Armitage v. Armitage ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ARMITAGE V. ARMITAGE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RONNY L. ARMITAGE, APPELLEE,
V.
LORI R. ARMITAGE, APPELLANT, AND STATE OF NEBRASKA, INTERVENOR-APPELLEE.
Filed November 15, 2016. No. A-16-281.
Appeal from the District Court for Madison County: MARK A. JOHNSON, Judge. Affirmed.
Melissa A. Wentling for appellant.
Patricia M. Samuels, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellee.
INBODY, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
INTRODUCTION
Ronny L. Armitage and Lori R. Armitage were divorced in 2011; their divorce decree
provided for joint legal custody of their two sons, with physical custody awarded to Lori. On
February 17, 2016, the district court for Madison County modified the decree by awarding physical
custody of the children to Ronny, with Lori receiving parenting time on alternating weekends. Lori
appeals; finding no abuse of discretion, we affirm.
BACKGROUND
Ronny and Lori were divorced on April 5, 2011. They were awarded joint legal custody,
with Lori granted physical custody, of their two minor children, Chrystian (born in 2000) and
Cameron (born in 2003). Ronny was awarded parenting time every other weekend.
In response to the State filing an action seeking to increase Ronny’s child support
obligation, Ronny filed an “Amended Answer and Cross Complaint” on July 13, 2015, seeking
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physical custody of both Chrystian and Cameron. He alleged a material change in circumstances
based upon the boys’ expressed desire to live with him instead of Lori. The State’s child support
action was resolved by agreement; Ronny’s action for a change of physical custody proceeded to
trial on January 21, 2016. Ronny and Lori each verbally acknowledged to the judge at the
commencement of trial that the children could testify in the courtroom, one at a time, without the
presence of either parent or any other person except the attorneys. It was agreed the court would
ask questions and have a dialog with the children, and then the attorneys would have an opportunity
to ask questions.
Chrystian testified first; he was 15 years old and attended Norfolk Senior High School. He
agreed that he had expressed a desire to live with his father. At his father’s, Chrystian can “go into
the garage and do something I want to do, like what I want to do when I get older, I want to try to
be a mechanic like my dad.” Chrystian can sit in the garage and learn, and he “just feel[s] safer
there.” At his mother’s, he comes home and does the same thing every day and there is nothing he
can do there to help him learn.
Chrystian did not “feel as safe” at his mother’s house. Lori’s relatives, “ever since this has
been going on, they’ve been pressuring me, making me feel uncomfortable, and it’s been really
hard.” As an example, Chrystian described how he would be conversing with an uncle about the
future and say how it “would be nice if we had this one day,” and his uncle would respond, “too
bad you’re going to be living with your dad.” This would make Chrystian “feel really bad.” And
upon his return from his father’s house, the first thing his mother wanted to know was what he did
that weekend. And if the boys did not want to talk to her, she would get “really angry” and go
down to Chrystian’s room and sit on his bed and not leave. Chrystian would explain to her that his
father never does that, even though his father does not get to see them for two weeks. Chrystian
says his mother always gets mad and then she complains about not getting enough money.
Both parents talked about money matters, and if their father bought something for them,
their mother “will be mad that dad bought us it.” As an example, Chrystian talked about Cameron
going to their father’s “with these old rickety shoes, they were torn up and everything,” and
Cameron said he wanted new shoes but “mom won’t buy him shoes.” When they returned to their
mother’s with Cameron’s new shoes, “she threw a big fit about how, why did dad buy you those
and how come he’s the favorite one.”
Chrystian said his mother has “changed a lot.” He gave as an example how he “was
screwing around on a dirt road when [he] shouldn’t have been and [he] rolled” his truck coming
from school. When the ambulance arrived, his mother told him he did not need to go to the hospital
“but she seemed really weird, she seemed like she cared way too much. Like if she wasn’t around
people, I don’t think she would have cared that much.” He proceeded to describe a time he fell
down the stairs at her house and felt like he broke his ankle. He yelled for her and she looked over
at him and asked if he was hurting. He responded that he thought he needed to go see a doctor, and
she said they would go in the morning. He told her “my leg really hurts,” and “she just started
laughing at me, and I thought that was really rude.” He pulled a tendon or something in his ankle
and “was in this little boot thing for a week. But I just can’t forget that day now, that she laughed
at me.”
