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08/02/2019 01:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                              VanSKIVER v. VanSKIVER
                                                 Cite as 303 Neb. 664




                                        A nne E. VanSkiver,         appellee, v.
                                         Todd J. VanSkiver,         appellant.
                                                    ___ N.W.2d ___

                                          Filed July 12, 2019.    No. S-18-852.

                 1. Modification of Decree: Appeal and Error. Modification of a dis-
                    solution 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.
                 2. Modification of Decree: Visitation. Visitation rights established by a
                    marital dissolution decree may be modified upon a showing of a mate-
                    rial change of circumstances affecting the best interests of the children.
                 3. Modification of Decree: Words and Phrases. 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.
                 4. Modification of Decree: Visitation: Proof. The party seeking to mod-
                    ify visitation has the burden to show a material change in circumstances
                    affecting the best interests of the child.
                 5. Modification of Decree: Visitation. The best interests of the children
                    are primary and paramount considerations in determining and modifying
                    visitation rights.
                 6. Courts: Child Custody: Visitation. Under Nebraska law, the court is
                    responsible for developing and approving a parenting plan, and it has
                    a nondelegable duty to determine questions of custody and parenting
                    time of minor children according to their best interests. The authority
                    to determine custody and visitation cannot be delegated to a third party,
                    because it is a judicial function.

                 Appeal from the District Court for Adams County: Stephen
               R. Illingworth, Judge. Affirmed as modified.
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

   Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O.,
for appellant.
  Lucinda Cordes Glen for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Stacy, J.
   The marriage of Anne E. VanSkiver and Todd J. VanSkiver
was dissolved in April 2015. Anne was granted legal and
physical custody of the parties’ two minor children, subject to
a parenting plan agreed to by the parties and approved by the
court. In July 2017, Anne moved to modify and suspend Todd’s
parenting time pending family therapy, alleging that his erratic
and threatening behavior had escalated and that the children
were frightened of him. The district court did not order fam-
ily therapy, but did modify the parenting plan. Todd filed this
timely appeal. We affirm as modified.
                             FACTS
   Anne and Todd married in 2000, and in October 2009,
she filed a complaint to dissolve the marriage. After years of
contentious litigation, the parties reached a settlement agree-
ment and the marriage was dissolved in April 2015. Anne was
awarded legal and physical custody of the parties’ two minor
children, and Todd was awarded parenting time pursuant to an
agreed-upon parenting plan. Under the plan, Todd had parent-
ing time every Monday and Wednesday evening from 5:30 to
7:30 and the second weekend of every month from 5:30 p.m.
on Friday until 5:30 p.m. on Sunday. The plan also set forth a
rotating holiday parenting time schedule.
   In July 2017, Anne sought to modify Todd’s parenting
time, asking that it be suspended pending family therapy. She
alleged that since the entry of the decree, Todd had “become
increasingly angry, threatening, harassing, and erratic” to her,
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

the children, and others. She alleged that she had obtained a
protection order against Todd due to this new behavior, that
he had violated the protection order, and that the children
“fear[ed] for their safety” when they were with Todd. She
asked that Todd’s parenting time be modified in an appropri-
ate manner and suspended until the children were comfortable
with him after family therapy. Todd’s answer denied Anne’s
allegations and alleged that no material change in circum-
stances had occurred.
   Trial on the complaint to modify was held May 2, 2018.
Anne testified that she obtained a protection order against
Todd on May 25, 2017, based on threats he made to her, such
as “tic toc . . . time is running out,” “[w]atch out from being
alone in the dark,” and “[t]he sands of time are closing in.”
She testified she understood these statements to be threats
that Todd was going to harm or kill her. Anne further testified
that Todd violated this protection order in June 2017 by send-
ing similar text messages, including some alluding to digging
her grave.
   The protection order was still in effect at the time of trial,
and thus Todd was precluded from having contact with Anne.
Because of this, Todd had been contacting the older child, who
was born in 2002 and was 15 at the time of trial, to arrange
parenting time. Anne testified that Todd often had dinner with
the children two nights a week, but that he had not exercised
his weekend parenting time for approximately 1 year (since
May 2017). Anne said the children had expressed concerns to
her about spending time with Todd. She testified that Todd had
“become more frightening” since the time of the divorce, and
she asked that his parenting time be modified to occur only
“when the kids wanted to see [him].”
   On cross-examination, Anne testified that Todd made daily
threats to her during the marriage. She admitted being fright-
ened of him prior to the divorce. On redirect, she explained
that since the divorce, Todd’s “whole demeanor” had changed,
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

