Jones v. Jones, 305 Neb. 615

Background

Mary and Curtis Jones divorced after having one child, Kasey (b. 2004); 2006 consent decree awarded Mary legal and physical custody and ordered Curtis to pay child support.
In 2011 the parties stipulated a material change and the court entered a joint legal and physical custody order with a week-on/week-off schedule; child support was reduced by stipulation.
Curtis filed to modify custody in 2016, alleging Mary’s housing instability, continuous unemployment, and unsafe living contacts made the 50/50 physical split no longer in Kasey’s best interests.
Trial (Aug. 2017) showed Mary was largely unemployed 2014–2017, suffered multiple evictions, lived with numerous people (including an abusive son), and moved frequently; Kasey remained healthy, well-adjusted, and close to both parents; drug tests were negative for both parents.
The district court found changes in Mary’s housing, employment, and finances, awarded Curtis physical custody (10/4 during school year; week-on/week-off in summer), kept joint legal custody but gave Curtis final say at impasse, ordered nominal child support ($10/month from Mary) and incorporated Curtis’ parenting plan; the Court of Appeals reversed the physical custody change but affirmed legal custody change and struck the safety plan.
The Nebraska Supreme Court (this opinion) reversed the Court of Appeals as to physical custody, affirmed giving Curtis final decisionmaking at impasse (while retaining joint legal custody), struck the safety plan, and remanded to attach an appropriate child support worksheet.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there was a material change in circumstances to modify physical custody	Curtis: Mary’s prolonged unemployment and chronic housing instability (evictions, transient residences, unsafe cohabitants) constitute a material change affecting Kasey’s best interests	Mary: Periods of unemployment occurred before 2011; no evidence of actual harm to Kasey from prior living situations	Yes. Court found continuous unemployment + chronic housing instability post-2011 were material and affected Kasey’s best interests; affirmed transfer of primary physical custody to Curtis
Whether to alter legal custody to give one parent final decisionmaking at impasse	Curtis: Need for a tie-breaker given disputes; proposed parenting plan gives him final say	Mary: Preserve joint legal custody; oppose giving unilateral final decisionmaking	Affirmed. Court kept joint legal custody but authorized Curtis to decide if parties reach an impasse
Whether to include a safety plan restricting Mary’s substance use during parenting time	Curtis: Safety plan needed given past substance issues and unstable contacts	Mary: No current substance abuse shown; testing was negative; plan unnecessary	Reversed the safety plan. Record did not support continuing a safety plan; plan provisions must be stricken
Whether the child support order must include a child support worksheet when ordering nominal support	Mary: District court erred by not attaching worksheet explaining calculation or deviation	Curtis: (Did not contest worksheet requirement)	Court: Even nominal support under the guidelines requires an attached worksheet or express findings explaining any deviation; remand to prepare and attach appropriate worksheet

Key Cases Cited

VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (standard for modification review; de novo review of custody modification)
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (custody best-interests factors and modification analysis)
Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (two-step showing for custody modification)
Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (evidence period prior to modification is most significant)
Hoschar v. Hoschar, 220 Neb. 913, 374 N.W.2d 64 (material change must be more than transitory)
Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (importance of attaching child support worksheets and showing guideline calculations)