- 239 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

State of Nebraska on behalf of Hunter Wade Slin

a minor child, appellee, v. Jessie M. Sling

now known as Jessie M. Watts, appe

and Devin W. Oxford, appel

___ N.W.2d ___

Filed October 31, 2017. No. A-16-1170.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. ____. 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 determination.

Nebraska Supreme Court Online Library

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

11/07/2017 12:12 AM CST
- 240 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

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.

Appeal from the District Court for Buffalo County: John H

Marsh, Judge. Affirmed

Nathan T. Bruner, of Bruner Frank, L.L.C., for appellant.

Michael S. Borders, of Borders Law Office, for appellee 

Devin W. Oxford.

Moore, Chief Judge, and Bishop and Arterburn, Jud

Bishop, Judge

Jessie 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.

BACKGROUND

Devin 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.

In July 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).
- 241 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

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.

Hunter 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 schoolwork. 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.

Devin 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. Danyle works 
- 242 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

for the Ansley public school system and would be present at 

Hunter’s school every day.

Devin also testified about his employment (he owns a fencing company and is self-employed, mostly fencing pastures and 

building corrals), his finances, and his child support payment 

history (there had been times when he fell behind, but also 

times when he paid ahead). He also testified about his hobby 

of “trapping” animals, which is “just another form of hunting, 

conservation,” an activity he participates in with the children 

in his household.

Devin asked the court to award him joint legal custody of 

Hunter with Jessie. Devin claimed that he and Jessie have been 

able to communicate about Hunter in the past and that Devin 

was willing to continue communicating with Jessie. A lot of 

their communication is through text messaging, much of which 

is through Danyle’s cell phone because Devin does not always 

have cellular service when he is working. According to Devin, 

Jessie and Danyle have a good relationship and are able to 

communicate about Hunter.

Devin also asked the court to award him physical custody of Hunter. Hunter brought up the idea of living with 

Devin 11⁄2 to 2 years earlier, but Jessie was opposed to the 

idea. Devin said that he loves Hunter and that they want to 

do more activities like fishing, hunting, and sports together. 

Hunter gets along well with the younger children in Devin’s 

household, and he also has friends in Ansley. He is interested 

in the outdoors and “ag-related” activities, and he participates 

in 4-H in Ansley, showing cattle. He has also expressed an 

interest in “participat[ing] in FFA,” an activity that is not 

available at his high school in Kearney. Devin thinks it would 

be in Hunter’s best interests to be placed with him because 

“[i]t’s where [Hunter] wants to be right now. He feels like he 

would get along better in Ansley at the school. He wants to 

be around me and his brothers more often.” Hunter has been 

struggling at his high school in Kearney for a couple of years, 

and a change to a new school “[c]an’t hurt.” “Ansley would 
- 243 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

be a good place for him to go.” On cross-examination, Devin 

agreed that Jessie is a fit parent, that she has been primarily 

responsible for raising Hunter for the entirety of his life, and 

that her care of him has been appropriate.

Danyle testified that Devin is a “very loving” father and that 

he “spends time with his kids and does activities that they all 

enjoy.” She said Devin and Hunter “share a lot of the same 

interests,” including fishing, hunting, and agriculture. Danyle 

further said that she and Hunter have a “great relationship” and 

that she would “welcome him into [their] home” if Devin was 

awarded physical custody.

Danyle is a paraeducator for the Ansley public school system. Both of her children attend public schools in Ansley. The 

rule in Devin and Danyle’s home is that schoolwork has to be 

done before any activities occur. Danyle said that she would 

help make sure Hunter completes his homework and that if he 

does not complete it, then he would lose privileges and would 

not be able to attend activities. She said that although Hunter 

does not show maturity in completing his schoolwork, he does 

show maturity in completing his chores and in helping with 

her children.

Jessie testified she lives in Kearney with her husband of 12 

years, Christopher Watts; their three daughters, who were 8, 5, 

and 3 years old at the time of the hearing; a foster daughter, 

who was 18 months old at the time of the hearing; and Hunter. 

