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State v. Slingsby

Court of Appeals of Nebraska

October 31, 2017

State of Nebraska on behalf of Hunter Wade Slingsby, A Minor Child, Appellee,
v.
Jessie M. Slingsby, Now Known as Jessie M. Watts, Appellant, and Devin W. Oxford, appellee.

         1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

         2. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

         3. Modification of Decree: Child Custody: Proof. In a child custody modification case, first, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests.

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

         5. Child Custody. While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration.

         6. ___ . Factors such as the child's age and preference, academic and social benefits, living environment, and general quality of life, go to the welfare of the child, and such evidence can be considered in a change of custody determination.

         [25 Neb.App. 240] 7. Child Custody: Appeal and Error. In contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court's determination is affirmed or reversed on appeal.

         Appeal from the District Court for Buffalo County: John H. Marsh, Judge. Affirmed.

          Nathan T. Bruner, of Bruner Frank, L.L.C., for appellant.

          Michael S. Borders, of Borders Law Office, for appellee.

          Devin W. Oxford. Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Bishop, Judge.

         Jessie M. Slingsby, now known as Jessie M. Watts, appeals from the decision of the district court for Buffalo County modifying custody of Hunter Wade Slingsby. We affirm.

         BACKGROUND

         Devin W. Oxford and Jessie are the parents of Hunter, born in November 2000. In September 2002, a stipulation was reached regarding paternity, custody, support, and daycare expenses. Jessie was awarded custody, and Devin received reasonable parenting time. In July 2006, the court modified the 2002 order to provide Devin with specific parenting time of every other weekend, rotating holidays, and 1 month each summer. Although neither the 2002 nor the 2006 orders of the district court appear in our record, the parties agree on the substance of the orders.

         In July 2016, Devin filed an amended application asking the court to grant him physical custody of Hunter. Devin alleged that Hunter wanted to reside with him and that Hunter wanted to try going to school in Ansley, Nebraska (where Devin lives), because he was struggling at his current school in Kearney, Nebraska (where Jessie lives).

         [25 Neb.App. 241] A hearing on the modification took place on November 1, 2016. Devin testified that he lives in Ansley with his girlfriend of almost 9 years, Danyle Goodman; their son, who was 5 years old at the time of the hearing; and Danyle's son from a previous relationship, who was 9 years old at the time. Devin's home is large enough that each child, including Hunter (who would turn 16 years old later that month), has his own bedroom.

         Hunter was a sophomore in high school in Kearney at the time of the hearing, and he participated in wrestling and crosscountry. Devin testified that Hunter struggled in high school and had struggled prior to high school as well. Devin agreed that Hunter is "smart, " but that he struggles because he does not follow through on his schoolwork or turn in assignments. Jessie had been working with Hunter on his schoolwork, and Devin was supportive of her efforts. On one occasion, Hunter was at a wrestling meet when Devin and Jessie decided Hunter could not participate because he had not completed a class assignment and test. Devin thinks it is important that he and Jessie work together to address Hunter's issues with school-work. On cross-examination, Devin acknowledged that at his house there have not yet been any consequences for Hunter for failing to turn in school assignments. Devin attended Hunter's fall 2016 parent-teacher conference, but had not previously participated in conferences. He had communicated with Jessie about going to a previous conference together, but she was not agreeable to attending together.

         Devin testified that he talks to Hunter about his grades "[o]nce a week or so." During Devin's parenting time, he helps Hunter complete his homework. Devin wants Hunter to get good grades and would not allow him to "slack off with his homework if Hunter came to live with him. At Devin's house, "[s]choolwork comes first before anything else"; that rule has already been implemented with the younger children in his household. Devin believes the high school in Ansley could provide Hunter with a good education. ...


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