Donscheski v. Donscheski

parties could not afford to pay the fee. In the instant case, the
district court did not complete this process until June 30, when
it fixed the fee that each party would pay. Thus, there was no
final, appealable order until June 30, which was after Dennis
filed his appeal. Because the May 5 order from which Dennis
appeals was not a final, appealable order, we lack jurisdiction
over the instant appeal.
CONCLUSION
Because the order from which Dennis attempted to appeal
was not a final, appealable order, we lack jurisdiction to con-
sider the merits of this appeal.
A ppeAl dismissed.
BArry A. donscheski , AppellAnt And cross -Appellee ,
v. sherry A. donscheski , now known As
sherry A. norris , Appellee
And cross -AppellAnt.
771 N.W.2d 213
Filed July 28, 2009. 	No. A-08-1131.
1. Child Custody: Appeal and Error. Child custody determinations are initially
entrusted to the discretion of the trial court, and although reviewed de novo on
the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Final Orders: Words and Phrases. An order is final when no further action of
the court is required to dispose of the pending cause; however, if the cause is
retained for further action, the order is interlocutory.
3. Child Custody. Ordinarily, custody of a minor child will not be modified unless
there has been a material change in circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such action.
4. Modification of Decree: Child Custody: Proof. The party seeking modification
of child custody bears the burden of showing a change in circumstances.
5. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
6. Child Custody. When parents are unable or unwilling to execute parenting duties
jointly, the result is that one or the other must be given primary responsibility for
the child’s care.
DONSCheSkI v. DONSCheSkI 	807
Cite as 17 Neb. App. 807
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

7. ____. According to Neb. Rev. Stat. § 43-2923(1) (Reissue 2008), the best interests
of the child require a parenting arrangement which provides for a child’s safety,
emotional growth, health, stability, and physical care and regular and continuous
school attendance and progress.
8. ____. While the wishes of the child are not controlling in the determination of
custody, if a child is of sufficient age and has expressed an intelligent preference,
the child’s preference is entitled to consideration.
9. Attorney Fees: Appeal and Error. The district court’s decision on a request
for attorney fees is reviewed de novo on the record and will be affirmed in the
absence of an abuse of discretion.
Appeal from the District Court for Douglas County: JAmes
t. G leAson, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Stephanie Weber Milone for appellant.
Stephen D. Stroh and Ryan D. Caldwell, of Bianco, Perrone
& Stroh, L.L.C., for appellee.
inBody, Chief Judge, and sievers and cAssel, Judges.
sievers, Judge.
Barry A. Donscheski appeals, and Sherry A. Donscheski,
now known as Sherry A. Norris, cross-appeals from the deci-
sion of the district court for Douglas County denying both
parties’ requests for modification of child custody—includ-
ing Sherry’s request to remove the minor child to Georgia.
The result of the district court’s order was the continuation
of a June 2007 modification order in which the parties had
agreed to a joint custody arrangement. Because the parties are
no longer able to work together as needed for a joint custody
arrangement, particularly one at this distance, we find that
there has been a material change in circumstances warranting
a modification of the joint custody arrangement. We therefore
reverse the decision of the district court and remand the cause
to such court with directions to consider the best interests of
the child, including the child’s in camera testimony regarding
preference, which was error for the trial court not to hear and
consider, and then to award sole custody to either Barry or
Sherry and to make the other appropriate determinations that
necessarily follow from its determination.
808 	17 NeBRASkA APPeLLATe RePORTS

