                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                      NELSON V. NELSON


  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).


                             MATTHEW R. NELSON, APPELLEE,
                                          V.
               JAMIE R. NELSON, NOW KNOWN AS JAMIE R. RUSSELL, APPELLANT.


                             Filed April 16, 2013.   No. A-12-161.


       Appeal from the District Court for Cheyenne County: DEREK C. WEIMER, Judge.
Affirmed.
       Jamie R. Russell, pro se.
       Donald J.B. Miller, of Miller Law Office, for appellee.


       SIEVERS, PIRTLE, and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                      INTRODUCTION
        This case presents one primary issue: whether the trial court committed plain error in
denying the petition to modify custody and child support filed by Jamie R. Nelson, now known
as Jamie R. Russell. Jamie did not assign or argue errors in her brief; rather, she provided a
narrative of why she believed the trial court’s order was wrong. After reviewing the record, we
find no plain error and affirm.
                                       BACKGROUND
        Matthew R. Nelson (Matt) and Jamie divorced in 2002. Matt and Jamie had two children
from their marriage, Noah Nelson and M’Kenna Nelson. At the time of the divorce, Jamie had
full custody of her daughter who was born of a previous relationship. Matt had other children
from a prior marriage, but did not have primary physical custody of them. Following trial, the
court awarded Matt physical custody of Noah and M’Kenna subject to Jamie’s parenting time.
Jamie sought to modify custody in 2003 without success. Jamie subsequently remarried for a


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brief time, and a son was born of this marriage. Noah, M’Kenna, and Jamie’s other two children
spent substantial time together growing up and have close relationships.
        In August 2011, Jamie filed a motion to modify custody and child support and asked the
court for permission to leave Nebraska with Noah and M’Kenna. She asserted that Matt’s
custody was injurious to the children’s physical, emotional, and mental health and well-being. In
support of this claim, Jamie alleged that Matt had relapsed into alcoholism. She also alleged that
the children now are at an age to have an opinion and want to live with her. She further stated
M’Kenna has a broken right arm and is uncomfortable with Matt helping her dress. In addition to
custody, Jamie requested permission to move the children to North Carolina because she found
employment there that would offer a starting salary of $6,928 per month compared to her current
salary of $1,333.
        Matt opposed Jamie’s motion to modify custody because modifying custody was not in
the best interests of the children.
        The case was tried in December 2011. During the 3-day trial, both parties testified, as
well as the children, several law enforcement officers, witnesses from the community, and
witnesses from the children’s schools.
        Noah testified that he is 13 years old; is in seventh grade; and has a sister, M’Kenna, who
currently lives with Matt. Noah stated that he is fairly close with M’Kenna and Jamie’s other two
children. Although he has never been to North Carolina, he wants to move there because he
would be attending a bigger school that he believed would probably have a better football
program. He stated that both of his parents make him do his chores and his homework. He earns
mostly A’s and B’s in school and has good attendance. Noah’s report card confirms his
testimony.
        Noah said that Matt’s residence has three bedrooms, one bathroom, a kitchen and a living
room, but Noah volunteered that it was “pretty dirty.” He noted that the desk by the door “has
more papers than you can imagine” and that the couch next to the table has baskets and clothes
all over it. He explained that his room was “terrible” and that M’Kenna’s room was “pretty
messy” as well. The clutter at Matt’s house was evidenced by pictures Jamie surreptitiously took
after the children let her into Matt’s house while Matt was away.
        In Noah’s opinion, the downside of living with Matt is that Matt is angry when he comes
home from work. He testified that Matt once threw a plastic cereal bowl. On another occasion,
when Noah was in fourth grade, he and Matt disagreed about the shirt Noah was wearing, and
Matt ripped the shirt off of Noah’s back and kicked him. Matt denied kicking Noah and
explained that Noah refused to change into a more formal shirt for the school Christmas concert.
As a result, Matt tried to remove Noah’s shirt and, in the process, some buttons may have popped
off. Jamie filed a complaint of child abuse as a result of the incident. A deputy responded to the
complaint, but no criminal charges were filed.
        According to Noah, Jamie used to live in an apartment but was evicted for failure to pay
rent. The children now visit her at a hotel in Potter, Nebraska. Jamie explained that some of her
friends were providing her with the hotel room at a reduced rate. Noah also expressed familiarity
with several of Jamie’s ex-boyfriends.
        M’Kenna testified that she is 11 years old and in fifth grade. She says she does pretty
well in school, except in math. M’Kenna’s report card confirms her statements. She explained