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Chrystian also talked about how his back had been hurting for a couple years, “and since
this court thing came up, she’s been trying to butter me up, and she took me to the doctor[’]s” for
an x ray. Chrystian will not let his father take him to the doctor “because she’ll throw a fit.” And
“there’s like a whole different side of her that comes out when I start talking about what we did
over the weekend, like we did this with dad, we did that, or Nicole cooked us supper, that really,
oh, she don’t like that.” One night Chrystian was “really mad” and his mother told him to “pack
his stuff and leave.” He talked about how he and Cameron and their mother got into an argument
following the time Chrystian rolled his truck. Cameron had made a sign that said “rest in peace
1994 Ford Ranger,” and their mother did not like that. She said she was going to take it down and
she left. Cameron and Chrystian were “ticked off,” so they headed towards the location of the sign
but decided to call their father to pick them up. Their mother did not call looking for them that
evening; Chrystian said, “wouldn’t you call if you get home at night and your boys aren’t home,
wouldn’t you call right then instead of eight o’clock the next morning?” Chrystian did
acknowledge that he did not call his mother, that he and Cameron “were mad at her, but that would
have been the right thing to do, to call her.”
Chrystian’s room is in the basement at his mother’s house; Cameron’s room is across the
hall. Chrystian took the bus to and from school. When asked to describe his routine at his mother’s
house during the week, Chrystian said he heads upstairs, gets everything ready, and then waits for
the bus. His mother “sometimes makes me breakfast when I ask,” but he usually did not eat
breakfast. Medication that Chrystian had been taking for a couple of years made him not hungry,
so he would often not eat at all during the day. When Chrystian would get home from school
around 4:00 p.m., he would go down to his room and watch television or play games. Chrystian
said he is not old enough for the games he plays (e.g. Call of Duty, Grand Theft Auto), so he has
his mother buy them. “They’re not really something I should be playing, but I play them because
I got nothing else to do.” When his mother comes home, “she makes supper and then she hollers”
and they go upstairs. For the “past year she’s been talking about court, that’s all we talk about at
dinner.” Chrystian takes his food and goes back to his room because he knows that is what she
wants to talk about, and “every time we talk about it, it puts me in a horrible mood.” His mother
will later go down to his room and sit on his bed and talk about it, and when he will not answer
her, she leaves. As for weekends, he watches television; “I’m in my room because I have nothing
else to do.”
Although Chrystian was taking the bus to and from school, his father bought a truck, “the
exact same truck as my old one that I rolled,” but it had a couple problems. He and his father “took
the parts off the old one and put it on the new one and then it was good to go,” but he cannot drive
it yet because it has no insurance. Prior to his father replacing his truck, Chrystian said his mother
did not want to buy another one, but then said she did, and she told him that “if you would just
quit this court thing, then I would be able to buy you a truck.” When he told her no, she said, “Well,
you’re not getting a truck then.”
Chrystian also described how his mother recently bought Cameron a brand new
queen-sized bed, and that Cameron got a smart phone when he was in fifth or sixth grade and when
“it got ran over by a pay loader,” his mother gave Cameron her old smart phone which Cameron
did not like, so their uncle gave Cameron a phone and Chrystian still has his “old junky one.” His
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mother told him she will not buy him another one because “we’re going to wait until court, and
she just throws that in my face every time I want something. And Cameron will get what he wants
because she thinks he wants to stay with [her].” Chrystian talked about his chores at his mother’s
house and how he thought it was unfair Cameron did not have to do any chores.
Chrystian talked about how his brother was “not typical.” He said, “I grew up and if I
cussed I got whipped. He cusses every day. I don’t understand how she used to be a parent that if
you cussed you usually got soap, now he don’t get it, and I remember it, it was a bar soap, she’d
scrape it on your teeth and it was not right, but you learned after that.” Chrystian believed that “the
baby of the family gets what he wants.”
