Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/21/2017 09:15 AM CST




                                                         - 272 -
                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                                 BERNDT v. BERNDT
                                                Cite as 25 Neb. App. 272




                    Scott Berndt, appellee, v. Tonya Berndt, now known                   as
                           Tonya DiPasquale-M artinez, appellant.
                                                     ___ N.W.2d ___

                                        Filed November 14, 2017.   No. A-16-1109.

                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.	 Divorce: Modification of Decree: Visitation. Visitation rights estab-
                     lished by a marital dissolution decree may be modified upon a showing
                     of a material 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.	 Visitation. The party seeking to modify visitation has the burden to
                     show a material change in circumstances affecting the best interests of
                     the child.
                 5.	 ____. The best interests of the children are primary and paramount con-
                     siderations in determining and modifying visitation rights.
                6.	 Modification of Decree: Child Custody: Proof. In a child custody
                     modification case, first, the party seeking modification must show a
                     material change in circumstances, occurring after the entry of the previ-
                     ous custody order and affecting the best interests of the child. Next, the
                     party seeking modification must prove that changing the child’s custody
                     is in the child’s best interests.
                7.	 Child Custody. While the wishes of a child are not controlling in
                     the determination of custody, if a child is of sufficient age and has
                     expressed an intelligent preference, the child’s preference is entitled to
                     consideration.
                                    - 273 -
            Nebraska Court of A ppeals A dvance Sheets
                 25 Nebraska A ppellate R eports
                            BERNDT v. BERNDT
                           Cite as 25 Neb. App. 272

 8.	 Modification of Decree: Child Custody: Appeal and Error. In a child
     custody modification case, an appellate court, in its de novo review, can
     make a best interests of the child finding if the evidence supports it.
 9.	 Child Custody. In determining the best interests of a child in a custody
     determination, a court must consider pertinent factors, such as the moral
     fitness of the child’s parents, including sexual conduct; respective envi-
     ronments offered by each parent; the age, sex, and health of the child
     and parents; the effect on the child as a result of continuing or disrupt-
     ing an existing relationship; the attitude and stability of each parent’s
     character; and parental capacity to provide physical care and satisfy
     educational needs of the child.

   Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Reversed and remanded with directions.
   Desirae M. Solomon for appellant.
   Bell Island, of Island Law Office, P.C., L.L.O., for appellee.
   Inbody, Pirtle, and R iedmann, Judges.
   Pirtle, Judge.
                     INTRODUCTION
  Tonya Berndt, now known as Tonya DiPasquale-Martinez,
appeals from an order of the district court for Sheridan County
denying her complaint to modify visitation with her children.
Based on the reasons that follow, we reverse, and remand
with directions.
                       BACKGROUND
   Tonya and Scott Berndt were divorced by a decree of dis-
solution on November 30, 2012. The parties have two minor
children, Sevanna Berndt, born in 2005, and Tobias Berndt
(Toby), born in 2007. The parties entered into a property
settlement and custody agreement, which was approved by
the court. Pursuant to the custody agreement, the parties had
joint legal and physical custody. The parties agreed that the
children would primarily reside with Scott. Tonya had par-
enting time every weekend, except on the third weekend of
                              - 274 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                       BERNDT v. BERNDT
                      Cite as 25 Neb. App. 272

