Coleman v. Kahler

issues, and failure to follow through with an opportunity to
enroll in drug court. In State v. Rios, 237 Neb. 232, 234,
465 N.W.2d 611, 613 (1991), the Nebraska Supreme Court
repeated “yet again the axiom that a sentence within the statu-
tory limits will not be disturbed upon appeal absent an abuse
of discretion.” The record presented here does not reveal an
abuse of discretion, and as stated in Rios, 237 Neb. at 235,
465 N.W.2d at 614:
While it is true that, as he laments, [the appellant] is in
part a victim of his own addiction, the fact remains that
he stands convicted of spreading his affliction for profit.
The nature of the crime is such that it cannot be said the
sentence imposed constitutes an abuse of discretion.
This assignment of error is meritless.
V. CONCLUSION
We modify the restitution order to reflect that Harris is
ordered to pay restitution in the amount of $90, rather than
$140. We affirm the remainder of the restitution order, and we
affirm the sentences imposed.
A ffirmed As modified.
mArtin L. C oLemAn, AppeLLAnt, v.
Joni K. KAhLer , AppeLLee .
766 N.W.2d 142
Filed April 14, 2009. 	No. A-08-333.
1. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
2. Actions: Paternity: Child Support: Equity. While a paternity action is one at
law, the award of child support in such an action is equitable in nature.
3. Paternity: Appeal and Error. In a filiation proceeding, questions concerning
child custody determinations are reviewed on appeal de novo on the record to
determine whether there has been an abuse of discretion by the trial court, whose
judgment will be upheld in the absence of an abuse of discretion. In such de novo
review, when the evidence is in conflict, the appellate court considers, and may
give weight to, the fact that the trial court heard and observed the witnesses and
accepted one version of the facts rather than another.
518 	17 NebrASkA AppeLLATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

4. Moot Question: Words and Phrases. A moot case is one which seeks to deter-
mine a question which does not rest upon existing facts or rights, in which the
issues presented are no longer alive.
5. Child Custody. before a custodial parent can remove a child from the state, per-
mission of the court is required, whether or not there is a travel restriction placed
on the custodial parent.
6. Child Custody: Jurisdiction: Words and Phrases. Under the Uniform Child
Custody Jurisdiction and enforcement Act, a “child custody determination” is
defined to mean a judgment, decree, or other order of a court providing for the
legal custody, physical custody, or visitation with respect to a child. The term
includes a permanent, temporary, initial, and modification order.
7. Child Custody: Child Support. A child custody determination does not include
an order relating to child support or other monetary obligation of an individual.
8. Child Custody. While an unwed mother is initially entitled to automatic custody
of the child, the issue must ultimately be resolved on the basis of the fitness of
the parents and the best interests of the child.
9. Child Custody: Visitation. Nebraska’s removal jurisprudence does not apply to a
child born out of wedlock where there has been no prior adjudication addressing
child custody or parenting time.
10. Attorney Fees. 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 procedure has been to allow recovery of attor-
ney fees.
11. Paternity: Child Support: Attorney Fees: Costs. Attorney fees and costs are
statutorily allowed in paternity and child support cases.
12. Child Custody: Jurisdiction: Attorney Fees. Under the Uniform Child Custody
Jurisdiction and enforcement Act, the court shall award the prevailing party attor-
ney fees unless the party from whom fees or expenses are sought establishes that
the award would be clearly inappropriate.
13. Attorney Fees. Customarily, attorney fees and costs are awarded only to the pre-
vailing party or assessed against those who file frivolous suits.
14. ____. The award of attorney fees depends on multiple factors that include the
nature of the case, the services performed and results obtained, the earning capac-
ity 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.
Appeal from the District Court for Lancaster County: pAuL
d. merritt, Jr ., Judge. Affirmed.
Christopher A. Furches, of Johnson, Flodman, Guenzel &
Widger, for appellant.
Stephanie payne, of payne Law, p.C., L.L.O., for appellee.
inbody, Chief Judge, and sievers and CAsseL, Judges.
COLemAN v. kAHLer 	519
Cite as 17 Neb. App. 518

