Tilson v. Tilson

Decision Date25 September 2020
Docket NumberNo. S-19-344.,S-19-344.
Citation948 N.W.2d 768,307 Neb. 275
Parties Jayson H. TILSON, appellant, v. Erica M. TILSON, appellee, and Kimberly L. Hill, intervenor-appellee.
CourtNebraska Supreme Court

Matt Catlett, of Law Office of Matt Catlett, Lincoln, for appellant.

David P. Kyker, Lincoln, for intervenor-appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J. Jayson H. Tilson appeals a district court order modifying the decree that dissolved his marriage. The district court rejected Jayson's argument that the original decree was void. It ordered that custody of Jayson's three children should remain with the children's maternal grandmother, but modified the decree as to parenting time and child support. On appeal, Jayson primarily argues that because, several years ago, he filed a motion to dismiss his complaint for dissolution, the decree of dissolution that followed was void, even though he withdrew the motion to dismiss hours after he filed it. In the alternative, Jayson challenges admissibility rulings at the modification hearing and the modification order's custody, parenting time, child support, and attorney fees determinations, as well as the denial of his motion to disqualify the presiding judge. We find no merit to Jayson's claims, and we affirm.

Motion to Dismiss and Dissolution Decree.

In September 2014, Jayson filed a complaint for dissolution of his marriage to Erica M. Tilson, who has been incarcerated and is not involved in the current appeal. In December 2014, temporary custody of the couple's three minor children was awarded to the maternal grandmother, Kimberly L. Hill (Kimberly). The court subsequently allowed Kimberly to intervene and appointed a guardian ad litem for the children. In August 2015, Kimberly and her husband filed a third-party complaint, asking for grandparent visitation and continued temporary custody of the children.

On November 16, 2015, the day before a scheduled dissolution hearing, Jayson filed a motion to dismiss his complaint for dissolution. The dissolution hearing was held as scheduled on November 17, with Jayson in attendance.

On December 8, 2015, the court entered a decree of dissolution, drafted by Jayson's counsel. Referring to the November 17 hearing, the decree stated, "Upon motion of [Jayson's] attorney ... [Jayson's] motion to dismiss is withdrawn." The decree ordered the continuation of Kimberly's legal and physical custody, and as to Jayson, it ordered parenting time and a contribution toward childcare expenses. Jayson was not ordered to pay child support. The decree prohibited Jayson from consuming alcohol within 24 hours prior to or during his parenting time and ordered him to administer the children's prescribed medications during his parenting time. Erica was ordered to pay child support and was awarded supervised parenting time by arrangement.

Jayson's February 24, 2017, "Complaint," Initial Appeal, and Motion for Judicial Disqualification.

More than a year after the entry of the decree, on February 24, 2017, Jayson filed a "Complaint." Relevant here, the complaint requested (1) that the decree be vacated as void because his November 2015 motion to dismiss was self-executing, and thus the court lacked jurisdiction to enter the decree, and (2) that in the alternative, the decree be modified to place custody of the children with him. In an answer and cross-complaint, Kimberly asked that Jayson's weekly parenting time be reduced and "fully supervised." She also requested child support.

Before any ruling on Jayson's complaint filed February 24, 2017, Jayson filed additional motions upon which the district court ruled, and Jayson appealed. We dismissed the appeal. See Tilson v. Tilson , 299 Neb. 64, 907 N.W.2d 31 (2018). We concluded that the ruling appealed from was not a final order because it did nothing more than deny requests for temporary relief and preserve the status quo pending the determination of other issues. Id.

On May 5, 2018, Jayson filed a motion for judicial disqualification. As discussed in more detail below, he alleged several ways in which the presiding judge had exhibited bias. Following a hearing, the district court overruled the motion.

Trial Addressing February 24, 2017, "Complaint."

The district court held a trial on Jayson's February 24, 2017, complaint. At trial, Kimberly testified that she is the maternal grandmother of the children: M.T., born in 2007; R.T., born in 2012; and T.T., born in 2013. The children had lived with Kimberly and her husband since December 2014, after Jayson was ticketed for leaving them home alone while he was out drinking at a bar. According to Kimberly, until March 2017, Jayson did not exercise all of his allotted parenting time. Kimberly's testimony generally showed that while the children were with her, she took care of all their needs, including food, clothing, bathing, medical appointments and prescriptions, counseling, help with schoolwork, and extracurricular activities.

