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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

KEE V. GILBER

Cite as 32 Neb. App. 1

Paw Kee, appellee, v. Christian 

L. Gilbert, appellant.

___ N.W.2d ___

Filed June 6, 2023. No. A-22-317.

1. Child Custody: Jurisdiction: Appeal and Error. The question whether 

jurisdiction should be exercised under the Uniform Child Custody 

Jurisdiction and Enforcement Act is entrusted to the discretion of the 

trial court and is reviewed by an appellate court de novo on the record 

for abuse of discretion.

2. ____: ____: ____. In considering whether jurisdiction exists under the 

Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdictional question that does not involve a factual dispute is determined by 

an appellate court as a matter of law, which requires an appellate court 

to reach a conclusion independent from the trial court.

3. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of discretion 

by the trial court, whose judgment will be upheld in the absence of an 

abuse of discretion.

4. Child Support: Appeal and Error. An appellate court reviews child 

support determinations de novo on the record, but the trial court’s decision will be affirmed absent an abuse of discretion.

5. Paternity: Attorney Fees: Appeal and Error. An award of attorney 

fees in a paternity action is reviewed de novo on the record to determine 

whether there has been an abuse of discretion by the trial judge. Absent 

such an abuse, the award will be affirmed.

6. Child Custody: Jurisdiction: Courts: Records. Neb. Rev. Stat. 

§ 43-1235 (Reissue 2016) does not require a verbatim transcription of 

the consultation between two courts after a hearing; rather, a sufficient 

record of the courts’ posthearing consultation is made when the courts 

enter orders memorializing the substance of their communication.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/13/2023 09:08 AM CDT
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7. Child Custody. When deciding custody issues, the court’s paramount 

concern is the child’s best interests.

8. Evidence: Appeal and Error. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court 

heard and observed the witnesses and accepted one version of the facts 

rather than the other.

9. Child Support: Appeal and Error. Whether a child support order 

should be retroactive is entrusted to the discretion of the trial court, 

and an appellate court will affirm its decision absent an abuse of 

discretion.

10. Child Support: Taxation: Presumptions. In general, the custodial parent is presumptively entitled to the federal tax exemption for a dependent child.

11. Child Support: Taxation: Waiver. A court may exercise its equitable 

powers and order the custodial parent to execute a waiver of his or her 

right to claim the tax exemption for a dependent child if the situation of 

the parties so requires.

Appeal from the District Court for Lancaster County: Ryan 

S. Post, Judge. Affirmed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Courtney R. Ruwe and Adam E. Astley, of Astley Putnam, 

P.C., L.L.O., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

I. INTRODUCTION

Christian L. Gilbert appeals the decision of the Lancaster 

County District Court in a paternity action brought by Paw 

Kee (Paw). The district court determined that Christian was the 

father of Cylise Gilbert, awarded sole legal and physical custody of Cylise to Paw subject to Christian’s specified parenting 

time, and ordered Christian to pay child support and attorney 

fees. On appeal, Christian challenges the district court’s jurisdiction, its award of custody and parenting time, and its award 

of child support and attorney fees. We affirm.
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II. BACKGROUND

Paw and Christian, who never married, are the parents 

of Cylise, born in 2016 in Iowa. Paw was originally from 

Burma; she and Christian met through a job-training program 

in Chadron, Nebraska. After Paw graduated from the program, 

she moved to Iowa to live with Christian.

On January 9, 2020, Paw filed a complaint for paternity, 

custody, and child support in the district court for Lancaster 

County. In her complaint, Paw stated that she and Cylise 

had been residents of Nebraska since she “fled her home in 

Iowa where she resided with [Christian] to escape immediate risk of harm due to [his] mistreatment and abuse.” She 

claimed that Nebraska had jurisdiction over this matter pursuant to Nebraska’s Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA), Neb. Rev. Stat. §§ 43-1226 to 

43-1266 (Reissue 2016 & Cum. Supp. 2022); she specifically pointed to § 43-1238(a). Paw sought a paternity order 

establishing Christian as Cylise’s father; awarding her sole 

legal and physical custody, subject to Christian’s parenting 

time; determining child support and requiring Christian to pay 

a percentage of any childcare expenses and medical, dental, 

and vision costs not paid by insurance in accordance with 

the Nebraska Child Support Guidelines; awarding her the 

“deductions/exemptions/child care tax credit” for Cylise “each 

and every year”; and awarding her attorney fees and costs. 

Paw also sought a temporary restraining order to protect her 

and Cylise from harassment and harm, noting that Christian 

had a third degree domestic assault case pending in the district court wherein she was the victim. On January 13, Paw 

filed an ex parte motion for temporary custody, which was 

granted that same day.

On January 23, 2020, Christian filed a motion to dismiss 

for lack of jurisdiction under the UCCJEA. He claimed that 

he filed a petition to establish paternity, custody, and child 

support in an Iowa district court on December 17, 2019. 

He alleged that Iowa was Cylise’s home state as defined 
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Cite as 32 Neb. App. 1

under the UCCJEA and that Iowa had not declined to exercise jurisdiction.

A jurisdiction hearing and hearing on Christian’s motion 

to dismiss was held in the Lancaster County District Court 

on February 10, 2020, with Judge Richard Clogg from the 

Iowa district court appearing telephonically. Details regarding the hearing will be set forth as necessary in our analysis. Following the hearing and a consultation between the 

judges, the Lancaster County District Court entered an order 

on February 14, stating the Iowa district court declined jurisdiction and, therefore, the Lancaster County District Court had 

jurisdiction over the matter; the court overruled and denied 

Christian’s motion to dismiss. That same day, a copy of the 

Iowa court’s order was filed with the clerk of the Lancaster 

County District Court wherein the Iowa court declined jurisdiction, noting that “a court with jurisdiction may decline to 

act if another state is a more appropriate forum.” Christian’s 

Iowa case was dismissed.

On May 8, 2020, the Lancaster County District Court entered 

a temporary order based “on the agreement of the parties” 

granting Paw physical custody of Cylise, subject to Christian’s 

parenting time. Christian was to have parenting time every 

other weekend from Friday at 5 p.m. until Monday before 

noon; all pickups and drop-offs were to occur at Cylise’s 

daycare in Lincoln, Nebraska, and Christian was responsible 

for all transportation. Christian was also to have video visitation with Cylise every Tuesday and Thursday evening, as well 

as on Sunday evening on the weekends that he did not have 

in-person parenting time. The temporary order was signed by 

the court, and “[a]pproved as to form and content” by both parties and their attorneys.

On December 11, 2020, Christian, now represented by new 

counsel, filed a “Motion to Reconsider and Vacate, Motion 

to Modify, and Objection to and Motion to Strike ‘Notice of 

Trial.’” Christian essentially claimed that the district court 

should vacate its previous orders because Nebraska lacked 
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Cite as 32 Neb. App. 1

jurisdiction. Alternatively, Christian suggested that “[a]ssuming solely for the sake of argument that [Nebraska] had and has 

jurisdiction under the UCCJEA to make a child custody determination,” then had the court known of events that occurred 

since the temporary order was entered, the court would have 

and now should award him temporary legal and physical custody. Following a December 18 hearing on Christian’s motion, 

the court entered an order on March 15, 2021, overruling all 

requested relief except Christian’s request “to Strike ‘Notice 

of Trial.’”

