Anne E. VanSkiver, appellee,
Todd J. VanSkiver, appellant.
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.
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.
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.
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.
Modification of Decree: Visitation. The best
interests of the children are primary and paramount
considerations in determining and modifying visitation
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.
from the District Court for Adams County: Stephen R.
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.
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.
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.
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.
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.
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
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."
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.
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.
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. ...