Chrystian said Lori’s boyfriend, Bill, was “nice” and “very smart,” but that “it’s kind of
weird how I don’t know that he’s in the house, and she likes to keep him a secret. I don’t know,
there’s something not right.” Chrystian did not have any trouble with Bill other than “he’s just
kind of creepy to me . . . well, I just don’t know when he’s there.” Bill is there “early morning,”
and although he does not see him, he knows he is there because Cameron’s room is apparently
below the upstairs bedroom and Cameron “can hear stuff up there,” and when they go to the kitchen
where his mother makes toast for Bill, Chrystian can hear them. On the weekends, Bill is usually
there during the day.
Chrystian said that Ronny’s girlfriend, Nicole, and her two daughters live with Ronny.
Nicole’s younger daughter is younger than Cameron, and the older daughter is always at work and
comes home now and then. Chrystian says they are “really nice girls, they’re not mean,” but that
Cameron thinks they are annoying. When Cameron says “he thinks a younger sister would be
horrible,” Chrystian thinks, “what do you think a younger brother is like?” Christian says he gets
along “[p]retty good” with Nicole, and that she is “like another mom to me.” He explained that
she is “really nice” and she “kind of cares.” For example, when he rolled his truck, “[Nicole] told
me, ‘I’d rather see a hundred trucks rolled than have you hurt’ because a truck is replaceable, I’m
not. That’s what my dad told me.”
On Friday nights at his father’s house, they usually watch movies or play board games. On
Saturday morning, his father will wake him up, sometimes tickling his feet which Chrystian says
“makes me mad,” but he will get up and Nicole has made cinnamon rolls which he really likes,
and that is how the day starts. They talk about what they are going to do for the day, and if they
are not going to do much, Chrystian and Cameron will ride around town with the four-wheeler or
his go-cart or his new motorcycle. Chrystian will go see what his father is doing in the garage,
“and if he’s working on something, I’ll usually stay there and help him because I think that’s really
fun.” On Sunday mornings, Nicole will cook in the morning and they discuss what they are doing
for the day. He and Cameron will ride four-wheelers, or recently they had to take their deer to the
guy who was going to de-bone them. “Cameron is really interested in that kind of stuff.” Chrystian
said that “there’s never a day where there’s nothing to do,” that he likes that, and he does not “have
to worry about them sitting me down and talking to me about court like my mother does.”
During summer vacation, Chrystian said he goes to visit his “big brother” who lives with
a family over by Butte in Atkinson, Nebraska. And while there, Chrystian works driving the
tractor, fixing fence, and “it’s really fun there because I can get away from everything down here,
and it’s like a time to relax.” Cameron also testified about working for this family in the summer
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and just “helping them out around the farm.” Cameron also liked being there; he said, “It’s fun[,]”
and “[i]t’s the highlight of the summer.”
Chrystian said the best thing about living with his mother is “I got a TV and I can watch
TV.” His least favorite thing there is “[t]hat it’s boring.” Chrystian said his mother tries to make it
exciting, so she will get a movie, but then she will talk about court when watching the movie. The
best thing about being with his father is working on vehicles in the garage. “I love doing that, it’s
really fun.” His least favorite is when something breaks and they cannot go to town to get parts
right away, and then he stated, “There’s not really anything I don’t like.”
Cameron, age 12, was in the seventh grade at Norfolk Junior High School at the time of
trial. In response to where he would like to live, Cameron said, “I would like to do half and half.”
Cameron liked living at both places.
Cameron testified that he usually arrived home from school around 4:00 p.m. and either
played videogames in his room, played with his cats, or watched television until his mother
returned from work. When Cameron heard his mother arrive home, he would go upstairs and
usually watch her cook dinner. After dinner, Cameron said everyone takes their shower and then
“we’ll go down to our bedroom” and watch YouTube and fall asleep. Cameron has a 32-inch flat
screen connected to Direct TV. Cameron can have friends over when he wants and “mom knows
all my friends.” Cameron’s favorite thing about living with his mother is “[p]robably we got Xbox
One and TV and everything, and we got our cats over there.” When asked about his least favorite
thing, he said, “I really haven’t thought of this one[,]” and then said, “Chores, maybe.” He said he
takes out the trash and Chrystian cleans out the litter box.
