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307 Nebraska Reports

JAEGER v. JAEGER

Cite as 307 Neb. 910

Stacey R. Jaeger, appellant, v. 

Duke E. Jaeger, appellee.

___ N.W.2d ___

Filed December 4, 2020. No. S-20-122.

1. Child Custody: Appeal and Error. Child custody determinations are 

matters initially entrusted to the discretion of the trial court. Although 

reviewed de novo on the record, the trial court’s determination will generally be affirmed absent an abuse of discretion.

2. Rules of Evidence. In proceedings where the Nebraska rules of evidence apply, they control the admissibility of evidence, and judicial 

discretion is allowed only insofar as the rules make it a factor.

3. Trial: Evidence: Appeal and Error. Judicial discretion is allowed to 

determine the relevancy of evidence, and such determination will not be 

disturbed on appeal unless it constitutes an abuse of discretion.

4. Motions for New Trial: Appeal and Error. An appellate court reviews 

a trial court’s ruling on a motion for a new trial or reconsideration for an 

abuse of discretion.

5. Judges: Words and Phrases. An abuse of discretion occurs when a trial 

court’s decision or reasoning is clearly untenable, unfairly depriving a 

litigant of a substantial right and denying just results in matters submitted for disposition.

6. Modification of Decree: Child Custody: Proof. Custody of a minor 

child will not ordinarily be modified absent a material change in circumstances, which shows either that the custodial parent is unfit or that the 

best interests of the child require such action.

7. ____: ____: ____. It is the burden of the party seeking modification of 

a child custody order to show two elements: first, that since entry of the 

most recent custody order, there has been a material change in circumstances that affects the child’s best interests, and second, that it would 

be in the child’s best interests to change custody.

8. Modification of Decree: Child Custody: Words and Phrases. A material change in circumstances is the occurrence of something that, if it 

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01/22/2021 09:09 AM CST
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had been known at the time the most recent custody order was entered, 

would have persuaded that court to decree differently.

9. Modification of Decree: Child Custody. Circumstances having 

occurred before the most recent custody order are relevant only insofar 

as they bear on whether the change in circumstances since the most 

recent custody order are material and substantial.

10. ____: ____. Before custody is modified, it should be apparent that any 

material change in circumstances alleged will be permanent or continuous, not merely transitory or temporary.

11. Child Custody. The wishes of a child are not controlling in determinations of child custody.

12. ____. If a child is of sufficient age and has expressed an intelligent 

preference regarding child custody, the child’s preference is entitled to 

consideration, alongside other factors.

13. ____. The amount of consideration given to a child’s stated preference 

regarding child custody will depend on the child’s age and ability to 

give reasons for his or her preference.

14. Child Custody: Appeal and Error. Where a trial court’s order modifying child custody demonstrates that the child’s age and reasoning have 

been duly considered alongside the child’s stated preference, an appellate court will generally defer to the trial court’s credibility determinations in the assessment of facts.

15. Child Custody. Certain factors that must be considered in the determination of a child’s best interests in the context of child custody include 

(1) the relationship of the child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature 

child, if based on sound reasoning; (3) the general health, welfare, and 

social behavior of the child; (4) credible evidence of abuse inflicted on 

any family or household member; and (5) credible evidence of child 

abuse or neglect or domestic intimate partner abuse.

16. ____. Certain factors that may be considered in the determination of a 

child’s best interests in the context of child custody include the stability of the child’s existing routine, minimization of contact and conflict 

between the parents, and the general nature and health of the child.

17. Trial: Evidence: Appeal and Error. The admission or exclusion of 

evidence is not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party.

18. ____: ____: ____. Erroneous exclusion of evidence does not require 

reversal if the evidence would have been cumulative and other relevant 

evidence, properly admitted, supports the trial court’s finding.
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JAEGER v. JAEGER

Cite as 307 Neb. 910

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.

Amie C. Martinez and Mona L. Burton, of Anderson, Creager 

& Wittstruck, P.C., L.L.O., for appellant.