Hunter has his own bedroom in Jessie’s home. Jessie has been 

a stay-at-home mother for 8 years, and Christopher is a pharmacist. Jessie and Hunter have a “great relationship” and get to 

spend a lot of time together. She supports Hunter in his activities and is there for him whenever he needs her. Christopher 

has a loving relationship with Hunter as well. They spend a lot 

of time together, do a lot of sporting activities, and Christopher 

helps Hunter with his homework. Hunter also has a loving 

relationship with his half sisters. Jessie testified that Hunter is 

“very easy going and always seems happy and just ready to do 

anything” and makes friends easily.
- 244 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

According to Jessie, Hunter’s struggles to complete schoolwork started in third grade. He took “ADHD” medication 

for a time in fifth and sixth grade, but was taken off of the 

medication because the side effects outweighed the benefits. 

In the sixth grade, he continued to struggle with completing 

schoolwork up to the time of the hearing. Jessie tried punishments, but those had no effect on Hunter so they changed to 

reward incentives. The incentives worked for a while but he 

“would eventually kind of slack off again,” and the pattern of 

inconsistency continued. Jessie communicated with Hunter’s 

teachers, and they tried using organizational planners, but 

Hunter did not remain consistent with completing or turning 

in his assignments. Jessie said that Hunter would lie about 

his homework and that the lying had gotten worse in the past 

couple of years. She said that he was capable of doing the 

work, but that he just did not want to. Jessie did not believe a 

change of schools would benefit Hunter because “these problems are not going to change.” Hunter “does not love school,” 

and if he could get by without it, “he would definitely not be 

in school.”

Jessie first learned of Hunter’s desire to live with Devin in 

February 2016 after Hunter spoke to a school counselor about 

his wishes, and the counselor then contacted Jessie about the 

meeting. When asked what she thought Hunter’s motivation 

was for wanting to move to Ansley, Jessie responded, “He 

thinks it will be easier, and he thinks that he has more friends 

up there which is not true because he doesn’t communicate 

with them on a regular basis like he does with the ones here. 

He . . . does want to live with his dad and his brothers.” 

Jessie does not have a problem allowing Hunter to spend 

more time with Devin in the summers, but does not want 

him to move to Ansley because “it’s important that Hunter 

knows that he can’t get out of something, especially school 

just because he may not like it.” “He needs to deal with the 

consequences,” and Jessie feels like Hunter is “running away 

from it.”
- 245 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

Jessie believes Devin loves Hunter, but thinks there is a 

lack of communication between Devin and Hunter. Hunter 

rarely has telephone contact with Devin, sometimes not even 

once per month. Jessie has concerns that Hunter would not 

attend church regularly if he lived with Devin. And it is 

important to Jessie that Hunter stay connected with his church 

in Kearney. The pastor at Hunter’s church in Kearney testified Hunter is a “really well-behaved and good, young man,” 

and “[a]s he has grown up, he’s very responsible.” The pastor 

said he would describe Jessie as “one of the best parents I’ve 

ever seen.”

Jessie said that she and Devin “don’t communicate a lot” 

and that “it is only about Hunter and it’s rare.” She is willing 

to work with Devin and is fine with either text messages or 

telephone calls. Jessie has a “really good” relationship with 

Danyle and said Danyle has been “wonderful to communicate 

with and [sic] in regards to Hunter and his interests.” When 

asked if Danyle does well with Hunter, Jessie said, “Yes.” For 

the year or two leading up to the modification hearing, Jessie 

had been able to communicate with Danyle and/or Devin about 

Hunter’s schooling, changing pick-up or drop-off times, changing weekends for parenting time, and activities. She agreed 

Devin had been supportive of her in dealing with Hunter and 

his schoolwork, and she was not aware of any attempts by 

Devin to undermine or challenge her decisions.

