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STATE ON BEHALF OF JAKAI C. v. TIFFANY M.

Cite as 292 Neb. 68

State of Nebraska on behalf of Jakai C

minor child, appellee, v. Tiffany 

appellee, and Damian C., appel

___ N.W.2d ___

Filed November 13, 2015. No. S-13-1052.

1. Affidavits: Appeal and Error. A district court’s denial of in forma 

pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is 

reviewed de novo on the record based on the transcript of the hearing or 

the written statement of the court.

2. Child Custody: Appeal and Error. Child custody determinations are 

matters initially entrusted to the discretion of the trial court, and 

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

will normally be affirmed absent an abuse of discretion.

3. Affidavits: Fees: Appeal and Error. The filing of a poverty affidavit, 

properly confirmed by oath or affirmation, serves as a substitute for the 

docket fee for an appeal.

4. 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.

5. ____: ____. A judicial abuse of discretion requires that the reasons or 

rulings of the trial court be clearly untenable insofar as they unfairly 

deprive a litigant of a substantial right and a just result.

6. Child Custody: Appeal and Error. In child custody cases, where the 

credible evidence is in conflict on a material issue of fact, the appellate 

court considers, and may give weight to, the fact that the trial judge 

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

rather than another.

7. Child Custody: Proof. In a child custody modification case, first, 

the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order 

and affecting the best interests of the child. Next, the party seeking 
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modification must prove that changing the child’s custody is in the 

child’s best interests.

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

circumstances means the occurrence of something which, had it been 

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

to decree differently.

9. Child Custody: Proof. The party seeking modification of child custody 

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

change in circumstances.

10. Child Custody: Evidence: Time. In determining whether the custody 

of a minor child should be changed, the evidence of the custodial parent’s behavior during the year or so before the hearing on the motion to 

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

Appeal from the District Court for Sarpy County: Ma

Kelch, Judge. Affirmed

Amy Sherman for appellant.

Paul J. Gardner, John C. Wieland, and Kevin J. McCoy, of 

Smith, Gardner, Slusky, Lazer, Pohren & Rogers, L.L.P., for 

appellee Tiffany M.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel, a

Miller-Lerman,

NATURE OF CASE

Damian C., the appellant, and Tiffany M., the appellee, 

have a minor child together, Jakai C. In July 2011, the district 

court for Sarpy County filed a “Decree of Paternity, Custody, 

and Parenting Time,” which awarded joint legal custody to 

the parties, awarded physical custody to Tiffany, and ordered 

Damian to pay child support. In 2012, Damian filed a complaint to modify the decree, seeking sole legal and physical 

custody and an order that Tiffany pay child support. Tiffany 

filed a cross-complaint requesting that Damian’s child support obligation be increased. After a modification hearing, on 

November 8, 2013, the district court filed its order in which it 
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STATE ON BEHALF OF JAKAI C. v. TIFFANY M.

Cite as 292 Neb. 68

denied a change of custody and increased Damian’s child support obligation. This is the order currently on appeal.

On December 2, 2013, Damian filed his first notice of appeal 

seeking review of the merits of the November 8 order, along 

with a motion to proceed in forma pauperis on appeal and a 

poverty affidavit. On December 12, the district court denied 

the motion to proceed in forma pauperis without comment, 

but later vacated that ruling. Without holding an evidentiary 

hearing, on December 16, the district court filed an amended 

order denying Damian’s motion to proceed in forma pauperis 

on appeal based on the district court’s determination that 

Damian had sufficient funds. On January 13, 2014, Damian 

filed a second notice of appeal, posted a bond, and paid the 

appellate docket fee. The January 13 filing sought review of 

the December 16, 2013, amended order denying him in forma 

pauperis status on appeal.

The appeal proceeded to oral argument on November 6, 

2014, but there was no bill of exceptions filed for our review 

of the in forma pauperis ruling or the merits. On November 

12, we entered an order in which we vacated the December 16, 

2013, amended order and remanded the in forma pauperis issue 

to the district court for an evidentiary hearing on the issue of 

Damian’s ability to pay. On November 14, 2014, the district 

court filed an order which granted Damian the right to proceed 

in forma pauperis on appeal.

