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Berndt v. Berndt

Court of Appeals of Nebraska

November 14, 2017

Scott Berndt, appellee,
v.
Tonya Berndt, now known as Tonya DiPasquale-Martinez, appellant.

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

         6. 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.

         7. 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.

         [25 Neb.App. 273] 8. Modification of Decree: Child Custody: Appeal and Error. In a child custody modification case, an appellate court, in its de novo review, can make a best interests of the child finding if the evidence supports it.

         9. Child Custody. In determining the best interests of a child in a custody determination, a court must consider pertinent factors, such as the moral fitness of the child's parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and parental capacity to provide physical care and satisfy educational needs of the child.

         Appeal from the District Court for Sheridan County: Travis P. O'Gorman, Judge. Reversed and remanded with directions.

          Desirae M. Solomon for appellant.

          Bell Island, of Island Law Office, PC, L.L.O., for appellee.

          Inbody, Pirtle, and Riedmann, Judges.

          PIRTLE, JUDGE

         INTRODUCTION

         Tonya Berndt, now known as Tonya DiPasquale-Martinez, appeals from an order of the district court for Sheridan County denying her complaint to modify visitation with her children. Based on the ...


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