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that she was going to play volleyball, but broke her wrist during the summer. M’Kenna is also
involved in 4-H when she is with Matt and has shown steers and rabbits and has competed in the
horse category. Through 4-H, M’Kenna saved enough money to buy her own horse.
        M’Kenna said she would like to move to North Carolina because Jamie showed her
pictures of the apartment complex she would move to and it had a pool and an exercise room,
which seemed nice. M’Kenna said she could also begin playing volleyball earlier in North
Carolina.
        M’Kenna testified that when she gets in trouble at Matt’s, he yells at her, but Jamie does
not. She also stated that she got really upset with Matt because he made a sarcastic remark about
her injured wrist when he came to the hospital. Several witnesses discussed an incident in which
M’Kenna refused to get off the bus at Matt’s because she wanted to go to Jamie’s. Matt had to
get on the bus to attempt to reason with her. She finally exited the bus after Matt picked up her
backpack and walked off the bus with it. As M’Kenna started walking away, Matt grabbed her
arm to stop her. Noah testified that as a result of this incident, M’Kenna had a small bruise on
her arm. A deputy testified that he investigated the incident and found no child abuse. He said
there were no marks on M’Kenna and that the situation amounted to M’Kenna’s disobeying her
father, Matt.
        Jamie testified that she has four children who have three different biological fathers. She
stated that she is employed with Lexicon as a health care specialist for seniors. She explained
that she wants to move to North Carolina to pursue a management position that Lexicon has
offered to her.
        Jamie testified substantially about a number of volatile relationships in which she was
involved. Results from these relationships included her resignation from a job, contact with law
enforcement, and a lawsuit. Jamie’s daughter, who was born of a previous relationship, described
an incident in which the sheriff escorted her and Jamie from the house where they were living
with one of Jamie’s boyfriends. After that happened, they moved into the home of Jamie’s
ex-husband.
        Jamie’s career history included jobs at two insurance companies, a series of restaurants,
the Colorado Department of Corrections, and most recently, Lexicon. All of these employers,
with the exception of the restaurants and Lexicon, either fired Jamie or encouraged her to resign.
Jamie has simultaneously maintained a modeling career, which has required her to travel
nationally and has, at times, taken her away from her children. The record does not confirm if
Jamie received any financial compensation for her modeling.
        Jamie testified that her monthly income would be $6,900 once she moved to North
Carolina. Her current salary is $1,333. Jamie also submitted tax returns for 2008 and 2009
showing substantially different salaries from her job with an insurance company. Generally,
these returns showed incomes greater than her current salary and less than her projected income
in North Carolina.
        Jamie testified about her relationship with her children. She said that she and M’Kenna
like to paint fingernails and that she curls M’Kenna’s hair. She said she has a very special
relationship with Noah because he has always been a really solid male figure in her life and he
has been her protector. Jamie testified that she researched schools for the children in North
Carolina and that the children could fly back once a month to see their fathers.


