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Meaghann Shaw Weaver, appellee, v. 

John Glen Weaver, appellant.

___ N.W.2d ___

Filed February 12, 2021. No. S-19-1058.

1. Divorce: Judgments: Appeal and Error. The meaning of a divorce 

decree presents a question of law in connection with which an appellate 

court reaches a conclusion independent of the determination reached by 

the court below.

2. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries the factual questions de novo on the record and reaches a 

conclusion independent of the findings of the trial court.

3. Appeal and Error. In a review de novo on the record, an appellate 

court reappraises the evidence as presented by the record and reaches 

its own independent conclusions with respect to the matters at issue. 

When evidence is in conflict, the appellate court considers and may give 

weight to the fact that the trial judge heard and observed the witnesses 

and accepted one version of the facts rather than another.

4. 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.

5. Divorce: Modification of Decree: Minors. A decree of divorce, insofar 

as minor children are concerned, is never final in the sense that it cannot 

be changed, but is subject to review at any time in the light of changing conditions.

6. Modification of Decree: Visitation. The right of parenting time is subject to continual review by the court, and a party may seek modification 

of a parenting time order on the grounds that there has been a material 

change in circumstances.

7. Modification of Decree: Child Custody: Proof. Two steps of proof 

must be taken by the party seeking modification of a child custody order. 

First, the party seeking modification must show by a preponderance 

Nebraska Supreme Court Online Library

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

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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. Second, the party seeking modification must prove 

that changing the child’s custody is in the child’s best interests.

8. ____: ____: ____. A custody order will not be modified absent proof of 

new facts and circumstances arising since it was entered.

9. Divorce: Property Settlement Agreements: Final Orders. A decree is 

a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself.

10. Divorce: Judgments: Intent. The meaning of a decree must be determined from all parts thereof, read in its entirety, and must be construed 

as a whole so as to give effect to every word and part, if possible, and 

bring all of its parts into harmony as far as this can be done by fair and 

reasonable interpretation. Effect must be given to every part thereof, 

including such effect and consequences that follow the necessary legal 

implication of its terms, although not expressed.

11. Modification of Decree: Words and Phrases. Material change in circumstances eludes precise and concise definition.

12. ____: ____. 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, would have persuaded the court to 

decree differently.

13. Child Custody. If a permanent, as opposed to temporary, order changing custody is to be made, it should appear to the court that the change 

of circumstances is more or less permanent or continuous and not 

merely transitory or temporary.

14. Modification of Decree: Evidence: Appeal and Error. Where the 

party seeking modification advances multiple reasons for modification, 

an appellate court does not consider whether each individual factor 

standing alone constitutes a material change. The appellate court instead 

considers all the facts and circumstances raised by the evidence to determine whether there has been a material change.

15. Divorce: Final Orders: Actions. A dissolution decree is conclusive 

in any future action between the parties only as to the facts that were 

directly in issue and actually or necessarily determined therein.

16. ____: ____: ____. A dissolution decree is not considered conclusive as 

to questions that might have been, but were not, litigated in the original action.

17. Appeal and Error. An appellee’s argument that a lower court’s decision should be upheld on grounds specifically rejected below constitutes 
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a request for affirmative relief, and the appellee must cross-appeal in 

order for that argument to be considered.

18. ____. An appellee may not raise arguments independent of or not 

responsive to an appellant’s assignments of error without cross-appealing 

because they will fall beyond the scope of the case as presented in the 

appellant’s brief.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann and Arterburn, Judges, 

on appeal thereto from the District Court for Douglas County, 

James T. Gleason, Judge. Judgment of Court of Appeals 

affirmed.

Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., 

for appellant.

Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

A father appeals the district court’s denial of his motion 

to modify parenting time after the court concluded that while 

more parenting time with the father would be in the child’s 

best interests, the father had failed to demonstrate a material 

change of circumstances. At issue is the meaning of the provision in the custody agreement incorporated into the decree 

stating that if a dispute over modification were submitted to 

a court, such court would apply the “then-governing legal 

standard.” Also at issue are the factors applicable to determining whether there has been a material change of circumstances. On further review, albeit for different reasons, we 

affirm the Nebraska Court of Appeals’ opinion, which reversed 

the judgment of the district court and remanded the cause 

with directions.
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II. BACKGROUND

A decree of divorce for John Glen Weaver (Glen) and 

Meaghann Shaw Weaver was entered by the District of 

Columbia Superior Court in May 2016. Subsequently, both 

Glen and Meaghann moved to Omaha, Nebraska. Pursuant to 

Neb. Rev. Stat. § 42-711 (Reissue 2016), the foreign decree 

was registered in Nebraska in May 2017.

