                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         SILVER V. SILVER


  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).


                                  HEATHER S. SILVER, APPELLEE,
                                                 V.

                                 RONALD L. SILVER, APPELLANT.


                               Filed June 5, 2018.    No. A-17-537.


         Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed
in part, and in part remanded with directions.
       Sandra Stern for appellant.
       B. Gail Steen, of Steen Law Office, for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       BISHOP, Judge.
                                       I. INTRODUCTION
         Ronald L. Silver appeals the Lancaster County District Court’s April 2017 order which
denied his request to modify custody and parenting time, but increased his child support and made
it retroactive to December 2014. In addition to custody, parenting time, and child support matters,
Ronald also raises issues related to the district court’s review of evidence, off-the-record
procedures, and Ronald’s request for a contempt order against Heather S. Silver. We remand the
matter back to the district court with directions to consider Ronald’s ability to pay the retroactive
child support ordered. In all other respects, we affirm the district court’s modification order.
                                       II. BACKGROUND
       Ronald and Heather have two minor children, Grace (born in 2002) and Sam (born in
2004). The parties were divorced in February 2014. Pursuant to the amended decree filed in April,



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Heather was awarded sole legal and physical custody of the children, subject to Ronald’s
supervised parenting time from noon until 5 p.m. on 1 day every weekend. Ronald was ordered to
pay child support of $212.40 per month (adjusted down from the calculated amount of $428 per
month to keep Ronald at the basic minimum subsistence level).
        A few months later, in July 2014, Ronald filed a complaint to modify the amended decree,
and asked the court to grant him unsupervised parenting time. He alleged that since the entry of
the decree, it had “been demonstrated that it is not necessary nor in the children’s best interest[s]”
for his parenting time to be supervised. In November, Heather filed an “Amended Answer and
Cross Complaint.” She generally denied the allegations in Ronald’s complaint to modify. She also
asked the court to increase child support, alleging that since the entry of the decree there had been
a material change in circumstances in relation to Ronald’s income.
        In September 2015, Heather filed a motion for an order to show cause, alleging that Ronald
failed to reimburse her for child care and attempted to have unsupervised contact with the children.
(Heather’s contempt allegations against Ronald were ultimately heard at the time of the
modification trial.)
        From October 28, 2015, through February 2016, the modification action was stayed
pending Ronald’s bankruptcy proceedings.
        In March 2016, Ronald filed an amended complaint to modify, again alleging that since
the entry of the decree, it had been demonstrated that it is not necessary nor in the children’s best
interests that his parenting time be supervised. He also alleged that Heather had interfered with
and attempted to alienate the children’s relationship with Ronald, and that her mental health was
a detriment to the children. He asked the court to award him legal and physical custody of the
minor children, subject to Heather’s parenting time. He also asked the court to order Heather to
pay child support. In April, Heather filed an “Answer to Amended [sic] and Cross Complaint.”
She denied the allegations in Ronald’s amended complaint to modify. And she once again asked
the court to increase child support.
        In April 2016, Ronald filed an application for an order to show cause, alleging that Heather
had denied his court-ordered parenting time. (Ronald’s contempt allegations against Heather were
ultimately heard at the time of the modification trial.)
        Trial was held on the modification and contempt actions in June 2016 and continued in
April 2017. In the interim, Ronald and the children attended family therapy. And in March 2017,
Ronald filed another application to show cause, alleging that Heather denied his court-ordered
parenting time “for several weeks.”
        In its order filed on April 20, 2017, the district court found that neither party proved the
other in contempt of the court’s orders. The court also found that Ronald failed to prove a material
change in circumstances as to custody or parenting time. The court concluded it was in the best
interests of the children to remain in the legal and physical custody of Heather, subject to
agency-supervised parenting time with Ronald once per week on the weekend from noon until
5 p.m. Ronald was ordered to arrange and be responsible for all costs associated with the
supervised parenting time.
        The court did find that since the entry of the decree, there had been a material change in
circumstances as to the parties’ income resulting in more than a 10-percent change in the child
support. Ronald was ordered to pay child support in the amount of $761 per month (for two


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children), commencing on December 1, 2014. He was also ordered to pay one-half of the medical
costs above $480 per child per year. A judgment was entered against Ronald in the amount of
$1,792.83 for past due child care and medical costs. He was ordered to pay “a minimum of [$50]
per month in addition to his child support and other financial obligations for the support of the
minor children until such time as the judgment against him is paid in full.”
       Ronald appeals.
                                 III. ASSIGNMENTS OF ERROR
       Ronald assigns, restated, that the district court erred by (1) not awarding him custody of or
unsupervised parenting time with the minor children, (2) modifying his child support obligation in
a way that left him below the minimum subsistence poverty level and by not awarding him a
dependency exemption for purposes of income tax filing, (3) not finding Heather in contempt for
denying his court-ordered parenting time, (4) not reviewing all of the evidence received, and (5)
holding certain proceedings and arguments and making certain findings and orders off the record.
                                   IV. STANDARD OF REVIEW
         An appellate court reviews child custody determinations de novo on the record, but the trial
court’s decision will normally be upheld absent an abuse of discretion. Flores v. Flores-Guerrero,
290 Neb. 248, 859 N.W.2d 578 (2015). 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. Id.
         Parenting time determinations are also 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 Maddox S. v. Matthew E.,
23 Neb. App. 500, 873 N.W.2d 208 (2016).
         In child custody cases, where the credible evidence is in conflict on a material issue of fact,
the appellate court considers, and may give weight to, the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts rather than another. Robb v. Robb,
268 Neb. 694, 687 N.W.2d 195 (2004).
         Modification of child support payments is entrusted to the trial court’s discretion, and
although, on appeal, the issue is reviewed de novo on the record, we will affirm the trial court’s
decision absent an abuse of discretion. Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300
(2013). Whether a child support order should be retroactive is also entrusted to the discretion of
the trial court, and we will affirm its decision absent an abuse of discretion. Id.
         In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which (1) the trial
court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are
reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt
and of the sanction to be imposed are reviewed for abuse of discretion. Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012).