CAsseL, Judge.
INTrODUCTION
martin L. Coleman appeals from a declaratory judgment
granting relief determining him to be the father of Joni k.
kahler’s son, but awarding kahler custody of the parties’
minor children and allowing her to remove the children from
Nebraska. We hold that Nebraska’s removal jurisprudence does
not apply to a child born out of wedlock where there has been
no prior adjudication addressing child custody or parenting
time. because we find no abuse of discretion by the district
court, we affirm its judgment.
bACkGrOUND
The parties, who never married, are the biological parents
of two children: a daughter, born in 1992, and a son, born in
2002. In may 1993, a consent decree established Coleman’s
paternity to the parties’ daughter and ordered him to pay child
support, but it did not address custody or visitation rights. In
February 2003, Coleman filed an acknowledgment of paternity
concerning the parties’ son, but there was no judicial determi-
nation of his paternity.
On October 5, 2007, Coleman filed his complaint for declar-
atory judgment. He sought an order establishing his paternity
to the parties’ son, establishing the parties’ custodial and visi-
tation rights with respect to both children, establishing child
support obligations over the son, and prohibiting kahler from
removing the children from Nebraska.
Coleman also sought temporary custody of the children
or, in the alternative, an order compelling kahler to return
the children to Nebraska during the pendency of the proceed-
ings. After a hearing, the court denied Coleman’s motion. The
court stated:
[T]his is not a case in which a custodial parent has filed
a request seeking permission to remove the children
from the jurisdiction of the court. The reason [kahler]
made no such request before moving or contemplat-
ing moving the children to Ohio is because there has
been no judicial custody determination made concerning
either of the children (i.e., neither party has previously
520 	17 NebrASkA AppeLLATe repOrTS

sought to have a court address custody and parenting
time-related issues). The court considers this to be a
significant factor in addressing [Coleman’s] alternative
request that [kahler] be ordered to return the children
to Nebraska.
On march 4 and 5, 2008, the court conducted a trial on
Coleman’s complaint. In the interest of brevity, we summa-
rize the detailed evidence regarding Coleman’s visitation with
the children. Coleman moved to Georgia after kahler became
pregnant with the parties’ daughter. In November 1992, when
the child was approximately 7 months old, Coleman returned
to Nebraska and lived with kahler and their daughter for
approximately 1 to 2 months. between 1993 and 1995, the
parties both lived in Lincoln, Nebraska, and Coleman’s mother
provided daycare for the child. kahler testified that Coleman
saw the child approximately 20 times at Coleman’s mother’s
house. Coleman testified that he did not see the child on a
regular basis but saw her at least once every 2 weeks.
In 1997, kahler married and moved with her husband and
the parties’ daughter to kansas City, missouri. Coleman ini-
tially had visitation every other weekend, but that became less
frequent, and he also had summer visitation of 4 to 6 weeks,
broken into 1- or 2-week periods. kahler and her husband
separated in 1999, and a decree dissolved kahler’s marriage
in 2003. From 1999 to 2001, kahler lived in kansas City with
the parties’ daughter; kahler’s “partner,” kimberly S.; and
kimberly’s son. During that time, Coleman visited the parties’
daughter a couple of times a year.
In the fall of 2001, kahler and the parties’ daughter returned
to Lincoln, along with kimberly and her son. Coleman visited
the parties’ daughter on weekends.
In late 2001, the parties discussed having a second child, but
kahler wanted Coleman to impregnate kimberly. Ultimately,
kahler became pregnant with the parties’ son. kahler testified
that the agreement with Coleman was that their son would
be raised by kahler and kimberly, that kahler and kimberly
would have full financial responsibility and custody, and that
Coleman could be part of the child’s life if Coleman wished.
Coleman testified that although he had not been ordered to
COLemAN v. kAHLer 	521
Cite as 17 Neb. App. 518

