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HUDSON V. HUDSO

Cite as 31 Neb. App. 630

Amber L. Hudson, now known as 

Amber L. Cozad, appellant, v. 

Anthony D. Hudson, appellee.

___ N.W.2d ___

Filed March 14, 2023. No. A-22-189.

1. 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.

2. Pleadings: Due Process: Words and Phrases. A court’s determination of questions raised by the facts, but not presented in the pleadings, 

should not come at the expense of due process. While the concept of due 

process defies precise definition, it embodies and requires fundamental fairness.

3. Constitutional Law: Due Process. Generally, procedural due process 

requires parties whose rights are affected by a proceeding to be given 

timely notice, which is reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable 

opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and 

present evidence on the charge or accusation; representation by counsel, 

when such representation is required by the constitution or statute; and a 

hearing before an impartial decisionmaker.

4. ____: ____. The determination of whether the procedures afforded to an 

individual comport with constitutional requirements for procedural due 

process presents a question of law.

5. Rules of the Supreme Court: Pleadings: Implied Consent. The key 

inquiry of Neb. Ct. R. Pldg. § 6-1115(b) for express or implied consent 

to trial of an issue not presented by the pleadings is whether the parties 

recognized that an issue not presented by the pleadings entered the case 

at trial.

Nebraska Supreme Court Online Library

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

03/14/2023 09:05 AM CDT
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Cite as 31 Neb. App. 630

6. ____: ____: ____. Implied consent for purposes of Neb. Ct. R. Pldg. 

§ 6-1115(b) may arise in two situations: First, the claim may be introduced outside of the complaint—in another pleading or document—and 

then treated by the opposing party as if pleaded. Second, consent may 

be implied if during the trial the party acquiesces or fails to object to the 

introduction of evidence that relates only to that issue.

7. Implied Consent: Proof. Implied consent may not be found if the 

opposing party did not recognize that new matters were at issue during 

trial. The pleader must demonstrate that the opposing party understood 

that the evidence in question was introduced to prove new issues.

8. Pleadings: Judgments. Even when a party does not move to amend 

pleadings, a court may constructively amend pleadings on unpleaded 

issues in order to render a decision consistent with the trial.

9. Pleadings: Appeal and Error. Permission to amend a pleading is 

addressed to the discretion of the trial court, and an appellate court will 

not disturb the trial court’s decision absent an abuse of discretion.

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

modify a child support order must show a material change of circumstances which occurred subsequent to the entry of the original decree 

or a previous modification which was not contemplated when the prior 

order was entered.

11. Divorce: Modification of Decree: Child Support. The paramount 

concern and question in determining child support, whether in the initial 

marital dissolution action or in proceedings for modification of decree, 

is the best interests of the child.

12. Divorce: Modification of Decree. A change of circumstances not within 

the reasonable contemplation of the parties at the time of the decree may 

be the basis for modification of a decree.

13. Divorce. Although a parent may have contemplated incurring childcare 

expenses at some point in the future, many items within the realm of 

contemplation at the time of dissolution remain uncertain or speculative.

14. Divorce: Modification of Decree. To determine whether to modify an 

award with respect to childcare expenses, it is necessary for the court to 

compare the need for work-related childcare at the time of the original 

decree with the need for such childcare at the time of the modification hearing.

Appeal from the District Court for Cherry County: Mark D. 

Kozisek, Judge. Reversed and remanded with directions.

Loralea L. Frank, of Bruner, Frank, Schumacher, Husak & 

Simpson, L.L.C., for appellant.
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HUDSON V. HUDSO

Cite as 31 Neb. App. 630

Michael J. Synek for appellee.

Moore, Riedmann, and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

Amber L. Hudson, now known as Amber L. Cozad, appeals 

from an order of the Cherry County District Court modifying 

the decree dissolving her marriage to Anthony D. Hudson. She 

claims multiple errors relating to the district court’s failure to 

grant her childcare expenses. We reverse the district court’s 

decision declining to address childcare expenses and remand 

the matter with directions to apportion childcare expenses from 

the time of trial forward. Any decision regarding a retroactive 

childcare award is at the trial court’s discretion based on the 

evidence adduced at trial, which we set forth in detail in this 

opinion to assist on remand.

II. BACKGROUND

1. July 2020 Decree

Amber and Anthony married in 2011 and had two children—Riley Hudson, born in 2016, and Callie Hudson, born 

in 2019. The parties’ marriage was dissolved by decree on July 

30, 2020. Anthony was not represented by counsel at that time; 

Amber has been represented by the same counsel throughout 

the dissolution and modification proceedings. The decree was 

entered pursuant to a “Marital Settlement Agreement”; it gave 

Amber sole legal and physical custody of the children, subject 

to Anthony’s parenting time. The parenting plan incorporated 

in the settlement agreement stated that Anthony’s parenting 

time included “one weekend visitation per month . . . in 

Valentine, Nebraska,” as well as “four (4) weeks of summer 

parenting time . . . each summer commencing summer 2024.” 

The parenting plan further specified that Anthony would be 

responsible for all transportation necessary for him to exercise 

his parenting time.
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Cite as 31 Neb. App. 630

The child support calculation included in the decree showed 

gross taxable income of $4,828 per month for Anthony and 

$1,560 per month for Amber. It also included “Gross Unearned 

Taxable Income” of $2,200 per month for Anthony. Anthony 

was attributed a net monthly income of $5,067.48 on which 

child support was calculated. This resulted in an order that 

Anthony pay $1,100 per month in child support for the parties’ 

two children.

