Larson v. Larson

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
Tyson R. Larson, appellant, v.
Haley M. Larson, appellee.
___ N.W.3d ___
Filed May 20, 2025. 	No. A-24-220.
1. Judges: Recusal. A recusal motion is initially addressed to the discre-
tion of the judge to whom the motion is directed.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
district court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Pretrial Procedure: Appeal and Error. Generally, the control of
discovery is a matter for judicial discretion, and decisions regard-
ing discovery will be upheld on appeal in the absence of an abuse of
discretion.
4. Pretrial Procedure: Proof: Appeal and Error. The party asserting
error in a discovery ruling bears the burden of showing that the ruling
was an abuse of discretion.
5. Divorce: Modification of Decree: Child Custody: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a dissolution action or
modification of a decree related to child custody, visitation, or support,
an appellate court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial judge in his
or her determinations regarding custody, child support, division of prop-
erty, alimony, and attorney fees.
6. Judges: Recusal. To demonstrate that a trial judge should have recused
himself or herself, the moving party must show that a reasonable person
who knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness, even though
no actual bias or prejudice was shown.
7. Judges: Recusal: Presumptions. There exists a presumption of judicial
impartiality, and a party alleging that a judge acted with bias or preju-
dice bears a heavy burden of overcoming that presumption.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:23 AM CDT

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
8. Courts: Records. It is not the duty of a court to scour the record in
search of facts that might support a claim.
9. Trial: Pretrial Procedure: Pleadings: Evidence: Juries: Appeal and
Error. A motion in limine is a procedural step to prevent prejudicial
evidence from reaching the jury. It is not the office of a motion in limine
to obtain a final ruling upon the ultimate admissibility of the evidence.
Therefore, when a court overrules a motion in limine to exclude evi-
dence, the movant must object when the particular evidence is offered at
trial in order to predicate error before an appellate court.
10. Pretrial Procedure: Pleadings: Appeal and Error. An appellant who
has assigned only that the district court erred in denying a motion
in limine has not triggered appellate review of the evidentiary ruling
at trial.
11. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting error.
12. ____. Although an appellate court ordinarily considers only those errors
assigned and discussed in the briefs, the appellate court may, at its
option, notice plain error.
13. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
14. Modification of Decree: Child Custody: Proof. Custody of a minor
child will not ordinarily be modified absent a material change in circum-
stances, which shows either that the custodial parent is unfit or that the
best interests of the child require such action.
15. ____: ____: ____. It is the burden of the party seeking modification to
show a material change in circumstances. Specifically, the movant must
show two elements: First, that since entry of the most recent custody
order, there has been a material change in circumstances that affects the
child’s best interests, and second, that it would be in the child’s best
interests to change custody.
16. Child Custody. Consideration of the child’s best interests involves a
combination of both mandatory and permissive factors. No one factor is
dispositive, and various factors may weigh more or less heavily, depend-
ing on the case.
17. ____. Courts typically do not award joint legal custody when the parties
are unable to communicate effectively.
18. ____. Where the parties are unable to communicate and trust one
another, joint decision making by the parents is not in the child’s best
interests.
19. Child Support: Rules of the Supreme Court. In general, child support
payments should be set according to the guidelines established pursuant
to Neb. Rev. Stat. § 42-364.16 (Reissue 2016). However, the trial court

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
may deviate from the guidelines whenever the application of the guide-
lines in an individual case would be unjust or inappropriate.
20. ____: ____. The child support guidelines do not provide for an auto-
matic deduction for the support of children of subsequent marriages.
Instead, the guidelines provide that credit may be given for biological or
adopted children for whom the obligor provides regular support.
21. Appeal and Error. A trial court cannot err in failing to decide an issue
not raised, and an appellate court will not consider an issue for the first
time on appeal that was not presented to or passed upon by the trial
court.
22. ____. The district court cannot err by failing to consider something not
in the record.
23. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
24. ____. Customarily, attorney fees are awarded only to prevailing parties
or assessed against those who file frivolous suits.
25. Divorce: Attorney Fees. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
26. ____: ____. In awarding attorney fees in a dissolution action, a court
shall consider the nature of the case, the amount involved in the contro-
versy, the services actually performed, the results obtained, the length of
time required for preparation and presentation of the case, the novelty
and difficulty of the questions raised, and the customary charges of the
bar for similar services.
Appeal from the District Court for Douglas County: LeAnne
M. Srb, Judge. Affirmed.
Jeffrey A. Wagner, of Wagner Meehan, L.L.P., for appellant.
Kelly T. Shattuck, of Vacanti | Shattuck | Finocchiaro, for
appellee.
Riedmann, 	Chief 	Judge, 	and 	Pirtle 	and 	Arterburn,
Judges.
Pirtle, Judge.
I. INTRODUCTION
Tyson R. Larson and Haley M. Larson were divorced in
March 2016 in the district court for Holt County, Nebraska.
Following 	their 	divorce, 	Haley 	struggled 	with 	substance

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
abuse and mental health problems. By December 2016, Tyson
had moved to Omaha, Nebraska, and Haley was residing in
Fremont, Nebraska. The case was transferred to the Douglas
County District Court, and Tyson filed a complaint to modify
the decree. As a result, Tyson was given primary custody of
their son, Theodore Larson (Theo). During this time, Theo
grew to resent Haley and refused to go on visitations with her.
After a trial on Haley’s amended motion to modify the
divorce decree, the district court awarded her joint physical
custody and sole legal custody of Theo. It also ordered Tyson
to pay Haley $20,000 in attorney fees and $759 per month in
child support. Tyson now appeals those determinations, two of
the court’s pretrial decisions, and the court’s refusal to recuse
itself. For the reasons that follow, we affirm.
II. BACKGROUND
1. Pretrial Proceedings
Tyson and Haley were married in October 2011 and are the
biological parents of Theo, born in February 2012. Pursuant
to the divorce decree, they initially had joint custody of Theo,
with Haley having primary physical custody subject to Tyson’s
parenting time. But in late December 2016, Tyson filed a
complaint for modification after Haley’s mother informed him
that Haley was struggling with her mental health. An order of
modification was entered on October 5, 2017, that gave Tyson
sole physical and legal custody of Theo. Pursuant to this order,
Theo primarily lived with Tyson but stayed with Haley every
other weekend.
At some point in late 2018, Haley lost her health insurance.
Without insurance, she was no longer able to afford her mental
health medication. As a result, she began to self-medicate with
marijuana, methamphetamine, and alcohol. This had an obvi-
ous impact on her ability to parent Theo.
On May 10, 2019, due to concerns with Haley’s mental
health, Tyson filed a complaint for modification requesting
that Haley be supervised during her parenting time. He also