Having been given leave to file his answer out of time, 

Christian filed his answer and counterclaim on April 16, 2021, 

wherein he admitted that he was Cylise’s father. In his counterclaim, Christian requested that the district court decree him to 

be Cylise’s father, award him sole legal and physical custody 

of Cylise, adopt a parenting plan that served Cylise’s best 

interests, order Paw to pay child support in accordance with 

the Nebraska Child Support Guidelines and an equitable portion of childcare expenses and necessary health care expenses 

not covered by health insurance, and award him attorney fees 

and costs. Christian also raised the affirmative defense of lack 

of jurisdiction to Paw’s complaint.

Five days of trial took place over the course of several 

months: July 22 and 23, August 31, and October 7, 2021, and 

February 8, 2022. The parties stipulated that paternity was 

not an issue and that Christian was Cylise’s father. The district court accepted the stipulation. Paw (via an interpreter), 

Christian, and several other witnesses testified, and numerous 

exhibits were received into evidence. The evidence relevant 

to the issues on appeal will be discussed as necessary in 

our analysis.

On January 4, 2022, Christian filed an application for an 

order to show cause, claiming that Paw was in contempt for 

depriving him of 51⁄2 hours of parenting time on December 

24, 2021, and for not communicating directly with him that 

day. A hearing on the order to show cause was held on 
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Cite as 32 Neb. App. 1

February 18, 2022. In its order entered on March 31, the district court found that Paw’s violation of the temporary order 

regarding parenting time was not willful and that Christian 

failed to meet his burden of proof by clear and convincing 

evidence. The court also found that the temporary order recommended, but did not require, the parties to communicate 

directly and therefore, there was no violation of the temporary 

order in that regard.

The district court entered its decree on March 31, 2022, 

finding that Christian was Cylise’s father. The court found 

that Christian committed domestic intimate partner abuse and 

awarded Paw sole legal and physical custody of Cylise, subject to Christian’s specified parenting time. Christian was to 

have regular parenting time every other weekend from Friday 

at 5 p.m. to Sunday at 8 p.m., and summer parenting time 

was to follow the regular parenting time schedule; a holiday 

parenting time schedule was also established. Christian was 

responsible for all transportation, and the parent not exercising 

parenting time was allowed up to 10 minutes of daily telephone contact with Cylise. Christian was ordered to pay $535 

per month in child support commencing on April 1, 2022, 

and retroactive from February 1, 2020. Paw was awarded the 

dependency and tax exemption benefits for Cylise each year. 

Christian was ordered to pay 64 percent of all nonreimbursed 

reasonable and necessary health care expenses for Cylise after 

the threshold amount of $250 per calendar year was met. 

Christian was also ordered to pay 64 percent of all childcare 

expenses incurred as a result of education or work, as well as 

64 percent of Cylise’s activity and education expenses. The 

parties were to utilize “AppClose” to discuss Cylise unless 

an emergency arose. Finally, Christian was ordered to pay 

$30,000 of Paw’s attorney fees and costs.

On April 1, 2022, Christian filed a motion for new trial, 

a motion to vacate, and a motion to alter or amend judgment. Following a hearing on those motions, the district court 

entered an amended decree on April 21, wherein the court 
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stated that “[t]he retroactive commencement of child support establishes an arrearage in the amount of $13,375.00,” 

“and commencing April 1, 2022, [Christian] shall pay such 

judgment in the amount of $300.00 per month until paid in 

full.” The district court overruled Christian’s motions for 

new trial and to vacate. The motion to alter or amend was 

“sustained, in part, and overruled, in part, as reflected in this 

Amended Decree.”

Christian appeals.

III. ASSIGNMENTS OF ERROR

Christian assigns eight errors, which we consolidate as follows: The district court erred in (1) exercising its child custody 

jurisdiction and not making a record of its communication 

with Judge Clogg, (2) awarding exclusive legal and physical 

custody of Cylise to Paw and adopting and ordering its parenting plan, (3) refusing exhibit 36, (4) using its retroactive 

and prospective child support determinations and awarding 

Paw the exclusive entitlement to the income tax exemption 

for Cylise, and (5) ordering Christian to pay attorney fees and 

requiring them to be paid to Paw’s attorney.

IV. STANDARD OF REVIEW

[1] The question whether jurisdiction should be exercised 

under the UCCJEA is entrusted to the discretion of the trial 

court and is reviewed by an appellate court de novo on the 

record for abuse of discretion. Hogan v. Hogan, 308 Neb. 397, 

954 N.W.2d 868 (2021).

[2] In considering whether jurisdiction exists under the 

UCCJEA, a jurisdictional question that does not involve a 

factual dispute is determined by an appellate court as a matter 

of law, which requires an appellate court to reach a conclusion independent from the trial court. Hogan, supra.

[3] In a filiation proceeding, questions concerning child 

custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of 
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discretion by the trial court, whose judgment will be upheld in 

the absence of an abuse of discretion. Franklin M. v. Lauren 

C., 310 Neb. 927, 969 N.W.2d 882 (2022).

[4] An appellate court reviews child support determinations 

de novo on the record, but the trial court’s decision will be 

affirmed absent an abuse of discretion. See State on behalf 

of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 N.W.2d 

222 (2011).

[5] An award of attorney fees in a paternity action is 

reviewed de novo on the record to determine whether there has 

been an abuse of discretion by the trial judge. Absent such an 

abuse, the award will be affirmed. Cross v. Perreten, 257 Neb. 

776, 600 N.W.2d 780 (1999).

V. ANALYSIS

1. Jurisdiction

Christian assigns that the district court erred in exercising 

its child custody jurisdiction because Iowa was Cylise’s home 

state and Iowa did not properly decline to exercise its child 

custody jurisdiction. Christian further claims that the district 

court erred by not making a record of its communication with 

Judge Clogg from Iowa.

(a) UCCJEA

Section 43-1238 of Nebraska’s UCCJEA states in relevant part:

(a) Except as otherwise provided in section 43-1241 

[temporary emergency jurisdiction], a court of this state 

has jurisdiction to make an initial child custody determination only if:

(1) this state is the home state of the child on the date 

of the commencement of the proceeding or was the home 

state of the child within six months before the commencement of the proceeding and the child is absent from this 

state but a parent or person acting as a parent continues to 

live in this state;
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(2) a court of another state does not have jurisdiction 

under subdivision (a)(1) of this section, or a court of the

home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate 

forum under section 43-1244 [inconvenient forum] or 

43-1245 [reason of conduct], and:

(A) the child and the child’s parents, or the child and 

at least one parent or a person acting as a parent, have 

a significant connection with this state other than mere 

physical presence; and

(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;

(3) all courts having jurisdiction under subdivision 

(a)(1) or (a)(2) of this section have declined to exercise 

jurisdiction on the ground that a court of this state is the 

more appropriate forum to determine the custody of the 

child under section 43-1244 or 43-1245[.]