The in forma pauperis issue has been resolved, and a record 

of the proceedings in the district court have now been prepared 

and filed. As explained below, following our de novo review 

of the record, we determine that the district court did not abuse 

its discretion when it declined to modify custody of Jakai, and 

in all respects, we affirm the November 8, 2013, order of the 

district court.

STATEMENT OF FACTS

Damian and Tiffany had a child together, Jakai, who was 

born in October 2009. Damian and Tiffany were never married. 
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On February 17, 2010, the State on behalf of Jakai filed a 

“Paternity Complaint” against Damian, seeking the entry of a 

judgment of paternity against Damian and the entry of an order 

of child support against Damian. The district court entered a 

determination of paternity finding Damian to be the biological 

father of Jakai and entered a temporary order of child support 

against Damian in the amount of $50 per month.

On July 29, 2011, the district court filed its “Decree of 

Paternity, Custody, and Parenting Time.” The decree provided 

that Tiffany and Damian would have joint legal custody of 

Jakai, and Tiffany was awarded physical custody subject to 

Damian’s parenting time. The decree also incorporated a previous order of child support, which set Damian’s child support 

obligation in the amount of $121 per month.

On March 21, 2012, Damian filed a complaint to modify the 

decree. Damian alleged that there had been a material change 

in circumstances since the entry of the decree. Damian stated 

that Tiffany had failed to comply with the decree in the following ways: interfering with Damian’s parenting time; failing 

to comply with the terms of joint legal custody, specifically 

regarding Jakai’s medical treatment, daycare provider, education, and religion; and failing to comply with provisions 

regarding exchanging the child. Damian requested that he 

be granted sole legal and physical custody of Jakai and that 

Tiffany be ordered to pay child support. During the approximately 11

⁄2 years that Damian’s complaint to modify was pending, the district court twice found Tiffany guilty of contempt 

for failing to provide parenting time as previously ordered by 

the Court.

On January 23, 2013, Tiffany filed a cross-complaint seeking to modify the decree. She sought an increase in Damian’s 

obligation of child support, alleging that there had been a 

substantial and material change in circumstances warranting 

a modification of the decree. She also requested that the 

decree be modified to change the arrangements for exchanging the child between the parties and to allow the parties to 
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communicate telephonically with Jakai during the other party’s 

parenting time.

A trial regarding the cross-motions for modification was 

held on November 5, 2013. Tiffany, Damian, and Damian’s 

mother testified at the trial. Damian offered and the court 

received 12 exhibits. Tiffany offered and the court received 

five exhibits.

After the trial, on November 8, 2013, the district court 

filed an order which did not modify custody but did increase 

Damian’s child support obligation. This is the order at issue 

in this appeal. In its November 8 order, the court determined 

that Damian failed to show a material change in circumstances 

which would require a change of custody of Jakai and, in any 

event, that the evidence failed to show a change in custody was 

in Jakai’s best interests. The court further determined that there 

had been a material change in circumstances with respect to 

Damian’s finances, and the court increased Damian’s child support obligation to $407 per month. The court denied all other 

requests of the parties.

On December 2, 2013, Damian filed a notice of appeal seeking review of the rulings in the November 8 order. He also 

filed a motion to proceed in forma pauperis on appeal and a 

poverty affidavit in support of the motion. On December 12, 

the district court filed an order in which it simply stated that 

Damian’s “Motion to Proceed In Forma Pauperis is denied.”

On December 16, 2013, the district court filed an amended 

order, which stated:

On December 12, 2013, this Court entered an Order 

without hearing or opinion denying [Damian’s] Motion 

to Proceed In Forma Pauperis. However, pursuant to 

Neb.Rev.Stat. §25-2301.02 [(Reissue 2008)] and Glas

v. Kenney, 268 Neb. 704[, 687 N.W.2d 907] (2004), this 

Court failed to hold an evidentiary hearing or provide 

written statement of its reasons, findings, and conclusions. Therefore, this Court finds that the Order, dated 

December 12, 2013, must be vacated and an Amended 
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Cite as 292 Neb. 68

Order be issued which complies with both the Nebraska 

Statute and the case law of our Supreme Court.

