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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL 

(Memorandum Web Opinion)

CERVANTES V. DARNELL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

RHETT CERVANTES, APPELLANT AND CROSS-APPELLEE,

V.

KASSANDRA DARNELL, APPELLEE AND CROSS-APPELLANT.

Filed June 20, 2015. No. A-16-876.

Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Affirmed.

Bergan E. Schumacher, of Bruner Frank, L.L.C., for appellant.

Michael J. Synek for appellee.

INBODY, RIEDMANN, and ARTERBURN, Judges.

ARTERBURN, Judge.

I. INTRODUCTION

Rhett Cervantes appeals and Kassandra Darnell cross-appeals from an order entered by the 

district court for Buffalo County modifying an order of paternity and support entered on September

5, 2014. On appeal, Rhett argues the district court erred in failing to reopen evidence after the 

conclusion of trial and determining there had not been a material change in circumstance since 

entry of the prior order. On cross-appeal, Kassandra argues the district court erred in excluding 

evidence offered by Kassandra at trial, failing to apply the child support order retroactively to the 

first day of the month following the filing date of the application for modification, failing to order 

Rhett to pay her attorney fees, and allowing Rhett to proceed on appeal in forma pauperis. For the 

reasons set forth below, we cannot affirm all actions taken by the district court after the notice of 

appeal. We affirm the orders of the district court entered on August 11, 2016, and September 9, 

2016, regarding custody, support, attorney fees, and exclusion of evidence. We also affirm the 
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district court’s September 14, 2016, and November 17, 2016 orders granting in forma pauperis 

status to appellant. We decline to review any other orders entered on September 14, 2016, or later 

for reasons set out hereafter.

II. BACKGROUND

The district court first entered an order in 2008 establishing paternity and child support for 

the parties’ two children, Izek, born in 2007, and Cody, born in 2008. The children had lived with 

Kassandra from birth until 2014. On September 5, 2014, the district court modified the paternity 

and support order pursuant to a joint stipulation of the parties. The September 2014 order awarded 

the parties joint legal and physical custody of the children with specific parenting time allotted to 

the parties. Rhett received primary placement of the children during the school year and Kassandra 

received parenting time one night per week and every other weekend. Kassandra received primary 

placement of the children during summer vacation. Kassandra was obligated under the order to 

pay $50 per month in child support.

Rhett filed a complaint to modify the September 2014 order on October 27, 2015. Rhett 

alleged that there had been a material change in circumstance in that Kassandra had “placed the 

children in harm by exposing them to an unsafe environment.” Rhett requested sole legal and 

physical custody of the children with a modification of parenting time granted to Kassandra. Rhett 

also requested a recalculation of the child support award. Kassandra filed an answer and 

counterclaim for modification on March 17, 2016. In her counterclaim Kassandra alleges that the 

parties have not followed the September 2014 parenting plan, that Rhett interfered with her 

parenting time, and that the communication between the parties had broken down. Kassandra 

requested that the district court either award her sole custody of the children or maintain the 

September 2014 order with the revised provision that she be awarded primary placement of the 

children. Kassandra also requested recalculation of the child support award. The parties proceeded 

to trial on April 19, May 4, and July 5, 2016.

Rhett and Kassandra were never married. Rhett has 3 other children. He does not have 

custody of these 3 children, but does exercise parenting time and provides support. Kassandra has 

one other daughter who resides with her. Currently, both parties reside in Kearney, Nebraska.

At the time of trial, Rhett was 29 years old and employed at Baldwin Filters. Since the 

September 2014 order, Rhett has been, by all accounts, a supportive father. Rhett is very involved 

with the children’s academics. Multiple school officials testified during Rhett’s case. Darleen 

Farwell, the elementary school’s secretary, testified that Rhett checks in with the school multiple 

times per week regarding how the children behaved that day. Kara Longshore, Izek’s teacher, 

testified that Rhett speaks with her once or twice per week regarding Izek’s schoolwork and 

behavior. Mark Stute, the principal at the elementary school, testified he saw Rhett at the school 

multiple times per week. Although the children were rarely assigned work to do at home, Ms. 

Longshore testified that Rhett is very involved in Izek’s reading program, as well as his math and 

language arts program. Ms. Longshore testified that Rhett had attended every parent-teacher 

conference at the school.

