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Mark J. v. Darla B.

Court of Appeals of Nebraska

February 11, 2014

Mark J., appellee,
v.
Darla B., formerly known as Darla J., appellant.

Page 833

Appeal from the District Court for Garfield County: KARIN L. NOAKES, Judge.

Affirmed in part, and in part reversed and remanded for further proceedings.

Chris A. Johnson, of Conway, Pauley & Johnson, P.C., for appellant.

John A. Wolf and Mark Porto, of Shamberg, Wolf, McDermott & Depue, for appellee.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

Syllabus by the Court

1. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.

2. Divorce: Modification of Decree: Visitation. Visitation rights established by a marital dissolution decree may be modified upon a showing of a material change of circumstances affecting the best interests of the children.

3. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

4. Visitation. The party seeking to modify visitation has the burden to show a material change in circumstances affecting the best interests of the child.

5. Visitation: Parent and Child. Visitation relates to continuing and fostering the normal parental relationship of the noncustodial parent with the minor children of a marriage which has been legally dissolved.

Page 834

6. Visitation. The best interests of the children are primary and paramount considerations in determining and modifying visitation rights.

7. Evidence: Appeal and Error. When the evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

8. Courts: Child Custody: Visitation. It is the responsibility of the trial court to determine questions of custody and visitation of minor children according to their best interests, which is an independent responsibility and cannot be controlled by the agreement or stipulation of the parties or by third parties.

Inbody, Chief Judge.

[21 Neb.App. 771] INTRODUCTION

Darla B., formerly known as Darla J., appeals the order of the Garfield County District Court modifying the decree dissolving her marriage to Mark J. and terminating her visitation with the parties' minor child, Jacey J.

STATEMENT OF FACTS

Darla and Mark's marriage was dissolved by a decree of the district court on May 17, 2005, in which Mark was awarded custody of Jacey and Darla was awarded visitation. On May 4, 2009, Mark filed a petition for a modification of visitation, alleging that visitation with Darla was " placing [Jacey] in great harm" and requesting that visitation be returned from unsupervised to supervised visitation at the recommendation of Jacey's psychologist and therapist. Darla denied the allegations and filed a counterclaim seeking custody of Jacey.

In December 2009, the district court granted Darla specific visitation and ordered that the visitation was to be supervised until further order of the court. In 2010, Darla filed a motion to terminate supervised visitation, alleging that she posed no threat to Jacey and that there had been no issues with supervised visitation, while Mark filed a motion indicating that the visitations needed to be more strictly supervised. In May ...


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