendy additional visitation time. Alexx remained in
the custody of Ray.
         On March 3, 2011, Ray filed a complaint to modify the prior custody and visitation order.
In the complaint, Ray alleged that a material change of circumstances had occurred since the
entry of the March 2006 order. Specifically, he alleged that during Alexx’s visitations with
Wendy, Wendy was manipulative and was attempting to undermine Alexx’s relationship with
Ray and with Alexx’s therapist. Ray went on to allege that Wendy’s behaviors were causing
Alexx to suffer from “adverse health effects.” Ray requested that Wendy’s visitation time with
Alexx be restricted or supervised.
         Also on March 3, 2011, Ray filed a motion requesting an ex parte order restricting
Wendy’s visitation time with Alexx. Attached to the affidavit was a letter from Alexx’s therapist,
Karen Sharer-Mohatt. Ray’s motion is not included in our record, but apparently, the district
court granted Ray’s request and entered an ex parte order permitting only supervised visitation
time between Wendy and Alexx pending a hearing.
         On March 24, 2011, Wendy filed an answer and cross-complaint requesting that she be
awarded custody of Alexx. Wendy denied Ray’s assertions regarding her behavior during visits
with Alexx. In addition, she alleged that Ray and his wife were actively interfering with her
relationship with Alexx and that it would be in Alexx’s best interests to reside with her on a
permanent basis. Wendy also filed a motion to vacate the ex parte order and a motion requesting
the court to appoint an expert to conduct a custody evaluation.
         A hearing was held on March 31, 2011, concerning the previously entered ex parte order
and concerning Wendy’s motion for a custody evaluation. After the hearing, the district court
entered an order reinstating Wendy’s parenting time with Alexx. The court did indicate that
during both parties’ time with Alexx, they were not to “discuss or inquire of the minor child
about activities in which she is involved with the other parent, or ask the child to choose between
activities with one parent or the other.” The court also appointed Alexx her own attorney for the
custody proceedings and postponed its decision about the custody evaluation until Alexx’s
attorney could make an informed recommendation on the matter. At some point in time after the
entry of this order, however, the district court apparently denied Wendy’s request for a custody
evaluation.



                                               -2-
         Prior to trial, Wendy repeatedly objected to Sharer-Mohatt’s testifying. Wendy argued
that it was not fair that Alexx’s therapist could testify when the court had denied her request for
an independent mental health professional to conduct a custody evaluation. In addition, Wendy
objected to Sharer-Mohatt’s testimony on the basis that she was not qualified to offer expert
testimony. The court denied both of Wendy’s motions and permitted Sharer-Mohatt to testify
concerning her observations and treatment of Alexx and her opinion as to whether Wendy’s
visitation time with Alexx should be supervised.
         In July 2012, trial began on Ray’s complaint to modify Wendy’s visitation time and on
Wendy’s complaint to modify custody. The trial continued in October 2012. At the trial, Ray and
Wendy each testified about their relationship with Alexx and about their current circumstances.
In addition, both Ray and Wendy offered other evidence, including the testimony of
Sharer-Mohatt, which concerned their parenting abilities and their relationships with Alexx.
                                       2. RAY’S TESTIMONY
         At the time of the modification trial, Ray was living in Beatrice, Nebraska. Ray had been
married for 7 years, and he and his wife had a daughter together. Ray testified that he currently
works full time and that the exact hours he works in any given day or week may vary.
         Ray testified that Alexx has been living with him since she was approximately 3 months
old. He indicated that in the 2 or 3 years preceding his filing of the complaint to modify Wendy’s
visitation time, he had become increasingly concerned about Alexx’s relationship with Wendy.
Specifically, Ray testified that Alexx was often upset about things that Wendy was saying to her
and that Alexx felt like Wendy was pressuring Alexx to live with Wendy at her home in Kansas.
Ray indicated that Alexx would “have fits where she would cry and just get mad at everybody,
lash out at people for no reason.” Alexx would also “start itching very profusely in areas where
she would get red and raw.”
         Because of Ray’s concerns about Alexx’s behavior after her contact with Wendy, Ray
contacted a psychologist to provide counseling for Alexx. Alexx started seeing Sharer-Mohatt in
November 2009. Since that time, Alexx has seen Sharer-Mohatt approximately once per week.
         Ray also began monitoring Alexx’s telephone conversations with Wendy. During his
monitoring of the telephone calls, he has heard Wendy tell Alexx that Alexx chooses to spend
time engaging in extracurricular activities, like participating in horse shows, rather than spending
time with Wendy and Wendy’s family. He also overheard Wendy tell Alexx, “You don’t love
me.” These exchanges hurt Alexx’s feelings, and she would begin to cry while on the telephone.
Ray also heard Wendy continually pressure Alexx to come and live with her, even though it was
obvious that such conversations were upsetting to Alexx and were making her uncomfortable. At
some point after Alexx began counseling, Ray also began recording Alexx’s telephone
conversations with Wendy so that Sharer-Mohatt could listen to the exchanges and offer advice.
         Ray testified that after the district court entered the ex parte order temporarily suspending
Wendy’s unsupervised visitations with Alexx in March 2011, Alexx’s behavior improved. He
testified that Alexx “stopped itching” and that she stopped “throw[ing] fits.” Ray indicated that
he believed Alexx was happy during this time period and that there was “a weight lifted off of
her shoulders.” However, Ray also testified that not long after Wendy’s visits with Alexx
resumed, Wendy continued to have inappropriate interactions with Alexx and Alexx continued to


