Horn v. Shell-Horn
A-17-009
| Neb. Ct. App. | Oct 17, 2017Background
- Melinda Shell-Horn and Ryan Horn, married in 2002, have Truman (2002) and Eleanor (2005).
- Divorce decree (March 2013) awarded Melinda primary physical custody; Ryan had regular parenting time; joint legal custody.
- May 2013 order granted right of first refusal for parenting when the possessive parent is unavailable.
- April 2016 Melinda sought modification due to Ryan’s travel; Ryan counterclaimed for joint physical custody with equal time sharing.
- Trial held September 30, 2016; evidence focused on Eleanor’s physical custody and parenting plan changes.
- October 7, 2016 district court awarded Eleanor joint physical custody on a weekly alternating schedule; Truman remained primarily with Melinda.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a material change in circumstances | Melinda: none for Eleanor; current plan still fits. | Horn: travel and child wishes show material change. | Yes; material change found for Eleanor. |
| Whether joint physical custody serves Eleanor’s best interests | Melinda: current plan best, especially Truman’s health needs; avoid disruption. | Ryan: more balanced schedule benefits both children and accommodates travel. | Yes; joint physical custody awarded to both with weekly alternation for Eleanor. |
| Standard of review and deference to trial court | Melinda: trial judge relied on stressed demeanor; need deference not shown. | Horn: court properly observed witnesses and applied best-interests factors. | De novo review affirmed; no abuse of discretion. |
Key Cases Cited
- Floerchinger v. Floerchinger, 883 N.W.2d 419 (Neb. App. 2016) (highly weight given to judge who heard witnesses in custody disputes)
- Heistand v. Heistand, 673 N.W.2d 541 (Neb. 2004) (material change in circumstances prerequisite to modification)
- Robb v. Robb, 687 N.W.2d 195 (Neb. 2004) (consider credibility and trial judge's observations on conflicting evidence)
- State on behalf of Jakai C. v. Tiffany M., 871 N.W.2d 230 (Neb. 2015) (best-interests factors govern custody decisions)
- Flores v. Flores-Guerrero, 859 N.W.2d 578 (Neb. 2015) (de novo review with potential deference in parenting time determinations)