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Jayson H. Tilson, appellant, v. Erica M. Tilson, 

appellee, and Kimberly L. Hill, 

intervenor-appellee.

___ N.W.2d ___

Filed September 25, 2020. No. S-19-344.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

2. Judges: Recusal: Appeal and Error. A motion requesting a judge to 

recuse himself or herself on the ground of bias or prejudice is addressed 

to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or prejudice as a 

matter of law.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

4. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for clear 

error the factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit evidence 

over a hearsay objection or exclude evidence on hearsay grounds.

6. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, 

whose order is reviewed de novo on the record, and will be affirmed 

absent an abuse of discretion by the trial court.

Nebraska Supreme Court Online Library

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

10/30/2020 12:07 AM CDT
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7. Evidence: Appeal and Error. In a review de novo on the record, an 

appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. 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 another.

8. Modification of Decree: Attorney Fees: Appeal and Error. In an 

action for modification of a marital dissolution decree, the award of 

attorney fees is discretionary with the trial court, is reviewed de novo on 

the record, and will be affirmed in the absence of an abuse of discretion.

9. Judges: Recusal. A judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances 

of the case would question the judge’s impartiality under an objective 

standard of reasonableness, even though no actual bias or prejudice 

was shown.

10. Judges: Recusal: Presumptions. A party alleging that a judge acted 

with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.

11. Judges: Recusal. Opinions formed by the judge on the basis of facts 

introduced or events occurring in the course of the current proceedings, 

or of prior proceedings, do not constitute a basis for a bias or partiality 

motion unless they display a deep-seated favoritism or antagonism that 

would make fair judgment impossible.

12. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

13. Rules of Evidence: Hearsay: Proof. In order for statements to be 

admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) 

(Reissue 2016), the party seeking to introduce the evidence must demonstrate (1) that the circumstances under which the statements were made 

were such that the declarant’s purpose in making the statements was to 

assist in the provision of medical diagnosis or treatment and (2) that the 

statements were of a nature reasonably pertinent to medical diagnosis or 

treatment by a medical professional.

14. Rules of Evidence: Medical Assistance: Health Care Providers. Neb. 

Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), applies to 

persons seeking medical assistance from persons who are expected to 

provide some form of health care.

15. Modification of Decree: Child Custody: Proof. Ordinarily, custody 

of a minor child will not be modified unless there has been a material 
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change in circumstances showing either that the custodial parent is unfit 

or that the best interests of the child require such action.

16. Parent and Child: Words and Phrases. Parental unfitness means a 

personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child 

rearing and which has caused, or probably will result in, detriment to a 

child’s well-being.

17. Modification of Decree: Visitation. Visitation rights established by a 

marital dissolution decree may be modified upon a showing of a material 

change of circumstances affecting the best interests of the children.

18. Modification of Decree: Words and Phrases. A material change in 

circumstances means the occurrence of something which, had it been 

known to the dissolution court at the time of the initial decree, would 

have persuaded the court to decree differently.

19. Modification of Decree: Visitation: Proof. The party seeking to modify visitation has the burden to show a material change in circumstances 

affecting the best interests of the child.

20. Modification of Decree: Visitation. The best interests of the children 

are primary and paramount considerations in determining and modifying 

visitation rights.

21. Modification of Decree: Child Support: Proof. A party seeking to 

modify a child support order must show a material change in circumstances that (1) occurred subsequent to the entry of the original decree 

or previous modification and (2) was not contemplated when the decree 

was entered.

Appeal from the District Court for Lancaster County: Robert 

R. Otte, Judge. Affirmed.

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

David P. Kyker for intervenor-appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Jayson H. Tilson appeals a district court order modifying the 

decree that dissolved his marriage. The district court rejected 

Jayson’s argument that the original decree was void. It ordered 

that custody of Jayson’s three children should remain with 

the children’s maternal grandmother, but modified the decree 
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as to parenting time and child support. On appeal, Jayson 

primarily argues that because, several years ago, he filed a 

motion to dismiss his complaint for dissolution, the decree of 

dissolution that followed was void, even though he withdrew 

the motion to dismiss hours after he filed it. In the alternative, 

Jayson challenges admissibility rulings at the modification 

hearing and the modification order’s custody, parenting time, 

child support, and attorney fees determinations, as well as the 

denial of his motion to disqualify the presiding judge. We find 

no merit to Jayson’s claims, and we affirm.

BACKGROUND

Motion to Dismiss and Dissolution Decree.

In September 2014, Jayson filed a complaint for dissolution 

of his marriage to Erica M. Tilson, who has been incarcerated and is not involved in the current appeal. In December 

2014, temporary custody of the couple’s three minor children 

was awarded to the maternal grandmother, Kimberly L. Hill 

(Kimberly). The court subsequently allowed Kimberly to intervene and appointed a guardian ad litem for the children. In 

August 2015, Kimberly and her husband filed a third-party 

complaint, asking for grandparent visitation and continued 

temporary custody of the children.

On November 16, 2015, the day before a scheduled dissolution hearing, Jayson filed a motion to dismiss his complaint for 

dissolution. The dissolution hearing was held as scheduled on 

November 17, with Jayson in attendance.

On December 8, 2015, the court entered a decree of dissolution, drafted by Jayson’s counsel. Referring to the November 

17 hearing, the decree stated, “Upon motion of [Jayson’s] 

attorney . . . [Jayson’s] motion to dismiss is withdrawn.” 

The decree ordered the continuation of Kimberly’s legal and 

physical custody, and as to Jayson, it ordered parenting time 

and a contribution toward childcare expenses. Jayson was not 

ordered to pay child support. The decree prohibited Jayson 

from consuming alcohol within 24 hours prior to or during his 

parenting time and ordered him to administer the children’s 
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prescribed medications during his parenting time. Erica was 

ordered to pay child support and was awarded supervised parenting time by arrangement.

Jayson’s February 24, 2017, “Complaint,” Initial 

Appeal, and Motion for Judicial Disqualification.

More than a year after the entry of the decree, on February 

24, 2017, Jayson filed a “Complaint.” Relevant here, the complaint requested (1) that the decree be vacated as void because 

his November 2015 motion to dismiss was self-executing, and 

thus the court lacked jurisdiction to enter the decree, and (2) 

that in the alternative, the decree be modified to place custody 

of the children with him. In an answer and cross-complaint, 

Kimberly asked that Jayson’s weekly parenting time be reduced 

and “fully supervised.” She also requested child support.

Before any ruling on Jayson’s complaint filed February 24, 

2017, Jayson filed additional motions upon which the district 

court ruled, and Jayson appealed. We dismissed the appeal. 

See Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018). We 

concluded that the ruling appealed from was not a final order 

because it did nothing more than deny requests for temporary 

relief and preserve the status quo pending the determination of 

other issues. Id.

On May 5, 2018, Jayson filed a motion for judicial disqualification. As discussed in more detail below, he alleged 

several ways in which the presiding judge had exhibited bias. 

Following a hearing, the district court overruled the motion.

Trial Addressing February 24, 2017, “Complaint.”