                                                -3-
struggle with their relationship. Wendy pressured Alexx to live with her, and Alexx would come
home from visits with Wendy crying and angry and would scratch her skin.
        Ray testified that Wendy refuses to accept responsibility for any of Alexx’s problems or
feelings. Wendy blames Ray for everything that is going on with Alexx. Ray testified that he
wanted the district court to require Wendy to have only supervised visits with Alexx until such
time as Wendy has completed counseling to learn how her behavior is affecting Alexx. Ray
agreed that after Wendy has completed counseling, her visitation could return to the visitation
schedule established in the March 2006 modification order.
                                     3. WENDY’S TESTIMONY
         At the time of the modification trial, Wendy was living in Hays, Kansas. Wendy had been
married for 8 years, and she and her husband had two young daughters together.
         Wendy testified that Alexx is a very good student who enjoys participating in athletics,
including softball, dance, and horse shows. Wendy testified that she tries to be supportive of
Alexx’s interests by helping to coach her in softball, attending her dance recitals, and asking
about her horse shows. However, Wendy also testified that she is currently struggling in her
relationship with Alexx. Specifically, she indicated that Alexx is “so scared of making anybody
mad, and she is so scared to voice her opinion and be herself” that she and Alexx do not “have
much of a relationship at all.”
         Throughout her testimony, Wendy appeared to blame Ray for the problems with her
relationship with Alexx. She testified that Ray hinders their relationship and fails to keep her
informed about Alexx’s daily life. Wendy cited to numerous problems in her visitation time with
Alexx. She indicated that Ray is not flexible in permitting her to have additional time with
Alexx, even when such time is important to Alexx. Wendy testified that when she does come to
Nebraska to visit with Alexx or attend one of Alexx’s activities, she is not permitted to spend
much, if any, alone time with Alexx and is constantly accompanied by Ray’s wife and is
restricted on how long she can see Alexx. In addition, Wendy testified that Ray dictates when
Wendy and her family can go on vacation if they want Alexx to come. And, Wendy testified that
Ray told her that if she wanted Alexx at her wedding, she needed to plan the wedding for her
scheduled visitation time.
         In contrast, Wendy testified that she always tries to be flexible with Ray when he asks to
reschedule her visitation time or when he is trying to schedule a family vacation. Wendy testified
that she has done nothing wrong in terms of her relationship with Alexx. She testified that Ray’s
decision to record and physically monitor her telephone calls with Alexx has put pressure on
Alexx and on her relationship with Alexx because they are no longer free to discuss things with
each other. She testified that Alexx has had dry and itchy skin since she was just a baby and that
Alexx’s itching is not related to her relationship with Wendy.
         Wendy asked that she be awarded full custody of Alexx. Wendy indicated to the court
that Alexx had expressed an interest in moving to Kansas with Wendy. In addition, Wendy
believed that Alexx’s moving to Kansas would improve their relationship. In the alternative,
Wendy asked that she be given legal custody of Alexx and extended summer visitation time with
her.



                                               -4-
                                        4. OTHER EVIDENCE
        In addition to their own testimony, both Ray and Wendy offered additional evidence
concerning their current circumstances and their parenting abilities. Over Wendy’s objection,
Ray offered the testimony of Alexx’s therapist, Sharer-Mohatt.
        Sharer-Mohatt testified that she was a clinical psychologist who had been practicing for
more than 15 years. Much of her practice had been dedicated to treating children and
adolescents. Sharer-Mohatt testified that Alexx had been one of her patients since November
2009. She indicated that she had met with Alexx weekly since that time and that, as a result, she
had seen Alexx approximately 75 times. Prior to beginning any therapy with Alexx,
Sharer-Mohatt met with Ray and his wife to discuss their concerns about Alexx. They told
Sharer-Mohatt that they were concerned that Alexx appeared to be anxious, sad, and withdrawn.
They also relayed to Sharer-Mohatt that there were some custody issues between Ray and
Wendy which had involved Alexx.
        After talking with Ray and his wife and meeting with Alexx, Sharer-Mohatt believed that
Alexx was suffering from anxiety. Such anxiety was precipitated by Alexx struggling with
transitions between her parents’ homes and by her feeling pressured by Wendy to move to
Wendy’s home. Sharer-Mohatt was particularly concerned about Alexx’s outward
demonstrations of anxiety, which she believed indicated that Alexx was suffering from a very
high level of stress. These outward demonstrations of anxiety included being fidgety and
reserved during therapeutic sessions, suffering from prolonged sadness, and scratching herself
excessively. Sharer-Mohatt testified that Alexx’s symptoms improved when Alexx’s contact
with Wendy was restricted in March and April 2011. Specifically, Sharer-Mohatt observed
Alexx to be more talkative and generally happier. During this time period, Alexx did not report
that she felt any stress and there were fewer scratches on her arms.
        Sharer-Mohatt testified that after her sessions with Alexx and after listening to recorded
telephone calls between Alexx and Wendy, she had concerns about Wendy’s interactions with
Alexx. Generally, Sharer-Mohatt expressed a concern about the way that Wendy communicated
with Alexx and about how Wendy dealt with her emotions when discussing things with Alexx.
Wendy appeared to try to make Alexx feel guilty about making certain choices. For example,
Sharer-Mohatt described a situation where Wendy became very upset with Alexx when she
expressed a desire to participate in a horse show rather than go on a vacation with Wendy and
her family. While Wendy was understandably disappointed and upset by Alexx’s decision,
Sharer-Mohatt believed that Wendy acted inappropriately in communicating her feelings to
Alexx, who was only 9 or 10 years old at the time. Sharer-Mohatt testified concerning Wendy’s
behavior, “It’s not the child’s place to contain the anger and disappointment of the parent. It’s the
parent’s place to contain that themselves and then be able to speak with the child about it.”
        Sharer-Mohatt also expressed a concern with Wendy’s tendency to place Alexx in
situations where she was forced to choose between Wendy and Ray. She testified that forcing
Alexx to choose between her parents and her parents’ activities is not age appropriate and is
damaging to Alexx’s emotional development. In addition, Sharer-Mohatt indicated that Wendy
actively encouraged Alexx to stop seeing Sharer-Mohatt, which harmed the patient-therapist
relationship.