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
filed a motion for an ex parte order to terminate her parenting
time. This motion was granted, and Haley’s parenting time was
suspended pending a further hearing.
On October 2, 2019, the court issued an order that deter-
mined Haley’s “significant mental health and substance abuse
issues” warranted a custody modification. This order sus-
pended Haley’s visitation rights and granted Tyson sole legal
and physical custody of Theo. The order then set forth a five-
step progressive plan that outlined how Haley could reestab-
lish her visitation rights. These steps generally required that
Haley enroll in counseling, pass hair follicle drug tests, not be
involved in any criminal proceedings, and have a stable living
environment. If she was able to abide by those requirements
for certain periods of time outlined by the plan, she would
progress to the next step and have less restrictive visitations
with Theo.
On November 9, 2019, Haley sent an email to Tyson request-
ing to speak to Theo or schedule a supervised visit with him.
Tyson responded the same day and notified Haley that if she
wanted to see Theo, she would have to abide by the terms of
the October 2 order. Haley then went a year without contact-
ing Tyson or Theo. By all accounts, Haley was using drugs
during a portion of this time, but identified July 29, 2020,
as the date she became sober. Once sober, Haley began par-
ticipating in a day program at Community Alliance, a local
nonprofit that provided her mental health treatment and sub-
stance abuse rehabilitation. She also started to attend meetings
with Alcoholics Anonymous, Narcotics Anonymous, and “Dual
Recovery Anonymous,” a program that assists addicts who
also struggle with mental health problems.
On November 21, 2020, Haley emailed Tyson, informing
him that she completed the necessary requirements to reach
the first step of her progressive plan. With this, she requested
to begin the visitations with Theo allowed under that step.
Notably, this email was Haley’s first attempt to contact Tyson
or Theo since the November 9, 2019, email exchange.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
However, several months prior, in July 2020, Tyson and
his new wife, Brittany Brockway (Brittany), had filed a peti-
tion for a stepparent adoption of Theo. In this petition, Tyson
alleged that Haley had abandoned Theo and that Brittany’s
adopting him was in his best interests. Haley learned of the
adoption proceedings in December and contested the adop-
tion. After a trial was eventually held in March 2021, the court
determined that Tyson and Brittany had failed to establish
that Haley abandoned Theo. Accordingly, the court denied
the adoption. Tyson and Brittany appealed that decision to the
Nebraska Court of Appeals, and we affirmed the county court’s
ruling on February 8, 2022. See In re Adoption of Theodore
L., No. A-21-331, 2022 WL 363740 (Neb. App. Feb. 8, 2022)
(selected for posting to court website). Tyson and Brittany then
petitioned for further review by the Nebraska Supreme Court,
which petition was denied on July 5, 2022.
On January 5, 2021, while the adoption case was still pend-
ing, Haley filed for an order to show cause that alleged Tyson
was preventing her from contacting Theo, although she had
completed the necessary requirements to have phone contact
with him under the first step of the October 2, 2019, progres-
sive plan.
On April 8, 2021, Tyson filed a complaint to modify the
parenting plan that alleged Haley had not had any contact
with Theo since April 8, 2019, and that Theo was afraid of
her. As a result, Tyson requested Haley’s parenting time be
altered to ensure Theo’s safety and mental well-being. Tyson
also filed a motion for an ex parte order requesting Haley’s
parenting time be suspended or, in the alternative, only occur
in a therapeutic setting. On April 15, the court issued two
orders. These orders denied Haley’s motion to show cause and
granted Tyson’s motion for an ex parte order. Pursuant to the
second order, Haley’s parenting time could occur only in a
therapeutic setting.
On April 27, 2021, Haley filed her answer to Tyson’s com-
plaint to modify and a counterclaim for modification. In her

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
counterclaim, she alleged that she had refrained from the use
of alcohol and drugs for 9 months and requested a less restric-
tive parenting plan to allow for more parenting time with Theo.
On the same date, Tyson filed a motion to dismiss his com-
plaint to modify, which motion was granted on April 28.
On May 19, 2021, the court issued an order that reinstated
Haley’s parenting time pursuant to the October 2, 2019, order.
On June 3, 2021, Haley filed a motion to enforce the October
2, 2019, parenting plan. In this motion, she alleged that Tyson
was still restricting her parenting time, although she fulfilled
the requirements to progress to the second step of the plan. On
June 21, the court granted Haley’s motion and ordered Tyson
to comply with the October 2, 2019, parenting plan.
On June 19, 2021, 2 days prior to the issuance of the court’s
order on Haley’s motion to enforce, Haley attempted to pick
up Theo from Tyson’s house for her scheduled parenting
time. Haley’s mother was present and acting as the supervi-
sor in accordance with the parenting plan. Upon their arrival
and entry onto the front porch, Tyson came out and asked
that Haley’s mother and her other child wait on the side-
walk. A brief verbal conflict ensued, and after Tyson’s wife,
Brittany, demanded they step off the property, Brittany called
the police. The police arrived and monitored the situation as
Haley attempted to coax Theo to come with her. During this
interaction, Theo continually cried and stated that he did not
want to go. After approximately 10 minutes of talking, Brittany
was able to convince Theo to go with Haley.
The next day, June 20, 2021, Haley attempted to pick up
Theo again for her scheduled parenting time, but he refused to
go with her. After around 7 minutes of trying to convince him,
she said that he did not have to go and left.
On July 14, 2021, Haley filed another motion to show cause,
alleging that Tyson was impeding her relationship with Theo
by not encouraging a positive relationship between them. The
same day, the court issued an order to show cause. It does not
appear that this order was ever resolved.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
On July 17, 2021, Haley arrived at Tyson’s home to pick Theo
up for her scheduled parenting time. Theo initially expressed
that he did not want to go but was eventually convinced by
Haley to spend half the day with her. Haley attempted one
more visit on August 22 but was unable to persuade Theo to
go with her. On September 13, Haley filed a motion to compel
Tyson to encourage visits, alleging that Tyson was refusing to
encourage Theo to go with her during her scheduled parenting
time. This motion was denied on October 7.
Haley attempted more visits with Theo on September 18 and
19; October 2, 3, 16, 17, and 31; November 6, 7, and 25; and
December 31, 2021. The videos of these attempts are between
1 and 2 minutes long and depict Theo adamantly stating that
he did not want to go with Haley. Although Haley attempted
to persuade him, he refused each time, and she eventually left
the property. Haley made more attempts to pick up Theo on
January 7 and 21; February 4 and 18; March 4 and 18; and
April 1, 15, and 29, 2022. These attempts all had the same
outcomes. In each video, Theo came out of the residence and
immediately expressed that he did not want to go with Haley,
Haley tried convincing him for 1 or 2 minutes, and then Haley
eventually left after Theo still refused. On two occasions, on
February 26 and March 5, Haley’s father attempted to pick up
Theo for her parenting time, but was similarly unsuccessful.
On November 3, 2021, Haley filed an amended counterclaim
where she requested custody of Theo or, in the alternative, a
return to joint legal and physical custody. Additionally, Haley
requested that her obligation to pay child support be termi-
nated, that Tyson pay her child support, and that Tyson pay her
attorney fees.
On February 28, 2023, Haley filed a motion for further
orders in which she requested an order to address Theo’s con-
tinued refusal to participate in visitations. A hearing was held
on March 16. At this hearing, Tyson made an oral motion for
the district court judge to recuse herself due to apparent bias.
This motion was denied. At the hearing, the court expressed

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Nebraska Court of Appeals Advance Sheets
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LARSON v. LARSON
Cite as 33 Neb. App. 609
general frustration that Tyson was not actively encouraging
Theo to spend time with Haley. Additionally, there was much
discussion about how to draft an order that specified what
the court expected Tyson to do when Theo refused to go with
Haley. The next day, March 17, the court issued an order
that modified the parenting schedule so that Theo would stay
with each parent on a weekly basis. The order also specified
that Tyson was responsible for walking Theo up to Haley’s
door, instructing him that he must go on the visit, and telling
him that Tyson wanted him to go on the visit. The order also
granted Haley’s request for attorney fees related to her motion
in the amount of $1,500.
On April 5, 2023, Tyson filed a notice of intention to serve
a subpoena on Haley’s mother, Krista Clark. This subpoena
requested all communications between her, Haley’s attorney,
Haley, Theo’s family therapist, and anyone else that con-
cerned Theo. On May 1, Haley filed an objection to this sub-
poena, arguing that Tyson failed to follow statutory procedures
and was requesting information protected by attorney-client
privilege.
On April 11, 2023, Tyson filed an affidavit and application
for an order to show cause that alleged Haley had refused to
pay the court-ordered child support payments from January 17
through April 3, 2023. The next day, the court issued an order
for Haley to appear and show cause as to why she did not
abide by the orders of the court.
On June 16, 2023, Tyson filed an amended motion in limine
that sought to exclude the testimonies of Haley’s expert wit-
nesses, Dr. Kirk Newring and Dr. Alan Blotcky. These expert
witnesses were anticipated to testify about “parental alien-
ation” and how Tyson was intentionally undermining Theo’s
relationship with Haley. Tyson’s motion in limine argued that
the proposed expert testimonies were based on insufficient
reasoning and methodologies under the standards of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 469 (1993), and Schafersman v. Agland

