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BERNDT v. BERNDT

Cite as 25 Neb. App. 272

Scott Berndt, appellee, v. Tonya Berndt, n

Tonya DiPasquale-Martinez, appe

___ N.W.2d ___

Filed November 14, 2017. No. A-16-1109.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/28/2017 09:13 AM CST
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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: Travi

P. O’Gorman, Judge. Reversed and remanded with directi

Desirae M. Solomon for appellant.

Bell Island, of Island Law Office, P.C., L.L.O., for appellee.

Inbody, Pirtle, and Riedmann, 

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 reasons that follow, we reverse, and remand 

with directions.

BACKGROUND

Tonya and Scott Berndt were divorced by a decree of dissolution on November 30, 2012. The parties have two minor 

children, Sevanna Berndt, born in 2005, and Tobias Berndt 

(Toby), born in 2007. The parties entered into a property 

settlement and custody agreement, which was approved by 

the court. Pursuant to the custody agreement, the parties had 

joint legal and physical custody. The parties agreed that the 

children would primarily reside with Scott. Tonya had parenting time every weekend, except on the third weekend of 
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Cite as 25 Neb. App. 272

each month. The parties alternated holidays, and Tonya was 

awarded parenting time during the summer break, except for 4 

weeks which were awarded to Scott.

On January 25, 2016, Tonya filed a complaint to modify 

visitation, alleging that since the entry of the decree, there 

had been a material change in circumstances affecting the best 

interests of the children. Tonya alleged that the material change 

in circumstances were that she has a residence in Gordon, 

Nebraska, and the ability to have regular and continuous contact with the children; the current schedule creates confusion 

and disagreements between the parties; and the children have 

expressed a desire to spend more time with her. She sought an 

order modifying the parenting time to a “week on/week off” 

schedule, meaning parenting time would alternate between the 

parties on a weekly basis.

Trial on Tonya’s complaint to modify was held on October 

18, 2016. The evidence showed that at the time of the divorce, 

Scott was living on a ranch near Lakeside, Nebraska. The 

ranch is 36 miles from Gordon. At the time of the hearing on 

the complaint to modify, Scott continued to live at the ranch 

with the children and his new wife.

At the time of the divorce, Tonya was awarded the parties’ 

home in Gordon, but she was living in Kimball, Nebraska. She 

would commute to Gordon for her parenting time. In March 

2013, Tonya moved to Gordon and lived in the marital home. 

In January 2014, she moved to Cheyenne, Wyoming, and 

subsequently remarried. Since January 2014, Tonya has been 

commuting from Cheyenne to Gordon for her parenting time. 

She sold the marital home in Gordon, and she and her husband 

bought a different home in Gordon. She continues to exercise 

most of her parenting time in Gordon, but she occasionally 

takes the children to Cheyenne. Tonya testified that she exercises a large part of her parenting time in Gordon so the children can participate in sports and other activities. Tonya often 

spends time in Gordon in addition to the time she is there for 

her scheduled parenting time.
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Tonya testified that she and her husband have a “dual 

residence,” and her husband testified likewise. They live 

in Cheyenne the majority of the time, and both described 

Cheyenne as their primary residence. Tonya has two older 

children from another relationship that both live in Cheyenne. 

At the time of trial, one was in high school and the other had 

reached the age of majority and was living on her own.

When the decree was entered, Sevanna and Toby were 

attending a country school located 11 miles from Scott’s ranch 

and 30 miles from Gordon. During the 2013-14 and 2014-15 

school years, the children attended school in Lakeside, which 

then closed at the end of the 2014-15 school year. The children 

began attending school in Gordon and Rushville, Nebraska, 

during the 2015-16 school year. They were attending the same 

school district at the time of trial. Toby’s elementary school 

was located in Gordon, and Sevanna’s middle school was 

located in Rushville. Sevanna would take a bus to school that 

left from the high school parking lot in Gordon and returned to 

the same parking lot at the end of the schoolday.

Tonya’s home in Gordon is located 11

⁄2 blocks from Toby’s 

school and 4 blocks from the high school in Gordon. Tonya 

testified that during the 2015-16 school year, she spent time in 

Gordon during the week because she wanted to be close by the 

children in case they needed a “snack” or a “place to go” after 

school. She also testified that she was often in Gordon during 

the week because she was renovating her home.