                                                -5-
        Sharer-Mohatt testified that it is important that Alexx have a positive relationship with
Wendy. She recommended that in order to improve this relationship and prevent further
emotional damage to Alexx, Wendy should participate in individual mental health counseling so
that she could learn how her behavior has negatively impacted Alexx and has increased Alexx’s
level of stress and anxiety. She further recommended that until Wendy has completed such
counseling, Wendy and Alexx’s visitation sessions should be supervised by a mental health
professional.
        Wendy offered the testimony of various family and friends, including her husband, the
pastor at her church, her mother-in-law, and her sister. These witnesses all testified that Wendy is
a caring, involved mother who loves each of her children very much. The witnesses also offered
testimony which indicated that Ray has not been completely supportive of Wendy and Alexx’s
relationship.
                                   5. DISTRICT COURT ORDERS
        After the parties completed their presentations of evidence, Ray made a motion for a
directed verdict as to the issue of Wendy’s request for a change in custody. The district court
sustained Ray’s motion, finding that “there’s insufficient evidence for a change in custody as
requested by [Wendy].” Subsequently, the court entered a temporary order concerning Ray’s
request for modification of Wendy’s visitation with Alexx.
        In the temporary order, the district court found that a material change in circumstances
had occurred since the March 2006 custody order such that “[Alexx] has experienced significant
anxiety as a result of [Wendy] putting pressure on Alexx to make choices, which are
inappropriate for a child of her age, relating to which parent she should spend time with.” The
court recognized that both Ray and Wendy love Alexx very much; however, the court
summarized the evidence presented in the case as follows:
        The central problem in this case is Wendy’s completely inappropriate pressuring of
        Alexx and her apparent inability to “get it” that Alexx should not be subjected to the kind
        of severe pressure Wendy has brought to bear. It is evident that Wendy is very frustrated
        with Alexx’s interest in horse shows, which is an activity Alexx apparently became
        interested in through Ray’s wife. Wendy has also pressured Alexx about other matters
        including making choices regarding church attendance and communion, Ray being
        Catholic and Wendy being Lutheran.
        As a result of the court’s findings, it ordered Wendy to participate in counseling to learn
how her behavior has increased Alexx’s stress and anxiety, to learn about Alexx’s developmental
states and emotional development, and to develop skills to avoid placing Alexx in situations
where she is forced to choose between her parents. The court permitted Wendy to have
unsupervised visitation with Alexx while she completed her counseling. The court indicated it
would enter a final order concerning Wendy’s visitation with Alexx after Wendy had completed
the counseling requirement.
        Less than 1 month after the district court filed its temporary order, Alexx’s attorney filed
a motion to suspend Wendy’s visitation with Alexx and a motion requesting that Alexx be
permitted to speak with the trial judge in chambers. The court permitted Alexx to testify. During
her testimony, Alexx told the court that during her previous weekend visitation with Wendy,