One child was born of the marriage, in July 2015. The 

decree incorporated a settlement agreement. The settlement 

agreement provided that Meaghann shall have sole physical 

custody of the child, with parenting time for Glen, and that 

Glen and Meaghann were to have shared joint legal custody.

1. Custody Agreement

(a) Glen’s Parenting Time

The agreement set forth that Meaghann planned on moving 

with the child to Omaha and that Glen, who is in the U.S. Air 

Force, was trying to get stationed there. Under the provisions 

of the agreement governing physical custody, set forth in paragraph 4.1, when Meaghann and the child moved to Omaha in 

July 2016, and in the event Glen was also able to be stationed 

in Omaha, then “the parties will work together to implement 

gradually, and over time, a schedule in which Glen will visit 

with [the child] every other weekend (Friday — Sunday) and 

one dinnertime visit every other week.”

Additionally, Glen would have parenting time with the child 

while she was in daycare when Meaghann was working:

Glen may visit with [the child] on occasion while [the 

child] is in work-related daycare, so long as Glen provides reasonable notice of any such visit, such visits do 

not take place at Meaghann’s home, and such visits are 

not disruptive to [the child] and do not interfere with any 

plans or activities associated with [the child’s] daycare or 

planned by her daycare provider.

Under a separate paragraph governing child care expenses, 

the parties contemplated that until July 31, 2016, the child’s 
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maternal grandmother would be the childcare provider, inasmuch as it described payment to the grandmother for these 

services. Specifically, the agreement stated that for care provided between August 15, 2015, and July 31, 2016, both Glen 

and Meaghann were to “have gifted $17,500” to her by June 

1, 2016. Starting August 1, 2016, “the parties will contribute 

toward the cost of [the child’s] work-related childcare, with 

Glen setting the limit of his contribution toward childcare in 

Nebraska at . . . $200/week.” By its terms, the agreement did 

not specifically contemplate at what location the daycare for 

the child would take place or who would provide the daycare 

after July 31, 2016.

In the event the child were “at some point in the future” 

enrolled in private school “by mutual agreement of the parties,” Glen would contribute a minimum of $1,000 annually 

toward private school tuition. If the parties were unable to 

reach an agreement about whether the child should enroll in 

private school, they were directed to follow the protocol set 

forth in the agreement for “Dispute Resolution Regarding 

Child Custody.”

According to the agreement, at the time it was made, Glen 

had been visiting the child 1 hour every Monday, Wednesday, 

and Friday, from 5 to 6 p.m., plus an additional weekend day 

each week for 1 to 3 hours.

There was a provision in the agreement for Glen to be able 

to see the child 3 to 4 hours per day during an anticipated 

upcoming 10-day leave. Beyond that, no provision was set 

forth in the agreement regarding parenting time during holidays, vacations, or school breaks.

Meachann agreed that during the time that both parties lived 

in the District of Columbia, in addition to accommodating the 

described schedule for parenting time, she would “consider 

in good faith requests for incrementally longer visits so long 

as such visits do not interfere with [the child’s] eating or 

sleeping schedule.”
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The implementation of the graduated schedule set forth in 

the agreement was for the eventuality that both parties moved 

to Omaha and was to occur over a period of 4 months.

(b) Modification Provisions

Paragraph 4.2 of the agreement, entitled “Modification of 

Physical Custody,” described that “either party may request a 

modification to the physical custody” “[u]pon a material and 

significant change in circumstance of either party, or in the 

needs or interests of [the child].”

Paragraph 4.2 explained that the parties were to “discuss 

negotiation of a modification of custody in good faith and 

attempt to agree upon a resolution that is in the best interests 

of [the child].” In the event Glenn and Meaghann were “unable 

to agree,” they were to follow the protocols set forth in the 

agreement for “Dispute Resolution Regarding Child Custody.” 

In full, paragraph 4.2 provided:

Modification of Physical Custody. Upon a material and 

significant change in circumstance of either party, or in 

the needs or interests of [the child], either party may 

request a modification to the physical custody of [the 

child]. Upon such a request, the parties will discuss the 

modification in good faith and attempt to agree upon a 

resolution that is in the best interests of [the child]. If 

either party believes the terms of this Agreement related 

to custody are not in [the child’s] best interest at a future 

time, the parties may discuss negotiation of a modification of custody in good faith and attempt to agree upon a 

resolution that is in the best interests of [the child]. If the 

parties are unable to agree, they shall follow the protocols for Dispute Resolution Regarding Child Custody set 

forth herein.

In turn, paragraph 4.4, entitled “Dispute Resolution 

Regarding Child Custody,” stated that in the event the parties 

were unable “to resolve the dispute through several discussions on their own, they agree to meet with a mutually agreed 
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upon mediator or facilitator, or they will meet with an expert 

in the field of the dispute (physician, teacher, etc.) to gain more 

information and advice.”