in addition to the “way he is with the kids.” She testified that
the children were now “scared of him,” had realized “that he’s
crazy,” and were “afraid.”
    A licensed independent mental health practitioner testified
that he had provided counseling services for both children
during the fall and winter of 2017 and for the younger child
in April 2018. The practitioner testified that the relation-
ship between the younger child and Todd was “strained” and
“poorly-formed.” He did not think the relationship was improv-
ing. The practitioner admitted he had never met Todd.
    At the time of trial, Todd was on probation for violating the
protection order Anne obtained against him and his probation
was subject to various conditions. Todd’s probation officer tes-
tified that a motion to revoke probation was pending because
Todd had failed to comply with certain conditions, including
completion of a 36-week education class and not possessing
firearms. The record indicates Todd was dismissed from the
education class due to disruptive behavior and noncompliance
with course rules. The probation officer noted that revocation
proceedings remained pending and that Todd had denied the
allegations of the motion to revoke.
    The older child’s school counselor testified that she began
seeing him weekly at the beginning of the 2017-18 school
year. Some weeks she sees him more than once, because the
child seeks her out for additional counseling if he is having a
difficult day. The counselor testified that she works with the
child to help him destress and cope with his anxiety so that he
can focus on his schoolwork. She testified the child often has
stomach aches due to his anxiety and sometimes needs to go
home from school. The counselor testified that one source of
the child’s stress and anxiety was contact with his father. The
counselor had viewed some text correspondence between the
child and Todd and opined that Todd’s messages were inap-
propriate. She also opined that the child felt a responsibility
to shelter and protect the younger child from his father. The
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

counselor had discussed these issues with Anne, but had never
met Todd.
   The older child testified in chambers. The parties’ lawyers
were present, but the parents were not. He was 15 years old
at the time of trial and a high school freshman. His younger
brother was 11 years old. He stated that his preference would
be that he would like “little to no time” with his father, except
maybe on holidays and Christmas. He thought that less contact
with his father would be a big stress relief for him. He testified
he was worried about his younger brother’s safety, because he
thought his father could possibly hurt him. The child explained
that Todd is “unpredictable” and that he never knew when
Todd was “going to outburst and into rage.” He testified he
was afraid of his father, and he thought his brother was afraid
too. He asked that any parenting time with his father be limited
to when the children wanted to see him. The child was unsure
whether joint counseling with his father would help, because
he did not think his father would be open to it. He stated he
does not really bring up issues to his father, because his father
“brush[es] them off.” He testified he was fearful that his father
and grandmother might attempt to kidnap him as some sort
of “vendetta.”
   The child testified that on one occasion when his father
picked them up for a visit, there was a gun in the back seat
of the car, next to where his younger brother was riding. He
also described an incident where his father got angry with
his younger brother and grabbed the child’s face during a
card game, but otherwise testified Todd had never physically
struck either of them. He stated his father often called him
names, such as “mother fucker,” “master baitor,” “wiener,”
“wanger,” and “wise ass.” He stated the name calling made
him feel “[e]motionally drained.” He testified the relationship
with his father was causing him stress. However, the child
said he did not mind being the go-between to set up visits
with his father.
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

   Todd testified that he did not believe any change in the par-
enting plan was warranted. He stated that communicating with
the older child directly to set up visitation times was generally
working. He denied ever calling the older child names, even in
a joking manner. He also denied ever having a gun in the vehi-
cle when he picked up the boys. Todd’s mother testified that
she had never heard him call the boys names or threaten them.
   On August 17, 2018, the district court entered an order
modifying the parenting time. The order made specific factual
findings, including the following:
     [T]he Court observed the conduct and demeanor of [Anne]
     and [Todd] during the modification hearing. [Anne] is
     clearly afraid of [Todd]. She is distressed to be in the
     same room with him. As to [Todd], he has total disrespect
     for [Anne], the Court and anyone in a position of author-
     ity. During [Anne’s] testimony the Court observed his
     mocking behavior, laughing during testimony and general
     contemptuous attitude. . . .
        ....
        The Court has consistently forced children to go on
     visitations with non custodial parents when they did not
     want to go and the children were not at risk for mental or
     physical harm. This case is different. These children have
     been and are at risk for mental abuse from their father.
     [Todd] has consistently shown signs of extreme anger,
     contempt for authority, a total disregard of the rules
     functioning citizens are required to live by and a pattern
     of threats and intimidation to his children and former
     wife. . . . The Court will therefore enter an order to allow
     the boys to see their father at their discretion. Hopefully
     [Todd] will seek mental health counseling to help him
     repair his relationship with his boys.
The court’s order then provided:
        1. There has been a material change in circumstances
     warranting a modification of [Todd’s] parenting time.
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                         VanSKIVER v. VanSKIVER
                            Cite as 303 Neb. 664

