State of Nebraska on behalf of Hunter Wade Slingsby, A Minor Child, Appellee,
Jessie M. Slingsby, Now Known as Jessie M. Watts, Appellant, and Devin W. Oxford, appellee.
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.
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.
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.
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.
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
. 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
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.
from the District Court for Buffalo County: John H. Marsh,
T. Bruner, of Bruner Frank, L.L.C., for appellant.
Michael S. Borders, of Borders Law Office, for appellee.
W. Oxford. Moore, Chief Judge, and Bishop and Arterburn,
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.
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.
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).
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.
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.
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. ...