But if they were unable to reach an agreement by these 

means, either party could petition a court for relief, with the 

court to apply the “then-governing legal standard to such a 

request for modification of custody”:

In the event the parties are unable to reach an agreement 

through this dispute resolution process, including agreements related to modifications in the physical custody 

schedule as provided in Paragraph 4.1 and 4.2 supra, 

either party may petition a court of competent jurisdiction 

for relief, provided however that any court of competent 

jurisdiction shall apply the then-governing legal standard 

to such a request for modification of custody.

(c) Construction Provisions

The decree did not set forth any other future contingencies relevant to physical custody. In paragraph 14.15, entitled 

“Construction of this Agreement,” it was agreed that because 

both parties and their counsel participated in drafting the 

agreement, no provision shall be interpreted for or against a 

party merely because the party or that party’s legal representative drafted the provision. On appeal, Glen asserts that he was 

not represented by counsel in forming the custody agreement. 

And the decree sets forth on the signature page that Glen represented himself pro se. The signature page demonstrates that 

Meaghann, in contrast, was represented by counsel.

2. Complaint to Modify

In December 2017, Glen filed a complaint to modify the 

decree by awarding the parties joint physical custody of the 

child. A prior complaint to modify filed in February 2017 had 

been dismissed for lack of prosecution in November 2017.

Glen asserted in the complaint that since the time of the 

decree, there had been material changes in circumstances 

warranting modification. As relevant here, Glen specifically 
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alleged as material changes in circumstances the move to 

Omaha, the parties’ incomes, and Meaghann’s failure to abide 

by the decree’s provisions relating to parenting time while the 

child was in daycare or to abide by provisions of joint legal 

custody relating to involving Glen in educational, medical, and 

religious decisions. Further, the complaint alleged that both 

parties’ work schedules had changed, including a significant 

change to Glen’s “prior deployment schedule” as a current 

active duty service member.

Meaghann denied the allegations of material changes in 

circumstances. She alleged that they were all known and taken 

into consideration at the time of the decree. Meaghann alleged 

that she had fully complied with the provisions of the decree 

and that any failure to comply with the parenting plan was 

solely based on Glen’s actions.

The court ordered settlement negotiations or mediation, 

which were unsuccessful, and a modification hearing was held.

3. Modification Hearing

Glen’s attorney argued at the hearing that there was a material change of circumstances and that it was against public 

policy for the custody arrangement set forth in the decree to 

remain in effect. Meaghann’s attorney asserted that nothing had 

changed that was not contemplated by the parties when they 

entered into the custody agreement.

(a) Glen’s Testimony

Glen testified that he received orders on June 9, 2016, to be 

stationed in Omaha. The orders were entered into evidence as 

an exhibit. Glen currently works 8 a.m. to 4:30 p.m., Monday 

through Friday. At the time of the hearing on the motion to 

modify, Glen was 4 months from retirement eligibility and did 

not believe he would be restationed. He has also been under 

deployment limitations for the past year, since March 2018, 

due to a malignant melanoma diagnosis. He is currently in 

remission. Glen was uncertain whether he would choose to 
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retire, explaining that he “love[d] serving the Air Force” and 

would continue to do so if allowed to stay in Omaha, but stating that “[i]f they ask me to move, I will retire.” Glen testified 

that the scope of his responsibilities in his current position in 

the Air Force as a colonel supporting a base wing commander 

is “a lot different” from the position he held before, supporting a four-star general who was the chairman of the Joint 

Chiefs of Staff at the Pentagon. He described that “the level 

of responsibility and time required and flexibility of schedule 

[are] greatly different.”

Since moving to Omaha, Glen has exercised visitation every 

other Friday from 4:30 p.m. until Sunday at 4 p.m., as well 

as every other Wednesday from 4:30 to 6:30 p.m. Except for 

the time outlined in a court order during the pendency of his 

complaint to modify, Glen had not been allowed any parenting 

time for a holiday, including Father’s Day, unless it happened 

to correspond with his scheduled parenting time every other 

weekend and dinnertime every other Wednesday.

Glen admitted that Meaghann has not denied him his 

scheduled parenting time every other weekend or every other 

Wednesday, but testified that she had denied him parenting time 

while the child was in daycare. Glen elaborated that despite his 

requests, during the past year, Meaghann had allowed him to 

visit the child only once while she was in daycare. That visit 

took place at the preschool.

Glen testified that he has not been consulted by Meaghann 

in determining what daycare the child would attend. He was 

concerned with Meaghann’s unilateral decisionmaking on matters over which they had joint legal custody. In fact, other than 

learning where the child went to preschool, he did not know 

how the child was cared for while Meaghann was at work. 