In addition to the children’s academics, Rhett is very involved with their religious 

upbringing. Roger Anderson, a licensed pastor, testified that Rhett and his children are in church 
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every Sunday. Anderson testified that Rhett is training to become a licensed pastor as well. He 

testified that Rhett works with a support group for previously incarcerated individuals, a young 

persons’ Bible study group, and the church’s youth basketball program. Stan Murdoch, the senior 

pastor at Rhett’s church, testified that he meets with Rhett once per week for training to become a 

licensed pastor. Murdoch testified that all the interactions he has seen between Rhett and his 

children have been positive.

By almost all accounts, Rhett has implemented significant positive changes in his life as to 

sobriety, living a productive and law-abiding life, and becoming an active parent in his children’s 

lives. Rhett testified that he initiated this modification action because he believed Kassandra was 

not providing a safe environment for their children. Rhett testified to a number of concerns he had, 

including Kassandra’s lack of involvement with the children’s education, her inappropriate 

behavior in front of the children, guns and knives left within the reach of the children, the children 

returning from her parenting time with injuries, losing Cody’s EpiPen, and Kassandra allowing 

drug use around the children during her parenting time.

Rhett testified that after the children come home from weekend parenting time with 

Kassandra, they are typically hungry, tired, and less focused. He testified that they do not listen as 

well as before her parenting time. He additionally testified that they have come back from 

Kassandra’s parenting time without completing their homework. Rhett testified that the living 

situation at Kassandra’s home is chaotic. Rhett testified that he believed that a friend had been 

staying at Kassandra’s home for an extended period of time, in addition to the other residents.

Rhett testified about numerous incidents that he felt were inappropriate behaviors in front 

of their children. Rhett testified that he used to be friends with some of the people that Kassandra 

associates with regularly. He testified that he believes drug use is prevalent at Kassandra’s home 

and that the children have returned from Kassandra’s parenting time with their clothes smelling of 

marijuana. Rhett testified that he personally observed marijuana being smoked in front of the 

children at a barbeque.

In addition to the drug use, Rhett testified that Kassandra has acted inappropriately in the 

presence of the children during arguments between them. Rhett testified that law enforcement had 

to be called on one occasion because Kassandra was attempting to take the children from his home 

when it was not her parenting time. Both parties testified that they can no longer communicate 

effectively and that Rhett is no longer welcome at Kassandra’s residence.

Rhett testified that he had observed several guns around Kassandra’s residence in February 

2015. Rhett testified that he observed 2 handguns and a rifle that were outside of a gun safe. He 

testified that this concerned him greatly because his children enjoy playing cops and robbers and 

could easily reach the guns. Rhett testified that he had also observed knives at Kassandra’s 

residence. He testified he observed buck knives and hunting knives laying on the coffee table in 

the residence.

Rhett testified that he was concerned with the children’s safety because they would return 

from Kassandra’s residence with bruises and injuries, but conceded that he never took the children 

to the doctor for these injuries. Rhett also testified that Cody lost his EpiPen during Kassandra’s 

parenting time. Rhett testified that Cody losing his EpiPen is very concerning for him because 
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Cody could potentially go into anaphylactic shock and die before an ambulance could arrive if he 

ingested something containing an allergen.

At trial, Kassandra called two friends and her father’s longtime girlfriend to testify on her 

behalf. Jessica Rouse, Karen Keith, and Sara Hansen all testified that they had observed Kassandra 

with her children on multiple occasions and that Kassandra was a good and loving mother. All 3 

witnesses had been to Kassandra’s residence and testified that it was a clean and safe environment. 

They additionally testified that the children were always dressed in clean clothes and that 

Kassandra regularly cooked for the children.

At the time of trial, Kassandra was 26 years old. Kassandra graduated high school in 2007. 

She received her cosmetology license in 2010 and her certified nursing assistant’s license in 2015. 

At the time of trial, she worked at Daylight Donuts in Kearney.

Kassandra lives with her significant other, Trenton Devitt, in a three-bedroom residence. 

Kassandra testified that when Izek and Cody are at Kassandra’s residence, they sleep in the same 

room as Devitt’s son, Carson. Kassandra’s daughter and Devitt’s daughter sleep in the second 

bedroom, and Kassandra and Devitt occupy the third bedroom.