pay child support for the parties’ son, he gave kahler $500 to
$1,000 once their son was born and provided financial support
in the form of clothes and toys and by paying certain bills.
kahler testified that once their son was born, Coleman
usually saw him at least once a week. Coleman testified that
he regularly had visitation with both of the parties’ children
in kahler’s home, but kahler testified that Coleman’s regular
visits with the children began in 2005 and that he did not have
much involvement with them prior to that time. When the
parties’ son was 1 or 2 years old, their children began having
overnight weekend visits at Coleman’s home every other week-
end in addition to visits with Coleman at kahler’s house on
Wednesday and Sunday nights.
In 2007, Coleman’s visitation with the children varied, but
it generally included Sundays and Wednesdays and every other
weekend from Saturday night to Sunday night. Sometimes
Coleman would keep the parties’ son from Wednesday to Friday
night, and at times, the parties’ son stayed with Coleman from
Wednesday night to Sunday.
The parties had an amicable relationship. Some of Coleman’s
visits were as a family unit with kahler and kimberly along
with Coleman and his wife, whom Coleman married in July
2007. kimberly’s teenage son lived with the Colemans for
nearly a year, beginning in November 2006. Coleman testified
that kimberly’s son’s behavior and schoolwork improved the
longer the child lived with the Colemans.
Coleman testified that he and kahler shared the responsi-
bility of taking their children to the doctor and dentist. They
both disciplined the children. Coleman testified that kahler
remarked on several occasions he was more of a disciplinarian
than she, but kahler disagreed. Coleman testified that the par-
ties’ daughter had behavioral problems when she began high
school and that kahler requested his assistance in helping deal
with issues such as poor grades, not completing homework,
sneaking out of the house, and having friends stop by the house
when no adults were present. Coleman’s wife testified that the
parties’ daughter confided in her about sex-related issues, but
kahler testified that she had discussed such issues in detail
with the parties’ daughter multiple times.
522 	17 NebrASkA AppeLLATe repOrTS

On September 5, 2007, kahler learned that her job as a
broadband support technician would be eliminated and that her
employer’s broadband support division would be relocated to
Ohio. kimberly worked for the same company. At that time,
kahler earned close to $13 an hour and approximately $26,000
a year. kahler testified that a position which she had applied
for and accepted with the same company in Ohio would pay
$16.30 an hour, or $33,900 a year, with an opportunity for
advancement. The position also offered health care for kahler
and the children. kahler testified that the company had two
positions open in Nebraska at that time but that neither was in
her field. She testified that she inquired about employment with
a cellular telephone company in Lincoln and with a computer-
payment-processing firm in Omaha, Nebraska, and checked a
Web site with a Nebraska employment database, but that she
did not apply for any positions, “[b]ecause they were all really
low, low pay.”
kahler discussed with Coleman a potential out-of-state move
due to the outsourcing of her job and that of kimberly. kahler
told Coleman that she and kimberly would not accept posi-
tions in Ohio if Coleman did not want the children to move.
Coleman testified that he told kahler he did not want the par-
ties’ children moved from Nebraska, but that kahler accepted
the job in Ohio anyway. kahler testified that at some point,
Coleman agreed to allow her to move the children to Ohio,
saying, “‘I don’t like it, but you have to do what you have
to do.’” kahler testified that on the following day, she and
kimberly signed paperwork to accept the positions in Ohio.
According to kahler, Coleman later sent kahler an e-mail that
said only, “‘I’ve sold my soul,’” which kahler understood to
mean that Coleman had changed his mind about agreeing to
the move.
Coleman then initiated this action. After kahler was served
with the complaint, she told Coleman that he would never see
the parties’ children again. While kahler admitted making the
threat in anger, she claimed that she immediately sent Coleman
an e-mail apologizing for having done so. Coleman testified
that he then had problems exercising visitation and that kahler
sent an e-mail informing him that he had to provide 24-hour
COLemAN v. kAHLer 	523
Cite as 17 Neb. App. 518