Tonya testified that Toby has had some issues at school 

because of his “ethnicity.” She stated that the children are 

“multiracial” and that she feels they “had been a product of 

some comments that have been said.” She testified that she 

believes it is important that she is there to help the children 

when they face these issues and it is important that the children are aware of their “full diverse culture.”

Sevanna and Toby both participate in various sports and are 

involved in 4-H. Tonya and Scott both attend the children’s 

sporting events and activities and help the children with their 
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4-H projects. During the week, Scott gets the children to and 

from school as well as to their activities. On the weekends, 

Tonya gets the children to and from their activities. Both parties are also involved in their children’s schooling, including 

helping with homework.

The evidence showed that for the most part, the parties have 

worked well together regarding the children. They were generally able to communicate about the children’s activities and 

weekend exchanges if there was a conflict. There have been 

some disputes regarding Scott’s parenting time on the third 

weekend of the month, mostly during times when those weekends fall on a holiday.

Tonya testified that a week on/week off parenting time 

arrangement would provide stability, be “less back and forth,” 

alleviate frustration in communication, and alleviate disputes 

over Scott’s weekend visitation. She further testified that she 

would have more bonding time with the children and would be 

able to participate in their everyday lives. Tonya stated that her 

parenting time would continue to take place in Gordon.

Scott testified that he was opposed to a week on/week off 

arrangement, because the children need consistency and he 

thought it would be detrimental to the children.

Sevanna also testified at trial. She expressed a desire to 

spend more time with Tonya and stated she would prefer 

an alternating weekly parenting schedule. She testified that 

when she is at her father’s house during the week, she and 

her mother send messages back and forth on Facebook almost 

daily, starting when she gets home after school and continuing 

throughout the evening. She also testified that there are some 

issues and problems that she feels more comfortable talking 

to her mother about. She testified that she loves both parents 

equally and would like to spend an equal amount of time 

with them.

The trial court found that Tonya had failed to prove a material change in circumstances occurred which affected the best 

interests of the children. It noted that at the time of the decree, 
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Tonya lived in Kimball and was commuting for her parenting 

time, having it occur in Gordon. At the time of trial, she continued to travel for her parenting time, with the distance from 

Cheyenne being greater than it was from Kimball. The court 

found that the only change since the decree was Sevanna’s 

desire to spend more time with Tonya and that this alone did 

not constitute a material change in circumstances. The court 

determined that there was insufficient evidence to show a 

material change in circumstances had occurred which affected 

the best interests of the children, and it denied Tonya’s motion 

to modify visitation.

ASSIGNMENTS OF ERROR

Tonya assigns that the trial court erred in (1) failing to find 

that a material change in circumstances had occurred since 

the entry of the decree and (2) failing to find that it was in 

the children’s best interests to modify the parenting plan to an 

alternating weekly schedule.

STANDARD OF REVIEW

[1] 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. Hopkins v. Hopkins, 294 Neb. 

417, 883 N.W.2d 363 (2016).

ANALYSIS

[2-5] 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. Mark J. v. Darla B., 21 Neb. App. 770, 842 N.W.2d 

832 (2014). 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. Id. The party seeking to modify visitation has the burden to show a material 

change in circumstances affecting the best interests of the 
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child. Id. The best interests of the children are primary and 

paramount considerations in determining and modifying visitation rights. Id.

[6] 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. Hopkins v. 

Hopkins, supra.

Tonya first assigns that the trial court erred in failing to find 

that a material change in circumstances had occurred since the 

entry of the decree. The trial court found that the only change 

since the decree was Sevanna’s desire to spend more time 

with Tonya.

Sevanna was 11 years old at the time of trial. She testified 

in court expressing her desire to spend more time with Tonya 

and stated she would prefer an alternating weekly parenting 

schedule. She indicated that the amount of time she spends 

with Tonya is not enough “[b]ecause she like takes good care 

of us and she’s our mom and — you know, yeah.” She also 

testified that there are some issues and problems that she feels 

more comfortable talking to her mother about. She testified 

that when she is at her father’s house during the week, she and 

her mother send messages back and forth on Facebook almost 

daily, starting when she gets home after school and continuing throughout the evening. She testified that an equal amount 

of time with her parents would be good for her “[b]ecause 

[she] would get to see both [her] parents equal time and it 

would work out with like sports and stuff too.” Sevanna further indicated that spending equal time was important to her 

“[b]ecause I love my parents both equally and it’s just fun 

being around them.”

