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SMITH v. KING

Cite as 29 Neb. App. 152

Ashley R. Smith, appellee, v. 

Gerald E. King, Jr., appellant.

___ N.W.2d ___

Filed November 24, 2020. No. A-19-999.

1. Child Custody: Appeal and Error. An appellate court reviews child 

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

2. Judgments: Words and Phrases. 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.

3. Contracts: Compromise and Settlement. A settlement agreement is 

subject to the general principles of contract law.

4. ____: ____. To have a settlement agreement, there must be a definite 

offer and an unconditional acceptance.

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

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

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

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

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

such an abuse, the award will be affirmed.

7. Paternity: Child Custody: Visitation: Moot Question. Any issues 

regarding temporary custody and parenting time become moot upon 

entry of the decree of paternity establishing permanent custody and parenting time.

8. Contracts: Parties: Intent. To create a contract, there must be both an 

offer and an acceptance; there must also be a meeting of the minds or a 

binding mutual understanding between the parties to the contract.

9. Contracts: Parties. A binding mutual understanding or meeting of the 

minds sufficient to establish a contract requires no precise formality 

or express utterance from the parties about the details of the proposed 

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

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agreement; it may be implied from the parties’ conduct and the surrounding circumstances.

10. Contracts: Parties: Intent. The determination of the parties’ intent to 

make a contract is to be gathered from objective manifestations—the 

conduct of the parties, language used, or acts done by them, or other 

pertinent circumstances surrounding the transaction.

11. Contracts: Parties. A fundamental and indispensable basis of any 

enforceable agreement is that there be a meeting of the minds of the 

parties as to the essential terms and conditions of the proposed contract.

12. Compromise and Settlement. An alleged oral compromise and settlement agreement not made in open court is unenforceable where it is in 

violation of the statute of frauds or in violation of a court rule requiring 

all stipulations and agreements of counsel or parties to a suit to be in 

writing, signed by the parties or their attorneys.

13. ____. A settlement agreement made in open court on the record, agreed 

to by all of the parties to the litigation and approved by the court, 

is enforceable.

14. Attorney and Client: Compromise and Settlement. Although lawyers 

retain apparent authority to make procedural and tactical decisions 

through the existence of the attorney-client relationship, a lawyer cannot 

settle a client’s claim without express authority from the client.

15. ____: ____. Where there has been nothing beyond a mere employment 

or retainer of the lawyer to represent the client in a cause and the lawyer 

has acquired no other authority to enter into a settlement (such as acquiescence in open court), if the lawyer seeks to enter a settlement, the 

opposing party should ascertain whether the lawyer has received actual 

authority from the client to take such action.

16. Attorney and Client: Compromise and Settlement: Appeal and 

Error. Disputes over a lawyer’s authority to settle are factual issues to 

be resolved by the trial court; however, an appellate court will not set 

aside a trial court’s factual findings regarding settlement disputes unless 

such findings are clearly erroneous.

17. Trial: Evidence: Appeal and Error. 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.

18. Trial: Time. In a case tried to the court without a jury, a motion for 

specific findings of fact must be made before final submission of the 

case to the court.

19. Child Custody. When deciding custody issues, the court’s paramount 

concern is the child’s best interests.
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SMITH v. KING

Cite as 29 Neb. App. 152

20. Child Support: Rules of the Supreme Court. A trial court has the 

authority to order a parent to pay the categories of expenses specified in Neb. Rev. Stat. § 42-364.17 (Reissue 2016), in addition to the 

monthly child support obligation calculated under the guidelines.

Appeal from the District Court for Douglas County: Gary 

B. Randall, Judge. Affirmed as modified.

Sandra Stern for appellant.

Chris Pomerleau, of Nebraska Legal Group, for appellee.

Moore, Chief Judge, and Bishop and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

Gerald E. King, Jr., appeals from the decree of paternity 

entered by the Douglas County District Court which granted 

Ashley R. Smith primary physical custody of their two children, subject to Gerald’s parenting time of every other weekend 

and one evening on the “off” week. Gerald assigns numerous 

errors related to the temporary hearing and order, the amount 

of parenting time he received in the decree, and the award of 

attorney fees to Ashley. He also challenges the district court’s 

decision to not grant his in forma pauperis (IFP) request for 

transcription of court hearings or, alternatively, to not order 

Ashley to pay for the same so that he could adequately prepare 

for his motion for new trial. We affirm as modified.

II. BACKGROUND

Gerald and Ashley were in a relationship for a number of 

years, but never married. During the course of their relationship, they had two children: a son, Cipher King, born in 2005, 

and a daughter, Phoenix King, born in 2011. The parties ended 

their relationship in 2014 or 2015, and they proceeded for 

some time without court involvement regarding custody and 

child support. Ashley ultimately filed a complaint for establishment of paternity, custody, and support in 2017.
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Cite as 29 Neb. App. 152

1. Initial Pleadings and Temporary 

Hearing and Order

On June 8, 2017, Ashley filed a complaint for establishment 

of paternity, custody, and support. She alleged that Gerald was 

the father of Cipher and Phoenix. Ashley sought sole legal and 

physical custody of the children, and she asked that child support be ordered in accordance with the Nebraska Child Support 

Guidelines. She also asked that Gerald be required to pay her 

attorney fees.

After a September 1, 2017, hearing on temporary matters 

at which Gerald appeared pro se and Ashley appeared with 

counsel, the district court entered an order on September 7. 

The court determined that Gerald was the children’s father. 

Ashley was awarded temporary custody of the children; however, Gerald was awarded parenting time “every other weekend 

from [Friday] after school, or 3:00pm, whichever is earliest,” 

through Sunday at 7 p.m., and he was also awarded the “‘off’ 

Thursday evening from after school, or 3:00pm, whichever is 

earliest through 8:00pm.” Gerald was ordered to pay child support in the amount of $706 per month, beginning September 1. 

He was also ordered to pay 40 percent of any noncovered medical expenses after Ashley had paid the first $480 per calendar 

year on behalf of the child and 40 percent of any work- and 

education-related childcare expenses.

On March 8, 2018, Gerald, now with counsel, filed an 

answer and “cross-complaint” wherein he acknowledged his 

paternity and sought joint legal and physical custody of the 

children, with equal parenting time for the parties. He asked 

that child support be ordered in accordance with the Nebraska 

Child Support Guidelines. On March 30, Gerald filed a motion 

for temporary orders seeking equal parenting time pending 

trial. On June 6, he filed a motion asking the district court 

to set a trial date and to award him summer parenting time 

pending the trial. And on June 12, he filed a motion to amend 

the temporary child support order retroactive to September 

1, 2017. According to the “Judges Notes” appearing in our 
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transcript, the district court denied any further temporary hearings pending trial.

On August 2, 2018, Ashley filed a contempt action against 

Gerald for failure to follow the September 2017 temporary 

order regarding parenting time and child support. The resolution of this action does not appear in our record.

2. Trial Begins

Trial began on September 28, 2018, and continued on 

October 1. Both parties appeared with counsel. Several witnesses testified, and numerous exhibits were received into 

evidence.

According to Ashley’s testimony, she and Gerald were in 

a relationship on and off for 11 years. They stopped living 

together in October 2015, but Gerald believed it was 2014. 

Prior to when they stopped living together, Ashley was the 

primary caretaker for the children. She fed them, bathed them, 

helped them with their schoolwork, and provided the majority 

of their transportation. Ashley was also paying for all of the 

childcare costs and children’s activities. However, according to 

Gerald’s testimony, they shared parenting and household duties 

and he also paid for household expenses; he even stated that 

when Phoenix was born, he was the primary caretaker because 

he was not working at the time.

After the parties stopped living together, Ashley and the 

children moved in with her mother, where they have remained. 

Gerald stayed with a friend for a few months. Ashley stated 

Gerald would “just call” and ask to see the children, and 

“[i]t would just be kind of sporadic.” However, according to 

Gerald, he saw the children “daily” while staying with his 

friend, but he did not keep them overnight. After staying with 

his friend, Gerald lived in a few different places. For the first 

few months, Gerald had the children every weekend. Then the 

parties tried alternating parenting time on a daily basis, but 

that did not last very long. Then, beginning in February 2017, 

the parties alternated parenting time on a weekly basis. Ashley 

testified that she “never had a say in [their] arrangements” 
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Cite as 29 Neb. App. 152

during the alternating daily or weekly parenting time. Ashley 

filed the paternity action in June, and the temporary custody 

and parenting time schedule was put into place in September, 

wherein Ashley got primary physical custody and Gerald had 

parenting time every other weekend and every other Thursday. 

However, Gerald would occasionally keep the children beyond 

his parenting time without Ashley’s agreement; Ashley called 

the police two times and was able to get them. Gerald had also 

picked the children up from school on a day he did not have 

parenting time.

Exhibit 8 contains text messages between Gerald and Ashley. 

We include a sampling of those text messages here, including all typographical and grammatical errors. On September 

11, 2017 (year based on Ashley’s testimony), Gerald and 

Ashley texted:

[Ashley:] . . . [I]t is not your day. If I need to get the 

police involved I will

I will be picking cipher up when I leave here at 3.

[Gerald:] You can spend ya day all mad cuz I got him 

and flip but that’s on you me and cipher is gonna have a 

good time keep ya bad vibes to yaself

[Ashley:] It’s done.

You did this

[Gerald:] Call the cops now then save some time I welcome you doing that while I’m with him lol

Cops cops cops

You think you can scare me with cops lol lol lol

[Ashley:] I am not trying to scare anyone, but this is 

exactly why I went to court so when you do this BS I 

have a leg to stand on

I will be there to get cipher at 3

. . . .