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                                            V. ANALYSIS
                          1. CUSTODY OR UNSUPERVISED PARENTING TIME
         Ronald claims that the district court erred when it declined to modify the amended decree
to award him custody of the parties’ children or, at a minimum, unsupervised parenting time with
the children. He argues that the evidence showed Heather was “causing extreme alienation
between the children and [Ronald].” Brief for appellant at 35.
         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. State on behalf of Slingsby v. Slingsby, 25 Neb. App. 239, 903 N.W.2d
491 (2017). First, the party seeking modification must show a material change in circumstances,
occurring after the entry of the previous custody order and affecting the best interests of the child.
Id. Next, the party seeking modification must prove that changing the child’s custody is in the
child’s best interests. Id. 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. Id. 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.
         Likewise, the right of parenting time is subject to continuous review by the court, and a
party may seek modification of a parenting time order on the grounds that there has been a material
change in circumstances. State on behalf of Maddox S. v. Matthew E., supra.
         Neither the decree nor the amended decree (both prepared by Heather’s attorney) set forth
the reasons why Heather was granted sole custody of the children or why Ronald’s parenting time
was to be supervised. However, we note that Ronald also had supervised parenting time at the time
of a temporary order in July 2013. At the modification hearing, Heather testified that when Ronald
was first granted supervised visits in July 2013, he “refused to do it,” and then he “had one visit
with [the children] that whole year.” The children felt like they had been abandoned. According to
Heather, it was a difficult time for Sam; he was devastated when Ronald did not see him.
         When asked what material changes had occurred since the decree that he would like the
court to consider, Ronald said that he has exercised his visitation privileges to the best of his ability,
the visits have been good, he is actively employed, he is happy, he associates with healthy people,
he is active with his church, he is an approved mentor (transporting people for church activities),
he volunteers at Food Net, and he has a healthy life. “[O]n a personal level,” he did some “soul
searching” after his separation, and thinks he has become “more humble and more patient and
loving.”
         Ronald is asking for custody of the children for several reasons. He thinks it is important
that both parents have a good relationship and that they encourage a good relationship with the
children; he does not believe that Heather encourages the children to have a relationship with him.
         The record is clear that the parties have a contentious relationship. Heather testified that
she had two protection orders against Ronald: one in 2013 and one in 2014, and each was in place
for 1 year. She called the police to report a violation of the protection order in August 2014 after
Ronald disregarded prearranged times which would have allowed the two of them to attend a
school open house separately (because of the protection order), and showed up when Heather was
there. Ronald testified that he was escorted by the principal the entire time. Heather also called the


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police when she saw him removing items from a neighbor’s garage; Ronald said he was returning
a shovel and borrowing an item. Ronald claims the “unfounded” police calls are traumatizing for
the children.
        Ronald also claims that Heather’s alcohol use is problematic. There was conflicting
evidence from two witnesses as to whether or not Heather was drunk on Halloween 2014, and
whether she drove with the children in the car while she was under the influence. Heather testified
that she was diagnosed as an alcoholic when she was 17 years old. She now drinks “[o]ne or two
drinks” “[m]aybe a few times a month.” When asked if, since the decree, she had ever driven drunk
with her children, Heather responded, “No.”
        Dr. Helen Montoya, a licensed psychologist, conducted mental status and psychological
evaluations on Heather and Ronald in the summer of 2015. Dr. Montoya testified that Heather was
diagnosed with alcohol use disorder, unspecified; cannabis use disorder in sustained remission;
and personality disordered traits, which were borderline and histrionic. Her borderline personality
traits include an “[i]ntolerance of being alone; fear of abandonment; unstable and intense
inter-personal relationship; impulsivity that can be at times self-damaging; effective instability, a
marked reactionary mood; [and] inappropriate, intense anger with difficulty controlling anger.”
Dr. Montoya stated that “the emotional reactivity is going to contribute to the children’s emotional
well[-]being or sense of stability. And the rapidly shifting moods will in some fashion affect the
home environment.”
        Dr. Montoya diagnosed Ronald with an “[a]djustment disorder with mixed anxiety and
depression; cannabis abuse, in sustained full remission; [and] personality disordered traits of
compulsivity and narcissism.” She described a compulsive trait as “a tendency to be very rigidly
set in their way of doing things or of completing tasks, a tendency toward needing order and a
specific environment, which leads to controlling behavior.” And a narcissistic trait is a “tendency
toward needing a high level of attention, affection and admiration. A tendency toward genuinely
believing that their way is the correct, appropriate way.” She acknowledged that based on her
interview and testing of Ronald that he is controlling in a relationship. After evaluating Ronald,
Dr. Montoya did not find any evidence that he would be a physical danger to Heather or the
children. However, Dr. Montoya did not speak to the children’s therapist or anyone at the visitation
agency.
        Dr. Montoya had never met Grace or Sam. However, in her evaluation reports for Ronald
and Heather, Dr. Montoya stated that she reviewed the visitation notes which indicate that Sam
had been exposed to negative attitudes and commentary toward his father. When asked if she
believed that it would be useful to have therapeutic visits with the children to try to build a
relationship, Dr. Montoya said, “I do.”
        Dr. Kelly Love is a psychologist and is the director of behavioral health at the Lincoln
Family Medicine Program. She has been treating Sam and Grace since 2014; Heather brought
them in because of adjustment difficulties due to the parties’ separation. Sam’s current diagnosis
is adjustment disorder with anxiety and depressed mood; “that basically means that the person is
experiencing a significant stressor in their life, that they’re manifesting anxiety and depression that
is above and beyond what would typically be expected as a result of a significant stressor in their
life.” Dr. Love said that “[t]he significant stressor that he has informed me [of] is his fear of
[Ronald]; his anger towards [Ronald]; his fear that he will be, in his own words, that his father is


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going to kill him; his anger towards the lack of contact in the beginning; his fear of being physically
harmed by [Ronald].” When Sam talks about his father, his behavior and his emotional state
regress to what Dr. Love would consider that of about a 7-year-old child; he will curl up into a
fetal position, start sucking his thumb, rock, and cry.
         Grace’s current diagnosis is adjustment disorder with disturbance of conduct, and
adjustment disorder with anxiety. Dr. Love said that “[a]djustment disorder with disturbance of
conduct is given when a person is having a reaction to significant stressors in their life that is above
and beyond what we would typically consider behavior-wise.” “[F]or Grace, that disorder was
given when she was acting out at home with non compliance, with calling names, those kinds of
things.” “Adjustment disorder with anxiety is very similar to what I was saying about Sam,
expressing more than expected difficulty to a stressor manifested by anxiety.” Grace’s significant
stressors are “feeling as if she is put in the middle between her mother and her father,” and “what
she reports is her father making disparaging negative comments about the people that she loves,
and making negative comments about her to her.” Grace and Sam are “exceptionally close,” and
Grace “feels very, very deeply when she has seen [Ronald] . . . become physical with Sam. And
when she sees Sam become exceptionally anxious and worried, she feels that very deeply as well.”
         Dr. Love testified that Heather has done “a very good job at putting boundaries on the
children when they have been very upset.” The children “continually refer to [Ronald] as the
animal, or as other disparaging names when they get upset, . . . and [Heather] let’s them know that,
. . . that’s not appropriate. She continually tells them, you may be upset right now, but you will
likely want to have a relationship in the future and we need to work on making this okay.” Heather
has also been very receptive to Dr. Love’s recommendations. For example, when Sam was acting
out during visits and visits were ended early, Sam felt rewarded; Heather was “very receptive” to
the suggestion that it was not okay, and that Sam needed to have a consequence when he came
home.
         Dr. Love had met with Heather during sessions. She never met with Ronald, but said he
had left her multiple voicemails. Dr. Love kept track of Ronald’s voicemails (by making written
entries into the electronic medical record) because she “perceive[d] them to be very threatening in
nature.” He will often say things like, “‘I’ll see your butt in court,’ ‘I’m going to treat you as a
hostile witness,’ ‘you’d better start calling me back,’ ‘you have five days to get back to me.’” “It’s
his language, it’s his voice, there’s a lot of things that make it very threatening.” His “emotional
lability, the intensity,” is concerning because in the span of a message “he will appear to be yelling
at me and speaking very intently, and then he will quickly change it to very, very calm”; this is a
sign of “emotional dysregulation.” She tried to call Ronald back on two different occasions (when
his messages were calm), but “the phone just rang.” She also responded to his messages by sending
him letters. (Ronald testified that the address on those letters was not his, it was his oldest
daughter’s address; he said he has never received any communication from Dr. Love, either mail
or voicemail.) The last phone call or message Dr. Love received from Ronald was on May 23,
2016; he said he was concerned for his children and that he had been unable to see them because
Dr. Love stopped the visitations, he said several times it was her “‘fault’” he has not been able to
see them.
         In his voicemails, Ronald also made allegations of parental alienation. Dr. Love explained
that “[p]arental alienation is a concept where one parent is said to be poisoning the children against