                                               -6-
Wendy became very angry with Alexx and accused her of lying about things that had happened
at Wendy’s home. Wendy indicated that these lies came up during the modification trial. Alexx
was very upset after her visit. She told the court that she feels a great deal of stress when she is
with Wendy and that she got a severe headache and started to itch after the last visit. She told the
court that she did not want to attend visitation with Wendy for the next month. Alexx testified
that although she loves Wendy, she does not trust her.
         The district court found Alexx to be a credible witness and temporarily suspended
Wendy’s visitation time.
         Subsequently, Wendy submitted evidence to the district court demonstrating that she had
participated in counseling. After the court received this evidence, it entered a final order
concerning Ray’s request for modification of Wendy’s visitation with Alexx. In the order, the
district court noted that Wendy’s visitation with Alexx had been suspended for approximately 3
months. The court went on to find:
         Wendy has engaged in counseling as provided in the Court’s order . . . and . . . Alexx is
         still in therapy. It is in Alexx’s best interest that there be parenting time in the presence of
         Alexx’s counselor . . . and Wendy and her counselor, . . . giving the therapists an
         opportunity to offer guidance and suggestions. Thereafter, for a period of two months,
         Wendy should have parenting time once a month to allow Alexx to transition back into
         normal parenting time.
The court specifically indicated that Wendy and Alexx should participate in two therapeutic
visitation sessions sometime during the 45 days after the order had been entered. The court
stated, “These sessions of parenting time are not optional.” The court then indicated that after the
two therapeutic sessions had been completed, Wendy and Alexx should have one weekend of
visitation per month for the next 2 months. The court also indicated that Wendy could have
regular telephone visitation time with Alexx as provided for in the March 2006 order.
         After the therapeutic visitations and the two monthly, unsupervised visitations, Wendy’s
parenting time returned to the time she had previously received pursuant to the March 2006 order
except that her summer visitation time was reduced from 6 continuous weeks to 4 continuous
weeks.
         The court also ordered Wendy to pay $15,000 toward Ray’s attorney fees.
         Wendy appeals from the district court’s order here.
                                  III. ASSIGNMENTS OF ERROR
        On appeal, Wendy alleges that the district court erred in (1) denying her motion for a
custody evaluation; (2) permitting Alexx’s therapist to provide expert testimony; (3) denying her
motion to change custody; (4) altering the prior visitation schedule, such that she must
participate in temporary supervised visitation with Alex and such that her summer visitation time
is decreased by 2 weeks; and (5) awarding Ray attorney fees.




                                                  -7-
                                          IV. ANALYSIS
                                     1. STANDARD OF REVIEW
        Child custody determinations, and visitation 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. Vogel v.
Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
        A judicial abuse of discretion exists when a judge, within the effective limits of
authorized judicial power, elects to act or refrains from acting, and the selected option results in a
decision which is untenable and unfairly deprives a litigant of a substantial right or a just result
in matters submitted for disposition through a judicial system. Peter v. Peter, 262 Neb. 1017, 637
N.W.2d 865 (2002).
                                   2. MOTION FOR INDEPENDENT
                                   PSYCHOLOGICAL EVALUATION
         At the outset of the modification proceedings, Wendy filed a motion requesting that the
district court appoint a mental health professional to conduct a custody evaluation. In her motion,
Wendy alleged that such an evaluation would “greatly aid the court in making a determination as
to who should have custody of the minor child of the parties.” After a hearing on the matter, the
court asked Alexx’s court-appointed attorney to provide her opinion concerning whether such an
evaluation was necessary. Counsel indicated to the court her opinion that “I [don’t] really feel it
[is] probably necessary given the cost . . . .” However, counsel also told the court that she was
“not going to object either way.”
         Ultimately, the district court denied Wendy’s motion for a custody evaluation. The court
stated that during the initial paternity proceedings, it had made a finding that both Ray and
Wendy were fit, proper, and good parents. The court went on to state that although custody
evaluations can be useful, given its previous findings about the parties’ parenting abilities and
given the costs associated with such an evaluation, it would not order the evaluation. Wendy
appeals from the court’s decision.
         On appeal, Wendy alleges that the district court erred in denying her motion for a custody
evaluation because “[t]he court requires an objective and unbiased expert opinion in order to
determine the best interests of the child . . . .” Brief for appellant at 26. She further alleged that
the only expert opinion the court heard was that of Sharer-Mohatt, who was clearly biased in
favor of Ray because he hired her and because he provided her with background information
about Alexx’s behavior and feelings. We conclude that Wendy’s assertion lacks merit.
         Before we address the district court’s decision not to order a custody evaluation in this
case, we must first address the basic contention contained in Wendy’s brief that a trial court must
receive expert testimony about a child’s best interests in order to make a decision about custody.
Such a contention is simply not true. In fact, this court has previously stated in another custody
modification case, Boamah-Wiafe v. Rashleigh, 9 Neb. App. 503, 510, 614 N.W.2d 778, 784
(2000), that “we do not agree with the trial court’s statements that a witness testifying as to
children’s best interests must be a psychologist, psychiatrist, or someone with a Ph.D or master’s
degree in child development.” A custody evaluation performed by a licensed mental health


