                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                      HUGHES V. HUGHES


  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).


                             EMMETT TYLER HUGHES, APPELLANT,
                                           V.
                                 JULIE HUGHES, APPELLEE.


                          Filed September 16, 2014.    No. A-14-064.


       Appeal from the District Court for Lincoln County: RICHARD A. BIRCH, Judge. Affirmed.
       Joshua A. Johnson and Chris A. Johnson, of Conway, Pauley & Johnson, P.C., for
appellant.
       R. Bradley Dawson, of Lindemeier, Gillett & Dawson, for appellee.


       IRWIN, PIRTLE, and RIEDMANN, Judges.
       IRWIN, Judge.
                                     I. INTRODUCTION
        Emmett Tyler Hughes (Tyler) appeals an order of the district court for Lincoln County
denying his application to modify custody of the parties’ minor child, Sierra Hughes. On appeal,
Tyler argues that the court applied an “incorrect standard” in finding that he failed to
demonstrate a material change of circumstances warranting modification of custody. Tyler’s
assertion is meritless, and we affirm.
                                     II. BACKGROUND
         Tyler and Julie Hughes were divorced in December 2005. At that time, they had three
minor children: Whitney Hughes, born in April 1990; Emmett Quinn Hughes (Quinn), born in
November 1991; and Kathryn Hughes, born in December 1994. In the dissolution decree, the
district court concluded that it lacked jurisdiction over Quinn, but awarded custody of Whitney
and Kathryn to Julie, subject to reasonable rights of visitation for Tyler.




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        After the decree was entered, Tyler and Julie attempted “to work things out” and the two
moved in with each other. In October 2006, the child who is the subject of this appeal, Sierra,
was born. No legal proceedings concerning paternity, custody, or support for Sierra appear to
have been undertaken at the time of her birth.
        At some point, Tyler filed a complaint seeking to modify the dissolution decree with
respect to custody of the parties’ three older children and to establish custody of Sierra. In
August 2009, the district court entered an order in which the court found that Tyler had failed to
demonstrate a material change of circumstances justifying modification of custody of the parties’
older children and found that custody of Sierra should be awarded to Julie, subject to reasonable
rights of visitation for Tyler. In the record presented to us, this is the initial order establishing
custody of Sierra.
        In 2010, Julie was found to be in contempt of the court’s order requiring her to provide
reasonable rights of visitation to Tyler. The court provided her a period of 6 months to
demonstrate that she could comply with the visitation order or face a potential jail sentence for
the contempt. It appears that she complied with the visitation order.
        In September 2012, Tyler filed a complaint seeking modification of the court’s order of
custody concerning Sierra. Tyler alleged in his complaint that “a material change of
circumstance ha[d] occurred since [prior custody and support orders] were entered and the care,
custody, and control of the parties’ minor child, Sierra, should be transferred to” him. A review
of the complaint indicates that Tyler did not specify the alleged material change of circumstances
justifying modification of Sierra’s custody. Julie answered the complaint and denied that there
had been any such material change of circumstances.
        In January 2013, Tyler moved to have Julie held in contempt again, alleging that she had
not complied with prior orders concerning tax exemptions for the parties’ children and
concerning visitation with Sierra, and alleging that she had failed to pay a variety of Sierra’s
medical bills. Julie ultimately entered pleas of no contest to the allegations regarding the tax
exemptions and visitation, and Tyler dismissed the allegations concerning medical bills. The
court found Julie in contempt and ordered that she could purge the contempt finding by
amending prior tax returns and by complying with an agreement of the parties concerning
Tyler’s visitation with Sierra during the pendency of the modification proceedings. Julie
complied with these orders, and the finding of contempt was purged.
        Trial was held on Tyler’s complaint for modification in November 2013. At trial, Tyler
presented evidence concerning his residence, where he had resided since 2007, and his
employment, where he had been employed since 1998. He did not present any evidence that his
living situation or employment had undergone any material changes since August 2009, when
Julie was initially awarded custody of Sierra.
        Tyler presented evidence about academic struggles experienced by Quinn and Kathryn
after Julie had been awarded their custody in 2005. A review of the record reveals that Quinn’s
academic records presented by Tyler were generally reflective of performance through May
2009; Kathryn’s academic records presented by Tyler were generally reflective of performance
through January 2010. The records reflect that Quinn withdrew from all but one course taken at




