                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          KITT V. KITT


  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).


             CHRISTINA M. KITT, NOW KNOWN AS CHRISTINA M. ALSOP, APPELLEE,
                                               V.

                                   VAN C. KITT, APPELLANT.


                            Filed August 13, 2019.   No. A-18-655.


       Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Reversed
and remanded with directions.
       Amie C. Martinez and Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C., L.L.O.,
for appellant.
       Terrance A. Poppe and Anne E. Brown, of Morrow, Poppe, Watermeier & Lonowski, P.C.,
for appellee.


       PIRTLE, ARTERBURN, and WELCH, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
       Van C. Kitt appeals from an order entered in the district court for Lancaster County which
dismissed his complaint for modification requesting custody of his two minor children;
determination of parenting time for the biological mother of the children, Christina M. Kitt, now
known as Christina M. Alsop; and a review of child support. Van argues that the district court
erred in finding that he failed to meet his burden of proof either as to a material change of
circumstances or that a change in custody would be in the best interests of the children. For the
reasons that follow, we reverse, and remand with directions.




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                                          BACKGROUND
         Van is the father and Christina is the mother of two minor children, Dean, born in 2010,
and Josie, born in 2012. Van and Christina were divorced in April 2016. Christina was awarded
custody of Dean and Josie, subject to Van’s right to parenting time. Shortly after the decree was
entered, Christina moved with the children from Ogallala to Lincoln, as she had testified at the
divorce hearing she was going to do. In addition to Dean and Josie, Christina also brought
Madison, her older daughter from a prior marriage, to live with them in Lincoln.
         During the divorce, Christina testified that she wanted to begin working with autistic
children. Christina was initially working at a daycare in Lincoln, but determined that the hours did
not fit her needs. She quit working at that position and moved to working as a nail tech. She then
began training to become a massage therapist, which she was still taking classes for at the time of
the hearing. In addition to this work, Christina occasionally worked as an exotic dancer. She had
previously worked in this capacity before having children, but returned to this line of work to
supplement her income after the divorce. Christina testified that she would usually dance only if
the children were visiting Van for the weekend, but she did note that there were a couple of times
in 2016 when she worked as a dancer and the children stayed with a babysitter.
         At the time of the divorce, Dean had only just entered kindergarten and Josie was not yet
in school. Since the divorce Dean has struggled in school, being held back a year in kindergarten.
His teacher noted that he was having issues paying attention in class. Josie passed kindergarten,
but was reported as below average for her class. Both of the children have had issues with
attendance, having been issued warnings for missing 10 or more days.
         In light of these issues, Van filed a complaint for modification in May 2017 requesting
custody of the children. A hearing was held in April 2018. The district court found that Van had
failed to meet his burden of proof and dismissed the complaint to modify. Van subsequently filed
a motion for new trial and\or reconsideration which was also denied. Van appeals from the order
of the district court.
                                   ASSIGNMENTS OF ERROR
        On appeal, Van assigns that the district court erred in (1) finding that he failed to meet his
burden of proof that there had been a material change of circumstances and (2) finding that he
failed to meet his burden of proof that a change of custody would be in the best interests of the
children.
                                     STANDARD OF REVIEW
        Modification of a dissolution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of
discretion by the trial court. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). 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.



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       In child custody cases, where the credible evidence is in conflict on a material issue of fact,
the appellate court considers, and may give weight to, the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts rather than another. Id.
                                             ANALYSIS
        Custody of a minor child will not be modified unless there has been a material change of
circumstances showing that the custodial parent is unfit or that the best interests of the child require
such action. Id. After a court has determined that there has been a material change in
circumstances, the next inquiry is whether the best interests of the children compel a change of
custody. State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409, 838 N.W.2d
351 (2013). The district court, in its order, did not specify whether Van had failed to meet his
burden of proof as to a material change of circumstances or whether a change in custody would be
in the children’s best interests. This lack of specificity makes it more difficult to analyze the order.
We initially analyze whether there was a material change of circumstances impacting the best
interests of the child.
        A party seeking to modify a child support order must show a material change of
circumstances which occurred subsequent to the entry of the original decree or a previous
modification which was not contemplated when the prior decree was entered. Gallner v. Hoffman,
264 Neb. 995, 653 N.W.2d 838 (2002). In the context of marital dissolutions, a material change of
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 essence of Van’s argument is that there has been a material change of circumstances
based on three issues: (1) the children’s educational needs are not being met, (2) Christina did not
complete her education as she originally indicated and has returned to exotic dancing, and (3)
Christina allowed the children to be cared for by individuals with criminal records.
        We concur with Van that there has been a material change of circumstances. First, the issue
of the children’s education is concerning to us. The testimony of Dean and Josie’s teachers
indicates that both Dean and Josie are having issues in school with Dean being required to repeat
a grade and Josie considered below the expected level of children entering the first grade. In
particular, it is disturbing that the children each missed more than 10 days of school in the previous
school year for which warnings were sent to Christina. This follows the pattern with her other
child, Madison, who also missed a significant amount of school. We acknowledge that teenagers
and young children are quite different in their educational needs and how they react to school, but
the evidence demonstrates that Christina has been unable or unwilling to ensure her children are
attending school. We do note that Christina has taken steps to curtail these issues, including a
policy that the children must attend school unless they have a fever or are “throwing up,” and by
enrolling Josie and Dean in an afterschool tutoring program. However, we also note that each of
these changes occurred after the filing of the complaint as trial approached.
        We also look to the issue of Christina’s exotic dancing and choice of care providers for the
children. The record does demonstrate that Van was aware that Christina was an exotic dancer
prior to his relationship with her. However, the record also shows that during the marriage she was
not dancing and that she only returned to exotic dancing after the entry of the decree. We are less



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concerned that she did not follow the specific educational path she outlined at the time of the
decree, but more concerned that her return to dancing has created a material change of
circumstances. While there was testimony that the children were unaware of Christina’s dancing
and that she usually only danced when the children were staying at Van’s for the weekend,
Christina admitted that there were a number of times that she left the children with babysitters in
order to dance for the weekend. The evidence indicated that Christina’s older daughter was often
utilized for childcare, as well as her boyfriend. The record demonstrates that the older daughter
was on probation in the juvenile court due to marijuana use. Her boyfriend also had drug-related
convictions. Other caregivers utilized also had a history of criminal convictions.
        Based on these issues, it was an abuse of discretion for the court to dismiss the complaint
as our de novo review shows that Van did meet his burden of proof that there had been a material
change in circumstances. Even if we were to find that the allegations of a material change of
circumstance individually failed, we must bear in mind that we are analyzing a change in
circumstances in the plural form. Therefore, we must consider whether the sum of the
circumstances constitutes a material change, not whether each individual circumstance constitutes
a material change. See Grange v. Grange, 15 Neb. App. 297, 725 N.W.2d 853 (2006). Here, the
sum of the circumstances supports a finding that a material change has occurred. As such, we
reverse the court’s dismissal of the complaint on these grounds.
        The next step of a modification of custody proceeding is the court must determine whether
the best interests of the children warrant a modification of the decree. At best it is unclear if the
court performed this analysis given the order that was entered. We also note that evidence (good
and bad) was presented regarding Van that must be weighed in a best interests analysis. Thus, we
remand the case for the court to perform the best interests analysis and determine if modification
is appropriate.
                                          CONCLUSION
       We find the district court abused its discretion in finding that Van failed to meet his burden
of proof as to a material change of circumstances. Therefore, we reverse the finding of the district
court and remand the cause to the district court to conduct an analysis of the best interests of the
children.
                                                      REVERSED AND REMANDED WITH DIRECTIONS.




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