                                                -8-
professional is not required in every custody case. Lay witnesses, including, and especially, the
parents of the child or children at issue, may testify concerning their opinions about custody and
about best interests.
        In this case, both Ray and Wendy provided detailed and extensive testimony concerning
their opinions about the custody and best interests of Alexx. In addition, each parent provided the
testimony of other witnesses to aid the court in determining what would be in Alexx’s best
interests. Included in such evidence was the testimony of Alexx’s therapist, Sharer-Mohatt.
        Sharer-Mohatt, who had counseled Alexx for almost 3 years, testified concerning her
observations about Alexx and about her opinions as to Alexx’s best interests. Wendy argues that
Sharer-Mohatt’s testimony was biased in favor of Ray, which makes it even more important to
have an independent evaluation done on Alexx. However, there is no evidence in the record to
support Wendy’s contention that Sharer-Mohatt was biased. Ray did provide Sharer-Mohatt
background information prior to Alexx’s first appointment; however, there was evidence that
such information was limited to Ray’s observations about Alexx’s recent behavior and about
there being a “custody issue” with Wendy. Moreover, a reading of Sharer-Mohatt’s testimony
reveals that she based her opinions solely on her extensive discussions with Alexx and on her
own observations of Alexx’s behavior and struggles. In addition, Sharer-Mohatt testified that she
made herself available to Wendy so that Wendy could be involved in Alexx’s therapy and
provide her own background information.
        Based on our review of the record, we cannot say that the district court erred in denying
Wendy’s request for a custody evaluation. There was ample evidence presented for the court to
make a determination regarding Alexx’s best interests. Such evidence included the testimony of
Alexx’s long-time counselor, who, contrary to Wendy’s assertions, was seemingly unbiased and
only concerned about Alexx and her emotional development. Moreover, given the evidence
presented, we do not think there would have been much gained from forcing Alexx to visit
another counselor or mental health professional due to her parents’ fight over her custody. We
affirm the decision of the district court to deny Wendy’s request for a custody evaluation.
                           3. EXPERT TESTIMONY OF CHILD’S THERAPIST
        Prior to trial, Wendy filed a motion to exclude the testimony of Sharer-Mohatt in its
entirety. Her motion was based on the principles of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001). The district court overruled the motion, stating, “I’m
going to overrule the motion to exclude . . . . However, certainly . . . there is a right to object on
foundation and on many other appropriate objections at the time of trial. I won’t enter an order
excluding the testimony of [Sharer-Mohatt] at this point . . . .”
        Sharer-Mohatt testified at trial. During her testimony, she discussed the “splitting
process.” She defined this theory as
        a psychological defense that we all employ in the process of our normal coping and
        protecting ourselves. It’s a process by where we all, as human beings, have our good and
        our bad parts, our good and not so good parts. But when an individual has difficulty
        accepting their own not-so-good or bad parts, they tend to disavow them and split them
        out and locate them somewhere else, normally, in another person.


                                                -9-
A parent who uses this coping mechanism to deal with the strain of an on-going custody battle
by believing the other parent to be “all bad” can impose these feelings on his or her child.
Sharer-Mohatt testified:
         Because the child is placed in the position of trying to decide, okay, I, for example, I love
         my mom and I love my dad. But if mom says dad is all bad or dad is, you know, dad
         causes problems, but the child’s experience isn’t that, then it creates conflict and anxiety
         within the child, and under some circumstances, children begin to feel, then, that they
         have to make a choice between parents.
         Ray’s counsel asked Sharer-Mohatt if this type of pressure was being placed on Alexx.
Before Sharer-Mohatt answered the question, Wendy’s counsel objected and requested an
opportunity to voir dire Sharer-Mohatt. During this voir dire, Sharer-Mohatt testified that the
theory of the splitting process had been tested on clinical populations and had been subjected to
peer review. In addition, she testified that the methodology for the theory was observation.
However, Sharer-Mohatt also indicated that she could not provide specific publications or dates
where the theory was discussed nor could she report the rate of error for the theory.
         Based on the voir dire, Wendy objected to any further testimony about the splitting
process because Sharer-Mohatt was not an expert in this field. The court overruled the objection
and allowed Sharer-Mohatt to testify that Wendy was putting pressure on Alexx to view Ray as
“all bad.”
         Sharer-Mohatt also testified that she believed that Alexx’s scratching was a physical
symptom of the amount of stress and anxiety Alexx was currently experiencing. Wendy objected
to this testimony on the basis of improper foundation. The court overruled her objection.
         On appeal, Wendy asserts that the district court erred in permitting Sharer-Mohatt to
testify about the splitting process and about the cause of Alexx’s scratching. Specifically, Wendy
argues in her brief that Sharer-Mohatt was not qualified to testify as an expert concerning the
splitting process and that she is not a medical doctor who can diagnose or determine the cause of
Alexx’s skin condition. We find Wendy’s assertions to be without merit.
                                         (a) Splitting Process
        An expert’s opinion is ordinarily admissible under Neb. Rev. Stat. § 27-702 (Reissue
2008), if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact,
(3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on
cross-examination. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004). The Nebraska
Supreme Court held in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), that
when the opinion involves scientific or specialized knowledge, Nebraska courts should apply the
principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993). Under our recent Daubert/Schafersman jurisdiction, the trial court acts as a
gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. Robb v.
Robb, 268 Neb. 694, 687 N.W.2d 195 (2004). This entails a preliminary assessment of whether
the reasoning or methodology underlying the testimony is valid and whether that reasoning or
methodology can be applied to the facts at issue. Id. In addition, the trial court must determine if
the witness has applied the methodology in a reliable manner. Id.



