Jaeger v. Jaeger , 307 Neb. 910 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
Stacey R. Jaeger, appellant, v.
Duke E. Jaeger, appellee.
___ N.W.2d ___
Filed December 4, 2020. No. S-20-122.
1. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court. Although
reviewed de novo on the record, the trial court’s determination will gen-
erally be affirmed absent an abuse of discretion.
2. Rules of Evidence. In proceedings where the Nebraska rules of evi-
dence apply, they control the admissibility of evidence, and judicial
discretion is allowed only insofar as the rules make it a factor.
3. Trial: Evidence: Appeal and Error. Judicial discretion is allowed to
determine the relevancy of evidence, and such determination will not be
disturbed on appeal unless it constitutes an abuse of discretion.
4. Motions for New Trial: Appeal and Error. An appellate court reviews
a trial court’s ruling on a motion for a new trial or reconsideration for an
abuse of discretion.
5. Judges: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision or reasoning is clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters submit-
ted for disposition.
6. Modification of Decree: Child Custody: Proof. Custody of a minor
child will not ordinarily be modified absent a material change in circum-
stances, which shows either that the custodial parent is unfit or that the
best interests of the child require such action.
7. ____: ____: ____. It is the burden of the party seeking modification of
a child custody order to show two elements: first, that since entry of the
most recent custody order, there has been a material change in circum-
stances that affects the child’s best interests, and second, that it would
be in the child’s best interests to change custody.
8. Modification of Decree: Child Custody: Words and Phrases. A mate-
rial change in circumstances is the occurrence of something that, if it
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307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
had been known at the time the most recent custody order was entered,
would have persuaded that court to decree differently.
9. Modification of Decree: Child Custody. Circumstances having
occurred before the most recent custody order are relevant only insofar
as they bear on whether the change in circumstances since the most
recent custody order are material and substantial.
10. ____: ____. Before custody is modified, it should be apparent that any
material change in circumstances alleged will be permanent or contin­
uous, not merely transitory or temporary.
11. Child Custody. The wishes of a child are not controlling in determina-
tions of child custody.
12. ____. If a child is of sufficient age and has expressed an intelligent
preference regarding child custody, the child’s preference is entitled to
consideration, alongside other factors.
13. ____. The amount of consideration given to a child’s stated preference
regarding child custody will depend on the child’s age and ability to
give reasons for his or her preference.
14. Child Custody: Appeal and Error. Where a trial court’s order modify-
ing child custody demonstrates that the child’s age and reasoning have
been duly considered alongside the child’s stated preference, an appel-
late court will generally defer to the trial court’s credibility determina-
tions in the assessment of facts.
15. Child Custody. Certain factors that must be considered in the determi-
nation of a child’s best interests in the context of child custody include
(1) the relationship of the child to each parent prior to the commence-
ment of the action; (2) the desires and wishes of a sufficiently mature
child, if based on sound reasoning; (3) the general health, welfare, and
social behavior of the child; (4) credible evidence of abuse inflicted on
any family or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse.
16. ____. Certain factors that may be considered in the determination of a
child’s best interests in the context of child custody include the stabil-
ity of the child’s existing routine, minimization of contact and conflict
between the parents, and the general nature and health of the child.
17. Trial: Evidence: Appeal and Error. The admission or exclusion of
evidence is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party.
18. ____: ____: ____. Erroneous exclusion of evidence does not require
reversal if the evidence would have been cumulative and other relevant
evidence, properly admitted, supports the trial court’s finding.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Amie C. Martinez and Mona L. Burton, of Anderson, Creager
& Wittstruck, P.C., L.L.O., for appellant.
Jeanelle S. Kleveland, of Kleveland Law Offices, for
appellee.
Heavican, C.J., Miller-Lerman, Stacy, Funke, Papik, and
Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
A modified divorce decree in 2011 granted Stacey R. Jaeger
sole physical custody over her son, C.J., subject to parenting
time between C.J. and his father, Duke E. Jaeger. In 2018,
Duke petitioned to modify custody.