During Kassandra’s testimony, she denied nearly all of Rhett’s claims that she does not 

provide a safe environment for their children. Kassandra denied that she was not actively involved 

in her children’s education. Kassandra admitted that she had not been to a parent-teacher 

conference in the last year, but testified it was due to her work schedule and inability to effectively 

communicate with the children’s school. Kassandra testified that there was an incident at the 

children’s school when she tried to remove them from school early to take a trip to visit her mother. 

Kassandra testified the school officials would not release the children without Rhett’s consent. She 

testified that this incident explained the acrimony between her and the school and why they rarely 

communicate with her. The school officials testified that much of the school communication is 

published online. The remaining school information and communications are generally sent 

through the student’s journal, the school newsletter, or automated phone system.

Kassandra testified that she was involved in and agreed with the decision to have the 

children transfer to another school. She also testified that she did not oppose the children attending 

summer school, but that Rhett did not contact her in advance about Rhett’s decisions. Kassandra 

testified that she learned of Rhett’s wish to enroll the children in summer school through his

attorney. Kassandra did not object to summer school so long as it did not interfere with her 

parenting time in the summer. She additionally testified that no one from the school had ever 

contacted her with any concerns about the children’s behavior.

Kassandra testified that she supports the children’s participation in church and church 

activities. Kassandra was involved with the children’s medical decisions until Rhett unilaterally 

changed the children’s primary care physician. Kassandra testified that she was the person who 

took the children to their allergist. Kassandra testified that Cody only had a slight peanut allergy 

and that he could eat peanuts and be fine. However, she does not allow Cody to eat peanuts during 

her parenting time. Kassandra testified that Cody receives an injection to help with his allergies 

and that he does carry an EpiPen. Regarding the instance where the EpiPen was allegedly lost at 

her home, Kassandra testified that she has searched the residence multiple times. She has never 

found the EpiPen and questions that it was misplaced there.
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Regarding the alleged injuries the children have sustained while in her care, Kassandra 

testified that none of the injuries required medical attention. Kassandra testified that her boys are 

active children and will have a minor scrape or bruise occasionally. However, she was unaware of 

any of Rhett’s complained of injuries.

Kassandra testified that she and Rhett had co-parented without incident until October 2015. 

She testified that after that time, Rhett stopped communicating with her and started involving 

attorneys. Kassandra stated that she felt betrayed by this behavior. Kassandra admitted to yelling 

at Rhett during the incident when Rhett called the police, but testified that she was angry because 

he was accusing her of drug use and not permitting her to visit her children. Kassandra denied 

Rhett’s claims that she takes prescribed medications for mental health issues. She testified that she 

has never been diagnosed nor prescribed medication for any condition, mental health or otherwise. 

Kassandra denied any other argument between her and Rhett in front of the children.

Kassandra testified that she and her boyfriend own guns. She testified that as soon as they 

are done hunting or shooting, the guns are cleaned and locked away. Kassandra testified that the 

guns are never laying around the house for long periods of time and that there is always an adult 

present when guns are out. She testified that they own a gun safe, which is located in the basement. 

Kassandra testified that the children have been shooting with her and Devitt, but it was closely 

supervised. Kassandra testified that she does not own any hunting knife and does not believe Devitt 

owns any type of hunting knife. She testified that she only owns steak knives, and that those are 

kept in a cabinet out of the reach of the children.

Kassandra testified that she does not allow drug use at her home. Kassandra was unaware 

of any occasion or barbeque where someone would have been smoking marijuana. She testified 

that she has never smelled the odor of marijuana on her children or their clothing.

Before the conclusion of trial, the district court held in camera interviews with the children, 

with only the court reporter and attorneys present. While the district court stated on the record that 

the children’s interviews provided little helpful information, the court did note in its findings that 

the boys stated they had no unsupervised access to firearms, that they were not fearful of living at 

their mother’s home, and in fact, enjoyed living there.

After the conclusion of trial, but before the district court entered its order, Rhett filed a 

motion to reopen evidence. Rhett alleged new evidence was discovered after the closing of trial 

that would affect the district court’s determination. The district court held a hearing on the matter 

and denied Rhett’s motion. The district court entered its order on the complaint for modification 

on August 11, 2016. The court found no material change in circumstance and did not modify the 

September 2014 order. Both parties filed motions for new trial or to alter or amend the order. On 

September 9, 2016, the district court overruled Rhett’s motion in its entirety and altered its August

11, 2016, order and ordered Rhett to pay Kassandra $60 per month. The district court denied 

Kassandra’s request for attorney fees in that order.