[Gerald:] Bitch this is my son fuck whatever you on

If I was hurting him or mistreating him or had him in 

danger then cool but flipping the fuck out cuz I’m simple 

with im yea go fuck ya self

. . . .
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You are a female that younger than me you have no 

power or authority over me I am sorry we didn’t work 

but you don’t get to decide when I see my kids cuz 

we didn’t[.]

On September 12, Gerald texted, “I got one son and one 

daughter in this world that I helped create and bring into this 

world there’s no stranger thatbdont know me or my kids gonna 

dictate what I can and can’t do with them.” In October, the parties were arguing about parenting time and transportation and 

Gerald texted:

You ain’t sacrificing shit it should be week to week this 

bullshit you on where you think you have the only right 

to OUR kids and how to raise them I don’t give two shits 

about a lawyer Judge or court none of them was involved 

in us making these kids and you can have them pump ya 

head but the real is you on bullshit[.]

On October 11, the parties were again arguing over the parenting time schedule, and Ashley texted Gerald saying, “All of 

this is reported back to a judge.” Gerald replied:

Haha report I don’t give a fuck either

. . . .

Report fuck the judge

Report fuck ya lawyer

Report fuck them all

Report when my schedule change none of this every 

other week shit will apply

Report these are my kids and they have zero authority 

over me

Report how much of a bitch you are[.]

During his testimony, Gerald said he sent the text messages 

because he was upset about the situation and wanted to spend 

more time with his children.

Gerald agreed that he would follow court orders. However, 

he acknowledged that he had kept the children longer than 

his parenting time and that he had picked them up from school 

when it was not his day. Also, between September 1, 2017, 
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and June 2018, he paid a total of only around $1,050 in courtordered child support. He said, “I had a house, kids, rent and 

stuff that was due. So I financially could not . . . .” He stated 

he also paid some money directly to the court after June 2018. 

(According to a Department of Health and Human Services 

payment history report, between June 26 and September 14, 

Gerald had paid $1,200; he never once paid his full monthly 

obligation.) Gerald acknowledged that he had not paid for any 

childcare; he said he did not know that child support and 

childcare were different. Gerald admitted receiving receipts for 

Phoenix’s childcare costs, but he denied receiving receipts 

for Cipher’s childcare costs.

According to Ashley, Gerald had been physical with her 

on “multiple occasions.” Ashley said there had been “slaps to 

the face,” most recently 3 years ago, and “hair pulling,” most 

recently when she was 8 months pregnant with their daughter. 

According to Ashley, both children had witnessed incidents 

when Gerald was physical with her. Gerald had also called 

her names, like “bitch,” in front of the children. According 

to Gerald, there was “a lot of lies and embellishment” in 

Ashley’s testimony. He acknowledged that their relationship 

was not appropriate, and he confirmed that Ashley hit him 

multiple times.

Ashley said she witnessed an incident when Gerald was 

“aggressive” and grabbed Phoenix’s arm when she tried to go 

to Ashley. And Cipher was crying and upset when he called and 

told her that Gerald “struck him for letting the dog out.”

Ashley was also aware that Gerald smoked marijuana around 

the children; “this Sunday” Ashley picked Cipher up from 

Gerald’s house and “had to roll down the windows because 

[Cipher] reeked so heavily of marijuana.” Gerald testified that 

he was charged with possession of marijuana twice and confirmed he was convicted of possession of marijuana, but he 

did not specify whether it was once or twice. Ashley acknowledged that she had smoked marijuana in the past, the last time 

being 4 to 5 years ago, and that at that time, she had smoked 

it in front of the children. Ashley also acknowledged she was 
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convicted of “DUI” 5 years ago, but said the children were not 

in the car at the time. Gerald testified that he has seen Ashley 

drive with the children after she had been drinking.

Ashley’s mother, with whom Ashley and the children have 

lived for 4 or 5 years, testified that Ashley is an “amazing” parent and is “an absolutely wonderful role model.” The children 

are “extremely well-behaved.” As to Gerald’s temperament, 

Ashley’s mother said, “Numerous times I’ve heard him on the 

other end of a phone call conversation with Ashley knowing 

that the children were within earshot, and I could overhear such 

profanity and degrading language used to my daughter.”

Ashley testified that she was asking for sole legal and 

physical custody. Ashley preferred that Gerald not have parenting time on school nights because he did not have reliable 

transportation. She stated that when she was out of town for 

a week, their son was tardy three times. Additionally, it was 

important to Ashley that the children have consistency on 

school nights.

However, Gerald said that “[t]here’s no concern” with him 

being able to get the children to school on time. He claimed 

it was Ashley or her mother who took the children to school 

late and caused them to be tardy three times during the current 

school year. Gerald wanted to have parenting time on an alternating weekly basis, like he had prior to the September 2017 

temporary order. He thought it would be “fair” for both parents 

to have half of the time with the children because “there [were] 

no problems prior,” “no issues.” If the court was not inclined 

to give him equal parenting time, Gerald’s alternative proposal 

was for 6 out of every 14 nights—every other week from 

Friday at 8 a.m. to Wednesday at 8 a.m., and then overnight on 

the Tuesday of his “off week” (Tuesday at 8 a.m. to Wednesday 

at 8 p.m.). He also wanted parenting time on half of all school 

holidays and half of the summer.

Gerald testified that he told Cipher what happened at court 

at the temporary hearing “[b]ecause his mother lies to him”; 

“before anything ever started,” she told Cipher everything was 
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going to stay the same. Gerald showed Cipher the affidavits 

that Ashley and her mother presented to the court at the temporary hearing against Gerald. Text messages between Gerald and 

Ashley were received into evidence and reveal the following: 

Ashley texted Gerald, “Why would you bother cipher with our 

issues while he is at school, . . . [h]e is not your friend or your 

support - he is your child and he did not have to find out what 

is going on via text.” Gerald responded:

He wanted to know what happened so I told him I let 

him read what you and ya mom said about me on the 

affidavit and all he should know the truth not the sugar 

coated lies you and ya momma tell him

So when I’m. It around and he can’t come here for a 

week it because of you not me you did this all[.]

Ashley replied, “[M]y affidavit is true.”

Gerald told the children they would be testifying at trial. 

“What I told them is you guys need to tell the truth and this is 

your opportunity to express to the judge what you want. I don’t 

know what you want.” He said, “I did promise them that if I 

had more time with them then I can take more trips with them 

because they want to go places. And I express to them I don’t 

currently have the time to take them . . . .”

The district court recessed for lunch on October 1, 2018, but 

never came back on the record that day. However, as revealed 

through subsequent motions and hearings, it appears that the 

district court met with the parties’ counsel in chambers after 

the lunch recess on October 1. The “Judges Notes” for October 

2 appear in our transcript and state: “Matter came up for Trial, 

[named counsel] appeared as counsel of record. [Gerald’s 

counsel] to prepare a Decree.” The next action that appears in 

our record is a motion filed on October 5.

3. Motions and Hearing

On October 5, 2018, Ashley filed a motion asking the district court to reconsider and amend its findings from the trial 

held on September 28 and October 1, to enlarge the record 
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to allow rebuttal witnesses and closing statements, to clarify 

the decision of the court, and to order a new trial.

The district court and the parties’ counsel apparently met 

again in November 2018, but such proceedings do not appear 

in our record. However, the “Judges Notes” for November 16 

appear in our transcript and state: “Matter came up for Motion 

to Clarify. Trial continued to 1/23/19 at 10a.m.” On November 

28, Gerald filed a motion for entry of decree. He alleged that 

after trial was held on September 28 and October 1, his counsel was instructed to prepare a decree; his counsel forwarded 

a proposed decree and parenting plan to Ashley’s counsel on 

October 2; and Ashley filed a motion for clarification as to 

certain terms of the decree, which was heard before the court 

on November 16, and certain matters were clarified. Gerald 

alleged that the decree attached to his motion reflected the 

nature of the proceedings as well as the court’s findings and 

orders, with the exception that Gerald added a paragraph providing that both parties shall be awarded 7 days parenting time 

of their choosing each year, to accommodate for special events 

that each parent may want to spend with the children.

On November 29, 2018, Ashley again filed a motion asking 

the district court to reconsider and amend its findings from the 

trial held on September 28 and October 1, to enlarge the record 

to allow rebuttal witnesses and closing statements, to clarify 

the decision of the court, and to order a new trial. Gerald filed 

an objection to Ashley’s motion.

At a hearing on December 4, 2018, the parties appeared 

on the foregoing motions. At this hearing, the district court 

stated, “I know we had a hearing in my office on October — I 

don’t know if it was October 5th or after that . . . .” Ashley’s 

counsel then stated, “[W]e came here [in November,] and the 

Court made a decision that we would schedule a two-hour 

opportunity for us in January [2019] to finish the testimony, 

not only of my client, but also of [Gerald] and allow the parties 

to submit their closing arguments.” Ashley’s counsel further 

stated, “So regarding [Gerald’s] motion to enter the decree,” 
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Ashley would object because the case has not been closed. The 

court stated:

Well, let’s be clear. We had trial and you — the trial was 

not completed. We took a break. We had to get another 

date. I told both of you what I thought would be appropriate based on the evidence that I’ve heard. You both 

then said okay. We’ll try to put together a decree. That 

was not on the record. And since then we’ve had another 

hearing in which you’ve disagreed as to what the two 

of you thought you had agreed to which the Court was 

going [sic] propose. I think that this is — I don’t think 

either one of you is correct a hundred percent. And apparently you feel like [Gerald’s counsel] is continuing to add 

things that your client was not willing to agree to. I think 

we’ll just finish the trial in January.

Gerald’s counsel objected to “re-opening this matter.” The following colloquy then took place.

[Gerald’s counsel:] You’re right. We had a two-day 

trial. I had witnesses. [Ashley’s counsel] had witnesses. 