After hearing C.J. and the parties testify, the district court
transferred sole legal and physical custody over C.J. to Duke,
subject to Stacey’s parenting time. We affirm.
II. FACTUAL BACKGROUND
Stacey and Duke married in 2004 and lived together in
Imperial, Nebraska. They raised two sons: H.J., born in 1997
to Stacey’s previous marriage and adopted by Duke, and C.J.,
born in 2005 to Stacey and Duke. Only custody of C.J. is at
issue in this appeal.
Stacey filed for a divorce in 2006. A divorce decree was
entered in 2007. Under the divorce decree, Stacey and Duke
were granted joint legal custody over their sons, and Stacey
was granted sole physical custody, subject to Duke’s parent-
ing time.
In January 2008, Stacey filed a petition to modify the
divorce decree. She sought sole legal custody over H.J. and
C.J., and she requested that any visits between Duke and their
sons be supervised. Stacey alleged that Duke had physically
abused their sons.
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307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
In September 2009, before her petition was adjudicated,
Stacey moved with her sons to Waverly, Nebraska. Based
on this move, Stacey petitioned for the court to further limit
Duke’s visits with their sons to once every other weekend and
renewed her request that such visits be supervised. Stacey also
requested that the parties be ordered to meet in Lexington,
Nebraska, which was closer to her new home, to exchange
their sons between visits.
Around this time, conflict arose between Duke and H.J.,
who alleged that Duke had physically abused him. Stacey and
Duke agreed that H.J. would no longer spend time with Duke.
Since then, H.J. and Duke have remained estranged from
each other.
Between 2007 and 2010, Stacey made numerous allega-
tions that Duke was physically abusing C.J. The Nebraska
Department of Health and Human Services, the Nebraska State
Patrol, and the police department for the city of Imperial all
investigated. The district court appointed a guardian ad litem,
who “reviewed voluminous material and spoke with investi-
gators with the State Patrol, the Imperial Police Department,
DHHS investigators, some of the medical personnel, the coun-
selor for the children, and the children,” but concluded that the
evidence did not support Stacey’s allegations of abuse against
Duke. The guardian ad litem also did not recommend that Duke
be limited to supervised visits, but did recommend that he com-
plete family counseling.
In March 2011, the district court entered an order modifying
the divorce decree. Under the 2011 divorce decree, the parties
retained joint legal custody over C.J. and Stacey retained sole
physical custody over C.J. Duke was entitled to a minimum
of one visit every other weekend with C.J. during the school
year and 6 consecutive weeks’ visitation during the summer.
The district court declined Stacey’s request to require that
visits between Duke and C.J. be supervised. Weekday visita-
tion was eliminated, and the parties were ordered to exchange
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JAEGER v. JAEGER
Cite as 307 Neb. 910
C.J. in Kearney, Nebraska. Duke was ordered to complete fam-
ily counseling.
Stacey appealed the district court’s denial of her request for
sole legal custody over C.J. On appeal, in case No. A-11-330,
the Nebraska Court of Appeals affirmed the order in an unpub-
lished memorandum opinion filed on March 2, 2012.
On March 1, 2018, Duke filed a petition for modification
of the divorce decree in the district court for Chase County.
Stacey filed a motion to transfer pursuant to Neb. Rev. Stat.
§ 25-410 (Reissue 2016), and the case was transferred to the
district court for Lancaster County.
The issue before the district court was whether Duke had
shown a material change in circumstances that had not been
foreseeable when custody was last adjudicated in 2011. Duke
alleged that over the past 7 years, C.J. had grown, and that
now, as a 14-year-old child, he had expressed a mature desire
to live with Duke. The district court heard in camera testimony
from C.J. during which time only C.J., the parties’ attorneys,
and the judge were in the courtroom.