                                                 - 10 -
        In evaluating expert opinion testimony under Daubert, where such testimony’s factual
basis, data, principles, methods, or their application are called sufficiently into question, the trial
judge must determine whether the testimony has a reliable basis in the knowledge and experience
of the relevant discipline. Schafersman v. Agland Coop, supra. In determining the admissibility
of an expert’s testimony, a trial judge may consider several more specific factors that Daubert
said might “bear on” a judge’s gatekeeping determination. Schafersman v. Agland Coop, supra.
These factors include whether a theory or technique can be (and has been) tested; whether it has
been subjected to peer review and publication; whether, in respect to a particular technique, there
is a high known or potential rate of error; whether there are standards controlling the technique’s
operation; and whether the theory or technique enjoys general acceptance within a relevant
scientific community. Id. These factors are, however, neither exclusive nor binding; different
factors may prove more significant in different cases, and additional factors may prove relevant
under particular circumstances. Id.
        Wendy contends that Sharer-Mohatt’s testimony failed to establish that the splitting
process theory has any validity or reliability and that, as a result, she should not have been
permitted to testify about the splitting process as it relates to Wendy and Alexx’s relationship.
        Prior to providing any testimony about her therapy with Alexx or about her clinical
impressions, Sharer-Mohatt testified about her extensive background in psychology. She testified
that she was a clinical psychologist who had been practicing for more than 15 years. Much of her
practice had been dedicated to treating children and adolescents, including working with schools
and with the juvenile court system. She indicated that she had treated well over 100 children. In
addition, in her curriculum vitae, submitted as an exhibit to the court, she detailed the many
papers she had published during the course of her career and the many conferences and
professional associations she had been a part of during that same time.
        After explaining the splitting process and the possible implications in these custody
proceedings, Sharer-Mohatt testified that the theory of the splitting process had been tested on
clinical populations and had been subjected to peer review. In addition, she testified that the
methodology for the theory was observation. And, even though Sharer-Mohatt also indicated that
she could not provide specific publications or dates where the theory was discussed nor could
she report the rate of error for the theory, the court found that her testimony regarding the theory
was admissible.
        Generally, a trial court’s ruling in receiving or excluding an expert’s testimony which is
otherwise relevant will be reversed only when there has been an abuse of discretion. See City of
Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432 (2005). We cannot say that the
court abused its discretion in permitting Sharer-Mohatt’s testimony about the splitting process.
Sharer-Mohatt is clearly a qualified child psychologist. And, though she was not extremely
detailed in providing the basis behind the splitting process theory, she did affirmatively state that
the theory had been tested and peer reviewed. In addition, she provided some basis for believing
that the theory is generally accepted in the psychological community.
        Moreover, Sharer-Mohatt testified that Alexx had been one of her patients since
November 2009, or almost 3 years by the time of the modification trial. Clearly, then,
Sharer-Mohatt had spent a great deal of time talking with Alexx and observing her behaviors and
emotional state. The court did not abuse its discretion in permitting Sharer-Mohatt to testify


                                                - 11 -
regarding the splitting process or in how such process had affected Alexx’s emotional
well-being. Wendy’s assertions to the contrary are without merit.
                                         (b) Skin Condition
       Wendy also asserts that the district court erred in permitting Sharer-Mohatt to testify that
Alexx’s scratching was the result of her aniexty and stress. Wendy argues that only a physician
would be able to provide such a diagnosis.
       Wendy’s assertion is without merit. As we detailed above, Sharer-Mohatt is an
experienced child psychologist who is qualified to offer an opinion about the physical effects of
Alexx’s extreme stress and anxiety. The fact that Sharer-Mohatt is not a medical doctor and that
there are other possible causes for Alexx’s skin condition should go to the weight of
Sharer-Mohatt’s testimony and not to its admissibility.
                                 4. MOTION TO CHANGE CUSTODY
        At the close of the modification trial, Ray made an oral motion for a directed verdict as to
Wendy’s request for a change in custody. The district court granted Ray’s request for a directed
verdict on the custody issue. The court stated: “I think there is -- even giving every reasonable
inference to the nonmoving party [--] that there’s insufficient evidence for a change in custody as
requested by [Wendy].”
        On appeal, Wendy asserts that the district court erred in denying her motion for a change
in custody. Wendy’s argument in support of this contention is essentially based on her renewed
assertion that the court erred in permitting the testimony of Sharer-Mohatt and in failing to
appoint an independent psychologist to conduct a custody evaluation.
        In our analysis above, we concluded that the district court did not err in permitting
Sharer-Mohatt’s testimony or in failing to appoint an independent mental health professional to
conduct a custody evaluation. Accordingly, we also conclude that to the extent Wendy
challenges the district court’s decision to deny her motion for a change in custody because of its
decisions regarding Sharer-Mohatt’s testimony and regarding the custody evaluation, her
assertion has no merit.
        Moreover, we also conclude that the district court did not abuse its discretion in finding
that Wendy failed to demonstrate that a change in custody was warranted. Ordinarily, custody of
a minor child will not be modified unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best interests of the child require such action.
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). In her complaint to modify custody,
Wendy generally alleged that a change in custody was warranted because Ray had actively
interfered in her relationship with Alexx.
        However, at the modification trial, Wendy did not provide any evidence to prove that Ray
was an unfit parent or that a change in custody was in Alexx’s best interests. Wendy testified that
her relationship with Ray was strained and that they communicated only through e-mail. In
addition, she testified that Ray was often unwilling to be flexible with her visitation time or to
give her any additional time not required by the court’s order. However, she did not provide any
evidence to prove how her strained relationship with Ray affected Alexx or how such behavior




