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VanSkiver v. VanSkiver

Supreme Court of Nebraska

July 12, 2019

Anne E. VanSkiver, appellee,
v.
Todd J. VanSkiver, 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. 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. Modification of Decree: Visitation: Proof. The party seeking to modify visitation has the burden to show a material change in circumstances affecting the best interests of the child.

         5. Modification of Decree: Visitation. The best interests of the children are primary and paramount considerations in determining and modifying visitation rights.

         6. Courts: Child Custody: Visitation. Under Nebraska law, the court is responsible for developing and approving a parenting plan, and it has a nondelegable duty to determine questions of custody and parenting time of minor children according to their best interests. The authority to determine custody and visitation cannot be delegated to a third party, because it is a judicial function.

          Appeal from the District Court for Adams County: Stephen R. Illingworth, Judge.

         [303 Neb. 665] Mitchell C. Stehlik, of Stehlik Law Firm, PC, L.L.O., for appellant.

          Lucinda Cordes Glen for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          STACY, J.

         The marriage of Anne E. VanSkiver and Todd J. VanSkiver was dissolved in April 2015. Anne was granted legal and physical custody of the parties' two minor children, subject to a parenting plan agreed to by the parties and approved by the court. In July 2017, Anne moved to modify and suspend Todd's parenting time pending family therapy, alleging that his erratic and threatening behavior had escalated and that the children were frightened of him. The district court did not order family therapy, but did modify the parenting plan. Todd filed this timely appeal. We affirm as modified.

         FACTS

         Anne and Todd married in 2000, and in October 2009, she filed a complaint to dissolve the marriage. After years of contentious litigation, the parties reached a settlement agreement and the marriage was dissolved in April 2015. Anne was awarded legal and physical custody of the parties' two minor children, and Todd was awarded parenting time pursuant to an agreed-upon parenting plan. Under the plan, Todd had parenting time every Monday and Wednesday evening from 5:30 to 7:30 and the second weekend of every month from 5:30 p.m. on Friday until 5:30 p.m. on Sunday. The plan also set forth a rotating holiday parenting time schedule.

         In July 2017, Anne sought to modify Todd's parenting time, asking that it be suspended pending family therapy. She alleged that since the entry of the decree, Todd had "become increasingly angry, threatening, harassing, and erratic" to her, [303 Neb. 666] the children, and others. She alleged that she had obtained a protection order against Todd due to this new behavior, that he had violated the protection order, and that the children "fear[ed] for their safety" when they were with Todd. She asked that Todd's parenting time be modified in an appropriate manner and suspended until the children were comfortable with him after family therapy. Todd's answer denied Anne's allegations and alleged that no material change in circumstances had occurred.

         Trial on the complaint to modify was held May 2, 2018. Anne testified that she obtained a protection order against Todd on May 25, 2017, based on threats he made to her, such as "tic toe . . . time is running out," "[w]atch out from being alone in the dark," and "[t]he sands of time are closing in." She testified she understood these statements to be threats that Todd was going to harm or kill her. Anne further testified that Todd violated this protection order in June 2017 by sending similar text messages, including some alluding to digging her grave.

         The protection order was still in effect at the time of trial, and thus Todd was precluded from having contact with Anne. Because of this, Todd had been contacting the older child, who was born in 2002 and was 15 at the time of trial, to arrange parenting time. Anne testified that Todd often had dinner with the children two nights a week, but that he had not exercised his weekend parenting time for approximately 1 year (since May 2017). Anne said the children had expressed concerns to her about spending time with Todd. She testified that Todd had "become more frightening" since the time of the divorce, and she asked that his parenting time be modified to occur only "when the kids wanted to see [him]."

         On cross-examination, Anne testified that Todd made daily threats to her during the marriage. She admitted being frightened of him prior to the divorce. On redirect, she explained that since the divorce, Todd's "whole demeanor" had changed, [303 Neb. 667] in addition to the "way he is with the kids." She testified that the children were now "scared of him," had realized "that he's crazy," and were "afraid."

         A licensed independent mental health practitioner testified that he had provided counseling services for both children during the fall and winter of 2017 and for the younger child in April 2018. The practitioner testified that the relationship between the younger child and Todd was "strained" and "poorly-formed." He did not think the relationship was improving. The practitioner admitted he had never met Todd.

         At the time of trial, Todd was on probation for violating the protection order Anne obtained against him and his probation was subject to various conditions. Todd's probation officer testified that a motion to revoke probation was pending because Todd had failed to comply with certain conditions, including completion of a 36-week education class and not possessing firearms. The record indicates Todd was dismissed from the education class due to disruptive behavior and noncompliance with course rules. The probation officer noted that revocation proceedings remained pending and that Todd had denied the allegations of the motion to revoke.

         The older child's school counselor testified that she began seeing him weekly at the beginning of the 2017-18 school year. Some weeks she sees him more than once, because the child seeks her out for additional counseling if he is having a difficult day. The counselor testified that she works with the child to help him destress and cope with his anxiety so that he can focus on his schoolwork. She testified the child often has stomach aches due to his anxiety and sometimes needs to go home from school. The counselor testified that one source of the child's stress and anxiety was contact with his father. The counselor had viewed some text correspondence between the child and Todd and opined that Todd's messages were inappropriate. ...


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