During this testimony, C.J. stated that he loved both of his
parents but desired to live with Duke. According to the dis-
trict court:
[C.J.] wants to live with his Dad because [they have]
the same interests in farming and working on tractors
and lawn mowers. They both enjoy hunting and fishing,
especially together. [C.J.] would like to have a future in
farming and hopes to inherit his Dad’s farms in Nebraska
and Colorado.
Because this reasoning was sound and C.J. was an eighth grade
student who “does well in school,” the district court found
C.J.’s testimony persuasive.
In contrast, the district court viewed Stacey’s testimony at
trial more skeptically. The district court found that Stacey “was
often not truthful or forthcoming in her testimony” and that she
had made coparenting very difficult for Duke.
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307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
The district court also considered evidence in the record that
Stacey was not meeting C.J.’s needs as his parent. The district
court noted that Stacey, a real estate broker, had earned an
adjusted gross income of only $21,817 in 2018, while Duke,
in retirement, had earned $52,141 in 2018. Further, Stacey’s
home, which the district court noted is “owned by her parents
and [for which she] pays only as much as she can afford for
rent,” was “cluttered and dirty,” according to testimony. In con-
trast, Duke owned a home and significant farmland.
Additionally, the district court stated that “[i]n the Court’s
opinion, [Stacey] is extremely overprotective and engage[d]
in parental alienation to the extent that it may be harmful to
[C.J.’s] general health, welfare, development and social well-
being.” The district court specifically noted the deterioration
of H.J.’s relationship with Duke as evidence that Stacey had
already “successfully alienated” one son from Duke. As to
H.J.’s allegations that Duke had been physically abusive, the
district court concluded, based on its observations at trial, that
Stacey “may have coached the children to say that [Duke] had
hit them.” The district court refused Stacey’s testimony about
her pre-2011 allegations of abuse against Duke, finding that
they were irrelevant to C.J.’s circumstances since 2011.
With these findings of fact, the district court concluded
there had been a material change in circumstances since 2011
to justify modification of the divorce decree. That is, had the
district court in 2011 “known that [Stacey] would continue to
engage in such behavior, [it] may have decided differently”
about C.J.’s living situation. Thus, the district court held that
it would be in C.J.’s best interests to be moved to Duke’s sole
legal and physical custody. Stacey was granted parenting time
on every other weekend and ordered to pay $305 per month to
Duke in child support.
Stacey filed a motion, pursuant to Neb. Rev. Stat. § 25-1144
(Reissue 2016), for a new trial and reconsideration. She
alleged that certain irregularities in the proceedings had pre-
vented a fair trial and that the judgment was not sustained by
sufficient evidence. On January 23, 2020, the district court
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307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
overruled Stacey’s motion for a new trial, though it amended
the previous order to designate C.J.’s in camera testimony
as confidential.
Stacey timely appealed, and we moved the case to our docket. 1
III. ASSIGNMENTS OF ERROR
Stacey assigns, consolidated and restated, that the district
court erred in (1) modifying the divorce decree to grant Duke
sole legal and physical custody over C.J.; (2) excluding, as
irrelevant, Stacey’s testimony about her past abuse allegations
against Duke; and (3) overruling her motion for a new trial
or reconsideration.
IV. STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court. 2 Although reviewed
de novo on the record, the trial court’s determination will gen-
erally be affirmed absent an abuse of discretion. 3
[2,3] In proceedings where the Nebraska rules of evidence 4
apply, they control the admissibility of evidence, and judicial
discretion is allowed only insofar as the rules make it a factor. 5
Judicial discretion is allowed to determine the relevancy of evi-
dence, and such determination will not be disturbed on appeal
unless it constitutes an abuse of discretion. 6
[4] An appellate court reviews a trial court’s ruling on
a motion for a new trial or reconsideration for an abuse
of discretion. 7
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
See State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182
(2020).
3
See id.
4
See Neb. Rev. Stat. § 27-101 et seq. (Cum. Supp. 2016 & Supp. 2019).