each month. The parties alternated holidays, and Tonya was
awarded parenting time during the summer break, except for 4
weeks which were awarded to Scott.
   On January 25, 2016, Tonya filed a complaint to modify
visitation, alleging that since the entry of the decree, there
had been a material change in circumstances affecting the best
interests of the children. Tonya alleged that the material change
in circumstances were that she has a residence in Gordon,
Nebraska, and the ability to have regular and continuous con-
tact with the children; the current schedule creates confusion
and disagreements between the parties; and the children have
expressed a desire to spend more time with her. She sought an
order modifying the parenting time to a “week on/week off”
schedule, meaning parenting time would alternate between the
parties on a weekly basis.
   Trial on Tonya’s complaint to modify was held on October
18, 2016. The evidence showed that at the time of the divorce,
Scott was living on a ranch near Lakeside, Nebraska. The
ranch is 36 miles from Gordon. At the time of the hearing on
the complaint to modify, Scott continued to live at the ranch
with the children and his new wife.
   At the time of the divorce, Tonya was awarded the parties’
home in Gordon, but she was living in Kimball, Nebraska. She
would commute to Gordon for her parenting time. In March
2013, Tonya moved to Gordon and lived in the marital home.
In January 2014, she moved to Cheyenne, Wyoming, and
subsequently remarried. Since January 2014, Tonya has been
commuting from Cheyenne to Gordon for her parenting time.
She sold the marital home in Gordon, and she and her husband
bought a different home in Gordon. She continues to exercise
most of her parenting time in Gordon, but she occasionally
takes the children to Cheyenne. Tonya testified that she exer-
cises a large part of her parenting time in Gordon so the chil-
dren can participate in sports and other activities. Tonya often
spends time in Gordon in addition to the time she is there for
her scheduled parenting time.
                              - 275 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                       BERNDT v. BERNDT
                      Cite as 25 Neb. App. 272

   Tonya testified that she and her husband have a “dual
residence,” and her husband testified likewise. They live
in Cheyenne the majority of the time, and both described
Cheyenne as their primary residence. Tonya has two older
children from another relationship that both live in Cheyenne.
At the time of trial, one was in high school and the other had
reached the age of majority and was living on her own.
   When the decree was entered, Sevanna and Toby were
attending a country school located 11 miles from Scott’s ranch
and 30 miles from Gordon. During the 2013-14 and 2014-15
school years, the children attended school in Lakeside, which
then closed at the end of the 2014-15 school year. The children
began attending school in Gordon and Rushville, Nebraska,
during the 2015-16 school year. They were attending the same
school district at the time of trial. Toby’s elementary school
was located in Gordon, and Sevanna’s middle school was
located in Rushville. Sevanna would take a bus to school that
left from the high school parking lot in Gordon and returned to
the same parking lot at the end of the schoolday.
   Tonya’s home in Gordon is located 11⁄2 blocks from Toby’s
school and 4 blocks from the high school in Gordon. Tonya
testified that during the 2015-16 school year, she spent time in
Gordon during the week because she wanted to be close by the
children in case they needed a “snack” or a “place to go” after
school. She also testified that she was often in Gordon during
the week because she was renovating her home.
   Tonya testified that Toby has had some issues at school
because of his “ethnicity.” She stated that the children are
“multiracial” and that she feels they “had been a product of
some comments that have been said.” She testified that she
believes it is important that she is there to help the children
when they face these issues and it is important that the chil-
dren are aware of their “full diverse culture.”
   Sevanna and Toby both participate in various sports and are
involved in 4-H. Tonya and Scott both attend the children’s
sporting events and activities and help the children with their
                               - 276 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                        BERNDT v. BERNDT
                       Cite as 25 Neb. App. 272

4-H projects. During the week, Scott gets the children to and
from school as well as to their activities. On the weekends,
Tonya gets the children to and from their activities. Both par-
ties are also involved in their children’s schooling, including
helping with homework.
   The evidence showed that for the most part, the parties have
worked well together regarding the children. They were gener-
ally able to communicate about the children’s activities and
weekend exchanges if there was a conflict. There have been
some disputes regarding Scott’s parenting time on the third
weekend of the month, mostly during times when those week-
ends fall on a holiday.
   Tonya testified that a week on/week off parenting time
arrangement would provide stability, be “less back and forth,”
alleviate frustration in communication, and alleviate disputes
over Scott’s weekend visitation. She further testified that she
would have more bonding time with the children and would be
able to participate in their everyday lives. Tonya stated that her
parenting time would continue to take place in Gordon.
   Scott testified that he was opposed to a week on/week off
arrangement, because the children need consistency and he
thought it would be detrimental to the children.
   Sevanna also testified at trial. She expressed a desire to
spend more time with Tonya and stated she would prefer
an alternating weekly parenting schedule. She testified that
when she is at her father’s house during the week, she and
her mother send messages back and forth on Facebook almost
daily, starting when she gets home after school and continuing
throughout the evening. She also testified that there are some
issues and problems that she feels more comfortable talking
to her mother about. She testified that she loves both parents
equally and would like to spend an equal amount of time
with them.
   The trial court found that Tonya had failed to prove a mate-
rial change in circumstances occurred which affected the best
interests of the children. It noted that at the time of the decree,
                               - 277 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                        BERNDT v. BERNDT
                       Cite as 25 Neb. App. 272