The decree stated that the parties would each be responsible for 50 percent “of the out-of-pocket medical expenses 

of the minor children.” The decree also included the following provision:

It is further ordered that pursuant to the Nebraska Child 

Support Guidelines §4-212, both parents shall share in all 

reasonable and necessary direct expenditures made solely 

for the child(ren) such as clothing and extracurricular 

activities shall be allocated between the parents for the 

minor children of which they participate in. [Anthony] 

shall be responsible for 50% and [Amber] shall be responsible for 50% of the cost.

The decree was silent as to childcare expenses.

2. Amber’s Complaint for 

Modification

A little over 4 months after entry of the July 2020 decree, 

Amber filed a “Complaint for Modification” on December 8. 

It alleged that the decree did not order daycare because the 

minor children were not attending daycare, but that since that 

time, Amber was employed full time and was incurring daycare 

costs. Anthony entered a voluntary appearance on February 

23, 2021, and a month later on March 24, Amber filed a 

“Dismissal” of her modification action.

3. Anthony’s Complaint for 

Modification

A week after Amber’s dismissal of her modification action, 

Anthony filed a “Complaint for Modification” on March 31, 
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2021. He alleged there had been a material change in circumstances since the entry of the decree because he had “changed 

jobs” and his “gross income . . . decreased below . . . $4,828 

per month.” He also moved to Lincoln, Nebraska; remarried; 

and planned to move to Pennsylvania. The complaint further 

stated that the order improperly included the provision relating to clothing and extracurricular activities, because Anthony 

did not agree to the inclusion of the provision and Neb. Ct. R. 

§ 4-212 (rev. 2011) of the Nebraska Child Support Guidelines 

“only applies to cases when a specific provision for joint physical custody is ordered and each party’s parenting time exceeds 

142 days per year.”

Anthony requested that the district court modify the decree 

to reduce his child support obligation, terminate the provision 

relating to clothing and extracurricular activities, grant the parties joint legal custody, and increase Anthony’s parenting time. 

He also requested that the court require Amber to “bear part of 

the cost for transporting the children to and from [Anthony’s] 

parenting times.”

Amber filed an “Answer and Counterclaim” on August 5, 

2021, wherein she denied the material allegations of Anthony’s 

complaint and further asserted that Anthony had already “moved 

outside of the jurisdiction of Nebraska.” She made various allegations related to Anthony’s absence from the children’s lives 

in support of her position that the district court should require 

supervision during Anthony’s parenting time with the children 

or reduce his parenting time. She further asserted that “[i]t is 

appropriate to modify the child support obligation and associated out of pocket expenses in accordance with the Nebraska 

Child Support Guidelines.”

4. Pretrial Proceedings

On December 16, 2021, the parties filed a “Joint Final 

Witness and Exhibit List.” The list of possible witnesses 

included Brenda Stankoski and Jim Fox, Amber’s daycare 

providers. The document also listed “[d]aycare receipts for 
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Cite as 31 Neb. App. 630

minor children” as one of Amber’s exhibits. In the document, 

the parties marked each anticipated exhibit with an “A,” “B,” 

or “C.” The pretrial order, which we further discuss below, 

explained the markings. Exhibits marked with an “A” included 

those that would be “admitted without objection upon offer 

by either party.” The parties waived foundational objections 

to the exhibits marked with a letter “B.” The parties reserved 

all objections on exhibits marked with a “C.” The “[d]aycare 

receipts” were marked with a “C.”

On December 17, 2021, the district court held a pretrial 

conference at which time the parties discussed the issues to be 

litigated at trial. Anthony’s counsel indicated that the issues to 

be litigated included “modification of child support and related 

issues, which would be the financial issues[,] . . . modifications 

in the parenting plan” due to Anthony’s move to Pennsylvania, 

and legal custody of the children. When asked by the court 

what Amber pled in her counterclaim, Amber’s counsel stated, 

“[m]odification and child support and agree to the material change and that he lives in Pennsylvania.” Anthony then 

entered a general denial of Amber’s counterclaim. The parties also discussed the “Joint Final Witness and Exhibit List” 

with the court. When the court inquired about the exhibits 

marked with a letter “C,” Anthony’s counsel stated that he 

reserved his objections to those exhibits because he had not yet 

reviewed them.

Later that day, the district court entered a pretrial order, 

where it identified the following as “the legal and factual 

issues”:

(1) Modification of parenting plan as to time, place and 

manner of parenting time based upon [Anthony’s] move 

to the State of Pennsylvania;

(2) Apportionment of costs associated with parenting 

time;

(3) Modification seeking joint legal custody;

(4) Modification of child support[;]

(5) Attorney fees and costs[.]
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Cite as 31 Neb. App. 630

The order then stated that the issues identified in the order 

“do not preclude any other issues properly raised by the 

pleadings.”

5. Trial

Trial took place on February 4, 2022. The parties had 

reached agreement on several issues, including that there was 

a material change in circumstances warranting modification 

of Anthony’s child support obligation and that the district 

court should terminate the clothing and extracurricular activities provision from the decree. Each party testified, along 

with Anthony’s new wife, and multiple exhibits were received 

into evidence.