When Cameron was asked whether he talked with either parent about what was going on
in court, he said, “Not very often. Usually with my mom.” Cameron says he is “all right” talking
about it. When asked if he talked “about that sort of stuff with your dad,” Cameron said no, and
explained, “We’re usually out in the garage working on cars or working on our four-wheelers or
something.”
At his father’s house, Cameron said Nicole rents movies on Friday nights. He likes Nicole
and her daughters are “[a]ll right[,]” although he added, “One’s a little talkative.” He said he and
Chrystian have separate rooms in the basement at their father’s, and that his water bed is
“awesome.” In the morning, Cameron will “wake up and smell cinnamon rolls,” and then go back
to bed until his father comes down and gets him up. They will usually work on a car in the garage,
or play board games, and on Sunday they go to town and shop or work on a car.
Cameron’s favorite thing to do at his father’s was having their “four-wheelers and
everything over there.” His least favorite thing was working on cars; “I like working on
four-wheelers better than cars.”
Cameron said “[y]eah” when asked if he got along well with both parents, and whether he
would be comfortable talking to both of them if he had any concerns. When asked if there was one
he would feel more comfortable talking to than the other, he replied, “Maybe my mom since I’ve
lived with her longer.”
Cameron wants equal time with his parents, explaining “it’s equal so you don’t have
nothing to fight over or nothing, you have equal time.” Cameron said he gets along with Chrystian
sometimes, but not “[i]f there’s any, like, he takes my food or something[.]”
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No other witness testimony was offered; the attorneys indicated at the close of evidence
that this was by stipulation of the parties. Each party’s child support calculation was also received
as evidence.
The district court entered a “Modification of Decree” on February 17, 2016. In that order,
the court stated that the children testified, and other than evidence pertaining to child support, that
was the only evidence. The court noted that Chrystian wanted custody changed to his father, and
Cameron wanted equal time with his parents, and proceeded to summarize the testimony of the
boys as described above. The court concluded both parents were fit to have custody, and that
“[b]oth parents appear to have the children’s best interests in mind, as reflected, in part, in their
willing agreement not to be present in the courtroom to allow their boys to speak freely with the
Court.” The court next examined whether modification of custody was required due to the best
interests of the children.
The court found Chrystian “obviously is very attached to his father and the environment
provided at father’s home keeps Chrystian engaged in activities other than video games.” The court
also noted that Chrystian enjoys working with his father on mechanics in the shop, enjoys the
general outdoor environment at his father’s place, and enjoys the “go-carts, motorcycles and the
like with his father.” The court stated, “The time his father spends with him is truly enjoyed by
Chrystian.”
In contrast, the court discussed Chrystian’s routine at his mother’s house where upon
coming home from school, he immediately goes to his room and plays video games. He emerges
from his room briefly to get dinner, although sometimes eats in his room, and then returns to his
video games for the remainder of the evening. The court stated, “It seems to the Court that
Chrystian resents not having the same type of relationship with Mom as he has with Dad. He
blames Mom for this seeming lack of close relationship.”
As for Cameron, the court noted that he “seems to enjoy being with his mother as well as
his father and would just prefer to have ‘equal’ time with both parents.” The court concluded,
however,
that Dad is more engaged with the boys, than Mom, and he personally involves both boys
in activities as a family or just with Dad. This is a substantial beneficial and positive
environment for both boys and they, in their own manner, expressed this clearly through
their respective testimonies. While Mom has not been found unfit, the evidence is clear
that Mom is not as actively engaged with the boys and allows them to stay in their rooms
for extended periods of time without interacting with them. This, in the Court’s opinion, is
detrimental to the boys’ overall well-being and not in their best interests and warrants a
finding of a material change in circumstances.
....
The relationship between the mother and Chrystian has deteriorated to the point
that Chrystian seems almost hostile when speaking of his mother. Chrystian is isolated and
allowed to continue to be isolated at his mother’s home, which this Court finds is not in his
best interests. Dad is involved with Chrystian on a day-to-day basis which the Court finds
is in Chrystian’s best interests.