                                                 -6-
the other parent. It’s usually the custodial parent against a non custodial parent, by making negative
derogatory statements.” When asked if the children had ever revealed to her that Heather had said
negative things about Ronald, Dr. Love responded, “Very, very rarely they have said something,
‘But, mom, you said this,’ and then it will be explained and then it’s over with.”
         Dr. Love and the children discussed their visits with Ronald, but she never reviewed the
visitation notes. The children reported that several visits had gone poorly and they had “been
exceptionally distraught and they had reported that there were many negative comments made
from [Ronald],” that he would bring things up from the past, and blaming or making accusatory
statements toward Heather (e.g. “it’s your mother’s fault that we’re separated,” “it’s your mother’s
fault that this had been happening”).
         Exhibits 39 and 40 were received into evidence by stipulation of the parties. The exhibits
contain recordings from some of the visits. Exhibit 39 contains three video clips from December
2015, apparently taken by Grace on her cell phone. Exhibit 40 contains Ronald’s audio recordings
from five visits in April, May, November, and December 2015, as well as a short “compilation”
of recordings. The agency visitation worker for three of those visits testified that he was unaware
that Ronald was recording those visits. Three visitation supervisors testified, and visitation notes
were received into evidence. The evidence shows that for the most part, Ronald and Grace got
along well and had a good time during visits. However, Sam was often agitated and upset during
his time with Ronald.
         Supervision notes from Better Living for April 2014 through June 2015 were received into
evidence. During some visits, Ronald had to be redirected after talking to the children about the
case. During visits, Sam made comments that Ronald had kidnapped him. (As reflected in exhibit
40, the audio recordings, Sam said that Ronald kidnapped him in reference to a day (date unknown)
when Ronald picked him up early from school when he “had no appointments or nothing.”) The
notes also show that during one visit, Sam asked Ronald “why visits didn’t matter in the past, why
Ronald was mean to his mother, [and] why Ronald was ‘crazy.’” On another occasion, Heather
went to leave after dropping off the children. Sam wanted to go with her, but Heather told him he
needed to stay and work on building a relationship with Ronald; Sam stated that Ronald was going
to “kill me.” Heather assured Sam that he was safe and that he needed to work on his relationship
with Ronald. At the beginning of another visit, Sam punched Ronald in the stomach. Ronald told
Sam he could leave if he was not going to control himself. Sam then walked to Heather’s car.
Ronald told Grace that it was not Sam’s fault, that Sam was being told what to do by Heather.
Ronald also told Grace that they were going to be attending therapy visits and that she and Sam
could talk about what they are being told to say.
         One of the visitation supervisors from Better Living, who has since changed employment,
testified that while at Better Living, he supervised approximately 10 to 20 1-hour visits between
Ronald and his children from April to September 2015. He did not have any safety concerns
regarding Ronald’s parenting, but did “recall on occasions re-directions were made for comments
that went against the rules of visitation”; he did not recall what those comments were.
         Wendy Gilming has known Ronald and Heather for “close to 20 years.” She supervised
seven visits between Ronald and his children from November 21, 2015, to January 3, 2016. During
visits, Gilming never observed any safety concerns. However, “almost every visit,” Sam would
call Heather, argue with Ronald, demand things from Ronald, and insult Ronald. During one visit,


                                                -7-
Sam and Ronald were playing and Sam’s behavior turned extreme; “Sam was on Ron’s back and
had a hold of his shirt, basically choking Ron, had his other hand around his neck, and kept kicking
him with his knees and his feet, and he would punch him in the head.” Ronald just kept trying to
get Sam to stop hitting. Gilming pulled Sam back, and set Sam on the ground. Sam said it was
Ronald’s fault they had to move, because he lost the house, and he lost all of his friends when he
had to move. When Ronald asked Sam why he would say that, Sam said “‘that’s what Mom told
me.’” The only form of discipline Ronald used was taking Sam’s cell phone away after warning
him that would be the consequence--because Sam continually called Heather during visits, which
was distracting; when Sam did it again, Ron reached over Sam and grabbed the phone. Sam told
Ronald he could not do that, that Heather bought that, and that Ronald did not have the right to do
that. Sam threw remotes and kicked a computer desk, “throwing a tantrum.” Then Grace called
Heather and said that Ronald took the phone away, and that caused another problem. According
to Gilming, Ronald tried to control the situation in a positive way and never acted inappropriately.
Gilming said Sam threatened to kill himself a couple times during visits, which was a great concern
to Ronald; this happened at the first visit she supervised and around Christmastime.
        Shannon Conway, a family support worker with Pathfinders Support Services, testified that
he supervised visits between Ronald and the children starting in September 2016. His visitation
notes were received into evidence as exhibit 97, which showed that some of the visits appeared to
go well, but others did not. The notes from January 7, 2017, show that Ronald attempted to talk to
the children about court and had to be redirected. Also, when the kids sat quietly and did not answer
Ronald, he told them he did not like how he was being treated and that the children should not
treat people the way they treat him. Grace told Ronald that she treats him the same way he treats
her. Conway testified that during the January 14 visit, Ronald told the children they were “acting
like ass holes” and that it would not get them very far. Conway intervened and talked to him about
not cussing in front of the children or calling them names. The notes from that visit show that when
Grace told Ronald that he could not call his children names, he told her that he can call them
whatever he chooses. In March, the notes indicated that visits have gone “[a] lot better compared
to the past ones”; “everyone got along, there was no arguing, no name calling, they all agreed to
do the same things, so it went a lot smoother than what had been happening.” According to
Conway, Ronald displayed affection towards his children, hugging them at every visit.
        Michael Keady is a licensed independent mental health practitioner and a licensed marriage
and family therapist. Keady provided family therapy for the family from November 2016 to late
January or early February 2017 (which was between the June 2016 and April 2017 trial dates); the
purpose was to improve the relationship that existed between Ronald and the children. Most of the
therapy was between Ronald and the children. After the last family session, Keady met with
Ronald and Heather to share his assessment that the sessions were not productive and that he felt
they were traumatic for the children. There were periods that things would be okay and Ronald
would “calmly interact” with the children, “but throughout the process, the children were just so
resistant to the process, . . . they appeared to me to be very mistrustful and angry towards their
father. And on a number of occasions, Ron would react, I believe, without thinking and respond
to them in a very angry, intimidating manner.” At times the children appeared “very emotionally
distraught.” Both Heather and Ronald had different views of what happened in their past, but
Keady did not find it beneficial to discuss with the children who was right and who was wrong.