. . . .

(c) Physical presence of, or personal jurisdiction over, 

a party or a child is not necessary or sufficient to make a 

child custody determination.

(Emphasis supplied.) See, also, § 43-1243 (simultaneous 

proceedings).

Section 43-1235 states:

(a) A court of this state may communicate with a court 

in another state concerning a proceeding arising under 

the [UCCJEA].

(b) The court may allow the parties to participate in the 

communication. If the parties are not able to participate 

in the communication, they shall be given the opportunity 

to present facts and legal arguments before a decision on 

jurisdiction is made.

(c) Communication between courts on schedules, calendars, court records, and similar matters may occur 
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without informing the parties. A record need not be made 

of the communication.

(d) Except as otherwise provided in subsection (c) of 

this section, a record shall be made of a communication 

under this section. The parties shall be informed promptly 

of the communication and granted access to the record.

(e) For the purposes of this section, record means 

information that is inscribed on a tangible medium or that 

is stored in an electronic or other medium and is retrievable in perceivable form.

We note that Iowa’s version of the UCCJEA can be found in 

Iowa Code Ann. § 598B (West 2020).

(b) Hearing and Orders

A hearing on Christian’s motion to dismiss for lack of 

jurisdiction was held in the Lancaster County District Court 

on February 10, 2020, with Judge Clogg from the Iowa district court appearing telephonically. Paw was present with her 

Nebraska counsel. Christian was present with his Nebraska 

counsel, and his Iowa counsel appeared telephonically. When 

Judge Clogg noted that Paw did not have counsel in Iowa, 

her Nebraska counsel stated that she was also licensed in 

Iowa and that she would enter “essentially a limited appearance in the Iowa case” at that point because Paw “didn’t want 

to retain counsel in Iowa until there was a determination as 

to jurisdiction.”

Paw’s counsel made argument as to why the case should 

be heard in Nebraska, including, but not limited to, the fact 

that Paw is the only legal parent of the child; Paw came to 

Nebraska in September 2019 because of an abusive relationship with Christian; Christian had a pending Nebraska case for 

domestic assault of Paw; Christian had the financial resources 

to defend his case, whereas Paw had limited funds; and the 

child had daycare and family in Nebraska and had Medicaid 

in Nebraska.
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Christian’s counsel argued that Iowa was the child’s home 

state and that the case should be heard in Iowa. Counsel stated 

that Christian had signed a paternity acknowledgment in 

Iowa, the child was born in Iowa and lived with both parties 

in Iowa until October 2019, Christian assisted Paw with her 

move to Nebraska in October, and the domestic violence issue 

occurred shortly thereafter in Nebraska and Christian was 

currently on diversion. Counsel stated that 2 weeks after Paw 

moved to Nebraska, she texted Christian to come get Cylise 

because she did not want him anymore, so Christian came 

and got him. Cylise lived in Iowa from mid-October 2019 to 

January 14, 2020, which is the date that law enforcement in 

Iowa took the child from preschool. Counsel further stated 

that Christian filed a petition to establish paternity, custody, 

and support in Iowa on December 17, 2019, and while Paw 

received constructive notice, she was not formally served. 

Paw’s counsel responded that Paw never had constructive 

notice; that the child did not live in Iowa after mid-October 

2019, but, rather, the child went back and forth between the 

parents; that Christian refused on several occasions to let 

Paw know where the child was; and that Christian repeatedly 

told Paw that she had no rights because she is from a different country.

After hearing arguments from both parties, the Lancaster 

County District Court noted the UCCJEA envisioned that the 

judges from both states consult and make a determination on 

jurisdiction, and he asked whether Judge Clogg was available 

to stay on the phone for consultation, to which Judge Clogg 

replied, “Yes.” Counsel for the parties were asked whether they 

had any objection to that procedure, and counsel for both parties stated, “No, Your Honor.” The Lancaster County District 

Court adjourned the hearing but said it would stay on the 

phone with Judge Clogg and then let counsel know as soon as 

a decision was made.

On February 14, 2020, the Lancaster County District 

Court filed an order stating that a hearing was held on 
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Christian’s motion to dismiss and the telephonic hearing was 

had with Judge Clogg of the Jasper County, Iowa, District 

Court. The order stated, “The Jasper County, Iowa District 

Court has declined jurisdiction . . . finding that Jasper County, 

Iowa is an inconvenient forum”; “[a] copy of the order from 

the Jasper County, Iowa District Court will be filed with 

the Clerk of the District Court in this case.” Therefore, the 

Lancaster County District Court concluded that it had jurisdiction over the matter and overruled and denied Christian’s 

motion to dismiss. That same day, a copy of the Iowa court’s 

order was filed with the clerk of the Lancaster County District 

Court. The Iowa order recounted that a hearing was held with 

the parties and their counsel; that after the hearing, the courts 

conferred regarding jurisdiction; and that it was declining 

jurisdiction because another state was a more appropriate 

forum. Christian’s Iowa case was dismissed.

A temporary order “on the agreement of the parties” was 

entered on May 8, 2020, awarding Paw physical custody of 

Cylise and Christian parenting time every other weekend.

On December 11, 2020, nearly 9 months after the jurisdiction issue was decided, Christian, now represented by new 

counsel, filed a motion asserting that the district court should 

vacate its earlier orders because Nebraska lacked jurisdiction. 

Christian claimed that Iowa’s declination of jurisdiction (1) 

was void because it had not acquired personal jurisdiction over 

Paw in its case and (2) was not properly based on Nebraska 

being a more convenient forum because relevant factors were 

not considered and because the parties were not allowed to 

submit information on the relevant factors. Christian further 

argued that assuming for the sake of argument that Nebraska 

had jurisdiction, temporary custody should have been awarded 

to Christian.

In its order filed on March 15, 2021, the Lancaster County 

District Court overruled Christian’s “Motion to Reconsider 

and Vacate, Motion to Modify.” The court determined that 

it had subject matter jurisdiction and could exercise that 
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jurisdiction under the UCCJEA; that Iowa, the child’s home 

state, declined its jurisdiction because it found that Nebraska 

was the more appropriate forum; and that the Iowa order was 

not void for lack of personal jurisdiction because “Iowa’s version of the UCCJEA expressly says that personal jurisdiction 

over a party is not necessary to make a child-custody determination” and Iowa did have personal jurisdiction because 

Paw’s attorney entered a limited appearance for her in the 

Iowa case for purposes of determining which court would 

exercise jurisdiction. The court also found that it could not 

review alleged errors committed by the Iowa court regarding that court’s consideration of statutory factors. Finally, the 

court concluded that changing temporary custody was not in 

Cylise’s best interests.

(c) Nebraska Has Jurisdiction

There is seemingly no dispute that Iowa was Cylise’s home 

state. However, Nebraska had jurisdiction to make the initial 

child custody determination in this case because Iowa declined 

to exercise jurisdiction. See § 43-1238(a). Christian contends 

that Iowa did not “actually” decline jurisdiction because its 

order stated only that it “should” decline its authority. We are 

not persuaded by Christian’s argument. The Iowa order states, 

in relevant part:

Iowa Code section 598B.207 provides that a court 

with jurisdiction may decline to act if another state is 

a more appropriate forum. In taking into account the 

relevant factors, including those listed in the statute, the 

court finds that the Iowa district court should decline 

its authority to decide this case in keeping with section 

598B.207.