5
See Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020).
6
See id.
7
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
[5] An abuse of discretion occurs when a trial court’s deci-
sion or reasoning is clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. 8
V. ANALYSIS
1. Modification of Child Custody
The main issue presented on appeal is whether the district
court erred in modifying the 2011 divorce decree when it
transferred sole legal and physical custody over C.J. to Duke,
subject to Stacey’s parenting time. Stacey contends that this
modification was an abuse of discretion.
[6,7] Custody of a minor child will not ordinarily be modi-
fied absent a material change in circumstances, which shows
either that the custodial parent is unfit or that the best interests
of the child require such action. 9 It is the burden of the party
seeking modification to show a material change in circum-
stances. 10 Specifically, the movant must show two elements:
First, that since entry of the most recent custody order, there
has been a material change in circumstances that affects the
child’s best interests, and second, that it would be in the child’s
best interests to change custody. 11
Here, because it was Duke who sought to modify the district
court’s 2011 custody order, he had the burden of proving both
elements to justify modification.
(a) Material Change in Circumstances
[8-10] We have defined a material change in circum-
stances as the occurrence of something that, if it had been
known at the time the most recent custody order was entered,
8
See Dycus v. Dycus, ante p. 426, 949 N.W.2d 357 (2020).
9
See Tilson, supra note 5.
10
See id.
11
See id.
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JAEGER v. JAEGER
Cite as 307 Neb. 910
would have persuaded that court to decree differently. 12
Circumstances having occurred before the most recent custody
order are relevant only insofar as they bear on whether the
change in circumstances since the most recent custody order
are material and substantial. 13 Before custody is modified, it
should be apparent that any material change in circumstances
alleged will be permanent or continuous, not merely transitory
or temporary. 14
The district court found that C.J.’s testimony that he pre-
ferred to reside primarily with Duke was one factor that
weighed in favor of a conclusion that there had been a material
change in circumstances. C.J. was approximately 6 years old in
2011, when custody was last modified. But in 2018, during in
camera testimony, the district court found that C.J. had persua-
sively stated his preference and reasoning for being moved to
Duke’s sole legal and physical custody.
Stacey contends that it was an abuse of discretion for the
district court to rely so heavily on C.J.’s stated preference.
Stacey warned at oral argument that if a child’s stated prefer-
ence alone could establish a material change in circumstances,
then children throughout the state would become capable at
any time of asking for and being granted a change in custody.
According to Stacey, under a recent Court of Appeals opinion,
State on behalf of Slingsby v. Slingsby, 15 a child’s stated pref-
erence can constitute a material change in circumstances only
if it is coupled with evidence about an evolving relationship
between the child and parent.
We agree with Stacey that the Court of Appeals’ reasoning
in Slingsby is instructive here, but we disagree that it sup-
ports her position. In Slingsby, a father petitioned to modify
12
See Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020).
13
See Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
14
See Jones, supra note 12.
15
State on behalf of Slingsby v. Slingsby, 25 Neb. Ct. App. 239, 903 N.W.2d 491
(2017).
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JAEGER v. JAEGER
Cite as 307 Neb. 910
a divorce decree in an effort to gain primary physical custody
over his 15-year-old son. After the district court heard the son
testify that he preferred to live with his father because of their
shared interests in hunting, raising livestock, and being out-
doors, the district court granted the father’s motion to modify
custody. The Court of Appeals affirmed, reasoning that it was
not an abuse of discretion for the district court to conclude that
“[the son’s] stated preference to live with [his father] and his
evolving relationship with [the father] constituted a material
change in circumstances.” 16
Among the factors in Slingsby that indicated an evolving
relationship between the parent and child were that the son
(1) was 10 years older than the last time a divorce decree
was entered; (2) had developed interests in working outdoors
and hunting, interests that he shared with his father; (3) felt
“trapped” living at his mother’s house because he could not
get outdoors much or practice his new interests; and (4) was
struggling in school under his mother’s tutelage, but believed
his grades would improve at the school near his father’s house
because it offered an “‘ag class,’” smaller class sizes, and study
halls. 17 The Court of Appeals found that individually, these
factors each provided evidence of a material change in circum-
stances, and collectively, they also helped to explain the son’s
stated preference, entitling it to greater consideration. 18
The Court of Appeals’ reasoning, as set forth in Slingsby,
models how courts should consider children’s stated prefer-
ences in custody disputes. We have never held, nor do we
read Slingsby to hold, that a child’s stated preference, alone,
will suffice to establish a material change in circumstances.