Christopher testified he has known Hunter since he was 

less than 18 months old, when Christopher began dating 

Jessie. Christopher said that he loves Hunter and that they 

have a “great relationship.” In addition to providing care 

for Hunter, Christopher is involved in various activities with 

Hunter. He has coached Hunter’s sports teams, and they play 

sports together, exercise together, and go fishing. The two of 

them have hunted a few times, and Hunter has also gone hunting with Christopher’s brother. Christopher also helps Hunter 

with homework. Hunter has some maturity issues with regard 

to lying and taking accountability for his actions. Christopher 
- 246 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

does not agree with Hunter’s desire to live with Devin 

because Hunter had lived with Jessie since birth and has been 

well cared for. Christopher said Jessie and he are doing everything they can to help Hunter be a “successful young man 

[and] graduate from high school.” He further said that they 

provide a loving and safe environment and that “[t]here is no 

reason for [Hunter] to go anywhere else.”

The assistant principal at Hunter’s high school in Kearney, 

Hunter’s school counselor, and several of Hunter’s teachers 

testified. They all agreed that Hunter is a “good kid,” but 

struggles in school because he will not complete or turn in 

homework, even though he is capable of doing the work. One 

teacher testified that Hunter “doesn’t appear to have grasped 

yet how important school is and how important doing well 

in school is for his future success,” so there have been challenges. Jessie and Christopher have tried to ensure that Hunter 

is accountable with his schoolwork. None of the teachers 

had contact with Devin until October 2016 parent-teacher 

conferences.

Hunter testified in camera. The bill of exceptions notes that 

only Hunter and the judge were in the courtroom for Hunter’s 

testimony. Hunter testified that he currently lived with Jessie 

most of the time and is with Devin every other weekend and 

that he would like to “just flip” so that he is at Devin’s house 

most of the time and with Jessie every other weekend. When 

asked about Devin’s house, Hunter replied, “I don’t really 

have like all the nicer things that I have at my mom’s house 

because at my mom’s house I have my own bathroom that’s 

connected to my room. And at my dad’s house, I don’t have 

that but it’s not that big of a deal.” Hunter testified he likes 

being in a smaller town and has more friends in Ansley. He 

also likes being outdoors more at Devin’s house, and he likes 

to hunt. Hunter is involved in 4-H, showing cattle. Devin has 

cattle, and Hunter enjoys helping with the cattle. Hunter said 

that he “always feel[s] like [he’s] kind of trapped” at Jessie’s 

house and that he “[doesn’t] really get out much.”
- 247 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

Hunter acknowledged having trouble in school because he 

does not always turn in his homework. Jessie and Christopher 

help him with his homework. When asked what he thought 

would change if he lived with Devin, Hunter said:

I think that the school there, it would be a lot better for me because they can — they have a lot smaller 

classes than [in the high school in] Kearney . . . and so 

smaller classes I will have more time that I can maybe 

talk to the teachers about questions I might have. And 

they also would go through a lot of their materials a lot 

faster because I was talking to one of my friends just a 

few weekends ago, and he said he was already past the 

point like in geometry — they were already past where 

we were. . . . [T]hey’re like a week or two ahead of us. 

And they also have other classes like they have an ag 

class which I really would like to do that because I have 

my own cattle and stuff and that would be really nice to 

have. And they also have things like FFA and FBLA that 

I would like to be a part of.

At Devin’s house the rule is that the children have to get homework done before doing anything else, so they do homework 

on Friday night and are free the rest of the weekend to do what 

they want to do. Devin and Danyle help Hunter with homework if needed.

In its amended order filed on November 30, 2016, the district court found both parents to be fit and proper persons to 

be awarded the custody and care of the child. The court found 

that “the stated preference of Hunter and his evolving relationship with his father is a material change in circumstances.” The 

court found that Hunter was of “sufficient age of comprehension” and that his preferences were based on sound reasons. 

The court said:

While legally a “minor child” Hunter is now a 16-yearold young man. Hunter very clearly gave his reasons for 

wanting to live with his father. Hunter has great interests 

in agriculture and a rural lifestyle. He has friends in the 
- 248 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

Ansley area and has discussed their perceptions of the 

Ansley School with them. Hunter believes that he would 

do better in the Ansley School. Hunter makes a strong 

case and the Court finds that the father’s application 

should be granted. The Court realizes that this decision 

is a disappointment to Hunter’s mother and step-father, 

but trusts that all parties will cooperate and Hunter will 

continue to become a fine adult.