Jeanelle S. Kleveland, of Kleveland Law Offices, for 

appellee.

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

Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

A modified divorce decree in 2011 granted Stacey R. Jaeger 

sole physical custody over her son, C.J., subject to parenting 

time between C.J. and his father, Duke E. Jaeger. In 2018, 

Duke petitioned to modify custody.

After hearing C.J. and the parties testify, the district court 

transferred sole legal and physical custody over C.J. to Duke, 

subject to Stacey’s parenting time. We affirm.

II. FACTUAL BACKGROUND

Stacey and Duke married in 2004 and lived together in 

Imperial, Nebraska. They raised two sons: H.J., born in 1997 

to Stacey’s previous marriage and adopted by Duke, and C.J., 

born in 2005 to Stacey and Duke. Only custody of C.J. is at 

issue in this appeal.

Stacey filed for a divorce in 2006. A divorce decree was 

entered in 2007. Under the divorce decree, Stacey and Duke 

were granted joint legal custody over their sons, and Stacey 

was granted sole physical custody, subject to Duke’s parenting time.

In January 2008, Stacey filed a petition to modify the 

divorce decree. She sought sole legal custody over H.J. and 

C.J., and she requested that any visits between Duke and their 

sons be supervised. Stacey alleged that Duke had physically 

abused their sons.
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Cite as 307 Neb. 910

In September 2009, before her petition was adjudicated, 

Stacey moved with her sons to Waverly, Nebraska. Based 

on this move, Stacey petitioned for the court to further limit 

Duke’s visits with their sons to once every other weekend and 

renewed her request that such visits be supervised. Stacey also 

requested that the parties be ordered to meet in Lexington, 

Nebraska, which was closer to her new home, to exchange 

their sons between visits.

Around this time, conflict arose between Duke and H.J., 

who alleged that Duke had physically abused him. Stacey and 

Duke agreed that H.J. would no longer spend time with Duke. 

Since then, H.J. and Duke have remained estranged from 

each other.

Between 2007 and 2010, Stacey made numerous allegations that Duke was physically abusing C.J. The Nebraska 

Department of Health and Human Services, the Nebraska State 

Patrol, and the police department for the city of Imperial all 

investigated. The district court appointed a guardian ad litem, 

who “reviewed voluminous material and spoke with investigators with the State Patrol, the Imperial Police Department, 

DHHS investigators, some of the medical personnel, the counselor for the children, and the children,” but concluded that the 

evidence did not support Stacey’s allegations of abuse against 

Duke. The guardian ad litem also did not recommend that Duke 

be limited to supervised visits, but did recommend that he complete family counseling.

In March 2011, the district court entered an order modifying 

the divorce decree. Under the 2011 divorce decree, the parties 

retained joint legal custody over C.J. and Stacey retained sole 

physical custody over C.J. Duke was entitled to a minimum 

of one visit every other weekend with C.J. during the school 

year and 6 consecutive weeks’ visitation during the summer. 

The district court declined Stacey’s request to require that 

visits between Duke and C.J. be supervised. Weekday visitation was eliminated, and the parties were ordered to exchange 
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C.J. in Kearney, Nebraska. Duke was ordered to complete family counseling.

Stacey appealed the district court’s denial of her request for 

sole legal custody over C.J. On appeal, in case No. A-11-330, 

the Nebraska Court of Appeals affirmed the order in an unpublished memorandum opinion filed on March 2, 2012.

On March 1, 2018, Duke filed a petition for modification 

of the divorce decree in the district court for Chase County. 

Stacey filed a motion to transfer pursuant to Neb. Rev. Stat. 

§ 25-410 (Reissue 2016), and the case was transferred to the 

district court for Lancaster County.

The issue before the district court was whether Duke had 

shown a material change in circumstances that had not been 

foreseeable when custody was last adjudicated in 2011. Duke 

alleged that over the past 7 years, C.J. had grown, and that 

now, as a 14-year-old child, he had expressed a mature desire 

to live with Duke. The district court heard in camera testimony 

from C.J. during which time only C.J., the parties’ attorneys, 

and the judge were in the courtroom.