                                                - 12 -
made him an unfit parent. Instead, Wendy testified that while Alexx was in Ray’s custody, she
was a good student who excelled in athletics.
        Wendy also testified concerning Ray’s monitoring and recording of her telephone calls
with Alexx. She testified that she did not give him permission to listen in on her conversations
with Alexx and that he had done so without her knowledge. Again, though, there was no
evidence about how this behavior negatively affected Alexx. Instead, the evidence suggested that
Ray was monitoring Alexx’s conversations with Wendy in order to make Alexx feel more
comfortable and that, in fact, Alexx appreciated Ray’s involvement in these conversations.
        Wendy simply failed to provide sufficient evidence to demonstrate that a material change
of circumstances had occurred which would warrant a change in custody. Accordingly, upon our
review of the evidence presented, we cannot say that the district court erred in denying her
motion for a change in custody.
                            5. ALTERATION OF VISITATION SCHEDULE
        Wendy asserts that the district court erred in modifying her visitation with Alexx by (1)
ordering her to participate in two visitation sessions supervised by her therapist and by Alexx’s
therapist and (2) permanently altering her summer visitation time such that it decreased from 6
continuous weeks to 4 continuous weeks. We will separately address each of Wendy’s assertions
regarding the modifications to her visitation. However, first, we recount the pertinent principles
of law relating to modification of a noncustodial parent’s visitation time.
        Visitation relates to continuing and fostering the normal parental relationship of the
noncustodial parent. See Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001); Walters v.
Walters, 12 Neb. App. 340, 673 N.W.2d 585 (2004). The best interests of the child are the
primary and paramount considerations in determining and modifying visitation rights. Id. The
best interests inquiry has its foundation in both statutory and case law.
        Neb. Rev. Stat. § 43-2923(6) (Cum. Supp. 2012) provides that in determining custody
and parenting arrangements:
                 [T]he court shall consider the best interests of the minor child, which shall
        include, but not be limited to, consideration of . . . .
                 (a) The relationship of the minor child to each parent prior to the commencement
        of the action or any subsequent hearing;
                 (b) The desires and wishes of the minor child, if of an age of comprehension but
        regardless of chronological age, when such desires and wishes are based on sound
        reasoning; [and]
                 (c) The general health, welfare, and social behavior of the minor child.
        In addition to these factors, the Nebraska Supreme Court has previously held that in
determining a child’s best interests, courts
        “‘may consider factors such as general considerations of moral fitness of the child’s
        parents, including the parents’ sexual conduct; respective environments offered by each
        parent; the emotional relationship between child and parents; the age, sex, and health of
        the child and parents; the effect on the child as the result of continuing or disrupting an
        existing relationship; the attitude and stability of each parent’s character; parental



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      capacity to provide physical care and satisfy educational needs of the child; the child’s
      preferential desire regarding custody if the child is of sufficient age of comprehension
      regardless of chronological age, and when such child’s preference for custody is based on
      sound reasons; and the general health, welfare, and social behavior of the child.’”
Davidson v. Davidson, 254 Neb. 357, 368, 576 N.W.2d 779, 785 (1998).
      With these principles in mind, we turn to a discussion of Wendy’s specific assertions.
                               (a) Temporary Supervised Visitation
        Wendy asserts that the district court erred in ordering her to participate in two visitation
sessions supervised by her therapist and by Alexx’s therapist. Specifically, Wendy asserts that
any restriction on a parent’s visitation is an extreme measure that is simply not merited by the
facts of this case. Upon our review of the record, we find that Wendy’s assertion has no merit.
        The trial court has discretion to set a reasonable visitation schedule. See Maranville v.
Dworak, 17 Neb. App. 245, 758 N.W.2d 70 (2008). The determination of reasonableness is to be
made on a case-by-case basis. Id. The Nebraska Supreme Court has previously stated that limits
on visitation are an extreme measure. Fine v. Fine, supra. However, the court has also stated that
such limits may be warranted where they are in the best interests of the children. Id.
        In its final order, the district court ordered Wendy and Alexx to participate in two
sessions of supervised visitation with their therapists present. The court indicated its belief that
such visitation sessions would help to repair Wendy and Alexx’s relationship and would help
Wendy learn to communicate better with Alexx. After these therapeutic sessions occurred,
Wendy’s regular visitation with Alexx was gradually restored.
        Upon our de novo review of the record and given the facts of this specific case, we
cannot say that the district court abused its discretion in requiring Wendy to participate in two
therapeutic visitation sessions. Although this requirement does amount to a restriction on
Wendy’s visitation, it is a fairly limited and brief restriction. And, our reading of the evidence
presented by the parties reveals that, at a minimum, Alexx has experienced extreme stress as a
result of her relationship with Wendy. Whether that stress is caused by Wendy, as Ray suggests,
or whether that stress is simply caused by Alexx’s being shuffled back and forth between her
parents, as Wendy suggests, Alexx is clearly suffering. There was evidence that Alexx feels
more comfortable interacting with Wendy when someone else is present. These therapeutic
sessions are clearly meant to assist Alexx in regaining trust in Wendy and in repairing their
relationship.
        Based on our reading of the record, we affirm the order of the district court concerning
the therapeutic visitation sessions.
                                      (b) Summer Visitation
       Wendy asserts that the district court erred in reducing her summer visitation time with
Alexx from 6 continuous weeks to 4 continuous weeks. In her brief on appeal, Wendy does not
provide much argument in support of her assertion. In fact, she really only argues that the court
erred in reducing her summer visitation time because it did not provide a rationale for its
decision.