The court further found that Hunter’s stated preference “outweighs the other factors, most of which would favor him 

continuing to reside with his mother.” Among the “other factors” considered by the court was “the attitude and stability of 

each parent’s character.” The court noted that Devin is generally supportive of Hunter’s education, but has only recently 

begun attending parent-teacher conferences; the court was 

also “somewhat concerned” with the planning of activities by 

Devin “such as a cruise that would take Hunter out of school 

when [he] was having problems at school.” With regard to the 

“parental capacity to provide physical care and satisfy education needs of the child,” the court noted Jessie has provided 

“excellent care and has carried the bulk of that burden since 

Hunter’s birth.” Jessie’s and Christopher’s efforts at working 

to ensure Hunter’s success in school was “the factor presenting 

the Court with the greatest difficulty in deciding this case.” 

With regard to “continuing or disrupting an existing relationship,” the court found any disruption of Hunter’s relationship with half siblings on Jessie’s side “may be offset” by an 

improved relationship with his half sibling on Devin’s side; 

there would be a similar “offset” with his parental relationships. The court said, “While these are not the only factors 

considered by the Court they are the primary factors weighed 

against the expressed desires of Hunter.”

The court concluded it was in Hunter’s best interests for the 

parties to be awarded joint legal custody, with primary physical custody awarded to Devin, effective June 1, 2017 (after 

Hunter completed the 2016-17 school year). The district court 
- 249 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

ordered that Jessie would have parenting time “at a minimum, 

as was allowed for the father” in the 2006 order. The court also 

ordered Jessie to pay child support of $107 per month, beginning June 1, 2017. Jessie timely appealed.

ASSIGNMENT OF ERROR

Jessie assigns, restated, that the district court abused its 

discretion by modifying its prior orders to award joint legal 

custody, with primary physical custody awarded to Devin. 

However, Jessie does not address the award of joint legal 

custody in the argument section of her brief, so it will not be 

addressed. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued 

in the brief of the party asserting the error. Waldron v. Roark, 

298 Neb. 26, ___ N.W.2d ___ (2017).

STANDARD OF REVIEW

[1] 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. Schrag 

v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

ANALYSIS

[2-4] Jessie argues that the district court erred by awarding primary physical custody of Hunter to Devin. 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. Id. 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. State on behalf of Jakai C. v. Tiffany M., 292 

Neb. 68, 871 N.W.2d 230 (2015). A material change in circumstances means the occurrence of something which, had 
- 250 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

it been known at the time of the initial decree, would have 

persuaded the court to decree differently. See Schrag v. Spear, 

supra. The party seeking modification of child custody bears 

the burden of showing as an initial matter that there has been 

a change in circumstances. See id.

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 

physical care and satisfy educational needs of the child. Robb 

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

Jessie argues that (1) Devin did not demonstrate a material 

change in circumstances, (2) Devin is unfit as a custodial parent, and (3) even if a material change of circumstances had 

occurred and Devin is a fit parent, it is not in Hunter’s best 

interests to be primarily placed with Devin.
- 251 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

We initially note that the district court found “both parents 

are fit and have positive qualities to offer Hunter.” Jessie 

contends, however, that Devin is unfit in that Devin cannot 

financially support himself and relies on his live-in girlfriend 

to pay bills; Devin did not prioritize his child support obligation over other expenses like hunting and fishing licenses or 

an extracurricular trip for Hunter; Devin allegedly lied on 

his hunting and fishing license applications when he represented he was current on his child support obligation; Devin 

allegedly committed tax fraud when he did not get federally 

mandated health insurance or pay the alternative penalty; 

and Devin has “questionable” morality, brief for appellant 

at 21, based on the fact that after trapping animals, he has 

“dispatch[ed]” them in front of the young children in his 

household. Devin’s response is that none of Jessie’s assertions prove he is an unfit parent, because his financial status 

is not relevant; although there have been times that he has 

been behind on his child support obligation, there have been 

times he has paid ahead; and trapping is a “humane” practice 

and “rural children begin hunting and fishing at a young age,” 

brief for appellee at 8. Having reviewed the record, we determine the district court did not abuse its discretion in finding 

Devin to be a fit parent.

