Berndt v. Berndt
25 Neb. Ct. App. 272
| Neb. Ct. App. | 2017Background
- Tonya (appellant) and Scott Berndt divorced in 2012; they share two children (born 2005 and 2007). Joint legal and physical custody was awarded with primary residence with Scott; Tonya had scheduled weekend and summer parenting time.
- In January 2016 Tonya sought modification to an alternating week-on/week-off parenting schedule, alleging material changes affecting the children’s best interests.
- Since the divorce: children changed schools (from a country school to schools in Gordon and Rushville); Tonya maintains a home in Gordon (close to the children’s schools) while also living in Cheyenne much of the time and commuting; Scott lives on a ranch ~36 miles from Gordon.
- Sevanna (age 11 at trial) testified she wants equal time with both parents and prefers a weekly rotation; she communicates frequently with Tonya when at Scott’s house.
- Trial court found Tonya failed to prove a material change in circumstances and denied modification. The Nebraska Court of Appeals reviewed de novo.
Issues
| Issue | Plaintiff's Argument (Tonya) | Defendant's Argument (Scott) | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred since the 2012 decree | Changes in children’s schools, Tonya’s Gordon residence proximity to schools, Tonya’s increased weekday availability, and Sevanna’s expressed preference constitute a material change | Only Sevanna’s preference is new; other facts (Tonya commuting, residences) existed or are not material | Court of Appeals: material change existed (trial court abused discretion) |
| Whether modifying parenting time to alternating weekly schedule is in children’s best interests | Weekly rotation provides stability, more bonding time, better day-to-day parental involvement, and places children closer to schools/activities during Tonya’s weeks | Weekly rotation would disrupt children’s consistency and be detrimental | Court of Appeals: 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 (discretion to modify custody; two-step test for modification)
- Mark J. v. Darla B., 21 Neb. App. 770 (material change standard and burden on party seeking modification)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (child’s preference considered when of sufficient age and reasoning)
- Parker v. Parker, 234 Neb. 167 (appellate courts may make best-interests findings on de novo review)
- Robb v. Robb, 268 Neb. 694 (nonexclusive list of best-interests factors to consider)