Tonya lived in Kimball and was commuting for her parenting
time, having it occur in Gordon. At the time of trial, she con-
tinued to travel for her parenting time, with the distance from
Cheyenne being greater than it was from Kimball. The court
found that the only change since the decree was Sevanna’s
desire to spend more time with Tonya and that this alone did
not constitute a material change in circumstances. The court
determined that there was insufficient evidence to show a
material change in circumstances had occurred which affected
the best interests of the children, and it denied Tonya’s motion
to modify visitation.
                 ASSIGNMENTS OF ERROR
   Tonya assigns that the trial court erred in (1) failing to find
that a material change in circumstances had occurred since
the entry of the decree and (2) failing to find that it was in
the children’s best interests to modify the parenting plan to an
alternating weekly schedule.
                   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. Hopkins v. Hopkins, 294 Neb.
417, 883 N.W.2d 363 (2016).
                           ANALYSIS
   [2-5] Visitation rights established by a marital dissolu-
tion decree may be modified upon a showing of a material
change of circumstances affecting the best interests of the
children. Mark J. v. Darla B., 21 Neb. App. 770, 842 N.W.2d
832 (2014). 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. The party seek-
ing to modify visitation has the burden to show a material
change in circumstances affecting the best interests of the
                               - 278 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                        BERNDT v. BERNDT
                       Cite as 25 Neb. App. 272

child. Id. The best interests of the children are primary and
paramount considerations in determining and modifying visi-
tation rights. Id.
   [6] In a child custody modification case, first, the party
seeking modification must show a material change in cir-
cumstances, occurring after the entry of the previous custody
order and affecting the best interests of the child. Next, the
party seeking modification must prove that changing the
child’s custody is in the child’s best interests. Hopkins v.
Hopkins, supra.
   Tonya first assigns that the trial court erred in failing to find
that a material change in circumstances had occurred since the
entry of the decree. The trial court found that the only change
since the decree was Sevanna’s desire to spend more time
with Tonya.
   Sevanna was 11 years old at the time of trial. She testified
in court expressing her desire to spend more time with Tonya
and stated she would prefer an alternating weekly parenting
schedule. She indicated that the amount of time she spends
with Tonya is not enough “[b]ecause she like takes good care
of us and she’s our mom and — you know, yeah.” She also
testified that there are some issues and problems that she feels
more comfortable talking to her mother about. She testified
that when she is at her father’s house during the week, she and
her mother send messages back and forth on Facebook almost
daily, starting when she gets home after school and continu-
ing throughout the evening. She testified that an equal amount
of time with her parents would be good for her “[b]ecause
[she] would get to see both [her] parents equal time and it
would work out with like sports and stuff too.” Sevanna fur-
ther indicated that spending equal time was important to her
“[b]ecause I love my parents both equally and it’s just fun
being around them.”
   [7] While the wishes of a child are not controlling in the
determination of custody, if a child is of sufficient age and
has expressed an intelligent preference, the child’s preference
                              - 279 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                       BERNDT v. BERNDT
                      Cite as 25 Neb. App. 272