We had continued into the second day . . . . We had one 

more day slotted for that trial, and I had a couple witnesses and I was going to ask you to speak to the minor 

children. You told us at the beginning of the trial that you 

would if you deemed it to be necessary. So it wasn’t a 

hundred percent. It wasn’t a given. We proceeded through 

lunch. You called us back to your chambers and you said, 

Here’s what I am inclined to do.

THE COURT: I said basically here’s what I’m thinking 

based on what I heard.

[Gerald’s counsel:] Right. And based on that, I represented to the Court, we’re fine with that, Your Honor. 

We will not present anymore witnesses. We rested. There 

was no request by [Ashley’s counsel] to put on additional 

witnesses, to present a rebuttal, to present a closing 

argument. In fact, [Ashley’s counsel] asked for clarification on certain things that you ordered. You were very 

specific in your orders. . . . You advised me [to] prepare 
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the decree. You ordered six days out of . . . 14 to 

[Gerald], eight days out of 14 to [Ashley]. You ordered 

joint custody — joint physical custody, sole legal custody 

to [Ashley]. You said whatever the guidelines say the 

guidelines say with regard to child support. . . . [T]here 

was a specific question about attorney’s fees. You said 

yes, anything related to the contempt matter. There was 

a specific question . . . about how much [Gerald] should 

pay towards arrears, and you said $300 a month, which I 

interpreted to be total arrears for child care and child support, and we have a disagreement on what you intended. . 

. . I think my decree that’s submitted is 100 percent what 

you ordered, but for that paragraph. You said the parenting plan that the parties mediated. You said 50 percent of 

the summer. Those were all things that Your Honor stated 

in chambers. There wasn’t a court reporter. . . . The only 

arguable thing [we] didn’t do was closing, and [Ashley’s 

counsel] didn’t ask for it. And I highly doubt that his 

closing will change Your Honor’s opinion. . . .

. . . .

THE COURT: . . . . The issue is, you haven’t rested 

on the record. [Ashley’s counsel] wants more time. He 

doesn’t agree. And so I don’t think I can force the — we 

didn’t — we should have brought the parties out and 

entered the terms of that on the record, and then it would 

have been done. We didn’t do that.

. . . .

THE COURT: . . . . I’m just saying because it wasn’t 

completed in the proper way — and I’m taking responsibility for part of that — I think we have to finish the trial 

if [Ashley’s counsel] isn’t happy with it. I don’t think we 

have any other choice. I don’t think I can force the entry 

of this decree because we didn’t bring the parties out and 

put it on the record. And that’s on me.

. . . .

THE COURT: . . . . I mean, the bottom line is, when 

we had our conversation, I told you that based on what 
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I had heard because it was so close to being at the end, 

this is what I thought would likely happen. At that point 

in time, I don’t recall strong-arming anybody into saying 

this is what it should be, and I believe a settlement was 

reached. But because that wasn’t memorialized, because 

we didn’t come back out in the courtroom and put in on 

the record at that time, I don’t believe it’s enforceable by 

the Court. I think you get a chance to finish, if that’s what 

you want.

[Ashley’s counsel:] It is what I want, Your Honor. And 

I also don’t want there to be a confusion about — it’s 

truly unfortunate that anybody that day thought there was 

a settlement.

THE COURT: You said yes, I believe the case can 

be resolved because I told you what you [sic] thought 

was happening. You were in my office. It wasn’t on the 

record. I understand that.

. . . .

[Ashley’s counsel:] And in no way was [sic] speaking 

for my client agreeing to a settlement of —

THE COURT: That’s why I’m not entering the decree.

(Emphasis supplied.)

4. Trial Resumes

Trial resumed on January 23, 2019. Gerald rested his case, 

with the exception that he still wanted the district court to 

speak to the children: “If after the case in chief you feel like 

you are not going to give [Gerald] at least six days out of 14, 

I would continue to ask you to speak with the children[,] [b]ut 

I will rest my case . . . .” Ashley’s counsel called Gerald to 

the stand.

Gerald acknowledged that he and Ashley have had altercations and that he has pushed her to the ground, but he claimed 

he pushed her in self-defense after she grabbed him by the 

hair and “pulled out a couple of [his] dreads.” He denied that 

the children witnessed the pushing incident, which he believed 

occurred in 2009, and he stated he had not been physical 
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with Ashley in “over seven, eight, nine years.” He also 

said he tries to refrain from having arguments with her via 

text message.

Gerald testified that in September 2018, right before trial, he 

gave Cipher tickets to a professional football game in Kansas 

City, Missouri, for his birthday; the game was on October 28. 

The game was during Ashley’s weekend with the children, 

and although she said that Cipher could go, she “didn’t really 

specify how that was going to happen, which is what [Gerald] 

was trying to accomplish for months.” Because the game was 

at noon, Gerald wanted to pick Cipher up and drive to Kansas 

City the day before; Ashley said he could pick Cipher up the 

day of the game. When he arrived to pick Cipher up the day 

before the game, Ashley told Cipher that she would take him 

to the game, but “[Cipher] continued to proceed with me to 

my car. I didn’t force anything.” Gerald acknowledged that 

text messages received into evidence show his frustration 

with Ashley for changing her mind about letting Cipher go to 

the game.

We include a portion of those text messages here, including 

all typographical and grammatical errors:

[Ashley:] And it’s my weekend, my choice.

If I said no he could not go you would have to accept 

that, but I am saying he can go Sunday morning drive two 

and a half hours to KC and be there by the 12 kickoff

They are not leaving Saturday. Period

[Gerald:] Watch us

. . . .

[Ashley:] It’s Sunday or nothing.

. . . .

[Gerald:] Sunday is not an option is the best way I can 

put it to

I don’t care about the consequences will leave a 

Saturday[.]

Gerald testified that he was frustrated that Ashley refused 

to work with him on their parenting schedule to accommodate 
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the trip. There was some testimony about his understanding 

of the parties’ parenting agreement following the second day 

of trial on October 1, 2018. We include the relevant exchanges 

here, although not necessarily in the order they occurred. 

Gerald’s counsel asked, “We had trial on September 28th 

and October 1st of 2018?” And Gerald responded, “Correct.” 

Gerald’s counsel further asked, “And we started a new parenting time schedule; is that correct?” Gerald again responded, 

“Correct.” Gerald’s counsel also asked him, “And the last court 

hearing that we had, the Court awarded you, your understanding was, six out of 14 days?” Gerald replied, “Correct.” During 

another exchange, the following colloquy was had:

[Gerald’s counsel:] The last day of trial when the Court 

ordered that you would have this much time, you’re [sic] 

schedule wasn’t —

[Ashley’s counsel:] Well, objection, Your Honor. That 

misstates facts not in evidence. The Court never ordered 

anything.

[Gerald:] No. When the new order was put in, no.

[Gerald’s counsel:] Let’s stop for a moment. Your 

Honor, I just want to . . . clarify for the record what the 

last — the previous day of trial was. I think I have it in 

the proposed decree, if I can look at that. October 1st.

Gerald testified that he had given Cipher the football tickets as 

a birthday gift earlier in September, prior to trial. There was 

then discussion about Gerald’s plans to take Cipher to Kansas 

City a day earlier than Ashley desired:

[Gerald’s counsel:] Okay. And there was really no 

Court order at that point, was there?

[Gerald:] Not really. I mean, it was still confusing to 

me to understand what the Court order was, and I just 

figured we could be amicable, me and her, about the situation. She just refused to work with me.

Gerald’s counsel asked, “You were going to start your week 

on/week off on a different weekend, but [Ashley] told you no 

specifically?” Gerald responded, “Correct. I tried to do that so 

we wouldn’t have this issue, but she made it so we would.”
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During Ashley’s testimony, she said that when Gerald first 

bought the football tickets, he did not ask to purchase tickets 

for a game during her parenting time weekend. It was not until 

after Gerald gave the tickets to Cipher that Ashley realized the 

game fell on her weekend. “And then we went to court, and 

with the new arrangement, it wasn’t anything against Gerald,” 

but Ashley and the children had other plans that weekend; “it 

wasn’t intentional that I was trying to keep him away from 

[Cipher] on this weekend.” Ashley stated, “I have the same 

weekends I had before our October 1st order was put in.”

Gerald testified that he took Cipher to the game and that 

he gave Ashley makeup parenting time the next weekend during his scheduled parenting time. Gerald said that prior to the 

game, he tried to work it out with Ashley “so we wouldn’t 

have this issue, but she made it so we would. . . . She knew 

we would come back here. This was all plotted.” He further 

stated, “I know she did it purposely. I’ve been with this woman 

for 11 years. I know her.” Ashley testified that she agreed 

Gerald could pick up Cipher the day of the game, and there 

was no reason they needed to leave the day before, but that is 

what happened.

Gerald was also confronted with text messages he sent to 

Ashley in November 2017 wherein he used profanity, called 

her names, and told her to “Go suck a AIDS dick.” Again, 

Gerald testified that he was just upset at the time he sent the 

text messages.

Gerald testified that he was still seeking “50/50” custody 

and parenting time. Gerald’s counsel asked, “[Y]our understanding was the Court gave you six out of 14 days” after the 

first 2 days of trial, and Gerald responded, “Correct.” But his 

“preference” was still 7 out of 14 days. It was also Gerald’s 

understanding that Ashley would owe him child support under 

an “8/6” parenting time schedule.

A witness testified that she had seen Gerald and Ashley 

argue more than once in the past year, most recently on 

Christmas 2018. On Christmas, Gerald and Ashley were 

both at her house and, according to the witness, Gerald was 
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yelling at Ashley, “Ash, why the fuck you keep taking me 

through this. I’m tired of going through this shit with you with 

the kids back and forth to court.” The witness said Ashley 

replied that it was Christmas and that they did not need to be 

arguing. The witness also confirmed that she had observed 

Gerald smoke marijuana around his children within the past 

2 years. The witness had observed Ashley smoke marijuana 

around the children in the past, but not in the last 4 years.