(a) Amber’s Opening Statement

Amber’s counsel indicated during her opening statement that 

“[Amber’s] position is if the Court is going to retroactively 

decrease [Anthony’s] child support, based on his request, then 

he should be required to, in fact, contribute to his percentage 

on that retroactive support for purposes of daycare expenses 

that [Amber] was incurring during that time.” The district 

court questioned whether Amber had “pray[ed] for” childcare 

expenses in her counterclaim. Amber’s counsel argued that 

because child support was generally at issue, so too were childcare expenses. She further stated that at the time the decree 

was entered, Anthony’s child support obligation was calculated 

to include childcare expenses, but that this was not noted in 

the record.

(b) Anthony’s Testimony

Anthony testified regarding his financial circumstances and 

his recent move out of state. He had previously served in 

the U.S. Army from 2008 through 2013, including serving a 

year in Afghanistan. He was honorably discharged from the 

military, and due to disabilities sustained during his service, he 

received approximately $1,100 per month in nontaxable disability pay. According to Anthony, at the time he and Amber 
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divorced, his gross earned taxable income was not actually 

$4,828 per month as reflected in the child support calculation. 

He was in fact working 40 hours per week “plus normally 

anywhere from 10 to 15 hours of overtime,” earning $16.50 

per hour. Anthony’s counsel pointed out that for Anthony’s 

gross earned taxable income to be $4,828 per month, he would 

have to have been earning a higher wage of approximately 

$27.85 per hour. At the time of the divorce, Anthony moved 

to Lincoln, Nebraska, and his pay rate had changed four times 

since the divorce. He had most recently obtained employment with a private security company in Pennsylvania, where 

he would be working 50 hours per week at a rate of $22.10 

per hour. Anthony remarried in February 2021 and moved to 

Pennsylvania with his wife in August 2021.

During cross-examination of Anthony, Amber’s counsel 

asked Anthony whether he “underst[oo]d that now that child 

support is decreasing, [he would] need to contribute to the daycare costs for the minor children,” to which Anthony responded, 

“Yes, ma’am, I don’t have a problem with that.” The district 

court then interjected, asking the parties whether “there [was] 

an agreement on daycare.” Anthony’s counsel stated that the 

parties had not reached agreement on the issue, adding, “[i]n 

fact, my argument was going to be similar to your comments 

at the beginning. I don’t think it was pleaded.” However, on 

redirect, the following colloquy took place between Anthony’s 

counsel and Anthony:

[Counsel:] Okay. The child care is something that you 

and I have talked about and you said you’re willing to pay 

it, and that’s if the Court orders it, you’re willing to pay 

whatever the Court orders, right?

[Anthony:] Yes, sir.

[Counsel:] You’re going to follow the Court’s orders?

[Anthony:] Yes, sir.

[Counsel:] As far as whether or not the Court is going 

to order it or if it’s been properly pleaded, you can’t say 

at this point, right?

[Anthony:] No, sir.
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Cite as 31 Neb. App. 630

(c) Amber’s Testimony

Amber testified about her childcare needs and associated 

costs. She stated that the children both go to daycare “full 

time”; “Callie goes to Brenda Stankoski; Riley spends most 

of his daycare time with [Amber’s] grandpa, Jim Fox.” Amber 

stated that she had incurred childcare expenses in 2021 and 

continued to incur childcare expenses in 2022. Amber’s counsel asked Amber whether she was requesting that Anthony 

“pay daycare effective [sic] a new order.” Anthony’s counsel 

objected to the question as “beyond the scope of the pleadings.” The district court overruled the objection. Anthony’s 

counsel then made a “continuing objection on [the] topic,” 

which the court noted. The court allowed the remainder of 

Amber’s evidence related to childcare expenses without conditioning its admissibility to any later findings by the court.

Amber testified that she was requesting that Anthony be 

required to contribute to childcare expenses “based on the percentage of the child support calculation.” She also requested 

a credit for the childcare expenses she had incurred in 2021. 

She stated that she pays Fox $240 per month for childcare 

and pays Stankoski $25 per child, per day, in addition to a 

weekly $10 charge for food. The district court asked whether 

there were “cancelled checks or bank statements that . . . 

show [the] payments” to Fox. Amber’s counsel indicated that 

she had evidence relating to the payments and further stated 

that Anthony’s counsel stipulated to the admissibility of the 

evidence. Anthony’s counsel did not contest this statement. 

Amber’s counsel then offered into evidence exhibit 9, which 

included a written statement signed by Fox, stating that in 

“2021 [Amber] paid [him] $240 a month, for a sum of $2880 

for the year for daycare for Riley and Callie.” Exhibit 9 

also included two emails from Stankoski: the first stated that 

“Amber paid $5926.00 for daycare” for Riley and Callie in 

2021, and the second stated that she would be charging “$25 

per day per child” in addition to a $10 weekly charge for 

each child. Anthony’s counsel specifically stated that he had 
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Cite as 31 Neb. App. 630

“[n]o objection” to exhibit 9, after which the court received the 

exhibit into evidence.

During cross-examination, Amber testified that in 2020, 

she worked “one or two days [a] week . . . from 7 to 3,” but 

that she spent the rest of her time throughout the week with 

the children. Anthony’s counsel questioned Amber about her 

current work schedule and the children’s corresponding daycare attendance. The following colloquy took place between 

Anthony’s counsel and Amber:

[Counsel:] . . . What’s the time that you clock into 

work . . . ?

[Amber:] Between 8 and 8:30. I’m not able to drop my 

kids off at daycare until 8 o’clock.

[Counsel:] And what time does your day end at [work]?

[Amber:] . . . Depends on the day, what I’m doing. 

Anywhere from — Last night I got home at 6:30.

[Counsel:] What’s your normal — what’s your average time?

