Tilson v. Tilson, 948 N.W.2d 768

Background

Jayson filed for dissolution in Sept 2014; maternal grandmother Kimberly was awarded temporary custody in Dec 2014, intervened, and a guardian ad litem was appointed for the three children.
On Nov 16, 2015, Jayson filed a motion to dismiss the dissolution (the day before the scheduled hearing), then moved to withdraw that dismissal on Nov 17; the court entered a dissolution decree on Dec 8, 2015 continuing Kimberly’s custody and granting Jayson parenting time (no child support then).
On Feb 24, 2017, Jayson sought to vacate the decree as void (arguing his Nov 16 motion self-executed a dismissal) or, alternatively, to modify custody to him; Kimberly counterclaimed to reduce/supervise Jayson’s parenting time and sought child support.
At the modification trial, therapists and the guardian ad litem testified the children reported safety, neglect, and supervision problems while with Jayson (unsanitary/unsafe homes, inconsistent medication, leaving children alone, inadequate supervision, exposure to alcohol/drugs), and the court credited that evidence.
The district court denied Jayson’s request to void the decree, upheld Kimberly’s custody, reduced Jayson’s parenting time, ordered Jayson to pay child support, and denied Jayson attorney fees; Jayson appeals multiple rulings.

Issues

Issue	Jayson’s Argument	Kimberly’s / Court’s Argument	Held
Whether the dissolution decree was void because Jayson’s Nov 16, 2015 motion to dismiss self-executed a termination of the action	The filing of the motion immediately dismissed the action by operation of law, so the later decree was void	Even if the motion had effected a dismissal, Jayson moved to withdraw it the next day; courts can vacate/reinstate dismissals and the court effectively granted reinstatement by proceeding to decree	Decree not void; withdrawal/reinstatement or equivalent action cured any dismissal; court had jurisdiction to enter decree
Judicial disqualification (recusal)	Judge showed bias in evidentiary rulings, continuances, and permitting certain testimony; should have recused	Judicial rulings and courtroom management do not alone establish bias; movant must show circumstances that would make a reasonable person question impartiality	Denial of recusal affirmed; no showing of objective bias or deep-seated antagonism
Admissibility of children’s statements to therapists (hearsay)	Statements were hearsay and inadmissible	Statements fall under the medical-purpose hearsay exception (Neb. Evid. R. 803(3)) because made to mental health professionals for diagnosis/treatment and pertinent to care	Admission of therapists’ testimony affirmed under rule 803(3) as statements reasonably pertinent to mental health diagnosis/treatment
Custody—parental preference vs. third-party custody	Parental preference required custody to be awarded to Jayson	Parental preference can be overcome by unfitness, forfeiture, or showing best interests lie elsewhere; court found Jayson unfit by clear and convincing evidence	Custody to Kimberly affirmed; parental preference overcome due to Jayson’s unfitness and children’s best interests
Parenting time modification	Court could not materially reduce Jayson’s parenting time absent a material change; reduction exceeded pleadings or requests	Evidence showed material change affecting children’s best interests (behavioral/therapeutic needs, instability under Jayson), and Jayson had notice and chance to litigate	Parenting-time reduction affirmed as supported by material change and best-interest analysis
Child support modification	No material change warranted imposing support where none existed before	Jayson’s parenting time was substantially reduced (more nights with Kimberly), increasing Kimberly’s expenses; change was not contemplated in original decree	Child support obligation (monthly amount ordered) affirmed as based on material change in circumstances
Attorney fees	Jayson should have been awarded fees because he prevailed on some matters	Trial court found Jayson did not prevail overall and did not abuse discretion in denying fees	Denial of attorney fees affirmed

Key Cases Cited

Simms v. Friel, 302 Neb. 1 (jurisdictional questions of law reviewed independently)
Molczyk v. Molczyk, 285 Neb. 96 (courts may vacate dismissals and reinstate actions)
McCullough v. McCullough, 299 Neb. 719 (recusal motion reviewed for abuse of discretion)
Huber v. Rohrig, 280 Neb. 868 (judicial rulings generally do not establish bias)
Liteky v. United States, 510 U.S. 540 (judicial rulings rarely constitute basis for disqualification)
State v. Vigil, 283 Neb. 129 (medical-purpose hearsay exception applies to statements made in legitimate contemplation of medical/mental-health diagnosis or treatment)
State v. Mora, 298 Neb. 185 (explaining requirements for Neb. Evid. R. 803(3))
In re Guardianship of K.R., 304 Neb. 1 (parental preference principle and when it may be overcome)
Windham v. Griffin, 295 Neb. 279 (best-interest showings can negate parental preference in exceptional cases)
Jones v. Jones, 305 Neb. 615 (modification of dissolution decree is reviewed de novo on the record)