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high school in the fall of 2009. Kathryn finished her high school education under an alternative
curriculum, but received her high school diploma.
         Kathryn testified that after she received her high school diploma, she earned a license to
work as a certified nursing assistant, had plans to attend college to earn nursing degrees, and
hoped to eventually attend medical school. She testified that the older children’s difficulties with
school were not Julie’s fault and that Julie encouraged her to go to school, fought with her about
school, and did her best to get Kathryn to attend school. She testified that on occasion, Tyler had
offered to let her skip school and stay home.
         On cross-examination, Tyler acknowledged that Sierra is “doing well” in school. At the
time of trial, Sierra was in first grade.
         Tyler presented evidence about Quinn’s interaction with law enforcement after Julie was
awarded his custody in 2005. He presented evidence involving a “Classification Study”
completed by a youth rehabilitation and treatment center in March 2008, which predated the
initial award of custody regarding Sierra in August 2009. Tyler also presented evidence of legal
complaints filed against Quinn from 2010 through 2013, all of which appear to have occurred
after he turned 18 years of age.
         Tyler presented evidence that Kathryn had become pregnant at the age of 15 and
presented evidence concerning a charge of statutory rape brought against Kathryn’s boyfriend,
who had been 18 years of age when Kathryn became pregnant. The evidence adduced indicates
that the statutory rape charge was ultimately reduced to a charge of contributing to the
delinquency of a minor.
         Kathryn testified that she and her child’s father remain together, are both currently
employed, and are supporting their child together. At the time of trial, Kathryn was employed as
a certified nursing assistant, while her child’s father was employed as an electrician.
         Tyler acknowledged on cross-examination that he is estranged from Quinn and that his
relationships with Kathryn, Quinn, and Whitney are all “strained” or “shaky.” Kathryn and
Whitney both testified, and both testified that they are estranged from Tyler or have little to no
relationship with him. Kathryn testified that she does not want to have a relationship with him.
Whitney testified that she has a child and has made attempts to establish a relationship with Tyler
and between Tyler and her child, but that Tyler does not visit.
         Tyler also presented evidence concerning an allegation that Sierra was sexually touched
by Tyler’s stepson during one of Tyler’s visitations with Sierra. The evidence related to this
incident indicates that Sierra accused the stepson of sexually touching her, that Julie sought a
protection order against the stepson, and that an investigation was conducted by law enforcement
and the Department of Health and Human Services, which resulted in a finding that the
allegation was unfounded. Tyler testified that Julie had made other allegations about individuals
inappropriately touching Sierra in 2007 or 2008, which was prior to the initial order establishing
custody of Sierra in August 2009. He testified that Julie made another allegation about another
individual in 2011. Kathryn testified that she was the first person Sierra told about the alleged
incident and that Sierra had never changed her story about what she alleged happened.
         On cross-examination, Tyler testified that when he had the opportunity to do so, he took
Sierra and his stepson both into a room and confronted them about Sierra’s accusation. He


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testified that when he confronted them, Sierra indicated the incident had happened and the
stepson denied it had happened. He also testified that “from the reports that [he] read from the
. . . Police Department, nothing added up” concerning the timing of when Sierra alleged the
incident had happened.
         Julie testified that the second time she had withheld visitation and been in contempt of
the court’s prior visitation orders it had been because of this incident and because of Sierra’s
allegation that Tyler’s stepson had sexually touched her.
         Tyler also presented evidence concerning an allegation Julie had made about Sierra’s
being physically abused by Tyler, Tyler’s wife, Tyler’s stepson, and Tyler’s wife’s grandmother.
He testified that this allegation occurred in 2012 or 2013, and an investigation resulted in the
allegation being deemed unfounded.
         Tyler also presented evidence about a variety of credit complaints against Julie
concerning her lack of payment of a variety of bills. Tyler attempted to present exhibits referring
to the complaints, establishing that they largely occurred between August 2008 and April 2009,
predating the initial custody order concerning Sierra in August 2009. The court sustained
objections to exhibits related to these complaints on the basis of relevance, and Tyler has not
alleged the court’s rulings were erroneous.
         Julie acknowledged having financial struggles, but testified that Sierra is her priority and
that her financial struggles had not resulted in Sierra’s being denied any necessities. She testified
that Sierra has always been taken care of, fed, and clothed.
         Finally, Tyler presented evidence from witnesses who testified about Julie being deemed
to have “voluntarily resigned” from one employment in January 2012 when she failed to appear
at work or notify her employer that she would be absent and being terminated from another
employment in 2010 for absenteeism and being tardy. Tyler did not present any evidence that
Julie’s termination from either employment resulted in any effect on Sierra.
         At the time of trial, Julie was employed as a certified nursing assistant and medical
technician. She testified that she had been with her existing employer for 3 years and that she
was working on a part-time basis until a full-time position opened.
         In December 2013, the district court entered an order. The court found that Julie had
been Sierra’s primary caregiver since the time of her birth and that by all accounts she was well
cared for.
         The court specifically found that Julie had acted appropriately in reporting the suspicion
of sexual assault of Sierra, now had to accept the results of the investigation, and contrasted
Julie’s reporting of suspicion with testimony that Tyler had confronted Sierra about the
accusation and had not believed her.
         With respect to the evidence concerning issues experienced by the parties’ older children,
the court held that “it is as easy to speculate that the problems resulted from the poor relationship
with [Tyler] as from poor parenting by [Julie]. However, either is speculation.” The court held
that the problems experienced by the older children did not establish that Julie “is a poor parent
who is incapable of raising Sierra any more than that [Tyler] should not be around Sierra as she
grows older.”
         The court specifically held that Tyler had failed to demonstrate any deterioration in the
quality of care Julie provides for Sierra and held that it could not conclude that there has been a


