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WINKLER V. WINKLE

Cite as 31 Neb. App. 162

Justin J. Winkler, appellant, v. 

Crystal R. Winkler, now known as 

Crystal R. Werner, appellee.

___ N.W.2d ___

Filed July 5, 2022. No. A-21-467.

1. Modification of Decree: Child Custody: Visitation: Child Support: 

Appeal and Error. 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 by an appellate court de 

novo on the record, and will be affirmed absent an abuse of discretion.

2. Child Custody: Appeal and Error. In child custody cases, where the 

credible evidence is in conflict on a material issue of fact, 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.

3. Modification of Decree: Child Custody: Proof. Modifying a custody 

or parenting time order requires two steps of proof. 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 that affects the best interests of the child.

Second, the party seeking modification must prove that changing the 

child’s custody or parenting time is in the child’s best interests.

4. ____: ____: ____. Proof of a material change in 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.

5. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing 

that the custodial parent is unfit or that the best interests of the child 

require such action.

6. Modification of Decree: Words and Phrases. A material change in 

circumstances means the occurrence of something which, had it been 

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WINKLER V. WINKLE

Cite as 31 Neb. App. 162

known to the dissolution court at the time of the initial decree, would 

have persuaded the court to decree differently.

7. Visitation: Appeal and Error. Parenting time 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.

8. Visitation. The best interests of the children are the primary and paramount considerations in determining and modifying parenting time.

9. ____. 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.

10. Modification of Decree: Child Support: Proof. A party seeking to 

modify a child support order must show a material change in circumstances which (1) occurred subsequent to the entry of the original decree 

or previous modification and (2) was not contemplated when the decree 

was entered.

11. Modification of Decree: Child Support: Alimony: Good Cause.

Material change in circumstances in reference to modification of child 

support is analogous to modification of alimony for good cause.

12. Modification of Decree: Child Support. Among the factors to be considered in determining whether a material change of circumstances has 

occurred are changes in the financial position of the parent obligated to 

pay support, the needs of the children for whom support is paid, good 

or bad faith motive of the obligated parent in sustaining a reduction 

in income, and whether the change is temporary or permanent. But, 

the paramount concern in child support cases, whether in the original 

proceeding or subsequent modification, remains the best interests of 

the child.

13. Attorney Fees. Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

14. ____. Customarily, attorney fees are awarded only to prevailing parties 

or assessed against those who file frivolous suits.

15. Divorce: Attorney Fees. A uniform course of procedure exists in 

Nebraska for the award of attorney fees in dissolution cases.

Appeal from the District Court for Phelps County: Stephen 

R. Illingworth, Judge. Affirmed.

Jaclyn N. Daake, of Duncan, Walker, Schenker & Daake, 

P.C., L.L.O., for appellant.
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WINKLER V. WINKLE

Cite as 31 Neb. App. 162

Nicole M. Mailahn and Allison R. Seiler, of Jacobsen, Orr, 

Lindstrom & Holbrook, P.C., L.L.O., for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Justin J. Winkler appeals from an order of the district court 

for Phelps County overruling his request to modify primary 

physical custody of two children born to the now dissolved 

marriage between Justin and Crystal R. Winkler, now known 

as Crystal R. Werner. Justin also challenges the court’s order 

increasing his child support obligation and awarding Crystal 

a portion of her attorney fees. For the reasons that follow, 

we affirm.

BACKGROUND

Justin and Crystal were married in March 2010, and there 

were two children born to the marriage: a daughter born in 

2011 and a son born in 2013. Justin and Crystal divorced 

pursuant to a decree of dissolution entered in October 2018. 

The 2018 decree awarded the parties joint legal custody of the 

children, and Crystal was awarded primary physical custody 

subject to Justin’s parenting time as set forth in an attached 

parenting plan. Justin was also ordered to pay $684 per 

month in child support and to maintain health insurance for 

both children.

Under the 2018 parenting plan, Justin’s parenting time 

included every other weekend, specified holidays, and 6 weeks 

during the summer. The plan further provided that “Mother and 

Father understand that the needs of the child(ren) may change 

as the child(ren) get(s) older and Mother and Father will interpret and apply this Plan in a way that best serves any changing 

needs of the child(ren).” The plan also provided that “Mother 

and Father can temporarily change the terms of this Plan as 

long as they both agree to it.”
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WINKLER V. WINKLE

Cite as 31 Neb. App. 162

In October 2019, Justin filed a complaint to modify custody, 

parenting time, and child support. The complaint alleged that 

there had been a material change in circumstances since the 

entry of the 2018 decree, to wit: Justin exercised parenting 

time beyond that outlined in the prior parenting plan; Crystal 

relocated, “causing an unstable living situation for the minor 

children”; Crystal was “romantically involved with an individual who is a major safety concern”; Crystal “continually 

failed to meet the financial and support obligations for the 

minor children”; and Justin began carrying both children on his 

health insurance plan.

