                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         BARTH V. BARTH


  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).


                                 CHRISTIAN A. BARTH, APPELLEE,
                                                V.

               MINDI J. BARTH, NOW KNOWN AS MINDI J. BOETTCHER, APPELLANT.


                            Filed August 13, 2019.    No. A-18-1204.


       Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.
       James H. Hoppe for appellant.
       Shane M. Cochran, of Snyder, Hilliard & Cochran, L.L.O., for appellee.


       RIEDMANN, BISHOP, and ARTERBURN, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
        Mindi J. Barth, now known as Mindi J. Boettcher, appeals the order of the district court for
Lancaster County denying her complaint to modify the decree of dissolution entered by the district
court for Lincoln County. The court found that she failed to demonstrate a material change of
circumstances had occurred. We affirm.
                                        BACKGROUND
        Boettcher and Christian A. Barth were married in 2010. Their marriage was dissolved by
a decree of dissolution (Decree) entered by the district court for Lincoln County in 2013. The
parties had one minor son, Graham, born during the marriage. In the Decree, the court awarded
Barth legal and physical custody of Graham. At the time of dissolution, Boettcher resided in
Lincoln and Barth was a firefighter in North Platte, Nebraska. He worked a schedule consisting of
24 hours on duty, and 24 hours off duty for 10 days, and then had 6 consecutive off-duty days. The



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court found that while Boettcher was a loving mother to Graham, she had a serious problem with
alcohol use. It awarded Boettcher visitation with Graham every other weekend from Friday to
Sunday. During the summer Boettcher was allotted 6 consecutive weeks of continuous visitation
with Graham, and Barth was allowed visitation on every other weekend during this time. Boettcher
was also ordered to pay $305 per month in child support. This court subsequently affirmed the
district court’s decree.
         Boettcher filed her first complaint to modify the Decree in December 2014. She asserted
that a material change in circumstances had occurred in that she had undergone her treatment for
her psychological and substance use issues. The parties reached a settlement whereby the original
custody and parenting order remained in effect, but the parties modified Boettcher’s child support
obligation. In May 2015, the district court issued an order indicating that the custody and parenting
plan set forth in the Decree would remain in effect, and modified Boettcher’s child support
obligation.
         In March 2016, Barth filed a complaint to modify the Decree, seeking to reduce Boettcher’s
parenting time to supervised visitation in light of multiple driving under the influence charges she
received. In July, Boettcher filed a counterclaim seeking to modify the Decree due to Barth’s
relocation to Lincoln. The parties then reached an agreement to voluntarily dismiss their
complaints. In March 2017, the court issued an order dismissing the complaint and the
counterclaim.
         In August 2017, Boettcher filed the present action, the third complaint for modification to
be filed. Boettcher alleged that a material change in circumstances had occurred because (1) she
had been sober for over a year and a half, (2) Barth had relocated to Lincoln and lived in the same
community as her, (3) her employment was conducive to the care of Graham and was flexible to
allow her to leave when necessary, and (4) the parties worked together over the previous 12 months
to expand her parenting time to be nearly equal to that of Barth. Boettcher also alleged that it would
be in Graham’s best interests that the near equal parenting time continue. Barth requested that the
district court deny Boettcher’s complaint to modify and also filed a counterclaim seeking an
increase in Boettcher’s child support obligation. In October, the district court issued an order
limiting the presentation of evidence in the action to events that occurred after March 27, 2017.
The case was subsequently transferred to the district court for Lancaster County, and a trial was
held in November 2018.
         In opening statements, Barth’s attorney referenced the Lincoln County District Court’s
order limiting the evidence to events occurring after March 27, 2017, and stated that no material
change in circumstance occurred after that date. The parties then presented their evidence.
Boettcher sought to prove that she had addressed her alcohol use. Her therapist testified that she
began working with Boettcher in March 2016, and that Boettcher completed both inpatient and
outpatient treatment for her alcohol use in May. Boettcher stated that she had not been intoxicated
since February 2016.
         Barth, called as a witness by Boettcher, testified that he was a firefighter and paramedic
for Lincoln Fire and Rescue. Barth’s work schedule consisted of working 24-hour shifts, from 7
a.m. to 7 a.m., every other day for 13 days. Barth then received 8 consecutive days off. Barth stated
that Graham would stay with Barth’s mother or sister while he was at work.



