Berndt v. Berndt
25 Neb. Ct. App. 272
| Neb. Ct. App. | 2017Background
- Tonya and Scott Berndt divorced in 2012; they have two children (born 2005 and 2007). Joint legal and physical custody; children primarily resided with Scott; Tonya had regular weekend parenting time and alternating holidays; summer time divided.
- Tonya filed to modify visitation in Jan 2016 seeking a week-on/week-off schedule, alleging material changes including her having a residence in Gordon, better regular contact, children’s preference, and scheduling disputes.
- At trial Tonya testified she maintains a home in Gordon (near the children’s schools), spends substantial time there during the week, and is available to support the children; she also lives primarily in Cheyenne but commutes. Scott lives on a ranch 36 miles from Gordon.
- The children’s schooling changed since the decree: they now attend school in Gordon/Rushville (closer to Tonya’s Gordon home), increasing weekday activity and travel toward Gordon.
- The trial court denied the modification, finding the only change was the older child’s desire for more time with Tonya and that this alone was not a material change affecting the children’s best interests.
- On appeal the Nebraska Court of Appeals reversed, finding multiple post-decree changes (school location, proximity of Tonya’s Gordon home to schools, Tonya’s weekday availability, and the child’s preference) together constituted a material change and that week-on/week-off custody is in the children’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred since the 2012 decree | Tonya: changed circumstances — children’s school locations, Tonya’s Gordon residence and weekday availability, and Sevanna’s expressed preference — would have led the court to decree differently | Scott: no material change; Tonya still commutes for parenting time and the child’s preference alone is insufficient | Court: Reversed — these factors together constitute a material change of circumstances |
| Whether modifying parenting time to alternating week-on/week-off is in the children’s best interests | Tonya: weekly rotation will provide stability, more bonding, closer proximity to schools/activities during Tonya’s weeks, and more face-to-face time with Sevanna | Scott: opposed; argued consistency favors current arrangement and weekly rotation would be detrimental | Court: De novo review finds week-on/week-off is in children’s best interests; remand with directions to enter modification |
Key Cases Cited
- Hopkins v. Hopkins, 294 Neb. 417 (2016) (articulates standard for modification of custody and best-interests framework)
- Mark J. v. Darla B., 21 Neb. App. 770 (2014) (party seeking visitation modification must show material change affecting best interests)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (2016) (child’s expressed preference is entitled to consideration if of sufficient age and intelligence)
- Parker v. Parker, 234 Neb. 167 (1989) (appellate court may make best-interests finding de novo)
- Robb v. Robb, 268 Neb. 694 (2004) (lists factors for determining child’s best interests)