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material change of circumstances or that it would be in Sierra’s best interests to modify custody.
The court dismissed Tyler’s complaint for modification.
       This appeal followed.
                                 III. ASSIGNMENT OF ERROR
        On appeal, Tyler’s sole assignment of error is that the district court “erred in applying an
incorrect standard in custody modifications thereby depriving [him] of a substantial right and a
just result.”
                                         IV. ANALYSIS
        Tyler argues on appeal that the district court in this case applied the wrong standard in
evaluating whether a modification of the prior custody order involving Sierra was appropriate.
He argues that “[i]n this case, the trial court revealed its own standard regarding custody
modifications as being whether the child is well-fed, well-housed, and well-clothed . . . .” Brief
for appellant at 22. He argues that “[t]hat is not the standard for evaluating whether a material
change exists sufficient to require a custody change.” Id. Tyler then correctly quotes the
well-established legal standards and requirements for modification of custody.
        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. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643
(2013). An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unconscionable or if its action is clearly against justice or conscience, reason, and
evidence. Id.
        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. Id. The party seeking modification of child custody bears the burden of
showing a material change in circumstances. Schrag v. Spear, 22 Neb. App. 139, 849 N.W.2d
551 (2014); State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409, 838
N.W.2d 351 (2013).
        Prior to the modification of a child custody order, two steps of proof 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 child. Id. (emphasis
supplied). Next, the party seeking modification must prove that changing the child’s custody is in
the child’s best interests. Id. Demonstrating a material change in circumstances requires evidence
showing that something has occurred, which if the trial court had been aware of the existence of
these circumstances when entering the prior custody order, the trial court in the best interests of
the child would have granted custody to the other parent. See id.
        While we agree with Tyler that the standard for modification of custody is not simply an
evaluation of whether the child is well-fed, well-housed, and well-clothed, we disagree that the
trial court reduced its analysis to such a standard. The trial court noted those factual
circumstances, but specifically found that Tyler had failed to demonstrate a material change of
circumstances warranting modification of the prior custody order.