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        Boettcher testified that she was a training center coordinator at a hospital in Lincoln, and
that she was able to make her own schedule to work around her personal life. Boettcher indicated
that beginning in August 2016, she had expanded parenting time with Graham while Barth was at
work. The expanded parenting time allowed her visitation from Thursday through Monday
morning on the first weekend of Barth’s 13-day work period, and Friday through Sunday the
following weekend. Under this schedule Boettcher explained that she had six overnight visits with
Graham in January 2017, 11 in February, 10 in March, 11 in April, 12 in May, 17 in June, 18 in
July, and 13 in August. Boettcher asserted that Barth ended the expanded parenting time because
he believed Boettcher would use it against him in court.
        Barth testified that he moved from North Platte to Lincoln in December 2015. He further
stated that his work schedule in Lincoln was very similar to what it had been in North Platte, except
that in Lincoln he works 7 out of 13 days with 8 days off, and in North Platte he worked 5 out of
10 days with 6 days off. Barth testified that he granted Boettcher expanded parenting time from
March until August 2017, but during the months of June, July, and August they followed the
original Decree’s summer parenting schedule, not the expanded parenting plan. Barth also
explained that he ended the expanded parenting time because Graham would be more tired than
usual, cranky, have worse behavior, and be less energetic when he would return from Boettcher’s
home. Barth’s sister and Graham’s baby sitter agreed that Graham’s energy would be lower and
behavior would be worse when he returned from Boettcher’s. Barth requested the court deny
Boettcher’s complaint to modify the Decree.
        In closing arguments, Boettcher’s attorney argued that the parties entered into an agreement
in March 2017 for Boettcher to receive extended parenting time and Barth violated that agreement.
He questioned whether the parties should be bound by the Lincoln County District Court’s October
2017 order limiting evidence to events subsequent to March 27, 2017. The basis for his argument
was that Barth presented evidence of events that occurred before March 27, and therefore that was
a violation of the court’s order. Barth’s attorney argued that he provided that information for
historical purposes only and it did not constitute a violation of the order.
        In the court’s subsequent order, it stated that “[c]onsistent with the October 27, 2017 order,
the court has only considered evidence from and after March 27, 2017, when considering
[Boettcher’s] complaint to modify.” It concluded that Boettcher failed to meet her burden of proof
to show that there had been a material change in circumstances to support a modification. It
dismissed Boettcher’s complaint to modify parenting time but increased Boettcher’s child support
obligation to $685 per month. Boettcher timely appealed the court’s dismissal of her complaint to
modify but did not appeal the court’s order increasing her child support obligation.
                                   ASSIGNMENTS OF ERROR
        Boettcher assigns, restated, that the district court abused its discretion by failing to order
joint custody or additional parenting time for her.
                                    STANDARD OF REVIEW
       Child custody determinations are matters initially trusted to the discretion of the trial court,
and although reviewed de novo on the record, the trial court’s determination will normally be