    Paragraph V, time sharing on page 3 of the parenting plan
    is modified as follows:
       The Father shall have parenting time as follows:
       A. Monday and Wednesday evenings of each week
    from 5:30 P.M. to 7:30 P.M. The boys may decline to go
    on these visits if [Todd] acts in a threatening manner.
       B. Holidays and special days - the boys shall decide if
    they wish to see their father on the holidays and special
    days set out in the parenting plan.
       2. There will be no overnight visitations until [Todd]
    engages in individual mental health counseling and then
    counseling with the boys. He may then petition the Court
    for additional parenting time.
  Todd filed this timely appeal, and we moved the case to our
docket on our own motion.
                ASSIGNMENTS OF ERROR
   Todd assigns that the district court abused its discretion
in (1) determining a material change in circumstances had
occurred since the entry of the decree, (2) delegating to the
minor children the right to determine whether to exercise par-
enting time with Todd, and (3) limiting his parenting time.
                   STANDARD OF REVIEW
   [1] 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.1
                          ANALYSIS
             M aterial Change in Circumstances
  [2-5] Visitation rights established by a marital dissolution
decree may be modified upon a showing of a material change

1
    Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). See Flores v.
    Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                         VanSKIVER v. VanSKIVER
                            Cite as 303 Neb. 664

of circumstances affecting the best interests of the children.2
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.3 The party seeking to modify visitation
has the burden to show a material change in circumstances
affecting the best interests of the child.4 The best interests
of the children are primary and paramount considerations in
determining and modifying visitation rights.5
   Todd argues Anne failed to show a material change in cir-
cumstances that would support modifying his parenting time.
Bluntly put, his contention is that Anne was afraid of him at
the time of their divorce due to his threatening behavior, so
the fact that she remains afraid of him due to his threaten-
ing behavior is nothing new. We do not find Todd’s conten-
tion persuasive.
   The evidence does show that Anne was afraid of Todd and
felt threatened by his behaviors at the time of their divorce.
But it also shows that Todd’s behavior has escalated since
that time, to the point where Anne had to obtain a protection
order against him. Perhaps more important, regardless of the
relationship between Todd and Anne, there is evidence that
the circumstances of the relationship between Todd and the
children has deteriorated. Anne testified Todd’s behavior has
escalated, his demeanor toward the children has changed, and
the children are afraid of him. The older child confirmed he
was afraid of his father, and there was evidence that child was
experiencing significant stress as a result of his father’s harm-
ful behavior and mental abuse. On this record, we find Anne

2
    Berndt v. Berndt, 25 Neb. App. 272, 904 N.W.2d 24 (2017).
3
    Id.
4
    Id.
5
    Id.
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                          VanSKIVER v. VanSKIVER
                             Cite as 303 Neb. 664

has shown a material change in circumstances affecting the
best interests of the children. Todd’s first assignment of error
is meritless.

                 Modification of Parenting Time
   [6] In his second assignment of error, Todd argues the
district court erred in “delegating to the minor children the
right to determine whether to exercise parenting time.” 6 Under
Nebraska law, the court is responsible for developing and
approving a parenting plan.7 Both this court 8 and the Court
of Appeals 9 have held that a trial court has a nondelegable
duty to determine questions of custody and parenting time of
minor children according to their best interests. And we have
emphasized that the authority to determine custody and visita-
tion cannot be delegated to a third party, because it is a judi-
cial function.10
   Todd’s argument that there has been an improper delegation
of the court’s authority to establish parenting time is premised
on the assumption that when the court modified his parenting
time, it retained the specific blocks of scheduled parenting
time awarded previously, but authorized the children to decide,
based on Todd’s behavior, whether he could exercise that par-
enting time. This is a plausible interpretation of the court’s
language, but we are not convinced on de novo review that it
is the proper one.

