Beatty v. Poitier

- 56 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
Brian P. Beatty, appellee, v. Abby G. Poitier,
now known as Abby G. Cullins, appellant.
___ N.W.3d ___
Filed May 30, 2025. 	No. S-23-1026.
1. Attorney Fees: Appeal and Error. On appeal, an appellate court will
uphold a lower court’s decision allowing or disallowing attorney fees for
frivolous or bad faith litigation in the absence of an abuse of discretion.
Allocation of amounts due between offending parties and attorneys is
part and parcel of the determination of the amount of an award and is
reviewed for an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in
matters submitted for disposition.
3. Attorney Fees. Attorney fees and expenses may be recovered in a civil
action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of
attorney fees.
4. Attorney Fees: Costs. Although attorney fees and costs are statuto-
rily allowed in paternity and child support cases, customarily they are
awarded to the prevailing party or assessed against those who file frivo-
lous suits.
5. Attorney Fees. An award of attorney fees depends on multiple factors
that include the nature of the case, the services performed and results
obtained, the earning capacity of the parties, the length of time required
for preparation and presentation of the case, customary charges of the
bar, and the general equities of the case.
6. Dismissal and Nonsuit. The statutory right to voluntary dismissal under
Neb. Rev. Stat. §§ 25-601(Reissue 2016) and 25-602 (Cum. Supp. 2024)
is not a matter of judicial grace or discretion, but neither is it absolute
or without limitation. The scope of the court’s discretion, however,
is narrow.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:53 AM CDT

- 57 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
7. ____. Conditions may be imposed on a plaintiff’s right of dismissal
where justice and equitable principles so require.
8. Actions: Attorney Fees. A frivolous action is one in which a litigant
asserts a legal position wholly without merit; that is, the position is
without rational argument based on law and evidence to support the
litigant’s position.
9. Actions: Attorney Fees: Words and Phrases. The term “frivolous”
as used in Neb. Rev. Stat. § 25-824(4) (Reissue 2016) connotes an
improper motive or legal position so wholly without merit as to be
ridiculous.
10. Actions. Any doubt about whether a legal position is frivolous or taken
in bad faith should be resolved in favor of the one whose legal position
is in question.
Petition for further review from the Court of Appeals, Pirtle,
Chief Judge, and Arterburn and Welch, Judges, on appeal
thereto from the District Court for Douglas County, Molly B.
Keane, Judge. Judgment of Court of Appeals affirmed.
Andrew J. Hilger, of Law Office of Andrew J. Hilger, for
appellant.
Kelly T. Shattuck, of Vacanti | Shattuck | Finocchiaro, for
appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Abby G. Poitier, now known as Abby G. Cullins, filed a
complaint in the district court for Douglas County for modifi-
cation of a previously entered paternity decree but ultimately
sought to voluntarily dismiss her complaint on the day of
trial. The trial court granted the voluntary dismissal without
conditions and proceeded to trial on the counterclaim filed
by Brian P. Beatty. Although Brian was not successful on
his counterclaim, the district court awarded him a portion of
his attorney fees because it found that Abby’s complaint to

- 58 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
modify had been frivolous and interposed solely for delay or
harassment. The Nebraska Court of Appeals affirmed the dis-
trict court’s order. Beatty v. Poitier, No. A-23-1026, 2024 WL
4033568 (Neb. App. Sept. 3, 2024) (unpublished memoran-
dum opinion). We granted Abby’s petition for further review.
We affirm the decision of the Court of Appeals.
STATEMENT OF FACTS
Abby and Brian are the biological parents of S.B., who
was born in 2009. The district court entered a decree in 2017
in which it awarded Brian sole legal and physical custody of
S.B. and ordered Abby to pay child support. The parenting
plan approved by the court provided limited visitation for
Abby until she “complied with the Nebraska Parenting Act”
by completing a second-level parenting course and by partici-
pating in mediation or negotiating a modified parenting plan
that was acceptable to the court. In 2019, the court modified
and reduced Abby’s child support obligation based on the par-
ties’ agreement.
Abby’s Complaint to Modify.
In September 2022, Abby filed a complaint for modifica-
tion in which she alleged that she had complied with the
requirement regarding the parenting course and that she had
attempted mediation with Brian, but that he had refused to par-
ticipate. She requested that the decree be modified to award her
increased parenting time.
Brian filed an answer and counterclaim. In the answer por-
tion of the filing, Brian set forth affirmative defenses to Abby’s
complaint for modification. In the counterclaim portion of
the filing, Brian alleged a material change in circumstances
and requested (1) a modification of child support and (2) a
modification to Abby’s visitation in which visitation would be
limited to occasions S.B. requested it and would take place in
a supervised setting. The counterclaim also sought “an order
that [Abby] pay [Brian’s] attorney fees” and “such other and
further relief as the Court deems just and equitable.”