Stacey’s fear that children could at any time be granted a
change in custody simply by asking is unwarranted.
16
Id. at 254, 903 N.W.2d at 501.
17
See id.
18
See Slingsby, supra note 15.
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307 Nebraska Reports
JAEGER v. JAEGER
Cite as 307 Neb. 910
[11] To the contrary, we have specifically held that “the
wishes of a child are not controlling” in determinations of child
custody. 19 Trial courts should consider a variety of factors that
bear on the best interests of the child. 20 Due consideration of
these factors will determine whether finding a material change
in circumstances is justified. 21
[12-14] But “if a child is of sufficient age and has expressed
an intelligent preference, the child’s preference is entitled to
consideration,” alongside other factors. 22 The amount of con-
sideration will depend on the child’s age and ability to give
reasons for his or her preference. 23 For example, in cases
where we have given the child’s stated preference significant
consideration, the child was typically over 10 years old. 24 And,
as Slingsby demonstrates, more consideration will be afforded
where additional factors that bear on the child’s best interests
undergird the child’s stated preference and reasoning. 25 Where
a trial court’s order demonstrates that the child’s age and rea-
soning have been duly considered alongside the child’s stated
preference, we will generally defer to the trial court’s credibil-
ity determinations in our assessment of facts. 26
Here, we find no basis for Stacey’s assertion that the dis-
trict court gave undue consideration to C.J.’s stated prefer-
ence. After hearing C.J. testify in camera and respond to
questions about his stated preference, the district court made
19
Leners v. Leners, 302 Neb. 904, 912, 925 N.W.2d 704, 711 (2019),
disapproved on other grounds, State on behalf of Kaaden S. v. Jeffery T.,
303 Neb. 933, 932 N.W.2d 692 (2019).
20
See Jones, supra note 12.
21
See id.
22
Leners, supra note 19, 302 Neb. at 912, 925 N.W.2d at 711.
23
See id.
24
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
25
See Slingsby, supra note 15.
26
See Tilson, supra note 5.
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JAEGER v. JAEGER
Cite as 307 Neb. 910
specific findings about how much consideration to give C.J.’s
stated preference. According to the district court, C.J. was
a mature 14-year-old child who demonstrated a capacity for
critical reasoning.
Additionally, many of the same factors that indicated an
evolving relationship and supported the son’s reasoning in
Slingsby were also present here. The district court specifi-
cally noted that since 2011, C.J. had grown 7 years older and
become significantly more mature; he had developed interests
in hunting, fishing, and working outdoors on tractors and lawn-
mowers, all interests that he now shared with Duke but not
with Stacey; he had spent time at Duke’s farm and realized a
healthy father-son relationship with him; he had earned money
for various jobs that he had performed on visits to Duke’s farm;
he had decided to become a farmer himself in the future and
wished to learn to farm from Duke, who was retired and had
time to teach C.J. about farming; and he had begun to show
independence by helping to manage Duke’s farmland.
Further, the district court found that Stacey’s behavior had
worsened over the past 7 years, raising questions about her
ability to meet C.J.’s needs and to effectively coparent with
Duke. Given all of these factors, the district court found that
if the court in 2011 had “known that [Stacey] would continue
to engage in such behavior, [it] may have decided differently”
about C.J.’s living situation.