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        It appears that Tyler has failed to appreciate the crucial core requirement in the standard
for modification of custody--that there must be a material change of circumstances and a
showing that modification would be in the best interests of the child. Although Tyler spends
approximately a page of his appellate brief citing to that standard and points us to a number of
cases espousing that standard, he then shifts his entire appellate argument to an argument about
the Nebraska Parenting Act’s guidelines for assessing the best interests of the child, and fails to
articulate what material change of circumstances has occurred since entry of the initial custody
order in August 2009.
        Tyler then presents this court with more than nine pages of discussion about the various
factors of a best interests analysis, arguing why he is better suited to provide for Sierra’s best
interests. The entirety of that argument, however, is devoid of any indication of any
circumstances that have changed since entry of the initial custody determination in August 2009.
Tyler’s argument on appeal appears much more suited to an argument related to an initial
determination of custody, rather than a modification. Indeed, at trial, Tyler objected to various
questions and testimony proffered on behalf of Julie as being related to “pre decree,” seemingly
referring to the dissolution decree. But in this case, the relevant order is not the dissolution
decree because it did not address custody of Sierra, who was not even born when the decree was
entered. The relevant order in this case, for assessing whether there has been a material change of
circumstances, is the August 2009 order first establishing custody of Sierra.
        Tyler presents arguments about the older children’s academic struggles as indicative that
Julie does not value education. He presents significant argument about the children who were in
school at the time of the dissolution decree and argument about Quinn’s and Kathryn’s academic
performance in 2008 and 2009. As noted above, the vast majority of that evidence concerns time
periods prior to the entry of the custody order concerning Sierra in August 2009 and does not
demonstrate any material change of circumstances since the entry of that custody decree.
Moreover, to the extent some of the evidence did concern academic performance of those
children after August 2009, there was evidence adduced directly contradicting the suggestion
that such academic struggles were Julie’s fault.
        Tyler presents significant argument about Quinn’s legal difficulties. As noted above, the
vast majority of that evidence reflects behavior by Quinn after he turned 18 years of age--in fact,
a number of the legal encounters occurred after Quinn was at least 20 years of age. Tyler has not
demonstrated that Quinn’s legal problems were caused by Julie or that they reflect any change of
circumstances related to Julie’s care of Sierra. As the trial court noted, the court can just as easily
speculate that Quinn’s legal difficulties are a result of the hostility between Tyler and Julie and
Quinn’s estranged relationship from Tyler--but speculation is not a proper basis for finding a
material change of circumstances warranting modification of custody of another child.
        Tyler presents significant argument about Julie’s financial difficulties, pointing to his
testimony about “collection lawsuits where [Julie] is being sued for outstanding bills.” Brief for
appellant at 31. However, as noted above, a number of those incidents also predated the initial
custody order of August 2009. To the extent some of the incidents have occurred since the entry
of the custody order, Tyler has not presented any evidence that any of the incidents have resulted
in any impact on Sierra’s care. As the trial court concluded, the evidence indicates that Sierra has
always been well cared for, those financial difficulties notwithstanding.


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         He argues that the trial court “failed to see the point that a parent who is unable to
manage money to pay for basic necessities is certainly relevant information as to the general
welfare of the child” and argued that “[b]usinesses and professionals stop providing services
when an account remains unpaid” and that “[i]f the services are not available for [Julie] they will
not be available for Sierra either.” Brief for appellant at 31. Tyler presented no evidence that any
business or professional has stopped providing any services to Julie, and he certainly presented
no evidence that any services had ever been denied to Sierra.
         Tyler’s speculation that some provider could stop providing some services does not
establish a material change of circumstances since entry of the custody order warranting
modification of custody. In fact, when the court ruled on an objection to Tyler’s offer of
evidence related to collection lawsuits, Tyler attempted to make the same argument he now
makes on appeal and asserted to the trial court that “if you don’t pay these bills, people stop
giving you those services” and that “if they stop giving you those services then they’re not
available to the child any longer.” The trial court specifically responded that Tyler’s argument
“requires [the court] to speculate.” There was no evidence adduced to suggest that Tyler’s
argument was grounded in anything other than speculation about potential future occurrences,
and there was no evidence of any such denial of services to Julie or Sierra.
         In short, the arguments Tyler presents on appeal are generally all presented in the context
of arguing that he would be a more appropriate person to have custody of Sierra. His arguments
appear more suited to an appeal from an initial custody determination--an appeal he did not take.
He argues that he can provide a better home environment and a more stable environment and
largely points to situations that have existed since before that initial custody determination, such
as his residence and his employment, and the parties’ circumstances since the time of the
dissolution decree. What he has not demonstrated, as the trial court specifically found, is that
there has been any material change of circumstances since the entry of the initial custody order in
August 2009. Tyler’s complaint for modification, his testimony at trial, and his arguments on
appeal all fail to articulate what material change of circumstances has occurred since entry of the
initial custody award in August 2009. In requiring him to do so and dismissing his complaint for
failing to do so, the trial court did not apply an incorrect standard. Tyler’s assertions on appeal
are meritless.
                                        V. CONCLUSION
       On our de novo review of the record, we find no abuse of discretion by the district court.
Tyler failed to demonstrate a material change in circumstances warranting modification of the
custody order regarding Sierra. We affirm.
                                                                                    AFFIRMED.




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