is entitled to consideration. See Floerchinger v. Floerchinger,
24 Neb. App. 120, 883 N.W.2d 419 (2016). Further, in cases
where the minor child’s preference was given significant con-
sideration, the child was usually over 10 years of age. Id.
   The trial court considered Sevanna’s desire to spend more
time with Tonya and concluded that her desire alone did not
constitute a material change in circumstances. However, the
trial court failed to recognize other changes that have occurred
since the decree.
   When the decree was entered in November 2012, Scott was
living near Lakeside and Tonya was living in Kimball and
commuting to Gordon for parenting time. The children were
attending a country school that was 30 miles from Gordon and
11 miles from Scott’s residence.
   At the time of the modification trial, Tonya was living in
Cheyenne, but also had a different home in Gordon where
she was spending a large amount of time. The children were
attending school in Gordon and Rushville. Gordon is 36 miles
from Scott’s residence. Tonya’s home in Gordon was within
blocks of Toby’s elementary school and the high school park-
ing lot from which Sevanna was transported via bus to and
from the middle school in Rushville. Tonya was not working,
which allowed her to be in Gordon during the week, in addi-
tion to when she was there for parenting time. The children
were involved in various sports and activities in Gordon, which
resulted in them spending a large amount of time in Gordon.
It also resulted in a lot of driving back and forth during the
week between Gordon and Scott’s residence, each way being
36 miles.
   We conclude that the change in the children’s schools, the
location of Tonya’s Gordon home and Scott’s home in rela-
tion to the children’s schools, and Tonya’s availability dur-
ing the week, are all changes that have occurred since the
decree. When these changes are considered in conjunction
with Sevanna’s desire to spend more time with Tonya, they
result in a material change in circumstances. Accordingly, the
                               - 280 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                        BERNDT v. BERNDT
                       Cite as 25 Neb. App. 272

trial court abused its discretion in finding that there was insuf-
ficient evidence to show a material change in circumstances
had occurred.
   [8] Tonya also assigns that the trial court erred in failing to
find that it was in the children’s best interests to modify the
parenting time. The trial court did not address the children’s
best interests because it found there was no material change in
circumstances. However, in our de novo review, we can make
a best interests finding if the evidence supports it. See Parker
v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989). We deter-
mine that the evidence is sufficient to make a best interests
finding in this case.
   [9] Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides
that in determining custody and parenting arrangements:
      [T]he court shall consider the best interests of the minor
      child, which shall include, but not be limited to, consid-
      eration of . . . :
         (a) The relationship of the minor child to each parent
      prior to the commencement of the action or any subse-
      quent hearing;
         (b) The desires and wishes of the minor child, if
      of an age of comprehension but regardless of chrono-
      logical age, when such desires and wishes are based on
      sound reasoning;
         (c) The general health, welfare, and social behavior of
      the minor child;
         (d) Credible evidence of abuse inflicted on any family
      or household member. . . ; and
         (e) Credible evidence of child abuse or neglect or
      domestic intimate partner abuse.
Other pertinent factors include the moral fitness of the child’s
parents, including sexual conduct; respective environments
offered by each parent; the age, sex, and health of the child
and parents; the effect on the child as a result of continuing
or disrupting an existing relationship; the attitude and stabil-
ity of each parent’s character; and parental capacity to provide
                              - 281 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                       BERNDT v. BERNDT
                      Cite as 25 Neb. App. 272

physical care and satisfy educational needs of the child. Robb
v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
   The evidence shows that the children have a good relation-
ship with both parents. Both parents are actively involved in the
children’s homework and their extracurricular activities. The
parties are able to communicate about the children’s activities
and exchanges, and they have generally worked well together
regarding the children. As previously discussed, Sevanna wants
to spend more time with Tonya. She feels more comfortable
talking to her mother about certain topics. She communicates
with her mother via Facebook almost daily when she is at her
father’s house. The week on/week off parenting arrangement
will allow Sevanna more time with Tonya and will give her
more face-to-face communication. Further, the modified sched-
ule will allow the children to be close to their schools and
activities during the weeks that Tonya has them. It also will
give the children the opportunity to have both parents involved
in their day-to-day activities.
   Upon our de novo review, we find that modifying custody
to a week on/week off parenting schedule is in the children’s
best interests.
                          CONCLUSION
   We conclude that the trial court abused its discretion in
finding that there was insufficient evidence to show a material
change in circumstances had occurred which affected the best
interests of the children. Accordingly, the trial court erred in
denying Tonya’s complaint to modify visitation. We reverse
the trial court’s order and remand the cause with directions for
the district court to enter a modification order and parenting
plan consistent with this opinion.
                      R eversed and remanded with directions.