 6
     Brief for appellant at 16.
 7
     See Neb. Rev. Stat. § 43-2929 (Reissue 2016).
 8
     See, Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988); Deacon
     v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980), disapproved on other
     grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
 9
     See, Barth v. Barth, 22 Neb. App. 241, 851 N.W.2d 104 (2014); Mark J.
     v. Darla B., 21 Neb. App. 770, 842 N.W.2d 832 (2014); In re Interest of
     Teela H., 3 Neb. App. 604, 529 N.W.2d 134 (1995).
10
     See Ensrud, supra note 8.
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

                    No Improper Delegation
   We are guided by the court’s expressed intentions. Before
articulating the terms of the modified parenting plan, the court
stated its intent was to “enter an order to allow the boys to see
their father at their discretion.” This does not suggest to us
that the court intended to retain any enforceable parenting time
with Todd. To the contrary, we understand the court as stating
an intent to completely eliminate Todd’s enforceable parenting
time, while simultaneously acknowledging the practical real-
ity that the boys may at times still wish to spend time with
their father.
   The remainder of the court’s order is consistent with this
intention. The order expressly eliminated Todd’s overnight par-
enting time and provided that if Todd “engages in individual
mental health counseling and then counseling with the boys
. . . [h]e may then petition the Court for additional parent-
ing time.”
   We acknowledge the court’s order provided that the boys
could “decide if they wish to see their father” on holidays and
“may decline to go on” the Monday and Wednesday evening
visits, but we do not understand this language as delegat-
ing to the children the judicial duty of establishing the par-
enting schedule. Instead, the order eliminated all of Todd’s
scheduled parenting time and recognized the reality that the
boys, now ages 16 and 12, may want to spend time with their
father despite the fact Todd has no enforceable parenting time
schedule. Contrary to Todd’s contention, the children were not
given discretion to set the parenting time schedule, nor were
they given authority to determine whether or when Todd could
exercise parenting time.
   Indeed, were we to adopt Todd’s interpretation of the court’s
order, it would be inconsistent with the court’s factual findings
and difficult to enforce. The district court articulated genuine
concern about Todd’s escalating behavior and its negative effect
on the children, which the court described as mental abuse, and
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

it would be inconsistent for the court to then award Todd spe-
cific parenting time contingent on the children’s determination
of whether Todd was acting in a threatening manner. Moreover,
were we to construe the order of modification in this fashion,
the only way to enforce it would be for Todd to bring a con-
tempt action against his children, and we cannot imagine that
was the court’s intention.
   Construed in context with the other provisions of the court’s
order of modification, we find the court developed a modified
parenting plan designed to protect the children from Todd’s
harmful behavior by suspending all of his scheduled parent-
ing time. We find this construction is not only supported by
the record but is consistent with the court’s stated intention in
modifying the parenting plan. To the extent the language of the
modification order could be read otherwise, we modify it on de
novo review for the sake of clarity.
   In doing so, we reject Todd’s claim that the court has
improperly delegated decisions about parenting time to the
minor children. Instead, we clarify that the court has modified
Todd’s parenting time by suspending it entirely. Todd’s second
assignment of error is meritless.

                   No A buse of Discretion
   In his final assignment of error, Todd argues the court
abused its discretion in limiting his parenting time. Having
clarified that the court actually suspended Todd’s parenting
time altogether, we find no abuse of discretion.
   The record is replete with evidence that Todd’s threatening
behavior toward Anne and the children has escalated since
the decree was entered and the original parenting plan was
approved. The older child testified he is afraid of his father,
and the court specifically found Todd’s behavior amounted to
mental abuse of the children. Evidence showed Todd violated
the protection order Anne obtained against him and had been
noncompliant with the terms of his probation, indicating an
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                     VanSKIVER v. VanSKIVER
                        Cite as 303 Neb. 664

unwillingness to acknowledge or change his behavior. As the
court noted, the evidence established that “[Todd] has con­
sistently shown signs of extreme anger, contempt for authority,
a total disregard of the rules functioning citizens are required
to live by and a pattern of threats and intimidation to his chil-
dren and former wife.”
   On this record, we find no abuse of discretion in suspending
Todd’s scheduled parenting time.

                       CONCLUSION
   The order of modification was warranted by a material
change in circumstances, and the court did not improperly
delegate its authority to determine parenting time. Instead,
as modified by this court for clarity, the district court’s order
suspended Todd’s parenting time entirely. Because the record
supports this modification, we affirm the order of the district
court as modified.
                                        A ffirmed as modified.