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Cameron, while somewhat ambivalent and desiring to live with both parents on a
50/50 basis, does express that life at Dad’s is more rewarding and enjoyable. Both minors
expressed their desires sufficiently and the reasons for their desires were articulated well
for the Court.
(Emphasis in original.)
The district court ordered continuation of joint legal custody, but that physical custody of
the children was awarded to Ronny. Parenting time was awarded to Lori as set forth in the “Seventh
Judicial District’s Uniform Visitation Guidelines,” but the every other weekend parenting time
was expanded to commence on Thursdays after school or 5:00 p.m., whichever was later, and
conclude on that next Monday morning at 9:00 a.m.
ASSIGNMENT OF ERROR
Restated, Lori assigns that the district court erred in finding a material change in
circumstances warranting modification of the divorce decree as to the physical custody of the
children.
STANDARD OF REVIEW
Child custody determinations are matters initially entrusted to the discretion of the trial
court, and although reviewed de novo on the record, the trial court’s determination will normally
be affirmed absent an abuse of discretion. State on Behalf of Jakai C. v. Tiffany M., 292 Neb. 68,
871 N.W.2d 230 (2015).
An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
ANALYSIS
Lori argues that the district court “erred in finding that Ronny met his burden of showing
a change in circumstances warranting a modification of the physical custody of Chrystian and
Cameron, or that a change in custody was in their best interest.” Brief for appellant at 12. She
states that Ronny alleged as “his only ground for a material change in circumstances” that the boys
have expressed a desire to reside with their father. Id. She acknowledges that the wishes of a child
of sufficient age are entitled to consideration, but that the district court “appears to have made
Chrystian’s desire to live with Ronny controlling in its decision, which is erroneous and must be
reversed.” Id.
The legal principles governing modification of child custody are well settled. Ordinarily,
custody of a minor child will not be modified unless there has been a material change in
circumstances showing that the custodial parent is unfit or that the best interests of the child require
such action. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). A material change in
circumstances means the occurrence of something which, had it been known to the dissolution
court at the time of the initial decree, would have persuaded the court to decree differently. Id. The
party seeking modification of child custody bears the burden of showing a change in
circumstances. Id. Before custody may be modified based upon a material change in
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circumstances, it must be shown that the modification is in the best interests of the child. Id.
Importantly, the best interests of the child are paramount. Steffy v. Steffy, 287 Neb 529, 843 N.W.2d
655 (2014).
MATERIAL CHANGE IN CIRCUMSTANCES
The district court concluded there had been a material change in circumstances affecting
both boys. In its modification order, the court stated that Ronny is more engaged with the boys
than Lori, and that Ronny involves the boys in activities with himself and as a family. The court
added, “This is a substantial beneficial and positive environment for both boys and they, in their
own manner, expressed this clearly through their respective testimonies.” The court went on to
note that although Lori had not been found unfit, the evidence demonstrated that she was not as
actively engaged with the boys and “allows them to stay in their rooms for extended periods of
time without interacting with them.” The district court found that this was “detrimental to the boys’
overall well-being and not in their best interests and warrants a finding of a material change in
circumstance.”
Lori relies on Adams v. Adams, 13 Neb. Ct. App. 276, 691 N.W.2d 541 (2005), which she says
is “a case on point.” Brief for appellant at 12. In that case, the daughter at issue in a custody
modification action was 12 years old at the time her parents initially divorced; and at that time, the
parties agreed the father would have physical custody of the parties’ two daughters. The mother
had been an alcoholic since the age of 20, and this was one of the problems that led to the divorce.
Three years after the divorce, the mother filed an action to modify custody of the younger daughter;
by the time the modification action went to trial, that daughter was 16 years old. In addition to the
daughter’s testimony stating her preference to live with her mother, both parents testified. The
district court denied the mother’s request to change physical custody, noting that although the
mother appeared to have made gains in treating her alcohol problem, the mother’s relationship
with her current husband involved screaming, shouting and an assault. The district court found
neither parent was unfit, that the daughter loved both parents, and that the daughter’s preference
was to live with her mother, even though the daughter found little fault with her father. Among
other reasons provided in support of its decision not to change custody, the district court expressed
concern about whether the mother would encourage the daughter’s relationship with the father
because based on past behavior, the mother demonstrated she did not feel obligated to follow
orders of the court. The district court concluded it was not in the daughter’s best interests to change
custody. Adams, supra.