[Amber:] 40 hours a week.

[Counsel:] What’s your average time you end your 

workday?

[Amber:] I try to get back by 5 o’clock because that’s 

when daycare closes.

[Counsel:] But sometimes you work longer.

[Amber:] Correct.

[Counsel:] Now, is Riley going to school at Valentine 

Public School?

[Amber:] Yes.

[Counsel:] What grade?

[Amber:] He is a preschooler.

[Counsel:] What time does he have to be at school?

[Amber:] 12 o’clock.

[Counsel:] What time does school end?

[Amber:] 3:30.

[Counsel:] When Riley’s at school, are you still paying 

the daycare for him to [Fox]?
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[Amber:] I pay [Fox] costs for food and costs for gas 

to take him back and forth to school. I don’t actually pay 

daycare/babysitter. It’s cost of food and cost of gas. That’s 

an expense —

[Counsel:] So that 240 amount that’s on Exhibit 9 is 

not actually a daycare cost, you’re just reimbursing for 

food and gas?

[Amber:] That’s whatever you want to call it. I consider it daycare, child care. Child care.

[Counsel:] How many hours a day is Riley spending 

with [Fox] for daycare?

[Amber:] It really depends. Usually from — I would 

say 8:30, until he goes to school; after school until anywhere between 5 and 6.

And if I am not back to get Callie from daycare, 

my mom will get her and take her to [Fox’s] until I’m 

off work.

[Counsel:] What hours is Callie in daycare?

[Amber:] 8, 8:30 to 5.

[Counsel:] And so the daycare quotes you have, the 

$25 a day, that’s just for Callie?

[Amber:] Riley goes on Fridays when he does not 

have school.

THE COURT: Wait a minute. I thought he was with 

[Fox].

[Amber:] Most every day but Friday. Sometimes he 

does go another day during the week, also. That’s why 

the — why the cost for [Fox] is an average.

[Counsel:] Does [Fox] ever give you any money back? 

You pay him 240; does he ever give you anything back?

[Amber]: He does not.

[Counsel]: Does he ever say you don’t have to pay 

me 240?

[Amber]: He might have said it, but I still don’t feel 

that’s right, because he is incurring those charges. He 

shouldn’t have to take that expense.
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Cite as 31 Neb. App. 630

(d) Closing Arguments

During closing arguments, Anthony’s attorney argued that 

childcare had not been pled and that pleading out-of-pocket 

expenses “does not signify that you want a change in . . . 

child care. If you want to change child care, plead child care.” 

Anthony’s attorney argued that nothing was mentioned about 

childcare during the pretrial conference. Amber’s attorney 

responded that “under a notice pleading requirement . . . 

[i]t’s clearly pled as an out-of-pocket expense and it’s clearly 

articulated within the guidelines.” The court interjected, stating, “Don’t tell me it’s clearly pled because it isn’t. You pled 

for generic out-of-pocket expenses and then we had a pretrial 

conference, we identified the issues, and that was certainly not 

one of them that was raised.” Amber’s attorney argued that 

there was no “unfair surprise,” Anthony’s counsel had a copy 

of the childcare expense, and there had been correspondence 

about it.

6. District Court’s Orders

A week after trial, on February 11, 2022, Amber filed a 

“Motion to Amend the Pleadings to Conform to the Evidence.” 

In her motion, she stated that “[e]vidence of substantial daycare costs [was] presented at trial[] without objection of the 

opposing party.” As such, she claimed the issue was tried with 

the implied consent of Anthony. She requested that the district 

court “allow the pleadings to be amended to conform to the 

evidence produced at trial.” No notice of hearing was included 

in the motion.

On February 23, 2022, the district court entered an “Order 

on Trial Stipulations” where it accepted the trial stipulations 

attached to the order. The parties’ “Trial Stipulation” set forth 

“the existence of certain facts” and the parties’ agreement 

“to the resolution of certain issues.” Toward the end of the 

document, there is a list of issues under the subheading, 

“Remaining unresolved issues recited at the commencement of 

the final hearing[,]” which included items lettered “l.” through 
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“s.,” all typed, followed by a handwritten item “t. Retroactive 

Day Care.”

On February 25, 2022, the district court entered an order 

modifying the parties’ decree. Sole legal and physical custody of the children remained with Amber, subject to the 

“Amended Parenting Plan.” The court found that Anthony had 

proved a material change in circumstances warranting modification of child support. As such, the court reduced Anthony’s 

child support obligation to “$834.00 per month when there 

are two children subject to the order, and $579.00 per month 

when there is one child subject to the order.” The modification was applied retroactively beginning April 1, 2021, the 

day after the action was filed. As such, the court found that 

Anthony had “‘overpaid’ by $4,896” and credited that amount 

“first against his attorney fee obligation and then to his support obligation.”

The court declined to require Amber to pay transportation 

costs associated with Anthony’s exercise of his parenting time. 

It pointed out that the parties “originally agreed that Anthony 

would be responsible for all transportation costs knowing 

he would be living a significant distance from Valentine.” 

Anthony was living in Lincoln at the time. The court observed, 

“Now those costs have substantially increased because of his 

second move to Pennsylvania” and he “now wants Amber to 

pay a portion of those increased costs.” The court concluded 

that the “equities of the case do not compel that outcome.” 

The court stated that Anthony made the move knowing his 

children lived in Valentine and that Amber should “not be 

required to pay for the increased costs associated with that 

unilateral decision.”

The district court did not award Amber childcare expenses. 