During this testimony, C.J. stated that he loved both of his 

parents but desired to live with Duke. According to the district court:

[C.J.] wants to live with his Dad because [they have] 

the same interests in farming and working on tractors 

and lawn mowers. They both enjoy hunting and fishing, 

especially together. [C.J.] would like to have a future in 

farming and hopes to inherit his Dad’s farms in Nebraska 

and Colorado.

Because this reasoning was sound and C.J. was an eighth grade 

student who “does well in school,” the district court found 

C.J.’s testimony persuasive.

In contrast, the district court viewed Stacey’s testimony at 

trial more skeptically. The district court found that Stacey “was 

often not truthful or forthcoming in her testimony” and that she 

had made coparenting very difficult for Duke.
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Cite as 307 Neb. 910

The district court also considered evidence in the record that 

Stacey was not meeting C.J.’s needs as his parent. The district 

court noted that Stacey, a real estate broker, had earned an 

adjusted gross income of only $21,817 in 2018, while Duke, 

in retirement, had earned $52,141 in 2018. Further, Stacey’s 

home, which the district court noted is “owned by her parents 

and [for which she] pays only as much as she can afford for 

rent,” was “cluttered and dirty,” according to testimony. In contrast, Duke owned a home and significant farmland.

Additionally, the district court stated that “[i]n the Court’s 

opinion, [Stacey] is extremely overprotective and engage[d] 

in parental alienation to the extent that it may be harmful to 

[C.J.’s] general health, welfare, development and social wellbeing.” The district court specifically noted the deterioration 

of H.J.’s relationship with Duke as evidence that Stacey had 

already “successfully alienated” one son from Duke. As to 

H.J.’s allegations that Duke had been physically abusive, the 

district court concluded, based on its observations at trial, that 

Stacey “may have coached the children to say that [Duke] had 

hit them.” The district court refused Stacey’s testimony about 

her pre-2011 allegations of abuse against Duke, finding that 

they were irrelevant to C.J.’s circumstances since 2011.

With these findings of fact, the district court concluded 

there had been a material change in circumstances since 2011 

to justify modification of the divorce decree. That is, had the 

district court in 2011 “known that [Stacey] would continue to 

engage in such behavior, [it] may have decided differently” 

about C.J.’s living situation. Thus, the district court held that 

it would be in C.J.’s best interests to be moved to Duke’s sole 

legal and physical custody. Stacey was granted parenting time 

on every other weekend and ordered to pay $305 per month to 

Duke in child support.

Stacey filed a motion, pursuant to Neb. Rev. Stat. § 25-1144 

(Reissue 2016), for a new trial and reconsideration. She 

alleged that certain irregularities in the proceedings had prevented a fair trial and that the judgment was not sustained by 

sufficient evidence. On January 23, 2020, the district court 
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overruled Stacey’s motion for a new trial, though it amended 

the previous order to designate C.J.’s in camera testimony 

as confidential.

Stacey timely appealed, and we moved the case to our docket. 1

III. ASSIGNMENTS OF ERROR

Stacey assigns, consolidated and restated, that the district 

court erred in (1) modifying the divorce decree to grant Duke 

sole legal and physical custody over C.J.; (2) excluding, as 

irrelevant, Stacey’s testimony about her past abuse allegations 

against Duke; and (3) overruling her motion for a new trial 

or reconsideration.

IV. STANDARD OF REVIEW

[1] Child custody determinations are matters initially 

entrusted to the discretion of the trial court. 2 Although reviewed 

de novo on the record, the trial court’s determination will generally be affirmed absent an abuse of discretion. 3

[2,3] In proceedings where the Nebraska rules of evidence 4

apply, they control the admissibility of evidence, and judicial 

discretion is allowed only insofar as the rules make it a factor. 5

Judicial discretion is allowed to determine the relevancy of evidence, and such determination will not be disturbed on appeal 

unless it constitutes an abuse of discretion. 6

[4] An appellate court reviews a trial court’s ruling on 

a motion for a new trial or reconsideration for an abuse 

of discretion. 7

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 See State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182 

(2020).