In January 2020, Crystal filed an amended answer and counterclaim, denying the pertinent allegations in Justin’s complaint 

and seeking an upward modification of Justin’s child support. 

Crystal also requested that she be awarded reasonable attorney 

fees and costs. Justin answered Crystal’s counterclaim by denying the allegations therein.

A final hearing on the complaint and counterclaim was 

held in February 2021, after which the court entered an order 

finding that Justin had failed to prove a material change in 

circumstances justifying modification of physical custody. The 

court nevertheless modified the 2018 parenting plan to provide 

Justin with 8 weeks of summer parenting time, as opposed to 

the original 6 weeks. The court also recalculated Justin’s child 

support obligation and ordered him to pay $5,000 of Crystal’s 

attorney fees. Justin now appeals.

ASSIGNMENTS OF ERROR

Justin assigns, restated, that the district court erred in (1) 

finding that Justin failed to meet his burden to prove a material 

change in circumstances justifying modification of physical 

custody, (2) increasing Justin’s child support obligation, and 

(3) ordering Justin to pay a portion of Crystal’s attorney fees.

STANDARD OF REVIEW

[1] Modification of a judgment or decree relating to child 

custody, visitation, or support is a matter entrusted to the 
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discretion of the trial court, whose order is reviewed by an 

appellate court de novo on the record, and will be affirmed 

absent an abuse of discretion. Lindblad v. Lindblad, 309 Neb. 

776, 962 N.W.2d 545 (2021).

[2] In child custody cases, where the credible evidence is in 

conflict on a material issue of fact, 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. Eric H. v. Ashley H., 302 Neb. 786, 

925 N.W.2d 81 (2019).

ANALYSIS

Modification of Physical Custody.

[3,4] Modifying a custody or parenting time order requires 

two steps of proof. Lindblad v. Lindblad, 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 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. Proof of a material 

change in 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. Id. Accordingly, we 

first examine whether the court abused its discretion in finding 

that Justin failed to prove a material change in circumstances 

affecting the best interests of the children.

[5,6] 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). A material change in circumstances means the occurrence of something which, had it been 

known to the dissolution court at the time of the initial decree, 

would have persuaded the court to decree differently. Id.
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WINKLER V. WINKLE

Cite as 31 Neb. App. 162

In this case, Justin raised a number of grievances ranging 

from Crystal’s choice of romantic partners and her tumultuous 

financial circumstances to the fact that the children have often 

shared a bedroom while in Crystal’s care. However, there is 

nothing in the record showing a material change in circumstances that would render Crystal as unfit or that would prove 

the best interests of the children require that Justin be awarded 

primary physical custody. In fact, Justin seemed to acknowledge that the children were more or less “happy” and “well 

adjusted” under the current custody arrangement. Moreover, 

both parties testified that they have generally been able to 

communicate well and cooperate with regard to parenting matters. Indeed, the parties have frequently agreed to temporarily 

alter the terms of the 2018 parenting plan, ultimately resulting 

in the parties’ exercising nearly equal parenting time since the 

2018 decree. Even on appeal, Justin emphasizes that he has had 

“little to no issues communicating effectively with [Crystal] to 

co‐parent and share legal custody since the time of their separation.” Brief for appellant at 16

Despite what appears to be a harmonious and cooperative 

arrangement, Justin argues that “the record is replete with 

evidence that material changes regarding the stability, safety, 

and well‐being of the parties’ children have occurred since the

time of the decree.” Id. at 12. Justin then identifies a number 

of events that occurred subsequent to the 2018 decree and 

argues that “[t]he culmination of each of these changes adds up 

to materially affecting the children in this action and certainly 

constitutes a material change in circumstances.” Id. at 15.