The district court held a trial on Jayson’s February 24, 

2017, complaint. At trial, Kimberly testified that she is the 

maternal grandmother of the children: M.T., born in 2007; 

R.T., born in 2012; and T.T., born in 2013. The children had 

lived with Kimberly and her husband since December 2014, 

after Jayson was ticketed for leaving them home alone while 

he was out drinking at a bar. According to Kimberly, until 
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March 2017, Jayson did not exercise all of his allotted parenting time. Kimberly’s testimony generally showed that while 

the children were with her, she took care of all their needs, 

including food, clothing, bathing, medical appointments and 

prescriptions, counseling, help with schoolwork, and extracurricular activities.

Kimberly testified that she had many concerns about the 

children’s safety when they were with Jayson. She estimated 

that she observed the children improperly restrained in Jayson’s 

vehicle 20 times during the year preceding trial and 50 times 

overall, despite talking to Jayson about the issue multiple 

times. Kimberly testified that she was also concerned that 

Jayson did not give the children their medication consistently, 

in particular, an antidepressant that M.T. used in 2015 and 

2016. She testified about various dog and cat scratches the 

children had received while under Jayson’s care. Kimberly 

acknowledged that Jayson had been good about taking the children “to the lake and to the park,” but testified he was not good 

about supervising them while swimming. As a result, M.T.’s 

glasses had been lost and broken, and the two younger children 

had gone beyond where they should safely be in the water and 

without lifejackets. Kimberly testified that nearly every time 

the children returned from these outings, they had been “fried” 

by the sun.

Kimberly had concerns about clothing, cleanliness, and 

food during the children’s time with Jayson. In late 2015 

or early 2016, while Jayson was living at his previous residence, Kimberly saw cockroaches in M.T.’s school backpack. 

Kimberly testified that starting in the summer of 2017, the children had lice for a 4-month period and had not had lice when 

they left to visit Jayson. She testified that in the year before 

trial, the children consistently returned from visits with Jayson 

extremely dirty and dressed in clothes that were the wrong size 

or inappropriate for the weather. Kimberly also stated that over 

the preceding 31⁄2 years, the children usually returned from 

Jayson’s home hungry.
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Kimberly also expressed concerns about the effect Jayson’s 

parenting time had on the children’s behavior and school performance. She testified that the children were not doing their 

homework while at Jayson’s home. Kimberly testified that after 

Jayson’s overnight parenting time was suspended in March 

2018, the children’s behavior improved. Before, M.T. was 

having urinary accidents about four times a year, but since the 

change in visitation, she had not had any. Similarly, when the 

two younger children were staying with Jayson overnight, they 

misbehaved for 2 days afterward, but since March 2018, any 

misbehavior had been short lived and their school performance 

had improved.

The children’s guardian ad litem, Candice Wooster, testified 

about her investigation in this case. Wooster was not able to 

schedule a visit at Jayson’s home and has never been informed 

where he lives. She testified that she spoke to Jayson by telephone a handful of times between December 2015 and May 

2017. During one call, Jayson hung up on Wooster. In May 

2017, Jayson stopped returning her calls. As a result, Wooster 

was unable to arrange a home visit with Jayson. She also contacted his attorney and asked if he would like to be present at 

a home visit, but this did not result in an opportunity to either 

speak with Jayson or visit his home. Wooster testified that 

at a hearing during the 3- or 4-month period preceding trial, 

Jayson’s counsel submitted an affidavit in which Jayson stated 

he would not be speaking to Wooster.

In contrast, Wooster visited Kimberly’s home four or five 

times for an hour and found no concerns. Wooster observed 

a very loving relationship between Kimberly and the children. She saw Kimberly helping the children with their homework. When R.T. had a tantrum, Kimberly calmly helped her 

through it. She also observed Kimberly’s husband playing with 

the children.

Dr. Judith Bothern, a licensed psychologist, testified that 

she provided therapy for M.T., R.T., and T.T. from December 

2015 until November 2017. Bothern testified that Kimberly 
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initiated this therapy. M.T., who had 89 sessions with Bothern, 

was Bothern’s primary client in the family. Bothern diagnosed 

M.T. with adjustment disorder and major depressive disorder. 

Bothern’s treatment plan for M.T. included addressing her relationship with Jayson and his knowledge of parenting practices. 

Pursuant to a court order, Jayson participated in 18 sessions 

starting around the same time as the children and continuing 

until September 2016.

Bothern testified regarding several safety concerns about 

Jayson’s care for M.T. M.T. told her that Jayson did not regularly give M.T. her antidepressant medication, which, according to Bothern, could have a significant effect on M.T.’s ability 

to modulate her moods, emotions, and behavior. M.T. reported 

to Bothern that sometimes when she reminded Jayson about 

her medication, he would tell her she had already taken it, 

when she had not. Bothern testified, however, that Jayson recognized the need to be more consistent with the medication and 

expressed an intention to make greater efforts.

Bothern testified that she was also concerned about the 

children’s physical safety. In April 2017, R.T. presented with 

a bruise on her forehead and T.T. presented with bruises on 

her chest and her leg, apparently caused by Jayson’s shooting them with a “Nerf” gun. Bothern testified that this made 

her concerned that Jayson had poor judgment about what was 

appropriate with the children. In addition, during her last session, M.T. told Bothern that Jayson used a pellet gun to shoot 

the children for “‘fun.’” As a result, Bothern filed a report with 

Child Protective Services (CPS).

Bothern had concerns relating to Jayson’s living situations. 

Bothern testified that early on during Jayson’s participation, 

he acknowledged that his residence at that time was in disrepair and had “trouble with mice and bugs,” but he claimed 

he was doing what he could to handle the issue. In early 

2016, Jayson’s living situation resulted in five or six children, 

including older boys and younger girls, sharing a bedroom. 

M.T. reported being very concerned because in the bedroom 
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the boys would expose themselves to her and had touched the 

genitals of a female child living in the home, who was about 

3 years old at the time. Bothern filed a CPS report as a result. 

M.T. also had concerns that the boys were “barging in on her 

in the bathroom.” When Bothern discussed these things with 

Jayson, he said he would show M.T. how to lock the bathroom door. But with regard to the incidents in the bedroom, 

Bothern said Jayson responded with a “boys will be boys type 

of thing.”

Jayson subsequently moved in to the residence of Lexi 

Wallen, where the three children shared a bedroom with 

Wallen’s daughter. In September 2017, M.T., R.T., T.T., and 

Wallen’s daughter, who was approximately 6 years old at the 

time, left that residence in the middle of the night and were 

returned home by the police. M.T. told Bothern they left 

because their bedroom smelled like urine, there was a moldy 

hole in the wall, and ants were all over. In her last session, 

M.T. told Bothern that there were three mice in the residence, 

which Jayson shot at with a pellet gun.

Bothern testified that she was concerned that Jayson had 

told M.T. not to tell Kimberly about events in Jayson’s home. 