After Ashley rested her case, counsel proceeded to closing arguments.

5. District Court’s Decree

The district court’s decree of paternity was filed on May 

8, 2019. The court ordered that Gerald was the children’s 

father. Pursuant to the decree and the attached parenting plan, 

Ashley was awarded sole legal custody and primary physical 

custody of the children. Gerald was awarded parenting time 

every other weekend from Friday at 4 p.m. until Monday at 

8 a.m. and every other Thursday from 4 to 7 p.m. (before the 

weekend in which he does not have parenting time). Each 

parent was to have 2 weeks of uninterrupted parenting time 

during the summer. A holiday parenting time schedule was 

also established.

Gerald was ordered to pay child support in the amount of 

$665 per month for the two children, beginning February 1, 

2019. He was also ordered to pay 38 percent of any noncovered medical expenses after Ashley had paid the first $480 

annually per child and 38 percent of any work-related childcare expenses. All childcare expenses that accrued during the 

temporary order were preserved. The court noted that Gerald 

had paid $1,050 as partial payment toward childcare amounts 

due and owing under the temporary order, but as of May 1, 

2019, still owed $2,612.40 in childcare arrearages; the court 

ordered him to pay $200 per month toward those arrearages. 

The order stated, “The parties shall each purchase the children clothing in an approximately equal amount.” And Gerald 

was ordered to pay $2,885 of Ashley’s attorney fees within 
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30 days of the decree “due to his inability to follow the temporary order regarding parenting time, child support obligations, and child care obligations and the legal fees incurred by 

[Ashley] due to same.”

6. Postdecree Motions, 

Hearings, and Rulings

On May 15, 2019, a “Defendant’s Motion to Reconsider, 

Motion to Alter or Amend, Motion for New Trial” (motion 

to reconsider) was filed by Gerald. On June 6, Gerald filed 

a motion requesting the district court to “enter an IFP Order 

allowing him to receive a transcription of the proceedings 

or an order for [Ashley] to pay for transcription of these 

proceedings” prior to hearing and argument on his motion 

to reconsider. On June 28, the district court denied Gerald’s 

motion for a transcription of the proceedings; Gerald appealed 

that decision, and on August 5, Gerald’s interlocutory appeal 

in case No. A-19-695 was dismissed by this court for lack 

of jurisdiction.

A hearing on Gerald’s motion to reconsider was held on 

September 18, 2019. During the hearing, Gerald’s counsel 

repeatedly contended that the district court should have spoken to the children prior to entering its decree. Counsel stated, 

“[W]hen we rested [at trial], for the record, we said we’re 

rested conditioned on six out of 14 days. If Your Honor is not 

going to order that, please set it for further hearing and speak 

with the children.” The court responded by stating that because 

it did not grant Gerald’s request, it was overruled. Counsel 

replied, “Okay. I did not have an opportunity to make an offer 

of proof because I did not know that you were going to overrule it.” Counsel continued:

I would have made an offer of proof as to what the children would testify to had I known that you were not going 

to order six out of 14 days and you had no intention of 

speaking with the children. I would have made an offer of 

proof and, I’ll do that today.
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According to counsel, “[I]f Phoenix and Cipher were called to 

testify in chambers with no parents present and just the attorneys and Your Honor, that Cipher and Phoenix would say that 

they love their father.” Counsel continued:

[Not having] six out of 14 days is traumatizing to them. 

The testimony that mom portrayed dad to be not keeping 

a house, not feeding them [nutritious meals], is inaccurate. That he was more than loving. He’s always put their 

needs ahead of his own. And that it’s extremely important for them to have quality time with their father. That 

would be the offer of proof . . . .

Gerald’s counsel also challenged the amount of parenting 

time awarded to Gerald and the way child support was ordered. 

Additionally, counsel stated, “I realize that this [is] a motion 

for new trial, but [Gerald] would like specific findings of fact 

pursuant to [Neb. Rev. Stat. §] 25-1127 [(Reissue 2016)].”

Pursuant to its order filed on September 26, 2019, and 

its order nunc pro tunc filed on October 3, the district court 

denied the entirety of Gerald’s motion to reconsider, “with the 

exception of the following, which has been stipulated to by the 

Parties.” Gerald’s child support obligation under the temporary 

order was amended as follows:

From the time period of September 1, 2017 through May 

1, 2019, Gerald owes a total of $7,986.00. Said amount is 

calculated based upon the following:

i. From September 1, 2017 through September 30, 

2018, [Gerald’s] child support obligation to [Ashley] is in 

the amount of $650.00 per month.

ii. From October 1, 2018 through May 1, 2019, 

[Ashley’s] child support obligation to [Gerald] is in the 

amount of $58.00 per month.

iii. This Order does not obligate [Ashley] to any 

past or current child support obligation. The purpose of 

the description of subparagraphs i,ii, and iii is solely 

to explain the computation of [Gerald’s] Child Support 

Obligation from September 1, 2017 through May 1, 2019.
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Commencing May 1, 2019, Gerald’s child support obligation 

“shall adhere to the Decree of Paternity dated May 8, 2019.”

7. Appeal

Gerald now appeals the paternity decree filed on May 8, 

2019, and the October 3 order nunc pro tunc denying his 

motion for reconsideration.

III. ASSIGNMENTS OF ERROR

Gerald assigns, summarized and reordered, that the district 

court erred (1) in various ways at the temporary hearing and 

in the temporary order; (2) by not enforcing the settlement of 

the parties that was reached in the presence of the trial court; 

(3) by not allowing the children to testify; (4) by not granting 

his request for specific findings of fact; (5) by not awarding 

him more parenting time; (6) by ordering him to purchase 

approximately one-half of the children’s clothing; (7) by ordering him to pay a portion of Ashley’s attorney fees; and (8) by 

not granting his IFP request for transcription of proceedings or, 

alternatively, in not ordering Ashley to pay for the same so that 

he could prepare for his motion for reconsideration.

IV. STANDARD OF REVIEW

[1,2] An appellate court reviews child custody determinations de novo on the record, but the trial court’s decision will 

normally be upheld absent an abuse of discretion. Randy S. v. 

Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019). 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.

[3,4] A settlement agreement is subject to the general principles of contract law. Strategic Staff Mgmt. v. Roseland, 

260 Neb. 682, 619 N.W.2d 230 (2000). To have a settlement 

agreement, there must be a definite offer and an unconditional 

acceptance. Id.

[5] An appellate court reviews child support determinations 

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

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

222 (2011).

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

reviewed de novo on the record to determine whether there has 

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

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

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

V. ANALYSIS

1. Statute of Limitations

Due to the gap in time between the children’s births (2005 

and 2011) and the filing of Ashley’s complaint in this matter (2017), we initially note that the procedure for obtaining 

a determination of paternity is set forth in Neb. Rev. Stat. 

§§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp. 2018). 

Section 43-1411 provides that a paternity action may be instituted “by (1) the mother or the alleged father of such child, 

either during pregnancy or within four years after the child’s 

birth . . . or (2) the guardian or next friend of such child or the 

state, either during pregnancy or within eighteen years after 

the child’s birth.” Paternity can also be established by a notarized acknowledgment of paternity. See, § 43-1409 (signing 

of notarized acknowledgment, whether under § 43-1408.01 or 

otherwise, by alleged father creates a rebuttable presumption 

of paternity as against alleged father); § 43-1408.01 (during 

period immediately before or after in-hospital birth of child 

whose mother not married, person in charge of hospital or 

designated representative shall provide mother and alleged 

father documents and written instructions to complete notarized acknowledgment of paternity; acknowledgment, if signed 

by both parties and notarized, shall be filed with Department 

of Health and Human Services at same time as certificate of 

live birth); Benjamin M. v. Jeri S., 307 Neb. 733, ___ N.W.2d 

___ (2020) (proper legal effect of signed, notarized acknowledgment of paternity is finding that individual who signed 
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as father is in fact legal father; establishment of paternity by 

properly executed acknowledgment is equivalent of establishment of paternity by judicial proceeding); Tyler F. v. Sara P., 

306 Neb. 397, 945 N.W.2d 502 (2020) (same).

A notarized acknowledgment of paternity does not appear 

in the record before us. Furthermore, Ashley’s complaint and 

Gerald’s counterclaim were filed in the parties’ individual 

capacities and were filed outside of the 4-year statute of limitations set forth in § 43-1411. However, Gerald did not raise 

a statute of limitations defense to Ashley’s complaint, and 

instead, he acknowledged his paternity of the children. The 

statute of limitations is an affirmative defense which is waived 

if not asserted. See Benjamin M. v. Jeri S., supra (statute of 

limitations does not operate by its own force as bar, but, rather, 

operates as defense to be pleaded by party relying upon it and 

is waived if not pleaded). See, also, Manker v. Manker, 263 

Neb. 944, 644 N.W.2d 522 (2002). In Manker, a father argued 

that the mother of their child was barred from bringing a paternity action more than 4 years after the child’s birth, as set forth 

in § 43-1411. However, the Nebraska Supreme Court stated 

that “[t]he statute of limitations is an affirmative defense which 

is waived if not asserted by demurrer or answer.” Manker v. 

Manker, 263 Neb. at 952, 644 N.W.2d at 531. The Supreme 

Court pointed out that the father had acknowledged paternity 

and his obligation to pay support in his answer, and such an 

affirmative allegation was “a judicial admission which constitutes a waiver of all controversy with respect to those issues.” 

Id. at 953, 644 N.W.2d at 531. As such, the Supreme Court 

found no error in the district court’s determination that the 

claims were not time barred.