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LARSON v. LARSON
Cite as 33 Neb. App. 609
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). The motion
also alleged that Blotcky’s testimony should be excluded as
a discovery sanction because his report was filed beyond the
deadline.
Hearings on Haley’s objection to Tyson’s subpoena of Clark
and Tyson’s motion in limine were held on June 23, 2023.
In relation to the subpoena issue, Haley’s attorney explained
that because Haley and Clark lived together and used the
same computer, he always included Clark on any email cor-
respondence with Haley. He then stated that because of this,
he instructed Clark to hire him as well so any communications
between him, Haley, and Clark were privileged. Tyson’s attor-
ney argued that Clark only hired Haley’s attorney to prevent
the requested information from being disclosed. In an order
issued the same day, the court sustained Haley’s objection to
the subpoena.
As it relates to the motion in limine, Tyson’s attorney
explained that he had been unable to depose Blotcky and
had received his report past the imposed deadline. He then
argued that Newring’s and Blotcky’s opinions regarding paren-
tal alienation were based on “junk science” because parental
alienation was not a diagnosis under the “DSM-5.” Haley’s
attorney responded that parental alienation is not a diagnosis,
but, rather, it is a descriptive form of behavior that can be rec-
ognized by experts.
On June 26, 2023, the court issued an order denying
Tyson’s motion in limine. In this order, the court first excused
the late disclosure of Blotcky’s report. The court stated that
although it was not condoning the discovery violation, Tyson
still had the report far in advance of trial. As to the merits of
the motion, the court determined that Tyson failed to satisfy
his initial burden of sufficiently calling into question the
reliability or validity of the anticipated testimony. It stated
that although Tyson’s motion was labeled as a Daubert chal-
lenge, it failed to specifically explain why the expert opinions
should be excluded. The court then concluded that Tyson’s

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LARSON v. LARSON
Cite as 33 Neb. App. 609
concerns with the proposed testimony went to the weight of
the evidence, not its admissibility, and thus could be explored
during cross-examination.
2. Trial
A trial on Haley’s amended counterclaim for modification
and Tyson’s motion to show cause concerning Haley’s failure
to pay child support was held over the course of several days
on September 6 and 7 and November 1, 2023, and January
31, 2024. Prior to the start of the second day of trial, Tyson’s
attorney once again made an oral motion for the district court
judge to recuse herself due to apparent bias. The court denied
this motion. During the trial, Haley called six witnesses and
testified in her own behalf. Tyson called two witnesses, one
being Theo, and testified in his own behalf.
(a) Therapists
Rebecca Cooke is a behavioral health therapist at Com-
munity Alliance. She has worked with Haley since November
6, 2020. She stated that she has helped Haley work through
her diagnoses of major depressive disorder, generalized anxi-
ety, post-traumatic stress disorder, attention deficit disorder,
and history of methamphetamine and cannabis disorders. She
said that Haley’s primary goal was to better manage and stabi-
lize her mental health symptoms to lower her risk of relapse.
Cooke then described the steps Haley has taken to remain
sober. She stated that after Haley became sober on July 29,
2020, Haley enrolled with Community Alliance, graduated
from the program in February 2022, and has been attend-
ing weekly Alcoholics Anonymous, Narcotics Anonymous, and
“Dual Recovery Anonymous” meetings. Additionally, Haley
graduated from drug court in February 2022 and has been
taking medication to help with her mental health symptoms.
Given that Haley had been sober for 3 years and continued to
take steps to rehabilitate herself, Cooke believed that she was
at a low risk of relapse and could safely parent Theo.

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LARSON v. LARSON
Cite as 33 Neb. App. 609
Dr. Jamie Pasqua is a clinical psychologist who did reunifi-
cation therapy for Haley and Theo from June 15, 2021, to June
13, 2022. Pasqua primarily worked with Haley and Theo but
met with Tyson on a few occasions. She explained that during
the sessions with Haley and Theo, Theo expressed that he was
angry with Haley for abandoning him and was worried about
the potential of her relapsing. Although Pasqua suggested that
Theo’s relationship with Haley improved early on, that prog-
ress eventually plateaued and Theo struggled to confront the
anxiety he experienced when around her.
Pasqua said that Tyson was willing to encourage Theo to
reestablish a relationship with Haley, but expressed his concern
about forcing Theo to spend time with her when he did not
want to. Pasqua explained that she had encouraged Tyson to be
honest with Theo about his reservations and had also informed
Tyson about the importance of supporting Theo’s relationship
with Haley. This was difficult for Tyson because he did not
want to break Theo’s trust by forcing him to build a relation-
ship with Haley when Tyson was unable to promise that she
would not leave again.
Sara Batter is a mental health therapist and an alcohol and
drug counselor who has piloted family therapy with Theo
and Haley since August 2022. Batter stated that she typically
works with just Haley and Theo but involved Tyson in a few
sessions. She said that Theo was more participatory during the
most recent sessions but continued to express that he felt sad
and depressed during Haley’s parenting time. She believed that
Theo was still upset with Haley for leaving and being absent
for so long.
Batter indicated that Tyson was at least partially respon-
sible for some of Theo’s anger toward Haley. In particular,
she said that Tyson’s lack of coparenting and communication
impeded Theo’s relationship with Haley. She also believed
that Tyson could speak more positively about Theo’s vis-
its with Haley and do more to encourage him when Tyson
dropped him off at Haley’s house. Overall, Batter said that

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LARSON v. LARSON
Cite as 33 Neb. App. 609
Tyson’s actions made the therapeutic process more difficult
and the drop-offs more problematic.
Lisa Vogel is a mental health therapist who has worked with
Theo since December 2020. Although the timing was not clear,
at some point, she diagnosed Theo with post-traumatic stress
disorder in regard to a traumatic event he experienced while
visiting Haley sometime between 2017 and May 2019. She
stated that around that timeframe there were several instances
when Theo was unable to wake Haley up and felt scared
because he did not know if she was alive.
Vogel also discussed Theo’s struggles since Haley reentered
his life. She explained that, at one point, Theo was mak-
ing “great, great” improvements, but became more withdrawn
once he had contact with Haley. She said that he did not want
to spend time with her and became very angry when asked
about their relationship. She also talked about how Theo did
not believe anyone was listening to him and how he felt sad
and depressed during Haley’s parenting time. She was par-
ticularly concerned that Theo started making comments that
he no longer wanted to be alive. Vogel believed that Theo was
afraid of Haley and feared returning to the same conditions he
experienced with her before. With his comments and expressed
feelings of depression, she concluded that the current custody
arrangement was not good for Theo.
Given Theo’s regressions, Vogel was unsure if he could form
a positive relationship with Haley. She did not approve of the
approach used by Pasqua or Batter and expressed concern that
they did not contact her prior to starting family therapy with
him. But unlike the other therapists, Vogel did not believe
Tyson was doing anything to keep Theo away from Haley. She
thought Tyson was properly encouraging him to reestablish the
relationship, but the relationship was plagued by Theo’s anger.
In terms of a future custody arrangement, Vogel believed that
any plan that fully separated Tyson and Theo could cause Theo
irreparable harm.