3 See id.

4 See Neb. Rev. Stat. § 27-101 et seq. (Cum. Supp. 2016 & Supp. 2019).

5 See Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020).

6 See id.

7 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).
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[5] An abuse of discretion occurs when a trial court’s decision or reasoning is clearly untenable, unfairly depriving a 

litigant of a substantial right and denying just results in matters 

submitted for disposition. 8

V. ANALYSIS

1. Modification of Child Custody

The main issue presented on appeal is whether the district 

court erred in modifying the 2011 divorce decree when it 

transferred sole legal and physical custody over C.J. to Duke, 

subject to Stacey’s parenting time. Stacey contends that this 

modification was an abuse of discretion.

[6,7] Custody of a minor child will not ordinarily be modified absent a material change in circumstances, which shows 

either that the custodial parent is unfit or that the best interests 

of the child require such action. 9 It is the burden of the party 

seeking modification to show a material change in circumstances. 10 Specifically, the movant must show two elements: 

First, that since entry of the most recent custody order, there 

has been a material change in circumstances that affects the 

child’s best interests, and second, that it would be in the child’s 

best interests to change custody. 11

Here, because it was Duke who sought to modify the district 

court’s 2011 custody order, he had the burden of proving both 

elements to justify modification.

(a) Material Change in Circumstances

[8-10] We have defined a material change in circumstances as the occurrence of something that, if it had been 

known at the time the most recent custody order was entered, 

8 See Dycus v. Dycus, ante p. 426, 949 N.W.2d 357 (2020).

9 See Tilson, supra note 5.

10 See id.

11 See id.
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would have persuaded that court to decree differently. 12

Circumstances having occurred before the most recent custody 

order are relevant only insofar as they bear on whether the 

change in circumstances since the most recent custody order 

are material and substantial. 13 Before custody is modified, it 

should be apparent that any material change in circumstances 

alleged will be permanent or continuous, not merely transitory 

or temporary. 14

The district court found that C.J.’s testimony that he preferred to reside primarily with Duke was one factor that 

weighed in favor of a conclusion that there had been a material 

change in circumstances. C.J. was approximately 6 years old in 

2011, when custody was last modified. But in 2018, during in 

camera testimony, the district court found that C.J. had persuasively stated his preference and reasoning for being moved to 

Duke’s sole legal and physical custody.

Stacey contends that it was an abuse of discretion for the 

district court to rely so heavily on C.J.’s stated preference. 

Stacey warned at oral argument that if a child’s stated preference alone could establish a material change in circumstances, 

then children throughout the state would become capable at 

any time of asking for and being granted a change in custody. 

According to Stacey, under a recent Court of Appeals opinion, 

State on behalf of Slingsby v. Slingsby,

 15 a child’s stated preference can constitute a material change in circumstances only 

if it is coupled with evidence about an evolving relationship 

between the child and parent.

We agree with Stacey that the Court of Appeals’ reasoning 

in Slingsby is instructive here, but we disagree that it supports her position. In Slingsby, a father petitioned to modify 

12 See Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020).

13 See Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).

14 See Jones, supra note 12.

15 State on behalf of Slingsby v. Slingsby, 25 Neb. App. 239, 903 N.W.2d 491 

(2017).
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a divorce decree in an effort to gain primary physical custody 

over his 15-year-old son. After the district court heard the son 

testify that he preferred to live with his father because of their 

shared interests in hunting, raising livestock, and being outdoors, the district court granted the father’s motion to modify 