IT IS THEREFORE ORDERED that this case is dismissed, without prejudice, at [Christian’s] costs.

As noted by Paw, the Iowa court “dismissed the case, which 

is an act terminating the Court’s jurisdiction.” Brief for 

appellee at 22 (emphasis in original). A reading of the Iowa 
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court’s order shows that it declined jurisdiction because another 

state was a more appropriate forum.

Just like he argued to the district court in his December 

2020 motion to reconsider and vacate, Christian once again 

argues that Iowa’s declination of jurisdiction was void because 

it had not acquired personal jurisdiction over Paw in its case. 

And like the district court, we find that the Iowa order was not 

void for lack of personal jurisdiction, because Iowa’s version 

of the UCCJEA expressly says that personal jurisdiction over a 

party is not necessary to make a child custody determination. 

See Iowa Code Ann. § 598B.201(3) (West 2020) (“[p]hysical 

presence of, or personal jurisdiction over, a party or a child is 

not necessary or sufficient to make a child-custody determination”). See, also, § 43-1238 (nearly identical provision in 

Nebraska statute). Additionally, Paw’s attorney entered a limited appearance for her in the Iowa case for purposes of determining which court would exercise jurisdiction. And, as noted 

by Paw, “[she] is the only party who has standing to assert a 

defect in process or service of process on her.” Brief for appellee at 24 (emphasis omitted).

Finally, Christian argues that the Lancaster County District 

Court erred in not making a record of its communication with 

Judge Clogg because no bill of exceptions was made of their 

telephonic communication. Section 43-1235(b) provides that 

the court of this state may allow the parties to participate in 

the communication with the court in another state concerning proceedings arising under the UCCJEA, but if the parties 

are not able to participate in the communication, they must 

be given the opportunity to present facts and legal arguments 

before a decision on jurisdiction is made. Section 43-1235(b) 

was satisfied in this case when a hearing was held in the 

Lancaster County District Court on February 10, 2020, with 

Judge Clogg from the Iowa district court appearing telephonically, where both parties were present with counsel representing them in both states, and where the parties were given the 

opportunity to present facts and legal arguments regarding 
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jurisdiction; a bill of exceptions was made of the foregoing hearing.

Christian claims that a bill of exceptions was also required 

to be made of the private telephonic consultation between the 

Lancaster County District Court judge and Judge Clogg that 

took place after the hearing. However, Christian points to no 

authority requiring a verbatim transcription of the judges’ 

posthearing consultation. We note that § 43-1235 provides 

that with the exception of communication between courts 

on schedules, calendars, court records, and similar matters, 

a “record shall be made” of a communication between the 

courts concerning a proceeding arising under the UCCJEA, 

and “[t]he parties shall be informed promptly of the communication and granted access to the record.” § 43-1235(d). 

And as set forth previously, a “record means information 

that is inscribed on a tangible medium or that is stored in an 

electronic or other medium and is retrievable in perceivable 

form.” § 43-1235(e). Section 43-1235 mirrors Unif. Child 

Custody Jurisdiction and Enforcement Act (1997) § 110, 9 

(part IA) U.L.A. 497 (2019). The comment to § 110 states in 

relevant part:

This section does require that a record be made of 

the conversation and that the parties have access to that 

record in order to be informed of the content of the 

conversation. The only exception to this requirement 

is when the communication involves relatively inconsequential matters such as scheduling, calendars, and 

court records. Included within this latter type of communication would be matters of cooperation between 

courts under Section 112. A record includes notes or 

transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of 

a telephone call, a memorandum or an electronic record 

of the communication between the courts, or a memorandum or an electronic record made by a court after 

the communication.
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Unif. Child Custody Jurisdiction and Enforcement Act (1997), 

supra, comment, 9 (part IA) U.L.A. at 498 (emphasis supplied). If “notes” by a court reporter, or a memorandum made 

by a court “after the communication,” can constitute a “record,” 

then a verbatim transcription is clearly not required. Id.

[6] Here, both judges entered orders recounting that a hearing was held with both courts and the motion to dismiss was 

argued. The bill of exceptions from the hearing noted that the 

judges were going to stay on the phone for consultation and 

that neither party objected to that procedure. The Iowa order 

also noted that after the telephonic hearing, both courts conferred regarding jurisdiction. The orders from both courts also 

stated that Iowa was declining jurisdiction, because there was 

a more convenient or appropriate forum. The orders of the 

courts memorialized the substance of their communication, and 

the orders therefore sufficiently constituted “information that 

is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” 

§ 43-1235(e). We find that § 43-1235 does not require a verbatim transcription of the consultation between two courts after 

a hearing; rather, a sufficient record of the courts’ posthearing 

consultation is made when the courts enter orders memorializing the substance of their communication.

For the foregoing reasons, we find that Nebraska properly 

exercised jurisdiction in this case.

2. Custody and Parenting Time

Christian claims that the district court erred in awarding 

legal and physical custody of Cylise to Paw. He argues that 

the court’s custody determinations were based on findings that 

were contradicted by the evidence and were a complete misapplication of the law. He further argues that the district court did 

not provide him enough parenting time with Cylise and should 

not have made him responsible for all transportation.
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(a) General Principles of Law

[7] When deciding custody issues, the court’s paramount 

concern is the child’s best interests. Smith v. King, 29 Neb. 

App. 152, 953 N.W.2d 258 (2020). The best interests inquiry 

has its foundation in both statutory and case law. Neb. Rev. 

Stat. § 43-2923(6) (Reissue 2016) 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;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member . . . ; and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

Other pertinent factors include the moral fitness of the child’s 

parents, including sexual conduct; respective environments 

offered by each parent; the age, sex, and health of the child 

and parents; the effect on the child as a result of continuing 

or disrupting an existing relationship; the attitude and stability of each parent’s character; and parental capacity to provide 

physical care and satisfy educational needs of the child. Robb 

v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).

Domestic intimate partner abuse means an act of abuse and 

a pattern or history of abuse evidenced by one or more of the 

following acts: physical or sexual assault, threats of physical 

assault or sexual assault, stalking, harassment, mental cruelty, 

emotional abuse, intimidation, isolation, economic abuse, 
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or coercion against any current or past intimate partner, or an 

abuser using a child to establish or maintain power and control 

over any current or past intimate partner, and, when they contribute to the coercion or intimidation of an intimate partner, 

acts of child abuse or neglect or threats of such acts, cruel 

mistreatment or cruel neglect of an animal, or threats of such 

acts, and other acts of abuse, assault, or harassment, or threats 

of such acts against other family or household members. See 

Neb. Rev. Stat. § 43-2922(8) (Cum. Supp. 2022).