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LARSON v. LARSON
Cite as 33 Neb. App. 609
On cross-examination, it was revealed that Vogel’s license
to practice as a mental health practitioner was put on proba-
tion in 2008 for misrepresenting facts on her license renewal
application. On the application, Vogel indicated that she had
not been convicted of any additional misdemeanors or felonies,
although she had been convicted of a second driving under
the influence offense. As a result of this disciplinary action,
Vogel’s license was placed on a probationary status for 5 years
and she was ordered to not consume alcohol. However, in
2009, during one of her required body fluid tests, Vogel tested
positive for alcohol and admitted to drinking. After a petition
to revoke her probation was filed, Vogel agreed to a censure
and a $500 fine.
(b) Parental Alienation
Blotcky is a clinical and forensic psychologist who provided
expert testimony regarding parental alienation. He defined
parental alienation as “when one parent intentionally tries to
undermine and even sever the child’s relationship with the other
parent.” He explained that parental alienation is not a diagnosis
but is subsumed under three different possible categories in the
“DSM-5.” These three categories are “[p]arent-child relational
problem,” “child affected by parental relationship distress,”
and “child psychological abuse.” He then described a five-
factor model diagnosis that outlines the criteria to determine
if parental alienation is occurring. These factors include (1)
the child either completely or totally rejecting a parent, (2) the
presence of a prior positive relationship between the rejected
parent and the child, (3) the rejected parent’s not engaging in
physical or sexual abuse or having any other serious mental
illness that would interfere with reasonable parenting, (4) the
favored parent’s engaging in some or many of 17 alienation
behaviors, and (5) the child exhibiting some or many of 8 char-
acteristics of alienation.
Blotcky then provided the 17 criteria within the fourth fac-
tor and the 8 characteristics within the fifth factor. The 17

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LARSON v. LARSON
Cite as 33 Neb. App. 609
alienating behaviors displayed by the favored parent are (1)
bad-mouthing the rejected parent, (2) limiting the rejected
parent’s visits, (3) interfering with the rejected parent’s parent-
child communication, (4) not mentioning the rejected parent
at home, (5) withholding love and approval from the child
if rejection is not demonstrated, (6) telling the child that the
rejected parent does not love them, (7) forcing the child to
choose between parents, (8) creating the impression that the
rejected parent is dangerous, (9) forcing the child to reject the
rejected parent, (10) confiding in the child about adult topics
and court issues, (11) asking the child to spy on the rejected
parent, (12) asking the child to keep secrets from the rejected
parent, (13) referring to the rejected parent by first name only,
(14) referring to a stepparent as the child’s mother or father,
(15) withholding medical and educational information from
the rejected parent, (16) changing the child’s name, and (17)
undermining the authority of the rejected parent.
The eight characteristics of an alienated child include (1) the
child’s engaging in an ongoing campaign of anger and nega-
tivity toward the rejected parent; (2) the child’s anger being
based on weak, frivolous, or even absurd reasons; (3) a totally
negative view of the rejected parent; (4) the “independent-
thinker phenomenon” where the child articulates that the alien-
ation was the child’s own decision; (5) the child’s absence of
guilt about the treatment of the rejected parent; (6) the child’s
unwavering support for the favored parent; (7) the child’s
copying the favored parent’s words or scenarios; and (8) the
child’s rejecting the rejected parent’s family.
Blotcky next explained how Theo’s relationship with Haley
exhibited many of these criteria. He was particularly concerned
that Theo’s view of Haley was “totally negative.” He did not
care if he saw Haley, did not want to form a relationship with
her, and had no positive things to say about her. Blotcky testi-
fied that this was concerning because children instinctively
want to have positive relationships with both parents. More
so, Blotcky did not believe that Theo’s negativity made sense.

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He did not believe that Haley’s absence was a legitimate rea-
son for Theo to have such strong feelings against her.
Blotcky testified that Tyson was the primary cause of Theo’s
alienation of Haley. And because Blotcky thought Tyson was
to blame, he believed it was Tyson’s responsibility to encour-
age Theo to reestablish a relationship with her. He indicated
that Tyson should do “whatever it takes to get him to go” on
visitations with Haley, even if that involved physically forcing
Tyson into her car. Further, to help counter Theo’s alienat-
ing behaviors, Blotcky recommended cutting off all contact
between Tyson and Theo for 90 days and giving Haley primary
custody during that time.
Newring is a licensed psychologist who performed a parent-
ing assessment and psychological evaluation on Haley in July
2022 to determine whether she was able to adequately care
for Theo. For the parenting assessment, Newring believed that
Haley was effectively managing her multiple diagnoses and
he did not think that there was a reasonable basis to limit her
parenting time.
However, Newring identified several barriers to Haley’s
ability to reconnect with Theo. He thought that Theo’s appre-
hension toward Haley was due to a fear of being abandoned
again. More so, he attributed much of this reluctance to
Tyson’s disproportionate amount of influence over him. His
report stated it more plainly by determining that Tyson’s
influence had led Theo to be so “programmed[, instructed,]
or coached at the fundamental level to present concerns . . .
that limit Haley’s opportunity to parent.” And while he never
specified that Tyson’s actions were intentional, he believed
that Theo was gathering information from him that perpetu-
ated mistrust toward Haley. Newring believed that having a
positive relationship with Haley was in Theo’s best interests
and recommended that the court hold the parents accountable
and not let Theo dictate the process if it wanted to see Haley
and Theo reunified.

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(c) Haley, Tyson, and Theo
Haley first testified about the various custody arrangements
she and Tyson had since their divorce, her mental health prob-
lems, her struggles with addiction, and the proceedings leading
up to the trial. She explained that after the divorce she was
diagnosed with “ADHD,” depression, and anxiety. But it was
not until she lost her health insurance in 2019 that she began
to struggle with drugs. She said that she had been sober for 3½
years and that despite her struggles, she had never used drugs
in front of Theo.
Haley explained that although she met the conditions to
begin visitations with Theo in November 2020, Tyson did not
allow her any contact with Theo until the court ordered it in
May 2021. Once the court required him to abide by the parent-
ing plan, she attempted to visit Theo without much success.
She explained that during these attempts, Tyson would inter-
fere or try to dissuade Theo from going with her. She brought
up the June 2021 incident when Brittany called the police and
how Tyson continually interfered on this occasion and would
not let her speak with Theo alone. She also pointed to the other
incident involving the police from July 2021. She expressed
frustration that on this occasion, Tyson did not come out of
the house, speak to the officers, or attempt to encourage Theo
at all. Haley believed that if Tyson encouraged Theo more, he
would be less reluctant to forming a relationship with her.
Haley also discussed her current living arrangement. She
stated that she received monthly Social Security disability
income of $1,600 for her and her other son, who has nonverbal
autism and a severe speech delay. She testified that she had
only $60 to $90 in savings and could not afford to live alone.
Because of this, she lived with her mother, who helped her
with both children. Haley said that she spent most of her free
time attending her meetings and taking care of her other son.
Haley then discussed her relationship with Theo. She said
that initially during her parenting time, they used to play

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video games, watch television, and play sports, but that Theo
became less enthusiastic about those activities over time. She
stated that around the time Theo’s behavior changed, Tyson
was sending more emails that raised issues with how she was
parenting him. In these emails, Tyson expressed concern about
Theo’s mood changes and talked about how he was sad and
reclusive after their visits. More so, Tyson raised concerns
about Theo’s saying that “he wished he wasn’t alive.”
In July 2021, Tyson sent Haley several more emails wherein
he informed her that Theo did not want her to attend his
upcoming swim meet. The emails acknowledged that Haley
could still attend, but reiterated Theo’s request that she not
interact with him. Haley still attended the meet and even
attempted to talk with Theo afterward. This had an apparent
negative impact on Theo, because Tyson emailed Haley later
that evening. In this email, Tyson told Haley that she made
Theo “extremely uncomfortable, embarrassed, and upset” to
the point that he did not want to participate in future meets if
she was there. A similar incident occurred several months later
when Haley volunteered to help Theo’s class on Valentine’s
Day. Tyson emailed Pasqua about Theo’s negative reaction to
Haley’s coming to his class, and Pasqua told him that Theo
consented during a therapy session to Haley’s coming and that
Pasqua believed that it was a good opportunity for Theo to
address some of his anxiety. However, Theo later told Tyson
that he did not want to go to school if she was going to be
there and ultimately did not attend school that day.
Haley testified that Theo was never able to articulate why
he did not want to spend time with her. She explained that
Theo was reluctant to talk with her when Tyson was around
but that he became more enthusiastic when they were alone.
She spoke specifically about transfers and how Theo cried
when Tyson dropped him off, but immediately calmed down
after he left. Haley believed that Theo’s behavior was caused
by Tyson’s influence over him and that his reluctance to
encourage visits inhibited her ability to form a relationship