When Bothern reported things M.T. had told her to Jayson, 

Jayson would often subject M.T. to “some backlash.” When 

Bothern spoke to Jayson about the matter in therapy, he told 

M.T. that she could talk to Bothern about anything. But when 

Jayson stopped participating in therapy, M.T. reported that 

Jayson had told her not to tell Kimberly about certain incidents. M.T. struggled with this because it required her to either 

lie to Kimberly or betray Jayson. And in June 2017, M.T., 

then about 9 years old, reported to Bothern that CPS came to 

Jayson’s home with the police because R.T. had reported to 

someone that Jayson had left the children home alone. When 

Jayson got very angry with M.T. over this, she falsely told CPS 

and the police it never happened. Additionally, Bothern testified that many times throughout treatment, the children told her 

that Jayson instructed them to misbehave while in Kimberly’s 

care. This too caused emotional distress for M.T.
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Bothern testified that she was also concerned about supervision being delegated to M.T. For example, Bothern recounted 

that in the spring of 2016, T.T. had incurred a bad scrape on 

her face from falling off a retaining wall while under M.T.’s 

supervision. Bothern testified that around the same time, M.T. 

had been “terrified” during a swimming outing when a 4-yearold child in their group fell into the water and M.T. felt 

responsible for bringing her to safety. In October 2017, M.T., 

then about age 9, reported that Jayson told her it was her 

responsibility to take care of her 1- or 2-month-old brother 

while Jayson and a friend were drinking beer in the home and 

Wallen was away. Bothern further testified that once in her 

clinic, she observed Jayson instruct M.T. to take the younger 

children to the bathroom and also observed Jayson instruct 

M.T. to retrieve the younger children when they went into 

the toy room without an adult; in Bothern’s view, these were 

“[i]nappropriate” expectations to be placing on M.T. at her 

level of development.

Bothern testified that she never performed a psychological 

evaluation on Jayson. Rather, she tried to work with Jayson 

to understand M.T.’s developmental needs and expectations, 

along with appropriate discipline and parenting. Bothern characterized Jayson as “very easy to work with”; he always 

responded well in the clinic and was respectful. Bothern testified that Jayson improved in identifying problem areas, but 

“not so much in follow through.” In Jayson’s later sessions, 

Bothern observed that he was frequently not following through 

on her recommendations about intervening with the children.

Dr. Colleen M. Lecher, a licensed mental health professional, testified that she had provided therapy to M.T. and R.T., 

whom she first met in November 2017 upon Bothern’s retirement. Lecher testified that she had never met Jayson and that 

he was not involved in the children’s treatment.

Lecher, who had conducted 20 sessions with M.T., testified that she had diagnosed M.T. with adjustment disorder and 

depression with symptoms of sadness, confusion, and anxiety. 

Lecher’s treatment goals for M.T. were to increase her ability 
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to express her emotions and grief over the loss of her mother 

and to practice relaxation techniques when feeling stressed. 

Lecher testified that for the numerous adults involved in M.T.’s 

life, she set a goal of meeting the children’s needs of safety 

and stabilization at home and at school because those issues 

“looked like a big problem for the group.” Lecher described 

safety and stabilization as making sure transitions are positive 

and doing everything to be appropriate and consistent, to take 

care of needs, and to provide structure for adjustment so that 

the children can “trust their environment.”

Lecher observed that M.T. felt compelled to meet the needs 

of the younger children in Jayson’s home as a parenting figure. 

Lecher opined that the responsibilities M.T. was given for the 

younger children put their safety at risk because her knowledge 

of how to care for them was limited and she had no supervision 

or instruction regarding how to provide care. This, in Lecher’s 

view, also posed a risk to M.T.’s emotional well-being. M.T. 

told Lecher about an occasion prior to November 2017 when 

the children were left home alone completely unsupervised and 

she was scared. Lecher testified this was likely a traumatic 

memory for M.T. and an “attachment strain” that could cause 

mistrust of her main caregivers, in addition to the initial risk of 

having been left home alone.

M.T. reported to Lecher that there were times she wanted 

to call Kimberly and tell her she was scared or unhappy at 

Jayson’s house, but she thought she would be punished for 

doing so. M.T. told Lecher that even if she had a cell phone of 

her own while at Jayson’s house, she feared that Jayson would 

be able to discover that she called Kimberly and she would be 

grounded or in trouble with Jayson if she did.

M.T. shared with Lecher that she saw Jayson drinking alcohol and getting drunk with his friends. M.T. told Lecher that 

one time, she crawled underneath a bed at Jayson’s residence 

and found alcohol there. On several occasions, M.T. also 

brought up the presence in Jayson’s living room of what she 

called marijuana and said she believed there were other illegal 

drugs in the home as well. M.T.’s mother was incarcerated for 
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drug offenses, and she was worried that Jayson would go to 

jail too. Lecher considered accessible alcohol and drugs in the 

home to be a safety risk for the children.

Within the first 2 months of treatment, M.T. told Lecher that 

Jayson transported her in a car without a seatbelt. Around the 

same time, M.T. also said she was scared because Jayson was 

texting while driving. Lecher testified that on approximately 

four occasions at the beginning of treatment, M.T. said that the 

children did not have enough food at Jayson’s house and would 

go home to Kimberly’s house hungry. M.T. also expressed concerns to Lecher about three mice in Jayson’s house.

Lecher observed that during the first 3 months of therapy, 

M.T. was secretive about what went on during visitations and 

struggled with knowing what to say and to whom because she 

did not want to get in trouble or get anyone else in trouble. She 

told Lecher that Jayson had told her to keep certain things that 

go on in his house “secret,” but when Lecher tried to follow up, 

M.T. was very guarded because she was afraid she would get in 

trouble. In Lecher’s opinion, this was a safety risk. M.T. told 

Lecher that she loved Jayson, but M.T. also had concerns about 

Jayson’s ability to provide safety and to be in a relationship 

with her, listen to her, communicate with her, and understand 

her needs. M.T. expressed to Lecher that she believed Jayson 

could meet these needs, but he would need help to do that 

before she felt safe with him. Since the decrease in Jayson’s 

parenting time to Wednesday evenings and Saturdays, M.T. 

had reported feeling less stressed, enjoying planned activities 

with Jayson, and being happier with their relationship. Lecher 

observed that since the change, M.T. was able to concentrate 

and focus more, her mood was more stabilized, and she was 

more willing to talk about her feelings.

Lecher started seeing R.T. in family sessions shortly after 

Lecher began treating M.T., and she began treating R.T. on 

March 1, 2019. Lecher diagnosed R.T. with adjustment disorder with “disturbance of conduct.” Lecher explained that this 

means that R.T. is adjusting to transitions in her living arrangements and separation from her parents and communicating 
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through negative conduct rather than words. R.T.’s treatment 

goals were the same as M.T.’s, and she required safety and stabilization in the home, consistency, and plans for de-escalating 

her “meltdown[s]” and making her feel calm. Like M.T., R.T. 

had reported that Jayson had instructed her not to disclose 

to Kimberly everything that went on at his house; R.T. also 

referred to this information as “secrets” and was very guarded 

when Lecher asked for more information, fearing she would 

get into trouble.

Jayson testified that in addition to being the father of M.T., 

R.T., and T.T., he was the father of a son born in 2006, as 

well as a son born to Wallen in 2017. Jayson testified that his 

younger son lived with him and Wallen, along with Wallen’s 

two children, in a three-bedroom, two-bathroom trailer home 

that belonged to Wallen. Jayson testified that he and Wallen 

had been in a relationship and lived together for approximately 

2 years. Jayson asked the court not to grant access to the children to anyone other than himself. Jayson generally denied or 

explained the bases for the concerns voiced by other witnesses. 

Wallen also testified and provided details that generally discounted the concerns brought up by other witnesses.

District Court Order Disposing of 

February 24, 2017, “Complaint.”

