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05/31/2016 09:06 AM CDT




                                                         - 58 -
                               Decisions of the Nebraska Court of A ppeals
                                     24 Nebraska A ppellate R eports
                                              KENNER v. BATTERSHAW
                                                Cite as 24 Neb. App. 58




                                         Lacey M. K enner, appellant, v.
                                        Ryan James Battershaw, appellee.
                                                     ___ N.W.2d ___

                                           Filed May 31, 2016.    No. A-15-776.

                1.	 Child Custody: Appeal and Error. 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.
                2.	 Child Custody. Ordinarily, custody of a minor child will not be modi-
                    fied 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.
                3.	 Modification of Decree: Child Custody: Proof. Before custody of a
                    minor child may be modified based upon a material change in circum-
                    stances, it must be shown that the modification is in the best interests of
                    the child.
                4.	 Child Custody. Courts determining custody and parenting arrangements
                    must consider (1) the relationship of the minor child to each parent prior
                    to the commencement of the action or any subsequent hearing; (2) 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; (3) the general health, welfare, and social behavior
                    of the minor child; (4) credible evidence of abuse inflicted on any fam-
                    ily or household member; and (5) credible evidence of child abuse or
                    neglect or domestic intimate partner abuse.
                5.	 ____. In addition to statutory “best interests” factors, a court making
                    a child custody determination 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 relation-
                    ship 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 disrupt-
                    ing an existing relationship; the attitude and stability of each parent’s
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            Decisions of the Nebraska Court of A ppeals
                  24 Nebraska A ppellate R eports
                          KENNER v. BATTERSHAW
                            Cite as 24 Neb. App. 58

      character; and the parental capacity to provide physical care and satisfy
      the educational needs of the child.
  6.	 ____. The desires and wishes of the minor child are not determinative
      of custody but are just a factor to be considered by the trial court, when
      the child is of an age of comprehension and bases those desires on
      sound reasoning.

  Appeal from the District Court for Cherry County: M ark D.
Kozisek, Judge. Affirmed.
  Loralea L. Frank and Bergan E. Schumacher, of Bruner
Frank, L.L.C., for appellant.
   Michael S. Borders, of Borders Law Office, for appellee.
   Moore, Chief Judge, and Inbody and R iedmann, Judges.
   R iedmann, Judge.
                        INTRODUCTION
   Lacey M. Kenner appeals from an order of the district court
for Cherry County modifying a paternity decree and awarding
Ryan James Battershaw custody of the parties’ minor child.
After a de novo review of the record, we find that the trial
court did not abuse its discretion, and accordingly, we affirm
its modification order.
                        BACKGROUND
   Kenner and Battershaw have one son, Brayden Battershaw,
who is the subject of the custody modification order before
us. He was born in December 2006. Although Kenner and
Battershaw never married, the three of them lived together for
approximately 11⁄2 years after Brayden was born. A decree of
paternity was entered in 2010, and a stipulated agreement and
modified parenting plan was entered in 2012. The parties have
followed the 2012 parenting plan since it was entered; Brayden
lives with Kenner a majority of the time, but Battershaw exer-
cises significant parenting time for 1 full week each month and
every other weekend during the school year. In the summer, the
parties each exercise 6 weeks of parenting time.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                     KENNER v. BATTERSHAW
                       Cite as 24 Neb. App. 58

   At the time of trial, Kenner and Battershaw had each mar-
ried other people, and Brayden has a warm, bonded relation-
ship with both parents and both stepparents. Kenner also has
two younger children with her husband. With Kenner and her
husband, Brayden enjoys riding horses, “playing with Legos,”
going to church, swimming, fencing, haying, playing baseball,
and entering rodeos. With Battershaw and his wife, Brayden
enjoys playing board games and video games, fishing, hunting,
swimming, playing basketball, spending time outdoors, going
on road trips, and building cars. Battershaw has also recently
coached him in summer soccer and baseball. Brayden was
described during testimony as a happy child who makes friends
easily and is socially involved. He also has excellent reports
from school.
   Kenner and Battershaw each have routines when parenting
their son. Kenner is a stay-at-home mother and is available to
care for him and his half siblings after school and in the sum-
mers. Battershaw and his wife both work full time. Battershaw
works at a tire store, and his wife works at a law office. After
school or during the day in the summertime when Battershaw
is working, Brayden can go to the store with his father, go
to his stepmother’s office, read books in the library across
the street from the office, or spend time with other family in
Valentine, Nebraska, where Battershaw lives.
   At the time the current parenting schedule was agreed to and
entered, Battershaw lived in Valentine and Kenner lived on a
ranch south of Wood Lake, Nebraska, which is near Valentine.
Beginning in August 2014, Kenner’s husband had disagree-
ments with his father about the operations of the family ranch
and ultimately lost his job working there. Both parties and
their spouses searched for a new source of employment for
Kenner’s husband in the Valentine area; however, they were
unable to find employment in that area that met the family’s
income, housing, and livestock housing needs. Kenner’s hus-
band eventually obtained employment in Emmett, Nebraska,
which is approximately a 11⁄2-hour drive from the family’s
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                     KENNER v. BATTERSHAW
                       Cite as 24 Neb. App. 58