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with Theo. She also believed that Vogel should no longer be
Theo’s therapist, that Tyson should pay her attorney fees, and
that Tyson needed therapy to help him take responsibility for
her and Theo’s strained relationship.
During his testimony, Tyson disagreed that he was the cause
of Haley and Theo’s issues. He stated that he always encour-
aged Theo to go with Haley and never disparaged her. But
he also indicated that he was honest with Theo about Haley’s
issues and expressed concern about her risk of relapse. Tyson
said that he had witnessed other family members struggle with
drug addiction and wanted to protect Theo from that as much
as possible. He said that Haley had already disappeared from
Theo’s life twice and that he was the one who put everything
back together afterward. And although he was honest with
Theo about Haley’s past, he stated that he “sugarcoat[ed]” the
details, telling Theo about Haley’s improvements and commit-
ment to sobriety, and that he spoke positively about the efforts
she was making to reconnect with Theo.
Tyson also talked about Haley’s multiple failed attempts to
pick up Theo from his house. He said that after the first visit
when the police were called, he decided to reduce the chance
of conflict by staying inside when Haley came to pick up Theo.
He then discussed how Haley thought it was his responsibility
to make Theo go with her. He expressed frustration about this
and said Haley refused his help unless it involved him parent-
ing Theo for her. He did not agree that it was his role to force
Theo to go and believed Haley needed to learn how to exert
parental authority. Tyson agreed that it was important for Theo
to have a relationship with Haley, but believed the current cus-
tody arrangement was sufficient to ensure that.
Theo testified in chambers outside the presence of Tyson
and Haley. He said that he did not see Haley for 2 years
because she was sick and “[doing] bad stuff.” At first, he stated
that he only assumed she was doing bad things because she
was gone for so long, but later, he said that Haley told him
everything during family therapy sessions with Pasqua. He

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said that Tyson never talked about Haley and did not tell him
anything about why she left. He also mentioned multiple times
that Tyson encouraged him to go on visits with Haley.
Theo then discussed how he does not like Haley and stopped
caring about her because she was gone for so long. He said he
felt sad, depressed, and lonely at her house and would rather
be with Tyson. He stated that he loved Tyson, but did not
feel the same way about Haley. And although he believed his
relationship with Haley could improve, he was explicit in that
he just liked Tyson more. When asked what custody arrange-
ment he preferred, Theo said that he wanted to live with Tyson
“almost all the time” but would be willing to stay with Haley
every other weekend. He also stated that he only started to
cooperate with Haley’s visits because he was told that Tyson
could be thrown in jail if he did not go.
3. Order
On February 23, 2024, the court issued its order on Haley’s
amended counterclaim for modification and Tyson’s motion
to show cause. Although the court did not make any express
findings regarding the credibility of the witnesses, it did
mention Vogel’s prior disciplinary action for dishonesty. The
court first determined that there was a material change in cir-
cumstances that warranted a custody modification. While the
order never specified what exactly that material change was,
it pointed to the improvements Haley had made in her life,
Tyson’s actions that tended to alienate Theo from Haley, and
Tyson’s influence over Theo. The court then determined that
a custody modification was in Theo’s best interests because
otherwise Tyson would “exert his authority and attempt to
continue to undermine the reunification between Haley and
[Theo].” With this determination, the court gave Haley joint
physical custody and sole legal custody of Theo and it ordered
Tyson to pay Haley $759 per month in child support and
$20,000 in attorney fees. The court also determined that Tyson
did not prove by clear and convincing evidence that Haley

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willfully violated the order to pay child support and thus did
not find Haley in contempt.
III. ASSIGNMENTS OF ERROR
Tyson assigns, restated and reordered, that the district court
erred by (1) denying his motions for recusal, (2) not granting
his amended motion in limine, (3) not granting his motion to
compel the discovery related to Clark’s communications with
Haley’s attorney, (4) awarding Haley joint physical custody
and sole legal custody of Theo, (5) incorrectly calculating his
child support obligation, and (6) awarding Haley $20,000 in
attorney fees.
IV. STANDARD OF REVIEW
[1,2] A recusal motion is initially addressed to the discre-
tion of the judge to whom the motion is directed. Thompson
v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d
589 (2019). An abuse of discretion occurs when a district court
bases its decision upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Conley v. Conley, ante p. 98, 11 N.W.3d
671 (2024).
[3,4] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302, 984
N.W.2d 596 (2023). The party asserting error in a discovery
ruling bears the burden of showing that the ruling was an abuse
of discretion. Moreno v. City of Gering, 293 Neb. 320, 878
N.W.2d 529 (2016).
[5] In a dissolution action or modification of a decree
related to child custody, visitation, or support, an appellate
court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial judge
in his or her determinations regarding custody, child support,
division of property, alimony, and attorney fees. See Parde v.
Parde, 313 Neb. 779, 986 N.W.2d 504 (2023).

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V. ANALYSIS
1. Recusal
Tyson assigns the district court erred when it denied his
motions for recusal. He argues the court displayed bias against
him by making rulings without evidence and proceeding with-
out reason in many of its decisions. More specifically, he
asserts the court demonstrated bias when it temporarily modi-
fied the custody arrangement without any legal basis, issued
a temporary custody modification that gave “a mentally ill
addict who had not had an overnight visit with her son in over
3 years” more parenting time, overruling almost every objec-
tion made by his attorney, and being directly hostile toward
him and his attorney. Brief for appellant at 13.
[6] To demonstrate that a trial judge should have recused
himself or herself, the moving party must show that a reason-
able person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard
of reasonableness, even though no actual bias or prejudice was
shown. Timothy L. Ashford, PC LLO v. Roses, supra. See, also,
State v. Ezell, 314 Neb. 825, 993 N.W.2d 449 (2023) (stating
question is not simply whether someone could conceivably
question judge’s impartiality).
[7] The Nebraska Revised Code of Judicial Conduct requires
that “‘[a] judge shall hear and decide matters assigned to
the judge, except when disqualification is required . . . .’”
In re Interest of A.A., 307 Neb. 817, 860, 951 N.W.2d 144,
176 (2020), supplemented by 308 Neb. 749, 957 N.W.2d 138
(2021). The code further states that “‘[a] judge shall disqualify
himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned . . . .’” Id. Under
the code, such instances in which the judge’s impartiality
might reasonably be questioned specifically include where
“‘[t]he judge has a personal bias or prejudice concerning a
party or a party’s lawyer . . . .’” Id. However, there exists a
presumption of judicial impartiality, and a party alleging that

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a judge acted with bias or prejudice bears a heavy burden of
overcoming that presumption. Id.
[8] We first note that although Tyson’s assignment of error
takes issue with multiple actions of the district court judge,
he fails to specify most of them with any particularity. For
instance, his brief argues the court was biased because it over-
ruled every proper objection made by his counsel. However,
Tyson fails to cite to any of these instances in the record.
Tyson also asserts the court displayed bias by modifying the
custody arrangement on a temporary basis when there was no
basis in law for such orders. But again, Tyson provides no
citations to the record and fails to offer any legal argument
to support this claim. It is not the duty of a court to scour
the record in search of facts that might support a claim. In re
App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196
(2020). The only issue Tyson provides any meaningful cita-
tion for in this assignment is his allegation that the court was
openly hostile toward him and his attorney. Because of this,
we limit our review of this assignment to whether the district
court judge’s alleged hostility displayed bias to the point the
judge should have recused herself.
The examples Tyson cites of hostility displayed by the dis-
trict court judge include the judge’s relaying an in-chambers
conversation with the parties’ counsels where Tyson’s attorney
disagreed with the judge’s articulation of what they discussed
and the judge’s expressing frustration that Tyson was not
doing what she wanted when Theo refused to go on Haley’s
visits. Another example was a colloquy between the judge
and Tyson’s attorney after his attorney objected to one of
Newring’s answers as nonresponsive:
[Tyson’s attorney:] Objection. Nonresponsive.
THE COURT: Overruled.
[Tyson’s attorney:] It’s a yes-or-no question, Judge.
THE COURT: You’re asking him a question, he’s
answering it. Let him answer.
[Tyson’s attorney:] Judge, it’s a yes-or-no question.