We now address the material change in circumstances and 

the best interests of the child. Like the district court, we find 

this case is similar to Floerchinger v. Floerchinger, 24 Neb. 

App. 120, 883 N.W.2d 419 (2016), with regard to both. In 

Floerchinger, this court affirmed a district court’s modification 

of physical custody based upon a material change in circumstances stemming from a son’s expressed desire to live with 

his father in Nebraska. The son had been living with his mother 

in Maine for almost 11 years; at the time of trial, he was 13 

years old. In that case, the son testified that he preferred living 

in Nebraska due to the comfortable and relaxed environment 

at his father’s house and because he enjoyed the interaction 

he had with his father. In Maine, among other things, the son 
- 252 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

stated he was “pestered” by his stepsiblings. Id. at 127, 883 

N.W.2d at 426.

[5] We noted the Nebraska Supreme Court has stated that 

“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.” Id. at 140-41, 883 N.W.2d at 

434 (citing Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 

(2002)). Further, “in cases where the minor child’s preference 

was given significant consideration, the child was usually 

over 10 years of age.” Floerchinger, 24 Neb. App. at 141, 

883 N.W.2d at 434. In Floerchinger, the district court found 

a material change in circumstances had occurred subsequent 

to the decree which justified modification of custody and that 

such modification was in the best interests of the child. We 

noted, “The [district] court specifically focused on [the child’s] 

desire to reside with [his father] in Nebraska, concluding that 

[the child] was articulate and that his decision was based on 

sound reasoning.” Id.

Jessie argues Floerchinger is inconsistent with Hossack v. 

Hossack, 176 Neb. 368, 373, 126 N.W.2d 166, 169 (1964), 

which stated that “[s]uch incidents of life as advancing age 

of minors, remarriage of parents, and particular advantages 

of one parent’s environment do not constitute a legal basis 

for changing the custody of minor children . . . without an 

affirmative showing that the welfare of the children demands 

a change.” In Hossack, custody was changed by the trial court 

from the children’s mother to their father, and the Supreme 

Court reversed that decision. The Supreme Court pointed out 

that the initial divorce decree had found the mother to be an 

“innocent party [who] was a fit and proper person to have 

the custody of the two boys until they reach 21 years of age” 

and that there were no claims made that “the children were 

neglected or mistreated or that the [mother] was of questionable character or qualifications.” Id. at 371, 126 N.W.2d at 

168. In Hossack, evidence that the children were 4 years older 
- 253 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

since the time of the initial decree and that the father had 

since become a professor, remarried, and “could presently furnish them a better-than-average home from an intellectual as 

well as a physical standpoint,” id., was not sufficient to warrant a change in custody, as there was no “affirmative showing that the welfare of the children demands a change,” id. at 

373, 126 N.W.2d at 169. Although the father had taken the 

children to a psychologist who determined “the children were 

not intellectually stimulated at home; and that the [mother’s] 

home did not provide motivation for them to use their innate 

abilities,” the court concluded “[t]here was no affirmative 

showing by the [father] as to how he would accelerate the 

boys’ progress in school or intellectually stimulate them in 

his home.” Id. at 372, 126 N.W.2d at 169. Jessie argues that 

Devin failed to produce evidence that anything would be different in Ansley and that “[a]ccess to 4-H and FFA is simply 

an advantage of Devin’s environment,” which Hossack says 

does not constitute a legal basis for changing custody. Brief 

for appellant at 12.

We first point out that Hossack was decided in 1964 under 

different divorce and parenting laws than exist now and that 

the appellate standard of review in that case was “for trial de 

novo,” 176 Neb. at 370, 126 N.W.2d at 168, rather than the 

standard of review applicable today—de novo on the record 

for an abuse of discretion. In Hossack, the Supreme Court 

observed that the “order modifying the decree included no 

findings relative to changed circumstances or the best interests 

of the children.” 176 Neb. at 370, 126 N.W.2d at 168. In the 

record before this court, the district court did make specific 

findings in that regard, and this court reviews those findings 

for an abuse of discretion.