                                                -8-
Part of the problem the children had with Ronald was that he wanted to discuss who was right and
who was wrong. Keady tried to direct Ronald not to continue to have that discussion with the
children, but Ronald was not able to follow that recommendation.
        In Keady’s opinion, at the time therapy was ended, he did not believe that continued
therapy would be beneficial to working towards a more normalized relationship between Ronald
and the children because “the same pattern was repeating over and over” and Ronald “was not
very responsive to my direction to change his pattern of interaction with his children or with his
ex-wife.” Keady said he “specifically directed [Ronald] not to be communicating with [Heather],
and then [Ronald] would share threatening and intimidating emails that he would send to her, and
he would also send them to me. I guess he thought they were appropriate. It was very confusing.”
Keady did not think continued therapy would be helpful unless Ronald “understands that he is the
primary problem in terms of how his children think and feel about him.” When asked if visits may
be traumatic for the children as well, Keady said, “Yes, if [Ronald] was interacting in a controlling
or aggressive manner.” Keady would support Ronald continuing to see the children on a supervised
basis, and said “[i]t might be most productive” if visits were supervised by a mental health
professional. (Ronald testified that he had three family sessions with Keady when both children
were present--all three sessions ended early. Ronald does not believe that family therapy has
occurred in this case.)
        Keady testified that he had an opportunity to work with Heather as well and that “she was
never inappropriate” and never had to be redirected on how she spoke to the children or Ronald.
        Exhibit 102 is Ronald’s audio recording of a November 2016 session and a January 2017
session between Ronald, Heather, and Keady. The recordings reflect that in November 2016,
Keady wanted to talk about what therapy would look like and said that they were not getting into
blame and history, but that they were going to start new; they all agreed that history would be
discussed if the children brought it up. Keady also asked that neither parent talk negatively about
each other in front of the children, and at Heather’s suggestion, also said that the parties should
not talk negatively about extended family or therapists. Ronald then said he called Dr. Love a
“quack” in front of the children, but thought it went over their heads and they would not know
what he meant unless Heather explained it to them. Keady then asked if they could agree to not
talk negatively, to which Ronald responded, “I haven’t.”
        The recordings reflect that in January 2017, Keady told Ronald and Heather that the
children’s relationship with Ronald was so unstable, they all needed to decide what the path
forward would be. Keady said the children rely on each other for safety, which is not an appropriate
dynamic. He also said that having both children together in therapy was not a manageable situation.
He suggested working with Ronald and Grace and then if that moved forward in a productive
manner, Keady would engage Sam in a similar process. Keady emphasized that Ronald needed to
interact with the children in a productive and positive way, and that over time trust could be
developed. Keady needed to see consistent behavioral interaction that was not escalated, and said
that the parent needs to remain calm. He told Ronald that he had observed his interactions to be
extremely upsetting to the children when discussing Heather, and that Ronald was very escalated
in intensity and believed his position was the truth, and the children were in a position to say that
was not their memory; both children got so escalated the session had to be ended. Ronald asked
Keady, “So we aren’t supposed to address false memories?” Keady responded that to have a


                                                -9-
relationship with the children right now, Ronald needed to accept the children where they were at
and their belief systems. Ronald continued to insist they needed to discuss the past and Heather’s
undermining of Ronald. Keady said he did not know if Heather was doing that, but that Ronald
has told Keady and the children that Heather is doing that. Keady was not going to do family
therapy unless he saw Ronald with one child and Ronald followed the direction to not discuss
certain subjects, because they cannot get into past issues until one child can be in the same room
with Ronald and not express hostility and rage. Ronald continued to insist that if they ignore
underlying issues, his relationship with the children would get worse. Keady, Heather, and Ronald
ultimately agreed that the process was traumatic for the children, and Keady said for that reason,
he would like to discontinue family therapy. Later, when Keady and Ronald were alone, Ronald
again brought up parental alienation, but Keady said that Ronald did not have proof. Ronald
responded, “You’re part of it.” And Keady said it could be seen as if Ronald is leading the children.
Ronald also referred to Heather as “a crazy.”
        Since therapy ended, Keady has “continued to receive [from Ronald] text mails, texts,
emails criticizing [Keady] personally, talking about [his] family, [and] attacking [him]
professionally”; Keady found them threatening in nature. Keady said those contacts “just
reinforce[] what I experienced with him, his children, his ex-spouse, and then I got to personally
experience.”
        Exhibits 28 and 81 are a collection of emails Ronald sent Heather during the pendency of
this action. We include a small sampling of excerpts from those emails. Numerous emails
expressed his unhappiness about not getting his visits and asked Heather to contact the visitation
supervisor to arrange visitation per court order. In one email (date unclear) Ronald wrote, “Thank
you for being so stupid as to publish your contempt again in a message on the eve of the pretrial
hearing. You better get a new lawyer . . . quickly[.]” In another email (date unclear) he wrote, “Are
you still functioning under the delusion that you have ANY choices remaining. You will be
convicted of multiple criminal contempt charges you sick fuck. You will not recognize your life
soon. Thank God and the law that your time has come.” On January 10, 2017, he wrote,
                 I think you should know that I am NEVER going away. NEVER going to quit. . . .
        Psychiatric communities and Child advocates and Courts have clearly defined your conduct
        as child abuse. . . .
                 ....
                 . . . You are not smart enough to conjure up this legal strategy. I know that this is
        [your lawyer] and she will answer to the Council for Discipline and God. I[’]m not sure
        which is worse. . . .
                 Of course, you will say that [the children] only behave badly towards me. But,
        noone [sic] believes that. It[’]s like raising fire breathing dragons and then naively
        believing that you can AIM them at me. Their lives and personalities are being manipulated
        and changed by your unending campaign and your perception of your selfish entitlement.
        These are the effects of the Judges [sic] ruling by awarding a mentally unstable alcoholic
        the total control of children believing that it was in the best interest of the children. The
        Best Interest justification has destroyed our children[’]s childhood and left the children and
        I in a legal black hole. I should have committed a crime that would have involved CPS and
        Juvenile court. At least under such severe circumstances my visitation successes at Better


                                                - 10 -
       Living would have led to normal parenting time within a year or less and the State would
       have paid the bill. . . .
               ....
               I don[’]t see a negotiation with you would be effective, safe or sincere. You should
       lose the privilege of parenting children at least. . . . I will always encourage and facilitate a
       healthy relationship with you. I will teach forgiveness and understanding.