former home. Kenner’s husband moved to and began employ-
ment in Emmett in January 2015.
   Because of the distance of the Kenners’ move, Kenner filed
a complaint to modify the parties’ paternity decree and cus-
tody arrangement, seeking full physical and legal custody of
Brayden and asking to remove Battershaw’s full week each
month from the parties’ parenting time schedule. Battershaw
answered and filed a countercomplaint for modification also
seeking custody of Brayden. While awaiting trial on her
motion to modify, Kenner rented a home in Wood Lake so that
Brayden could finish the school year there and continue the
parties’ current parenting plan. The family spent weekends in
Emmett during the school year. At the end of the school year,
Kenner moved to Emmett with her husband, Brayden, and her
other children.
   Both Kenner and Battershaw testified at trial that they
are able to provide for their son’s needs in their homes.
If Brayden were to live with Battershaw, he would attend
school in Valentine. Although Battershaw could continue to
provide transportation for him to school in Wood Lake, that
school has only four students enrolled, and the Battershaws
own a home across the street from the elementary school in
Valentine. If Brayden lived with the Kenners, he would live
near the ranch outside Emmett and attend school in Atkinson,
Nebraska.
   During the trial, the court also conducted an in camera inter-
view with Brayden and asked, among other things, whether
he had a preference as to custody. We have considered the
contents of this sealed interview in our de novo review of
the record.
   At the close of evidence, the district court took the matter
under advisement, noting the difficulty of having to award
custody to one parent or the other given what a good job the
parents had done raising their son under their prior coparenting
plan. In a written order modifying the decree, the district court
awarded custody to Battershaw, and Kenner appeals.
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
                      KENNER v. BATTERSHAW
                        Cite as 24 Neb. App. 58

                 ASSIGNMENT OF ERROR
   Kenner assigns on appeal that the district court abused its
discretion when it granted Battershaw custody of Brayden.
                   STANDARD OF REVIEW
   [1] 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 determina-
tion will normally be affirmed absent an abuse of discretion.
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (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.
Id. A judicial abuse of discretion requires that the reasons or
rulings of the trial court be clearly untenable insofar as they
unfairly deprive a litigant of a substantial right and a just
result. Id.
                           ANALYSIS
Change of Circumstances.
   [2] Ordinarily, custody of a minor child will not be modified
unless there has been a material change in circumstances show-
ing that the custodial parent is unfit or that the best interests of
the child require such action. Schrag v. Spear, supra. 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.
   While even an out-of-state move does not automatically
constitute a change of circumstances, a significant move may
be a change of circumstances warranting modification depend-
ing upon other evidence. See id. In this case, the parties’
agreed parenting plan involved Brayden spending every other
weekend and 1 full week per month with Battershaw. See id.
Kenner’s move 100 miles away from Battershaw makes it
impractical to impossible for the parties to maintain this sched-
ule, particularly during the school year.
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
                      KENNER v. BATTERSHAW
                        Cite as 24 Neb. App. 58

   The district court determined that the parties’ prior par-
enting plan constituted a joint physical custody plan and
that modification was necessary to accommodate the move.
Referencing Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304
(2013), the district court found that although the parties’ stipu-
lated parenting plan stated that Kenner previously had physical
custody of Brayden, in fact the parties’ fairly even split of time
and share of day-to-day parenting constituted a joint physical
custody arrangement. Neither party appeals this determination.
The parties asserted, and the district court agreed, that the
move at issue in this case makes the custody plan of the prior
decree unworkable and constitutes a change in circumstances
warranting a custody modification. We agree.
Best Interests.
   Kenner argues that the district court abused its discretion
in determining that the best interests of Brayden were met by
granting custody to Battershaw. We disagree.
   [3,4] Before custody may be modified based upon a material
change in circumstances, it must be shown that the modifica-
tion is in the best interests of the child. Schrag v. Spear, supra.
Courts determining custody and parenting arrangements must
consider (1) the relationship of the minor child to each parent
prior to the commencement of the action or any subsequent
hearing; (2) 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;
(3) the general health, welfare, and social behavior of the
minor 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. Neb.
Rev. Stat. § 43-2923 (Cum. Supp. 2014).
   [5] In addition to these statutory “best interests” factors, a
court making a child custody determination may consider mat-
ters such as the moral fitness of the child’s parents, including
the parents’ sexual conduct; respective environments offered
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                     KENNER v. BATTERSHAW
                       Cite as 24 Neb. App. 58