Glen testified that when he inquired, Meaghann told him only 

that the child is “in a safe place.”

Glen testified that he did not contemplate at the time of 

the agreement that he would be spending so little time with 

his child. Meaghann had refused many requests for voluntary 
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extensions of parenting time, and Glen noted that a maximum 

of 2 days in a week did not allow time for him to take the child 

to see out-of-town relatives and that he considered it generally 

insufficient time in which to be the kind of father he wished 

to be.

(b) Meaghann’s Testimony

Meaghann testified that during the workweek, Meaghann’s 

mother provides daycare for the child at Meaghann’s home. 

Two mornings a week, the child is cared for outside the home 

at a preschool program. The child also has weekly activities 

such as music, children’s Bible study, and Spanish lessons. 

Meaghann’s mother provides transportation to and from preschool and activities.

Meaghann testified that she had kept Glen abreast of where 

the child was attending preschool and the details of the preschool curriculum. She also described that she had attempted 

to engage in discussions with Glen about where the child 

should attend preschool. She did not address whether she had 

discussed with Glen or informed Glen of the child’s in-home 

daycare arrangements.

Meaghann testified that she had never done anything to 

prevent Glen from visiting the child while at preschool. Again, 

she did not address whether she had rejected Glen’s requests 

to see the child while being cared for by her mother in 

Meaghann’s home.

Meaghann testified that she had offered to allow Glen to 

have a meal with the child over various Christmas holidays, 

but that he did so only once. Meaghann testified more generally with respect to holidays that she had “no objection to 

[the child’s] seeing [Glen] so long as it’s conducive to her 

development and to her schedule.” Meaghann admitted she 

had rejected Glen’s requests to spend as holiday visitation “an 

extended duration of days out of state.” Meaghann pointed out 

that there had been weekend visitations that Glen had chosen 

to forfeit. She was unsure on what grounds, but believed they 
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were due to “personal vacations.” Meaghann explained that 

she has on occasion offered Glen makeup parenting times.

Meaghann susggested, in the event the court considered 

changing parenting time, adding alternating Tuesdays overnight to the alternating Wednesdays at dinnertime, as well as 

adding holidays and vacation time. Meaghann explained that 

mediation was unsuccessful in part because she considered 

Glen’s requests to, for example, have parenting time so that he 

could spend 7 to 10 days out of the country vacationing with 

their child to be “extreme” in terms of “many components, 

international components, duration.”

4. Order Finding More Visitation Would 

Be in Child’s Best Interests but 

No Change of Circumstances 

Warranting Modification

Following the trial, in August 2019, the court denied the 

relief sought in the complaint for modification, taxing to each 

party his or her own costs and fees. The court found that it 

would be in the best interests of the child to have more visitation time with Glen. Nevertheless, the court found that no 

material change in circumstances had occurred and that “all 

of the matters complained of . . . as a basis for the claim of 

material change in circumstance were within the contemplation of the parties as shown in the separation and property 

settlement agreement which is incorporated into the Decree of 

Dissolution.” The court did not elaborate as to what specific 

facts formed the basis for this conclusion.

Glen filed a motion to alter or amend, asserting he had 

proved a material change in circumstances. The court denied 

the motion and Glen appealed.

5. Appeal to Court of Appeals

Glen’s appeal was initially taken up by the Court of 

Appeals. In his appellate brief, Glen argues that the trial 

court had mistakenly found that under the divorce decree, 

he was required to prove a material change in circumstances 
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in order to obtain a court order changing parenting time. 

Alternatively, Glen argues that he had demonstrated a material 

change in circumstances. Finally, Glen proposes that because 

modification under Neb. Rev. Stat. § 42-364(6) (Reissue 

2016) is governed by the Parenting Act 1 and the Parenting 

Act focuses on the best interests of the child and states that 

the “relationship between the child and each parent should 

be equally considered,” 2 courts, acting in equity, should not 

rigidly adhere to the rule, set forth only in case law, that a 

substantial and material change in circumstances must always 

be shown before modifying custody.

The Court of Appeals held that under the plain language of 

paragraph 4.2 of the agreement incorporated into the decree, 

the parties had agreed that modification of physical custody 

was permissible without a material change in circumstances, so 

long as the modification was in the best interests of the child. 

The Court of Appeals reasoned that these terms, incorporated 

into the foreign decree, had to be given full faith and credit 

under the Full Faith and Credit Clause of U.S. Const. art. IV, 

§ 1; 28 U.S.C. § 1738A (2012); and the Uniform Child Custody 

Jurisdiction and Enforcement Act (UCCJEA). 3 Furthermore, 

the Court of Appeals cited to its opinion in Walters v. Walters 4

for the proposition that we will generally enforce valid stipulations in dissolution decrees, including an agreement that 

physical custody may be modified without showing a material 

change in circumstances, as long as the modification comports 

with a child’s best interests.