                                               - 14 -
        We first note that Wendy does not point us to any authority to suggest that the district
court must detail its rationale for making specific modifications to a visitation schedule. And,
while we agree with Wendy’s assertion that the district court did not provide any explanation for
its specific decision to decrease her summer visitation time, we do not agree that the reasons for
the court’s decision are unclear when we read the court’s order as a whole. Given the evidence
presented at the modification trial and the subsequent hearings, and given the court’s specific
findings about Wendy and Alexx’s current relationship, the reasons for the court’s decision
regarding the summer visitation time are clear.
        The court found that Wendy had acted inappropriately in her relationship with Alexx by
placing Alexx in a position which forced her to make age-inappropriate decisions, including
pressuring Alexx to come live with Wendy in Kansas. The court also found that Wendy’s
behavior had negatively affected Alexx’s physical and emotional well-being. The court found
that Alexx was a credible witness when she testified that she was feeling stress about her
relationship with Wendy and felt that she needed a break in their visitation time.
        Given these findings, we can assume that the court decreased Wendy’s summer visitation
time with Alexx’s best interests in mind. The court clearly believed that it would be in Alexx’s
best interests to spend more time with Ray during her summer visitation because of the current
strain existing in Wendy and Alexx’s relationship as a result of Wendy’s inappropriate behavior.
We cannot say that the district court abused its discretion in this regard.
                                       6. ATTORNEY FEES
        At the modification trial, Ray’s attorney submitted an affidavit concerning the time he
had expended in preparing for the proceedings. That affidavit indicated that Ray’s attorney fees
totaled approximately $22,000 for his attorney’s work on the case. At the final hearing, held 6
months after the modification trial, Ray’s attorney submitted an updated affidavit concerning the
time he had expended in preparing for the trial and the subsequent hearings. That affidavit
indicated that Ray’s attorney fees totaled approximately $30,600. Ray asked that he be awarded
$30,000 in attorney fees. Wendy argued that she should not have to pay any of Ray’s fees
because the amount of fees incurred was unreasonable and because Ray initiated the case by
filing his complaint to modify visitation.
        In the district court’s order, it awarded Ray $15,000 in attorney fees. The court ordered
Wendy to pay $500 per month toward the attorney fees until they were paid in full. Wendy
appeals from the court’s award of attorney fees to Ray. Specifically, she argues that the award is
excessive and that Ray was not the “‘prevailing’ party” and is not entitled to attorney fees. Brief
for appellant at 31.
        In a paternity action, attorney fees are reviewed de novo on the record to determine
whether there has been an abuse of discretion by the trial judge. Drew on behalf of Reed v. Reed,
16 Neb. App. 905, 755 N.W.2d 420 (2008). Absent such an abuse, the award will be affirmed.
Id.
        A trial court’s award of attorney fees depends on multiple factors that include the nature
of the case, the services performed and results obtained, the earning capacity of the parties, the
length of time required for preparation and presentation of the case, customary charges of the
bar, and the general equities of the case. See id.


                                              - 15 -
        Ray’s attorney submitted an affidavit to the trial court which detailed the work he
completed on the case and the number of hours he spent completing that work. As his counsel
noted at the final hearing, the case spanned a period of 25 months, during which time there were
numerous hearings concerning Wendy’s temporary visitation schedule and various discovery
motions. In addition, the proceedings did not end after the trial was held. Instead, the litigation
continued and Wendy’s visitation with Alexx continued to be altered and reviewed while she
completed her counseling as ordered by the court. And, contrary to Wendy’s assertions on
appeal, Ray was the “prevailing party,” because Wendy was ordered to attend counseling and to
participate in supervised visitation with Alexx for a period of time, as Ray requested. Moreover,
Wendy did not submit any evidence to demonstrate that she was not able to pay any portion of
Ray’s attorney fees. In fact, neither party submitted any evidence to demonstrate his or her
current financial circumstances.
        Given the nature and extent of the proceedings and the general equities of the case, we
cannot say that the court abused its discretion in awarding Ray $15,000 in attorney fees. Based
on Ray’s evidence, the amount was fair and reasonable and constituted only half of Ray’s total
accumulated attorney fees and half of the requested amount. Accordingly, we affirm the award of
attorney fees.
                                        V. CONCLUSION
        We find that the district court did not err in denying Wendy’s request for an independent
custody evaluation or in permitting Sharer-Mohatt to testify regarding her opinions about
Alexx’s best interests. In addition, we conclude that the district court did not abuse its discretion
in denying Wendy’s request to change custody or in granting Ray’s request for a modification in
the visitation schedule. Finally, we conclude that the court did not err in awarding Ray a portion
of his attorney fees.
                                                                                          AFFIRMED.




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