When a court is required to develop a parenting plan, 

Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) permits limitations to parenting time or other access for a parent if the 

preponderance of the evidence demonstrates the parent has, 

among other things, “committed child abuse or neglect,” 

committed “domestic intimate partner abuse,” or “interfered 

persistently with the other parent’s access to the child.” If a 

parent is found to have engaged in such activity, “limits shall 

be imposed that are reasonably calculated to protect the child 

or child’s parent from harm.” Id. Further, the limitations permitted by § 43-2932 include, but are not limited to, “allocation of sole legal custody or physical custody to one parent”; 

“[s]upervision of the parenting time, visitation, or other access 

between a parent and the child”; “[e]xchange of the child 

between parents through an intermediary or in a protected 

setting”; “[r]estraints on the parent from communication with 

or proximity to the other parent or the child”; “[d]enial of 

overnight physical custodial parenting time”; and “[a]ny other 

constraints or conditions deemed necessary to provide for 

the safety of the child, a child’s parent, or any person whose 

safety immediately affects the child’s welfare.” The parent 

found to have engaged in the behavior specified in subsection (1) of § 43-2932 has the burden of proving that legal or 

physical custody, parenting time, visitation, or other access 

to that parent will not endanger the child or the other parent. 

§ 43-2932(3).
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(b) Evidence at Trial

(i) Christian’s Testimony

Christian, who was 24 years old at the time of trial, testified that he met Paw at a job-training program in Chadron, 

Nebraska, in 2014 when he was 17 years old; she was 19 

years old at the time. Paw was originally from Burma, and he 

helped her learn English and tutored her. Christian finished 

the program in February 2016 and moved back to Iowa to 

start working as a carpenter. Paw graduated from the program 

in May and moved to Iowa to live with Christian. Cylise was 

born later that year. Christian worked from 6 a.m. to 2:30 

p.m. Monday through Friday. Paw stayed home with Cylise, 

but Christian “had a major role in taking care of Cylise after 

work” because Paw would “lock herself in the [bed]room” and 

“do her own thing” because she had been with Cylise all day. 

Christian took care of Cylise’s needs from 2:30 p.m. to 6 a.m. 

On weekends, they either spent time with Christian’s family 

or traveled to see Paw’s family in Lincoln. Christian made all 

of Cylise’s doctor appointments and attended all appointments 

with Paw because she still had a language barrier.

In November 2017, Christian was injured at work but continued working light duty. Paw started working outside of the 

home in the spring of 2018, when Cylise was approximately 

18 months old. She worked second shift, from 2 or 3 p.m. 

until 10 or 11 p.m. and had “mandatory Saturdays most of the 

time.” Christian stayed home with Cylise when Paw worked 

second shift. She eventually ended up switching to first shift, 

and they hired a family friend to babysit Cylise. Both parties worked the same shift for about 5 weeks, but starting 

in October, Christian’s employer paid him “to stay home” 

while they went through the workers’ compensation settlement 

process, so Christian was able to care for Cylise; Christian 

accepted a workers’ compensation settlement a little over a 

year later, in November 2019.

Christian testified that there were physical altercations 

with Paw during their relationship. Christian said that Paw 
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slapped him across the face when he was holding Cylise, 

who was 2 weeks old at the time. Then, during the summer 

of 2017, Christian and Paw were arguing while he was driving them and she “was slapping and trying to punch me in 

the side of the head”; Cylise was in the car at the time. After 

that, there were “[m]ore than 20” times that Paw slapped him 

through September 2019; she used a closed fist on a “[c]ouple 

occasions” and kicked him “a handful of times.” Christian 

denied ever slapping, pushing, or hitting Paw, or throwing any 

objects at her during that same timeframe.

Christian stated that Paw’s friend August Moo (August) and 

her two children came to live with them in March 2019 and 

stayed for 5 months. Christian had an affair with August during 

that time.

On October 4, 2019, Christian and Paw traveled to Lincoln 

with Cylise so that they could help Paw’s mother look at 

a house that was for sale. On the morning of October 5, 

Christian “woke up . . . to Paw . . . going through [his] phone.” 

Christian said Paw “locked herself in the bathroom and when 

[he] knocked on the door, she opened the door, grabbed [him] 

by [his] shirt, pulled [him] into the bathroom, followed by a 

punch in the face” and then asked him why August was messaging him. After a discussion, Paw forgave Christian, and 

they were going to “work through it.” However, later that day, 

Paw called him a liar, said he cheated on her and she did not 

want to be with him, and said he needed to take Cylise and 

go back to Iowa. Christian took Cylise back to Iowa and did 

not see Paw again until October 21 at her mother’s apartment 

in Lincoln.

On October 21, 2019, Christian and Cylise traveled to 

Lincoln after receiving messages from Paw’s relative. 

Christian said he thought he and Paw “were basically going 

to have a mediation with the family talking about our relationship and possibly getting back together.” When he arrived, 

he had a family friend wait with Cylise, who was sitting 

in Christian’s car. Christian went inside the apartment. He 
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said that when Paw saw that he was there, “before any conversation started she just started saying something to her mother 

in their language and she got on the phone and walked away 

and she came to me and started pushing me and hitting me 

and telling me that I needed to leave”; Christian said he tried 

to restrain her so that she would stop hitting him and told her 

he was going to leave. Christian started to leave the apartment and saw “cop lights outside the apartment” and “two 

officers walking up to the apartment.” After speaking with the 

officers, Christian was arrested and taken to jail. Christian’s 

brother bailed him out of jail the next day, then they got 

Cylise from Paw’s mother and went back to Iowa; a condition 

of Christian’s bond was that he have no contact with Paw. As 

a result of the incident, Christian was charged with domestic 

assault of Paw, and he ultimately completed a pretrial diversion program in “late 2020.”

Christian denied ever reaching a custody or parenting time 

agreement with Paw wherein the parties would alternate time 

with Cylise every 2 weeks. However, on November 8, 2019, 

Paw picked Cylise up for a 2-week “visit,” and then Christian 

and his mother picked Cylise up in Lincoln at the end of those 

2 weeks. Christian contacted an attorney in Iowa on December 

6 to pursue custody of Cylise, and counsel advised Christian 

to not let Cylise leave Iowa. Counsel then filed a custody 

lawsuit in Iowa in mid-December. Paw’s next in-person contact with Cylise was on January 14, 2020, when she came to 

Christian’s parents’ home with Iowa law enforcement and an 

ex parte custody order from Nebraska. Christian showed the 

officer the document his lawyer gave him, but the officer said 

the Nebraska order controlled, and Paw ended up taking Cylise 

back to Nebraska.

The stipulated temporary custody order was subsequently 

entered on May 8, 2020, after which Christian was allowed 

parenting time every other weekend and video chats. Christian 

stated that the video chats were generally “very unproductive” because Cylise was distracted, other children were in 
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the room and taking the phone trying to speak to Christian, 

and Paw “would cut off the phone early.” During in-person 

parenting time, Cylise’s behavior “was very poor” and he told 

Christian he did not have to listen. Additionally, Cylise was 

always “covered in little bed bug bites” and his complexion 

“was very dirty”—he had eczema that could be controlled 

with a daily application of cream. Christian took Cylise to 

the doctor multiple times to get him checked out and to get 

more cream.