Because the Court of Appeals found that the parties had 

stipulated to allow modification in the absence of a material 

1 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 

2018).

2 § 43-2921.

3 Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp. 

2018).

4 Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585 (2004).
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change in circumstances, the Court of Appeals did not decide 

whether a court in equity may grant a motion to modify a custody decree without a material change in circumstances when 

the parties’ agreement incorporated into the decree is silent on 

the question. And because the Court of Appeals found that the 

district court had abused its discretion by requiring that Glen 

prove a material change in circumstances, it did not determine 

whether the district court erred in its determination that there 

had been no material change in circumstances.

Because the district court found it would be in the child’s 

best interests to have more time with Glen, the Court of Appeals 

reversed the order denying modification and remanded the 

cause with directions for the district court to consider the relief 

sought in accordance with the best interests of the child.

We granted Meaghann’s petition for further review.

III. ASSIGNMENTS OF ERROR

Meaghann assigns in her petition for further review that the 

Court of Appeals erred by (1) finding that the parties’ separation and property settlement agreement contained a stipulation 

allowing that a modification of custody or visitation could be 

sought solely on the best interests of the minor child without a 

change in circumstances; (2) finding that Glen was not required 

to prove a material change in circumstances before granting a 

modification of custody or visitation, ignoring Nebraska precedent holding that stipulations are not binding upon courts; (3) 

failing to consider the totality of the testimony adduced at trial; 

and (4) awarding Glen attorney fees on appeal.

In his appeal from the district court’s order denying modification, Glen assigns that (1) the trial court erred in determining he was required to plead and prove a substantial and 

material change in circumstances, (2) the trial court erred 

in determining he failed to prove a substantial and material 

change in circumstances not within the contemplation of the 

parties at the time the original judgment had taken place, (3) 

the trial court erred in failing to determine that child custody 
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modifications should be determined on the basis of the best 

interests of minor children and should have found that the 

original judgment violated the Parenting Act, and (4) administrative dismissal of the first complaint to modify was not a 

decision on the merits.

IV. STANDARD OF REVIEW

[1] The meaning of a divorce decree presents a question of 

law in connection with which we reach a conclusion independent of the determination reached by the court below. 5

[2,3] In an appeal of an equity action, this court tries the 

factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. 6 In a 

review de novo on the record, an appellate court reappraises 

the evidence as presented by the record and reaches its own 

independent conclusions with respect to the matters at issue. 7

When evidence is in conflict, the appellate court considers 

and may give weight to the fact that the trial judge heard and 

observed the witnesses and accepted one version of the facts 

rather than another. 8

[4] 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. 9

V. ANALYSIS

Section 43-1260 provides that a court of this state shall 

accord full faith and credit to an order issued by another 

state and consistent with the UCCJEA which enforces a child 

5 Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).

6 Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991).

7 Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999).

8 Id.

9 State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 

(2015).
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custody determination by a court of another state. Section 

43-1240 provides for jurisdiction to modify a child custody determination made by a court of another state. Section 

42-364(6) sets forth that modification proceedings relating to 

custody, parenting time, and visitation shall be commenced 

by filing a complaint to modify; sets forth that modification 

of a parenting plan is governed by the Parenting Act; and 

describes an initial process of dispute resolution. The Parenting 

Act sets forth that in determining custody and parenting 

arrangements, the court shall consider the best interests of the 

minor child. 10

[5,6] No statute specifically addresses any threshold inquiry 

limiting when a court may consider whether the best interests 

of the minor child warrant modification of a dissolution decree 

in order to effect a change in custody, parenting time, or visitation. We have explained that a decree of divorce, insofar as 

minor children are concerned, is never final in the sense that 

it cannot be changed, but is subject to review at any time in 

the light of changing conditions. 11 The right of parenting time 

is subject to continual review by the court, and a party may 

seek modification of a parenting time order on the grounds that 

there has been a material change in circumstances. 12

[7] We have repeatedly held that prior to the modification 

of a child custody order, two steps of proof must be taken by 

the party seeking the modification. 13 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 

10 § 43-2923.

11 See, Matson v. Matson, 175 Neb. 60, 120 N.W.2d 364 (1963); Grange v. 

Grange, 15 Neb. App. 297, 725 N.W.2d 853 (2006).

12 Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997); Olander 

v. McPhillips, 28 Neb. App. 559, 947 N.W.2d 578 (2020).