In its December 16, 2013, amended order, the court denied 

Damian’s December 2 motion to proceed in forma pauperis on 

appeal based on its determination that Damian “is not a person who qualifies to proceed In Forma Pauperis.” The court 

provided written reasons for its determination that Damian 

was not eligible to proceed in forma pauperis, all to the effect 

that Damian had sufficient funds. However, according to the 

record on appeal, an evidentiary hearing on the matter was 

not held.

Neb. Rev. Stat. § 25-2301.02 (Reissue 2008), to which reference is made in the district court’s order of December 16, 

2013, provides:

(1) An application to proceed in forma pauperis shall 

be granted unless there is an objection that the party filing the application (a) has sufficient funds to pay costs, 

fees, or security or (b) is asserting legal positions which 

are frivolous or malicious. The objection to the application shall be made within thirty days after the filing of 

the application or at any time if the ground for the objection is that the initial application was fraudulent. Such 

objection may be made by the court on its own motion 

or on the motion of any interested person. The motion 

objecting to the application shall specifically set forth 

the grounds of the objection. An evidentiary hearing 

shall be conducted on the objection unless the objection 

is by the court on its own motion on the grounds that 

the applicant is asserting legal positions which are frivolous or malicious. If no hearing is held, the court shall 

provide a written statement of its reasons, findings, and 

conclusions for denial of the applicant’s application to 

proceed in forma pauperis which shall become a part of 

the record of the proceeding. If an objection is sustained, 

the party filing the application shall have thirty days after 

the ruling or issuance of the statement to proceed with an 

action or appeal upon payment of fees, costs, or security 
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notwithstanding the subsequent expiration of any statute 

of limitations or deadline for appeal. In any event, the 

court shall not deny an application on the basis that the 

appellant’s legal positions are frivolous or malicious if to 

do so would deny a defendant his or her constitutional 

right to appeal in a felony case.

(2) In the event that an application to proceed in forma 

pauperis is denied and an appeal is taken therefrom, the 

aggrieved party may make application for a transcript of 

the hearing on in forma pauperis eligibility. Upon such 

application, the court shall order the transcript to be prepared and the cost shall be paid by the county in the same 

manner as other claims are paid. The appellate court shall 

review the decision denying in forma pauperis eligibility 

de novo on the record based on the transcript of the hearing or the written statement of the court.

On January 13, 2014, Damian filed a second notice of 

appeal seeking review of the December 16, 2013, amended 

order which denied his December 2 motion to proceed in 

forma pauperis on appeal. With the filing of his second notice 

of appeal, Damian paid the docketing fee and bond. Damian’s 

appeal of the denial of his application to proceed in forma pauperis on appeal was docketed in the existing appeal. We moved 

the case to our docket under our statutory authority to regulate 

the caseloads of the appellate courts of this state. See Neb. 

Rev. Stat. § 24-1106(3) (Reissue 2008).

The appeal was set for oral argument on November 6, 2014, 

but there was no bill of exceptions pertaining to either the 

in forma pauperis issue or the modification trial to review. 

Because the threshold issue in this appeal was Damian’s eligibility to proceed in forma pauperis, we considered this issue, 

and on November 12, we entered the following order:

Damian C., appellant, moves this Court for an 

order reversing the district court’s amended order filed 

December 16, 2013, which denied his motion to proceed 

in forma pauperis on appeal based on a finding regarding indigency, but not based on any finding pertaining 
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to frivolous grounds. Upon due consideration, the order 

of December 16, 2013, is ordered vacated and the in 

forma pauperis on appeal [issue] based on indigency is 

remanded to the district court for an evidentiary hearing in 

accordance with Neb. Rev. Stat. § 25-2301.02(1) (Reissue 

2008). The Clerk of the Supreme Court is directed to send 

a copy of this minute entry to the Clerk of the District 

Court, and the Clerk of the District Court is directed to 

certify a supplemental transcript reflecting the district 

court’s decision following the evidentiary hearing and, if 

denied, the district court reporter is directed to prepare 

a bill of exceptions from the hearing at the expense of 

the county.

On November 14, 2014, the district court filed an order 

which granted Damian the right to proceed in forma pauperis 

on appeal. As a result, a bill of exceptions was filed on March 

2, 2015.