FACTUAL AND PROCeDURAL
BACkGROUND
Barry and Sherry were married on May 22, 1992, and are the
parents of Miller Donscheski, born May 8, 1996. A decree dis-
solving the parties’ marriage was filed on September 29, 1998.
In the decree, the district court adopted the parties’ “Property
Settlement and Custody Agreement” and ordered that Barry
and Sherry were to have joint custody of Miller, with Miller’s
primary residence being with Sherry, subject to Barry’s rights
to reasonable and liberal parenting time. Barry was ordered to
pay child support in the amount of $400 per month.
In April 2006, Barry filed an application to modify the
decree regarding child custody, alleging a material change
in circumstances and asking the court to specifically set out
parenting time. Sherry filed her answer and cross-petition in
May 2006, also alleging a material change in circumstances, in
that her husband obtained a job in Georgia. Sherry requested
permission to remove Miller from Nebraska and asked the dis-
trict court to award Barry reasonable visitation. In an amended
application to modify, Barry asked the court to award him
sole custody of Miller, subject to Sherry’s reasonable rights
of visitation. And in an amended answer and cross-petition,
Sherry asked the district court to award her sole custody of
Miller, subject to Barry’s reasonable rights of visitation. Prior
to trial, Barry and Sherry reached an agreement, which was
adopted by the district court in its order of modification filed
on June 4, 2007.
The June 2007 order of modification provided that Sherry’s
move to Georgia constituted a material change in circum-
stances sufficient to warrant a modification of the decree.
The order also stated: (1) Miller shall not be removed from
Nebraska; (2) Barry and Sherry shall have “shared custody
and parenting time”; and (3) no child support shall be paid
by either party, because the parties agreed to share custody
and travel expenses for Miller between Nebraska and Georgia.
Other terms of the order are not relevant in this appeal, and
we omit such.
The parenting plan adopted by the district court at that time
provided: (1) Miller shall attend school in Nebraska; (2) Sherry
DONSCheSkI v. DONSCheSkI 	809
Cite as 17 Neb. App. 807

shall have Miller one weekend per month, preferably when
there is an extended weekend when the child is out of school;
(3) each party shall have specified holiday visitation; (4)
Sherry shall have Miller for the school spring break each year;
(5) beginning in 2008, Barry shall have exclusive possession of
Miller for up to 3 weeks each summer, and Sherry shall have
exclusive possession of Miller the remainder of the summer;
(6) the parties shall equally divide Miller’s Christmas break,
alternating that portion of the break which contains Christmas
Day; and (7) each party shall have reasonable telephone visita-
tion with Miller.
Five months later, on November 2, 2007, Sherry filed an
application to modify the June order. Sherry alleged that since
the June order, there has been a material change in circum-
stances, in that (1) Barry has assumed the position of deter-
mining all contact by Sherry with Miller; (2) the parties have
been experiencing ongoing conflict and disputes concerning
Sherry’s contact and parenting time with Miller; (3) Sherry,
her husband, and her stepdaughters reside in Georgia; and
(4) Miller has expressed his desire and preference to reside
with Sherry on a full-time basis. Sherry asked the court to
award her full custody of Miller, to allow her to remove Miller
to Georgia, and to award her child support. She also asked
that the district court’s order specify Barry’s parenting time
with Miller.
Barry filed his answer and counterclaim on December 18,
2007, also alleging that there has been a material change in cir-
cumstances since the June order, such material change relating
to communication, arrangements for parenting-time exchanges,
the parties’ respective parenting time, financial provisions,
and the contact between Barry and Miller while Miller is in
Sherry’s care. Barry asked the court to award him full custody
of Miller, to specify Sherry’s parenting time, and to determine
child support issues. On May 29, 2008, Barry filed an applica-
tion and affidavit for citation in contempt, alleging that Sherry
has refused to pay certain travel, medical, and activity expenses
for Miller pursuant to the June 2007 order.
Trial was held on July 31, 2008. Barry, Sherry, and their new
spouses all testified. All parties agree that Barry and Sherry
810 	17 NeBRASkA APPeLLATe RePORTS

can no longer communicate effectively. Barry and Sherry do
not speak to each other, and all communications go through
Barry’s wife. The parties cannot agree on when Miller should
visit Georgia. Sherry accuses Barry of interfering with her con-
tact with Miller when Miller is with Barry, and Barry accuses
Sherry of the same when Miller is with her. In sum, the parties
agree that the joint custody arrangement is no longer working.
The district court denied Sherry’s request that Miller be inter-
viewed in camera, and thus Miller did not testify at trial.
The district court’s unsigned and unfiled journal entry
dated July 31, 2008, states in relevant part: “Court denies
[Sherry’s] motion for removal and change of custody. Court
grants [Barry’s] motion and awards sole custody of [Miller] to
[Barry]. Court’s determination as to parenting time and child
support taken under advisement.”
In its order signed on September 8, 2008, and filed on
September 9, the district court found that there had been no
material change in circumstances since the June 2007 modi-
fication and therefore denied Sherry’s application to modify.
The district court’s journal entry dated September 8, 2008,
stated: “Nothing further under advisement.” On September 9,
Barry filed a motion to alter or amend judgment, alleging that
the court failed to rule on Barry’s applications to modify and
for contempt.
In its order filed on October 15, 2008, the district court
found that in its September order, it failed to address (1)
Barry’s counterclaim seeking modification and (2) Barry’s
contempt citation and request for fees. The district court again
found that there had been no material change in circum-
stances since the June 2007 modification and therefore denied
Barry’s application to modify. The district court stated that
“the stipulated modification of June 4, 2007 remains in full
force and effect and is otherwise unchanged by these proceed-
ings.” The district court ordered Sherry to pay $292.18 for
Miller’s expenses and $250 as reasonable attorney fees relating
to the contempt citation. The district court ordered that except
as modified, the September order remains otherwise in full
force and effect. Barry appeals, and Sherry cross-appeals, the
October 15, 2008, order.
DONSCheSkI v. DONSCheSkI 	811
Cite as 17 Neb. App. 807