On March 5 he wrote, “You obviously are encouraged by an unethical and dishonest attorney.
Perfect match considering you are the same. Again. I intend to see that you are punished and
prevented from repeating the conduct that is so well documented. I am just getting started. But,
feel free to keep digging.” On March 10, Ronald sent Heather a link to a Youtube video titled
“Parent Alienation Syndrome OR Narcissistic Personality Disorder” and wrote, “Eventually you
will face that what you are doing is typical behavior of a disturbed personality who has
demonstrated a lack of empathy or understanding of the unnatural harm and stress that you are
causing the children.” He goes on to talk about traits associated with borderline narcissistic
personality disorder, her “victim act,” and the “brainwashing of the children.” He then wrote, “The
court must give custody to me for two important reasons; the children will not heal under your
control and I will encourage a healthy relationship with you. There is no other choice and it is too
late to distract the court or manipulate the narrative from the clear and overwhelming amount of
evidence.” On March 12 he wrote, “I am sorry that you feel the way you do. I can accept your
faulty perception of me. I have no right to control how you see me. You are entitled to your reality.
Your anger is not my responsibility.”
         When asked if he believed those communications he sent to Heather were courteous,
Ronald said, “I believe they’re blocked, I don’t think she reads them anyways.” When asked again
if he believed that they were courteous, he said “They’re truthful.” When asked if he believed they
were civil, he said, “Yes, I do.”
         Heather testified that her communication with Ronald “is limited to his intimidation and
threats via email and text messages, and I do not respond to those. And in light of the way he
communicates with me, it is difficult to communicate with him.” When asked what her ideal
outcome was as far as communication provisions of a parenting plan, Heather said, “Well, my
ideal outcome is that [Ronald] would learn to be appropriate with other people, and that we could
just have a regular visitation schedule, like most divorced couples do. Unfortunately, we’re not in
that situation.” She also believed that if Ronald could “keep on topic,” it would be possible to
coparent, but she does not believe he can “keep it on topic.”
         When asked what the most concerning behavior of Ronald had been since the divorce, as
it relates to the children, Heather said, “I suppose it’s the emotional trauma that he will put them
through.”
         [F]or example, my daughter . . . performs at the playhouse, and last summer [2016] she
         invited her father to come see her perform, and he denied her several times, told her he
         wouldn’t come. She would call back, crying. Finally he told her that he would make a deal
         with her, if mommy would [allow Gilming to supervise a particular visit], then he will
         come see her play. It’s just emotional manipulation that’s not an appropriate way to deal
         with children.


                                                - 11 -
(Heather said she was privy to the statement where Ronald tried to make a deal because he was on
speaker phone.)
         Heather thinks supervised visits should continue because Ronald has “a hard time
controlling his behavior,” meaning “[a]nger, knowing the right and appropriate things to say,
controlling his tongue, keeping adult things adult.” She said it has been 3 years since Ronald has
spent “significant time” with the children”; they have grown and they have “some anger.” She
believes that there needs to be a therapeutic component to rebuilding the relationship between
Ronald and the children. Ronald’s parenting time “should grow with the children’s comfort with
him.”
         Keeping the evidence and the legal principles governing custody in mind, we find the
district court did not abuse its discretion in finding that Ronald failed to prove a material change
in circumstances warranting a custody modification. There were parent-child relationship issues
warranting supervised parenting time for Ronald when the marriage was initially dissolved, and
there was insufficient new evidence to suggest Ronald’s relationship with his children had
materially changed since the initial decree and that he should have custody rather than Heather.
Much of Ronald’s evidence focuses on what he believes to be parental alienation behaviors by
Heather. And while this court takes seriously claims of parental alienation, the record before us
does not support such a finding.
         Ronald claims that Sam, in particular, has made several comments that seem unusual
coming from someone his age (i.e. “you kidnapped me”; you use “meth”; you are a “stalker”);
these types of comments could suggest an inappropriate attempt to influence Sam’s perception of
his father, or at a minimum, the presence of inappropriate comments made to Sam or in his
presence. However, neither Dr. Love nor Keady, the only two witnesses who actually worked with
the children in a therapeutic setting, said parental alienation was present in this case. In fact, both
said that Heather responded appropriately when the children made negative comments about
Ronald. We recognize that a parent may respond more appropriately in a therapeutic setting;
however, our consideration of the entire record does not compel a different conclusion. This is not
to say there was no evidence of possible alienating conduct. For example, there are recordings of
conversations between Ronald and Grace which suggest some alienating conduct by Heather. In
April 2015, Grace suggests Heather makes Sam dislike Ronald by making up bad things about
Ronald, such as Ronald being a drug addict, or that Ronald’s girlfriend is replacing Heather as
Sam’s mother. A month later, Grace indicates Heather would not allow Grace to go to Sam’s
school concert because Grace had told Ronald about the concert. If true, such conduct by Heather
is troubling, and if the record contained evidence of such behavior on an extended basis, the
outcome of this case may have been different. However, based on the record before us, Ronald
failed to meet his burden of proving parental alienation, and therefore, such allegations cannot
constitute a material change in circumstances warranting a change in custody. Furthermore, none
of the witnesses testified that Ronald should have custody; not Dr. Montoya, not Dr. Love, not
Keady.
         As an alternative to modifying custody, Ronald sought unsupervised parenting time with
his children. Based on the evidence already discussed above, we can find no abuse of discretion in
the district court’s finding that Ronald failed to prove a material change in circumstances
warranting a change in his supervised parenting time. While the record before this court did not


                                                - 12 -
provide much detail as to the reasons why supervised parenting time was ordered in the initial
decree, there was nevertheless substantial evidence to show ongoing parent-child conflicts and
troubling relationship issues. In order to establish a material change in circumstances which would
support the modification of parenting time from supervised to unsupervised, the evidence would
necessarily have to reflect improvement in Ronald’s ability to provide a safe and stable
environment for unsupervised parenting time consistent with their best interests. See Fine v. Fine,
261 Neb. 836, 626 N.W.2d 526 (2001) (while noting parent had taken some steps to address certain
problems, and also noting there was no evidence the parent would intentionally harm the children,
supervised visitation was necessary until parent could provide safe and stable environment for
children consistent with their best interests). The record does not demonstrate that Ronald can
provide a safe and stable environment for his children consistent with their best interests at this
time.
                                         2. CHILD SUPPORT
         In its child support calculation attached to the April 20, 2017, modification order, the
district court attributed to Ronald a total gross monthly income of $2,833.33 per month ($2,281.84
net monthly income). Paragraph A of the order addressed custody and supervised parenting time,
and made Ronald responsible for all costs associated with the supervised parenting time. Paragraph
B of the order set child support for two children at $761 per month, commencing December 1,
2014. In paragraph H of the order, a judgment was entered against Ronald in the amount of
$1,792.83 for past due child care and medical costs, and further ordered him to pay half the medical
costs above $480 per child per year. Paragraph I states that Ronald “shall pay a minimum of [$50]
per month in addition to his child support and other financial obligations for the support of the
minor children until such time as the judgment against him is paid in full.” We note that at oral
argument in this case, it was suggested by Heather’s counsel that the payment of the additional
$50 per month included payment towards Ronald’s retroactive support. Further, in Heather’s brief
to this court, she asserts, “The lower court did not order the retroactive child support to be paid in
full immediately, but rather ordered his new monthly child support to include a small amount
towards the retroactive support.” Brief for appellee at 19-20. However, if it was the intent of the
district court to include retroactive child support as part of the $50 monthly payment on the
judgment addressed in paragraph I, that is not what is reflected in the modification order or
elsewhere in the record before us.
         Ronald does not claim that the total monthly income attributed to him was in error. Rather,
he claims that payment of $761 per month for child support retroactive to December 2014, along
with one-half of the health care expenses, and “$1,083.00 per month for visitation - five hours per
week at a cost of $50 per hour” will leave him with “less than $482.84 on which to live.” Brief for
appellant at 47. He contends the district court should have allowed some type of downward
deviation from the child support guidelines pursuant to basic subsistence principles. Ronald claims
he “clearly does not have the ability to pay retroactive support.” Id. at 48.
         Generally, child support payments should be set according to the Nebraska Child Support
Guidelines, which are applied as a rebuttable presumption. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013); Neb. Ct. R. § 4-203 (rev. 2011). However, a parent’s support, child care,
and health care obligation shall not reduce his or her net income below the minimum of $1,005 net