The district court denied the relief Jayson requested in his 

February 24, 2017, complaint. It found that Jayson’s motion to 

dismiss the dissolution complaint had not rendered the decree 

void or unlawful.

Regarding custody, the district court stated that it had 

“observed the parties, the witnesses and their demeanors, and 

made determinations as to credibility.” It continued, “To the 

extent the court’s recitation of the facts differ from a party’s 

position on those facts, the court’s recitation will constitute 

the court’s findings of disputed facts.” In particular, the district court noted that Jayson’s failure to meet with the guardian ad litem “casts doubt upon his true motivations” and 

“works against his credibility and position that he is fit, has 
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satisfactory living arrangements for the children, has the children’s best interests in mind, and can care for them appropriately.” The district court decided that the parental preference 

principle had been rebutted by showings of parental forfeiture 

and unfitness and that the best interests of the children “‘lie 

elsewhere.’” It awarded Kimberly legal and physical custody 

of the children.

Addressing parenting time, the district court found that 

Kimberly had proved a material change in circumstances and 

that the children’s best interests required changes to Jayson’s 

parenting time then in effect. Jayson received parenting time 

every other week from Thursday afternoon through Sunday 

afternoon and for designated holidays and 4 weeks total during the summer, a change from the initial decree’s schedule 

of Friday evenings through Monday mornings and Wednesday 

evenings through Thursday mornings.

As to child support, the district court completed child support worksheets based in part on Kimberly’s suggested calculations and found a material change in circumstances. For the 

first time, it ordered Jayson to pay child support on a permanent basis, in the amount of $587 per month.

The district court found that the remainder of the dissolution 

decree was to stay in effect and that any other relief sought 

was denied. The parties were ordered to pay their own attorney fees.

Subsequent Motions and Amended Order.

Jayson filed a motion for new trial and a motion to vacate, 

alter, or amend the judgment. The latter motion again asserted, 

among other things, that the dissolution decree was void. The 

district court denied the motions, with the exception of the 

issue of child support.

At a subsequent hearing on the child support issue, Jayson 

testified regarding his employment history and income. As 

of February 26, 2019, Jayson was unemployed and looking 

for employment and also spending time with his young son. 

Jayson testified that he did not believe he should be ordered to 
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pay child support because he “takes care of” the children when 

he has them. Kimberly testified that shortly after December 

2015, when Jayson began exercising less parenting time than 

was awarded him in the original decree, her expenses increased 

because the children were with her more often.

The district court completed new child support worksheets 

and entered an order amending the child support aspects of the 

judgment to require Jayson to pay $236 per month. Jayson was 

not required to contribute to childcare expenses.

Jayson now appeals.

ASSIGNMENTS OF ERROR

Jayson assigns that the district court erred in not vacating 

the decree and declaring it to be void. In the alternative, Jayson 

assigns that the district court erred in (1) denying Jayson’s 

motion for disqualification for judicial bias, (2) receiving the 

children’s statements to therapists and the therapists’ opinions, 

(3) not modifying the decree to award custody to Jayson, (4) 

modifying the decree as to parenting time and child support, 

and (5) not awarding Jayson attorney fees.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

which requires the appellate court to reach a conclusion independent of the lower court’s decision. Simms v. Friel, 302 Neb. 

1, 921 N.W.2d 369 (2019).

[2] A motion requesting a judge to recuse himself or herself 

on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be 

affirmed on appeal unless the record establishes bias or prejudice as a matter of law. McCullough v. McCullough, 299 Neb. 

719, 910 N.W.2d 515 (2018).

[3,4] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; 

judicial discretion is involved only when the rules make discretion a factor in determining admissibility. Lindsay Internat. 
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Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133 (2018). 

A trial court has the discretion to determine the relevancy and 

admissibility of evidence, and such determinations will not 

be disturbed on appeal unless they constitute an abuse of that 

discretion. Id.

[5] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination to admit evidence over a 

hearsay objection or exclude evidence on hearsay grounds. 

Pantano v. American Blue Ribbon Holdings, 303 Neb. 156, 927 

N.W.2d 357 (2019).

[6,7] Modification of a dissolution decree is a matter 

entrusted to the discretion of the trial court, whose order is 

reviewed de novo on the record, and will be affirmed absent 

an abuse of discretion by the trial court. Jones v. Jones, 305 

Neb. 615, 941 N.W.2d 501 (2020). In a review de novo on 

the record, an appellate court is required to make independent 

factual determinations based upon the record, and the court 

reaches its own independent conclusions with respect to the 

matters at issue. 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 another. Dooling v. Dooling, 303 

Neb. 494, 930 N.W.2d 481 (2019).

[8] In an action for modification of a marital dissolution 

decree, the award of attorney fees is discretionary with the trial 

court, is reviewed de novo on the record, and will be affirmed 

in the absence of an abuse of discretion. Garza v. Garza, 288 

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

ANALYSIS

Motion to Vacate Decree as Void.

We begin with Jayson’s contention that the district court erred 

by not vacating the decree and declaring it void. Jayson takes 

the position that the motion to dismiss he filed on November 

16, 2015, terminated the dissolution action. According to 
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Jayson, because the district court did not have jurisdiction of 

the matter after he filed his motion, the entire decree, which 

includes custody and child support orders, was void and should 

have been vacated.

Jayson’s argument rests on his understanding that he, as the 

party that filed the dissolution action, had an absolute right to 

voluntarily dismiss it and that his filing of the motion to dismiss had the effect of immediately terminating the action without need for additional action by the district court. In short, 

Jayson claims that his November 16, 2015, motion dismissed 

the action by operation of law the moment it was filed.

Kimberly disagrees, arguing that Jayson did not have the 

right to unilaterally dismiss the action. Although she concedes 

that a plaintiff has the right to unilaterally dismiss an action 

without prejudice under some circumstances, she contends 

Jayson did not have such a right in this case, because she had 

filed a third-party complaint seeking temporary custody or visitation, which remained pending at the time of Jayson’s motion 

to dismiss.

It does not appear that when he filed his November 16, 

2015, motion, Jayson or his counsel believed that Jayson could 

unilaterally terminate the dissolution proceedings. Jayson filed 

a motion to dismiss, which would seem to request that the 

district court take action to effectuate a dismissal rather than 

notifying it and the other parties of a self-executing dismissal. 

See Black’s Law Dictionary 1168 (10th ed. 2014) (defining 

“motion” as “written or oral application requesting a court 

to make a specified ruling or order”). But even if that issue 

is set to the side and, further, even if we assume that Jayson 

is correct that he could and did, in fact, dismiss the dissolution proceeding at the moment he filed his motion to dismiss, we still disagree with Jayson that the subsequent decree 

was void.

If the dissolution action was terminated the moment Jayson 

filed his motion to dismiss, the action was effectively reinstated. While Jayson is correct that an order of dismissal or 

dismissal by operation of law generally divests a court of 
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jurisdiction to take any further action in the matter, we have 

also held that parties may move to reinstate a dismissed action, 

that such a motion is treated as a motion to vacate, and that 

courts generally have jurisdiction to vacate an order of dismissal and reinstate a case. See Molczyk v. Molczyk, 285 Neb. 