ASSIGNMeNTS OF eRROR
Barry alleges that the district court erred in (1) entering a
written order that deviated from, and directly contradicted, the
order the court previously had made in the form of a journal
entry at the conclusion of trial; (2) not further modifying the
decree to award sole custody to Barry and in not further modi-
fying the decree to adjust parenting time to coordinate with
Miller’s school calendar; and (3) not awarding Barry attor-
ney fees.
On cross-appeal, Sherry alleges that the district court erred
in (1) not allowing Miller to testify through an in camera
interview and/or in open court, (2) denying a modification of
the district court’s previous order of June 2007 modifying the
decree, and (3) denying removal of Miller to Georgia.
STANDARD OF ReVIeW
[1] Child custody determinations are initially entrusted to
the discretion of the trial court, and although reviewed de novo
on the record, the trial court’s determination will normally be
affirmed absent an abuse of discretion. Mann v. Rich, 16 Neb.
App. 848, 755 N.W.2d 410 (2008).
ANALYSIS
Effect of Difference Between Journal
Entry and Final Order.
Barry argues that the district court’s written orders of
September 9 and October 15, 2008, maintaining joint custody,
deviated from, and directly contradicted, the order the court
previously had made in the form of a docket entry dated July
31, 2008, at the conclusion of trial granting sole custody to
Barry. Barry argues that the July 31 docket entry is an order
that cannot be arbitrarily modified.
In support of his argument, Barry cites Neb. Rev. Stat.
§ 25-914 (Reissue 2008) (“[e]very direction of a court or
judge, made or entered in writing and not included in a judg-
ment, is an order”). This statute has been in effect for well
over a century, but no appellate decision has ever discussed it.
Neb. Rev. Stat. § 25-1301(1) (Reissue 2008) provides that a
judgment is “the final determination of the rights of the parties
in an action.” Section 25-1301(2) and (3) respectively provide
812 	17 NeBRASkA APPeLLATe RePORTS

that a judgment is not rendered until it is signed by the court,
or a judge thereof, and that a judgment is not entered until it
is file stamped and dated by the clerk of the court. This court,
in Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553,
558-59, 656 N.W.2d 634, 639 (2003), said: “The components
of a series or collection of statutes pertaining to a certain
subject matter which are in pari materia may be conjunc-
tively considered and construed to determine the intent of the
Legislature, so that different provisions of the act are consist-
ent, harmonious, and sensible.”
[2] Consequently, §§ 25-914 and 25-1301 specify the range
of actions available to a judge by defining, first, an order—
which, by definition, is not part of a judgment—and second,
a judgment—which must be a final determination of the rights
of the parties in an action, as well as being both rendered
and entered, before it is a final, appealable order. See State v.
Brown, 12 Neb. App. 940, 687 N.W.2d 203 (2004). Because
the July 31, 2008, journal entry was neither signed nor file
stamped, it did not constitute either a rendition of judgment or
an entry of judgment. Furthermore, the July 31 journal entry
was also not a final order, because it did not dispose of all
issues—the district court specifically left the issues of parent-
ing time and child support under advisement. See Slaymaker
v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000) (order is
final when no further action of court is required to dispose of
pending cause; however, if cause is retained for further action,
order is interlocutory). Thus, Barry’s argument is without
merit, because the journal entry is quite meaningless for our
purposes; it is the final order of October 15 which we review,
and which superseded the interlocutory order contained in the
journal entry.
Did District Court Err in Denying
Removal to Georgia?
Sherry argues that the district court erred in denying the
removal of Miller to Georgia. In order to prevail on a motion
to remove a minor child to another jurisdiction, the custodial
parent must first satisfy the court that he or she has a legitimate
reason for leaving the state. Wild v. Wild, 15 Neb. App. 717,
DONSCheSkI v. DONSCheSkI 	813
Cite as 17 Neb. App. 807