In this case, both parties acknowledged that Gerald is the 

father of Cipher and Phoenix, and both parties sought a determination of paternity, custody, and child support. Therefore, as 

in Manker v. Manker, supra, we find such acknowledgments 

to constitute a waiver of all controversy with respect to these 

issues and conclude that the claims are not time barred.
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2. Temporary Hearing 

and Order

[7] Gerald contends that the district court erred in various 

ways at the temporary hearing and in the temporary order 

and that such errors resulted in his not receiving a sufficient 

amount of parenting time. However, any issues regarding temporary custody and parenting time became moot upon entry 

of the decree of paternity establishing permanent custody and 

parenting time. See, State on behalf of Pathammavong v. 

Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (temporary order rendered moot when permanent custody order 

entered); Mann v. Rich, 18 Neb. App. 849, 794 N.W.2d 183 

(2011) (any issue relating to temporary order is moot after it is 

replaced by more permanent order).

To the extent that Gerald takes issue with the effects of the 

temporary order on child support matters, the paternity decree 

on May 8, 2019, and the subsequent orders on September 26 

and October 3 corrected the amount of Gerald’s monthly child 

support owed under the temporary order. And Gerald does not 

claim error with respect to the recalculation of the monthly 

child support obligation owed under the temporary order.

3. Settlement Agreement

Gerald contends the district court erred by not enforcing the 

settlement of the parties that was reached in the presence of 

the trial court in chambers on October 1, 2018.

As set forth previously, the district court met with the parties’ counsel in chambers after the lunch recess on October 1, 

2018. Apparently, discussion was had as to how the court was 

inclined to rule based on what it had heard so far at trial, and 

rather than resuming trial, the parties thereafter attempted to 

draft a decree but could not agree on the terms they thought the 

court had indicated. Several motions were filed.

On October 5, 2018, Ashley filed a motion for the district 

court “to reconsider and amend its findings from the paternity 

trial held September 28 and October 1 of 2018, to enlarge the 

record to allow rebuttal witnesses and closing statements as 
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neither were allowed, to clarify the decision of this Court, and 

for a new trial.” In support of her motion, Ashley stated:

16. [Gerald] is not capable of being a joint-physical 

custody parent and it is not in the children’s best interests that the children spend almost half their time with 

[Gerald].

17. The trial abruptly ended at 11:30am on October 1, 

2018 in the middle of [Gerald’s] testimony after the Court 

had originally taken a break for lunch.

18. [Ashley] was not allowed rebuttal witnesses.

19. [Ashley] was not allowed . . . a closing argument.

20. [Gerald] is in contempt for not following the 

temporary order regarding parenting time, child support 

arrears, and child care expenses.

21. The Court did not provide a detailed purge plan and 

Counsel for Parties disagree as to said purge plan.

22. The Court did not provide a detailed timeline for 

which [Gerald] must pay a portion of [Ashley’s] attorney fees.

23. Clarity is needed regarding the obligation of the 

parents to ensure the children attend extracurricular 

activities.

24. The Court’s decision is not in the best interests of 

the minor children[.]

25. The Court’s decision regarding custody is contrary 

to law.

The district court and parties’ counsel apparently met again 

in November 2018, but such proceedings do not appear in our 

record. However, the “Judges Notes” for November 16 appear 

in our transcript and state: “Matter came up for Motion to 

Clarify. Trial continued to 1/23/19 at 10a.m.”

On November 28, 2018, Gerald filed a motion for entry of 

decree. Gerald alleged:

[T]rial was held . . . on September 28, 2018 and October 

1, 2018. [Gerald’s] counsel was instructed to prepare a 

Decree. [Gerald’s] counsel forwarded [Ashley’s] Counsel 
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a proposed Decree and Parenting Plan the following 

day on October 2, 2018. [Ashley] filed a Motion for 

Clarification as to certain terms of the Decree, which was 

heard before the Court on November 16, 2018 and certain 

matters were clarified.

Gerald attached a proposed decree which he believed was 

“wholly reflective of the nature of the proceedings as well as 

the Court’s finding and Orders,” with the exception that Gerald 

added a paragraph providing that both parties shall be awarded 

the 7 days of parenting time of their choosing each year, to 

accommodate for special events that each parent may want to 

spend with the minor children. In relevant part, the proposed 

decree awarded sole legal custody to Ashley, but awarded the 

parties joint physical custody—Ashley was to have parenting time 8 out of every 14 days and Gerald was to have parenting time 6 out of every 14 days; the parties were to have 

equal parenting time during the summer.

On November 29, 2018, Ashley again filed a motion for the 

court “to reconsider and amend its findings from the paternity 

trial held September 28 and October 1 of 2018, to enlarge the 

record to allow rebuttal witnesses and closing statements as neither were allowed, to clarify the decision of this Court, and for 

a new trial.” In support of her motion, Ashley made the same 

statements as in her October 5 motion. Also, on November 29, 

Gerald filed an objection to Ashley’s motion.

At a hearing on December 4, 2018, the parties and the district court set forth their recollections of what had transpired 

following the lunch recess on October 1. Gerald’s counsel 

contended that the parties had reached a settlement in chambers and wanted the court to enforce the settlement and enter 

the proposed decree wherein the parties were to have joint 

physical custody—Gerald was to have parenting time 6 out of 

every 14 days. However, the court noted that Ashley’s counsel 

did not agree and wanted to finish the trial. Ashley’s counsel stated that in November, the court “made a decision that 

we would schedule a two-hour opportunity for us in January 
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[2019] to finish the testimony, not only of my client, but also 

of [Gerald] and allow the parties to submit their closing arguments,” and therefore, Ashley objected to Gerald’s motion to 

enter a decree.

The district court recollected that when they had trial, it was 

not complete; that during a break, the court informed the parties’ counsel what it thought would be appropriate based on the 

evidence it had heard; and that the parties’ counsel said they 

would try to put together a decree, but since then counsel disagreed as to what they thought the court was going to propose. 

The court did not think “either [was] correct a hundred percent.” The court said that “we’ll just finish the trial in January.” 

Gerald objected to “re-opening this matter.” During the discussion that followed, the district court stated:

I believe a settlement was reached [on October 1, 2018]. 

But because that wasn’t memorialized, because we didn’t 

come back out in the courtroom and put in on the record 

at that time, I don’t believe it’s enforceable by the Court. 

I think you get a chance to finish, if that’s what you want.

Trial thereafter resumed on January 23, 2019.

We have previously set forth the parties’ testimony from 

January 23, 2019. The testimony suggests that the parties had 

an understanding of a new parenting time arrangement after 

October 1, 2018, which, according to Gerald, gave him parenting time 6 out of 14 days. And upon our review of the record, 

it appears the parties started exercising an 8/6 parenting time 

schedule. Besides the testimony of the parties, Ashley’s counsel stated during closing arguments that “even after the second 

day of trial, [Ashley] allow[ed] [Gerald] to have six days every 

14 days because it seemed as those [sic] perhaps there was 

something going on with the Court’s direction.”

At the motion for reconsideration, the following colloquy 

was had:

[Gerald’s counsel:] And, Your Honor, after trial, on 

September 28th and October 1st, you knew everything 

that happened at the temporary hearing. And you had 
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two days of trial and you said this man needs to have 

more time with his children, and you gave him six out of 

14 days. Six out of 14 days.

[Ashley’s counsel:] Objection, Your Honor. That misstates facts not in evidence. There was no order.

THE COURT: Sustained.

[Gerald’s counsel:] Your Honor, it’s been stipulated to. 

It’s in all the testimony.

THE COURT: No, it’s sustained.

[Gerald’s counsel:] Your Honor, after October 1st of 

2018, [Gerald] had six out of 14 days that’s been stipulated to on the record. We had a trial.

[Ashley’s counsel:] Objection, Your Honor. That misstates facts not in evidence. There’s nothing stipulated to 

as far as the time is concerned on the record.

[Gerald’s counsel:] It’s permeated in the record, Your 

Honor.

THE COURT: The motion is sustained.

[Gerald’s counsel:] It permeates the record.

THE COURT: Objection is sustained. Excuse me.

Additionally, at trial, Gerald’s understanding was that 

Ashley would owe him child support under an 8/6 parenting 

time schedule. And in the district court’s order nunc pro tunc, 

Gerald’s temporary child support obligation was amended, in 

part because Ashley owed Gerald child support from October 

1, 2018, through May 1, 2019. This would again suggest the 

parties were operating under a different parenting time arrangement after the first 2 days of trial. In this instance, we have 

Gerald, who claims there was an agreement reached in chambers during the break from trial on October 1, which explains 

why trial ceased that day and the parties started exercising parenting time under an 8/6 schedule. The district court appears 

to also indicate there was a settlement agreement, but Ashley 

claims there was no agreement.

[8-11] A settlement agreement is subject to the general 

principles of contract law. Strategic Staff Mgmt. v. Roseland, 
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260 Neb. 682, 619 N.W.2d 230 (2000). To have a settlement 

agreement, there must be a definite offer and an unconditional 

acceptance. Id. See, also, Linscott v. Shasteen, 288 Neb. 276, 

847 N.W.2d 283 (2014) (to create contract, there must be both 

offer and acceptance; there must also be meeting of minds or 

binding mutual understanding between parties to contract). A 

binding mutual understanding or meeting of the minds sufficient to establish a contract requires no precise formality 

or express utterance from the parties about the details of the 

proposed agreement; it may be implied from the parties’ conduct and the surrounding circumstances. Linscott v. Shasteen, 

supra. The determination of the parties’ intent to make a 

contract is to be gathered from objective manifestations—the 

conduct of the parties, language used, or acts done by them, 

or other pertinent circumstances surrounding the transaction. 

Id. A fundamental and indispensable basis of any enforceable 

agreement is that there be a meeting of the minds of the parties 

as to the essential terms and conditions of the proposed contract. Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 

808 (2015).