notice of any visitation and that all visits would be supervised.
kahler testified that she told Coleman that a visit needed to be
supervised on one occasion, which was the visit right before
the move to Ohio.
The children moved with kahler to Ohio on October 23,
2007. From that time to the time of trial, Coleman had tele-
phone communications with the children on Wednesday and
Sunday nights, one Web camera visit, and 2 weeks’ visitation
over Christmas. Coleman testified that the parties’ daughter
spends approximately 2 to 5 minutes on the telephone with
him. His access to the children had been “[e]xtremely limited,”
and he feared that the parties’ son will “grow away” from him.
Coleman testified that it would cost roughly $500 to drive to
and from Ohio and that the average cost for an airplane ticket
was around $350. Coleman described his relationship with the
parties’ daughter prior to the move as very close and very lov-
ing. kahler, however, testified that Coleman’s relationship with
their daughter did not seem to be a close relationship. Coleman
testified that their daughter had been pretty distant since the
move. He described his relationship with kahler and kimberly
as strained.
On march 11, 2008, the court entered an order finding
Coleman to be the biological father of the parties’ son. The
court found it was in their children’s best interests that custody
of both be awarded to kahler. The court ordered Coleman to
pay $513.85 per month in child support for the parties’ son.
With regard to removal from Nebraska, the court addressed
some of the issues set out in Wild v. Wild, 15 Neb. App. 717,
737 N.W.2d 882 (2007), and after doing so, it gave kahler per-
mission to remove the children to Ohio.
Coleman timely appeals.
ASSIGNmeNTS OF errOr
Coleman assigns three errors. First, he alleges that the dis-
trict court deprived him of a substantial right and a just result
by granting kahler temporary permission to remove the parties’
children from the jurisdiction. Second, he contends that the
court abused its discretion by granting kahler permission to
remove the children permanently from the jurisdiction. Finally,
524 	17 NebrASkA AppeLLATe repOrTS

Coleman assigns that the court abused its discretion by denying
his request for custody.
STANDArD OF reVIeW
[1] An action for declaratory judgment is sui generis; whether
such action is to be treated as one at law or one in equity is to
be determined by the nature of the dispute. City of Ashland v.
Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006).
[2] While a paternity action is one at law, the award of
child support in such an action is equitable in nature. State
on behalf of Kayla T. v. Risinger, 273 Neb. 694, 731 N.W.2d
892 (2007).
[3] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
discretion by the trial court, whose judgment will be upheld in
the absence of an abuse of discretion. In such de novo review,
when the evidence is in conflict, the appellate court consid-
ers, and may give weight to, the fact that the trial court heard
and observed the witnesses and accepted one version of the
facts rather than another. State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004).
ANALYSIS
Temporary Order.
Coleman argues that the district court deprived him of a
substantial right and a just result by granting kahler temporary
permission to remove the minor children from the jurisdiction.
We recognize that trial courts are discouraged from granting
temporary permission to remove children to another juris-
diction prior to a ruling on permanent removal. See, Jack v.
Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Wild v. Wild,
15 Neb. App. 717, 737 N.W.2d 882 (2007). Here, the court did
not affirmatively grant kahler permission to remove the chil-
dren, but, rather, denied Coleman’s request for temporary cus-
tody of the children or for an order compelling kahler to return
the children to Nebraska. In any event, even assuming without
deciding that the court’s order was an abuse of discretion, we
cannot afford relief to Coleman from the court’s ruling on a
temporary order. See Wild v. Wild, supra.
COLemAN v. kAHLer 	525
Cite as 17 Neb. App. 518