The testimony from the modification trial held November 

5, 2013, was in conflict. The record generally showed that the 

parties disputed the propriety of the manner in which the child 

was exchanged and whether each party interfered with the parenting time of the other. The record further showed that with 

respect to living circumstances, Damian lived with his parents 

and was employed at a bank, and Tiffany worked as a certified 

nursing assistant and was in nursing school but maintained 

her own apartment. Damian testified that Tiffany disparages 

him on social media. However, both parties were shown to be 

able parents.

In an order filed November 8, 2013, the district court denied 

a change in custody and increased Damian’s child support obligation. Damian appeals.

ASSIGNMENTS OF ERROR

Damian claims, restated, that the district court erred when 

it (1) determined that Damian did not establish a material 

change in circumstances since the entry of the decree, failed 

to modify custody so that Damian had sole legal and physical 
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custody, and failed to order Tiffany to pay child support and (2) 

increased Damian’s child support obligation. Because Damian 

does not argue the second assignment of error in his appellate 

brief, we do not analyze it in this appeal. See In re Claims 

Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 (2015) 

(stating that errors that are assigned but not specifically argued 

will not be addressed by appellate court).

STANDARDS OF REVIEW

[1] A district court’s denial of in forma pauperis status under 

§ 25-2301.02 is reviewed de novo on the record based on the 

transcript of the hearing or the written statement of the court. 

§ 25-2301.02(2); State v. Sims, 291 Neb. 475, 865 N.W.2d 

800 (2015); Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 

127 (2015).

[2] Child custody determinations are matters initially 

entrusted to the discretion of the trial court, and although 

reviewed de novo on the record, the trial court’s determination 

will normally be affirmed absent an abuse of discretion. Schrag 

v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

ANALYSIS

In Forma Pauperis Issue.

When this appeal was initially presented to this court, the 

threshold issue was whether the district court erred when, 

without conducting an evidentiary hearing, it denied Damian’s 

motion to proceed in forma pauperis on appeal for the reason 

that Damian had sufficient funds. We determined that the district court had erred when it did not conduct a hearing before 

denying Damian’s motion to proceed in forma pauperis on 

appeal on the grounds of his ability to pay. In our November 

12, 2014, order, we vacated the district court’s order denying Damian’s motion and remanded the issue with directions 

to the district court to conduct a hearing on Damian’s ability to pay before ruling on Damian’s motion to proceed in 

forma pauperis on appeal. Below, we discuss our reasoning for 

this determination.
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[3] Proceedings in forma pauperis are governed by chapter 

25, article 23, of the Nebraska Revised Statutes. See Neb. 

Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2008). The term 

“in forma pauperis” is defined by statute as “the permission 

given by the court for a party to proceed without prepayment 

of fees and costs or security.” § 25-2301(2). A party seeking 

such permission must file an application including a poverty 

“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.” § 25-2301.01. We have 

often observed that the filing of a poverty affidavit, properly 

confirmed by oath or affirmation, serves as a substitute for 

the docket fee for an appeal. In re Interest of Edward B., 285 

Neb. 556, 827 N.W.2d 805 (2013). See, also, In re Interest of 

Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006); Glass v. 

Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).

The centerpiece for our discussion of the in forma pauperis 

issue in this case is found in § 25-2301.02, which provides:

(1) An application to proceed in forma pauperis shall 

be granted unless there is an objection that the party filing the application (a) has sufficient funds to pay costs, 

fees, or security or (b) is asserting legal positions which 

are frivolous or malicious. The objection to the application shall be made within thirty days after the filing of 

the application or at any time if the ground for the objection is that the initial application was fraudulent. Such 

objection may be made by the court on its own motion 

or on the motion of any interested person. The motion 

objecting to the application shall specifically set forth the 

grounds of the objection. An evidentiary hearing shall be 

conducted on the objection unless the objection is by the 

court on its own motion on the grounds that the applicant is asserting legal positions which are frivolous or 

malicious. If no hearing is held, the court shall provide a 

written statement of its reasons, findings, and conclusions 
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for denial of the applicant’s application to proceed in 

forma pauperis which shall become a part of the record 

of the proceeding. If an objection is sustained, the party 

filing the application shall have thirty days after the ruling or issuance of the statement to proceed with an action 

or appeal upon payment of fees, costs, or security notwithstanding the subsequent expiration of any statute of 

limitations or deadline for appeal. In any event, the court 

shall not deny an application on the basis that the appellant’s legal positions are frivolous or malicious if to do so 

would deny a defendant his or her constitutional right to 

appeal in a felony case.