The February 25, 2022, modification order explained:

The first time the court heard that daycare (childcare) was 

at issue was at trial. That subject had not been broached 

in the pleadings nor at the Pretrial Conference when 

the pending issues were specifically identified. Amber 
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argues that her generalized request for modification of 

child support and “associated out of pocket expenses” in 

accordance with the [Guidelines] properly placed the day 

care matter at issue. Under her interpretation of notice 

pleading any expenditure of money is “out of pocket” 

and there would be no limit to the issues raised at trial 

or to the relief requested if it involves money. Such an 

expansive interpretation is unwarranted. And while issues 

not raised by the pleadings may be tried by express 

or implied consent of the parties, no such consent was 

given. Anthony objected to the testimony regarding daycare as beyond the scope of the pleadings.

Pleadings frame the issues . . . . Procedural due proc

ess is at play. Amber did not plead a material change in 

circumstances nor did she request an award of childcare 

expenses until the time of trial.

When reviewing the pleadings it is apparent that 

the apportionment of direct expenses per §4-212 of 

the Guidelines was the issue. The Decree, prepared by 

Amber’s counsel, erroneously included that language 

because no joint custody had been awarded. Both parties 

recognized the mistake. It seems much more probable 

that Amber was referring to the apportionment language 

relating to a joint custody arrangement and those out of 

pocket expenses rather than to a previously unmentioned 

and unaddressed day care issue.

Amber labors under the misconception that childcare 

is “an associated out of pocket expense” of child support; 

that the two go hand-in-hand. If child support is in play 

[then] so too are childcare expenses. . . .

The nexus Amber seeks is not found in the Guidelines. . . .

Amber also ignores fundamental law that requires 

proof of a material change in circumstances before a 

decree will be modified. There was no evidence of any 

material change regarding childcare expense[s] since 

the Decree was entered; only the tit for tat. In fact, 
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Anthony’s income is now less . . . . [T]hat cannot be 

the material change warranting an award of childcare 

expenses at this juncture. Nor is Anthony’s move to 

Pennsylvania a material change warranting modification 

and an initial award of childcare expenses.

Day care was not an issue at the time the Decree was 

entered; it was not awarded nor was it even mentioned. 

In opening Amber suggested that the parties bartered 

child support for day care at the time settlement was 

reached. The income information presented to the court 

and the child support calculation attributed roughly double Anthony’s actual income to arrive at the child support 

suggesting he had no bartering skills. Moreover, the court 

notes Anthony was not represented and doubts he had the 

legal sophistication to barter for anything, let alone an 

increase in support in exchange for paying no childcare 

costs. Amber’s attorney certainly should have known the 

difference between child support and childcare and using 

an incorrect income amount to determine child support 

was improper. Bottom line, Amber now seeks to add 

something after the fact and also have it relate back in 

time without any showing of a material change. The court 

declines to do so.

On March 21, 2022, Amber timely appealed from the district 

court’s February 25 “Order Modifying Decree.”

III. ASSIGNMENT OF ERROR

Amber assigns that the district court abused its discretion 

by not modifying its prior decree to require Anthony to pay 

childcare expenses. As part of that assignment of error, she 

identifies five ways in which the district court erred: (1) finding she had not properly pled for relief related to childcare 

expenses, (2) not finding that Anthony received sufficient 

notice that childcare expenses would be an issue at trial, (3) 

not finding that Anthony consented to raising the issue of 

childcare at trial, (4) not scheduling for hearing her motion to 
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amend the pleadings to conform to the evidence, and (5) not 

finding a material change in circumstances warranting modification of the decree to include childcare expenses.

IV. STANDARD OF REVIEW

[1] 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. Tilson v. Tilson, 307 Neb. 275, 948 

N.W.2d 768 (2020).

V. ANALYSIS

This case provides a good example of the importance of 

carefully drafting pleadings. It also demonstrates, however, that 

inadequate pleadings need not preclude an equitable outcome, 

especially when considering the best interests of a child.

1. Adequacy of Pleadings

Amber contends the district court erred when it found she 

did not properly plead childcare expenses in her counterclaim. 

We find no error in the court’s finding in that regard. Amber’s 

counterclaim alleged a material change in circumstances 

affecting the children’s best interests such that “custody and 

parenting time of the parties” should be modified. Seven of 

the eight reasons listed thereafter related to parenting time. 

The final allegation states, “It is appropriate to modify the 

child support obligation and associated out of pocket expenses 

in accordance with the Nebraska Child Support Guidelines.” 

Amber argues that childcare expenses are a part of “associated out of pocket expenses.” This argument is not persuasive, 

especially when keeping her counterclaim language in context 

with Anthony’s complaint, which alleged that the decree contained a provision related to each parent’s 50-percent contribution to the children’s reasonable and necessary direct expend

itures, such as clothing and extracurricular activities, despite 

there being no provision for joint physical custody. Further, 

as Anthony points out in his brief, just prior to the filing 
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of his complaint to modify, Amber had filed a complaint to 

modify specifically seeking childcare expenses in which her 

request for childcare expenses was clearly stated; it was not 

couched in terms of out-of-pocket expenses. Amber dismissed 

that action immediately prior to the filing of Anthony’s complaint, and yet the specific request for childcare expenses was 

not renewed in Amber’s counterclaim. Although we agree with 

the district court that childcare expenses were not properly 

pled, that does not end our analysis. We must also consider 

whether there was sufficient notice to and consent by Anthony 

to litigate the issue, and we must determine whether it was an 

abuse of discretion for the district court not to consider those 

same factors when declining to award childcare expenses for 

the parties’ two minor children.

