Shandera v. Schultz
A-22-783
Neb. Ct. App.Aug 22, 2023Background:
- 2014 paternity/custody decree awarded Donald L. Shandera III sole legal and physical custody of Austyn M. Shandera (born 2013); Kaitlyn Schultz (now Weston) was granted parenting time. Kaitlyn appealed and the award was previously affirmed.
- Donald lived in Nebraska; Kaitlyn lived in Texas at decree time and later moved several times, ultimately to West Des Moines, Iowa, where she married and gained greater financial stability.
- Donald later moved within Nebraska to Ashland, remarried (Colleen), and Austyn attended the Ashland-Greenwood schools; Donald works in construction and has flexibility to be with Austyn.
- Two sexual incidents between Austyn and other minors occurred (one while with Kaitlyn, one while with Donald). The second led to CPS/police involvement and Austyn’s therapy (Donald enrolled her; Kaitlyn alleges lack of notice/communication).
- Kaitlyn filed an amended counter-complaint seeking sole physical custody and permission to remove Austyn to Iowa, alleging several material changes (relocations, changed incomes, co-parenting problems, living environments). Trial was held in Aug. 2022.
- The district court found Kaitlyn failed to prove a material change in circumstances or that modification was in Austyn’s best interests; it denied custody modification and removal. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Schultz) | Defendant's Argument (Shandera) | Held |
|---|---|---|---|
| Whether Schultz proved a material change in circumstances to modify custody | Moves, improved living/financial situation, changed living environments and alleged decline in co-parenting justify modification | Changes are either minor, occurred within expectations, or do not undermine Donald's prior custody showing; originally unfavorable findings about Schultz persist | No material change proved; modification denied |
| Whether modification to award Schultz physical custody is in the child’s best interests | Austyn is older and needs mother for puberty-related care; Schultz is now more stable | Austyn has strong ties to Donald, stable schooling, local relatives, and Donald provides appropriate care | Court did not reach merits after finding no material change; appellate court affirmed denial |
| Whether Schultz should be permitted to remove Austyn from Nebraska to Iowa | Removal is necessary to exercise custody and because Schultz can better provide for Austyn | Removal is inappropriate absent showing that custody should be modified first and that removal is in child’s best interests | No removal analysis required because custody modification failed; removal denied |
Key Cases Cited
- Winkler v. Winkler, 31 Neb. App. 162, 978 N.W.2d 346 (2022) (two-step modification standard: material change then best-interests inquiry; appellate review de novo on record)
- Burton v. Schlegel, 29 Neb. App. 393, 954 N.W.2d 645 (2021) (noncustodial parent seeking sole custody plus removal must first prove material change and best-interests before removal analysis)
- Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015) (party seeking custody modification bears burden to show material change affecting child's best interests)
- Hoschar v. Hoschar, 220 Neb. 913, 374 N.W.2d 64 (1985) (definition of material change: facts that would have persuaded trial court to decree differently at initial custody determination)