Rhett filed his notice of appeal on September 14, 2016. Rhett filed an application to proceed 

in forma pauperis with his notice of appeal. On the same day, September 14, 2016, the district 

court granted Rhett’s application to proceed in forma pauperis on appeal. Kassandra filed an 

objection to Rhett’s motion to proceed in forma pauperis on October 14, 2016. Buffalo County, 
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Nebraska filed an objection to Rhett’s motion to proceed in forma pauperis on appeal on November

15, 2016. The district court overruled both motions on November 17, 2016. Buffalo County did 

not appeal the district court’s ruling.

Meanwhile, the parties filed a stipulation regarding the child support order on November

4, 2016. The parties requested the district court vacate its child support orders dated September 9, 

2016, and September 14, 2016. We note that the September 14, 2016 child support order is not in 

the record before us. A review of the record reveals that on September 13, 2016, Kassandra filed 

a motion for order nunc pro tunc alleging that the district court in its September 9, 2016 order 

inadvertently ordered child support based on only one child being supported instead of two and 

requested that child support be adjusted to $102 per month for the children and then left at the $60 

per month for one child. The September 9 order set child support for the children at $60 per month 

even though the attached child support calculation indicated that child support should be $102 per 

month for 2 children and $60 per month for 1 child. While it is likely that the September 14, 2016 

order corrects this oversight and conforms to the motion, we do not know specifically what that 

order states. In any event, the parties jointly requested an order requiring Rhett pay Kassandra 

$114 per month in child support in the November 4 stipulation. However, they resubmitted for 

decision the issue of retroactivity. On November 16, 2016, the district court vacated its child 

support orders dated September 9, 2016, and September 14, 2016, and ordered Rhett to pay $114 

per month, commencing September 1, 2016.

III. ASSIGNMENTS OF ERROR

Restated and consolidated, Rhett argues on appeal that the district court erred in (1) failing 

to grant his motion to reopen evidence; and (2) determining that the modification of the parties’

custody arrangement was not warranted. Restated, reordered, and consolidated, Kassandra argues 

on appeal that the district court erred in (1) excluding evidence offered by Kassandra at trial; (2)

failing to apply the child support order retroactively to the first day of the month following the 

filing date of the application for modification; (3) failing to order Rhett to pay her attorney fees; 

and (4) allowing Rhett to proceed on appeal in forma pauperis.

IV. STANDARD OF REVIEW

Child custody determinations are matters initially entrusted to the discretion of the trial 

court, and although reviewed de novo on the record, the trial court’s determination will normally 

be affirmed absent an abuse of discretion. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are 

untenable or unreasonable or if its action is clearly against justice or conscience, reason, and 

evidence. Id.

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 over another. Id.
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V. ANALYSIS

1. RHETT’S APPEAL

(a) Motion to Reopen Evidence

Rhett argues the district court erred in denying his motion to reopen evidence after the close 

of trial.

The reopening of a case to receive additional evidence is a matter within the discretion of 

the district court and will not be disturbed on appeal in the absence of an abuse of that discretion. 

Thompson v. Thompson, 18 Neb. App. 363, 782 N.W.2d 607 (2010). Among factors traditionally 

considered in determining whether to allow a party to reopen a case to introduce additional 

evidence are (1) the reason for the failure to introduce the evidence, i.e., counsel’s inadvertence, a 

party’s calculated risk or tactic, or the court’s mistake; (2) the admissibility and materiality of the 

new evidence to the proponent’s case; (3) the diligence exercised by the requesting party in 

producing the evidence before his or her case closed; (4) the time or stage of the proceedings at 

which the motion is made; and (5) whether the new evidence would unfairly surprise or unfairly 

prejudice the opponent. Myhra v. Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (2008).

Rhett argues that the new material evidence would have borne significant weight on the 

district court’s decision on his complaint to modify. Rhett also argues that he had no way of 

discovering the evidence because the incident occurred after the close of trial. The district court 

held a hearing on the matter and denied Rhett’s motion. The factual record on Rhett’s motion to 

reopen is very limited. The district court determined that Rhett did not provide sufficient evidence 

of the incident and if the court were to allow reopening of the evidence, it may have to reopen 

discovery. The district court determined that the best use of Rhett’s new evidence would be in 

support of a new complaint to modify.