On appeal, we concluded that “our de novo review of the record does suggest that a material
change in circumstances affecting [the child’s] best interests has indeed occurred[.]” Adams v.
Adams, 13 Neb. Ct. App. at 285, 691 N.W.2d at 549. We noted that the child’s relationship with each
parent had changed and that the mother’s behavior had improved. We acknowledged that the
daughter appeared to have a better relationship with her mother than her father, and that she clearly
preferred to live with her mother. “However, the district court’s order makes it clear that in its
judgment, [the daughter’s] general health and welfare would be best served by her remaining in
[her father’s] custody.” Id. at 286-87, 691 N.W.2d at 550. We concluded it was not an abuse of
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discretion for the district court to find that it was in the daughter’s best interests to remain in her
father’s custody.
Lori argues, that unlike the child in Adams, supra, “Chrystian’s reasoning for wanting to
live with Ronny can be considered, at best, immature,” which she says the district court noted in
its order. Brief for appellant at 13. Lori states the evidence showed both boys to be “well adjusted,
normal teenage boys.” Id. at 14. Further, the “only reason Chrystian desired to live with Ronny
was that he perceived Ronny as the fun parent,” and that “Lori was ‘boring.’” Id. Lori suggests
that Ronny “failed to meet his burden of showing a material change in circumstances,” as there
was no testimony Ronny ever spent an extended time with the boys; in fact, the boys spent their
summer with their older brother rather than their father. And, she says, “[t]here was no evidence
Ronny ever attended to the boys’ medical needs, made any of their meals, or attended any of their
events.” Id. at 15. Lori appears to be arguing that the things the boys failed to discuss should carry
more weight than the things they did discuss. It bears reminding here that the parties agreed that
the boys would testify and no further evidence regarding custody would be offered. Therefore the
trial court and this court are limited to considering only what the boys did say, all of which was
unrefuted by any other evidence.
We do not find Adams, supra, supportive of Lori’s position that there was no material
change in circumstances in this case. As noted above, we concluded the evidence in Adams was
sufficient to find a material change in circumstances based upon the child’s changing relationship
with each parent and positive changes in the mother’s behavior since the time of divorce; we find
the evidence in this case to likewise support a material change in circumstances. The application
of Adams, supra, to this case may have more persuasive value in the best interests analysis, which
we discuss later.
We find Floerchinger v. Floerchinger, 24 Neb. Ct. App. 120, 883 N.W.2d 419 (2016), to be
more relevant to our analysis, both with regard to a material change in circumstances and best
interests. In Floerchinger, this court affirmed a district court’s modification of a change in physical
custody based upon a material change in circumstances stemming from a son’s expressed desire
to live with his father in Nebraska. The son had been living with his mother in Maine for almost
11 years; at the time of trial, he was 13 years old. In that case, the son testified that he preferred
living in Nebraska due to the comfortable and relaxed environment at his father’s house and
because he enjoyed the interaction he had with his father. In Maine, among other things, the son
stated he was pestered by his stepsiblings.
We noted that the Nebraska Supreme Court has stated that “while the wishes of a child are
not controlling in the determination of custody, if a child is of sufficient age and has expressed an
intelligent preference, the child’s preference is entitled to consideration.” Floerchinger v.
Floerchinger, 24 Neb. Ct. App. at 140-41, 883 N.W.2d at 434 (citing to Vogel v. Vogel, 262 Neb.
1030, 637 N.W.2d 611 (2002)). Further, “in cases where the minor child’s preference was given
significant consideration, the child was usually over 10 years of age.” Id. at 141, 883 N.W.2d at
434. In Floerchinger, the district court found a material change in circumstances had occurred
subsequent to the decree which justified modification of custody and that such modification was
in the best interests of the child. We noted that “[t]he [district court] specifically focused on [the
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child’s] desire to reside with [his father] in Nebraska, concluding that [the child] was articulate
and that his decision was based on sound reasoning.” Id.