[4] A moot case is one which seeks to determine a question
which does not rest upon existing facts or rights, in which
the issues presented are no longer alive. State on behalf of
Pathammavong v. Pathammavong, supra. The issue of whether
the order denying Coleman’s request for temporary custody
was proper was relevant only from the time it was entered
until it was replaced by the order determining the children’s
permanent custody. Accordingly, any issue relating to the tem-
porary order is moot and need not be resolved in this appeal.
See id.
Permanent Removal and Custody.
Coleman argues that the court abused its discretion by not
awarding him custody and by allowing kahler to remove the
children from Nebraska because kahler did not meet the test
set forth in Farnsworth v. Farnsworth, 257 Neb. 242, 597
N.W.2d 592 (1999). kahler argues that the Farnsworth test
is inapplicable.
[5] The Nebraska Supreme Court has held that before a cus-
todial parent can remove a child from the state, permission of
the court is required, whether or not there is a travel restriction
placed on the custodial parent. State ex rel. Reitz v. Ringer, 244
Neb. 976, 510 N.W.2d 294 (1994), overruled on other grounds,
Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).
Our review of removal jurisprudence in Nebraska involving
children born in and out of wedlock reveals a common ele-
ment: a prior child custody determination. See, e.g., Tremain v.
Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002); Vogel v. Vogel,
262 Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown,
260 Neb. 954, 621 N.W.2d 70 (2000); Jack v. Clinton, supra;
Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517
(2000); Farnsworth v. Farnsworth, supra; State ex rel. Reitz v.
Ringer, supra; Wild v. Wild, supra; Gartner v. Hume, 12 Neb.
App. 741, 686 N.W.2d 58 (2004).
[6,7] Under the Uniform Child Custody Jurisdiction and
enforcement Act, a “child custody determination” is defined
to mean “a judgment, decree, or other order of a court provid-
ing for the legal custody, physical custody, or visitation with
respect to a child. The term includes a permanent, temporary,
526 	17 NebrASkA AppeLLATe repOrTS

initial, and modification order.” Neb. rev. Stat. § 43-1227(3)
(reissue 2008). A child custody determination does not include
an order relating to child support or other monetary obliga-
tion of an individual. Id. Under the above definition, before
Coleman commenced the instant proceeding, there had been
no child custody determination in this case with regard to
either child.
[8] Coleman argues that a custody determination has already
been made because an unwed mother is initially entitled to
automatic custody. but the Nebraska Supreme Court implicitly
rejected that argument in State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 8, 679 N.W.2d 749, 756 (2004),
when it stated that the custody issue before it was a matter of
initial judicial determination after reciting the proposition—the
same one upon which Coleman relies—that “[w]hile an unwed
mother is initially entitled to automatic custody of the child,
the issue must ultimately be resolved on the basis of the fitness
of the parents and the best interests of the child.”
Pathammavong merits further discussion, although the gen-
eral factual background is not squarely on point with the
situation at hand. In Pathammavong, like in the instant case,
paternity proceedings were instituted in Nebraska concern-
ing a child born out of wedlock. In Pathammavong, however,
the parties lived together in Nebraska and in Texas before the
mother returned to Nebraska with the child while the father
remained in Texas. Subsequently, the father sought temporary
and permanent child custody. The court granted the father
temporary custody and, following a hearing, determined that
the child should remain in the father’s permanent custody. On
appeal, the mother argued that the test set forth in Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), was
applicable. The Pathammavong court observed that unlike
Farnsworth, the case presented did not concern parental reloca-
tion or the modification of a previous court-ordered custody
agreement, and that the order on appeal was the first court
order assigning custody to a parent. The Pathammavong court
determined that the district court was not required to apply the
Farnsworth test, explaining:
COLemAN v. kAHLer 	527
Cite as 17 Neb. App. 518