                                                - 13 -
monthly for one person (in 2017), or the poverty guidelines updated annually in the Federal
Register by the U.S. Department of Health and Human Services under authority of 42 U.S.C.
§ 9902(2), except minimum support may be ordered as defined in § 4-209 [$50, or 10 percent of
the obligor’s net income, whichever is greater, per month]. Neb. Ct. R. § 4-218 (rev. 2017). A
deviation in the amount of child support is allowed whenever the application of the guidelines in
an individual case would be unjust or inappropriate. Pearson v. Pearson, 285 Neb. 686, 828
N.W.2d 760 (2013). Deviations from the guidelines must take into consideration the best interests
of the child. Id.; § 4-203.
                                (a) Supervised Parenting Time Costs
        Ronald contends that the cost of supervised parenting time should be factored into a
downward deviation for child support. He suggests this could be done “dollar for dollar” in
reducing his child support, or alternatively, by including the cost of supervised parenting time as
support for the children in the child support worksheet. He argues this would be “fundamentally
fair and consistent with due process and Nebraska minimum subsistence requirements.” Brief for
appellant at 47.
        While the Nebraska Child Support Guidelines require consideration of the paying parent’s
obligation for certain other costs beyond monthly child support to keep the paying parent above
the poverty level noted above, supervised parenting time is not identified as such a cost. Neb. Ct.
R. § 4-218 states that a “parent’s support, child care, and health care obligation shall not reduce
his or her net income” below the poverty level established by the federal poverty guidelines. Costs
incurred for supervised parenting time cannot be characterized as support, child care, or health
care.
        Further, a dollar-for-dollar reduction would result in the children receiving no child support
from Ronald, and including such costs in the child support worksheet would likewise significantly
minimize Ronald’s child support obligation. A custodial parent receiving substantially reduced or
no child support is contrary to the children’s best interests; a custodial parent has fixed and constant
expenses in raising children. See Pearson v. Pearson, supra. Ronald’s unwillingness to accept the
advice of mental health and family counseling professionals as to how to move forward in building
relationships with his children has clearly impacted his inability to eliminate supervised parenting
time. The district court did not abuse its discretion by not allowing a downward deviation in child
support for these costs.
                                       (b) Retroactive Support
       Ronald argues that the district court abused its discretion in awarding retroactive child
support because he “clearly does not have the ability to pay retroactive support.” Brief for appellant
at 48.
       In determining whether to order a retroactive modification of child support, a court must
consider the parties’ status, character, situation, and attendant circumstances. Johnson v. Johnson,
290 Neb. 838, 862 N.W.2d 740 (2015). Absent equities to the contrary, modification of a child
support order should be applied retroactively to the first day of the month following the filing date
of the application for modification. Id. The children and the custodial parent should not be




                                                 - 14 -
penalized by delay in the legal process, nor should the noncustodial parent gratuitously benefit
from such delay. Id.
        However, the ability to pay is an important factor in determining retroactive child support.
See Freeman v. Groskopf, supra. And in the absence of a showing of bad faith, it is an abuse of
discretion for a court to award retroactive child support when the evidence shows the obligated
parent does not have the ability to pay the retroactive support and still meet current obligations.
Id.
        In its April 20, 2017, modification order, the district court ordered Ronald to pay child
support in the amount of $761 per month, commencing December 1, 2014 (which was the first day
of the month following Heather’s November “cross complaint” seeking modification of child
support). The modified child support amount is an increase of $548.60 per month over the $212.40
per month ordered at the time of the amended decree. Given that child support is due on the first
day of each month, Ronald would owe retroactive support for 29 months (December 2014 through
April 2017). Thus, Ronald’s retroactive child support obligation is $15,909.40 ($548.60 per month
x 29 months). Although, as noted above, Heather’s counsel suggests this retroactive child support
judgment is included in the $50 monthly payment set forth in Paragraph I, we do not agree the
language covers this separate child support judgment. Paragraph I states that Ronald “shall pay a
minimum of [$50] per month in addition to his child support and other financial obligations for
the support of the minor children until such time as the judgment against him is paid in full.”
Paragraph I states that the $50 monthly payment is in addition to his child support. As a result, it
appears the retroactive child support would be due in full immediately. And there is no evidence
that the district court considered Ronald’s ability to immediately pay and bring current the
retroactive child support judgment of $15,909.40.
        In the order of modification, the district court attributed a net monthly income of $2,281.84
to Ronald. After subtracting his monthly child support obligation of $761, and his $50 monthly
payment on the judgment against him for past due child care and medical costs, Ronald has
$1,470.84 left per month for his personal needs and expenses. The 2017 basic subsistence
minimum was $1,005 per month. See § 4-218 (rev. 2017). Accordingly, Ronald has only $465.84
per month that can be considered when determining an appropriate monthly payment on the
retroactive support judgment, along with his obligations for health care costs for the children. See
§ 4-218. We remand the matter of retroactive child support back to the district court for
consideration of Ronald’s ability to pay such support, either immediately or in installments, and
keeping in mind the basic subsistence limitation.
                                        (c) Tax Exemption
         Ronald argues that “fairness” dictates that he be awarded one income tax exemption while
there are two minor children and that the parties should alternate the exemption when there is only
one minor child dependent upon them. Brief for appellant at 48. An award of a child dependency
exemption is reviewed de novo on the record for an abuse of discretion. See Anderson v. Anderson,
290 Neb. 530, 861 N.W.2d 113 (2015). In general, the custodial parent is presumptively entitled
to the federal tax exemption for a dependent child. Id. We find no abuse of discretion in the court’s
decision to award the child dependency exemptions to Heather.