Christian believed that it was in Cylise’s best interests for 

the district court to award sole legal and physical custody to 

him, and he submitted a proposed parenting plan to the court. 

Christian believed he could effectively set aside any differences with Paw in order to coparent Cylise and stated that he 

had been trying to do so ever since the lawsuit was filed, but 

that she had not reciprocated. Christian stated that Cylise had a 

support system in Iowa and loved being around family.

Christian testified that August and her two children moved 

in with him around March 2020. He and August had a baby 

later in 2020 and were expecting another baby in the fall of 

2021. Their home has four bedrooms, and Christian was in 

the process of putting in egress windows to get two additional 

bedrooms in the basement up to code.

(ii) Paw’s Testimony

Paw testified that she and Christian were living in Iowa 

when Cylise was born in 2016. Paw said that she was the 

one who primarily took care of Cylise. Paw started working 

after Cylise turned 1 year old, and she and Christian hired a 

family friend to care for Cylise when they both worked. At 

some point, Christian became unemployed. When Paw got 

home from work, Christian would go out with his friends 

“[m]ost of the times.” Paw stated that she and Christian 

took Cylise to doctor appointments together because she did 

“not know how to speak English that much.” In February 

or March 2019, August moved into the parties’ home with 
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August’s two children, and sometimes Paw took care of 

those children.

Although she could not remember the month, Paw testified that sometime in 2019, Christian accused her of cheating 

on him. Christian also told Paw, and she believed him, that 

because she was an immigrant, if they broke up and she fought 

for custody, she would not even have a “50/50” chance and 

would probably end up going back to the refugee camp.

Paw stated that on October 5, 2019, the parties were in 

Lincoln visiting her mother when Paw found out Christian had 

been cheating on her. Paw slapped Christian’s face, he pushed 

her and yelled at her, and he locked her in the bathroom. Paw 

was “mad” and “really angry” and told Christian to take Cylise 

and go back to Iowa, but she stayed in Lincoln. Paw acknowledged that on October 5, she told Christian’s stepmother that 

she wanted Christian to have custody of Cylise and that she 

did not even want to have “50/50” custody. Paw said the parties ended their relationship and she moved to Lincoln because 

Christian was “controlling, abusive, and cheating.” Prior to 

moving, Paw did not report any abuse, nor did she tell other 

people about the abuse.

The next time that Paw saw Christian was at her mother’s 

apartment in Lincoln on October 21, 2019. She said that 

the parties were inside and “[Christian] asked me to move 

. . . and I didn’t move so he pushed me and we had a conflict,” and Paw injured her right elbow. Paw’s family members 

called the police, and Christian was arrested. Cylise, who 

was in Christian’s car during the incident, stayed with Paw 

after Christian was arrested but was picked up by Christian’s 

relatives the next day and taken back to Iowa. Later, after her 

coworkers asked her about her elbow injury, Paw posted a picture of the injury on a social media website on November 1 and 

said it was from cooking, even though that was not true.

After Paw moved to Lincoln, she and Christian reached an 

understanding that they would alternate parenting time every 

2 weeks. However, when Paw went to pick Cylise up from 
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Christian in Iowa on December 27, 2019, they were not there. 

Paw filed her complaint on January 9, 2020, and asked for temporary custody. She was not aware of Christian’s custody case 

in Iowa and was never served with his complaint.

Under the stipulated temporary order, Christian picks Cylise 

up from daycare every other week on Friday at 5 p.m. and 

drops him off at daycare on Monday at noon. During holidays 

or if there was bad weather, Paw gave Christian extra time. 

When Cylise returns from parenting time with Christian, Cylise 

sometimes acts like a “bully” to other children; the interpreter 

explained that the term in the Burmese language usually means 

he wants to be in charge over the children. Cylise has also 

had online communication with Christian since it was courtordered in May 2020.

Paw testified that Cylise was “well and he is happy” since 

being in Nebraska. Paw’s relatives, friends, and “supports” 

are in Nebraska. She believed that she provided a stable home 

for Cylise. They moved into a house in November 2019, and 

six other people currently live in the home with them. Cylise 

was enrolled to start kindergarten in Lincoln for the 2021-22 

school year. Paw wanted the parenting time changed so that 

Cylise is returned on Sunday evenings once school starts. Paw 

did not think that Cylise should move to Iowa with Christian 

because Christian has a “temper issue,” an “anger issue,” and 

Paw does not want him “yelling at the kids.” Paw believed that 

she and Christian are able to coparent and talk to one another. 

She also believed that it would be good if they could make 

decisions for Cylise together, but if they could not agree, she 

wanted the court to decide for them or she wanted to make the 

final decision.

(iii) Other Witnesses’ Testimony

Mayme Myint (Mayme), Paw’s sister, testified that when 

Paw and Christian were in a relationship, he was “very control [sic] with [Paw],” he argued “every little thing,” and 

he sometimes called Paw a “bitch.” When asked if she ever 
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heard Paw talking poorly about Christian, Mayme responded, 

“No.” Mayme stated that Paw did most of the parenting of 

Cylise when the parties were in a relationship. Mayme currently sees Paw and Cylise multiple times each week. Cylise 

has a clean place to live with space to play.

When asked if Christian ever threatened her family, Mayme 

responded, “Yes.” She explained, “[Christian] said [Paw] 

would go to jail for two year [sic] and we have to pay his — 

his Iowa lawyer fee and both here and he said [Paw] slander 

[sic] his name and that it [sic] can go to jail for three months.” 

And “he said [Paw] is not a citizen so it can be a different charge.”

Leslie Gilbert (Leslie), Christian’s stepmother, was asked 

which of the parties exercised a greater portion of the parental 

responsibilities for Cylise from the time of his birth through 

the end of September 2019. Leslie felt that Christian was 

more involved day to day in making sure Cylise was fed, 

bathed, clothed, and changed. She observed that there was 

affection between Christian and Cylise, that they played and 

did activities together, and that Christian was able to redirect 

Cylise’s behaviors.

During Christian and Paw’s relationship, Leslie observed 

arguments between them, but she never observed physical 

violence. On October 22, 2019, Paw contacted Leslie to let 

her know that Christian had been arrested after they got into 

an argument; Paw was willing to tell the police that it was 

both their faults, because she did not want Christian to go to 

jail. Leslie told Paw that she was “going to see what’s going 

on,” and “[i]f I can bail him out, that’s what I’m going to do.” 

Leslie’s son was able to bail Christian out of jail, and Paw 

allowed Cylise to go back to Iowa. Leslie continued to have 

daily contact with Paw via text messages or video calls; the 

daily contact was still occurring at the commencement of trial. 

On December 27, 2019, Leslie texted Paw when she found 

out that Paw was not allowed to pick Cylise up in Iowa, 
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and Leslie offered to take Cylise to see Paw. Leslie cares 

about Paw and cares that they have a good relationship.