- 59 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
The record shows that following a stipulated order to com-
pel answers to Brian’s discovery requests, Abby responded
to Brian’s discovery. In her answers to interrogatories, Abby
stated that she was not employed and that she was in arrears in
child support but was reducing the arrearage. She also detailed
a proposed step-by-step visitation plan to assist with raising
S.B. Abby stated that she attempted to contact Brian to set up
visitations and that she had been unable to reach S.B.
On the date the matter was scheduled for trial, Abby filed a
pleading in which she stated that she was dismissing her com-
plaint for modification without prejudice. Brian appeared with
counsel. Abby did not appear at the hearing on her pleading
to dismiss or the trial on Brian’s counterclaim. Her counsel
was present for both. Abby’s counsel clarified that Abby’s
dismissal of her complaint was filed pursuant to “her statutory
right to do so” under Neb. Rev. Stat. § 25-601 (Reissue 2016).
Brian raised an objection generally stating that a dismissal
should be on conditions. Specifically, Brian asked the court
to clarify that should Abby file another complaint for modi-
fication in the future, she would be required to show a mate-
rial change of circumstances from the date of trial. The court
ultimately dismissed Abby’s complaint without conditions and
without prejudice.
Trial on Brian’s Counterclaim.
Following Abby’s request for dismissal, trial on Brian’s
counterclaim proceeded. At the time of trial, S.B. had just
turned 14 years old. Brian testified that Abby had visited S.B.
only seven times in 9 years, had never called, and had not
requested additional visitation in 2022. Brian submitted numer-
ous exhibits and testified as to his concerns about whether
S.B. was endangered as a result of visitation with Abby. In
support of his assertion regarding endangerment, Brian submit-
ted numerous exhibits showing the contents of Abby’s social
media accounts and reflecting her criminal history, the latter
of which included a conviction for solicitation for prostitution.

- 60 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
Brian testified that Abby had texted him “approximately
six” times in the last 3 years, asking questions regarding this
court case, and had not texted to set up visitation. Brian further
testified that Abby had a history of “taking me to court, and
we string this whole thing along, and then she disappears. She
disappeared when we went through the original custody order.
She never bothered to show up.” He stated that in 2019, she
had also changed her mind on the day of trial.
During his closing argument, Brian’s counsel stated that
“there was significant attorney’s fees based on [Abby’s] filing
and opening this case” and then Abby’s dismissing her com-
plaint on the day of trial, and he asserted that Brian should
be awarded attorney fees. Brian testified that he had incurred
almost $10,000 in attorney fees. As part of the request for
attorney fees, the court stated that it had received an attorney
fee affidavit as an exhibit that itemized the charges Brian
incurred in defending the action initiated by Abby. The attor-
ney fee affidavit is not part of the record on appeal.
In 	the 	written 	trial 	order, 	the 	court 	dismissed Abby’s
complaint for modification and found that the modification
requested by Brian was not warranted. The court ordered that
the decree, which was modified in 2019, would not be further
modified and would remain in effect.
In its order, the court also addressed Brian’s request encom-
passed in his counterclaim that he be awarded attorney fees,
as well as his allegation that Abby’s complaint was “frivolous
and filed in an effort to harass” him. The court found that
pursuant to Neb. Rev. Stat. §§ 25-824 and 25-824.01 (Reissue
2016), reasonable attorney fees should be assessed against
Abby because her actions were “frivolous and interposed
solely for delay or harassment.” The court ordered Abby to
pay $1,500 toward Brian’s attorney fees.
Court of Appeals.
Abby appealed the order of attorney fees to the Court of
Appeals. Her sole assignment of error was that the district
court abused its discretion when it awarded attorney fees to