13 Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019).
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interests of the child. 14 Second, the party seeking modification 

must prove that changing the child’s custody is in the child’s 

best interests. 15

[8] We have explained that proof of a change of circumstances is not an optional element to a modification proceeding. 16 Proof of a material change of circumstances is the threshold inquiry in a proceeding on a complaint to modify, because 

issues determined in the prior custody order are deemed preclusive in the absence of proof of new facts and circumstances. 17

Furthermore, limiting custody changes to material changes in 

circumstances avoids extensive and repetitive litigation and 

unnecessary, potentially harmful fluctuations in the child’s 

life. 18 A custody order will not be modified absent proof of new 

facts and circumstances arising since it was entered. 19

This is the governing legal standard for a request for modification of custody in Nebraska. The foreign decree governing 

custody and parenting time for the child provides that in the 

event Glen and Meaghann are unable to reach an agreement 

through the dispute resolution process set forth in the decree, 

including agreement related to modifications in the physical 

custody schedule, “either party may petition a court of competent jurisdiction for relief, provided however that any court 

of competent jurisdiction shall apply the then-governing legal 

standard to such a request for modification of custody.”

[9] A decree is a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement 

agreement incorporated therein, is determined as a matter of 

law from the four corners of the decree itself. 20 It is inherent 

14 Id.

15 See id.

16 Id.

17 See id.

18 Id.

19 Id.

20 Bayne v. Bayne, supra note 5.
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to a judgment’s finality that all are bound by the original 

language used, and all ought to interpret the language the 

same way. 21

[10] Even when our determination involves “interpretation” 

of the judgment or decree, its meaning is determined, as a matter of law, by its contents. 22 Unlike disputes over the meaning 

of an ambiguous contract, the parties’ subjective interpretations 

and intentions are wholly irrelevant to a court’s declaration, as 

a matter of law, as to the meaning of an ambiguous decree. 23

The meaning of a decree must be determined from all parts 

thereof, read in its entirety, and must be construed as a whole 

so as to give effect to every word and part, if possible, and 

bring all of its parts into harmony as far as this can be done 

by fair and reasonable interpretation. 24 Effect must be given to 

every part thereof, including such effect and consequences that 

follow the necessary legal implication of its terms, although 

not expressed. 25

While the agreement that was incorporated into the decree 

provided in paragraph 4.2 that “[u]pon a material and significant change in circumstance of either party, or in the needs or 

interests of [the child], either party may request a modification to the physical custody of [the child],” under its plain 

language, this provision governs only Glen’s and Meaghann’s 

obligations to engage in dispute resolution, including mediation, in order to attempt in good faith to reach an agreement 

on modifying their custody arrangement. (Emphasis supplied.) 

It did not purport to set forth the legal standard under which a 

court of law could adjudicate a complaint to modify.

Rather, under paragraph 4.4, if such dispute resolution 

procedures fail to result in an agreement, modification is a 

21 Id.

22 Id.

23 Id.

24 Id.

25 Id.
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matter for the courts. In that eventuality, the agreement simply 

states that “any court of competent jurisdiction shall apply the 

then-governing legal standard to such a request for modification of custody.” The agreement incorporated into the decree 

did not set forth that the threshold inquiry for modification by 

the court in such circumstances was a “significant change in 

circumstance . . . or in the needs or interests of [the child],” 

and it did not describe that only the terms of the agreement incorporated into the decree constitute the “governing 

legal standard.”

Construing the decree as a whole, giving effect to every 

word and part, the “then-governing legal standard” that the 

decree refers to does not purport, as the Court of Appeals 

concluded, to expand a court’s ability to modify custody by 

eliminating the threshold requirement of a material change in 

circumstances. The provision referring to a significant change 

in circumstances or the needs or interests of the child is merely 

the standard governing when either party “may request a 

modification to the physical custody of [the child],” which “the 

parties will discuss” and will mediate in event such discussion 

is unfruitful.

We disagree with the Court of Appeals that these provisions setting forth the threshold standard for discussion and 

mediation should be construed under the decree as the “thengoverning legal standard” a court must follow when the parties 

“petition a court . . . for relief” after other dispute resolution 

procedures have failed to result in an agreement. The Court of 

Appeals erred in concluding that the district court was bound 

by the terms of the decree to allow modification absent a material change in circumstances, so long as the modification was 

in the child’s best interests.

We thus find merit to Meaghann’s first assignment of error 

in her petition for further review. And we thus find no merit 

to Glen’s assignment that the trial court erred in determining 

he was required to plead and prove a substantial and material 

change in circumstances. He was required to do so.
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That said, we find merit to Glen’s assignment on appeal that 

the district court erred in finding no material change in circumstances, and therefore, we agree with the Court of Appeals’ 

ultimate mandate that the matter be remanded with directions 

for the district court to consider how to modify the custody 

provisions of the decree. In our de novo review, we find that 

Meaghann’s unwillingness to permit Glen’s parenting time 

while the child is in daycare and changes in Glen’s employment together constitute a material change in circumstances 

since the entry of the decree.