96, 825 N.W.2d 435 (2013). Here, the record indicates that 

Jayson filed a motion to withdraw his motion to dismiss on 

November 17, 2015. Although framed as a motion to withdraw 

his motion to dismiss, our law treats motions according to their 

substance and not their title. See Gerber v. P & L Finance 

Co., 301 Neb. 463, 919 N.W.2d 116 (2018). The substance of 

a motion to withdraw a motion to dismiss asks that the action 

continue. Accordingly, even if the action was automatically 

dismissed upon Jayson’s motion, Jayson’s motion to withdraw 

the motion to dismiss operated as a motion to vacate the dismissal and reinstate the action, a request that the district court 

had jurisdiction to entertain. Under this scenario, the district 

court effectively granted the motion to reinstate by recognizing 

that Jayson desired that the action continue and proceeding to 

enter a decree.

For these reasons, we find that the district court did not err 

in concluding that the decree was not void. We thus proceed to 

address Jayson’s alternative assignments of error.

Motion for Judicial Disqualification.

[9,10] Before moving to Jayson’s substantive challenges to 

the modification order, we address his claim that the district 

court judge erred in not recusing himself. A motion requesting a judge to recuse himself or herself on the ground of bias 

or prejudice is addressed to the discretion of the judge, and 

an order overruling such a motion will be affirmed on appeal 

unless the record establishes bias or prejudice as a matter of 

law. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 

515 (2018). A judge should recuse himself or herself when a 

litigant demonstrates that a reasonable person who knew the 

circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even 
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though no actual bias or prejudice was shown. Thompson v. 

Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589 

(2019). Such instances in which the judge’s impartiality might 

reasonably be questioned specifically include where the judge 

has a personal bias or prejudice concerning a party or a party’s 

lawyer. See In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 

91 (2018). A party alleging that a judge acted with bias or 

prejudice bears a heavy burden of overcoming the presumption 

of judicial impartiality. Thompson v. Millard Pub. Sch. Dist. 

No. 17, supra. Jayson has not satisfied this burden.

Jayson’s brief contends there were many instances in which 

the district court demonstrated bias. Because Jayson did not 

raise some of those allegations before the district court, we will 

not consider them all. See Weber v. Gas ’N Shop, 278 Neb. 49, 

54, 767 N.W.2d 746, 750 (2009) (“[a]n appellate court will not 

consider an issue on appeal that was not presented to or passed 

upon by the trial court”). See, also, In re Interest of Michael 

N., 302 Neb. 652, 925 N.W.2d 51 (2019). Instead, we confine 

our review to alleged instances of judicial bias that were raised 

below and on appeal; and we conclude that the presiding judge 

did not err in declining to remove himself from the case.

The allegations of bias that Jayson has made below and on 

appeal arise from hearings in June 2017 and February 2018 

relating to temporary alterations of his parenting time. At the 

hearings, the presiding judge twice allowed Kimberly’s counsel 

additional time to submit exhibits in proper form, over Jayson’s 

objections. On one of those occasions, the judge granted a continuance. The judge also allowed the guardian ad litem to offer 

opinions despite Jayson’s objection. Further, the judge asked 

Jayson’s counsel whether Jayson’s affidavit stated that he 

would not answer any questions posed by any court-appointed 

guardian ad litem.

[11] Jayson’s allegations of bias relate to the presiding 

judge’s courtroom administration and evidentiary and substantive rulings. But “‘judicial rulings alone almost never constitute a valid basis for a bias or partiality motion’” directed to a 

trial judge. Huber v. Rohrig, 280 Neb. 868, 875, 791 N.W.2d 
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590, 598 (2010), quoting Liteky v. United States, 510 U.S. 540, 

114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). See, also, Young v. 

Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013). Nor 

can a judge’s ordinary efforts at courtroom administration be a 

basis for bias or partiality. Id. Opinions formed by the judge on 

the basis of facts introduced or events occurring in the course 

of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display 

a deep-seated favoritism or antagonism that would make fair 

judgment impossible. In re Interest of J.K., supra.

Our review of the record reveals nothing in the district 

judge’s rulings or other actions that indicates bias or prejudice 

necessitating recusal. Accordingly, we conclude that the district court did not abuse its discretion when it denied Jayson’s 

motion for recusal.

Evidentiary Rulings at Modification Hearing.

Jayson also challenges the district court’s modification of 

the dissolution decree. Relevant to that issue are admissibility 

rulings at the modification hearing that Jayson also disputes. 

We address those rulings now.

[12] First, Jayson argues that the district court erred in 

admitting testimony based on statements that the children 

and Kimberly made to Bothern and Lecher. He claims those 

statements were inadmissible hearsay. However, Jayson only 

assigns that the district court erred in receiving the children’s 

statements, and to be considered by an appellate court, an 

alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 

Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). 

Therefore, we will address only the admissibility of the children’s statements to the therapists.

Jayson is correct in identifying the children’s statements 

as hearsay, because it was not the declarants who testified 

to them and they were received for the truth of the matters 

asserted. See, Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) 

(Reissue 2016). However, we conclude that they fall under the 
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medical purpose exception to the hearsay rule and were therefore properly admitted.

[13] Under the medical purpose exception, “[s]tatements 

made for purposes of medical diagnosis or treatment and 

describing medical history, or past or present symptoms, pain, 

or sensations, or the inception or general character of the cause 

or external source thereof insofar as reasonably pertinent to 

diagnosis or treatment” are not excluded by the hearsay rule. 

Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 

2016). Rule 803(3) is based on the notion that a person seeking 

medical attention will give a truthful account of the history and 

current status of his or her condition in order to ensure proper 

treatment. See, State v. Beeder, 270 Neb. 799, 707 N.W.2d 

790 (2006), disapproved on other grounds, State v. McCulloch, 

274 Neb. 636, 742 N.W.2d 727 (2007); State v. Hardin, 212 

Neb. 774, 326 N.W.2d 38 (1982). In order for statements to 

be admissible under rule 803(3), the party seeking to introduce 

the evidence must demonstrate (1) that the circumstances under 

which the statements were made were such that the declarant’s 

purpose in making the statements was to assist in the provision 

of medical diagnosis or treatment and (2) that the statements 

were of a nature reasonably pertinent to medical diagnosis or 

treatment by a medical professional. State v. Mora, 298 Neb. 

185, 903 N.W.2d 244 (2017).

Jayson asserts, without additional elaboration, that statements made by M.T. and R.T. to Bothern and Lecher were not 

made for the purposes of or reasonably pertinent to medical 

diagnosis or treatment. To the extent Jayson implies that the 

mental health professional services provided by Bothern and 

Lecher were not medical in nature and that therefore, the medical purpose exception cannot apply, we disagree.

[14] Our prior cases in this area do not support an argument 

that the medical purpose exception cannot apply to statements 

made to mental health professionals. First of all, we have 

stated that “[a]lthough the heart of the rule 803(3) exception 

lies in statements made by a patient to a treating physician, 

the exception casts its net wider than the patient-physician 
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relationship.” State v. Vigil, 283 Neb. 129, 136, 810 N.W.2d 

687, 695 (2012). As a general rule, then, this hearsay exception applies to persons seeking medical assistance from persons who are expected to provide some form of health care. 

Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 

319 (1994).