We are also guided by Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989), where our
Supreme Court affirmed a district court’s decision to modify custody of a 15-year-old child from
his mother to his father. The evidence in that case showed that the son had “a poor emotional
relationship with his mother” and that she “has lost control of her son.” Id. at 784, 438 N.W.2d at
141. The son constantly expressed the desire to live with his father and engaged in violent and
troubling behaviors. The son told the judge he “needed more discipline and that he felt his father
was the only one who could provide it.” Id. at 785, 438 N.W.2d at 142. Mental health experts
supported the change. Our Supreme Court concluded that the “deterioration of the relationship
between [the son] and his mother, her inability to control or discipline him, and his obvious
preference for living with his father clearly constitute a material change of circumstances which
in the best interests of [the son] mandated a modification of custody.” Id. While there were
certainly more extreme child behavioral issues in Miles than in this case, it is nevertheless
instructive that the deterioration of a child/parent relationship and a child’s preference can support
a material change of circumstances.
The cases discussed above which involved children expressing their preferences on
custody: Adams, supra, (child’s relationship with each parent changed), Floerchinger, supra
(better interaction with father, and more comfortable, relaxed environment at father’s house), and
Miles, supra (deterioration of child/parent relationship), all support the district court’s
determination in this case that there had been a material change in circumstances. Chrystian was
isolated at his mother’s house, his relationship with his mother had deteriorated, and there was
better interaction and a more engaged family-oriented environment at Ronny’s house. Further, as
noted by the district court, the lack of interaction between Lori and both boys was “detrimental to
the boys’ overall well-being and . . . warrants a finding of a material change in circumstances.”
We conclude the district court did not abuse its discretion in making this determination.
However, before custody may be modified based upon a material change in circumstances,
it must be shown that the modification is in the best interests of the child. Schrag v. Spear, 290
Neb. 98, 858 N.W.2d 865 (2015). We consider that next.
BEST INTERESTS
Neb. Rev. Stat. § 43-2923(6) (Cum. Supp. 2014) requires a court, in determining custody
and parenting arrangements, to consider certain factors relevant to the best interests of the minor
child, including in pertinent part: the relationship of the minor child to each parent prior to the
commencement of the action, the desires and wishes of the minor child, if of an age of
comprehension but regardless of chronological age, when such desires and wishes are based on
sound reasoning; and the general health, welfare, and social behavior of the minor child.
Additionally, a court may consider matters such as the moral fitness of the child’s parents,
including the parents’ sexual conduct; respective environments offered by each parent; the
emotional relationship between child and parents; the age, sex, and health of the child and parents;
the effect on the child as the result of continuing or disrupting an existing relationship; the attitude
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and stability of each parent’s character; and the parental capacity to provide physical care and
satisfy the educational needs of the child. Schrag, supra.
We recall here Lori’s reliance on Adams v. Adams, 13 Neb. Ct. App. 276, 691 N.W.2d 541
(2005), where this court affirmed a district court’s decision to leave a minor daughter in her father’s
custody despite the daughter’s preference to live with her mother. It appears Lori is arguing that
Adams is an example of a child’s preference not controlling the outcome of the custody decision;
hence, such a preference should not control here. We agree that a child’s preference should not be
the controlling factor; rather, a child’s preference is one factor that may be considered by a trial
court in deciding the best interests of the child in a custody decision. However, as in Adams, a
child’s preference on custody was not the only “best interests” factor considered by the district
court. The district court in the present case found that Ronny was more engaged with the boys than
Lori, and that he involved the boys in family activities. The court specifically found that Lori was
not as actively engaged with the boys and allowed them to stay in their rooms for extended periods
of time without interaction. The court found this to be “detrimental to the boys’ overall well-being
and not in their best interests[.]” Significantly, the court found:
The relationship between the mother and Chrystian has deteriorated to the point that
Chrystian seems almost hostile when speaking of his mother. Chrystian is isolated and
allowed to continue to be isolated at his mother’s home, which this Court finds is not in his
best interests. Dad is involved with Chrystian on a day-to-day basis which the Court finds
is in Chrystian’s best interests.