(2) In the event that an application to proceed in forma 

pauperis is denied and an appeal is taken therefrom, the 

aggrieved party may make application for a transcript of 

the hearing on in forma pauperis eligibility. Upon such 

application, the court shall order the transcript to be prepared and the cost shall be paid by the county in the same 

manner as other claims are paid. The appellate court shall 

review the decision denying in forma pauperis eligibility 

de novo on the record based on the transcript of the hearing or the written statement of the court.

Except in certain circumstances, the provisions of 

§ 25-2301.02(1) generally direct the trial court to grant an 

application to proceed in forma pauperis. The trial court can 

deny an application for in forma pauperis status if the party 

filing the application “has sufficient funds to pay costs, fees, 

or security” or if the party filing the application “is asserting 

legal positions which are frivolous or malicious,” except where 

such denial “would deny a defendant his or her constitutional 

right to appeal in a felony case.” § 25-2301.02(1).

We note that in Flora v. Escudero, 247 Neb. 260, 526 

N.W.2d 643 (1995), we determined under a predecessor statute that a trial court must hold a hearing before denying an 

application to proceed in forma pauperis. The requirement 

set forth in Flora to the effect that a court provide a hearing 
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before denying any application to proceed in forma pauperis 

is no longer a correct requirement. In 1999, the statute relied 

on in Flora was substantially amended, see § 25-2301 (Supp. 

1999), and two statutes were added, see §§ 25-2301.01 and 

25-2301.02 (Supp. 1999). Section 25-2301.02 (Reissue 2008), 

which is at issue in the present case, has remained largely 

unchanged since its addition in 1999.

Leaving aside the circumstance where a defendant has 

a constitutional right to appeal in a felony case, under the 

plain language of § 25-2301.02, a hearing is required on 

an objection to an applicant’s request to proceed in forma 

pauperis, except that a hearing is not required on the application to proceed in forma pauperis if the denial of the 

application is because the court, on its own motion, objects 

on the grounds that the position asserted by the applicant is 

frivolous or malicious. See Moore v. Nebraska Bd. of Parole, 

12 Neb. App. 525, 679 N.W.2d 427 (2004) (recognizing 

that § 25-2301.02 superseded requirement set forth in Flora 

wherein trial court formerly was required to hold hearing 

before denying any application to proceed in forma pauperis). 

Specifically, § 25-2301.02(1) states that in the event an objection is made to the application to proceed in forma pauperis, 

“[a]n evidentiary hearing shall be conducted on the objection 

unless the objection is by the court on its own motion on the 

grounds that the applicant is asserting legal positions which 

are frivolous or malicious.” (Emphasis supplied.) To summarize, as we read § 25-2301.02(1), the trial court cannot deny 

in forma pauperis status based on the frivolous or malicious 

nature of the appeal where a defendant has a constitutional 

right to appeal in a felony case, and a hearing is required on 

an objection to a party’s application for in forma pauperis status, whether the objection is based on the applicant’s ability 

to pay or the applicant is asserting a frivolous position, except 

where the objection is made on the court’s own motion on the 

grounds that the legal positions asserted by the applicant are 

frivolous or malicious.
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We recently considered a denial of in forma pauperis status based on ability to pay in a case where the objection was 

raised by the court on its own motion. See State v. Sims, 291 

Neb. 475, 865 N.W.2d 800 (2015). In Sims, we stated that a 

“hearing is required by the plain language of § 25-2301.02 

in the event the court objects to an application to proceed in 

forma pauperis on the basis that the party filing the application 

‘has sufficient funds to pay costs, fees, or security.’” 291 Neb. 

at 478-79, 865 N.W.2d at 803. The present in forma pauperis 

issue is controlled by § 25-2301.02 and our reading of the statute as stated in Sims.