[11,12] Material change in circumstances eludes precise and 

concise definition. 26 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, 

would have persuaded the court to decree differently. 27

[13,14] If a permanent, as opposed to temporary, order 

changing custody is to be made, it should appear to the court 

that the change of circumstances is more or less permanent or 

continuous and not merely transitory or temporary. 28 Where 

the party seeking modification advances multiple reasons for 

modification, we do not consider whether each individual factor standing alone constitutes a material change; we instead 

consider all the facts and circumstances raised by the evidence 

to determine whether there has been a material change. 29

Several facts and circumstances raised in the complaint to 

modify have arisen since the decree that were neither actually 

nor necessarily adjudicated therein. Considering these facts and 

circumstances together, there has been a material change.

26 Hall v. Hall, supra note 6.

27 Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020); Eric H. v. Ashley 

H., supra note 13.

28 See Hoschar v. Hoschar, 220 Neb. 913, 374 N.W.2d 64 (1985), disapproved 

on other grounds, Parker v. Parker, 234 Neb. 167, 449 N.W.2d 553 

(1989).

29 See Grange v. Grange, supra note 11.
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First, we find relevant the evidence presented in this case 

concerning Glen’s inability to visit the child while she is 

in daycare with her maternal grandmother in Meaghann’s 

home. Glen testified that Meaghann had kept him from visiting the child while the child was in daycare outside of preschool; he was simply told the child was “in a safe place.” 

Meaghann’s testimony did not specifically refute Glen’s testimony in this regard. One parent’s denial of the other parent’s 

rights to parenting time may constitute a material change in 

circumstances. 30

The decree set forth that Glen was able to visit the child on 

occasion while she was in daycare, so long as, among other 

things, the visits did not take place in Meaghann’s home. While 

the decree did not allow Glen to exercise daycare visits at 

Meaghann’s home, the decree did not specifically contemplate 

that the child would be in daycare at Meaghann’s home after 

July 31, 2016. Further, Glen testified that the decision as to 

who was to provide daycare and where it was to take place was 

made by Meaghann without discussing it with him. Moreover, 

the decree’s provision for Glen’s visitation “while [the child] 

is in work-related daycare” does not necessarily exclude the 

visitation’s occurring outside of the daycare facilities.

According to Glen’s testimony, Meaghann unilaterally 

determined that the child would be in preschool—the only 

place where she had permitted Glen daycare visitation—only 

two mornings per week at a time Glen was at work. While 

Meaghann described some discussions with Glen regarding a 

different preschool, the evidence does not suggest that Glen 

agreed that the child should be in out-of-home care only two 

mornings per week.

We recognize that the decree set forth that Glen’s daycare 

visits were to occur “occasion[ally],” but they were nevertheless a significant source of potential parenting time given 

30 See Hibbard v. Hibbard, 230 Neb. 364, 431 N.W.2d 637 (1988). See, also, 

e.g., Annot., 102 A.L.R.6th 153 (2015); 40 Causes of Action 2d 241, § 4 

(2009).
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the limited visitation schedule of every other weekend and 

every other Wednesday at dinnertime and the absence of any 

provision for holidays or vacations. We thus find that the current obstacles to visitation with the child while in daycare during Meaghann’s work hours is a circumstance occurring after 

the decree that, had it been known to the dissolution court at 

the time of the initial decree, would have persuaded the court 

to allocate Glen’s parenting time differently.

Second, Glen, due to both his health restrictions resulting from a malignant melanoma diagnosis and his upcoming 

retirement eligibility, is not subject to the same deployments 

he was subject to at the time of the decree. Glen also indicated 

that his new work responsibilities allow him more flexibility 

than he had previously. From the testimony presented, it does 

not appear that at the time of the decree, Glen knew what 

precisely his job would entail in Omaha if he were able to be 

transferred there; and, regardless, future changes in job stability and flexibility were not contemplated in the decree. The 

increased stability and availability surrounding Glen’s new 

position are relevant and can be considered in conjunction with 

the other relevant facts already discussed. A significant change 

in a party’s work schedule is a pertinent factor in determining 

whether there has been a material change of circumstances that 

would support a change in parenting time. 31

In an appeal of an equity action, this court tries the factual 

questions de novo on the record and reaches a conclusion 

independent of the findings of the trial court. 32 In a review de 

novo on the record, an appellate court reappraises the evidence 

as presented by the record and reaches its own independent 

conclusions with respect to the matters at issue. 33 When evidence is in conflict, the appellate court considers and may give 

weight to the fact that the trial judge heard and observed the 

31 See Grange v. Grange, supra note 11.

32 Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020).