737 N.W.2d 882 (2007). After clearing that threshold, the cus-
todial parent must next demonstrate that it is in the child’s best
interests to continue living with him or her. Id.
Sherry suggests that because she already lives in Georgia,
and because such was contemplated at the time of the June
2007 agreed-upon modification, the “legitimate reason” prong
of a removal case is no longer at issue. We agree because the
parties effectively agreed in June 2007 that there was a legiti-
mate reason for her move to Georgia. however, Sherry is not
the only “custodial” parent, because currently Barry and Sherry
have “shared custody” although they are in different states—a
considerable distance apart. We take the term “shared custody
and parenting time,” as used in the June 2007 order, to encom-
pass both legal and physical custody. Both parents agree that
the current arrangement is not working. Thus, we find that the
question is now whether a material change in circumstances has
occurred that requires modification of the joint custody arrange-
ment. If such modification is warranted, the district court would
necessarily need to “pick a parent” for Miller, after consider-
ing his best interests. Thus, in order for Sherry to be able to
take Miller to Georgia, she would have to establish that it is in
Miller’s best interests that she be his custodial parent, because
the legitimate reason prong of the test for removal has already
been established by way of the earlier modification.
Therefore, the analytical framework for this case, assuming
that there is a material change in circumstances, is that the fac-
tors used in removal cases now come into play—which, at their
core, all go to the child’s best interests. In short, we acknowl-
edge that the factors for determining a child’s best interests are
functionally similar in both removal and modification cases,
although each type of case has a different predicate—a legiti-
mate reason for the move in the former and a material change
in circumstances or parental unfitness in the latter. That said,
we turn to the question of whether there is a material change
in circumstances.
Is Joint Custody Still Appropriate?
Both Barry and Sherry argue that the district court erred
in denying a modification of the June 2007 order, and each
814 	17 NeBRASkA APPeLLATe RePORTS

argues that he or she should have been awarded sole custody
of Miller.
[3-5] Ordinarily, custody of a minor child will not be
modified unless there has been a material change in circum-
stances showing that the custodial parent is unfit or that the
best interests of the child require such action. Tremain v.
Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002). The party
seeking modification of child custody bears the burden of
showing a change in circumstances. Id. A material change in
circumstances means the occurrence of something which, had
it been known to the dissolution court at the time of the initial
decree, would have persuaded the court to decree differently.
Id. Neither party in this case accuses the other of being unfit;
therefore, the question is whether there has been a material
change in circumstances. The district court found no mate-
rial change in circumstances warranting a modification of the
joint custody arrangement. We disagree.
[6] Both parties agree that they can no longer communicate
effectively. Barry and Sherry do not speak to each other, and
all communications go through Barry’s wife. The parties can-
not agree on when Miller should visit Georgia. Sherry accuses
Barry of interfering with her contact with Miller when Miller is
with Barry, and Barry accuses Sherry of the same when Miller
is with her. Thus, there has clearly been a material change in
circumstances that was not anticipated when the court approved
the June 2007 modification, because no court would approve
joint custody under circumstances that the parties describe. We
have said that when parents are unable or unwilling to execute
parenting duties jointly, the result is that one or the other must
be given primary responsibility for the child’s care. See Coffey
v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003). This is
quite clearly such a case. Accordingly, the trial court abused
its discretion in failing to find that there was a material change
in circumstances.
Absence of Evidence of Miller’s Preference.
[7] In determining which parent should be awarded custody,
the district court is to consider the child’s best interests. The
best interests of the child require a parenting arrangement
DONSCheSkI v. DONSCheSkI 	815
Cite as 17 Neb. App. 807