In this case, on December 2, 2013, Damian filed his notice 

of appeal from the district court’s November 8 order on the 

merits of the case, and on the same day, he filed his motion 

and poverty affidavit to proceed in forma pauperis on appeal. 

The rulings made by the district court show that it believed that 

Damian had sufficient funds and, on its own motion, denied 

Damian’s motion without holding an evidentiary hearing. 

Specifically, on December 12, the district court filed an order 

in which it simply stated that Damian’s “Motion to Proceed In 

Forma Pauperis is denied.” And on December 16, the district 

court filed an amended order in which it stated:

On December 12, 2013, this Court entered an Order 

without hearing or opinion denying [Damian’s] Motion 

to Proceed In Forma Pauperis. However, pursuant to Neb.

Rev.Stat. §25-2301.02 and Glass v. Kenney, 268 Neb

704[, 687 N.W.2d 907] (2004), this Court failed to hold 

an evidentiary hearing or provide written statement of its 

reasons, findings, and conclusions. Therefore, this Court 

finds that the Order, dated December 12, 2013, must be 

vacated and an Amended Order be issued which complies 

with both the Nebraska Statute and the case law of our 

Supreme Court.

In the amended order, the district court set forth Damian’s 

income and expenses as reflected in Damian’s motion and 

affidavit to proceed in forma pauperis on appeal. Based on 
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this information, the district court determined that Damian 

had sufficient funds and thus “is not a person who qualifies to proceed In Forma Pauperis.” On January 13, 2014, 

Damian filed his notice of appeal from the December 16, 

2013, amended order denying his motion to proceed in forma 

pauperis on appeal.

Under § 25-2301.02(1), the court was required to hold a 

hearing on Damian’s motion to proceed in forma pauperis 

where the objection was made on the court’s own motion on 

the grounds of ability to pay. The district court erred when it 

failed to conduct a hearing—hence, our order remanding the 

issue to the district court.

For the sake of completeness, we note that Tiffany asserted 

that Damian waived his right to proceed in forma pauperis 

because he paid the docketing fee and bond when he filed his 

January 13, 2014, notice of appeal from the December 16, 

2013, amended order which denied his motion to proceed in 

forma pauperis on appeal. Tiffany also asserted that the foregoing demonstrated Damian’s ability to pay for the appeal. 

Because the docket fee paid by Damian is not inconsistent 

with in forma pauperis eligibility, Damian did not waive his 

right to seek to proceed in forma pauperis, and we reject 

Tiffany’s arguments.

We have observed that there is a statutory right of interlocutory appellate review of a decision denying in forma pauperis 

eligibility to be conducted “de novo on the record based on 

the transcript of the hearing or the written statement of the 

court.” § 25-2301.02(2). See State v. Sims, 291 Neb. 475, 865 

N.W.2d 800 (2015). See, also, Glass v. Kenney, 268 Neb. 704, 

687 N.W.2d 907 (2004); Jacob v. Schlichtman, 261 Neb. 169, 

622 N.W.2d 852 (2001). The statutory provisions anticipate an 

appeal achieved by filing a docket fee or by filing a poverty 

affidavit in lieu of the docket fee and the filing of a record 

sufficient for appellate review. Because Damian had a statutory right to appeal, the district court’s denial of his motion 

for in forma pauperis status on appeal based on ability to pay 
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without a hearing deprived this court of a record other than 

the district court’s statement by which to perform a meaningful appellate review of the in forma pauperis ruling. A record, 

the cost of which is statutorily to be paid by the county, was 

necessary for our review, and a record prepared at the county’s 

expense does not demonstrate a party’s ability to pay for the 

entire record or other costs of an appeal.

In Jacob v. Schlichtman, supra, we discussed what costs, 

fees, or security a litigant proceeding in forma pauperis was 

excused from paying. We stated:

After defining “in forma pauperis” and establishing 

a statutory procedure for determining whether a litigant 

may proceed in that status, the Legislature made specific 

provisions for waiver or payment of various costs and 

expenses which the in forma pauperis litigant is excused 

from paying. Section 25-2302 provides that upon determining that a party may proceed in forma pauperis, the 

court “shall direct the responsible officer of the court 

to issue and serve all the necessary writs, process, and 

proceedings and perform all such duties without charge.” 

