Crow v. Chelli

BOB L. CROW, APPELLEE, v. MARLENE E. CHELLI, APPELLANT.

No. A-19-264.

NEBRASKA COURT OF APPEALS

February 11, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: MARLON A. POLK, Judge. Affirmed in part, and in part vacated and dismissed.

Marlene E. Chelli, pro se.

Christopher A. Vacanti and William L. Finocchiaro, of Vacanti Shattuck, for appellee.

MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.

MOORE, Chief Judge.

INTRODUCTION

Marlene E. Chelli appeals from the February 12, 2019, order of the district court for Douglas County, which dismissed her complaint to vacate or modify pending appeal as moot and dismissed contempt actions filed by Marlene after finding that Bob L. Crow was not in contempt of court. We affirm the court's decision with respect to the contempt actions; however, the court erred by finding Marlene's complaint to vacate or modify was rendered moot by this court's dismissal of a prior appeal. Further, we find that jurisdiction had not yet returned to the district court at the time it entered its order dismissing Marlene's complaint. Accordingly, we vacate the portion of the February 12 order that found her pleading to be moot and dismiss the appeal with respect to that issue.

BACKGROUND

Parties/Paternity Degree.

Marlene and Bob are the parents of two minor children, born in 2009 and 2010. On July 7, 2015, the district court entered a decree of paternity, awarding the parties joint legal custody of the children and awarding physical custody to Marlene, subject to Bob's parenting time. The court ordered Bob to pay child support of $801 per month for two children and $546 when one minor child remained.

First Modification/First Appeal.

On March 30, 2016, Bob filed a complaint for modification, asking the district court to modify legal and physical custody, and parenting time based on the children's best interests and to order child support accordingly.

Following trial, the district court entered an order of modification on August 11, 2016. The court found that there was a material change in circumstances warranting modification of the paternity decree. The court modified legal custody by awarding Bob final decisionmaking authority for matters concerning the children's education. It modified physical custody by awarding joint physical custody with a rotating week-on/week-off parenting time schedule. The court also specified other changes to the decree, including changes in summer parenting time, the division of the children's winter/Christmas break between the parties, and child support.

Marlene appealed from the August 11, 2016, modification order (the first appeal), and this court affirmed in a memorandum opinion filed on October 10, 2017. See Crow v. Chelli, No. A-16-869, 2017 WL 4512245 (Neb. App. Oct. 10, 2017) (selected for posting to court website). This court issued its mandate to the district court on November 20, 2017.

Second Modification/Second Appeal.

On May 8, 2017, Bob filed a complaint for modification, asking the district court to modify the previous August 11, 2016, modification order by again modifying legal and physical custody and parenting time based on the children's best interests and to enter child support accordingly.

Marlene filed an answer and counterclaim on June 29, 2017, also asking the court to modify the August 11, 2016, order by modifying legal and physical custody.

Following trial, the district court entered a second modification order on May 8, 2018. The court found a material change in circumstances warranting modification of the paternity decree and the prior modification order, and it awarded Bob sole legal and physical custody of the children subject to Marlene's parenting time. The court also found that it was in the children's best interests to change their last names from Chelli to Chelli-Crow, and it terminated Bob's child support obligation as of October 31, 2017. The court found "a downward deviation due to the relative economic circumstances of [Marlene]" and did not order her to pay child support at that time. Finally, the court dismissed orders to show cause that had previously been entered by the court. On May 21, the court entered an order denying certain posttrial motions filed by Marlene.

Marlene appealed from the May 8, 2018, modification order (the second appeal), and this court dismissed the second appeal, in case No. A-18-561, on December 26, 2018, for failure to file briefs. Marlene filed a petition for further review, which was denied by the Nebraska SupremeCourt. This court issued its mandate on March 18, 2019, and on March 27, the district court entered judgment on the mandate.

Complaint to Vacate or Modify Pending Appeal/Third Appeal.