Further, with regard to Cameron, the court stated that “while somewhat ambivalent and
desiring to live with both parents on a 50/50 basis, [Cameron] does express that life at Dad’s is
more rewarding and enjoyable.” Finally, the court found that “[b]oth minors expressed their desires
sufficiently and the reasons for their desires were articulated well for the Court.”
The district court did not place controlling weight on the boys’ preferences on where to
live; rather, the court focused more on the existing relationships between the children and each
parent, as well as the overall environments available for the children at each parent’s home. The
higher level of activity and engagement at Ronny’s home was preferred over the isolation in the
basement watching television and playing video games at Lori’s home. Further, while the presence
of Ronny’s girlfriend and her daughters was open and more family-oriented with dinners, movies
and board games, the presence of Lori’s boyfriend was more secretive and made Chrystian feel as
though “there’s something not right.” That the district court observed Chrystian to seem “almost
hostile when speaking of his mother,” is troubling, and we agree with the district court that the
deterioration of Chrystian’s relationship with his mother and his isolation at his home are not in
his best interests. We also find troubling Lori’s persistence in asking the boys for details of their
weekends with their father and then being obvious about not liking what she heard, such as Nicole
making the boys dinner. Also problematic were Lori’s persistent attempts to discuss the pending
court case, and her anger when Ronny would buy the boys something, like how “she threw a big
fit” when Ronny bought new shoes for Cameron. We cannot say the district court abused its
discretion in finding that a change in physical custody from Lori to Ronny was in children’s best
interests.
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Lori argues that even if the evidence supports a change in physical custody for Chrystian,
“there is absolutely no evidence in the record to support changing the physical custody of Cameron
from Lori to Ronny.” Brief for appellant at 15. Lori acknowledges that public policy favors
keeping children together whenever possible, but such policy does not, in all cases, prevent the
splitting of the custody of children. She suggests that the boys were not so bonded that they could
not be separated, they did very little together, they went to different schools, they had different
friends, and they only seemed to spend time together at Ronny’s riding their various vehicles
through town, which they could continue to do on alternating weekends. Lori notes that although
Cameron testified he desired equal parenting time, “he felt more comfortable talking to Lori[,]”
and that “Lori listened to him.” Brief for appellant at 16.
It is sound public policy to keep siblings together when a marriage is dissolved, but the
ultimate test remains the best interests of the children. Citta v. Facka, 19 Neb. Ct. App. 736, 812
N.W.2d 917 (2012). When deciding custody issues, the court’s paramount concern is the
child[ren]’s best interests. Id. However, considerations of public policy do not, in all cases, prevent
the splitting of the custody of the children; rather, the ultimate standard is the best interests of the
children. Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977). See, also, Beran v. Beran, 234
Neb. 296, 450 N.W.2d 688 (1990) (close relationship between youngest and oldest daughters was
strong factor warranting reversal of trial court’s split custody order).
The district court stated, “Cameron, while somewhat ambivalent and desiring to live with
both parents on a 50/50 basis, does express that life at Dad’s is more rewarding and enjoyable.”
Further, the record reveals that Cameron and Chrystian enjoy doing many activities together, like
riding around in their various vehicles, playing games, working on cars or four-wheelers in the
garage, and spending time with their older brother on the farm in Atkinson. The brothers clearly
share enough of a bond that when their mother was angry about the sign Cameron made that said,
“rest in peace 1994 Ford Ranger,” they both took off together, on foot, united in their cause.
While the “best interests” evidence favoring a change in custody was stronger with regard
to Chrystian, it is evident that the district court was also concerned about the relationships each
parent had with the children. The court found Lori’s lack of interaction with both boys was
“detrimental to the boys’ overall well-being and not in their best interests[.]” Taking into
consideration those findings along with the public policy interests in keeping siblings together, we
cannot say the district court abused its discretion by awarding physical custody of both boys to
Ronny.
CONCLUSION
The district court did not abuse its discretion by modifying the divorce decree to award
physical custody of the children to Ronny; we affirm the court’s order.
AFFIRMED.
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