Counties are required to pay other essential costs incurred 

by the in forma pauperis litigant. See, § 25-2303 (expense 

of process by publication, if required); § 25-2304 (payment of process and fees to secure presence of witnesses 

whom court finds to have evidence material and necessary to case); §§ 25-2305 to 25-2307 (costs associated 

with briefs and record on appeal).

Jacob v. Schlichtman, 261 Neb. at 175-76, 622 N.W.2d at 856. 

See, also, Glass v. Kenney, 268 Neb. at 708, 687 N.W.2d at 

911 (stating that “[t]he fees, costs, or security referred to in 

§ 25-2301.02(1) are those customarily required to docket an 

appeal. See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2002). We 

read §§ 25-2301.02 and 25-1912 in pari materia”). Although 

Damian paid the docketing fee and bond when he sought 

review of the district court’s in forma pauperis ruling, there 

are other costs and fees associated with proceeding with an 
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appeal that can be costly, and such costs and fees would not 

be borne by Damian if Damian were granted in forma pauperis 

status. Therefore, we determined that Damian did not waive 

his right to proceed in forma pauperis on appeal when he paid 

a docketing fee.

To summarize the proceedings, based on our determination 

that the district court erred when it failed to hold an evidentiary hearing regarding whether Damian had “sufficient funds 

to pay costs, fees, or security” before denying his motion to 

proceed in forma pauperis on appeal, we entered an order on 

November 12, 2014, in which we vacated the December 16, 

2013, amended order and remanded the issue for an evidentiary hearing to be held in accordance with § 25-2301.02. On 

November 14, 2014, the district court filed an order which 

granted Damian the right to proceed in forma pauperis on 

appeal. Thus, this issue has been resolved and a record of the 

proceedings below, including the hearing on the merits of the 

modification and support issues, has been prepared and filed 

and is available for our review.

The District Court’s Denial of 

Modification of Custody.

With respect to the merits of this case, Damian claims 

that the district court erred when it determined that Damian 

failed to establish that a material change in circumstances had 

occurred since the entry of the decree and thus declined to 

modify custody of Jakai solely to Damian or order that Tiffany 

pay child support. Having reviewed the record, we find no 

merit to these assignments of error.

[4-6] Child custody determinations are matters initially 

entrusted to the discretion of the trial court, and although 

reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 

Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). An 

abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if 
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its action is clearly against justice or conscience, reason, 

and evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 

N.W.2d 578 (2015). A judicial abuse of discretion requires 

that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Schrag v. Spear, supra. In child 

custody cases, where the credible evidence is in conflict on 

a material issue of fact, the appellate court considers, and 

may give weight to, the fact that the trial judge heard and 

observed the witnesses and accepted one version of the facts 

rather than another. Id.

[7-9] The legal principles governing modification of child 

custody are well settled. As summarized in Adams v. Adams, 

13 Neb. App. 276, 285, 691 N.W.2d 541, 548-49 (2005), 

“First, the party seeking modification must show a material 

change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. 

Next, the party seeking modification must prove that changing 

the child’s custody is in the child’s best interests.” A material 

change in circumstances means the occurrence of something 

which, had it been known at the time of the initial decree, 

would have persuaded the court to decree differently. See 

Schrag v. Spear, supra. The party seeking modification of child 

custody bears the burden of showing as an initial matter that 

there has been a change in circumstances. See id.

In this case, the district court stated in its November 8, 

2013, order that Damian had failed to establish at the hearing 

there had been a material change in circumstance since the 

decree had been filed 2 years prior thereto and, in any event, 

that the evidence was insufficient to determine it was in the 

best interests of the minor child to modify custody. In making 

these determinations, the district court set forth the evidence 

as follows:

1. That the minor child came for parenting time with, 

what [Damian] characterized as bruises on the body of 

the child. [Note: It is disputed as to when the bruising 
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occurred.] [Brackets in original.] This incident was investigated by law enforcement and the Department of Health 

and Human Services, and according to [Damian], the 

marks on the child were determined to be heat rashes. 

Further, and of significance, is that no action was taken 

by any agency in regard to this incident.