- 61 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
Brian. She generally argued that the district court did not have
jurisdiction to award attorney fees and argued that the court
erred when it found that her complaint was frivolous and was
interposed solely for delay or harassment.
The Court of Appeals affirmed the award of attorney fees.
See Beatty v. Poitier, No. A-23-1026, 2024 WL 4033568 (Neb.
App. Sept. 3, 2024) (unpublished memorandum opinion). It
reasoned that under Neb. Rev. Stat. § 25-603 (Reissue 2016),
when the defendant has presented a setoff or counterclaim, the
defendant has the right to proceed to trial on that claim even
though the plaintiff may have dismissed his or her claim or
failed to appear.
Regarding the district court’s having found Abby’s “action
to be frivolous and interposed solely for delay or harassment,”
the Court of Appeals found no abuse of discretion. The Court
of Appeals noted facts that supported the order, including that
Abby had not made efforts since 2019 to have a relationship
with S.B. and that she then dismissed her complaint on the
day of trial without any notice.
We granted Abby’s petition for further review.
ASSIGNMENTS OF ERROR
Abby claims, restated, that the Court of Appeals erred when
it (1) determined that Brian’s pending counterclaim empow-
ered the district court to consider whether to assess attorney
fees related to Abby’s complaint that she sought to voluntarily
dismiss and (2) concluded that the district court’s award of
attorney fees in favor of Brian was not an abuse of discretion.
STANDARDS OF REVIEW
[1] On appeal, an appellate court will uphold a lower court’s
decision allowing or disallowing attorney fees for frivolous or
bad faith litigation in the absence of an abuse of discretion.
Trausch v. Hagemeier, 313 Neb. 538, 985 N.W.2d 402 (2023).
Allocation of amounts due between offending parties and attor-
neys is part and parcel of the determination of the amount of
an award and is reviewed for an abuse of discretion. Id.

- 62 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
[2] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
ANALYSIS
This is a review of a decision by the Court of Appeals that
affirmed an award of attorney fees to Brian, despite his other-
wise unsuccessful counterclaim, for fees that were incurred as
a result of Abby’s complaint that she voluntarily dismissed. We
agree with the Court of Appeals that the trial court did not err
when it considered Brian’s counterclaim seeking attorney fees
and that an assessment of a portion of Brian’s attorney fees
was not an abuse of discretion under §§ 25-824 and 25-824.01.
The District Court Retained Authority
to Consider Sanctions Requested
by Brian’s Counterclaim.
We first address Abby’s claim that the district court lacked
authority to consider Brian’s counterclaim for attorney fees
based on frivolousness under §§ 25-824 and 25-824.01. As
explained below, given Brian’s allegation of entitlement to
attorney fees asserted in his counterclaim, we determine that
the district court had jurisdiction to consider attorney fees.
[3-5] As a general rule, attorney fees and expenses may be
recovered in a civil action only where provided for by statute
or when a recognized and accepted uniform course of pro-
cedure has been to allow recovery of attorney fees. Mann v.
Mann, 316 Neb. 910, 7 N.W.3d 845 (2024). Although attorney
fees and costs are statutorily allowed in paternity and child
support cases, customarily they are awarded to the prevail-
ing party or assessed against those who file frivolous suits.
See id. An award of attorney fees depends on multiple factors
that include the nature of the case, the services performed and
results obtained, the earning capacity of the parties, the length
of time required for preparation and presentation of the case,

- 63 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
customary charges of the bar, and the general equities of the
case. Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d
536 (2016).
Abby claims that the district court lacked jurisdiction to
consider an award of attorney fees because the complaint for
modification was dismissed. However, the claim for attorney
fees originated in Brian’s counterclaim, which had not been
dismissed, and the trial court considered Brian’s prayer for
relief as an adequate request for attorney fees. Section 25-603
provides that “[i]n any case where a setoff or counterclaim has
been presented, the defendant shall have the right of proceed-
ing to the trial of his claim, although the plaintiff may have
dismissed the action or failed to appear.” We agree with the
Court of Appeals that under § 25-603, the district court prop-
erly retained jurisdiction of the case and was able to proceed on
Brian’s counterclaim as it related to attorney fees. Cf. Kansas
Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865
(2002) (disallowing attorney fees where there was no request
for fees prior to dismissal).
[6] For completeness, we observe that although Abby’s vol-
untary dismissal was granted by the trial court, the entitlement
of a party to voluntary dismissal is not absolute or without
limitation. We have stated that the statutory right to voluntary
dismissal under § 25-601 and Neb. Rev. Stat. § 25-602 (Cum.
Supp. 2024) is not a matter of judicial grace or discretion, but
neither is it absolute or without limitation. Schaaf v. Schaaf,
312 Neb. 1, 978 N.W.2d 1 (2022). The scope of the court’s
discretion, however, is narrow. See John P. Lenich, Nebraska
Civil Procedure § 34:5 (2025). See, also, Kansas Bankers
Surety Co. v. Halford, supra.
[7] Conditions may be imposed on a plaintiff’s right of
dismissal where justice and equitable principles so require.
See Millard Gutter Co. v. American Family Ins. Co., 300
Neb. 466, 915 N.W.2d 58 (2018). Given the equitable prin-
ciples and reasoning identified by the trial court in this case,
in the exercise of its power under §§ 25-824 and 25-824.01,