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THE COURT: Really? Okay. We’ll make sure every-
thing is exactly how you want it.
[Tyson’s attorney:] I don’t wish to have an argument
with the Court. On cross-examination it’s primarily what
we elicit.
He also cites another colloquy between his attorney and the
judge:
[Haley’s attorney:] Objection. Lacks foundation.
THE COURT: Sustained.
[Tyson’s attorney:] Offer of proof.
THE COURT: No.
[Tyson’s attorney:] The Court’s denying me the oppor-
tunity for an offer of proof?
THE COURT: I am, because we’ve gone over all this,
this prior testimony.
[Tyson’s attorney:] So that’s a “no,” Judge?
THE COURT: That’s my decision. Yes.
And lastly, Tyson cites to the following back-and-forth that
occurred during Theo’s in-chambers testimony:
[Tyson’s attorney:] Judge, I’d like the record to reflect
the child is weeping, the child is crying.
THE COURT: Weeping is not what’s happening. He is
not — there’s not even tears going down his face.
[Tyson’s attorney:] He’s sniffling.
THE COURT: We got him some water. [Tyson’s attor-
ney,] you wanted to call him as a witness —
[Tyson’s attorney:] I understand.
THE COURT: — and that’s what we’re doing. This is
what happens.
[Tyson’s attorney:] I’m stating for the record what the
demeanor of the witness is at this time, because it won’t
be otherwise reflected.
THE COURT: That’s great, but I also want the record
to reflect that you wanted him called and these are the
kinds of questions that get asked of an 11-year-old in
this situation.

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We determine that Tyson fails to overcome the presump-
tion of judicial impartiality. None of the cited instances of
conduct by the district court, or even when the conduct is
viewed together, rise to the level where a reasonable person
who knew the circumstances of the case would question the
judge’s impartiality under an objective standard of reasonable-
ness. There is a stark contrast between instances where a judge
expresses frustration toward an attorney and instances that
validly bring a judge’s impartiality into question. Accordingly,
we determine that the district court did not abuse its discretion
in denying Tyson’s motions for recusal.
2. Motion in Limine
Tyson next assigns the district court erred by not granting
his motion in limine that requested the exclusion of Newring’s
and Blotcky’s testimonies. We determine this assignment fails
because Tyson did not assign the admission of the experts’
testimonies at trial as error.
[9,10] A motion in limine is a procedural step to prevent
prejudicial evidence from reaching the jury. State v. Ferrin,
305 Neb. 762, 942 N.W.2d 404 (2020). It is not the office of
a motion in limine to obtain a final ruling upon the ultimate
admissibility of the evidence. Id. Therefore, when a court over-
rules a motion in limine to exclude evidence, the movant must
object when the particular evidence is offered at trial in order
to predicate error before an appellate court. Id. An appellant
who has assigned only that the district court erred in denying
a motion in limine has not triggered appellate review of the
evidentiary ruling at trial. Id. Because Tyson’s assignment of
error challenges only the court’s ruling on the motion in limine,
it presents nothing for appellate review.
3. Motion to Compel
Tyson next assigns the district court erred by not granting
his motion to compel the discovery related to Clark’s com-
munications with Haley’s attorney. Haley asserts the court did

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not err because this information was protected by attorney-
client privilege.
[11,12] We note that it does not appear from the record that
Tyson ever filed a motion to compel this discovery. Instead,
the record shows the court ruled only upon Haley’s objection
to Tyson’s subpoena. This court has long held that to be con-
sidered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. Toro v. Toro, 30 Neb. App. 158, 966
N.W.2d 519 (2021). And while we acknowledge that leeway
is given in other circumstances when a title does not reflect
the substance of an argument, we have routinely applied strict
standards to assignments of error. See In re Guardianship
& Conservatorship of Maronica B., 314 Neb. 597, 603, 992
N.W.2d 457, 462 (2023) (“[w]hen the title of a filing does not
reflect its substance, it is proper for a court to treat a pleading
or motion based on its substance rather than its title”). But see
Daniel L. Real, Nebraska Appellate Practice and Procedure
§ 10:4 at 94 (2024) (“[i]t is crucial to recognize the necessity
of care in presenting [the assignments of error section] of the
brief, as the appellate court’s consideration of the case will
be limited only to errors that are both clearly assigned in this
section and clearly discussed in the argument section of the
brief”). Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. State v. Brennauer,
314 Neb. 782, 993 N.W.2d 305 (2023).
The lack of a motion to compel also has an important
impact on the burden of proof for this assignment. Toro
v. Toro, supra. If Tyson had filed a motion to compel the
requested discovery, the district court would have had to
follow the guidelines prescribed in Greenwalt v. Wal-Mart
Stores, 253 Neb. 32, 567 N.W.2d 560 (1997). In short, those
guidelines place the burden of proof on the party asserting the
attorney-client privilege. Id. But Tyson did not file a motion
to compel. See Neb. Ct. R. Disc. § 6-337 (rev. 2025). Instead,

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the court ruled on Haley’s objection. With this posture, Tyson
could only assign the district court’s ruling on Haley’s objec-
tion as error. Because of this, this assignment of error is no
different than any other discovery ruling where Tyson bears
the burden of demonstrating that the court’s decision was an
abuse of discretion. See Moreno v. City of Gering, 293 Neb.
320, 326, 878 N.W.2d 529, 534 (2016) (“[d]ecisions regarding
discovery are directed to the discretion of the trial court, and
will be upheld in the absence of an abuse of discretion”).
[13] Although Tyson’s assignment of error takes issue with
a ruling on a nonexistent motion, we elect to review this
assignment for plain error. Plain error is error plainly evident
from the record and of such a nature that to leave it uncor-
rected would result in damage to the integrity, reputation,
or fairness of the judicial process. State v. Brennauer, supra.
Given that there is no evidence as to whether the documents
sought were protected by Clark’s attorney-client privilege, we
are unable to determine that the court plainly erred. Except
for the arguments made at the hearing on Haley’s objection
to the subpoena, we have no evidence as to what the emails
between Clark and Haley’s attorney contained, when Clark
hired Haley’s attorney, and whether their communications
were privileged. Without any further information, we are
unable to determine whether the privilege applied or whether
the district court abused its discretion in sustaining Haley’s
objection. Accordingly, we determine the court did not plainly
err in sustaining Haley’s objection to Tyson’s subpoena.
4. Modification of Physical
and Legal Custody
[14,15] Tyson next assigns the district court erred by
awarding Haley joint physical custody and sole legal custody
of Theo. Custody of a minor child will not ordinarily be
modified absent a material change in circumstances, which
shows either that the custodial parent is unfit or that the best
interests of the child require such action. Conley v. Conley,