On November 2, 2018, while the second appeal was pending before this court, Marlene filed a pleading entitled "COMPLAINT TO VACATE OR TO MODIFY PENDING APPEAL," asking the district court, among other things, to vacate or modify the judgments entered on July 7, 2015 (the decree), August 11, 2016 (first modification order), and May 8, 2018 (second modification order), and to award her custody of the children. In this lengthy pleading, Marlene asserts, in part, that the court's past judgments were obtained through fraud, and she seeks vacation or modification of those judgments under Neb. Rev. Stat. § 25-2001(4) (Reissue 2016). We note that under Neb. Rev. Stat. § 25-2008 (Reissue 2016), she had 2 years after the entry of the judgment to commence proceedings under § 25-2001, so her attempt to vacate or modify was timely at least with respect to the second modification order. Other portions of Marlene's pleading are essentially an attempt to modify the decree and the subsequent modification orders pursuant to Neb. Rev. Stat. § 42-364(6) (Cum. Supp. 2018). She alleged that there had been a material change of circumstances requiring a change of custody, and she sought sole legal and physical custody of the children, child support, and attorney fees. She also asked the court to reinstate the children's last name of Chelli.

On November 14, 2018, Marlene filed a motion for temporary orders and a contempt application and affidavit; on November 26, she filed an additional motion for an order to show cause, seeking to hold Bob in contempt.

Following a hearing with respect to the contempt proceedings initiated by Marlene, the district court entered an order to show cause on December 4, 2018, and on December 6, the court entered an order temporarily reapportioning the holiday parenting time for the children. The court scheduled a further hearing on the contempt proceedings, Marlene's complaint to vacate or to modify pending appeal, and her motion for temporary orders for February 7, 2019.

Marlene appealed from the district court's December 6, 2018, order (the third appeal). On January 23, 2019, this court dismissed the third appeal, in case No. A-18-1190, finding that the December 6, 2018, order scheduling a hearing on Marlene's complaint to vacate or modify was not a final, appealable order and that the portion of the order determining holiday visitation was moot. This court's mandate was entered on February 25, 2019, and on February 27, the district court entered judgment on the mandate.

Hearing on Complaint to Vacate Pending Appeal/Fourth Appeal.

On February 7, 2019, a hearing was held before the district court on Marlene's complaint to vacate or to modify pending appeal, her motion for temporary orders, and the pending contempt proceedings. The court heard argument from Bob's attorneys, and from Marlene, who appeared pro se. Bob's attorneys and Marlene outlined the procedural history of the case for the court, and one of Bob's attorneys argued that because the second and third appeals had by then been dismissed by this court, Marlene's complaint to vacate or to modify pending appeal was moot. The court agreed, finding that "[the] Complaint to Vacate or to Modify Pending Appeal" is rendered moot and does not need to be ruled upon by [the district] court." The court then proceeded to hear the pending contempt actions. Marlene was sworn in, and the court asked her certain questionsabout November 2018 parenting time and other matters. Although Bob's attorneys and Marlene both showed, or offered to show, the court certain documentation during the contempt portion of the February 7 hearing, no exhibits were actually offered by either party or received into evidence by the court, and Marlene was the only witness who testified.

On February 12, 2019, the district court entered an order, dismissing Marlene's complaint to vacate or to modify pending appeal as moot. The court stated that Marlene's contempt actions were considered in the court's December 6, 2018, temporary order, which reapportioned the children's Christmas/winter break. Based upon "the further evidence and testimony adduced" at the February 7, 2019, hearing, the court declined to find Bob in contempt of court. Accordingly, the court also dismissed the contempt proceedings.

Marlene subsequently perfected the present appeal (the fourth appeal) from the district court's February 12, 2019, order. We note that after she filed the fourth appeal, Marlene filed an additional complaint for modification on July 19.

ASSIGNMENTS OF ERROR

Marlene's assignments of error and her arguments on appeal in her pro se brief are convoluted and difficult to follow. In general, she challenges (1) the dismissal of her complaint to vacate or to modify pending appeal; (2) the district court's rulings in the May 8, 2018, modification order; (3) the court's conduct of the February 7, 2019, hearing with respect to the contempt proceedings; (4) the court's failure to include various items in the record; (5) the failure of the court to protect the children's best interests; and (6) the court...