Smith v. King

Citation29 Neb.App. 152,953 N.W.2d 258
Decision Date24 November 2020
Docket NumberNo. A-19-999.,A-19-999.
Parties Ashley R. SMITH, appellee, v. Gerald E. KING, Jr., appellant.
CourtCourt of Appeals of Nebraska

Sandra Stern, for appellant.

Chris Pomerleau, of Nebraska Legal Group, for appellee.

Moore, Chief Judge, and Bishop and Welch, Judges.

Bishop, Judge.


Gerald E. King, Jr., appeals from the decree of paternity entered by the Douglas County District Court which granted Ashley R. Smith primary physical custody of their two children, subject to Gerald's parenting time of every other weekend and one evening on the "off" week. Gerald assigns numerous errors related to the temporary hearing and order, the amount of parenting time he received in the decree, and the award of attorney fees to Ashley. He also challenges the district court's decision to not grant his in forma pauperis (IFP) request for transcription of court hearings or, alternatively, to not order Ashley to pay for the same so that he could adequately prepare for his motion for new trial. We affirm as modified.


Gerald and Ashley were in a relationship for a number of years, but never married. During the course of their relationship, they had two children: a son, Cipher King, born in 2005, and a daughter, Phoenix King, born in 2011. The parties ended their relationship in 2014 or 2015, and they proceeded for some time without court involvement regarding custody and child support. Ashley ultimately filed a complaint for establishment of paternity, custody, and support in 2017.


On June 8, 2017, Ashley filed a complaint for establishment of paternity, custody, and support. She alleged that Gerald was the father of Cipher and Phoenix. Ashley sought sole legal and physical custody of the children, and she asked that child support be ordered in accordance with the Nebraska Child Support Guidelines.

She also asked that Gerald be required to pay her attorney fees.

After a September 1, 2017, hearing on temporary matters at which Gerald appeared pro se and Ashley appeared with counsel, the district court entered an order on September 7. The court determined that Gerald was the children's father. Ashley was awarded temporary custody of the children; however, Gerald was awarded parenting time "every other weekend from [Friday] after school, or 3:00pm, whichever is earliest," through Sunday at 7 p.m., and he was also awarded the " ‘off’ Thursday evening from after school, or 3:00pm, whichever is earliest through 8:00pm." Gerald was ordered to pay child support in the amount of $706 per month, beginning September 1. He was also ordered to pay 40 percent of any noncovered medical expenses after Ashley had paid the first $480 per calendar year on behalf of the child and 40 percent of any work- and education-related childcare expenses.

On March 8, 2018, Gerald, now with counsel, filed an answer and "cross-complaint" wherein he acknowledged his paternity and sought joint legal and physical custody of the children, with equal parenting time for the parties. He asked that child support be ordered in accordance with the Nebraska Child Support Guidelines. On March 30, Gerald filed a motion for temporary orders seeking equal parenting time pending trial. On June 6, he filed a motion asking the district court to set a trial date and to award him summer parenting time pending the trial. And on June 12, he filed a motion to amend the temporary child support order retroactive to September 1, 2017. According to the "Judges Notes" appearing in our transcript, the district court denied any further temporary hearings pending trial.

On August 2, 2018, Ashley filed a contempt action against Gerald for failure to follow the September 2017 temporary order regarding parenting time and child support. The resolution of this action does not appear in our record.


Trial began on September 28, 2018, and continued on October 1. Both parties appeared with counsel. Several witnesses testified, and numerous exhibits were received into evidence.

According to Ashley's testimony, she and Gerald were in a relationship on and off for 11 years. They stopped living together in October 2015, but Gerald believed it was 2014. Prior to when they stopped living together, Ashley was the primary caretaker for the children. She fed them, bathed them, helped them with their schoolwork, and provided the majority of their transportation. Ashley was also paying for all of the childcare costs and children's activities. However, according to Gerald's testimony, they shared parenting and household duties and he also paid for household expenses; he even stated that when Phoenix was born, he was the primary caretaker because he was not working at the time.

After the parties stopped living together, Ashley and the children moved in with her mother, where they have remained. Gerald stayed with a friend for a few months. Ashley stated Gerald would "just call" and ask to see the children, and "[i]t would just be kind of sporadic." However, according to Gerald, he saw the children "daily" while staying with his friend, but he did not keep them overnight. After staying with his friend, Gerald lived in a few different places. For the first few months, Gerald had the children every weekend. Then the parties tried alternating parenting time on a daily basis, but that did not last very long. Then, beginning in February 2017, the parties alternated parenting time on a weekly basis.