custody. The Court of Appeals affirmed, reasoning that it was 

not an abuse of discretion for the district court to conclude that 

“[the son’s] stated preference to live with [his father] and his 

evolving relationship with [the father] constituted a material 

change in circumstances.” 16

Among the factors in Slingsby that indicated an evolving 

relationship between the parent and child were that the son 

(1) was 10 years older than the last time a divorce decree 

was entered; (2) had developed interests in working outdoors 

and hunting, interests that he shared with his father; (3) felt 

“trapped” living at his mother’s house because he could not 

get outdoors much or practice his new interests; and (4) was 

struggling in school under his mother’s tutelage, but believed 

his grades would improve at the school near his father’s house 

because it offered an “‘ag class,’” smaller class sizes, and study 

halls. 17 The Court of Appeals found that individually, these 

factors each provided evidence of a material change in circumstances, and collectively, they also helped to explain the son’s 

stated preference, entitling it to greater consideration. 18

The Court of Appeals’ reasoning, as set forth in Slingsby, 

models how courts should consider children’s stated preferences in custody disputes. We have never held, nor do we 

read Slingsby to hold, that a child’s stated preference, alone, 

will suffice to establish a material change in circumstances. 

Stacey’s fear that children could at any time be granted a 

change in custody simply by asking is unwarranted.

16 Id. at 254, 903 N.W.2d at 501.

17 See id.

18 See Slingsby, supra note 15.
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[11] To the contrary, we have specifically held that “the 

wishes of a child are not controlling” in determinations of child 

custody. 19 Trial courts should consider a variety of factors that 

bear on the best interests of the child. 20 Due consideration of 

these factors will determine whether finding a material change 

in circumstances is justified. 21

[12-14] But “if a child is of sufficient age and has expressed 

an intelligent preference, the child’s preference is entitled to 

consideration,” alongside other factors. 22 The amount of consideration will depend on the child’s age and ability to give 

reasons for his or her preference. 23 For example, in cases 

where we have given the child’s stated preference significant 

consideration, the child was typically over 10 years old. 24 And, 

as Slingsby demonstrates, more consideration will be afforded 

where additional factors that bear on the child’s best interests 

undergird the child’s stated preference and reasoning. 25 Where 

a trial court’s order demonstrates that the child’s age and reasoning have been duly considered alongside the child’s stated 

preference, we will generally defer to the trial court’s credibility determinations in our assessment of facts. 26

Here, we find no basis for Stacey’s assertion that the district court gave undue consideration to C.J.’s stated preference. After hearing C.J. testify in camera and respond to 

questions about his stated preference, the district court made 

19 Leners v. Leners, 302 Neb. 904, 912, 925 N.W.2d 704, 711 (2019), 

disapproved on other grounds, State on behalf of Kaaden S. v. Jeffery T., 

303 Neb. 933, 932 N.W.2d 692 (2019).

20 See Jones, supra note 12.

21 See id.

22 Leners, supra note 19, 302 Neb. at 912, 925 N.W.2d at 711.

23 See id.

24 Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).

25 See Slingsby, supra note 15.

26 See Tilson, supra note 5.
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specific findings about how much consideration to give C.J.’s 

stated preference. According to the district court, C.J. was 

a mature 14-year-old child who demonstrated a capacity for 

critical reasoning.

Additionally, many of the same factors that indicated an 

evolving relationship and supported the son’s reasoning in 

Slingsby were also present here. The district court specifically noted that since 2011, C.J. had grown 7 years older and 

become significantly more mature; he had developed interests 

in hunting, fishing, and working outdoors on tractors and lawnmowers, all interests that he now shared with Duke but not 

with Stacey; he had spent time at Duke’s farm and realized a 

healthy father-son relationship with him; he had earned money 

for various jobs that he had performed on visits to Duke’s farm; 

he had decided to become a farmer himself in the future and 

wished to learn to farm from Duke, who was retired and had 

time to teach C.J. about farming; and he had begun to show 

independence by helping to manage Duke’s farmland.

Further, the district court found that Stacey’s behavior had 

worsened over the past 7 years, raising questions about her 

ability to meet C.J.’s needs and to effectively coparent with 

Duke. Given all of these factors, the district court found that 

if the court in 2011 had “known that [Stacey] would continue 

to engage in such behavior, [it] may have decided differently” 

about C.J.’s living situation.

