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Geiss v. Geiss

Court of Appeals of Nebraska

June 18, 2013

Morgan R. Geiss, now known as Morgan R. Bennett, appellee,
v.
Eric M. Geiss, appellant.

1. Child Custody: Visitation: Appeal and Error. Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determinations will normally be affirmed absent an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

3. Appeal and Error. Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error.

4. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

5. ___: ___: ___. An appellant's failure to object to the limitation imposed by the trial judge effectively waives the right to raise that ruling as an error on appeal. 6. Appeal and Error. An appellate court may consider an issue not raised to the trial court if such issue amounts to plain error.

7. ___. Plain error may be asserted for the first time on appeal or be noted by the appellate court on its own motion. 8. Appeal and Error: Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

9. Effectiveness of Counsel A pro se litigant is held to the same standard as one who is represented by counsel, and the trial court has the inherent power to compel conformity with Nebraska procedural practice.

[20 Neb.App. 862] Appeal from the District Court for Lincoln County: Donald E. Rowlands, Judge.

Nicholas M. Froeschl, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellant.

Jeffrey M. Eastman, of Legal Aid of Nebraska, for appellee.

Sievers, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

INTRODUCTION

Eric M. Geiss appeals from the journal entry entered by the district court for Lincoln County on May 30, 2012, which denied Eric's "Complaint to Modify Child Custody." Eric asserts the district court abused its discretion when it prohibited him from cross-examining witnesses and calling any witnesses of his own. For the reasons that follow, we affirm.

BACKGROUND

The parties were divorced pursuant to a decree of dissolution entered by the district court for Lincoln County on August 24, 2009. Pursuant to the decree, Morgan R. Geiss, now known as Morgan R. Bennett, was awarded primary physical custody of the minor children of the parties: a daughter, born in 2003, and a son, born in 2005. Eric was awarded parenting time according to the visitation schedule the parties had previously established.

On June 15, 2010, Eric filed a "Complaint to Modify Child Custody, " seeking custody of the children. Eric also requested and was granted an ex parte order awarding him temporary custody of the children subject to Morgan's reasonable visitation. Morgan filed a "Motion to Dissolve Ex Parte Custody Order and Application for Custody" on June 22. On July 19, both parties appeared and were represented by counsel at a hearing regarding temporary custody and support. On July 28, the court awarded Eric temporary custody of the children.

On July 20, 2011, Morgan filed a "Motion to Waive Parenting Education and Mediation or Compel and Sanctions, " requesting that Eric be required to complete a parenting course and [20 Neb.App. 863] participate in mediation or, in the alternative, that he be prohibited from presenting evidence at trial on the issues of custody and visitation. The court's August 22 journal entry required Eric to schedule the parenting course and mediation within 14 days. He did not comply with that order.

On October 25, 2011, Morgan filed a second motion, alleging Eric failed to schedule an appointment with a mediator as previously ordered and seeking the same prohibitions as sanctions that would prohibit him from introducing evidence relating to custody and parenting time. Morgan's motion was set for hearing on November 1. The court's November 11 journal entry indicated that a hearing was held on the second motion and that Eric was to complete mediation by December 1. The court indicated the motion for sanctions would be held in abeyance. On December 14, the district ...


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