Giandinoto v. Giandinoto, A-16-802

Marriage dissolved Jan 2014; sole legal and physical custody awarded to Tawni; Steven granted reasonable parenting time. Appellate mandate filed Feb 26, 2015.
Steven filed a complaint to modify custody on Feb 27, 2015 seeking sole legal and physical custody, alleging material change in circumstances (education, health, stability, interference with contact).
Tawni counterclaimed requesting supervised visitation, denied material change, and sought attorney fees and continued child support.
Trial occurred June 1, 2, and 21, 2016; one child (Brekkan) testified in camera with testimony sealed; district court reviewed education, health, visitation, housing, parenting, and technology issues.
Court found some concerning conduct (e.g., explicit pictures accessible via cloud) but no material change in circumstances to justify changing custody; modified telephonic and weekday visitation, denied supervised visitation, left child support as in the original decree, and awarded Tawni $10,000 in attorney fees.
Steven’s motions for new trial and to recuse were denied; he appealed and Tawni waived filing a brief.

Issue	Steven's Argument	Tawni's Argument	Held
Custody modification	Material change in circumstances (children’s academics, health, stability, interference with communication) warranting sole custody to Steven	No material change; Tawni is fit and children are improving and stable under her care	Affirmed: no material change proven; trial court did not abuse discretion in retaining custody with Tawni
Child support calculation	Court should recalculate support or consider Steven’s income evidence	No change requested by Tawni; court retained prior decree support	Affirmed: no change in custody so no recalculation; issue not properly raised below
Attorney fees	$10,000 award inappropriate and punitive	Fees were reasonable for services after the modification filing; award within court’s discretion	Affirmed: award not an abuse of discretion given services shown and customary practice in dissolution modifications
New trial & in-camera testimony	Trial irregular; uncertainty about sealed in-camera testimony and procedure warrants new trial	Parties agreed to sealed in-camera testimony and procedures; other evidence supported ruling	Affirmed: motion for new trial properly overruled; sealed testimony procedure was agreed and not disclosed
Recusal	Judge previously presided and was biased; remarks during trial show prejudice	Prior involvement and court statements did not require recusal; remarks were about scope of testimony	Affirmed: denial of recusal not an abuse of discretion

Schrag v. Spear, 290 Neb. 98 (children-custody modification standard; trial court discretion and review for abuse of discretion)
Despain v. Despain, 290 Neb. 32 (standard of review for motions for new trial)
Furstenfeld v. Pepin, 23 Neb. App. 673 (attorney-fee award in modification of dissolution reviewed de novo and within trial court discretion)
Garza v. Garza, 288 Neb. 213 (authority and factors for awarding attorney fees in dissolution matters)
Clark v. Clark, 275 Neb. 276 (appellate court will not consider issues not passed on by trial court)
Dinges v. Dinges, 16 Neb. App. 275 (recusal standard; objective test for reasonable question of impartiality)
Damrow v. Murdoch, 15 Neb. App. 920 (invited-error doctrine)