Thus, contrary to Stacey’s assertion, there were many factors that the district court considered and found demonstrated 

a material change in circumstances in addition to C.J.’s stated 

preference. We do not find that the district court abused its 

discretion in its consideration of these factors and its determination that there had been a material change in circumstances 

that affected C.J.’s best interests.

(b) Best Interests of Child

Next, we consider the second element in a review of a 

child custody modification: whether the modified custody 
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arrangement was in C.J.’s best interests. Stacey argues that 

even if the district court did not err in finding a material 

change in circumstances, it abused its discretion in determining 

that a move of C.J.’s sole legal and physical custody to Duke 

was in C.J.’s best interests.

[15] Consideration of the child’s best interests involves a 

combination of both mandatory and permissive factors. Neb. 

Rev. Stat. § 43-2923(6) (Reissue 2016) requires that certain 

factors must be considered, including (1) the relationship of the 

child to each parent prior to the commencement of the action; 

(2) the desires and wishes of a sufficiently mature child, if 

based on sound reasoning; (3) the general health, welfare, and 

social behavior of the child; (4) credible evidence of abuse 

inflicted on any family or household member; and (5) credible 

evidence of child abuse or neglect or domestic intimate partner abuse.  27

[16] Other relevant considerations that may also be considered include the stability of the child’s existing routine, 

minimization of contact and conflict between the parents, and 

the general nature and health of the child. 28 No one factor is 

dispositive, and various factors may weigh more or less heavily, depending on the case. 29

In support of her argument that the district court abused its 

discretion in finding that C.J.’s interests would be best served 

by the modified decree, Stacey again cites to Slingsby. 30 To 

distinguish this case, Stacey contends that the district court’s 

“lack of analysis and reasoning in this case pales in comparison to the trial court’s thorough analysis in Slingsby.” 31

We disagree.

27 Jones, supra note 12.

28 See id.

29 See id.

30 See Slingsby, supra note 15.

31 Brief for appellant at 16.
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Contrary to Stacey’s assertions, the district court thoroughly analyzed how a change in custody would be in C.J.’s 

best interests. The district court gave particular weight to the 

shared interests between C.J. and Duke in farming. It found 

that C.J. wished to become a farmer and determined that Duke, 

who was retired but owned farmland, could teach C.J. to farm 

if they lived together. Based on Duke’s testimony, the district 

court deemed him “an honest and sincere man who wants the 

best for [C.J.] and is a good role model for his son.”

The district court also found that Duke and C.J. had worked 

well together and enjoyed each other’s company during Duke’s 

parenting time over the years. Thus, the district court found 

that C.J.’s stated preference to live with Duke made sense and 

provided strong evidence that a change in custody would be in 

C.J.’s best interests.

Moreover, the district court found that living with Duke 

would be in C.J.’s best interests because Stacey had demonstrated that she was “extremely overprotective” and tended to 

alienate her sons from Duke in a way that was damaging to 

C.J.’s “general health, welfare, development and social wellbeing.” According to the district court:

In comparing [Stacey’s and Duke’s] character, their attitude and stability, their capacity to provide the physical care and satisfy the educational needs of [C.J.], and 

considering the general health, welfare, development and 

social behavior of [C.J.], the Court finds that it would be 

in [C.J.’s] best interest for him to reside with [Duke].

Based on the district court’s due consideration of these factors, which meet the statutory criteria, we do not find that it 

was an abuse of discretion for the district court to find that a 

modification of custody was in C.J.’s best interests.

We hold that Duke met his burden for a modification of the 

2011 divorce decree. Thus, the district court did not abuse its 

discretion in modifying the divorce decree in 2018 to move 

C.J.’s sole legal and physical custody to Duke. Stacey’s first 

assignment of error is without merit.
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2. Exclusion of Testimony

Stacey assigns, second, that the district court failed to consider relevant evidence that Duke had physically abused both 

H.J. and C.J. in the past.