[12,13] An alleged oral compromise and settlement agreement not made in open court is unenforceable where it is in 

violation of the statute of frauds or in violation of a court rule 

requiring all stipulations and agreements of counsel or parties 

to a suit to be in writing, signed by the parties or their attorneys. In re Estate of Mithofer, 243 Neb. 722, 502 N.W.2d 454 

(1993), citing Omaha Nat. Bank v. Mullenax, 211 Neb. 830, 

320 N.W.2d 755 (1982). Conversely, a settlement agreement 

made in open court on the record, agreed to by all of the parties 

to the litigation and approved by the court, is enforceable. In re 

Estate of Mithofer, supra.

There is no court rule in Douglas County, which is in the 

Fourth Judicial District, requiring all settlements to be in writing, signed by the parties or their attorneys. Compare Rules 

of Dist. Ct. of Fourth Jud. Dist. 4-6 (rev. 1995) (when case 

is resolved by settlement stipulation, case shall be placed 
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on inactive status until settlement consummated, at which time 

case shall be dismissed; if settlement stipulation not consummated, case may be reinstated to active status upon motion of 

any party), with Rules of Dist. Ct. of Second Jud. Dist. 2-3 

(rev. 1995) (all agreements of counsel or parties to suit must 

be reduced to writing and signed by parties making same and 

filed with clerk, or they will not be recognized or considered 

by court), Rules of Dist. Ct. of Fifth Jud. Dist. 5-3 (rev. 2001), 

and Rules of Dist. Ct. of Seventh Jud. Dist. 7-3 (rev. 1995). In 

the present case, custody and parenting time decisions would 

not be subject to the statute of frauds, and there is no court rule 

requiring that all settlements be in writing or be made orally on 

the record of the court. In this case, it is alleged there was an 

oral agreement made in chambers, which counsel for Gerald 

understood to be a settlement agreement, and which the district 

court understood to be a settlement, but which it acknowledged 

had not been placed on the record.

This court has previously addressed the enforcement of an 

oral settlement agreement. In Furstenfeld v. Pepin, 23 Neb. 

App. 155, 869 N.W.2d 353 (2015), Lisa Pepin (Lisa) filed 

a complaint against her former husband, Justin Furstenfeld 

(Justin), to modify the parenting time and support provisions 

of their dissolution decree. During the ensuing litigation, Lisa, 

her counsel, and Justin’s counsel met to conduct a telephonic 

deposition of Justin, who was residing out of state. Instead of 

conducting a deposition, however, the parties, through their 

attorneys, engaged in settlement negotiations and an apparent 

agreement was reached. After reaching this agreement, counsel for both parties jointly contacted the district court judge 

to notify the court of the agreement and to remove the matter 

from the court’s trial calendar. Lisa’s counsel proceeded to 

prepare a stipulation containing the terms of the parties’ agreement. Justin refused to sign the stipulation. Lisa filed a motion 

to enforce the settlement agreement. Specifically, her motion 

stated that she sought to enforce the oral agreement reached by 

the parties.
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At a hearing on the motion, Lisa testified as to her understanding of what transpired at the meeting that led to the purported agreement. A copy of the stipulation was received into 

evidence.

Lisa’s counsel also called Justin’s counsel as a witness to 

testify in order to provide foundation for an email regarding 

the oral settlement agreement and to establish that Justin and 

his counsel engaged in communications during the settlement 

negotiation meeting. Justin’s counsel acknowledged that the 

day before the meeting, he sent an email to Lisa’s counsel 

which contained the terms on which Justin offered to settle 

the case. The next day, Justin’s counsel arrived at opposing 

counsel’s office to conduct a telephonic deposition of Justin. 

Justin’s counsel confirmed that settlement negotiations ensued, 

an agreement was reached, and he and Lisa’s counsel contacted the court to inform it that the matter had been settled. 

Later that day, Justin’s counsel received an email from Lisa’s 

counsel’s assistant which stated that it included the stipulation 

for modification of decree based on the agreement reached that 

morning. The email further stated that Lisa’s counsel would 

“‘work up’” a child support calculation that “‘matche[d]’” a 

certain figure to attach to the stipulation. Furstenfeld v. Pepin, 

23 Neb. App. at 161, 869 N.W.2d at 360. Justin’s counsel sent 

the following response to Lisa’s assistant:

“I believe this accurately reflects the agreement. I’ll 

send to [Justin], and once he returns to me the executed 

original, I will get it to [Lisa’s counsel]. The trial date 

has been removed from the judge’s calendar, so we’re not 

under a rush, although I think we told the judge we’d get 

it to him for approval by the end of next week. Neither 

party will need to appear since we’re not changing custody or parenting time.”

Id. On cross-examination, Justin’s counsel stated that Justin 

had not given him the right to sign off on anything. Later in the 

hearing, Justin testified that he did not authorize his attorney to 

make the settlement offer contained in the email.
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The district court entered an order finding that the parties had 

entered into a binding settlement agreement that resolved all 

material terms of the dispute. The court further found that the 

proposed stipulation entered into evidence accurately reflected 

the terms of the parties’ agreement. The court approved the 

terms of the stipulation and directed Lisa’s counsel to prepare 

an order consistent with the stipulation; the court subsequently 

signed the prepared order. Justin appealed.

On appeal, this court found that Justin had not rebutted the 

presumption that his attorney was authorized to make statements on his behalf. This court further found that the district 

court did not err in allowing Justin’s counsel to be questioned 

on a limited basis because counsel’s testimony was material 

and relevant to the issue being litigated and there was no other 

witness that could have provided the evidence. Additionally, 

this court found no error in the district court’s conclusion 

that a settlement agreement may be established by the testimony of the attorney of the party sought to be bound; plain 

statutory language supported such a result. See Neb. Rev. 

Stat. § 7-107 (Reissue 2012) (powers of attorneys include the 

power to bind client by counsel’s agreement in respect to any 

proceeding within scope of proper duties and powers; but no 

evidence of any such agreement is receivable except statement 

of attorney, attorney’s written agreement signed and filed with 

clerk, or entry thereof upon records of court). This court concluded the record contained sufficient evidence for the district 

court to have sustained Lisa’s motion to enforce the settlement agreement.

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

(2015), and one of the cases cited therein, Lennon v. Kearney, 

132 Neb. 180, 271 N.W. 351 (1937), involve a lawyer’s 

authority to enter into a settlement agreement. And both cases 

state, “[W]hen an attorney appears in a cause, there is a presumption that the attorney has authority and that presumption 

continues until the want of such authority is established,” and 

the “burden of proof of such want of authority is upon the 

party asserting the same.” Furstenfeld v. Pepin, 23 Neb. App. 
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at 166, 869 N.W.2d at 363 (other case cited therein for proposition did not involve a settlement), citing Lennon v. Kearney, 

supra (two cases cited therein for proposition did not involve 

a settlement). However, a reading of both cases reveals that it 

was not the presumption of authority that actually decided the 

result. Rather, in both cases, it was the opposing party—i.e., 

the party wanting to enforce the settlement—that put on evidence as to the lawyer’s authority to settle. Having the opposing party present evidence of a lawyer’s authority to settle is in 

line with the Nebraska Supreme Court’s holding in Luethke v. 

Suhr, 264 Neb. 505, 650 N.W.2d 220 (2002), a case also cited 

in Furstenfeld v. Pepin, supra.

[14-16] In Luethke v. Suhr, 264 Neb. at 513, 650 N.W.2d at 

226, the Nebraska Supreme Court held:

[A]lthough lawyers retain apparent authority to make 

procedural and tactical decisions through the existence of 

the attorney-client relationship, a lawyer cannot settle a 

client’s claim without express authority from the client. 

In other words, where there has been nothing beyond a 

mere employment or retainer of the lawyer to represent 

the client in a cause and the lawyer has acquired no other 

authority to enter into a settlement (such as acquiescence 

in open court), if the lawyer seeks to enter a settlement, 

the opposing party should ascertain whether the lawyer 

has received actual authority from the client to take such 

action. A party who enters a settlement agreement without 

verifying the opposing counsel’s actual authority to settle 

does so at his or her peril.

Disputes over a lawyer’s authority to settle are factual issues to 

be resolved by the trial court; however, an appellate court will 

not set aside a trial court’s factual findings regarding settlement 

disputes unless such findings are clearly erroneous. See id.

This case before us is distinguishable from Furstenfeld 

v. Pepin, 23 Neb. App. 155, 869 N.W.2d 353 (2015), in 

that Gerald did not call Ashley’s counsel to testify regarding 

the settlement agreement, including any email exchanges or 

other written correspondence to that effect in preparation of 
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the proposed decree following the in-chambers meeting on 

October 1, 2018. Thus, our review is limited to the information provided in the motions filed after October 1; the hearing on December 4; the parties’ testimony from the third day 

of trial on January 23, 2019; and the proceedings and orders 

that followed. That limited information does not affirmatively 

establish that there was a meeting of the minds regarding any 

alleged settlement agreement in this case on October 1, 2018, 

or that Ashley’s counsel had received actual authority to settle 

based upon the discussions held in chambers between the court 

and the attorneys. Had Gerald’s counsel put on evidence similar to that in Furstenfeld v. Pepin, supra, if such existed, and 

further established that Ashley’s counsel had authority to settle 

based on the discussions held in chambers, if that was the 

case, see Luethke v. Suhr, supra, we may have reached a different decision. However, based on the limited record before 

us as to this issue, we cannot conclude there was an enforceable settlement agreement following the discussions held in 

chambers on October 1.

4. Allowing Children 

to Testify

Gerald contends that the district court erred by not allowing 

the children to testify.

In determining custody and parenting arrangements, the 

court is to consider the best interests of the minor child, one 

such factor of which is “[t]he desires and wishes of the minor 

child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound 

reasoning.” Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016). 