which provides for a child’s safety, emotional growth, health,
stability, and physical care and regular and continuous school
attendance and progress. Neb. Rev. Stat. § 43-2923(1) (Reissue
2008). Based on our review of the record, it is unclear which
custodial arrangement would be in Miller’s best interests.
however, the determination of this would likely have been
aided by Miller’s testimony, and Sherry has assigned error to
the trial court’s refusal to allow such testimony.
Sherry alleged in her application to modify, and again in her
answer to an interrogatory which was in evidence, that Miller’s
preference was to live in Georgia—and while these allegations
do not prove that such is the fact, they do put the trial court on
notice of what the nature of the evidence might be. The record
indicates that Sherry filed a motion to have the court conduct
an in camera interview with Miller. While such motion is not
in our record, there is no dispute that such motion was filed.
Part way through the trial, and pursuant to her motion, Sherry
asked the court to conduct an in camera interview with Miller.
Barry opposed the motion, arguing that Sherry had not met
the threshold requirement of a legitimate reason for the move
or shown a material change in circumstances since the June
2007 order. As said above, proof of a legitimate reason was
not needed, and there quite clearly was a material change in
circumstances, and thus Barry’s objections on these grounds
were not well taken—particularly after all the other evidence
had been adduced. The district court stated that it would not
rule on the motion until it heard all of the evidence. At the end
of the trial, Sherry again requested that the court conduct an in
camera interview with Miller. The court declined to interview
Miller, stating:
[B]ased on all of the evidence that I’ve heard from both
sides, . . . the Court finds no reasonable basis to interview
the child at this point. So I will not interview the child.
I’m not going to bring him in any more in the middle than
he already is. It’s not necessary.
[8] The Nebraska Supreme Court has said that “[w]hile
the wishes of the child are not controlling in the determi-
nation of custody, if a child is of sufficient age and has
expressed an intelligent preference, his preference is entitled to
816 	17 NeBRASkA APPeLLATe RePORTS

consideration.” Miles v. Miles, 231 Neb. 782, 785, 438 N.W.2d
139, 142 (1989). Sherry has alleged that Miller’s preference is
to live in Georgia. At the time of the trial, Miller was 12 years
old and was going to be a seventh grader in the fall. The evi-
dence was that he received mostly A’s and B’s in school. Miller
is of sufficient age and intelligence to be heard, and his pref-
erence, whatever that may be, as well as his reasoning should
have been heard and considered. Although we are not anxious
to see children dragged into custody battles, in some cases,
it may be necessary, and not inappropriate, particularly when
a child is of Miller’s age and apparent intelligence. The trial
court’s decision on Sherry’s motion to interview Miller was an
abuse of discretion.
Attorney Fees.
[9] Barry argues that the district court erred in not awarding
him attorney fees. The district court’s decision on a request
for attorney fees is reviewed de novo on the record and will
be affirmed in the absence of an abuse of discretion. Carter v.
Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).
The district court did order Sherry to pay Barry $250 in
attorney fees regarding the contempt citation. however, Barry
was not awarded any attorney fees in connection with the
modification proceeding. having reviewed the record in this
case, and taking into consideration our result in this appeal, we
find no abuse of discretion by the district court. We affirm this
portion of the district court’s order.
Resolution.
Because the parties are no longer able to work together, we
find that there has been a material change in circumstances
warranting a modification of the joint custody arrangement,
and the evidence shows that an award of custody to one of
the parents is required. We therefore reverse the decision of
the district court and remand the cause back to the district
court with directions to consider the best interests of the child,
including the child’s in camera testimony regarding his prefer-
ence and his reasoning for such, and to award sole custody to
either Barry or Sherry. Because the parties have had consider-
able difficulty in agreeing on visitation times, as well as the
DONSCheSkI v. DONSCheSkI 	817
Cite as 17 Neb. App. 807

travel arrangements, the district court should set out a specific
visitation schedule for the noncustodial parent, taking into con-
sideration Miller’s school calendar. And of course, since one
parent will get sole custody, the district court should also make
child support determinations.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
stAte of neBrAskA, Appellee , v.
nicholAs A. cerny, AppellAnt.
770 N.W.2d 676
Filed July 28, 2009. 	No. A-08-1316.
1. Restitution. A restitution order is improper where there was no restitution hear-
ing, there was no evidence adduced to demonstrate the propriety of the amount
included in the order, and there was no mention of restitution in the oral pro-
nouncement of sentence.
Appeal from the District Court for York County: A lAn G.
G less, Judge. Affirmed as modified.
eric 	J. 	Williams, 	York 	County 	Public 	Defender, 	for
appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
irwin, cArlson, and moore, Judges.
irwin, Judge.
I. INTRODUCTION
Nicholas A. Cerny appeals the sentence imposed by the
district court for York County, Nebraska, upon his no contest
plea to attempted first degree sexual assault. On appeal, Cerny
alleges that the period of incarceration imposed, 5 to 10 years,
was excessive and that there was no basis for imposing a resti-
tution order of $666.78. We find no merit to the first assertion,
but strike the restitution order in accordance with the State’s
agreement that such order was improperly included in the writ-
ten sentencing order.
818 	17 NeBRASkA APPeLLATe RePORTS