2. Notice and Consent to Litigation 

of Childcare Expenses

Amber contends that even if her pleading was insufficient, 

the district court should have found that Anthony had sufficient 

notice childcare expenses would be an issue at trial and that he 

impliedly consented to litigate the issue.

(a) Notice

[2-4] A court’s determination of questions raised by the 

facts, but not presented in the pleadings, should not come at 

the expense of due process. Simons v. Simons, 312 Neb. 136, 

978 N.W.2d 121 (2022). While the concept of due process 

defies precise definition, it embodies and requires fundamental 

fairness. Id. Generally, procedural due process requires parties 

whose rights are affected by a proceeding to be given timely 

notice, which is reasonably calculated to inform the person 

concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a 

charge or accusation; a reasonable opportunity to confront and 

cross-examine adverse witnesses and present evidence on the 

charge or accusation; representation by counsel, when such 
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representation is required by the constitution or statute; and 

a hearing before an impartial decisionmaker. Id. The determination of whether the procedures afforded to an individual 

comport with constitutional requirements for procedural due 

process presents a question of law. Id.

When Amber introduced the issue of childcare expenses 

by identifying childcare receipts and witnesses in the “Joint 

Final Witness and Exhibit List” filed in December 2021, no 

objections were raised, although objections were reserved. 

The record indicates that prior to trial, Anthony’s counsel discussed litigation of the issue with Amber’s counsel and stipulated to the admissibility of the “[d]aycare receipts.” Although 

Anthony’s counsel had marked the “[d]aycare receipts” with a 

“C” on the “Joint Final Witness and Exhibit List,” indicating 

that he had reserved all objections to the evidence, he stated 

during the pretrial conference that he had done so because 

he had not yet received a copy of these and other exhibits. 

Notably, there was no surprise by Anthony at trial when he 

was asked by Amber’s counsel whether he understood that with 

child support decreasing he would need to contribute to daycare costs for the children. Anthony responded, “Yes, ma’am, 

I don’t have a problem with that.” Additionally, Anthony confirmed his counsel’s statement that childcare was something he 

and his counsel had talked about and that Anthony was willing to pay it if the court ordered it. The record supports our 

conclusion that Anthony had sufficient notice childcare would 

be an issue at trial and that therefore, procedural due process 

was satisfied.

(b) Implied Consent

We next consider Amber’s argument that Anthony impliedly 

consented to litigation of childcare expenses and therefore, the 

district court should have granted her “Motion to Amend the 

Pleadings to Conform to the Evidence.” The amendment of a 

pleading is governed by Neb. Ct. R. Pldg. § 6-1115. Section 

6-1115(b) provides in part:
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When issues not raised by the pleadings are tried by 

express or implied consent of the parties, they shall be 

treated in all respects as if they had been raised in the 

pleadings. Such amendment of the pleadings as may 

be necessary to cause them to conform to the evidence 

and to raise these issues may be made upon motion of 

any party at any time, even after judgment; but failure 

so to amend does not affect the result of the trial of 

these issues.

[5] The key inquiry of § 6-1115(b) for express or implied 

consent to trial of an issue not presented by the pleadings is 

whether the parties recognized that an issue not presented by 

the pleadings entered the case at trial. United Gen. Title Ins. 

Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015). Amber 

does not allege that Anthony gave express consent to litigation of childcare expenses. As such, we limit our analysis to 

implied consent.

[6,7] Implied consent for purposes of § 6-1115(b) may 

arise in two situations. See United Gen. Title Ins. Co. v. 

Malone, supra.

“‘First, the claim may be introduced outside of the 

complaint—in another pleading or document—and then 

treated by the opposing party as if pleaded. Second, consent may be implied if during the trial the party acquiesces or fails to object to the introduction of evidence that 

relates only to that issue.

“‘Implied consent may not be found if the opposing 

party did not recognize that new matters were at issue 

during trial. The pleader must demonstrate that the opposing party understood that the evidence in question was 

introduced to prove new issues.’”

Id. at 1028-29, 858 N.W.2d at 216.

Anthony argues that he could not have consented to litigation of childcare expenses, because he objected to the 

topic during trial. We acknowledge that Anthony made a 

continuing objection to the issue of childcare expenses on the 
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ground that it had not been pled in Amber’s counterclaim; the 

district court permitted the continuing objection. Therefore, 

the second manner in which implied consent may arise as 

described above—by acquiescing or failing to object to the 

evidence (at least in part)—is not supported by the record. 

However, the record does show that Anthony impliedly consented to litigation of childcare expenses under the first situation described above, in that the claim for childcare expenses 

arose at least implicitly at the pretrial conference via the joint 

pretrial document submitted to the court at that time. In the 

December 2021 “Joint Final Witness and Exhibit List,” Amber 

listed “[d]aycare receipts for minor children” as an exhibit 

and named Stankoski and Fox, Amber’s childcare providers, 

as possible witnesses. Anthony was aware of Stankoski’s and 

Fox’s roles as childcare providers because Amber had provided 

Anthony the “[d]aycare receipts” which stated the amounts 

Stankoski and Fox had each charged Amber for childcare serv

ices in the past and the rates they would charge Amber in the 

future. Although it is possible that Fox’s testimony could have 

been relevant to a properly pled claim, the “[d]aycare receipts” 

and Stankoski’s testimony could only have been relevant to the 

issue of childcare expenses. As such, Anthony had notice that 

childcare expenses, an issue not specifically pled, had entered 

the case.