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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
        Boettcher asserts that the district court abused its discretion in failing to find a material
change of circumstance had occurred. The district court determined that no material change in
circumstance had occurred since March 27, 2017, the date set by the Lincoln County District Court
in its October 27 order. We agree.
        Prior to the modification of a child custody order, two steps must be taken by the party
seeking modification. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005). First, the party
seeking modification must show a material change in circumstances, occurring after the entry of
the previous custody order and affecting the best interests of the children. Id. Next, the party
seeking modification must prove that changing the custody is in the children’s best interests. Id. A
material change in circumstances means the occurrence of something which, had it been known at
the time of the initial decree, would have persuaded the court to decree differently. Schrag v. Spear,
supra.
        We note that the Lincoln County District Court’s order of October 27, 2017, is not
contained in our record. Barth’s attorney requested during closing arguments that the court take
judicial notice of this order and the Lancaster County District Court agreed to do so. However, a
copy of the order was not marked and received, nor is it contained in the transcript. We therefore
do not know the basis upon which the court chose March 27 as the operative date, although we
can surmise. Boettcher has not assigned that the court erred in limiting evidence to events that
occurred after this date and because the order setting forth the basis for this date is not in our
record, we can find no plain error. We therefore limit our review to whether the court abused its
discretion in finding no material change in circumstances after March 27.
        In her complaint to modify the custody arrangement, Boettcher alleged four material
changes in circumstance which necessitated an increase in her parenting time: (1) she had been
sober for over a year and a half, (2) Barth relocated to Lincoln, (3) Boettcher’s employment was
flexible and allowed her to care for Graham, and (4) the parties had worked together over the
previous 12 months to increase her parenting time to near equal time as Barth. However, the record
supports the district court’s finding that a material change in circumstance had not occurred since
March 27, 2017.
        First, the record indicates that Boettcher’s sobriety was not a material change in
circumstance after March 27, 2017. Boettcher testified that she had not been intoxicated since
February 2016. Further, Boettcher completed both inpatient and outpatient treatment for alcohol
use in 2016. Moreover, in her first complaint to modify the Decree, filed in 2014, Boettcher alleged
that she had addressed her substance abuse issue. Boettcher and Barth reached an agreement to
dismiss that complaint which did not expand Boettcher’s parenting time, and the court’s order did




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not change the custody agreement from the Decree. Therefore, the record reveals that Boettcher’s
sobriety was not a material change in circumstances that occurred after March 27, 2017.
        The record also indicates that Barth relocated to Lincoln in 2015, and therefore, his move
to Lincoln did not constitute a material change in circumstance after March 27, 2017. Likewise,
the record indicates that Boettcher had worked for the same employer for nearly 5 years at the time
of the modification trial. Accordingly, Boettcher’s flexible employment does not constitute a
material change in circumstances that occurred after March 27.
        Finally, Boettcher’s assertion that the parents had near equal parenting time over the
previous 12 months does not constitute a material change in circumstance. The record indicates
that Barth granted Boettcher additional parenting time while he was at work. We note that there is
a discrepancy between the testimony of Boettcher, who stated that the additional parenting time
began in August 2016, and Barth, who stated that it began in March 2017. Under Boettcher’s
testimony, the expanded parenting time would not be a material change in circumstance that
occurred after March 27, 2017; under Barth’s testimony, the expanded parenting time lasted only
3 months before the parties reverted to the summer parenting time set forth in the original Decree.
Barth testified he believed the expanded time was detrimental to Graham and it did not continue.
        In her appeal, Boettcher focuses primarily on the fact that it is in Graham’s best interests
for her to have additional parenting time. While she does assert that her sobriety and employment
support a finding of a material change in circumstances, we iterated above that they do not.
Additionally, Boettcher alleges that the court should have taken Barth’s work schedule into
consideration in modifying the parenting plan. However, Barth testified that not only has he
worked the same schedule for the entire time he has resided in Lincoln, but his work schedule was
substantially similar when he lived in North Platte. Therefore, his work schedule is not a material
change in circumstances.
        Upon our review of the record, the district court did not abuse its discretion in determining
that Boettcher failed to demonstrate that a material change in circumstances had occurred after
March 27, 2017. Because we find that a material change in circumstances did not occur, we do not
consider whether modifying the parenting plan would be in Graham’s best interests.
                                          CONCLUSION
        Boettcher failed to demonstrate that a material change in circumstance had occurred. We
therefore affirm.
                                                                                         AFFIRMED.




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