The issue before the district court was not whether one
or the other of the parents was free to relocate with the
child, but, rather, which parent should be awarded perma-
nent custody of [the child] as a matter of initial judicial
determination. This question must be resolved on the
basis of the fitness of the parents and the best interests of
the child.
268 Neb. at 6, 679 N.W.2d at 755.
Like in Pathammavong, the order on appeal in the instant
case is the first court order awarding custody of either child
and there had been no request for parental relocation. A signifi-
cant distinction, however, is that in Pathammavong, the father
was already in Texas at the time of his filings, whereas here,
kahler completed her move to Ohio after Coleman filed his
complaint but before the court heard it. Nonetheless, we find
guidance in the court’s reasoning.
Similarly, 	the 	Nebraska 	Supreme 	Court 	conducted 	no
removal analysis in State ex rel. Grape v. Zach, 247 Neb. 29,
524 N.W.2d 788 (1994). In that case, pursuant to a 1989 filia-
tion proceeding, a Nebraska district court adjudged the respond-
ent as the child’s father and ordered him to pay child support.
Shortly after June 1990, the mother and the child moved to
New York. In early 1992, the mother returned to Nebraska.
In march, she filed a motion for custody of the child and the
court entered an ex parte order granting her custody. The father
filed a “‘motion to Set Aside Order, for Temporary Custody,
and for Order prohibiting [mother] from removing Child from
State.’” Id. at 33, 524 N.W.2d at 795. The court set aside its ex
parte order, granted the father temporary custody, and ordered
that the child not be removed from Nebraska. The mother
and child returned to New York. The father filed the tempo-
rary custody order in New York and brought the child back to
Nebraska. Following the sustaining of the mother’s demurrer to
the father’s above-mentioned motion, the father filed an appli-
cation for temporary and permanent custody of the child. The
court held a hearing and, on April 29, 1993, entered an order
placing permanent custody of the child with the father.
On appeal, the State ex rel. Grape court stated that no court
had made a custody determination until the April 29, 1993,
528 	17 NebrASkA AppeLLATe repOrTS

order. The court stated that in a filiation proceeding in which
paternity had been admitted and the natural father had demon-
strated a familial relationship with the child and fulfilled his
parental responsibilities of support and maintenance, the fact
that the child was born out of wedlock was to be disregarded
and custody determined on the basis of the child’s best inter-
ests. In so doing, the Nebraska Supreme Court determined that
the district court did not abuse its discretion in awarding cus-
tody to the father.
[9] 	based 	on 	State 	on 	behalf 	of 	Pathammavong 	v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004), and State
ex rel. Grape v. Zach, supra, we hold that Nebraska’s removal
jurisprudence does not apply to a child born out of wedlock
where there has been no prior adjudication addressing child
custody or parenting time. but like we stated in a case where
the children’s coguardians filed a motion to remove the chil-
dren to Texas, “if the instant case is determined by the chil-
dren’s best interests, then we can conceive of no good reason
why Farnsworth [v. Farnsworth, 257 Neb. 242, 597 N.W.2d
592 (1999),] would not be properly included in the analyti-
cal framework to determine the children’s best interests.” In
re Interest of Eric O. & Shane O., 9 Neb. App. 676, 684, 617
N.W.2d 824, 831 (2000). Accordingly, we give some consider-
ation to the Farnsworth factors in determining custody based
on the children’s best interests.
Farnsworth enunciated three broad considerations in con-
sidering whether removal is in the children’s best interests: (1)
each parent’s motives for seeking or opposing the move; (2)
the potential that the move holds for enhancing the quality of
life for the children and the custodial parent; and (3) the impact
such a move will have on contact between the children and
the noncustodial parent, when viewed in the light of reason-
able visitation.
The parties’ children, ages 15 and 5 at the time of trial, have
always primarily resided with kahler, and Coleman did not
seek placement of the children with him until he learned of
kahler’s plans to move. kahler wished to move because her
position had been outsourced to Ohio and her job search did
not uncover employment in Nebraska with pay comparable
COLemAN v. kAHLer 	529
Cite as 17 Neb. App. 518