Further, § 6-1115(b) provides in part:

If evidence is objected to at the trial on the ground that 

it is not within the issues made by the pleadings, the 

court may allow the pleadings to be amended and shall 

do so freely when the presentation of the merits of the 

action will be subserved thereby and the objecting party 

fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s 

action or defense upon the merits.

While Anthony did object at trial on the ground that childcare expenses were not an issue pled in Amber’s counterclaim, a trial court may nevertheless allow the pleadings to be 
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amended “and shall do so freely” when the merits of the action 

will be furthered and the admission of such evidence will not 

prejudice the objecting party. See § 6-1115(b). Anthony cannot demonstrate prejudice, since he confirmed his attorney’s 

statements that childcare was something the attorney and he 

had talked about and that Anthony was willing to pay it if the 

court ordered it. Additionally, when Amber’s counsel asked 

Anthony whether he “underst[oo]d that now that child support is decreasing, [he would] need to contribute to the daycare costs for the minor children,” Anthony responded, “Yes, 

ma’am, I don’t have a problem with that.” Also, when exhibit 

9, which contained Stankoski’s and Fox’s childcare charges, 

was offered, Anthony’s attorney specifically stated there was 

no objection to its receipt by the court.

In summary, we agree with Amber that there was sufficient 

notice to Anthony regarding the issue of childcare and that 

based upon the record as described above, Anthony impliedly 

consented to litigating the issue. That leaves the question of 

whether the district court abused its discretion by not allowing 

Amber to amend her pleading to conform to the evidence.

3. Request to Amend Pleading 

to Conform to Evidence

This case was tried on February 4, 2022. Amber filed her 

motion to amend the pleadings on February 11, but did so 

without scheduling it for hearing. The district court entered 

its modification order on February 25. Amber claims the 

court should have scheduled a hearing on her motion and that 

the court’s issuance of “a final order before a hearing on the 

motion could occur was an abuse of discretion.” Brief for 

appellant at 13.

On the other hand, Anthony claims the district court did 

not have to consider Amber’s motion to amend the pleadings, because she failed to comply with the local district court 

rule that requires any motion to be accompanied by a notice 

of the date and time of the hearing and that states the court 
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“‘may decline to hear any motion which is not accompanied 

by such notice of hearing and proof of service.’” Brief for 

appellee at 23 (emphasis omitted) (quoting Rules of Dist. Ct. 

of Eighth Jud. Dist. 8-3).

[8,9] Although Anthony raises a valid point, we are also 

mindful that “[e]ven when a party does not move to amend 

pleadings, a court may constructively amend pleadings on 

unpleaded issues in order to render a decision consistent with 

the trial.” Simons v. Simons, 312 Neb. 136, 160, 978 N.W.2d 

121, 143 (2022). Therefore, regardless of whether Amber followed proper procedures for placing the issue of amendment 

before the court, we can consider whether the district court 

abused its discretion by failing to constructively amend the 

pleadings in order to render a decision consistent with the 

trial and evidence related to the request to modify childcare 

expenses. See Simons v. Simons, supra (permission to amend 

pleading is addressed to discretion of trial court, and appellate court will not disturb trial court’s decision absent abuse 

of discretion).

In this case, the issue of childcare expenses was fully 

litigated. Amber provided testimony and submitted evidence 

to the district court regarding her past and future childcare 

expenses. Anthony thoroughly cross-examined Amber about 

her work schedule and resulting childcare needs, as well as 

the cost of childcare services for each of the children. Anthony 

stated there was no objection to the receipt of exhibit 9, 

which contained Stankoski’s and Fox’s childcare charges for 

2021 and going forward. Additionally, the district court questioned Amber about whether she actually paid the amounts 

for childcare reflected in the exhibits. The following colloquy 

took place:

THE COURT: I draw a distinction between saying I’m 

paying [Fox] $240 a month and actually paying it. That’s 

what I was wondering about.

[Amber’s counsel:] Are you actually paying that daycare cost, [Amber]?
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[Amber:] Yes, I do.

[Amber’s counsel:] And how did you pay that? Did you 

write checks . . . ?

[Amber:] Paid him in check.

Exhibit 9 was offered and received at that time, with Anthony’s 

counsel specifically indicating “[n]o objection to that.” The 

court then inquired:

THE COURT: So have you paid [Fox] $240 for 12 

months in 2021?

[Amber:] I did.

THE COURT: And then have you paid him $240 per 

month for . . . this month?

[Amber:] Yes, for —

THE COURT: For January, excuse me?

[Amber:] For January and February, yes.

THE COURT: Okay.

Because Anthony had notice that Amber intended to litigate 

the childcare issue at trial and had the opportunity to thoroughly examine Amber on the issue, the court should have 

constructively amended the pleadings in order to render a decision consistent with the evidence received at trial. We therefore find that the court abused its discretion when it declined 

to consider Amber’s request for an allocation of childcare 

expenses between the parties based solely on the reason that 

the issue was not properly pled. However, before directing a 

remand on the apportionment of childcare expenses, we must 

also consider whether the district court abused its discretion 

in concluding there was no material change in circumstances 

related to those childcare expenses.