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        Jamie admitted that the court found her in contempt for providing false testimony and
false discovery responses in a lawsuit filed against her by a prior fiance for return of an
engagement ring.
        Matt, on the other hand, testified that no female adults or girlfriends have lived at the
home with him and the children. He explained that his approach to raising children is old
fashioned. He does not have the Internet at his home and admitted that the children did not find
his home as fun as they found Jamie’s. He described several activities in which the children are
involved, including the 4-H program.
        Matt explained that, although he knows the children do not want to live with him, he
thought it was better for them to live with him because he is very consistent. He said he has had
the same job, lived in the same place, gone to the same church, and been connected to the same
community for the past 10 years. He explained that the children’s lives and family are in
Nebraska.
        In addition to the parties and the children, several other witnesses testified about their
observations of Matt’s and Jamie’s relationships with Noah and M’Kenna.
        Jamie’s daughter, who was born of a previous relationship, testified that she is 15 years
old and a sophomore in high school. She currently lives with Jamie, and they have a very close
relationship. She denied the suggestion that Jamie told Noah and M’Kenna what to say to the
judge, but admitted that Jamie told them they needed to speak up if they wanted to live with her.
One of Jamie’s friends likewise testified that she thought Jamie was a “great mom” who loved
her children. Jamie’s ex-husband, the father of her youngest son, testified that Jamie frequently
called the police on Matt and that he does not trust anything Jamie says. Jamie’s ex-husband and
Jamie were currently embroiled in a lawsuit at the time of trial.
        Matt called several witnesses to testify as to his relationship with the children, including
clients, colleagues, and friends. All of them consistently testified that Matt has a loving and
affectionate relationship with the children and that they have never seen Matt angry.
        Matt’s daughter from a prior marriage testified that she is in college and has a wonderful
relationship with Matt. She opined that Noah and M’Kenna have a loving and respectful
relationship with Matt as well. She said that she has seen Matt angry, but that he does not yell or
act aggressively. She could just tell he was angry because he was physically stressed.
        In January 2012, the trial court denied Jamie’s motion to modify custody and child
support. In a detailed order, the trial court found that Jamie did not meet her burden of proving a
change in custody to be in the children’s best interests and that the court could not modify child
support because it could not make any specific finding regarding Jamie’s income.
        The court stated that although Noah and M’Kenna asked to live with Jamie, they did not
have compelling reasons. Instead, the children said they had more fun with Jamie. The court
discussed Jamie’s choice to expose the children to many different men and her changes in
employment and housing. The trial court also found her to be wholly lacking in credibility. In
contrast to its opinion of Jamie, the trial court found that Matt “exhibited no guile” and that his
life was the “essence of stability.”
        The trial court could not make any specific finding regarding Jamie’s income because her
income had been unstable, and she testified that she was about to embark on a career that would
pay substantially more. For this reason, the trial court found that Jamie did not meet her burden


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of proving a changed income for purposes of modifying child support. This timely appeal
followed.
                                  ASSIGNMENTS OF ERROR
       Jamie failed to assign errors in her brief.
                                            ANALYSIS
        Neb. Rev. Stat. § 25-1919 (Reissue 2008) states in part: “The brief of appellant shall set
out particularly each error asserted and intended to be urged for the reversal, vacation, or
modification of the judgment, decree, or final order alleged to be erroneous.” An appellate court
will not address errors that are not assigned and argued in the appellant’s brief, but it may review
the record for plain error. See, Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742
(2012); Okuda v. Hampton, 154 Neb. 886, 50 N.W.2d 108 (1951). Plain error is error plainly
evident from the record and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process. Connelly, supra.
        Because Jamie did not assign and argue errors, we review the record for plain error.
        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. Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002). Because
this case involves a determination concerning custody of the parties’ two children and, as such,
necessarily involves a determination of the children’s best interests, we have thoroughly and
completely reviewed the record for plain error and have found none. Our review of the record
reveals that although Matt has a conservative method of child-rearing, there is nothing in the
record to prove he is unfit or that the best interests of the children require a modification. The
record does not support Jamie’s allegations of child abuse, and it indicates that M’Kenna and
Noah are safe and involved in their schools and community in Matt’s care. Therefore, we find no
error in the court’s refusal to modify custody.
        The record is insufficient for us to address Jamie’s concern that the trial court erred in
calculating child support because she did not provide any documentation or statement as to what
her child support obligations are or the basis upon which child support is calculated. We
therefore affirm the trial court’s refusal to modify child support.
                                          CONCLUSION
         Having reviewed the record for plain error and finding none, we affirm the decision of
the trial court.
                                                                                    AFFIRMED.




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