More specifically, our cases have applied this hearsay exception to statements made for purposes of obtaining a mental 

health diagnosis or mental health treatment. In In re Interest of 

B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005), we applied 

the medical purpose exception to statements a foster mother 

made to a therapist regarding evidence that the minor patient 

may have been sexually abused. Although our primary focus in 

that case was whether statements from someone other than the 

child herself could be admitted, we concluded that the statements fell within the exception as long as the declarant’s purpose in making the statements was to assist in the provision of 

medical diagnosis or treatment, the declarant’s statements were 

reasonably pertinent to such diagnosis or treatment, and a doctor would reasonably rely on such statements. We determined 

that statements to the child’s therapist setting forth evidence 

that the child had been sexually abused met these requirements 

and were thus admissible.

Later, in State v. Vigil, supra, we applied the exception to 

statements made during a child advocacy center forensic interview regarding a sexual assault. There, we considered the dual 

medical and investigatory purposes of the interview. We held 

that even when an interview is conducted for both medical 

and investigatory purposes, the medical purpose exception will 

apply if the statements were made in legitimate and reasonable contemplation of medical diagnosis or treatment. Relying 

on our decision in In re Interest of B.R. et al., supra, we held 

that when an individual is alleged to be the victim of sexual 

assault, “statements reasonably pertinent to medical diagnosis 

and treatment of both physical and psychological trauma” were 

admissible under rule 803(3). State v. Vigil, 283 Neb. at 141, 

810 N.W.2d at 698 (emphasis supplied).
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Our cases are consistent with those of federal appeals courts. 

A recent opinion from the Third Circuit Court of Appeals 

noted that every federal court of appeals that has considered 

the issue has concluded that statements to mental health professionals for purposes of diagnosis or treatment are admissible 

under the medical purpose exception to the hearsay rule in the 

Federal Rules of Evidence. See U.S. v. Gonzalez, 905 F.3d 165 

(3d Cir. 2018), cert. denied ___ U.S. ___, 139 S. Ct. 2727, 204 

L. Ed. 2d 1120 (2019) (collecting cases).

Having determined that statements made to mental health 

professionals can fall within the medical purpose exception to 

the hearsay rule, we must consider whether the statements at 

issue here met the necessary requirements: that the declarant’s 

purpose in making the statements was to assist in the provision 

of medical diagnosis or treatment, that the declarant’s statements were reasonably pertinent to such diagnosis or treatment, 

and that a medical professional would reasonably rely on such 

statements. Whether a statement was both taken and given in 

contemplation of medical diagnosis or treatment is a factual 

finding made by the trial court in determining the admissibility of the evidence under rule 803(3), and we review that 

determination for clear error. State v. Vigil, supra. Applying 

that standard here, we find no clear error on the part of the 

district court.

In the case before us, Kimberly sought assistance for M.T. 

and R.T. from Bothern and Lecher, health care professionals expected to provide mental or psychological health care. 

Bothern diagnosed M.T. with adjustment disorder along with 

depression. In treating M.T., Bothern testified that it was necessary to address her relationship with Jayson and his parenting practices. Lecher made the same diagnosis for M.T., and 

her treatment goals included helping the adults in M.T.’s life 

meet M.T.’s needs for safety and stabilization. This entailed 

providing structure and consistency so that M.T. could trust 

her environment. Lecher set the same treatment goals for R.T., 

whom she also diagnosed with adjustment disorder. Statements 

by M.T. and R.T. relating to their relationship with Jayson 
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and their time under his care were integral to their diagnosis and treatment, and considering the context in which they 

were made, the statements could be reasonably relied upon. 

We find no error in admitting the disputed testimony over 

Jayson’s objections.

Second, Jayson argues that the testimony of Bothern and 

Lecher lacked foundation and relevance because of what he 

claims are admissions that they could not offer opinions about 

Jayson’s parental fitness or the best interests of the children. 

But even if such admissions exist, it does not follow that 

Bothern and Lecher lacked knowledge relevant to issues that 

the district court had to resolve in this case. Whether in the 

form of opinions or personal observations, the testimony of 

Bothern and Lecher was relevant to custody and parenting 

time because it painted a picture of the children’s time and 

relationship with Jayson, the children’s perception of it, and the 

effects it was having on them.

As for foundation, the testimony of Bothern and Lecher was 

based on their personal knowledge. They both spent time with 

the children in therapy over the course of months or years, 

with Bothern spending some therapeutic time with Jayson, 

and as explained above, the therapy itself necessarily focused 

on Jayson’s parenting time and his relationship with the children. Therefore, we are not persuaded that the district court 

abused its discretion in admitting the therapists’ testimony over 

Jayson’s relevance and foundation objections.

We proceed to consider Jayson’s remaining claims in light of 

this admissible evidence.

Child Custody.

[15] Jayson challenges the district court’s determination 

that custody of the children should remain with Kimberly. 

This matter has come to us by way of modification proceedings. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances 

showing either that the custodial parent is unfit or that the 

best interests of the child require such action. Jones v. Jones, 
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305 Neb. 615, 941 N.W.2d 501 (2020). Jayson does not argue 

that there has been a material change in circumstances, but 

argues that modification of the decree to award him custody is 

required under the parental preference principle.

The parental preference principle establishes a presumption 

that the best interests of a minor child are served by placing custody with his or her parent. See In re Guardianship of 

K.R., 304 Neb. 1, 932 N.W.2d 737 (2019). We agree that the 

parental preference principle governs our analysis. But based 

on this record and our standard of review, we conclude that the 

parental preference principle did not require the district court 

to place the children with Jayson.

The parental preference principle applies to child custody 

controversies between a biological or adoptive parent on one 

hand and one who is neither a biological or adoptive parent on the other. See In re Guardianship of D.J., 268 Neb. 

239, 682 N.W.2d 238 (2004). In those cases, the parent has a 

superior right to and is entitled to custody of the child unless 

the third party negates the parental preference principle. See 

id. On many occasions, we have recognized that the parental 

preference principle can be overcome by a showing that the 

parent is unfit or has forfeited the right to custody. See In re 

Guardianship of K.R., supra (collecting cases). In addition, in 

Windham v. Griffin, 295 Neb. 279, 288, 887 N.W.2d 710, 717 

(2016), we indicated that the preference could be “negated by a 

demonstration that the best interests of the child lie elsewhere.” 

We cautioned, however, that we viewed cases in which the best 

interests of the child defeated the parental preference principle 

as “exceptional” and further explained that a third party could 

not overcome the parental preference principle merely by 

showing that he or she would be able to provide more amenities for the child. Id. at 290, 887 N.W.2d at 718.

In this case, the district court concluded that the parental 

preference principle applied, but found that Kimberly was 

nonetheless entitled to custody. The district court found the 

parental preference principle was overcome because Jayson 

was unfit to have custody of the children, he had forfeited his 
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right to custody, and it was in the best interests of the children 

for Kimberly to have custody.

Jayson argues that the district court erred by finding that he 

was unfit or forfeited his right to custody. As for the district 

court’s conclusion that it was in the children’s best interests for 

Kimberly to have custody, he argues that the parental preference principle cannot be overcome by a showing that it is in 

the children’s best interests for someone other than the parent 

to have custody and urges us to overrule Windham v. Griffin, 

supra, to the extent it holds otherwise.

