State ex rel. Jakai C. v. Tiffany M.

292 Neb. 68

871 N.W.2d 230

State of Nebraska on Behalf of Jakai C., Minor Child, appellee,

v. Tiffany M., appellee,andDamian C., appellant.

No. S–13–1052

Supreme Court of Nebraska.

Filed November 13, 2015

Amy Sherman for appellant.

Paul J. Gardner, John C. Wieland, and Kevin J. McCoy, of Smith, Gardner, Slusky, Lazer, Pohren & Rogers, L.L.P., Omaha, for appellee Tiffany M.

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, Cassel, and Stacy, JJ.

Miller–Lerman, J.

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 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.

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 1 ½ 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 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 Glass v. Kenney, 268 Neb. 704 (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 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 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

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