We agree with the district court. Utilizing the test prescribed by us in Myhra, supra, it is 

clear that the event triggering the motion occurred after the trial was over, therefore, it could not 

have been produced during the trial. While the new evidence may be material, its admissibility is 

unknown. The only information provided to the district court were somewhat generalized 

statements of counsel. The witness(es) who would testify about the event were not identified, nor 

was any other significant foundation laid for the purported testimony. No affidavits in support of 

the motion were offered, nor was there even any detailed offer of proof. The motion was made 

after the case was submitted for decision. As the district court noted, further discovery may be 

necessary to avoid unfair surprise or prejudice to Kassandra. Therefore, we cannot say that the 

district court abused its discretion in failing to reopen the evidence. As noted by the district court, 

if the new evidence is truly material, Rhett could file a new complaint to modify upon resolution 

of this action. In the interim, given Rhett’s decision to appeal, he could seek temporary orders from 

the district court if he believed immediate action was necessary. We find that the district court did 

not abuse its discretion in denying Rhett’s motion to reopen evidence.

(b) Failure to Modify Custody Arrangement

Rhett next argues the district court erred in failing to find that he proved there was a 

material change in circumstance that warranted a modification of the child custody arrangement.
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A child custody modification case requires the party seeking modification to: (1) show that 

a material change in circumstances has occurred after the entry of the previous custody order and 

affecting the best interests of the child; and (2) prove that changing the child’s custody is in the 

child’s best interests. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). A material 

change in circumstances means the occurrence of something which, had it been known at the time 

of the initial decree, would have persuaded the court to decree differently. State on behalf of Jakai 

C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015). The party seeking modification of child 

custody bears the burden of showing as an initial matter that there has been a change in 

circumstances. Id.

The child’s best interests requires a parenting arrangement and plan which provides for a 

child’s safety, emotional growth, health, stability, physical care, and regular and continuous school 

attendance and progress. Neb. Rev. Stat. § 43-2923(1) (Reissue 2016). Moreover, § 43-2923 sets 

forth a non-exhaustive list of factors to consider in determining the child’s best interests in regard 

to custody. Such factors include: the child’s relationship with each parent, the child’s desires, the 

child’s general health and well-being, and credible evidence of abuse inflicted on the child by any 

family or household member. In addition to the “best interests” factors provided in § 43-2923, a 

court making a child custody determination may consider: the moral fitness of the child’s parents; 

respective environments offered by each parent; the emotional relationship between the child and 

parents; the age, sex, and health of the child and parents; the effect on the child as a result of 

continuing or disrupting an existing relationship; the attitude and stability of each parent’s 

character; and the parental capacity to provide physical care and satisfy the educational needs of 

the child. Schrag, supra.

The district court found that Rhett failed to prove the existence of a material change in 

circumstance since the stipulated September 2014 order. We find no error in the court’s finding. 

The district court repeatedly noted that while Rhett may have improved his parenting skills since 

the September 2014 order that improvement alone did not equate to a material change in 

circumstance. The district court noted that even though both parties testified that they no longer 

communicate effectively, they had communicated productively in the past. The court determined 

that the parties have the ability to communicate, and restore a productive co-parenting relationship. 

Therefore, the court found that no change was necessary as to legal custody.

Regarding physical custody, there is no question that if true, many of the concerns raised 

by Rhett could lead a court to conclude that a material change in circumstance exists. Rhett testified 

to observing one occasion of adult marijuana use in Kassandra’s driveway. He also testified about 

smelling the odor of marijuana on the children’s clothes. He testified about seeing guns and knives 

in the residence. He and his witnesses also testified about minor injuries sustained by the children 

while in Kassandra’s care and her general lack of involvement in their education.

However, Kassandra’s testimony flatly denied that the children had been exposed to drug 

use or that they had access to guns or knives. Her testimony was that the guns were only out of the 

gun safe when an adult was present and in control of the weapon. The children’s interviews 

corroborated her testimony. They reported no exposure to drug use. They reported no exposure to 

loaded guns unless they were closely supervised. Kassandra did admit that she was not closely 
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involved with the school, but at least some of her failures were attributable to past work schedules. 

She was very engaged in their sports and activities.

We also take note, as did the district court, that for the bulk of the trial, the primary changes 

contained in Rhett’s parenting plan consisted of (1) giving him sole legal custody and (2) changing 

the summer parenting time from Kassandra having the children all summer, with Rhett having an 

evening and alternating weekends, to a two week off and on schedule. Only after the district court 

pointed out the seeming disconnect between Rhett’s allegations of unsafe living conditions, 

vis-a-vis the requested relief, did Rhett argue for vastly restricted parenting time for Kassandra.

