Cervantes v. Darnell
A-16-876
| Neb. Ct. App. | Jun 20, 2017Background
- Parties: Rhett Cervantes (father/appellant) and Kassandra Darnell (mother/appellee). Two children born 2007–2008; prior stipulated custody/support order entered Sept. 5, 2014 (joint legal custody; Rhett primary placement during school year; Kassandra summer primary placement; Kassandra $50/month support).
- Rhett filed to modify on Oct. 27, 2015, alleging children were exposed to unsafe conditions at Kassandra’s home (drug use, unsecured firearms/knives, injuries, lost EpiPen) and sought sole legal/physical custody; Kassandra counterclaimed seeking sole or primary custody and support recalculation.
- Trial occurred April–July 2016; witnesses for Rhett emphasized his increased parenting involvement and alleged unsafe conditions at mother’s home; Kassandra denied these allegations and presented witnesses attesting to a safe home; in-camera interviews with children favored mother.
- After trial Rhett moved to reopen evidence based on post-trial events; the district court denied the motion, found no material change in circumstances, and largely denied modification but later adjusted child support to $60/month (Sept. 9, 2016 order).
- Rhett appealed Sept. 14, 2016 and sought in forma pauperis status; parties later stipulated to different child support terms and the district court entered additional child-support-related orders in November 2016 that the appellate court found void because they were entered after the appeal was perfected.
Issues
| Issue | Plaintiff's Argument (Rhett) | Defendant's Argument (Kassandra) | Held |
|---|---|---|---|
| Motion to reopen evidence after trial | Newly discovered post-trial evidence of unsafe conditions warranted reopening to supplement record | Evidence was not properly identified; reopening would prejudice and require further discovery | Denied: trial court did not abuse discretion; proffer insufficient and could be raised in a new modification action |
| Whether there was a material change in circumstances to modify custody | Children exposed to drugs, firearms, knives, injuries, lost EpiPen; Rhett’s improved parenting supports transfer of custody | Mother denied exposure; children’s in-camera statements and witness testimony supported mother; parties previously stipulated to custody in 2014 | Affirmed: no material change proven; credibility findings supported trial court’s decision |
| Exclusion of evidence of Rhett’s pre-2014 criminal history | Relevant to fitness for custody | Pre-2014 conduct was known and considered in 2014 stipulation; not relevant to post-2014 material-change inquiry | Affirmed: properly excluded as irrelevant to change-in-circumstances since Sept. 2014 order |
| Retroactivity of child support | Support should be retroactive to first day of month after filing (Nov. 2015) | Court should decline retroactivity given equities and debtor’s financial situation | Affirmed: trial court did not abuse discretion in denying retroactivity; November 2016 orders attempting to alter support were void because appeal had been perfected |
| Award of attorney fees to mother | (n/a) Rhett’s action was unsuccessful; mother seeks fees | Rhett’s concerns were reasonable; no extraordinary circumstances warranting fees | Affirmed: trial court did not abuse discretion denying attorney fees |
| Granting in forma pauperis for appeal | (n/a) Rhett demonstrated inability to pay; appeal not frivolous | Mother objected, but court held hearing | Affirmed: district court did not abuse discretion granting in forma pauperis |
Key Cases Cited
- Schrag v. Spear, 290 Neb. 98 (trial court custody determinations reviewed de novo but given weight for credibility assessments)
- Thompson v. Thompson, 18 Neb. App. 363 (reopening evidence lies in trial court’s discretion)
- Myhra v. Myhra, 16 Neb. App. 920 (factors for allowing reopening of case to admit additional evidence)
- Hopkins v. Hopkins, 294 Neb. 417 (elements required to modify child custody: material change and best interests)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (definition of material change in custody context)
- Coffey v. Coffey, 11 Neb. App. 788 (appellate deference when trial court resolves conflicting credibility)
- Kramer v. Kramer, 15 Neb. App. 518 (change-in-circumstances standard for support/custody modification)
- Freeman v. Groskopf, 286 Neb. 713 (retroactivity of child-support modifications is discretionary)
- Burns v. Burns, 293 Neb. 633 (district court loses jurisdiction to enter permanent orders on issues pending appeal)
- Nuttleman v. Julch, 228 Neb. 750 (orders entered after appeal perfected addressing issues on appeal are void)
- Burcham v. Burcham, Neb. App. 323 (factors for awarding attorney fees in family cases)
- Fine v. Fine, 4 Neb. App. 101 (review of in forma pauperis determinations)