Stutzman v. Stutzman
A-16-544
| Neb. Ct. App. | Dec 6, 2016Background
- Jamie and Cody Stutzman divorced in 2012; Jamie was awarded physical custody and both parents joint legal custody of two children (born 2003 and 2005). Cody had scheduled parenting time (every other weekend, every fourth week, alternated holidays; alternate weeks in summer).
- Cody sought to modify custody to joint physical custody, alleging material changes: children wanted equal time, concerns about Jamie’s acquaintances (a convicted felon), and disagreement over children’s activities (contact sports despite medical advice).
- Jamie filed to modify child support in 2015; Cody countered with custody modification and moved for an in-camera interview of the children; Jamie objected to the interview and to joint physical custody.
- At trial Cody testified he would be available and not travel on weeks he had the children; Maverick (age 12) was interviewed in camera and said he and his sibling wished to spend more time with Cody but Maverick was hesitant to tell Jamie.
- The trial court found a material change in circumstances, conducted an in-camera interview of Maverick (but not Dakota), and granted joint physical custody. Jamie appealed.
Issues
| Issue | Plaintiff's Argument (Jamie) | Defendant's Argument (Cody) | Held |
|---|---|---|---|
| Whether the trial court abused discretion by overruling objection to in-camera interview of child | Maverick lacked maturity/intelligence; interviews not probative or in children’s best interest | Child (age 12) was of sufficient age and intelligence; his wishes were relevant to best interests | Court did not abuse discretion; Maverick (12) was competent and his preference properly considered |
| Whether trial court erred in granting joint physical custody (modification) | No material change in circumstances; joint physical custody would disrupt stability and routine; Jamie fit and primary custodian | There was a material change (children’s wishes, parenting time gaps); Cody can provide stability, be available, and children desire more time with him | On de novo review, court did not abuse discretion: a material change existed and joint physical custody served children’s best interests |
Key Cases Cited
- Donscheski v. Donscheski, 17 Neb. App. 807, 771 N.W.2d 213 (Neb. App. 2009) (standards for in-camera interview and child competence to express custody preference)
- Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (Neb. 2001) (child’s preference considered if of sufficient age and based on sound reasoning)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (Neb. 2015) (standard for showing material change in custody modification)
- Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (Neb. 2015) (factors for custody determinations and abuse-of-discretion framework)
- Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (Neb. 2016) (requirements for custody modification: material change and best interests)
- Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (Neb. 2013) (appellate review de novo on custody matters; deference to trial judge’s credibility findings)