Ashley testified that she "never had a say in [their] arrangements" during the alternating daily or weekly parenting time. Ashley filed the paternity action in June, and the temporary custody and parenting time schedule was put into place in September, wherein Ashley got primary physical custody and Gerald had parenting time every other weekend and every other Thursday. However, Gerald would occasionally keep the children beyond his parenting time without Ashley's agreement; Ashley called the police two times and was able to get them. Gerald had also picked the children up from school on a day he did not have parenting time.

Exhibit 8 contains text messages between Gerald and Ashley. We include a sampling of those text messages here, including all typographical and grammatical errors. On September 11, 2017 (year based on Ashley's testimony), Gerald and Ashley texted:

[Ashley:] ... [I]t is not your day. If I need to get the police involved I will
I will be picking cipher up when I leave here at 3.
[Gerald:] You can spend ya day all mad cuz I got him and flip but that's on you me and cipher is gonna have a good time keep ya bad vibes to yaself
[Ashley:] It's done.
You did this
[Gerald:] Call the cops now then save some time I welcome you doing that while I'm with him lol
Cops cops cops
You think you can scare me with cops lol lol lol
[Ashley:] I am not trying to scare anyone, but this is exactly why I went to court so when you do this BS I have a leg to stand on
I will be there to get cipher at 3
[Gerald:] Bitch this is my son fuck whatever you on
If I was hurting him or mistreating him or had him in danger then cool but flipping the fuck out cuz I'm simple with im yea go fuck ya self
.... You are a female that younger than me you have no power or authority over me I am sorry we didn't work but you don't get to decide when I see my kids cuz we didn't[.]

On September 12, Gerald texted, "I got one son and one daughter in this world that I helped create and bring into this world there's no stranger thatbdont know me or my kids gonna dictate what I can and can't do with them." In October, the parties were arguing about parenting time and transportation and Gerald texted:

You ain't sacrificing shit it should be week to week this bullshit you on where you think you have the only right to OUR kids and how to raise them I don't give two shits about a lawyer Judge or court none of them was involved in us making these kids and you can have them pump ya head but the real is you on bullshit[.]

On October 11, the parties were again arguing over the parenting time schedule, and Ashley texted Gerald saying, "All of this is reported back to a judge." Gerald replied:

Haha report I don't give a fuck either
Report fuck the judge
Report fuck ya lawyer
Report fuck them all
Report when my schedule change none of this every other week shit will apply
Report these are my kids and they have zero authority over me Report how much of a bitch you are[.]

During his testimony, Gerald said he sent the text messages because he was upset about the situation and wanted to spend more time with his children.

Gerald agreed that he would follow court orders. However, he acknowledged that he had kept the children longer than his parenting time and that he had picked them up from school when it was not his day. Also, between September 1, 2017, and June 2018, he paid a total of only around $1,050 in court-ordered child support. He said, "I had a house, kids, rent and stuff that was due. So I financially could not ...." He stated he also paid some money directly to the court after June 2018. (According to a Department of Health and Human Services payment history report, between June 26 and September 14, Gerald had paid $1,200; he never once paid his full monthly obligation.) Gerald acknowledged that he had not paid for any childcare; he said he did not know that child support and childcare were different. Gerald admitted receiving receipts for Phoenix's childcare costs, but he denied receiving receipts for Cipher's childcare costs.

According to Ashley, Gerald had been physical with her on "multiple occasions." Ashley said there had been "slaps to the face," most recently 3 years ago, and "hair pulling," most recently when she was 8 months pregnant with their daughter. According to Ashley, both children had witnessed incidents when Gerald was physical with her. Gerald had also called her names, like "bitch," in front of the children. According to Gerald, there was "a...

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    ...of the parties to the litigation and approved by the court, is enforceable. In re Estate of Mithofer, supra.Smith v. King, 29 Neb. App. 152, 179-80, 953 N.W.2d 258, 278 (2020) (emphasis supplied).(a) Custody and Parenting Time In addition to the principles of law cited above, the rule that ......
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    ...When a permanent order relating to custody or parenting time is entered, a temporary order is rendered moot. See Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020). See, also, State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (temporary order rendered mo......
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    ... ...          When ... deciding custody issues, the court's paramount concern is ... the child's best interests. Smith v. King , 29 ... Neb.App. 152, 953 N.W.2d 258 (2020). Section 43-2923(6) ... provides that in determining custody and parenting ... ...
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