- 64 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
we believe it would have been advisable for the district court
to have imposed attorney fees on Abby as a condition of the
order of dismissal. However, the absence of conditions is not
fatal to Brian’s entitlement to attorney fees.
Attorney Fee Sanction Was Not
an Abuse of Discretion.
Abby also claims that the trial court erred when it found
that she engaged in frivolousness, delay, or harassment. We
reject this argument and affirm the decision of the Court of
Appeals that affirmed the order that granted Brian’s request
for attorney fees.
Section 25-824(4) provides:
The court shall assess attorney’s fees and costs if, upon
the motion of any party or the court itself, the court finds
that an attorney or party brought or defended an action
or any part of an action that was frivolous or that the
action or any part of the action was interposed solely for
delay or harassment. If the court finds that an attorney or
party unnecessarily expanded the proceedings by other
improper conduct, including, but not limited to, abuses
of civil discovery procedures, the court shall assess attor-
ney’s fees and costs.
[8-10] A frivolous action is one in which a litigant asserts
a legal position wholly without merit; that is, the position is
without rational argument based on law and evidence to sup-
port the litigant’s position. SID No. 596 v. THG Development,
315 Neb. 926, 2 N.W.3d 602 (2024). The term “frivolous”
as used in § 25-824(4) connotes an improper motive or legal
position so wholly without merit as to be ridiculous. Id. We
are mindful that any doubt about whether a legal position is
frivolous or taken in bad faith should be resolved in favor of
the one whose legal position is in question. Id. Attorney fees
for a bad faith action under § 25-824 may also be awarded
when the action is filed for purposes of delay or harassment.

- 65 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809
N.W.2d 469 (2011).
The evidence in this case, as informed in part by prior
litigation between the parties, showed that Abby’s claims were
interposed for the purpose of delay or harassment or were
frivolous; on the record, she did not have a reasonable expec-
tation or rational argument in favor of greater visitation. In
this regard, the court credited Brian and noted evidence that
although Abby sought regular parenting time in this case, she
had made no effort to have a relationship with S.B. since 2019,
with the exception of one unauthorized visit to S.B.’s school in
2020. The court also noted that Abby had moved to dismiss the
complaint on the day of trial, after having filed the complaint
over 1 year earlier; she had failed to comply with Brian’s dis-
covery requests until the court entered an order to comply; and
she had failed to appear at the trial to defend against Brian’s
counterclaim. Brian testified at trial that Abby had previously
dismissed a complaint to modify on the day of trial in 2019
without any notice to the court or to Brian.
As for the amount of fees assessed against Abby, after
considering the factors set forth in § 25-824.01, the trial
court awarded $1,500 of the $10,000 Brian had requested.
The trial court did not include fees related to the hearing on
Brian’s counterclaim. Insofar as the attorney fees awarded were
incurred in defending Abby’s action, we agree with the lower
courts that such fees were reasonable.
The trial court’s reasons for assessing attorney fees are sup-
ported by the record. We cannot say that the Court of Appeals
erred when it determined that the trial court was within its dis-
cretion to assess $1,500 in attorney fees against Abby pursuant
to §§ 25-824 and 25-824.01.
CONCLUSION
We agree with the Court of Appeals that the trial court did
not err when it took up the question of attorney fees asserted
in Brian’s counterclaim and then assessed fees against Abby

- 66 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BEATTY v. POITIER
Cite as 319 Neb. 56
under §§ 25-824 and 25-824.01. We also agree that the attor-
ney fees were reasonable. For the reasons set forth above, we
affirm the decision of the Court of Appeals.
Affirmed.