Thus, contrary to Stacey’s assertion, there were many fac-
tors that the district court considered and found demonstrated
a material change in circumstances in addition to C.J.’s stated
preference. We do not find that the district court abused its
discretion in its consideration of these factors and its determi-
nation that there had been a material change in circumstances
that affected C.J.’s best interests.
(b) Best Interests of Child
Next, we consider the second element in a review of a
child custody modification: whether the modified custody
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JAEGER v. JAEGER
Cite as 307 Neb. 910
arrangement was in C.J.’s best interests. Stacey argues that
even if the district court did not err in finding a material
change in circumstances, it abused its discretion in determining
that a move of C.J.’s sole legal and physical custody to Duke
was in C.J.’s best interests.
[15] Consideration of the child’s best interests involves a
combination of both mandatory and permissive factors. Neb.
Rev. Stat. § 43-2923(6) (Reissue 2016) requires that certain
factors must be considered, including (1) the relationship of the
child to each parent prior to the commencement of the action;
(2) the desires and wishes of a sufficiently mature child, if
based on sound reasoning; (3) the general health, welfare, and
social behavior of the child; (4) credible evidence of abuse
inflicted on any family or household member; and (5) credible
evidence of child abuse or neglect or domestic intimate part-
ner abuse. 27
[16] Other relevant considerations that may also be con-
sidered include the stability of the child’s existing routine,
minimization of contact and conflict between the parents, and
the general nature and health of the child. 28 No one factor is
dispositive, and various factors may weigh more or less heav-
ily, depending on the case. 29
In support of her argument that the district court abused its
discretion in finding that C.J.’s interests would be best served
by the modified decree, Stacey again cites to Slingsby. 30 To
distinguish this case, Stacey contends that the district court’s
“lack of analysis and reasoning in this case pales in com-
parison to the trial court’s thorough analysis in Slingsby.” 31
We disagree.
27
Jones, supra note 12.
28
See id.
29
See id.
30
See Slingsby, supra note 15.
31
Brief for appellant at 16.
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JAEGER v. JAEGER
Cite as 307 Neb. 910
Contrary to Stacey’s assertions, the district court thor-
oughly analyzed how a change in custody would be in C.J.’s
best interests. The district court gave particular weight to the
shared interests between C.J. and Duke in farming. It found
that C.J. wished to become a farmer and determined that Duke,
who was retired but owned farmland, could teach C.J. to farm
if they lived together. Based on Duke’s testimony, the district
court deemed him “an honest and sincere man who wants the
best for [C.J.] and is a good role model for his son.”
The district court also found that Duke and C.J. had worked
well together and enjoyed each other’s company during Duke’s
parenting time over the years. Thus, the district court found
that C.J.’s stated preference to live with Duke made sense and
provided strong evidence that a change in custody would be in
C.J.’s best interests.
Moreover, the district court found that living with Duke
would be in C.J.’s best interests because Stacey had demon-
strated that she was “extremely overprotective” and tended to
alienate her sons from Duke in a way that was damaging to
C.J.’s “general health, welfare, development and social well-
being.” According to the district court:
In comparing [Stacey’s and Duke’s] character, their atti-
tude and stability, their capacity to provide the physi-
cal care and satisfy the educational needs of [C.J.], and
considering the general health, welfare, development and
social behavior of [C.J.], the Court finds that it would be
in [C.J.’s] best interest for him to reside with [Duke].
Based on the district court’s due consideration of these fac-
tors, which meet the statutory criteria, we do not find that it
was an abuse of discretion for the district court to find that a
modification of custody was in C.J.’s best interests.
We hold that Duke met his burden for a modification of the
2011 divorce decree. Thus, the district court did not abuse its
discretion in modifying the divorce decree in 2018 to move
C.J.’s sole legal and physical custody to Duke. Stacey’s first
assignment of error is without merit.