August testified that she has known Paw since they went to 

high school together in Thailand, and they reconnected via a 

social media website in the United States. August and two of 

her children temporarily lived with Paw, Christian, and Cylise 

in their Iowa home from March to August 2019. August did not 

observe any arguments or physical altercations between Paw 

and Christian while she was living with them. August stated 

that when she was living with them, Christian did more of the 

feeding, bathing, and grooming of Cylise than Paw. Paw and 

Christian took care of August’s children when she worked, and 

August trusted Paw to take care of her children.

August testified that she and Christian started a relationship in July 2019, she moved out of Paw and Christian’s home 

in August, and she stopped communicating with Christian in 

October. In October, Paw took to social media to accuse August 

of being the person Christian was “cheating on her with.” In 

private online messages with Paw, contained in exhibit 34, 

August said that she was not the only woman he cheated on her 

with. August also said that she had been pregnant, “he” pushed 

her and she fell and could not breathe, she had blood all over 

herself, and she “took some medicine that I should take so I 

loss [sic] that child.” During questioning, August stated that the 

“he” in exhibit 34 was Christian, but that she made the incident 

up because Paw had “destroyed my character on social media.” 

During his testimony, Christian denied pushing August down 

and causing a miscarriage.

August stated that Paw sent her a private message saying that she did not want anything to do with Christian and 

that she wanted to “[s]tart . . . over” without Christian and 

Cylise. August resumed communicating with Christian in 

mid-January 2020, and she and her two children moved back 

into his home in February. She currently lived with Christian, 

their child (born later in 2020), and her two other children; 

Cylise also lives with them during Christian’s parenting 
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time. August was currently pregnant with her and Christian’s 

second child when the trial commenced. When asked if she 

had any hesitancy in leaving her children with Christian, 

August responded, “No.”

(c) District Court’s March 31, 2022, Decree

The district court found that Paw’s testimony was credible, 

whereas Christian’s and August’s testimony was not credible. 

The court found that Cylise had primarily resided with Paw 

for 2 years and was thriving. Paw and Cylise had a strong 

bond and a good relationship. He was enrolled in school, was 

healthy, and had his daily needs met. The court stated that 

while Paw’s living arrangement was not perfect, it provided 

greater stability for Cylise, and that she could meet his ongoing developmental needs.

The district court stated that Christian spent a considerable 

amount of time discussing his parenting after Cylise’s birth 

but focused less on his current parenting. The court stated 

that Christian’s testimony generally disputed Paw’s testimony 

regarding the care of Cylise after his birth and during times 

when neither parent was working; the court found “the facts 

on each [party’s] parenting are as testified to by [Paw].” The 

court noted that Christian disputed the allegations of abuse, 

but that he acknowledged past physical confrontations with 

Paw and an October 2019 incident of domestic assault, even 

though he blamed Paw for the incident.

The district court stated that the evidence at trial showed 

communication between the parties remained difficult, there 

was unresolved parental conflict, and “[t]he tumultuous relationship between the parties includes frequent arguments.” The 

court found that “[m]ost concerning was [Paw’s] testimony 

regarding the physical and emotional abuse she suffered from 

[Christian],” in particular the assault in October 2019, and 

that Christian “has repeatedly tried to convince her that she 

has no rights to her child because of her refugee status.” The 

court found Paw’s testimony about Christian’s abuse to be 
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credible and a cause for concern. The court found that it was 

in Cylise’s best interests that the parties “have less contact 

with each other, not more.” The court found that Christian had 

committed domestic intimate partner abuse and that he did 

not meet his burden to prove that legal or physical custody, 

parenting time, visitation, or other access to Cylise would not 

endanger the child. The court found that Paw and Cylise may 

be adequately protected from harm by the limits the court 

imposed in the parenting plan.

The district court awarded Paw sole legal and physical 

custody of Cylise, subject to Christian’s specified parenting time. Christian was to have regular parenting time every 

other weekend from Friday at 5 p.m. to Sunday at 8 p.m., and 

summer parenting time was to follow the regular parenting 

time schedule; a holiday parenting time schedule was also 

established. He was also awarded up to 10 minutes of daily 

telephone contact with Cylise when he was not exercising 

parenting time.

Christian argues that the district court’s custody determination rested entirely on its finding of domestic intimate partner 

abuse and that it was Paw, not Christian, who committed 

domestic intimate partner abuse. Initially, we note that domestic intimate partner abuse was not the sole reason for the 

court’s custody determination. The court also considered the 

parties’ parenting history and current circumstances and found 

that Paw’s home provided greater stability for Cylise.

[8] As to the domestic intimate partner abuse, there was 

conflicting evidence in the record. Christian testified to several instances of abuse by Paw through September 2019. Paw 

testified that she and Christian got into a physical altercation 

after she found out that that he was cheating on her. She also 

testified that Christian was abusive and controlling during 

their relationship, pushed her and caused her to injure her 

elbow, and told her that she had no rights to Cylise because 

she was an immigrant and that if she fought for custody, 

she would probably go back to a refugee camp. Mayme also 
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testified regarding Christian’s threats that Paw would have to 

go to jail and have to pay his attorney fees. Christian denied 

all of this. However, when evidence is in conflict, the appellate court considers and may give weight to the fact that the 

trial court heard and observed the witnesses and accepted one 

version of the facts rather than the other. Lindblad v. Lindblad, 

309 Neb. 776, 962 N.W.2d 545 (2021). Additionally, Christian 

was arrested and charged with domestic assault following the 

October 2019 incident with Paw, and he subsequently completed a pretrial diversion program. The physical incident, 

along with the threats (made to Paw and her family) regarding 

Paw’s immigration or refugee status in the event of a custody 

dispute, satisfied the pattern of conduct necessary for a finding of domestic intimate partner abuse.

Based on our review of the record, we cannot say that the 

district court abused its discretion in awarding sole legal and 

physical custody of Cylise to Paw. Nor can we say that the 

court abused its discretion in awarding Christian parenting 

time every other weekend from Friday at 5 p.m. to Sunday at 

8 p.m., daily telephone contact, and specified holiday parenting time. Although Christian argues that he should have been 

awarded parenting time for “a majority of the summer,” as 

Paw agreed this was a possibility in her testimony, we cannot 

say the court abused its discretion by ordering that summer 

parenting time follow the regular parenting time schedule, 

particularly given Cylise’s young age and the court’s concerns 

related to the domestic intimate partner abuse. We also find no 

abuse of discretion in the court’s decision to make Christian 

responsible for all transportation.

We note that Christian also claimed that the district court 

abused its discretion in refusing to receive exhibit 36, text 

messages alleged to be between Paw and Christian. The district court’s basis for refusing this exhibit was that Christian 

did not identify it in his pretrial memorandum, something 

Christian said was a “typographical error.” We find no abuse 

of discretion in the court’s decision to refuse an exhibit that 
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the other party was not made aware of ahead of time. See

Furstenfeld v. Pepin, 23 Neb. App. 155, 869 N.W.2d 353 

(2015) (where Nebraska Evidence Rules commit evidentiary 

question at issue to discretion of trial court, appellate court 

reviews admissibility of evidence for abuse of discretion).