While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has 

expressed an intelligent preference, the child’s preference is 

entitled to consideration. Vogel v. Vogel, 262 Neb. 1030, 637 

N.W.2d 611 (2002). In those cases where the child’s preference 

was given significant consideration, the child was typically 

over 10 years old. See id.
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Prior to trial, Gerald’s counsel subpoenaed Cipher and 

Phoenix to appear at trial on September 28, 2018. When trial 

began on September 28, it was noted during Ashley’s opening 

argument that the children were brought to court that morning. 

After opening arguments were completed, the district court 

indicated that after hearing the evidence, the attorneys could 

converse and decide when to arrange for the court to hear from 

the children. At the time of trial, Cipher was 13 years old and 

Phoenix was 7 years old. After questioning three witnesses, 

Ashley’s counsel stated that “[e]xcept for rebuttal purposes,” 

there were no more witnesses for Ashley. Gerald’s counsel 

also called three witnesses on September 28 and continuing 

on October 1, including Gerald and Ashley. It was agreed 

that Ashley’s counsel could ask rebuttal questions of Ashley, 

outside the scope of redirect, so that she would not have to be 

recalled as a witness.

After Ashley was excused from the stand on October 1, 

2018, the district court asked if there was any further evidence 

from either party. Gerald’s counsel said they were supposed to 

have “some witnesses” there; after being given a brief recess 

to look for the witnesses, counsel stated that one of the witnesses was “ten minutes” away and that the other could not be 

reached. Counsel also said:

I do have a request that you speak with the children 

before the proceeding concludes. And I don’t really want 

to make closing arguments until you have spoken with the 

children, Your Honor. If you’re willing to entertain waiting until — breaking for lunch and I’ll just put on two 

witnesses, and then I’ll ask you to speak to the children.

Ashley’s counsel objected, expressing concerns about Gerald’s 

admission that he had talked with the children about problems 

between the parties and what they have “been told to say.” 

Gerald’s counsel replied that Gerald just wanted his children to be heard and that he did not tell them how to testify. 

Counsel “respectfully request[ed] that [the court] take a few 

minutes” with the children. Gerald’s counsel continued, stating, 
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“[T]he parents do not need to be present. Counsel does not 

need to ask questions. But I would ask that Your Honor at least 

speak with the children in this matter.” The court indicated it 

would “think about that.” Trial then broke for lunch, but counsel met with the court in chambers.

As noted previously, there were various motions filed and 

hearings held to determine whether the case had been resolved. 

But trial resumed on January 23, 2019. On January 23, Gerald’s 

counsel stated:

I’ve decided to rest with the exception that I still would 

like you to speak to the children. If after the case in chief 

you feel like you are not going to give [Gerald] at least six 

days out of 14, I would continue to ask you to speak with 

the children. But I will rest my case, Your Honor.

Ashley’s counsel proceeded to call Gerald as a witness and 

questioned him, in part, about events that occurred since they 

had last been in trial on October 1, 2018, including the situation regarding the Kansas City trip. Another witness testified 

about a verbal altercation she witnessed between Gerald and 

Ashley on Christmas 2018. And Ashley was called as a rebuttal witness to testify about the situation regarding the Kansas 

City trip. Counsel then rested Ashley’s case, and the attorneys 

proceeded to closing arguments.

As set forth previously, in the May 2019 paternity decree, 

the district court awarded Ashley primary physical custody of 

the children and awarded Gerald regular parenting time every 

other weekend from Friday at 4 p.m. until Monday at 8 a.m. 

and every other Thursday from 4 to 7 p.m. (before the weekend 

in which he does not have parenting time).

At the hearing on Gerald’s motion to reconsider, the following colloquy was had.

[Gerald’s counsel:] . . . . [W]hen we rested [on January 

23, 2019], for the record, we said we’re rested conditioned on six out of 14 days. If Your Honor is not going 

to order that, please set it for further hearing and speak 

with the children. The matter concluded on January 23rd.
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THE COURT: And the Court overruled both 

your motions.

. . . .

THE COURT: Well, I didn’t grant it, so it’s overruled.

[Gerald’s counsel:] Okay. I did not have an opportunity 

to make an offer of proof because I did not know that 

you were going to overrule it. The way we left things on 

January 23rd, [Ashley’s counsel] had submitted a proposed decree to you. I had submitted a proposed decree 

to you. And I said, Your Honor, if you’re not going to do 

six out of 14 days, I want you to speak to the children. 

And I was —

THE COURT: When did the court become Let’s Make 

a Deal?

. . . .

THE COURT: It’s my decision whether or not I felt it 

was appropriate to talk with the children.

[Gerald’s counsel:] I understand that.

THE COURT: And it’s not Let’s Make a Deal. And you 

can’t say if you’re not going to do this, Judge, then you 

got to do that.

[Gerald’s counsel:] Your Honor, I would have made 

an offer of proof as to what the children would testify to 

had I known that you were not going to order six out of 

14 days and you had no intention of speaking with the 

children. I would have made an offer of proof and, I’ll do 

that today.

On appeal, Gerald argues that the district court erred when 

it failed to hear testimony from the children. However, when 

the trial resumed on January 23, 2019, Gerald’s counsel stated:

I’ve decided to rest with the exception that I still would 

like you to speak to the children. If after the case in chief 

you feel like you are not going to give [Gerald] at least 

six days out of 14, I would continue to ask you to speak 

with the children. But I will rest my case, Your Honor.

Thus, counsel rested, but attempted to make the rest conditioned on how the court might decide the case, and if the 
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court was not going to rule in Gerald’s favor, counsel apparently expected the court to reopen the case to hear from the 

children. That is borne out later, at the hearing on the motion 

for reconsideration, when counsel addressed the district court 

and stated:

January 23rd, through May of 2019, there was no order 

from Your Honor. And I was assuming that if Your Honor 

was going to enter less than six out of 14 days, you would 

have contacted [opposing counsel] and myself and said, 

Hey, I need to speak to the children.

[17] Regardless of counsel’s assumptions or Gerald’s wishes 

that the court speak to the children, once the attorneys rested 

their cases, the matter was submitted. At that point, the court 

was under no obligation to reopen the case to receive testimony 

from the children. The court was not required to tip its hand 

regarding its ruling in order to allow Gerald’s counsel to decide 

whether or not to present more evidence through the children’s 

testimony before resting Gerald’s case. Because counsel rested, 

we cannot find any error by the district court in its determination to enter its decision without reopening the case to hear 

from the children. 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. Myhra v. Myhra, 16 Neb. App. 920, 756 

N.W.2d 528 (2008).

5. Specific Findings of Fact 

and Parenting Time

Gerald contends the district court erred by not granting his 

request for specific findings of fact and by not awarding him 

more parenting time.

(a) Specific Findings of Fact

[18] Neb. Rev. Stat. § 25-1127 (Reissue 2016) provides 

in relevant part, “Upon the trial of questions of fact by the 

court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one 
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of the parties request[s] it . . . .” In a case tried to the court 

without a jury, a motion for specific findings of fact must be 

made before final submission of the case to the court. See 

Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991). 

See, also, In re Estate of Wiley, 150 Neb. 898, 36 N.W.2d 483 

(1949) (after court has announced decision, request made for 

separate findings of fact and conclusions of law came too late). 

Gerald did not ask the district court to make specific findings 

of fact under § 25-1127 until the hearing on his motion for 

reconsideration. Because Gerald’s request was not made until 

after the case was submitted to the court, the court was not 

under any obligation to provide specific findings.

(b) Parenting Time

Gerald argues that the district court should have awarded 

him parenting time with his children “at least 6 out of 14 days 

during the school year, 1⁄2 of holidays and 1⁄2 of the summer as 

this was in the children’s best interest[s].” Brief for appellant 

at 34 (emphasis omitted).

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

concern is the child’s best interests. Citta v. Facka, 19 Neb. 

App. 736, 812 N.W.2d 917 (2012). The best interests inquiry 

has its foundation in both statutory and case law. Section 

43-2923(6) provides that in determining custody and parenting arrangements:

[T]he court shall consider the best interests of the minor 

child, which shall include, but not be limited to, consideration of . . . :

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of 

an age of comprehension but regardless of chronological 

age, when such desires and wishes are based on sound 

reasoning;

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

the minor child;
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(d) Credible evidence of abuse inflicted on any family 

or household member . . . ; and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

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

parents, including sexual conduct; respective environments 

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

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

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

physical care and satisfy educational needs of the child. Robb 

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

The record reveals a contentious relationship between Gerald 

and Ashley. While both parents appear to love their children, Ashley appears to have a more even temperament. And 

Gerald has put the children in the middle of his disputes with 

Ashley—e.g., when he showed Cipher affidavits Ashley and 

her mother presented to the court and when he made Cipher 

choose between going to an out-of-town football game a day 

earlier than Ashley would allow or missing the game. Based 

on the evidence from trial set forth previously, we cannot say 

the district court abused its discretion when it awarded Gerald 

regular parenting time every other weekend from Friday at 

4 p.m. until Monday at 8 a.m. and every other Thursday from 

4 to 7 p.m. (before the weekend in which he does not have 

parenting time).

6. Clothing Costs

Gerald argues the district court erred when it ordered him 

to purchase approximately one-half of the children’s clothing, 

even though his child support obligation was based on a sole 

custody calculation. We agree, as discussed below.

[20] In Kelly v. Kelly, post p. 198, ___ N.W.2d ___ (2020), 

released the same day as this opinion, we set forth the progression of the law regarding child support and various 

expenses considered in support orders. Prior to the Nebraska 

Child Support Guidelines, Nebraska statutory law addressed 
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various expenses, including clothing, to be considered in support orders. See, Neb. Rev. Stat. § 42-369(3) (Cum. Supp. 