                                               - 15 -
                                            3. CONTEMPT
        Ronald claims the district court erred in not finding Heather in contempt for denying him
court-ordered parenting time. When a party to an action fails to comply with a court order made
for the benefit of the opposing party, such an act is ordinarily a civil contempt, which requires
willful disobedience as an essential element. Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d
867 (2012). “‘Willful’ means the violation was committed intentionally, with knowledge that the
act violated the court order.” Id. at 376, 808 N.W.2d at 873. Civil contempt must be proved by the
complainant by clear and convincing evidence. See Martin v. Martin, 294 Neb. 106, 881 N.W.2d
174 (2016).
        In his brief, Ronald specifically refers to January through August 2016, and January
through February 2017, as periods of time during which Heather violated the court-ordered
parenting time. The terms of the April 2014 amended decree would have been in effect, and it
states:
                It is in the best interest of the minor children . . . that [Heather] be awarded sole
        physical and legal custody, subject to supervised parenting time with [Ronald] as outlined
        in the parenting plan received by the Court as exhibit 5. The Court finds that Corey
        Densberger, Wendy Gilming, and Better Living are approved persons/entities to supervise
        the visitation at the time of trial. Such supervised visitation shall take place every Saturday
        from noon until 5:00 pm, unless the children have other activities scheduled for that day,
        in which case the supervised visitation shall occur on Sunday at the same time.

Incorporated by reference in the decree and amended decree was a “proposed parenting plan”
which states in relevant part, “[Ronald] shall have reasonable rights of parenting time with the
minor children as supervised by a mutually acceptable adult other that [Heather] a minimum of
twice a month. [Ronald] is responsible for arranging visitation with the supervisor, and the
supervisor shall contact [Heather] to arrange parenting time.”
        In August 2016, the court ordered that Pathfinders shall supervise visits with Ronald and
the children.
                                 (a) January Through August 2016
         During her June 2016 testimony, Heather said that she had stopped visits, and the last visit
was in January 2016. She “could no longer agree to [Gilming] being the supervisor,” and that was
at the recommendation of the children’s therapist. Heather acknowledged that the amended decree
approved Gilming as a supervisor at the time of trial, but noted that it also said as “outlined in
parenting plan,” and the parenting plan said “a mutually agreeable person.” Heather, through her
counsel, notified Ronald, through his counsel, that Gilming was no longer approved, but that the
Pathfinders and Better Living agencies would be approved; Densberger was also a mutually agreed
supervisor at the time of the divorce trial. Heather said she had not been contacted by anyone other
than Gilming seeking to arrange visitation.
         Exhibit 22, text messages between Heather and Gilming, was received into evidence
without objection. The messages show that on January 8, 2016, Heather told Gilming that she did
not agree to having Gilming as a supervisor any more, and that, “If Ron would contact Better
Living or Pathfinders, I will work with them to get something arranged.” Although Gilming


                                                - 16 -
continued to message Heather in an effort to arrange visits, Heather told her again on March 30
and May 19 that if Ronald wanted to contact Pathfinders or Better Living, she would be “happy”
to set up visits.
        Based on our de novo review of the record, we cannot say that Heather was willfully
disobeying a court order from January to August 2016. The evidence reveals that she was not
unwilling to give Ronald his court-ordered visitation, she was just unwilling to have Gilming
supervise those visits. And there is some indication from the parenting plan attached to the decree
that visitation was to be supervised by a “mutually acceptable adult.” Heather expressed a
willingness to work with either Pathfinders or Better Living, but no one other than Gilming
contacted her to arrange visits. Accordingly, the district court did not abuse its discretion when it
found that Ronald failed to prove Heather was in contempt as to this period of time.
                                (b) January Through February 2017
         In April 2017, Ronald testified that he had only seen his children two times in the last 2
months. He said that at the January 20 meeting with Heather and Keady there was discussion about
discontinuing family therapy, but there was no discussion about discontinuing visits. It was a
“disappointment” when Heather stopped the visits; visits resumed 2 weeks ago when “allowed”
by Heather. Ronald thought filing a show cause contempt motion “might have helped start the
visits again.”
         During her April 2017 testimony, Heather said that Ronald had scheduled parenting time
on a weekly basis. After a consultation with Keady in January, she skipped the following visit
based on his recommendation that the visits were also traumatic. Then Ronald was in Arizona the
following week. They did a visit a week later, which was “also a traumatic visit,” so she decided
to follow Keady’s recommendation that once a month was probably appropriate. She said that at
the January meeting, after Ronald left the room, Keady told her it would be his recommendation
that visits go to once a month until such time that it was a less traumatic experience for the children;
it was Heather’s understanding that Keady would be communicating that to Ronald, and then she
communicated with Pathfinders and her attorney. Her attorney advised that it would be prudent to
follow Keady’s recommendations. The transcript reflects that on February 8, Heather filed a
motion to modify Ronald’s parenting time to once per month.
        Exhibit 84 was received into evidence without objection. It contains a text message from
Shannon Conway at Pathfinders to Ronald on January 21, 2017, stating, “Heather said that the
therapist has recommended stopping therapy and visits so she will not be bringing the kids today.”
The exhibit also contains an email exchange between Keady and Ronald. Ronald informed Keady
that “Heather told Pathfinders that you recommend cancelling court ordered visits. She [cannot]
and you [cannot] recommend that.” Keady responded, “The only recommendation I made was that
family therapy will stop based on Ron, Heather and this therapist[‘s] agreement (1/19/2017) that
[t]he process of family therapy is traumatic for Grace and Sam. Recommendations regarding Court
ordered visits are outside my role as family therapist.”
         Keady testified that after the family therapy sessions ended, he met with Ronald and
Heather to share his assessment that the therapy sessions were not productive, and Keady felt that
they were traumatic for the children. When asked if he also discussed with Ronald and Heather



                                                 - 17 -
that the supervised visits may be traumatic for the children as well, Keady responded, “Yes, if
[Ronald] was interacting in a controlling or aggressive manner.”
        Heather said they tried to schedule a visit the first couple of weekends of March, but there
were scheduling conflicts with the supervisor. The third weekend in March the supervisor had to
cancel for a family emergency. Then there was a visit the last weekend in March.
        Based on the record before us, it is clear that from January 20 through the end of February
Ronald did not get all of his court-ordered visitation. However, it is not clear that Heather willfully
disobeyed the court order. Despite the inconsistency as to what Keady’s recommendation, if any,
was regarding visits, Heather testified that she was relying on a conversation she had with Keady
that visits should be reduced and advice from her attorney that it would be prudent to follow
Keady’s recommendation. Heather’s reliance on professional advice for a brief temporary
cessation of parenting time out of concern for the children’s mental health was not unreasonable.
Accordingly, the district court did not abuse its discretion when it found that Ronald failed to prove
Heather was in contempt as to this period of time.
                                          4. FAIR PROCESS
         Ronald claims that the process was “fundamentally unfair” and that the matter should be
remanded so that he may have a fair trial. Brief for appellant at 48. His specific claims are that the
court made rulings prior to reviewing all of the evidence, and that evidentiary hearings, closing
arguments, and the court’s findings were had off the record and/or out of the presence of the
parties.
                                      (a) Review of Evidence
        Ronald argues that the Court made rulings prior to having reviewed all of the evidence,
specifically exhibit 102, the 2½-hour CD (recording of two sessions between Heather, Ronald, and
Keady) that was offered and received by the Court. He claims:
        Proceedings ended at 3:30 p.m., oral arguments were heard in chambers . . . pronouncement
        of findings and orders were made in chambers . . . with an order to be submitted all before
        the 4:30 close of the judicial day on April 4, 2017. Therefore, the trial court did not review
        Exhibit 102[.]

