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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

DEMPSEY V. DEMPSEY

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

JACOB DEMPSEY, APPELLANT,

V.

BRANDIE DEMPSEY, NOW KNOWN AS BRANDIE MCKINSTRY, APPELLEE.

Filed September 17, 2024. No. A-23-902.

Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge. 

Affirmed.

Terrance A. Poppe and Anne E. Brown, of Morrow, Poppe, Watermeier & Lonowski, P.C., 

L.L.O., for appellant.

Steffanie J. Garner Kotik, of Kotik & McClure Law, for appellee.

PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.

PIRTLE, Chief Judge.

INTRODUCTION

Jacob Dempsey appeals from the order of the district court for Lancaster County modifying 

the physical custody of the parties’ children. Based on the reasons that follow, we affirm.

BACKGROUND

Jacob and Brandie Dempsey, now known as Brandie McKinstry, are the parents of two 

minor children, Kayson, born in 2014, and Kolton, born in 2017. A decree of dissolution was 

entered in July 2021 which approved the parties’ stipulation regarding all matters. The decree 

awarded the parties joint legal custody of Kayson and Kolton and awarded Jacob sole physical 

custody. Brandie was awarded parenting time on alternating weekends.
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On July 8, 2022, Brandie filed a complaint for modification alleging that material changes 

in circumstances had occurred since the entry of the decree and requested she be awarded sole 

legal and physical custody of the children. She alleged that the material changes in circumstances 

included:

(a) [Jacob’s] mental health which has declined to the point that he is unfit to parent 

the parties’ minor children;

(b) On or about November 3, 2021, [Jacob] shot himself twice;

(c) [Jacob] was taken to jail on June 26, 2022, and then released June 27, 2022. 

[Jacob] assaulted [Brandie] on June 26, 2022, by striking her in the right orbital area 

causing pain, swelling, and bruising. [Jacob] was ultimately arrested and the case is 

pending against him . . . .

(d) [Jacob] has caused damage to the home where [Brandie] resides and has 

threatened and harassed [her];

(e) It is no longer in the children’s best interest that they reside with [Jacob] and it 

is in the best interest of the minor children that their custody be awarded to [Brandie].

On July 8, 2022, Brandie filed an ex parte motion seeking temporary custody of the 

children because Jacob had physically assaulted her. The court entered an ex parte order giving 

Brandie temporary legal and physical custody. On July 22, the court entered a temporary order, 

awarding the parties joint legal and physical custody on a week on/week off basis. This temporary 

order remained in place until the trial on Brandie’s complaint for modification.

Trial was held in August 2023. Brandie testified that at the time the decree was entered, 

she agreed to Jacob having sole physical custody because of the hours she was working. She was 

working from 2 p.m. to midnight, Monday through Thursday. At the time of trial, she had different 

employment and was working from 6 a.m. to 2:30 p.m., Monday through Friday, and one weekend 

per month. Including the job she had at the time the decree was entered, Brandie had 5 different 

jobs in 3 years.

Jacob had been at the same job for almost 7 years. His hours were 7:30 a.m. to 3:30 p.m., 

Monday through Friday.

Brandie testified that there had been a material change in circumstances because Jacob’s 

mental health had declined to the point that he was unfit to parent. She testified that one of the 

reasons she was concerned about Jacob’s mental health was because after the decree was entered, 

he stalked her. She claimed that he waited outside her workplace for her on at least three occasions 

and followed her on one occasion. He also called her at work insistently.

At some point after the decree was entered, Brandie’s apartment was broken into and 

vandalized. Brandie testified that about a month later, Jacob told her that he had his friends break 

into her apartment. After the break-in, Brandie moved out of her apartment because she did not 

feel safe. She moved in with her mom and later moved in with her boyfriend, Andrew S. Jacob 

denied having any involvement with the break-in and vandalization of Brandie’s apartment.

Brandie testified that in the fall of 2021, she moved back in with Jacob because she thought 

it would be better for the children if she and Jacob tried to work things out. Jacob testified that 

Brandie told him she was moving back in because she wanted to get away from Andrew because 

he was drinking a lot. Brandie lived with Jacob for less than a week.
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Brandie testified that one night while she was living with Jacob, they went over to a friend’s 

house and then to several bars. She testified that at the last bar Jacob was drunk and got kicked out 

of the bar. Brandie stated that she decided to call Andrew to come pick them up and when Jacob 

saw who she was calling he threw her phone in a field and then punched her in the face. Brandie 

testified that she then ran to Andrew’s house.

Jacob gave a different account of what happened that evening. He testified that on the night 

he and Brandie went to the bars, they went outside because they were arguing. Brandie wanted to 

get back together, but Jacob did not. Jacob testified that Brandie struck him in the face several 

times and then threw her phone in a field across the street and told him to go get it. He testified 

that he went to look for the phone and when he came back, Brandie was gone. He then had his 

sister pick him up and take him home.