It appears to us that much of the decision rendered by the district court comes down to an 

assessment of credibility. Where the credible evidence is in conflict on a material issue of fact, the 

appellate court considers and may give weight to the circumstances that the trial judge heard and 

observed the witnesses and accepted one version of the facts rather than another. Coffey v. Coffey, 

11 Neb. App. 788, 661 N.W.2d 327 (2003). Therefore, upon our de novo review we find that the 

district court did not err in finding that there had been no material change in circumstance 

necessitating a modification of the previous child custody order.

2. KASSANDRA’S APPEAL

(a) Exclusion of Evidence

Kassandra argues the district court erred by excluding evidence she attempted to offer at 

trial. This evidence related to Rhett’s criminal history prior to the stipulated September 2014 order. 

She argues this criminal history was relevant to the issues of custody and parenting time.

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. Kramer v. Kramer, 

15 Neb. App. 518, 731 N.W.2d 615 (2007). In determining whether the custody of a minor child 

should be changed, the evidence of the custodial parent’s behavior during the year or so before the 

hearing on the complaint to modify is of more significance than the behavior prior to that time. 

Schrag, supra.

The parties stipulated to the custody and parenting time schedule agreement in the 

September 2014 order. Kassandra was aware of Rhett’s previous encounters with law enforcement 

and did not object to the custody arrangement approved by the district court in 2014. Attempting 

to introduce evidence of behavior prior to the previous order was not relevant to whether there had 

been a material change in circumstance since the entry of that order. We find the district court did 

not err in excluding Kassandra’s evidence of Rhett’s prior criminal history.

(b) Retroactivity of Child Support

Kassandra argues the district court erred because the court should have terminated 

Kassandra’s prior child support obligation effective October 31, 2015, and ordered Rhett to pay 

retroactive child support effective November 1, 2015.

Preliminarily, we must address which district court order is applicable on appeal. Neb. Rev. 

Stat. § 42-351(2) (Reissue 2016) provides that during the pendency of an appeal, the district court 

retains jurisdiction to “provide for such orders regarding custody, visitation, or support or other 
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appropriate orders in aid of the appeal process.” This section allows a district court to, inter alia, 

enter support and visitation orders pending appeal, but it does not grant authority to hear and 

determine anew the very issues then pending on appeal and to enter permanent orders addressing 

these issues during the appeal process. Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165 

(1999). Orders entered as a result of a hearing expressly held on new motion to modify the decree 

which were filed while the initial appeal was pending are not appropriate. Id. This is especially 

true when the district court does not state that it is entering its order pursuant to Neb. Rev. Stat. 

§ 42-351(2) or that the order is a temporary order. Id.

Rhett perfected his appeal on September 14, 2016. The parties filed a stipulation regarding 

the child support order on November 4, 2016. The parties requested the district court to vacate its 

child support orders dated September 9, 2016, and September 14, 2016. The parties requested an 

order requiring Rhett pay Kassandra $114 per month in child support. On November 16, 2016, the 

district court vacated its child support orders dated September 9, 2016, and September 14, 2016, 

and ordered Rhett to pay $114 per month, commencing September 1, 2016, the same day it ordered 

that Rhett’s child support should begin in the September 9, 2016 order. The district court entered 

an order on November 18, 2016, clarifying that the child support order would not be retroactive.

The child support order entered on September 14, 2016, is not in the record before us on 

appeal. The district court did not have jurisdiction to enter any permanent order after the September

14, 2016 notice of appeal was filed. Therefore, the operative order on appeal is the order of 

September 9, 2016. The nunc pro tunc order dated September 14, 2016, may be valid if that order 

was file stamped prior to the notice of appeal. Alternatively, it may be valid pursuant to Neb. Rev. 

Stat. § 25-2001(3), which provides that clerical mistakes in an order arising from oversight may 

be corrected by an order nunc pro tunc at any time before the case is submitted for decision in the 

appellate court.