33 Rauch v. Rauch, supra note 7.
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witnesses and accepted one version of the facts rather than 

another. 34 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. 35

In our de novo review, we find there was a material change 

in circumstances. Glen has demonstrated that he has a more 

predictable schedule and increased availability since the parties entered into the parenting time agreement. Yet, at the same 

time, Glen has been unable to fully exercise even the limited 

parenting time expressly contemplated in the decree.

The facts of this case are similar to those presented in 

Grange v. Grange,

 36 wherein the Court of Appeals held that 

the district court erred by failing to find the mother’s change 

in her work schedule due to the completion of her medical 

residency, the young child’s request to spend more time with 

the mother, and the father’s refusal to voluntarily accede to the 

mother’s request for more parenting time were, when considered together, sufficient to satisfy the mother’s burden of demonstrating a material change in circumstances.

Here, the district court did not make specific findings regarding the alleged facts relevant to whether there was a change in 

circumstances. If findings are not made, this court can make 

little application of our general rule that in our de novo review, 

we consider, and may give weight to, the fact that the trial 

court saw and heard the witnesses. 37 But, to the extent there 

was a conflict in the evidence, it does not appear that the district court found Meaghann more credible than Glen.

[15,16] Rather, it appears that the court mistakenly found the 

changes in facts and circumstances alleged in Glen’s motion 

to modify were foreseen by the parties at the time of the 

34 Id.

35 State on behalf of Jakai C. v. Tiffany M., supra note 9.

36 See Grange v. Grange, supra note 11.

37 See Parker v. Parker, supra note 28.
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original decree and therefore were necessarily included in the 

decree. A dissolution decree is conclusive in any future action 

between the parties only as to the facts that were directly in 

issue and actually or necessarily determined therein. 38 A dissolution decree is not considered conclusive as to questions 

that might have been, but were not, litigated in the original 

action. 39 The facts and circumstances discussed above were 

not necessarily included in the decree. To the extent the court 

determined otherwise, it abused its discretion.

[17,18] The district court found that it was in the child’s best 

interests to have more parenting time with Glen. Meaghann 

did not cross-appeal the district court’s specific finding that a 

change in parenting time would be in the child’s best interests. 

An appellee’s argument that a lower court’s decision should 

be upheld on grounds specifically rejected below constitutes 

a request for affirmative relief, and the appellee must crossappeal in order for that argument to be considered. 40 An appellee may not raise arguments independent of or not responsive 

to an appellant’s assignments of error without cross-appealing 

because they will fall beyond the scope of the case as presented 

in the appellant’s brief. 41

Thus, albeit for different reasons, we agree with the Court 

of Appeals that under our applicable standard of review, the 

district court abused its discretion, and that the cause should be 

remanded for the court to reconsider the relief sought by Glen 

in accordance with the best interests of the child.

38 See, Buhrmann v. Buhrmann, 231 Neb. 831, 438 N.W.2d 481 (1989); 27A 

C.J.S. Divorce § 443 (2016). See, also, DeVaux v. DeVaux, 245 Neb. 611, 

514 N.W.2d 640 (1994) (superseded by statute on other grounds as stated 

in Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020)); Fichtl v. 

Fichtl, 28 Neb. App. 380, 944 N.W.2d 516 (2020).

39 Buhrmann v. Buhrmann, supra note 38; 27A C.J.S., supra note 38.

40 Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 

(2002).

41 Workman v. Workman, 262 Neb. 373, 632 N.W.2d 286 (2001).
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Having found in Glen’s favor on appeal, we find no merit 

to Meaghann’s assignment in her brief in support of further 

review that the Court of Appeals erred in granting him attorney fees.

We need not address Glen’s remaining assignment asserting 

that the trial court erred in failing to determine child custody 

modifications should be determined on the basis of the best 

interests of minor children and that it should have found the 

original judgment violated the Parenting Act.

Glen’s assertion in his assignments of error section that 

administrative dismissal of the first complaint to modify was 

not a decision on the merits preventing him from filing the 

complaint to modify here at issue is not, in fact, an assignment 

of error.

Having determined that the decree did not purport to impose 

a different material change of circumstances standard upon our 

courts, we do not address Meaghann’s assignment of error that 

a stipulation changing the threshold inquiry for modification 

would not be binding.

Finally, having reviewed the record in this case de novo 

and, further, observing that the Court of Appeals did not determine the question of whether there was a material change of 

circumstances, we find immaterial Meaghann’s assignment of 

error that the Court of Appeals failed to consider the totality of the evidence presented at the hearing on the complaint 

to modify.

VI. CONCLUSION

We affirm on different grounds the Court of Appeals’ decision reversing the judgment of the district court and remanding 

the cause with directions.

Affirmed.