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 and stability of each parent’s
character; and the parental capacity to provide physical care
and satisfy the educational needs of the child. Schrag v. Spear,
290 Neb. 98, 858 N.W.2d 865 (2015).
   In this case, the evidence at trial demonstrates that Brayden
has strong connections to each of his parents and stepparents.
He enjoys activities with both households. Brayden appears to
be in generally good health and thriving in school under the
parties’ prior coparenting arrangement. The record contains no
evidence of abuse by either party, nor any suggestion of paren-
tal unfitness.
   [6] The district court noted that during the in camera
interview, Brayden expressed a preference to live and attend
school in Valentine, with his father. Section 43-2923 provides
for consideration of the child’s wishes if the child is of an
age of comprehension and the child’s reasoning is sound.
Kenner argues that an 8-year-old child is not old enough to
express an opinion that may be considered by the court. We
disagree. Kenner cites no authority for the proposition that
an 8-year-old child may not be “of an age of comprehension”
as required by the statute for the court to consider a child’s
preference. See § 43-2923. The record reveals that the minor
child was 81⁄2 years old at the time of trial. In his interview,
Brayden expressed an understanding of the complexity of the
decision and articulated relevant components of consideration,
including routines, scheduling, proximity to activities, and the
home and school environments. Of course, the desires and
wishes of the minor child are not determinative of custody but
are just a factor to be considered by the trial court, when the
child is of an age of comprehension and bases those desires
on sound reasoning. See Adams v. Adams, 13 Neb. App. 276,
691 N.W.2d 541 (2005). However, we see no evidence that
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                     KENNER v. BATTERSHAW
                       Cite as 24 Neb. App. 58

the district court regarded this factor as determinative, as
Kenner argues.
   The remaining factors to be considered encompass the sta-
bility, environment, and relationships to be impacted by either
custody choice. Schrag v. Spear, supra. In either household,
Brayden would experience some change and disruption of the
parties’ prior schedule, while also enjoying certain kinds of
stability. Bradyen has more ties to the Valentine area, where
he has previously lived, than to the Emmett area, although he
has some acquaintances in both locations. We also note that
Brayden has previously spent more time living with his mother
and siblings, but has spent significant time being parented
day-to-day by both parents. While all testimony suggested that
both homes are emotionally nurturing, the home environments
have differences. In particular, Brayden has younger half sib-
lings at Kenner’s home and no siblings at Battershaw’s home.
Testimony suggested benefits both to being raised among sib-
lings and to receiving the attention of an only child. In short,
the record revealed that either parent could provide for the
child emotionally and physically.
   Kenner argues that the district court should have given
more weight to keeping Brayden in a home with his half sib-
lings. In so arguing, she notes that it is generally sound public
policy to keep children together when a marriage is dissolved.
Ziebarth v. Ziebarth, 238 Neb. 545, 471 N.W.2d 450 (1991).
However, this is not a dissolution of marriage case where the
custody of all children is being determined as a result of the
parties’ divorce. Only Brayden’s custody is being determined
by these proceedings, and a rule requiring him to be kept with
his half siblings would mean that a parent having children
with a former or subsequent spouse would automatically give
that parent preferred status. While a bond with half siblings
is certainly an emotional environmental factor that the dis-
trict court should take into consideration, the focus is on the
relationship between the siblings and whether separation will
have a detrimental effect on the child. See Ritter v. Ritter,
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                     KENNER v. BATTERSHAW
                       Cite as 24 Neb. App. 58

234 Neb. 203, 450 N.W.2d 204 (1990). The district court’s
order evinces that it considered the relationship between the
children and concluded that separation of Brayden from his
half siblings would not be detrimental. We disagree with the
argument that the district court erred in inadequately consider-
ing this factor.
   Given the record before us, we cannot find that the district
court abused its discretion in awarding custody to Battershaw.
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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865
(2015). A judicial abuse of discretion requires that the reasons
or rulings of the trial court be clearly untenable insofar as
they unfairly deprive a litigant of a substantial right and a just
result. Id. In this case, the district court detailed its thought-
ful consideration of the evidence in a difficult case. Following
a careful de novo review of the record, we find no abuse
of discretion.
                        CONCLUSION
   Following a de novo review of the record, we find no
abuse of discretion by the district court and accordingly affirm
its order.
                                                     A ffirmed.
