Armitage v. Armitage
A-16-281
Neb. Ct. App.Nov 15, 2016Background
- Ronny and Lori Armitage divorced in 2011: joint legal custody of two sons (Chrystian, b.2000; Cameron, b.2003); Lori had physical custody; Ronny had every-other-weekend parenting time.
- In 2015 Ronny sought modification of physical custody, alleging a material change based largely on the children’s expressed wishes to live with him.
- At the 2016 trial the parties agreed the children would testify in camera; only the boys’ testimony and child support evidence were admitted.
- Chrystian (15) testified he wished to live with his father, described feeling closer and more engaged with Ronny (garage/mechanic activities, outdoor life), and described a deteriorated, sometimes hostile relationship with Lori.
- Cameron (12) testified he favored equal time but found life at his father’s more rewarding; both boys described more active family involvement at Ronny’s and isolation/limited interaction at Lori’s.
- The district court found both parents fit but concluded there was a material change in circumstances and that awarding physical custody to Ronny was in the children’s best interests; Lori appealed.
Issues
| Issue | Plaintiff's Argument (Ronny) | Defendant's Argument (Lori) | Held |
|---|---|---|---|
| Whether a material change in circumstances justified modifying physical custody | Children’s expressed desires and changed parent/child relationships (more engaged father; deteriorated relationship with mother) show material change | The children’s preferences are immature and insufficient; Ronny failed to prove he provided day‑to‑day care or medical/educational involvement | Court: Material change found — loss of mother/child relationship and greater paternal engagement justified modification |
| Whether the children’s preferences were given controlling weight | Preferences are entitled to consideration when child is of sufficient age and reasoning; here they reflected sound reasons | Preferences should not control; court improperly relied on Chrystian’s wishes | Court: Preferences considered but not controlling; used alongside other best‑interest factors |
| Whether modification was in the children’s best interests | Greater engagement, positive family activities, and improved emotional environment at father’s home favor custody change | Boys were well adjusted at mother’s; evidence insufficient to show best interests require change | Court: Best interests favored father — increased engagement and deteriorating mother/son relationship were detrimental at mother’s home |
| Whether siblings should be split or kept together | Public policy favors keeping siblings together; both boys bond and share activities — supports awarding custody of both to Ronny | Cameron wanted equal time and felt closer to Lori; insufficient evidence to change Cameron’s custody | Court: Keeping siblings together considered but not dispositive; awarded custody of both boys to Ronny as in their best interests |
Key Cases Cited
- Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016) (child’s articulated, reasoned preference and improved paternal environment supported modification)
- Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989) (deterioration of parent/child relationship and child’s preference can constitute material change)
- Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015) (party seeking custody modification bears burden to prove material change and best interests govern)
- Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005) (child’s preference considered but not controlling; court may deny modification despite preference)
- Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002) (a child of sufficient age expressing an intelligent preference merits consideration)