During direct examination at trial, Stacey’s counsel asked 

Stacey whether she had made any allegations in the past 

against Duke regarding physical abuse. Duke objected before 

Stacey could answer, and the district court sustained Duke’s 

objection. According to the district court, Stacey’s answer 

to the question was irrelevant to the present case because it 

would pertain only to allegations of physical abuse made prior 

to 2011, and hence before the most recent decree was entered. 

Stacey contends that it was reversible error for the district 

court to sustain Duke’s objection and exclude her testimony 

as irrelevant.

[17,18] The admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the 

complaining party. 32 Erroneous exclusion of evidence does not 

require reversal if the evidence would have been cumulative 

and other relevant evidence, properly admitted, supports the 

trial court’s finding. 33

As analyzed above, the district court found ample evidence 

that the modified order would be in the best interests of C.J. 

Even if the district court had considered Stacey’s testimony 

about her pre-2011 abuse allegations against Duke, such evidence would not have undermined the evidence in the record. 

When the Court of Appeals in 2012 reviewed Stacey’s challenge to the 2011 divorce decree in case No. A-11-330, it 

observed in an unpublished memorandum opinion that “[t]he 

record is replete with evidence regarding Stacey’s concerns 

about the children while in Duke’s care. However, the instances 

of alleged abuse have all been unfounded.”

32 AVG Partners I v. Genesis Health Clubs, ante p. 47, 948 N.W.2d 212 

(2020).

33 See id.
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The record before the district court contained ample evidence 

of these pre-2011 allegations. The earlier Court of Appeals 

opinion was in the record and cited by the district court. Stacey 

does not assert that any of her testimony would have raised 

allegations not already expressed in the record.

Thus, even if it was error for the district court to exclude 

Stacey’s testimony about past abuse allegations, it was not 

reversible error because Stacey’s testimony would have been 

cumulative. We hold that the district court did not abuse its 

discretion in excluding Stacey’s testimony. Stacey’s second 

assignment of error is without merit.

3. Motion for New Trial 

or Reconsideration

Stacey assigns, third, that the district court abused its discretion in not fully granting her motion for a new trial or reconsideration. The district court granted Stacey’s motion in part 

when it designated as confidential its summaries and quotations from C.J.’s testimony. However, Stacey assigns that this 

remedy was too little and that an entirely new trial should have 

been ordered.

Neb. Rev. Stat. § 25-1142 (Reissue 2016) sets forth eight 

grounds on which a motion for new trial may be sustained. 34

Stacey cites to the first and sixth among these, which require 

that a new trial be granted if

(1) [i]rregularity in the proceedings of the court, jury, 

referee, or prevailing party or any order of the court or 

referee or abuse of discretion by which the party was 

prevented from having a fair trial [or] (6) that the verdict, 

report, or decision is not sustained by sufficient evidence 

or is contrary to law. 35

Neither of these bases for a new trial are availing here. As 

analyzed above, the district court’s decision was not contrary 

34 See Cinatl v. Prososki, ante p. 477, 949 N.W.2d 505 (2020).

35 § 25-1142.
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307 Nebraska Reports

JAEGER v. JAEGER

Cite as 307 Neb. 910

to law. Instead, it was amply supported by evidence in the 

record. And aside from conclusory statements in her brief, 

Stacey offers no evidence that she was in fact deprived of a 

fair trial.

We hold that the district court did not abuse its discretion in 

denying Stacey’s motion for new trial. Stacey’s third assignment of error is without merit.

VI. CONCLUSION

We do not find that it was an abuse of discretion for the district court to move C.J. to Duke’s sole legal and physical custody. Nor do we find that the district court abused its discretion 

in excluding Stacey’s testimony about past abuse allegations 

and overruling Stacey’s motion for a new trial. Accordingly, 

we affirm the decision of the district court.

Affirmed.

Cassel, J., not participating.