Kimberly testified that she had many concerns about the children's safety when they were with Jayson. She estimated that she observed the children improperly restrained in Jayson's vehicle 20 times during the year preceding trial and 50 times overall, despite talking to Jayson about the issue multiple times. Kimberly testified that she was also concerned that Jayson did not give the children their medication consistently, in particular, an antidepressant that M.T. used in 2015 and 2016. She testified about various dog and cat scratches the children had received while under Jayson's care. Kimberly acknowledged that Jayson had been good about taking the children "to the lake and to the park," but testified he was not good about supervising them while swimming. As a result, M.T.’s glasses had been lost and broken, and the two younger children had gone beyond where they should safely be in the water and without lifejackets. Kimberly testified that nearly every time the children returned from these outings, they had been "fried" by the sun.

Kimberly had concerns about clothing, cleanliness, and food during the children's time with Jayson. In late 2015 or early 2016, while Jayson was living at his previous residence, Kimberly saw cockroaches in M.T.’s school backpack. Kimberly testified that starting in the summer of 2017, the children had lice for a 4-month period and had not had lice when they left to visit Jayson. She testified that in the year before trial, the children consistently returned from visits with Jayson extremely dirty and dressed in clothes that were the wrong size or inappropriate for the weather. Kimberly also stated that over the preceding 3½ years, the children usually returned from Jayson's home hungry.

Kimberly also expressed concerns about the effect Jayson's parenting time had on the children's behavior and school performance. She testified that the children were not doing their homework while at Jayson's home. Kimberly testified that after Jayson's overnight parenting time was suspended in March 2018, the children's behavior improved. Before, M.T. was having urinary accidents about four times a year, but since the change in visitation, she had not had any. Similarly, when the two younger children were staying with Jayson overnight, they misbehaved for 2 days afterward, but since March 2018, any misbehavior had been short lived and their school performance had improved.

The children's guardian ad litem, Candice Wooster, testified about her investigation in this case. Wooster was not able to schedule a visit at Jayson's home and has never been informed where he lives. She testified that she spoke to Jayson by telephone a handful of times between December 2015 and May 2017. During one call, Jayson hung up on Wooster. In May 2017, Jayson stopped returning her calls. As a result, Wooster was unable to arrange a home visit with Jayson. She also contacted his attorney and asked if he would like to be present at a home visit, but this did not result in an opportunity to either speak with Jayson or visit his home. Wooster testified that at a hearing during the 3- or 4-month period preceding trial, Jayson's counsel submitted an affidavit in which Jayson stated he would not be speaking to Wooster.

In contrast, Wooster visited Kimberly's home four or five times for an hour and found no concerns. Wooster observed a very loving relationship between Kimberly and the children. She saw Kimberly helping the children with their homework. When R.T. had a tantrum, Kimberly calmly helped her through it. She also observed Kimberly's husband playing with the children.

Dr. Judith Bothern, a licensed psychologist, testified that she provided therapy for M.T., R.T., and T.T. from December 2015 until November 2017. Bothern testified that Kimberly initiated this therapy. M.T., who had 89 sessions with Bothern, was Bothern's primary client in the family. Bothern diagnosed M.T. with adjustment disorder and major depressive disorder

. Bothern's treatment plan for M.T. included addressing her relationship with Jayson and his knowledge of parenting practices. Pursuant to a court order, Jayson participated in 18 sessions starting around the same time as the children and continuing until September 2016.

Bothern testified regarding several safety concerns about Jayson's care for M.T. M.T. told her that Jayson did not regularly give M.T. her antidepressant medication, which, according to Bothern, could have a significant effect on M.T.’s ability to modulate her moods, emotions, and behavior. M.T. reported to Bothern that sometimes when she reminded Jayson about her medication, he would tell her she had already taken it, when she had not. Bothern testified, however, that Jayson recognized the need to be more consistent with the medication and expressed an intention to make greater efforts.

Bothern testified that she was also concerned about the children's physical safety. In April 2017, R.T. presented with a...

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