2018); Kelly v. Kelly, supra. Later, in 1987, the Nebraska 

Child Support Guidelines were created. See Kelly v. Kelly, 

supra. See, also, Neb. Rev. Stat. § 42-364.16 (Reissue 2016) 

(requires Nebraska Supreme Court to create guidelines that 

serve as rebuttable presumption in setting child support obligations). Then, in 2008, the Legislature passed 2008 Neb. 

Laws, L.B. 1014, § 33, codified at Neb. Rev. Stat. § 42-364.17 

(Reissue 2016), which specifically sets forth certain categories 

of expenses—“necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child”—that 

could be considered in determining parents’ financial responsibilities related to their children. See Kelly v. Kelly, supra. 

A trial court has the authority to order a parent to pay the 

categories of expenses specified in § 42-364.17, in addition 

to the monthly child support obligation calculated under the 

guidelines. See Kelly v. Kelly, supra. Because the broader, 

more general terms contained in § 42-369(3) preceded the 

adoption of the guidelines and the passage of § 42-364.17, we 

construe the guidelines and § 42-364.17 to control what categories of expenses can be ordered to be paid in addition to a 

monthly child support obligation when child support has been 

calculated using the basic net income and support calculation, 

worksheet 1. Kelly v. Kelly, supra. See Neb. Ct. R. ch. 4, art. 

2, worksheet 1 (rev. 2016).

As applicable here, when considering § 42-364.17 and 

what expenses a parent may be ordered to pay in addition to 

his or her monthly child support obligation which has been 

calculated using the basic net income and support calculation, worksheet 1, the only category under which clothing 

could possibly qualify would be “extraordinary expenses.” As 

stated in Kelly v. Kelly, post at 198, ___ N.W.2d at ___, “We 

conclude that such expenses fall within the basic necessities 

intended to be covered by a monthly child support obligation 
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calculated using the basic net income and support calculation, worksheet 1, and do not rise to the level of ‘extraordinary expenses.’”

However, an order requiring Gerald to purchase one-half of 

the children’s clothing would have been appropriate had the 

court ordered joint physical custody. Neb. Ct. R. § 4-212 (rev. 

2011), regarding joint physical custody, provides in relevant 

part: “If child support is determined under this paragraph, all 

reasonable and necessary direct expenditures made solely for 

the child(ren) such as clothing and extracurricular activities 

shall be allocated between the parents, but shall not exceed 

the proportion of the obligor’s parental contributions . . . .” 

But, in this case, Gerald’s child support obligation was based 

on Ashley’s primary custody of the children, and thus, Gerald 

could be required to pay for only a portion of the children’s 

clothing if it rose to the level of an “extraordinary expense.” 

And we have already determined that clothing is a basic necessity intended to be covered by a monthly child support obligation which has been calculated using worksheet 1.

The district court abused its discretion in ordering that “[t]he 

parties shall each purchase the children clothing in an approximately equal amount.” Accordingly, we reverse this portion of 

the decree, and the decree is modified accordingly.

7. Attorney Fees

Gerald argues that the district court erred in ordering him to 

pay $2,885 of Ashley’s attorney fees “in light of the fact that 

[he] was shorted 26 days of parenting time due to the entry of 

an erroneous temporary order and because he was making good 

faith efforts to pay financial obligations owed in the temporary 

order.” Brief for appellant at 49.

An affidavit from Ashley’s attorney was received into evidence and stated that counsel had “personally spent at least 

11.8 hours of work related to temporary hearing and contempt 

issues” and that counsel’s office had also incurred fees and 

expenses; counsel’s rate was $275 per hour. Counsel’s paralegal had also worked on the case for 6.4 hours at a rate of 
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$150 per hour. Ashley testified that she incurred attorney fees 

related to three temporary hearings—the original temporary 

hearing plus two additional temporary hearings requested by 

Gerald—and she had to file a contempt action when Gerald 

would not follow the temporary parenting time and child support orders. Ashley was not asking that Gerald be ordered to 

pay for all of her attorney fees, acknowledging that she was 

“responsible for initiating the custody” proceedings. But she 

requested an award of attorney fees “to offset the charges that 

wouldn’t have occurred if [Gerald] would have followed the 

[temporary] ruling.”

The district court ordered Gerald to pay $2,885 of Ashley’s 

attorney fees “due to his inability to follow the temporary order 

regarding parenting time, child support obligations, and child 

care obligations and the legal fees incurred by [Ashley] due 

to same.”

The record is clear that Gerald was not prepared for the 

temporary hearing in September 2017, at which he appeared 

pro se. Following the temporary hearing and order, he failed 

to follow the parenting time schedule and failed to fulfill 

his child support obligation. After Gerald obtained counsel, 

he sought further temporary orders, necessitating Ashley to 

employ her counsel’s services. Gerald’s attempts to obtain further temporary orders regarding parenting time and child support were not successful. At the time trial commenced, Gerald 

had not paid any of the court-ordered childcare costs and he 

was behind in paying child support. Between September 2017 

and June 2018, Gerald paid only $1,050. Between June 26, 

2018, and the completion of trial on January 23, 2019, Gerald 

had paid a little more than $2,000; he never once paid his full 

monthly obligation. By the time trial concluded, Gerald was 

thousands of dollars in arrears in child support (approximately 

$10,000 in arrears and interest as of January 23, 2019, but we 

recognize that the temporary child support order was modified 

in the final decree). Accordingly, we find no abuse of discretion by the trial court, and we affirm its award of $2,885 in 
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attorney fees to Ashley. See Cross v. Perreten, 257 Neb. 776, 

600 N.W.2d 780 (1999) (award of attorney fees in paternity 

action reviewed de novo on record to determine whether there 

has been abuse of discretion by trial judge; absent such abuse, 

award will be affirmed).

8. Transcription Costs in Preparation 

for Motion for New Trial

Gerald contends that the district court erred by not granting 

his IFP request for transcription of court hearings or, alternatively, in not ordering Ashley to pay for the same so that he 

could “adequately prepare for Motion for New Trial.” Brief for 

appellant at 47 (emphasis omitted).

After the paternity decree was filed on May 8, 2019, Gerald 

filed his motion to reconsider on May 15. At a hearing on May 

31, Gerald’s counsel mentioned that she had previously sent a 

letter to the court requesting that an IFP order be entered for 

Gerald because he requested a “transcript” of the entirety of 

the proceedings so counsel could have them before the hearing 

on the motion to reconsider. Counsel renewed the IFP request 

on the record and requested that the court grant the IFP, that 

a “transcript be prepared,” and that the hearing be continued 

until counsel had the opportunity to review the transcript.

On June 6, 2019, Gerald filed a “Motion for Transcript.” 

Gerald requested that the district court “enter an IFP Order 

allowing him to receive a transcription of the proceedings or an order for [Ashley] to pay for transcription of 

these proceedings” prior to his hearing and argument on his 

motion to reconsider. In his affidavit attached to the motion, 

Gerald states:

In order for [him] to have procedural and substantive due 

process and a fair proceeding, given the unusual progression and unusual length of these proceedings, counsel for 

[Gerald] needs to review the entirety of the over eight (8) 

month time period of trial and also hearings that occurred 

prior when [Gerald] was pro se.
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Gerald also believed that the court needed to review the evidence in its entirety when making a final ruling on his motion 

to reconsider.

A hearing was held on June 27, 2019, regarding Gerald’s 

request that the district court enter an IFP order for him to be 

able to receive “a copy of the complete transcript” or, alternatively, to order Ashley to pay for it. Received into evidence 

was Gerald’s affidavit with pay stubs attached ($2,169.46 gross 

and $1,123.67 net from April 21 to May 18, 2019), and his 

2018 W-2 wage and tax statement ($31,490.12 for the year); 

he claimed his monthly expenses set forth in the affidavit 

exceeded his income. The court noted that according to the 

pay stubs, Gerald was not working full time—he was working 

approximately 60 hours in a 2-week period. The court stated, 

“I have no information for why he’s not working full time. I 

don’t find him to be below the poverty level, and I’m not sure 

how it’s going to support the request to proceed IFP.” Gerald 

then asked the court to order Ashley to pay for the transcript. 

Ashley’s counsel argued she should not have to pay for it. 

Counsel noted that Gerald argues he does not have the ability 

to pay for the transcript, but he had purchased plane tickets to 

take the children to New York. The court stated, “I’m not going 

to order [Ashley to] pay for the transcript.” On June 28, 2019, 

the district court denied Gerald’s motion for a transcription of 

the proceedings.

Neb. Rev. Stat. § 25-2301.01 (Reissue 2016) states:

Any county or state court, except the Nebraska Workers’ 

Compensation Court, may authorize the commencement, 

prosecution, defense, or appeal therein, of a civil or criminal case in forma pauperis. An application to proceed in 

forma pauperis shall include an affidavit stating that the 

affiant is unable to pay the fees and costs or give security 

required to proceed with the case, the nature of the action, 

defense, or appeal, and the affiant’s belief that he or she 

is entitled to redress.

(Emphasis supplied.) Gerald’s desire to have the earlier proceedings transcribed was not absolutely necessary to his 
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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

SMITH v. KING

Cite as 29 Neb. App. 152

motion to reconsider, and we therefore find that it is not the 

type of “required” fees and costs anticipated by the statute.

Additionally, we are unaware of any authority, and Gerald 

points us to none, that would require Ashley to pay for a transcription of the proceeding so that Gerald could prepare for a 

hearing on his own motion.

VI. CONCLUSION

We reverse the portion of the paternity decree which states, 

“The parties shall each purchase the children clothing in an 

approximately equal amount.” The May 8, 2018, paternity 

decree is modified accordingly. We otherwise affirm the paternity decree, as well as the October 3 order nunc pro tunc dealing with Gerald’s child support obligation.

Affirmed as modified.