842 N.W.2d 832
Neb. Ct. App.2014Background
- Dissolution decree (2005) awarded custody to Mark J. and visitation to Darla B.
- 2009–2011 modification petitions arose over supervised visitation and allegations of harm to Jacey.
- In 2010, visitation terms fluctuated between supervised and more restrictive arrangements.
- 2010–2011, Mark sought termination of visitation after Jacey reported abuse; allegations later deemed unfounded.
- Jacey, now 13, testified that Darla coached her to lie about Mark; Darla denied coercion.
- District court held that material change in circumstances warranted ending Darla’s visitation and ordered termination, with possible future contact only at Mark’s discretion; appellate court remanded for proper procedure and guardian ad litem.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether modification of visitation was proper given material change of circumstances | Darla: no material change; custody/visitation should remain. | Mark: material deterioration in relationship and risk to child. | Partially affirmed; material change shown, but remedy improper delegation of authority. |
| Whether district court abused discretion in terminating visitation | Darla: court should not terminate without considering best interests. | Mark: termination necessary for child’s welfare. | District court abused discretion by delegating future contact to Mark; remanded for proper procedures and guardian ad litem. |
| Whether court could rely on Darla-initiated reports and communications as evidence | Darla: reports were improper manipulation by Mark or misinterpretation by Jacey. | Mark: reports showed risk to Jacey. | Court properly weighed conflicting testimony but cautioned against unlawful delegation. |
Key Cases Cited
- Fine v. Fine, 261 Neb. 836 (Neb. 2001) (material change in circumstances for modification of visitation)
- Donscheski v. Donscheski, 771 N.W.2d 213 (Neb. App. 2009) (definition of material change in circumstances)
- Schulze v. Schulze, 238 Neb. 81 (Neb. 1991) (burden on party seeking modification)
- Deacon v. Deacon, 297 N.W.2d 757 (Neb. 1980) (cannot delegate judicial authority to influence visitation)
- Lautenschlager v. Lautenschlager, 272 N.W.2d 40 (Neb. 1978) (custody/visitation decisions must be independently made by court)
- Ensrud v. Ensrud, 433 N.W.2d 192 (Neb. 1988) (delegation to a custody officer improper)
- In re Interest of Teela H., 529 N.W.2d 134 (Neb. App. 1995) (improper delegation in juvenile context)
- In re Interest of D.M.B., 481 N.W.2d 905 (Neb. 1992) (court must fix terms of rehabilitation; not counselors' authority)
- Edwards v. Edwards, 744 N.W.2d 243 (Neb. App. 2008) (weight given to trial court’s witness credibility)