We find that it is not necessary for us to consider whether 

Jayson forfeited his right to custody or whether the parental 

preference principle was overcome by a showing that it was in 

the children’s best interests for Kimberly to have custody. Even 

if Jayson’s arguments on those points have merit, the parental 

preference principle would still be negated by a showing that 

Jayson is unfit. And, as we will explain, viewing the admissible evidence through the lens of the district court’s credibility 

determinations, we cannot say that the district court abused its 

discretion in finding Jayson was unfit.

[16] Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and 

which has caused, or probably will result in, detriment to a 

child’s well-being. In re Guardianship of K.R., 304 Neb. 1, 932 

N.W.2d 737 (2019). Evidence of unfitness should be focused 

upon a parent’s ability to care for a child, and not any other 

moral failings a parent may have. In re Interest of Lakota Z. & 

Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011). Evidence of 

a parent’s past failings is pertinent only insofar as it suggests 

present or future faults. Id. Parental unfitness must be shown 

by clear and convincing evidence. See In re Guardianship of 

D.J., supra.

The district court heard evidence that under Jayson’s care, 

the children’s physical well-being was at risk. This included 

evidence of poor living conditions. Jayson had acknowledged 

that his earlier residence was in disrepair and had issues 
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with mice and insect infestations. Kimberly testified that at 

the time Jayson lived there, she found cockroaches in M.T.’s 

school backpack. There was evidence that at Jayson’s next residence with Wallen, similar problems persisted, including mice 

and a months-long lice issue. In September 2017, the children 

left Jayson’s residence in the middle of the night due to an odor 

of urine, a moldy hole in the wall, and the presence of ants in 

their bedroom. While Jayson insists his home was in a much 

better condition than portrayed by Kimberly’s witnesses, he 

passed up the opportunity to have a third party, the guardian 

ad litem, visit it.

Other evidence showed a risk to the children’s safety. 

Kimberly testified that the children often returned from 

Jayson’s home with animal bites or scratches. During the year 

before trial, the children routinely returned from Jayson’s 

house hungry, dirty, and dressed in clothing that was either the 

wrong size or inappropriate for the weather. At that time, M.T. 

reported that she had been punished by losing a meal and told 

Lecher that she did not have enough food to eat when she was 

at Jayson’s house. During the year preceding trial, M.T. also 

reported that for “‘fun,’” Jayson had shot the children with a 

pellet gun. Also during the year before trial, M.T. reported the 

presence of drugs and alcohol in Jayson’s home, which she 

was able to access, and said she had observed Jayson intoxicated, when the decree prohibited Jayson from consuming 

alcohol within 24 hours prior to or during his parenting time. 

Kimberly testified that Jayson often transported the children 

without proper car restraints, and during the year before trial, 

M.T. also reported that Jayson had transported her without 

a seatbelt and had texted while driving. Evidence was also 

introduced that Jayson did not supervise the children properly, including during swimming outings. When the children 

were returned from swimming outings with Jayson, Kimberly 

testified that they were nearly always sunburned. Sometimes 

Jayson entrusted M.T. with supervising the younger children, 

leaving them home alone, when, according to Bothern and 

Lecher, M.T. was not developmentally ready to supervise 
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others. According to Lecher, this posed an initial safety risk to 

the children and also could diminish M.T.’s ability to trust her 

caregivers, posing a future safety risk.

In addition to issues of physical health and safety, there was 

evidence that Jayson had not routinely contributed financially 

to the children’s care. Until these proceedings, Jayson was 

not obligated to pay child support, but there was no evidence 

that he had otherwise contributed to their maintenance aside 

from childcare expenses he paid after contempt proceedings 

and what was incidental to his limited and inconsistent parenting time.

The record in this case also contains evidence that Jayson’s 

parental shortcomings have been or probably will be detrimental to his children’s mental and emotional well-being. At the 

time of trial, both M.T. and R.T. were undergoing treatment 

for adjustment disorders. An atmosphere of safety and stabilization was part of their treatment, but their experience under 

Jayson’s care, described above, was inconsistent with these 

mental health needs. And in assessing parental fitness, we have 

considered a parent’s ability to meet the particular needs of a 

child. See In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 

737 (2019).

Other evidence also showed that Jayson posed a detriment 

to the children’s mental and emotional well-being. Contrary 

to the initial decree, in 2015 and 2016, Jayson was inconsistent about giving M.T. antidepressant medication she needed 

regularly to modulate her moods, emotions, and behavior, 

despite reminders from M.T. herself. Jayson’s “boys will be 

boys” response to M.T.’s concerns about older boys at his 

previous residence exposing themselves to her and touching 

the genitals of a young girl in the home could be understood 

as dismissive. And Jayson consistently put the children, especially M.T., in a position that required them to choose whether 

they were loyal to him or to Kimberly. He asked them to 

keep the goings-on at his home “secret,” and if the children 

did disclose such information, they would be in trouble 

with Jayson. This caused internal struggles for M.T. Fearing 
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discovery and punishment, M.T. reported that she did not feel 

free to call Kimberly if she was scared or unhappy at Jayson’s 

house. In June 2017, CPS and the police came to the home 

after Jayson left the children home alone, and due to Jayson’s 

anger with M.T. over the situation, M.T. lied about the matter. Lecher observed that M.T. had an “attachment strain” as 

a result of being left home alone. Jayson caused further emotional turmoil for M.T. by telling the children to misbehave 

for Kimberly.

Jayson’s detrimental effect on the children’s mental and 

emotional health was evident when his visitation was temporarily reduced. Kimberly testified that when visits with 

Jayson were scaled back, the children’s behavior and school 

performance improved, and Lecher testified that upon Jayson’s 

reduced visitation, M.T. became less stressed, more stable in 

her mood, able to focus more, and more open about her feelings. M.T. was also happier with her relationship with Jayson, 

whom she loved, but she questioned his ability to provide for 

her safety and understand her needs.

Despite Jayson’s expressing intentions to improve as a parent, this history, along with other testimony, is evidence that at 

the time of trial, he did not have either the will or the capacity to do so. According to Bothern, she observed that Jayson 

frequently did not follow through with her recommendations, 

even though he was easy to work with in the clinic. This may 

not, on its own, demonstrate unfitness, but it could reasonably 

be understood as demonstrating a reluctance or inability to 

change his parenting practices.

We have reviewed the testimony of Jayson and Wallen, 

in which they either denied or explained the circumstances 

above and generally cast a positive light on Jayson as a parent. But the district court’s order demonstrates that it did not 

find this testimony to be credible. 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. 
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Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019). 

Because this court is not positioned to pass on the credibility 

of the witnesses like the district court was, we defer to the 

district court’s credibility determinations in our assessment of 

the facts.

Jayson argues that this case is “nothing like notable parental preference cases in which the appellate court affirmed the 

lower court’s decision to award custody . . . of a child to a 

nonparent.” Brief for appellant at 24 (emphasis in original), 

citing In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 

(2019); State on behalf of Lilliana L. v. Hugo C., 26 Neb. App. 

923, 924 N.W.2d 743 (2019); and State on behalf of Combs v. 

O’Neal, 11 Neb. App. 890, 662 N.W.2d 231 (2003). But the 

cases Jayson cites are as different from one another as they 

are from this one. And, even if the cases presented by Jayson 

shared some factual similarities with this case, our analysis 

would not depend on a fact-for-fact comparison.