Jacob was charged with domestic assault after the incident, but the charge was later 

dismissed by the State. Brandie testified that she filed her complaint for modification because of 

the assault.

Brandie also testified that the day after they went to the bars, she discovered her car had 

been vandalized. Her car had been parked in Jacob’s driveway overnight. She testified that all four 

tires were slashed and all four sides of the car were vandalized. Brandie claimed Jacob told her he 

had caused the damage to her car because he was upset that she was going to move out again. He 

also asked her if she would refrain from reporting the vandalism if he fixed the damage. He bought 

her new tires and tried to fix the scratches, but they were still visible. Jacob was charged with 

vandalism after he damaged Brandie’s car.

Jacob admitted that he vandalized Brandie’s car but testified that it did not happen the same 

day as the altercation outside the bar. He testified that Brandie’s car was in his driveway because 

she had asked to come over to see the boys. While she was there, he discovered that she was 

drinking alcohol and he told her to leave. Brandie called Andrew to pick her up and left her car in 

Jacob’s driveway. Jacob testified that he popped two of her tires and scratched her car. On 

cross-examination he admitted that he scratched the word “bitch” on one side of her car and 

“whore” on the other. The children were home when he did this but were inside the house asleep.

Jacob testified that the next morning he had the car towed and had the tires repaired. He 

stated that Brandie told him she would have the charges dropped if he got the tires fixed. He also 

tried to fix the scratches, but the words were still visible. At the time of trial, the car still had the 

words scratched into it.

Brandie also testified that in the fall of 2022, her home was subject to a drive-by shooting. 

She claimed that Jacob told her he had a friend do it. She testified that she was not home when it 

happened, but claimed there were holes in the siding that looked like bullet holes. She did not call 

the police and no bullets were ever removed from the siding. Jacob testified he knew nothing about 

a drive-by shooting at Brandie’s house and he denied telling her that he had a friend shoot at her 

house. 

Brandie testified that Jacob did not discuss medical, childcare, education, or religious 

decisions related to the children with her. She also testified that Jacob can be “difficult” about 

things related to the children. One example she gave was when Kolton had a doctor’s appointment 

and Jacob did not allow her to attend. Brandie had made an appointment with a specialist at the 
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recommendation of Kolton’s regular doctor. She testified the appointment was during Jacob’s 

parenting time, and Jacob would not allow her to go to the appointment with him.

Jacob denied telling Brandie she could not go to Kolton’s appointment with the specialist. 

He testified that Brandie asked him to take Kolton to his appointment because it was scheduled 

during Jacob’s parenting time and she had to work.

There was also testimony about Brandie’s plans for getting the children to school during 

her parenting time given that her workday starts at 6 a.m. Brandie testified before the school year 

started, her plan was that she would go to work at her regular time, the children would wake up to 

an alarm clock, get themselves ready, get their own breakfast, and ride their bikes to school with 

neighborhood friends. She stated that Andrew would be present at the house, but the children 

would be responsible for getting themselves ready.

However, on the first day of school, which was the day before the trial started, the children 

did not get up on their own. She testified that because her original plan did not work, she now 

planned to leave work and go home, wake the children, make sure they get ready and have 

breakfast, and take them to school.

Jacob testified that Brandie had told him about her original plan involving the children 

getting themselves up and ready for school and then riding their bikes to school. He stated that he 

had concerns about her plan based on Kayson and Kolton’s ages, as well as the busy streets that 

were on their route to school. Jacob also testified Brandie told him Andrew would be at work 

during the mornings; the children would be home alone. He testified that during his parenting time, 

he would take the children to daycare before school and daycare would transport them to school.

Jacob also testified about an accident involving a firearm that occurred in November 2021. 

He testified that he was at home and had his gun out of the safe because he was going shooting the 

next day. He was talking on the phone while handling the gun when he accidentally dropped the 

gun and it discharged. The bullet injured his hand and thigh. The children were not in Jacob’s 

custody at the time. Jacob was charged with discharging a firearm, but the charge was later reduced 

to disturbing the peace.

Following the incident, Jacob’s psychiatrist stated that there was no report of or any history 

to indicate the discharge of the gun was anything other than an unfortunate accident. He further 

stated there was no indication that Jacob posed a risk to himself or others based upon his mental 

health diagnosis or treatment.

Jacob explained that he was seeing a psychiatrist because he takes a controlled substance 

for attention deficit hyperactivity disorder that requires a follow-up every 3 months. Jacob testified 

that he does not have any mental health issues, and there is nothing that prohibits him from 

parenting his children.

The trial court entered an order modifying the decree. It found that Brandie established a 

material change of circumstances warranting a modification of custody and awarded the parties 

joint physical custody of the children.