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JAEGER v. JAEGER
Cite as 307 Neb. 910
2. Exclusion of Testimony
Stacey assigns, second, that the district court failed to con-
sider relevant evidence that Duke had physically abused both
H.J. and C.J. in the past.
During direct examination at trial, Stacey’s counsel asked
Stacey whether she had made any allegations in the past
against Duke regarding physical abuse. Duke objected before
Stacey could answer, and the district court sustained Duke’s
objection. According to the district court, Stacey’s answer
to the question was irrelevant to the present case because it
would pertain only to allegations of physical abuse made prior
to 2011, and hence before the most recent decree was entered.
Stacey contends that it was reversible error for the district
court to sustain Duke’s objection and exclude her testimony
as irrelevant.
[17,18] The admission or exclusion of evidence is not revers-
ible error unless it unfairly prejudiced a substantial right of the
complaining party. 32 Erroneous exclusion of evidence does not
require reversal if the evidence would have been cumulative
and other relevant evidence, properly admitted, supports the
trial court’s finding. 33
As analyzed above, the district court found ample evidence
that the modified order would be in the best interests of C.J.
Even if the district court had considered Stacey’s testimony
about her pre-2011 abuse allegations against Duke, such evi-
dence would not have undermined the evidence in the record.
When the Court of Appeals in 2012 reviewed Stacey’s chal-
lenge to the 2011 divorce decree in case No. A-11-330, it
observed in an unpublished memorandum opinion that “[t]he
record is replete with evidence regarding Stacey’s concerns
about the children while in Duke’s care. However, the instances
of alleged abuse have all been unfounded.”
32
AVG Partners I v. Genesis Health Clubs, ante p. 47, 948 N.W.2d 212
(2020).
33
See id.
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The record before the district court contained ample evidence
of these pre-2011 allegations. The earlier Court of Appeals
opinion was in the record and cited by the district court. Stacey
does not assert that any of her testimony would have raised
allegations not already expressed in the record.
Thus, even if it was error for the district court to exclude
Stacey’s testimony about past abuse allegations, it was not
reversible error because Stacey’s testimony would have been
cumulative. We hold that the district court did not abuse its
discretion in excluding Stacey’s testimony. Stacey’s second
assignment of error is without merit.
3. Motion for New Trial
or Reconsideration
Stacey assigns, third, that the district court abused its discre-
tion in not fully granting her motion for a new trial or recon-
sideration. The district court granted Stacey’s motion in part
when it designated as confidential its summaries and quota-
tions from C.J.’s testimony. However, Stacey assigns that this
remedy was too little and that an entirely new trial should have
been ordered.
Neb. Rev. Stat. § 25-1142 (Reissue 2016) sets forth eight
grounds on which a motion for new trial may be sustained. 34
Stacey cites to the first and sixth among these, which require
that a new trial be granted if
(1) [i]rregularity in the proceedings of the court, jury,
referee, or prevailing party or any order of the court or
referee or abuse of discretion by which the party was
prevented from having a fair trial [or] (6) that the verdict,
report, or decision is not sustained by sufficient evidence
or is contrary to law. 35
Neither of these bases for a new trial are availing here. As
analyzed above, the district court’s decision was not contrary
34
See Cinatl v. Prososki, ante p. 477, 949 N.W.2d 505 (2020).
35
§ 25-1142.
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to law. Instead, it was amply supported by evidence in the
record. And aside from conclusory statements in her brief,
Stacey offers no evidence that she was in fact deprived of a
fair trial.
We hold that the district court did not abuse its discretion in
denying Stacey’s motion for new trial. Stacey’s third assign-
ment of error is without merit.
VI. CONCLUSION
We do not find that it was an abuse of discretion for the dis-
trict court to move C.J. to Duke’s sole legal and physical cus-
tody. Nor do we find that the district court abused its discretion
in excluding Stacey’s testimony about past abuse allegations
and overruling Stacey’s motion for a new trial. Accordingly,
we affirm the decision of the district court.
Affirmed.
Cassel, J., not participating.