Berndt v. Berndt
25 Neb. Ct. App. 272
| Neb. Ct. App. | 2017Background
- Tonya (now DiPasquale-Martinez) and Scott Berndt divorced in 2012; joint legal/physical custody with children primarily residing with Scott. Tonya had regular weekend and summer parenting time.
- Children: Sevanna (b.2005) and Tobias (b.2007). At divorce they attended a country school closer to Scott; later they attended schools in Gordon and Rushville.
- Tonya later acquired and spent substantial time at a home in Gordon (close to the children’s schools), while primarily residing with her husband in Cheyenne and commuting for parenting time; she was not working and was available during weekdays.
- Sevanna (age 11 at trial) testified she wanted more equal time with Tonya and preferred an alternating week-on/week-off schedule; she communicates frequently with Tonya and feels more comfortable discussing some issues with her mother.
- Tonya asked to modify visitation to a week-on/week-off schedule, asserting material changes (residence patterns, children’s school locations, her weekday availability, and children’s expressed wishes). The district court denied the request, finding no material change except Sevanna’s preference.
- The Court of Appeals reversed, finding material changes in circumstances and that a week-on/week-off schedule is in the children’s best interests; it remanded with directions to enter a modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred since the 2012 decree | Tonya: children's schools changed; Tonya spends substantial time in Gordon near schools; Tonya is available during weekdays; Sevanna wants more time — cumulatively these are material changes | Scott: children have stability with current arrangement; Sevanna's preference alone is insufficient to show material change | Court: Material change found — school locations, Tonya’s Gordon residence/availability plus Sevanna’s preference together constitute a material change |
| Whether modifying to alternating weekly parenting is in children's best interests | Tonya: weekly rotation would reduce conflict, increase bonding and day-to-day parental involvement, align with children’s school/activity locations | Scott: weekly rotation would disrupt consistency and be detrimental to children | Court: Week-on/week-off is in the children’s best interests given child’s preference, parental involvement, proximity to schools, and ability for daily parental involvement |
Key Cases Cited
- Hopkins v. Hopkins, 294 Neb. 417 (2016) (standards for modification of custody/decree)
- Mark J. v. Darla B., 21 Neb. App. 770 (2014) (material change definition and party’s burden to show change affecting child’s best interests)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (2016) (child’s expressed preference entitled to consideration when of sufficient age and reasoning)
- Parker v. Parker, 234 Neb. 167 (1989) (appellate court may make best-interests finding on de novo review)
- Robb v. Robb, 268 Neb. 694 (2004) (enumeration of pertinent best-interests factors)