[7] 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 
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is entitled to consideration. See Floerchinger v. Floerchinger, 

24 Neb. App. 120, 883 N.W.2d 419 (2016). Further, in cases 

where the minor child’s preference was given significant consideration, the child was usually over 10 years of age. Id.

The trial court considered Sevanna’s desire to spend more 

time with Tonya and concluded that her desire alone did not 

constitute a material change in circumstances. However, the 

trial court failed to recognize other changes that have occurred 

since the decree.

When the decree was entered in November 2012, Scott was 

living near Lakeside and Tonya was living in Kimball and 

commuting to Gordon for parenting time. The children were 

attending a country school that was 30 miles from Gordon and 

11 miles from Scott’s residence.

At the time of the modification trial, Tonya was living in 

Cheyenne, but also had a different home in Gordon where 

she was spending a large amount of time. The children were 

attending school in Gordon and Rushville. Gordon is 36 miles 

from Scott’s residence. Tonya’s home in Gordon was within 

blocks of Toby’s elementary school and the high school parking lot from which Sevanna was transported via bus to and 

from the middle school in Rushville. Tonya was not working, 

which allowed her to be in Gordon during the week, in addition to when she was there for parenting time. The children 

were involved in various sports and activities in Gordon, which 

resulted in them spending a large amount of time in Gordon. 

It also resulted in a lot of driving back and forth during the 

week between Gordon and Scott’s residence, each way being 

36 miles.

We conclude that the change in the children’s schools, the 

location of Tonya’s Gordon home and Scott’s home in relation to the children’s schools, and Tonya’s availability during the week, are all changes that have occurred since the 

decree. When these changes are considered in conjunction 

with Sevanna’s desire to spend more time with Tonya, they 

result in a material change in circumstances. Accordingly, the 
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trial court abused its discretion in finding that there was insufficient evidence to show a material change in circumstances 

had occurred.

[8] Tonya also assigns that the trial court erred in failing to 

find that it was in the children’s best interests to modify the 

parenting time. The trial court did not address the children’s 

best interests because it found there was no material change in 

circumstances. However, in our de novo review, we can make 

a best interests finding if the evidence supports it. See Parker 

v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989). We determine that the evidence is sufficient to make a best interests 

finding in this case.

[9] Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides 

that in determining custody and parenting arrangements:

[T]he court shall consider the best interests of the minor 

child, which shall include, but not be limited to, consideration of . . . :

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if 

of an age of comprehension but regardless of chronological age, when such desires and wishes are based on 

sound reasoning;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member. . . ; and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

Other pertinent factors include 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 
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physical care and satisfy educational needs of the child. Robb 

v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).

The evidence shows that the children have a good relationship with both parents. Both parents are actively involved in the 

children’s homework and their extracurricular activities. The 

parties are able to communicate about the children’s activities 

and exchanges, and they have generally worked well together 

regarding the children. As previously discussed, Sevanna wants 

to spend more time with Tonya. She feels more comfortable 

talking to her mother about certain topics. She communicates 

with her mother via Facebook almost daily when she is at her 

father’s house. The week on/week off parenting arrangement 

will allow Sevanna more time with Tonya and will give her 

more face-to-face communication. Further, the modified schedule will allow the children to be close to their schools and 

activities during the weeks that Tonya has them. It also will 

give the children the opportunity to have both parents involved 

in their day-to-day activities.

Upon our de novo review, we find that modifying custody 

to a week on/week off parenting schedule is in the children’s 

best interests.

CONCLUSION

We conclude that the trial court abused its discretion in 

finding that there was insufficient evidence to show a material 

change in circumstances had occurred which affected the best 

interests of the children. Accordingly, the trial court erred in 

denying Tonya’s complaint to modify visitation. We reverse 

the trial court’s order and remand the cause with directions for 

the district court to enter a modification order and parenting 

plan consistent with this opinion.

Reversed and remanded with direc