3. Child Support and 

Tax Exemption

(a) Child Support

Christian claims that the district court erred in both its 

retroactive and prospective child support determinations. He 

argues that by ordering retroactive child support, the court 

effectively rewrote the stipulated May 8, 2020, temporary 

order “in which Paw . . . implicitly agreed to no child support pending final judgment, and failed to account for the 

fact that Christian was responsible for all transportation in 

order to exercise his parenting time.” Brief for appellant at 

36. He further argues that he does not have the ability to meet 

both his prospective and retroactive child support obligations. 

Additionally, the prospective child support order does not 

account for the fact that Christian will be responsible for all 

transportation costs.

In its child support calculation, the district court attributed 

a monthly gross earned taxable income of $1,816.53 to Paw 

and of $3,853.20 to Christian, with each having “1.5 [e]xemptions.” Neither party disputes the attributed incomes.

[9] The temporary order dated May 8, 2020, was agreed 

upon by the parties. It determined temporary custody and parenting time, as well as stated that Christian was responsible for 

all transportation. The temporary order was silent as to temporary child support. Christian acknowledges:

It is of course not unusual for a court to order a father of 

a child born out of wedlock to pay retroactive child support in a paternity action. See, e.g., Henke v. Guerrero, 

13 Neb. App. 337 (2005). That is because children born 
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out of wedlock are entitled to the same support as children born in wedlock. Id.

Brief for appellant at 37. However, he claims it is “unprecedented in a case such as this where the father had, irrespective 

of a formal adjudication of paternity, already supported the 

child prior to the commencement of the action.” Id. (emphasis 

omitted). While it is true that Christian supported Cylise prior 

to the commencement of the action, there is no evidence of 

support once Paw commenced the action in January 2020. 

And contrary to Christian’s assertion, there is no evidence 

that Paw “implicitly stipulated to no temporary child support, 

vis-a-vis the May 8, 2020” temporary order, or that no support 

was ordered because he was responsible for all transportation. Id. at 37. We find that the district court did not abuse its 

discretion in ordering retroactive support from February 2020. 

Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015) 

(whether child support order should be retroactive is entrusted 

to discretion of trial court, and decision will be affirmed 

absent abuse of discretion).

Christian also argues that he cannot afford to pay both prospective child support ($535 per month) and retroactive child 

support ($300 per month), but the district court specifically 

stated that it considered his ability to pay. We note that in 

his testimony, Christian testified that he received a lump-sum 

workers’ compensation settlement at the end of 2019. He said it 

was a $113,000 settlement, and he ultimately received $76,000 

to $78,000 after attorney fees. We find no abuse of discretion 

in the court’s award of retroactive child support.

As to Christian’s argument that the prospective child support order does not account for the fact that Christian will be 

responsible for all transportation costs, we note that he did not 

ask the district court for a deviation for such costs.

(b) Tax Exemption

[10,11] Christian claims that the district court erred in 

awarding Paw the exclusive entitlement to the income tax 
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exemption for Cylise every year. Christian contends that the 

entitlement should have been allocated equally since he is 

required to provide all transportation and pay retroactive child 

support and attorney fees. The child dependency exemption 

is entrusted to the discretion of trial courts. See Anderson v. 

Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015). A tax dependency exemption is an economic benefit nearly identical to an 

award of child support or alimony. Id. In general, the custodial 

parent is presumptively entitled to the federal tax exemption 

for a dependent child. Id. But a court may exercise its equitable powers and order the custodial parent to execute a waiver 

of his or her right to claim the tax exemption for a dependent 

child if the situation of the parties so requires. Id. We find no 

abuse of discretion in the district court’s decision to award the 

income tax exemption for Cylise to Paw.

4. Attorney Fees

Christian contends that the district court erred in requiring 

him to pay Paw’s attorney fees and in requiring the attorney 

fees to be paid directly to Paw’s attorney.

Christian argues that an award of attorney fees made in 

favor of a litigant belongs to the litigant and not to the attorney 

who performed the services. We note that in its order, the district court stated, “Judgment is entered against [Christian] and 

in favor of [Paw] in the amount of $30,000.00 for [her] attorney fees and costs incurred herein.” It then set out the method 

of payment, wherein it said that Christian was to pay $500 per 

month to Paw’s counsel through the district court clerk. Paw 

was awarded attorney fees and judgment was entered “in favor 

of [Paw]”; we find no error in this regard. We now turn to the 

award of attorney fees in general.

Paw requested that Christian pay her attorney fees and 

costs, and her attorney’s affidavits were received into evidence. The affidavits stated that the attorney fees and expenses 

are “fair, necessary, and reasonable,” and each stated that 

counsel was forced to perform additional legal work due to 
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Christian’s continuous use of delay tactics. Although each 

affidavit states that it contains an itemization, each contains 

only an invoice. The invoice dated July 23, 2021, is for attorney fees totaling $36,672.50, plus expenses totaling $365.41. 

Another invoice, dated February 7, 2022, is for an additional 

$11,977.50 in attorney fees and $118.83 in expenses incurred 

since July 23, 2021. A third invoice, dated February 18, 2022, 

shows an additional $2,170 in attorney fees had been incurred; 

the affidavit noted in part that counsel “[had] been forced to 

perform additional legal services as a result of [Christian’s] 

Application for Order to Show cause filed in bad faith and in 

a frivolous manner.”

Christian testified about his attorney fees as well. He said 

that his previous attorney in Nebraska billed him approximately $24,000 and that his current attorney has billed him as 

well. His current attorney’s affidavits were received into evidence and show that from November 18, 2020, to October 6, 

2021, Christian was billed $25,051.44, which included $91.14 

in expenses; an additional $1,200 in attorney fees was incurred 

from October 7, 2021, through February 8, 2022, for 4 hours 

of trial; $1,200 in attorney fees and $18.62 in expenses had 

been incurred December 24, “202[1],” through February 17, 

2022; and counsel estimated an additional $300 in attorney 

fees would be incurred to “[a]ttend/conduct hearing on order to 

show cause” on February 18.

The filing of an affidavit or presentation of other evidence 

will always be the preferable way to support the award of 

attorney fees, but if the contents of the record show the 

allowed fee not to be unreasonable, then that fee would not be 

untenable or an abuse of discretion. See Garza v. Garza, 288 

Neb. 213, 846 N.W.2d 626 (2014).

In this case, the district court stated that the affidavits 

of Paw’s counsel contained invoices, not itemization, and 

that although a detailed itemization may not be specifically required, it would have assisted the court in determining whether the larger fee that was requested was fair and 
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reasonable. The court said it considered the relevant factors 

and ordered Christian to pay $30,000 of Paw’s attorney fees 

and costs.

Christian claims he cannot afford to pay attorney fees. But, 

as noted by Paw, Christian testified to receiving a large workers’ compensation settlement. And while Christian claims that 

the fees were unreasonable, we note that both parties incurred 

significant attorney fees over the course of this case and that 

the attorney fees incurred by Paw were no more than those 

incurred by Christian. We find no abuse of discretion in the 

district court’s award of attorney fees.

VI. CONCLUSION

For the reasons stated above, we affirm the district court’s 

amended decree dated April 21, 2022.

Affirmed.