2. That [Tiffany] failed to allow parenting time, as 

ordered by this Court, on multiple occasions and was held 

in contempt on two separate occasions. Although this 

reflects negatively upon [Tiffany], she has since corrected 

these poor decisions.

3. That both parties fail to appropriately communicate 

in regard to the child, which has caused numerous, unnecessary, problems for both parents.

4. That [Damian] complains about [Tiffany] not following the parenting plan in regard to his right of first 

refusal to parent the child, but, yet, [Damian] has not 

requested any additional parenting time pursuant to his 

right of first refusal. As a result, [Damian] is as much 

at fault as [Tiffany] on this issue. Again, the lack of 

communication skills by both parties only magnifies 

this issue.

5. The evidence is completely void of any direct harm 

to the child caused by any alleged parenting deficiencies of [Tiffany]. In fact, the evidence reflects that, for a 

single parent with limited resources, she has matured as 

a parent.

6. [Tiffany’s] negative comments about [Damian] on 

social media is concerning, but no direct connection was 

made as to how these comments impact the child.

7. Lastly, even if [Damian’s] concerns are reflective of 

the situation, the evidence does not reflect how these circumstances are any different, now, than they were at the 

time that the Decree was entered.

Based on this evidence, the district court declined to modify 

custody.
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[10] Upon our de novo review of the record in this case, we 

agree that the evidence adduced at the modification trial did 

not establish a material change in circumstances since the entry 

of the decree warranting a change in custody. At trial, both 

Damian and Tiffany presented conflicting evidence concerning their own parenting strengths and the weaknesses of the 

other parent. Both parties showed that they are employed and 

that they love and are able to care for Jakai. Regarding why 

he believed custody of Jakai should be modified, Damian presented evidence that Tiffany had interfered with his parenting 

time on various occasions, and the record showed that she had 

earlier been held in contempt for such interference. However, 

the record also showed, as noted by the district court, that in 

the year prior to the modification trial, Tiffany had addressed 

this problem and adhered to the parenting time schedule. In 

determining whether the custody of a minor child should be 

changed, the evidence of the custodial parent’s behavior during 

the year or so before the hearing on the motion to modify is of 

more significance than the behavior prior to that time. Schrag 

v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015); State on behalf 

of Dawn M. v. Jerrod M., 22 Neb. App. 835, 861 N.W.2d 

755 (2015).

Damian testified that Tiffany made disparaging remarks 

about him on social media, and we agree with the district court 

that this is concerning. But the record did not show that this 

disrespect was communicated to the child or affected him up 

to the point of trial. The record shows that Damian claimed 

that Tiffany did not adhere to Damian’s right of first refusal 

and failed to consult with him on decisions regarding Jakai’s 

medical treatment and daycare. However, Tiffany presented 

contrary evidence regarding Damian’s failure to communicate 

effectively about decisions regarding Jakai and that Damain 

had not requested any additional parenting time with Jakai 

through his right of first refusal.

In child custody cases, where the credible evidence is 

in conflict on a material issue of fact, the appellate court 
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considers, and may give weight to, the fact that the trial judge 

heard and observed the witnesses and accepted one version of 

the facts rather than another. Schrag v. Spear, supra. Based on 

the evidence presented at trial, the district court determined 

that there was not a change in circumstances warranting a 

modification of custody. The district court also determined that 

the evidence failed to show that a change of custody solely 

to Damian was in Jakai’s best interests. Given the record in 

this case, and given our standard of review and deference to 

the trial court’s determinations with respect to the credibility 

of the witnesses, we cannot say that the court’s denial of the 

modification of custody was clearly untenable or an abuse 

of discretion. Accordingly, we affirm the decision of the district court.

CONCLUSION

The issue of Damian’s in forma pauperis status on appeal 

has been resolved. Upon our de novo review of the record of 

the modification trial, we determine the district court did not 

abuse its discretion when it determined that Damian failed to 

show a material change in circumstances since the entry of 

the decree or that the best interests of the child demonstrably 

required modification and thus concluded that a modification of custody was not warranted and adjusted child support. 

Therefore, we affirm the November 8, 2013, order of the district court in all respects.

Affirmed