Brief for appellant at 49. Although Ronald claims that that the foregoing events occurred “all
before the 4:30 close of the judicial day” on April 4, there is nothing in our record to show what
time the in-chambers proceedings concluded. Even if the court did not fully review exhibit 102
prior to making preliminary findings or giving directions to counsel to draft a proposed order, that
does not mean that the court did not review and consider the exhibit before the modification order
was filed on April 20.
                             (b) Proceedings and Findings Off Record
        The Nebraska Supreme Court has made it clear that its rules require the district court to
provide a court reporter whenever a litigant requests one. See Kennedy v. Kennedy, 221 Neb. 724,
380 N.W.2d 300 (1986). “The rules relating to official court reporters provide that the court
reporter shall make a verbatim record of ‘the testimony or other oral proceedings,’ regardless of



                                                - 18 -
whether a request has been made by the court, counsel, or any party.” Gerdes v. Klindt’s, Inc., 247
Neb. 138, 140, 525 N.W.2d 219, 221 (1995) (citing to Neb. Ct. R. of Official Ct. Rptrs. 4b(2) (rev.
1992)). However, records of pretrial and posttrial matters are made only at the request of counsel.
Gerdes v. Klindt’s, Inc., supra.
       Neb. Ct. R. § 1-203 (rev. 2010) states that court reporting personnel must comply with any
Nebraska Supreme Court rule relating to official court reporters and have a duty to make “a
verbatim record of all proceedings in the court to which they are appointed in accordance with
Neb. Ct. R. App. P. § 2-105.” Neb. Ct. R. App. P. § 2-105(A) (rev. 2010) states:
               (1) “Court reporting personnel,” . . . shall in all instances make a verbatim record
       of the evidence offered at trial or other evidentiary proceeding, including but not limited to
       objections to any evidence and rulings thereon, oral motions, and stipulations by the
       parties. This record may not be waived.
               (2) Upon the request of the court or of any party, either through counsel or pro se,
       the court reporting personnel shall make or have made a verbatim record of anything and
       everything said or done by anyone in the course of trial or any other proceeding, including,
       but not limited to, any pretrial matters; the voir dire examination; opening statements;
       arguments, including arguments on objections; any motion, comment, or statement made
       by the court in the presence and hearing of a panel of potential jurors or the trial jury; and
       any objection to the court’s proposed instructions or to instructions tendered by any party,
       together with the court’s rulings thereon, and any posttrial proceeding.

         Ronald argues the “court appears to have held evidentiary hearings, some after trial
commenced where affidavits were offered and received, off the record such that there is not a
proper record for appeal.” Brief for appellant at 49.
         We have reviewed the judge’s notes generally referenced in Ronald’s briefs. The entries
relate to things like motion hearings and status hearings that did not require a verbatim record
unless requested. See § 2-105(A)(2)
         We briefly address one specific “hearing” on March 24, 2017, referenced by Ronald.
Initially, on March 16, an on-the-record hearing was held regarding Heather’s February 2017
motion to modify parenting time to once per month and a motion to discontinue family therapy.
Keady was testifying, and because the court had another matter to attend to, a recess was taken.
The bill of exceptions from the March 16 hearing states, “A recess was taken at 2:10 p.m., and the
matter was then continued to March 24, 2017, at 10:00 a.m., and to be held on affidavits.” The bill
of exceptions before us does not contain a hearing from March 24. An entry from “Judge[’]s
Notes” on that day states: “Attorneys [for Heather and Ronald] present. Motion to compel
sustained. [Ronald] to comply within 10 days.” Attorney [for Heather] to submit proposed order.”
There is no evidence that an evidentiary hearing actually occurred on March 24 or that affidavits
were, in fact, received. Accordingly, this too appears to have been a motion hearing that did not
require a verbatim record unless requested. See § 2-105(A)(2). We note that trial resumed less than
2 weeks later, on April 4, at which time Keady was among the witnesses that testified. The matter
was submitted on April 4, and the modification order addressing parenting time was filed on
April 20.



                                               - 19 -
          Ronald further argues that “[t]here were no stipulations that closing arguments be held off
the record, but closing arguments were held off the record and out of the presence of the parties.”
Brief for appellant at 49. The conduct of final argument is within the discretion of the trial court,
and a trial court’s ruling regarding final argument will not be disturbed absent an abuse of
discretion. Schriner v. Schriner, 25 Neb. App. 165, 903 N.W.2d 691 (2017). Additionally,
§ 2-105(A)(2), set forth previously, requires that a verbatim record of “arguments” be made only
upon request.
         After both parties were finished presenting their evidence, the court said, “All right, why
don’t we take a recess. Unless you want closing arguments on the record, I’ll see counsel in
chambers. Let’s take about a 10-minute break and you can collect your thoughts and take a break,
and then I’ll hear arguments from counsel.” (Emphasis supplied.) There is no indication on the
record before us that either party requested to have closing arguments on the record. See Kennedy
v. Kennedy, 221 Neb. 724, 380 N.W.2d 300 (1986) (trial court was required to provide court
reporter to make verbatim recording of closing arguments in custody hearing upon request by
counsel). Nor is there any indication that Ronald objected to having arguments in chambers.
Generally, failure to make a timely objection waives the right to assert prejudicial error on appeal.
Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
          Finally, Ronald argues the court’s findings and orders were announced immediately, and
were off the record and out of the presence of the parties. An entry from “Judge[’]s Notes” for
April 4, 2017, states: “[Heather] present with [her] Attorney . . . . [Ronald] present with [his]
Attorney . . . . Hearing held and evidence adduced. Matter argued and submitted. [Heather’s
attorney] to submit proposed order.” Given that Heather’s attorney was to submit a proposed order,
the court must have made preliminary findings or gave counsel directions after closing arguments
were had in chambers. While the court’s findings and directions may have been orally given in
chambers, there is no requirement that they be orally given at all. The court could have simply
waited to issue a written order on its own accord. Accordingly, we find no error in the court’s
orally giving its preliminary findings or directions off the record and/or in chambers. The court
filed its written order of modification on April 20.
                                        VI. CONCLUSION
        On the issue of retroactive child support, we remand the matter back to the district court
with directions as set forth above. In all other respects, we affirm the district court’s modification
order.
                                                                    AFFIRMED IN PART, AND IN PART
                                                                    REMANDED WITH DIRECTIONS.




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