[6] Furthermore, we do not read Floerchinger v. Floerchinger, 

24 Neb. App. 120, 883 N.W.2d 419 (2016), to be inconsistent 

with Hossack v. Hossack, 176 Neb. 368, 126 N.W.2d 166 

(1964). In Floerchinger, the court considered a number of 

factors in its custody determination (e.g., child’s age and 
- 254 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

preference, academic and social benefits, living environment, 

and general quality of life). Such factors go to the welfare 

of the child, and as stated in Hossack, such evidence can be 

considered in a change of custody determination. See, also, 

Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989) (custody 

modification based on child’s preference and deterioration of 

parent-child relationship).

Similar to Floerchinger v. Floerchinger, supra, the court 

in this case specifically found Hunter’s stated preference to 

live with Devin and his evolving relationship with Devin 

constituted a material change in circumstances. Hunter clearly 

stated his reasons for wanting to live with Devin: He is interested in agriculture and likes to help Devin with cattle, he 

enjoys being outdoors and hunting, he likes being in a smaller 

town, and he has more friends in Ansley. Devin felt “trapped” 

at Jessie’s house and did not “get out much.” Hunter had 

also struggled in school for a number of years, particularly 

with regard to completing and turning in assignments; his 

grades ran the gamut from A’s to F’s, despite Jessie’s and 

Christopher’s efforts to help him. He had spoken to his friends 

from Ansley about their school experience and felt the high 

school in Ansley would be a better fit for him. In particular, 

Hunter was interested in an “ag class” offered at Ansley, the 

smaller class sizes (which would provide more opportunity to 

work with teachers), and the study halls (which would help 

him to get his homework done during the day). After our de 

novo review of the record, we conclude the district court did 

not abuse its discretion in finding there had been a material 

change in circumstances.

[7] Devin and Jessie presented conflicting testimony regarding whether a change in custody would be in Hunter’s best 

interests, including whether Hunter’s reasons for wanting 

to live with Devin were sound. 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 
- 255 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE ON BEHALF OF SLINGSBY v. SLINGSBY

Cite as 25 Neb. App. 239

often dispositive of whether the trial court’s determination is 

affirmed or reversed on appeal. Schrag v. Spear, 290 Neb. 98, 

858 N.W.2d 865 (2015); Floerchinger v. Floerchinger, supra. 

The trial court in this case had an opportunity to observe the 

testimony of both parties, as well as the testimony of Hunter 

and the other witnesses. The court found Hunter had “very 

clearly” given his reasons for wanting to live with Devin and 

that Hunter’s stated preference outweighed the other factors 

for best interests. The court reached this conclusion while also 

acknowledging the “extraordinary efforts put forth” by Jessie 

and Christopher and that “their involvement remains essential 

to Hunter’s best interests.”

At the time of the modification hearing, Hunter was within 

weeks of turning 16 years old. As stated above, he clearly 

stated his reasons for wanting to live with Devin. Although 

Jessie calls Hunter’s reasoning and maturity into question, the 

district court found Hunter’s reasons were sound. Several of 

Jessie’s witnesses testified that, aside from schoolwork, Hunter 

is mature and responsible and that he has become more mature 

in the past year. In addition to Hunter’s wishes, the district 

court had an opportunity to consider other best interests factors, including Hunter’s academic performance, extracurricular 

activities, friends, living environment, and general qualities of 

life at both parents’ respective homes. The court found both 

Devin and Jessie had positive qualities to offer Hunter, but that 

Hunter’s stated preference outweighed the other factors. Upon 

our de novo review, we can find no abuse of discretion in the 

district court’s decision to award physical custody of Hunter 

to Devin.

CONCLUSION

For the reasons stated above, we affirm the district court’s 

decision to award the parties joint legal custody of Hunter, with 

physical custody awarded to Devin.

Affirmed