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ante p. 98, 11 N.W.3d 671 (2024). It is the burden of the
party seeking modification to show a material change in cir-
cumstances. Id. Specifically, the movant must show two ele-
ments: First, that since entry of the most recent custody order,
there has been a material change in circumstances that affects
the child’s best interests, and second, that it would be in the
child’s best interests to change custody. Id.
[16] Consideration of the child’s best interests involves a
combination of both mandatory and permissive factors. Id.
Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) requires that
certain factors must be considered, including (1) the relation-
ship of the child to each parent prior to the commencement of
the action; (2) the desires and wishes of a sufficiently mature
child, if based on sound reasoning; (3) the general health, wel-
fare, and social behavior of the child; (4) credible evidence of
abuse inflicted on any family or household member; and (5)
credible evidence of child abuse or neglect or domestic inti-
mate partner abuse. Conley v. Conley, supra. Other relevant
considerations that may also be considered include the stabil-
ity of the child’s existing routine, minimization of contact
and conflict between the parents, and the general nature and
health of the child. Id. No one factor is dispositive, and vari-
ous factors may weigh more or less heavily, depending on the
case. Id.
(a) Was There Material Change
in Circumstances?
Tyson argues there was no material change in circumstances
that warranted the modification because Haley was, and still
is, a “mentally ill disabled drug user” whose “prognosis in
remaining sober is guarded at best.” Brief for appellant at 19.
We determine that the district court did not abuse its discre-
tion in determining there was a material change in circum-
stances affecting Theo’s best interests because Tyson did not
comply with the visitation schedule outlined in the October 2,
2019, order and has continued to alienate Haley from Theo.

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Although Haley met the conditions to begin visitations with
Theo in November 2020, Tyson did not allow her any contact
with him until the court ordered it in June 2021. But even
when he complied with the court’s order, his influence over
Theo led to the continued alienation of Haley. After going on
two visits in June and July 2021, Theo refused to participate
in any further visitations until the court amended the parenting
schedule in March 2023.
Theo’s negative view of Haley and reluctance to participate
in visits with her coincide with Blotcky’s description of paren-
tal alienation. Blotcky explained how Theo’s view of Haley
was “totally negative” and counter to a child’s instinct to seek
a positive relationship with both parents. Further, he did not
believe Haley’s absence was a legitimate reason for Theo’s
extreme feelings. Given this, Blotcky opined that Tyson was
the primary cause of Theo’s reluctance to form a relationship
with Haley. Batter expressed a similar belief that Tyson was at
least partially responsible for Theo’s anger toward Haley. And
Newring generally believed that Tyson’s influence over Theo
had led him to be “programmed[, instructed,] or coached” to
mistrust her.
Given Tyson’s noncompliance with the October 2, 2019,
parenting plan and Theo’s continued alienation of Haley, we
determine that it was neither unreasonable nor untenable for
the district court to find a material change in circumstances
had occurred that affected Theo’s best interests. Therefore,
we determine the district court did not abuse its discretion in
finding that there was a material change in circumstances that
warranted a modification of custody.
(b) Did District Court Err When It Awarded
Haley Joint Physical Custody?
Tyson generally argues that modifying the physical custody
arrangement was not in Theo’s best interests because Haley
exhibits an inability to exert parental authority, was the rea-
son for their strained relationship, and continues to pose risks

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to his safety. We determine the court did not abuse its discre-
tion in awarding Haley joint physical custody because Haley
does not pose the risks Tyson asserts and having a relation-
ship with Haley is in Theo’s best interests.
The evidence does not support Tyson’s assertion that Haley
poses undue risks to Theo. After completing a parenting assess-
ment for Haley, Newring opined that there was no reasonable
basis to limit her parenting time. And while Haley’s history of
drug addiction places her at a continuous threat of relapse, the
evidence demonstrates that she has made meaningful changes
to mitigate those risks. Haley graduated from Community
Alliance and drug court in February 2022, has been sober
for 3½ years, and now attends multiple classes to address her
problems. As Newring explained, methamphetamine relapses
typically occur early on in a person’s sobriety. So, while
Haley’s risk of relapse will never be zero, the fact that she has
been sober for multiple years reduces that risk.
In addition, to further lower her risk of relapse, Haley
continues to attend multiple weekly meetings for Alcoholics
Anonymous, 	Narcotics 	Anonymous, 	and 	“Dual 	Recovery
Anonymous.” With these changes, she was able to progress
through the October 2, 2019, parenting plan to achieve less
restrictive visitations with Theo. Given her multiyear history
of success in combating her problems, we determine that she
does not currently pose an undue risk to Theo.
The evidence also demonstrates that having a relationship
with Haley is in Theo’s best interests and that there were
barriers to their relationship under the prior custody arrange-
ment. There was much evidence presented at trial regarding
Theo’s negative attitude toward her and the perceived causes
of that negativity. Pasqua believed that Theo was angry at
Haley because he felt abandoned by her. Batter talked about
how Theo felt sad at Haley’s house and attributed some
of the difficulty in reestablishing a relationship to Tyson’s
influence. Blotcky discussed Theo’s totally negative attitude
toward Haley and stated that Tyson was the primary cause of

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Theo’s alienating her. Newring’s report found that Tyson had
either intentionally or inadvertently programmed and coached
Theo to have negative feelings toward Haley that inhibited
their relationship. And Theo discussed how he felt lonely and
depressed at Haley’s house, did not care about forming a rela-
tionship with her, and preferred to spend time with Tyson.
Beyond these testimonies, the numerous videos depicting
Haley’s failed attempts to pick up Theo from Tyson’s house
illustrate Theo’s reluctance to build a relationship with her.
And even though there have been successful visits since
Tyson began dropping Theo off at Haley’s house, Theo still
expresses negative attitudes toward her. Importantly, Theo’s
articulation of his time with Haley contrasts with her account.
While Theo said he and Haley rarely did things during her
parenting time, Haley listed activities they did together and
provided numerous photographs of them enjoying time with
one another.
Because it was generally agreed that having a relationship
with Haley was in Theo’s best interests, we cannot say that the
court’s modification of custody was untenable or unreasonable.
We acknowledge there was evidence that demonstrated
Tyson was making efforts to encourage Theo to form a rela-
tionship with Haley. Beyond Tyson’s own testimony, Theo said
that Tyson never disparaged her and encouraged him to go on
the visits. Vogel also stated that Tyson was taking the appropri-
ate steps in encouraging Theo’s relationship with Haley while
still being honest about what occurred previously. And Pasqua
stated that Tyson was willing to encourage Theo to build a
relationship with Haley. However, even if Tyson was encour-
aging Theo in the ways mentioned, the evidence still clearly
shows a barrier to Haley and Theo’s relationship was caused,
at least in part, by Tyson’s influence over him.
Given Theo’s apparent inability to form a relationship with
Haley under the prior custody arrangement, we determine the
court did not abuse its discretion in giving Haley joint physi-
cal custody of Theo. There was sufficient evidence to justify

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the court’s decision to give Haley joint physical custody in the
hopes that such a change would limit Tyson’s influence over
Theo and benefit his relationship with Haley.
(c) Did District Court Err When It Awarded
Haley Sole Legal Custody?
[17,18] We next determine the court did not abuse its dis-
cretion in determining that it was in Theo’s best interests to
award Haley sole legal custody. Neb. Rev. Stat. § 43-2922(11)
(Cum. Supp. 2024) defines “legal custody” as the “authority
and responsibility of the parents for making fundamental deci-
sions regarding the child’s welfare, including choices regard-
ing education and health.” Courts typically do not award joint
legal custody when the parties are unable to communicate
effectively. Schmeidler v. Schmeidler, 25 Neb. App. 802, 912
N.W.2d 278 (2018). Where the parties are unable to communi-
cate and trust one another, joint decisionmaking by the parents
is not in the child’s best interests. Id.
The evidence demonstrates that Haley and Tyson are not
able to effectively communicate. Examples of this include the
argument that led to the police being called on June 19, 2021,
when Haley attempted to pick up Theo from Tyson’s house,
and the series of emails where Tyson expressed frustration
about Haley’s attending Theo’s swim meets and volunteering at
his school on Valentine’s Day. Notably, regarding the incident
at the school, once Haley indicated that she was still going,
Tyson allowed Theo to be absent that day.
Given their inability to effectively communicate and Theo’s
exhibited signs of parental alienation of Haley, we determine
the court’s decision to give Haley sole legal custody was nei-
ther untenable nor unreasonable. When Tyson had sole legal
custody, he created obstacles to Haley and Theo’s relation-
ship. He prohibited Haley from visiting Theo and engaged
in behaviors that allowed for her alienation. As multiple wit-
nesses testified that having a relationship with Haley was in
Theo’s best interests, Tyson’s actions displayed an inability