4. Material Change in 

Circumstances

In its February 25, 2022, modification order, the district 

court set forth the issues identified at the pretrial conference, which included, “Apportionment of costs associated with 
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parenting time.” Additionally, the court set forth the issues 

identified at the time of trial, which included, “Initiation of 

childcare expense apportionment and if the court modifies 

child support retroactively to the time of filing then the court 

should enter a retroactive childcare expense order requiring 

Anthony to pay a portion of those costs incurred by Amber 

for that same retroactive period of time.” Then, at the onset 

of its analysis, the district court stated, “Based upon the 

stipulations made and the evidence adduced the court finds a 

material change in circumstances and will address the parties’ 

claims for relief.” However, later in the order, when addressing the childcare issue, the order states, as set forth in more 

detail previously, that “[t]here was no evidence of any material change regarding childcare expense since the Decree was 

entered; only the tit for tat.” It concluded that since Anthony’s 

income was less presently than at the time of the decree, it 

could not be a material change warranting an award of childcare expenses. Also, Anthony’s move to Pennsylvania did not 

constitute a material change warranting an “initial award of 

childcare expenses.” The court did not consider the change in 

Amber’s employment status since the entry of the decree. The 

court stated that childcare “was not an issue at the time the 

Decree was entered; it was not awarded nor was it even mentioned.” The court appeared troubled by the fact that “the parties bartered child support for day care at the time settlement 

was reached” and that “Amber’s attorney certainly should have 

known the difference between child support and childcare and 

using an incorrect income amount to determine child support 

was improper.” It concluded, “Bottom line, Amber now seeks 

to add something after the fact and also have it relate back 

in time without any showing of a material change. The court 

declines to do so.”

[10-13] A party seeking to modify a child support order 

must show a material change of circumstances which occurred 

subsequent to the entry of the original decree or a previous 
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modification which was not contemplated when the prior order 

was entered. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 

(2002). The paramount concern and question in determining child support, whether in the initial marital dissolution 

action or in proceedings for modification of decree, is the 

best interests of the child. Id. A change of circumstances not 

within the reasonable contemplation of the parties at the time 

of the decree may be the basis for modification of a decree. 

See Albers v. Albers, 213 Neb. 471, 329 N.W.2d 567 (1983). 

Although a parent may have contemplated incurring childcare 

expenses at some point in the future, many items within the 

realm of contemplation at the time of dissolution remain uncertain or speculative. See Robbins v. Robbins, 3 Neb. App. 953, 

536 N.W.2d 77 (1995).

[14] This court has held:

In determining whether to modify an award with respect 

to childcare expenses, this court has compared the need 

for work-related childcare at the time of the original 

decree with the need for such childcare at the time of the 

modification hearing. See, Mace v. Mace, 9 Neb. App. 

270, 610 N.W.2d 436 (2000) (original decree did not 

mention childcare expenses, and trial court did not err 

in modifying decree to require contribution for childcare 

expenses by noncustodial parent where custodial parent 

had held jobs requiring childcare after original decree, did 

not require childcare at time of modification hearing, but 

testified that she may secure job necessitating childcare in 

future); Robbins v. Robbins, 3 Neb. App. 953, 536 N.W.2d 

77 (1995) (mere fact that before original decree parties 

do not require childcare but anticipate future changes of 

employment and potential for childcare expenses to arise 

is not sufficient for holding that such expenses are reasonably contemplated).

Gartner v. Hume, 12 Neb. App. 741, 765, 686 N.W.2d 58, 

79 (2004).
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As in Mace v. Mace, 9 Neb. App. 270, 610 N.W.2d 436 

(2000), the parties’ July 2020 decree makes no mention of 

childcare expenses. The evidence at the modification trial 

included Amber’s testimony that in 2020, she worked “one or 

two days [a] week . . . from 7 to 3” and, outside of those hours, 

she stayed with the children. However, at the time of trial, her 

work hours had increased to “40 hours a week.” She testified 

that she arrives at work “[b]etween 8 and 8:30” and that while 

she “tr[ies] to get back by 5 o’clock,” her return from work 

“[d]epends on the day.”

Amber testified that Riley is in Fox’s care from “8:30, 

until [Riley] goes to school” from “12 o’clock” to “3:30,” 

and then “until anywhere between 5 and 6.” She also stated 

that Callie is in daycare with Stankoski from “8, 8:30 to 5.” 

Amber stated that on days where she is unable to leave work 

in time to pick up Callie from daycare at 5 p.m., Fox watches 

Callie until Amber is able to leave work. In addition to her 

testimony on the matter, Amber submitted “[d]aycare receipts” 

into evidence, which the district court received without objection from Anthony. The “[d]aycare receipts” included a statement signed by Fox stating that he charged Amber “$2880 for 

the year for daycare for Riley and Callie.” The exhibits also 

included emails from Stankoski wherein she stated that Amber 

paid $5,926 in childcare expenses in 2021 and that she charges 

$25 per day per child in addition to a weekly $10 charge for 

each child. Anthony presented no evidence contesting Amber’s 

claim for childcare expenses, and in fact, Anthony testified 

during cross-examination that he did not “have a problem” 

with contributing to childcare expenses.

Given the uncontested evidence demonstrating that Amber’s 

work hours increased substantially since the time of the 

decree, thus impacting her childcare expenses, the district 

court abused its discretion when it declined to find the evidence supported a material change in circumstances related to 

childcare expenses.
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VI. CONCLUSION

For the foregoing reasons, we reverse the district court’s 

decision declining to address childcare expenses and remand 

the matter with directions to apportion childcare expenses from 

the time of trial forward; any decision regarding a retroactive 

award is at the trial court’s discretion based on the evidence 

adduced at trial.

Reversed and remanded with directions.