The November 16, 2016, and November 18, 2016 orders are void. The district court lost 

jurisdiction to enter permanent orders regarding child support once the appeal was perfected. Since 

child support, including the issue of retroactivity was litigated and addressed in the district court’s 

September 9, 2016 order, the permanent orders entered in November regarding child support were 

void and of no effect. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016); Nuttleman v. Julch, 

228 Neb. 750, 424 N.W.2d 333 (1988).

We note, however, that the September 9, 2016 order found in the record specifically reflects 

the court’s finding that Rhett’s child support obligation should not be retroactive, but should begin 

on the first day of the month following the court’s original order on the modification action, 

September 1, 2016. Therefore, we can review that order.

Whether a child support order should be retroactive is entrusted to the discretion of the trial 

court, and we will affirm its decision absent an abuse of discretion. Freeman v. Groskopf, 286 Neb. 

713, 838 N.W.2d 300 (2013). Absent equities to the contrary, child support modifications should 

generally apply retroactively to the first day of the month following the complaint’s filing. Id.

Additionally, in determining whether to apply a modification retroactively, the ability to pay is an 

important factor. Id.

In this case, the evidence surrounding Rhett’s financial status demonstrates that if 

retroactive child support was ordered by the court, a financial hardship would exist for him and 
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the children. We are mindful that although Rhett carries the burden to pay child support pursuant 

to the agreed upon calculation, Rhett had the children in his primary possession during the 

applicable period of retroactivity. The district court found it was in the children’s best interests if 

it did not order Rhett to pay retroactive child support. We find that the district court did not abuse 

its discretion in its decision.

(c) Attorney Fees

Kassandra argues the district court erred in not awarding her attorney fees. Kassandra 

argues that because Rhett brought an unsuccessful attempt to modify their child custody order, he 

should be responsible for her attorney fees.

The award of attorney fees depends on multiple factors that include the nature of the case, 

the services performed and results obtained, the earning capacity of the parties, the length of time 

required for preparation and presentation of the case, customary charges of the bar, and the general 

equities of the case. Burcham v. Burcham, Neb. App. 323, 886 N.W.2d 536, 546 (2016).

We find that the district court did not err in refusing to award Kassandra attorney fees. 

There were no novel issues of law and Kassandra filed a counterclaim to modify the September 

2014 order. Although unsuccessful, Rhett had justifiable concerns about the children’s safety and 

well-being while in Kassandra’s care. Therefore, we find that that the district court did not err in 

not awarding Deanna attorney fees.

(d) Appeal In Forma Pauperis

Kassandra argues that the district court erred in allowing Rhett to proceed on appeal in 

forma pauperis.

Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) provides, in pertinent part:

An application to proceed in forma pauperis shall be granted unless there is an objection 

that the party filing the application (a) has sufficient funds to pay costs, fees, or security or 

(b) is asserting legal positions which are frivolous or malicious. The objection to the 

application shall be made within thirty days after the filing of the application or at any time 

if the ground for the objection is that the initial application was fraudulent. Such objection 

may be made by the court on its own motion or on the motion of any interested person. . . .

Ordinarily, a trial court’s decision regarding a litigant’s right to proceed in forma pauperis will not 

be disturbed on appeal unless the decision amounts to an abuse of discretion. Fine v. Fine, 4 Neb. 

App. 101, 537 N.W.2d 642 (1995).

In this case, Rhett filed his application to proceed in forma pauperis on September 14, 

2016. Kassandra filed her objection on October 14, 2016. The district court held an evidentiary 

hearing on the objection on November 10, 2016. The district court overruled Kassandra’s objection 

to Rhett’s proceeding in forma pauperis on appeal on November 17, 2016. We have found no 

instance where an appellee cross-appealed the decision of the district court granting appellant’s 

motion to proceed in forma pauperis on appeal. However, the statute provides that “any interested 

person” may file an objection. Assuming, without deciding, that Kassandra qualifies as an 

“interested person,” we find that the district court did not abuse its discretion in allowing Rhett to 

proceed in forma pauperis on appeal.
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VI. CONCLUSION

We find that the district court did not err in denying Rhett’s motion to reopen evidence. 

We also find that the district court did not err in finding that there had not been a material change 

in circumstance since the previous order of modification. We further find the district court did not 

err in excluding evidence Kassandra offered at trial. Additionally, we find that the district court 

did not err in refusing to order Rhett pay retroactive child support and did not err in refusing to 

award Kassandra attorney fees. We find, however, that the district court orders entered on 

November 16, 2016, and November 18, 2016, regarding child support are void and of no effect. 

Finally, we find that the district court did not err in allowing Rhett to proceed in forma pauperis 

on appeal.

AFFIRMED.