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to make good decisions for Theo. Due to the negative impact
that Tyson’s having sole legal custody had on Theo’s relation-
ship with Haley and our lack of confidence in the parties’
abilities to effectively handle a joint legal custody relation-
ship, we determine the court did not abuse its discretion in
awarding Haley sole legal custody of Theo.
5. Child Support
Tyson next assigns the district court erred in its calculat-
ing of his child support obligation. He argues that the court
adopted Haley’s calculation without considering the amount
he paid to support his other children. He asserts that the
introduction of his tax returns from 2021 and 2022 prove the
existence of these other children and that he should have been
given a credit for the regular support he provides them.
[19,20] In general, child support payments should be set
according to the guidelines established pursuant to Neb. Rev.
Stat. § 42-364.16 (Reissue 2016). Hajenga v. Hajenga, 257
Neb. 841, 601 N.W.2d 528 (1999). However, the trial court
may deviate from the guidelines whenever the application of
the guidelines in an individual case would be unjust or inap-
propriate. Prochaska v. Prochaska, 6 Neb. App. 302, 573
N.W.2d 777 (1998). In Lodden v. Lodden, 243 Neb. 14, 497
N.W.2d 59 (1993), the Supreme Court found that the trial
court did not abuse its discretion when it failed to consider
the father’s obligation to provide support for the child of his
second marriage in determining the proper amount of sup-
port for the child of his first marriage. The court noted that
the guidelines “do not provide for an automatic deduction for
the support of children of subsequent marriages.” Lodden v.
Lodden, 243 Neb. at 19-20, 497 N.W.2d at 62. See Neb. Ct. R.
§ 4-205(E) (rev. 2016) (“credit may be given for biological or
adopted children for whom the obligor provides regular sup-
port”) (emphasis supplied).
However, in State on behalf of S.M. v. Oglesby, 244 Neb.
880, 510 N.W.2d 53 (1994), the Supreme Court reversed the

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trial court’s child support determination because the court was
unable to ascertain if the trial court considered the father’s
obligation to his present family and whether that obligation
warranted a deviation from the guidelines. The court stated:
If the support ordered by the court in this case gives no
consideration at all to the present children, we find that
the trial court abused its discretion in not first deter-
mining that, under the particular facts of this case, the
strict application of the guidelines would be unjust or
inappropriate, as set out in the Nebraska Child Support
Guidelines . . . .
State on behalf of S.M. v. Oglesby, 244 Neb. at 886, 510
N.W.2d at 57-58.
[21] In the present case, the district court did not consider
the amount of support Tyson provided to his other children.
In adopting Haley’s calculation of child support, the court
adopted her claim that she and Tyson each paid $0 for the
“Regular Support for Other Children,” although they each have
children with other partners. However, upon a review of the
record, it does not appear that Tyson ever requested, orally or
in writing, for the court to grant him a credit for the support he
provides his other children. A trial court cannot err in failing
to decide an issue not raised, and an appellate court will not
consider an issue for the first time on appeal that was not pre-
sented to or passed upon by the trial court. Walker v. Probandt,
29 Neb. App. 704, 958 N.W.2d 459 (2021).
To the extent Tyson asserts the court should have granted
him a credit absent a specific request, we determine that he
failed to provide the court with the necessary evidence to
make such a calculation. While Tyson points to his tax returns
from 2021 and 2022 as evidence of the support he provides
his other children, those returns only list those children as
dependents and do not distinguish between his and his wife’s
incomes. More so, the record does not contain Tyson’s W-2
form from 2022 or 2023, his 2023 tax return, or any paystubs
after May 2023. In addition, Tyson did not offer his own

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proposed child support worksheet, nor did he object to the
offer of Haley’s proposed child support worksheet—notwith-
standing that Haley’s was only received as an aid to the court.
[22] Accordingly, there is no monetary figure that the court
could have applied to Haley’s calculation to give Tyson the
deduction he seeks. So, although the court may have had an
obligation under State on behalf of S.M. v. Oglesby, supra,
to consider the amount of support Tyson provided his other
children, there was nothing in the record for it to consider.
The district court cannot err by failing to consider something
not in the record. See Cain v. Custer Cty. Bd. of Equal., 315
Neb. 809, 823, 1 N.W.3d 512, 524 (2024) (“[a] fact finder
can rely only on evidence actually offered and admitted at
trial and is not permitted to rely on matters not in evidence”).
Consequently, we are unable to determine the district court
abused its discretion in not considering Tyson’s support for his
other children when there was insufficient evidence introduced
for the court to consider in its calculation.
6. Attorney Fees
Tyson next assigns the district court erred in awarding Haley
$20,000 in attorney fees. He argues the fees were improper
because he only defended against Haley’s counterclaim, the
court did not make a finding that the fees were reasonable, and
the court did not inquire into the relative economic circum-
stances of the parties.
[23-25] Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recov-
ery of attorney fees. Hawks v. Hawks, 32 Neb. App. 70, 993
N.W.2d 688 (2023). Customarily, attorney fees are awarded
only to prevailing parties or assessed against those who file
frivolous suits. Id. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
Winkler v. Winkler, 31 Neb. App. 162, 978 N.W.2d 346 (2022).
Thus, there was authority, in this modification of a dissolution

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decree case, for the awarding of attorney fees. See Garza v.
Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
[26] It has been held that in awarding attorney fees in a dis-
solution action, a court shall consider the nature of the case,
the amount involved in the controversy, the services actually
performed, the results obtained, the length of time required for
preparation and presentation of the case, the novelty and diffi-
culty of the questions raised, and the customary charges of the
bar for similar services. Id. And while the Supreme Court has
said that it will not require an affidavit to support an attorney
fee award, it noted that providing an affidavit is always the
best practice. See id.
Haley’s attorney provided an affidavit to support the attor-
ney fee award. This affidavit is 45 pages long and claims 221
hours 21 minutes of legal services spanning from August 24,
2021, until June 12, 2023. For this work, Haley was billed
$87,170. The affidavit also approximates an additional $6,000
for the anticipated expense of a 16-hour trial.
We determine the district court did not abuse its discretion
in awarding Haley $20,000 in attorney fees. In its order, the
court stated that it was awarding the fees because Haley was
the prevailing party and that Tyson had unnecessarily pro-
longed the case by interfering with the reunification process.
These proceedings took place over the course of several years
and involved the taking of depositions, numerous motions to
compel and to show cause, hearings on those motions, and a
multiday trial. With this history, along with Haley’s attorney’s
affidavit displaying an approximate amount of $93,170 in legal
fees, we cannot conclude that awarding Haley, as the prevail-
ing party, $20,000 in attorney fees was unreasonable or an
abuse of discretion.
VI. CONCLUSION
We determine the district court did not abuse its discretion
by not recusing itself. We do not address Tyson’s assignment
of error concerning the denial of his motion in limine because

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he failed to assign the ultimate admission of the evidence at
trial as error. We determine the district court did not plainly
err in denying Tyson’s motion to compel discovery of Clark’s
communications with Haley’s attorney. We also determine the
court did not abuse its discretion by awarding Haley joint
physical custody and sole legal custody of Theo, not consider-
ing Tyson’s other children in its child support calculation, and
awarding Haley $20,000 in attorney fees.
Affirmed.