ASSIGNMENTS OF ERROR

Jacob assigns the trial court erred in (1) finding that Brandie met her burden of proof to 

establish a material change in circumstances and (2) awarding the parties joint legal and physical 

custody of the children.
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STANDARD OF REVIEW

Modification of a judgment or decree relating to child custody, visitation, or support is a 

matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, 

and will be affirmed absent an abuse of discretion. Mann v. Mann, 316 Neb. 910, 7 N.W.3d 845 

(2024). The award of attorney fees in an action for modification of a marital dissolution decree is 

reviewed under the same standard. Id. But when evidence is in conflict, the appellate court 

considers and may give weight to the fact that the trial court heard and observed the witnesses and 

accepted one version of the facts rather than another. Id.

ANALYSIS

Jacob’s two assignments of error both relate to the trial court’s finding that Brandie proved 

the requirements necessary for the court to modify the physical custody arrangement.

Modifying a custody or parenting time order requires two steps of proof. Mann v. Mann, 

supra. First, the party seeking modification must show by a preponderance of the evidence a 

material change in circumstances that has occurred after the entry of the previous custody order 

and that affects the best interests of the child. Id. Second, the party seeking modification must 

prove that changing the child’s custody or parenting time is in the child’s best interests. Id.

Material Change in Circumstances.

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

speaking, a material change in circumstances is the occurrence of something which, had it been 

known to the dissolution court at the time of the initial decree or prior modification, would have 

persuaded the court to decree differently. Mann v. Mann, supra.

In finding that a material change in circumstances existed, the trial court primarily focused 

on the vandalism of Brandie’s vehicle. In its order, it stated that Jacob had vandalized her car by 

“slashing the tires and scratching in derogatory names.” It also noted that Jacob had not fixed her 

car and the children have seen the damage to the car, including the derogatory words directed at 

Brandie. The trial court also stated at the end of trial, that it did not think it would have granted 

primary custody to one party who had vandalized the other party’s car and written what he did.

Jacob argues there was no evidence as to what effect the vandalism of the car had on the 

children. He further points out that, despite that one instance, Brandie testified she had no concerns 

when the children are with Jacob.

Although the trial court focused primarily on the vandalism to Brandie’s car in finding a 

material change in circumstances, there was other evidence in the record to support a material 

change in circumstances. There was a safety concern in that Jacob had a loaded gun in the home. 

Even though he kept the gun in a locked safe when he was not using it, he testified he kept it 

loaded. As a result, he shot himself when he mishandled the gun. There was also evidence that 

Jacob stalked Brandie for a period of time after the decree. She testified that he waited outside her 

workplace on several occasions, followed her on one occasion, and called her at work repeatedly. 

Jacob did not deny this. There was also evidence regarding an altercation between the parties 

outside a bar. Although the parties gave different accounts of what happened, the altercation was 
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physical and resulted in a domestic assault charge against Jacob that was eventually dismissed.

Finally, Brandie testified that Jacob did not consult her regarding decisions for the children, even 

though they have always had joint legal custody. Considering the vandalism of Brandie’s car, as 

well as these other circumstances that have happened since the entry of the decree, we conclude 

the trial court did not abuse its discretion in finding there had been a material change in 

circumstances.

Best Interests.

Next, we consider whether the modified custody arrangement was in Kayson and Kolton’s 

best interests. 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. Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 

367 (2020).

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. Id. No one factor is dispositive, and various factors may weigh more or 

less heavily, depending on the case. Id.

The trial court determined it was in the children’s best interests for their physical custody 

to be placed jointly with the parties. 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 

(2015). See also Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998) (noting when 

neither parent is unfit, but neither is ideal, particular weight is given to fact that trial court saw and 

heard witnesses in making necessary findings as to best interests and welfare of children). The trial 

court in this case had an opportunity to observe the testimony of both parties.

As is commonly seen in contested custody cases, there was conflicting testimony from 

Jacob and Brandie regarding various incidents that have occurred since the decree was entered that 

could affect the children’s best interests. Each parent sought to highlight parenting flaws in the 

other parent to bolster his or her own position as the preferred choice to be awarded custody. The 

trial court found both parties to be fit parents. It was evident that they both love their children, but 

both parents have flaws. Accordingly, there are best interest factors that favor Brandie and other 

factors that favor Jacob, but the key factor in determining best interest is what custody arrangement 

works best for the children. In the year before trial, the parties had been operating under the 

temporary order which provided for joint physical custody. The children had been doing well under 

the joint physical custody arrangement. The parties both testified to routines the children had at 

each parent’s house and both agreed that the children had done well in school the last school year. 

Based on our de novo review of the record, and giving weight to the fact the trial court saw and 
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heard witnesses, we cannot say the trial court abused its discretion by deciding it was in the 

children’s best interests to award the parties joint physical custody.

CONCLUSION

We conclude the trial court did not abuse its discretion in modifying the custody 

arrangement and awarding the parties joint physical custody. The order modifying the decree is 

affirmed.

AFFIRMED.