to what she had been earning. The evidence established that
kahler’s pay in Ohio would be greater, as would kimberly’s
pay. Coleman opposed the move because of the adverse impact
it will have on his visitation and his ability to foster a relation-
ship with the children. Unfortunately, kahler’s plans to move
with the children created hostilities between the parties. Up
until that time, the parties and their significant others inter-
acted together as a family unit. Afterward, their relationship
became strained.
The move to Ohio brought improved housing conditions
for kahler. In Lincoln, she rented a three-bedroom house
with just over 1,000 square feet for $600 a month. The par-
ties’ son shared a room with kimberly’s son. kahler testi-
fied that the house was not in good shape, that it had many
cracks in the walls, that she had problems with pests, and
that it was expensive to heat and cool. On the other hand, the
house in Ohio has four bedrooms, has 2,400 square feet, and
costs $1,000 a month to rent. kahler testified that the Ohio
house is very clean and well kept and that her utility bills are
less expensive.
The parties did not adduce much evidence regarding educa-
tional advantages in one state versus the other. kahler testified
that she felt the Ohio schools were better and safer and that the
schools were near to the Ohio house. The parties’ son attended
a full-day kindergarten in Lincoln, but only a half-day kin-
dergarten in Ohio. kahler testified that the parties’ daughter’s
grades had improved since the move.
The parties have no family in Ohio, whereas they have
numerous family members in Nebraska. kahler’s brother lives
in Lincoln, and Coleman’s family members residing in the
Lincoln area include his parents, two brothers, a sister, four
cousins, an aunt, and an uncle. Coleman testified that the
parties’ children have a relationship with those family mem-
bers and that they would get together with the children on
holidays, birthdays, and anniversaries. Coleman’s mother testi-
fied that the children’s move to Ohio had interfered with her
relationship with them because she rarely is able to see them.
Coleman’s sister, who saw the children at least once a week up
until 2004, testified that she had a close relationship with the
530 	17 NebrASkA AppeLLATe repOrTS

parties’ daughter and that since the move, she has communi-
cated with the parties’ daughter by sending messages through
a Web site.
We conclude that the children’s best interests are served by
being in kahler’s custody. The children are bonded to both par-
ties, but it appears that they have a stronger bond with kahler.
Aside from overnight visitations with Coleman in the past few
years, the children have always lived with kahler, and she
has been the parent primarily responsible for the daily tasks
involved in raising the children. Coleman testified that kahler
is a good mother. because the children’s best interests dictate
that they remain with kahler, we find no abuse of discretion by
the district court in awarding kahler custody and allowing her
to remove the children to Ohio.
Attorney Fees.
kahler filed a motion with this court requesting an award
of attorney fees in this appeal. In support of kahler’s motion,
she attached the affidavit of her counsel which stated that she
charged kahler $3,442.50 in attorney fees, based upon coun-
sel’s hourly rate of $135.
[10-12] 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
procedure has been to allow recovery of attorney fees. Young
v. Midwest Fam. Mut. Ins. Co., 276 Neb. 206, 753 N.W.2d
778 (2008). Attorney fees and costs are statutorily allowed
in paternity and child support cases. See, Neb. rev. Stat.
§ 43-1412(3) (reissue 2008); Cross v. Perreten, 257 Neb. 776,
600 N.W.2d 780 (1999). Further, under the Uniform Child
Custody Jurisdiction and enforcement Act, “[t]he court shall
award the prevailing party . . . attorney’s fees . . . unless the
party from whom fees or expenses are sought establishes that
the award would be clearly inappropriate.” Neb. rev. Stat.
§ 43-1259(a) (reissue 2008).
[13,14] Customarily, attorney fees and costs are awarded
only to the prevailing party or assessed against those who file
frivolous suits. See Noonan v. Noonan, 261 Neb. 552, 624
N.W.2d 314 (2001). Clearly, kahler was the prevailing party in
COLemAN v. kAHLer 	531
Cite as 17 Neb. App. 518

this case. The award of attorney fees depends on multiple fac-
tors 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. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351
(2007). We award kahler an attorney fee of $1,500 for her
attorney’s services on appeal.
CONCLUSION
We do not consider Coleman’s assignment of error regard-
ing the temporary order, because that issue is moot. We con-
clude that the district court did not err in awarding custody
of the children to kahler and allowing the children to remain
with her in Ohio. We sustain kahler’s motion for attorney
fees for services in this court and allow a fee in the amount
of $1,500.
A ffirmed.
532 	17 NebrASkA AppeLLATe repOrTS