Taken alone, many of Jayson’s individual parental shortcomings might not amount to unfitness. However, the parental 

fitness analysis is a fact-intensive inquiry. See In re Interest of 

Noah C., 306 Neb. 359, 945 N.W.2d 143 (2020). Accordingly, 

we must review the record in this case in totality, rather than 

focusing on whether any one piece of evidence, viewed in 

isolation, demonstrates unfitness. Having done so in this case, 

and given the deference we owe to the trial court’s credibility 

determinations, we cannot say that the district court abused its 

discretion in finding Jayson unfit by clear and convincing evidence and ordering that custody remain with Kimberly.

Parenting Time.

Jayson asserts that even if the district court did not err in 

its custody determination, it erred in modifying his parenting 

time. The district court modified Jayson’s unsupervised parenting time to every other week from Thursday afternoon through 

Sunday afternoon and designated holidays, plus summer visitation. Under the initial decree, Jayson’s unsupervised parenting time had been previously scheduled for Friday evenings 
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through Monday mornings and Wednesday evenings through 

Thursday mornings.

[17-20] Visitation rights established by a marital dissolution 

decree may be modified upon a showing of a material change 

of circumstances affecting the best interests of the children. 

VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019). 

A material change in circumstances means the occurrence of 

something which, had it been known to the dissolution court at 

the time of the initial decree, would have persuaded the court 

to decree differently. Id. The party seeking to modify visitation 

has the burden to show a material change in circumstances 

affecting the best interests of the child. Id. The best interests 

of the children are primary and paramount considerations in 

determining and modifying visitation rights. Id.

Jayson argues the district court could only modify his parenting time if Kimberly proved that between the December 2015 

decree and the modification proceedings, a material change of 

circumstances had taken place and Kimberly failed to prove 

such a change. We disagree. Evidence during this time period 

showed that Jayson was inconsistent in exercising his parenting time, and when he did, it negatively affected the children’s 

mental and physical well-being. There was also testimony that 

the children had a therapeutic need for stability and consistency, which Jayson was not able to provide. Thus, it was not an 

abuse of discretion for the district court to find there had been 

a material change of circumstances regarding parenting time 

that affected the best interests of the children.

Jayson also argues the district court abused its discretion in 

modifying Jayson’s parenting time, because the district court 

modified it to a “level below” the parenting time Kimberly 

requested in her answer and cross-complaint. Brief for appellant at 32. The parenting time ordered by the district court did 

differ from that requested by Kimberly, but it is not so clear 

to us that it was a “level below,” as Jayson contends. The 

district court’s parenting time order granted Jayson less time 

with the children than Kimberly requested, but it also granted 
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Jayson unsupervised time when Kimberly requested that it 

be “fully supervised.” In any event, we are not convinced by 

Jayson’s position.

Jayson argues that Eric H. v. Ashley H., 302 Neb. 786, 925 

N.W.2d 81 (2019), precluded the district court from reducing 

Jayson’s parenting time below that requested by Kimberly. In 

that case, we held that a district court did not abuse its discretion by concluding that sexual abuse by the child’s stepfather 

was the only material change of circumstances alleged in a 

complaint to modify and therefore within the scope of the 

modification proceeding. Jayson makes no argument here that 

Kimberly relied on evidence outside the scope of her pleadings 

to demonstrate a material change of circumstances.

Kimberly’s answer and cross-complaint alleged several 

material changes in circumstances affecting the children’s best 

interests and requested a change to the parenting time schedule. 

Jayson was on notice that parenting time was at issue, and he 

had the opportunity to put on any and all evidence pertinent 

to the parenting time schedule. See Fetherkile v. Fetherkile, 

299 Neb. 76, 907 N.W.2d 275 (2018) (due process requires 

reasonable notice and opportunity to be heard appropriate to 

nature of proceeding and character of rights to be affected). 

We conclude that the district court did not exceed the scope of 

the pleadings or rule without notice to Jayson in modifying his 

parenting time.

Child Support.

Jayson argues that the district court erred in modifying the 

decree to impose a child support obligation on him, when none 

existed before. Jayson does not dispute the district court’s calculation of the amount of child support or that Kimberly, as a 

third party, could be entitled to child support. See Neb. Ct. R. 

§ 4-222 (rev. 2011) (if child resides with third party, court shall 

order each parent to pay to third party his or her respective 

amount of child support). Instead, Jayson contends that there 

was no material change in circumstances to justify any modification to his child support obligation.
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[21] A party seeking to modify a child support order must 

show a material change in circumstances that (1) occurred 

subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was 

entered. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018). 

According to Jayson, there was no material change in circumstances as to child support because there was no evidence that 

his income or the children’s expenses had increased since the 

original decree and because custody remained with Kimberly. 

We find no merit to this argument.

Although Jayson asserts that there was no change in custody between the original decree and the order modifying 

it, a closer analysis reveals a more complicated picture. 

The initial decree provided that Kimberly had physical and 

legal custody of the children. The decree scheduled Jayson’s 

parenting time for Friday evenings through Monday mornings and Wednesday evenings through Thursday mornings. 

Supervised parenting time with Erica was by arrangement. 

Under this schedule, the amount of time the children were to 

spend with Jayson was nearly equal to the amount of time the 

children were to spend with Kimberly. In fact, this schedule 

provided for the children to spend more nights with Jayson 

than with Kimberly. And we have previously explained that 

a trial court can effectively establish a joint physical custody 

arrangement by awarding nearly equal parenting time even 

if it uses a different label to describe the arrangement. See 

State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 

N.W.2d 692 (2019). See, also, Neb. Rev. Stat. § 43-2922(20) 

(Reissue 2016) (defining physical custody as authority and 

responsibility regarding child’s place of residence and exertion of continuous parenting time for significant periods of 

time). In the order modifying the decree, however, the district 

court reduced Jayson’s parenting time to every other week 

from Thursday afternoon through Sunday afternoon and designated holidays, with 4 weeks total during the summer. After 

the modification order, Jayson clearly did not have physical 

custody of the children.
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Regardless of whether there was a change in custody, 

Kimberly’s regular time with the children increased significantly between the original and modified decrees. And even 

when Jayson’s blocks of summer parenting time are considered, her overall time with the children was no longer roughly 

equivalent to Jayson’s. Under the modified decree, the children 

would spend more than twice as many nights with Kimberly 

than they would with Jayson. Further, Kimberly testified that 

the more time she had the children, the more expenses she 

incurred. This permanent change to Jayson’s parenting time 

and the corresponding increase in expenses for Kimberly were 

not contemplated at the time of the original decree, and we 

conclude that they amounted to a material change in circumstances, which permitted modification of Jayson’s child support obligation. But see Brodrick v. Baumgarten, 19 Neb. App. 

228, 809 N.W.2d 799 (2011) (finding temporary change to 

amount of parenting time did not amount to material change 

in circumstances).

Attorney Fees.

Jayson contends that the district court erred in declining to 

award him attorney fees. This argument is based on his position that he should have prevailed in this matter. Because we 

have found no merit to Jayson’s other claims, we conclude 

that the district court did not abuse its discretion in rejecting 

this one. See Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 

314 (2001).

CONCLUSION

For the reasons set forth above, we find no error on the part 

of the district court and affirm.

Affirmed.