First, Justin points to two of Crystal’s former romantic 

partners, Jeremy Johnson and Tyler Stutheit. With regard to 

Johnson, the record shows that Crystal moved in with him 

in mid‐ to late November 2018. She continued to live with

Johnson until she broke up with him following “an altercation” in March 2019. Crystal explained that Johnson was upset 

about something and began raising his voice and throwing 

things around the room. While Johnson never harmed Crystal, 
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Cite as 31 Neb. App. 162

she testified that it was a “scary situation,” and she added that 

“[t]hat was the first time I was ever scared of him.” Crystal 

indicated that Johnson had exhibited some “controlling or possessive” behavior prior to that night, but that she had never 

before witnessed the sort of violent behavior he exhibited 

that night. The children were not present for the incident, and 

Crystal ended the relationship immediately thereafter.

With regard to Stutheit, the record shows that Crystal dated 

him from approximately June to November 2019. Crystal testified that she was aware Stutheit had a criminal record and that 

she understood it to be related to “a mutual confrontation that 

resulted in a criminal arrest.” Crystal denied that there was ever 

any form of domestic dispute between her and Stutheit. Crystal 

introduced Stutheit to the children on one occasion; however, 

she broke up with Stutheit shortly thereafter because “Justin 

had an issue with him . . . even though he never brought it up 

to me personally.” Rather, Crystal inferred that Stutheit might 

be an issue for Justin in light of the allegations Justin raised in 

his complaint regarding Crystal’s romantic relationships.

The district court found that Crystal’s relationships with 

Johnson and Stutheit were not a basis to modify custody, 

as Crystal had handled those relationships appropriately. We 

agree. There was no evidence that the children were ever 

exposed to any form of domestic violence. In fact, the record 

is largely devoid of evidence as to how Crystal’s romantic 

relationships may or may not have impacted the best interests 

of the children. General grievances about a custodial parent’s 

choice of romantic partners, standing alone, are not a basis to 

modify a custody order.

Justin also points to Crystal’s living arrangements since 

the 2018 decree, and he highlights the fact that the children 

have often shared a room while in Crystal’s care. The record 

shows that Crystal initially resided in a three‐bedroom apartment after she and Justin separated in 2016. Crystal and the

children resided in that apartment for approximately 21⁄2 years, 

until they moved in with Johnson in November 2018. After 
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the March 2019 incident with Johnson, Crystal moved in 

with her friend, Lindsey Britton, until Crystal could get back 

on her feet. Crystal testified that she lived with Britton until 

November 1, 2019, at which point she and the children moved 

into a two‐bedroom house where they continued to reside at the

time of the final hearing.

Crystal testified that the children initially each had their 

own room in the three‐bedroom apartment, but they eventually

began sharing one room for sleeping and used the third room 

as a play room. Crystal testified that the children continued to 

share a room at each subsequent residence; however, she did 

not recall Justin’s ever expressing any concern with regard 

to that arrangement. Crystal further testified that the children 

always got along great and that there had never been any issues 

with them sharing a room. Nevertheless, Crystal acknowledged 

that the children would need their own rooms eventually, and 

she expressed her intention to move into a bigger house once 

that was feasible.

Justin also points to what he described as a “kind of a 

rough situation” while Crystal was residing with Britton. Justin 

testified that Britton reached out to him after Crystal moved 

out, expressing various complaints about Crystal’s time there. 

Specifically, Britton claimed that Crystal still owed her money 

for rent and other living expenses, as well as some cleaning 

expenses incurred as a result of Crystal and the children’s living there. Crystal, on the other hand, testified that she paid 

Britton in full prior to moving out of that house. Crystal testified that Britton did not expect her to pay anything for the first 

couple months after moving out of Johnson’s house, but that 

Crystal eventually began paying rent and contributing to utilities. Crystal further testified that she later helped Britton move 

out of that house, at which time she also helped Britton clean 

the house. Indeed, Justin also recalled that Crystal eventually 

“made square” with Britton and returned to help clean the 

house when Britton moved out.
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Furthermore, as it relates to Crystal’s living arrangements, 

Justin points to the fact that Crystal and the children “are currently in violation of lease [sic] agreement by having pets.” 

Brief for appellant at 15. Crystal confirmed that the lease to 

her current two‐bedroom house does not allow pets and that

mevertheless, there are two cats living with Crystal and the 

children in that house. However, Crystal argues on appeal 

that her “landlord is aware that she has the cats and has never 

raised it as a matter of concern.” Brief for appellee at 21. In 

any case, the evidence regarding Crystal’s living arrangements 

does not amount to a material change in circumstances justifying modification of physical custody. Once again, the record is 

largely devoid of evidence demonstrating how Crystal’s various living arrangements actually impacted the best interests of 

the children.

Justin also points generally to Crystal’s financial difficulties since the 2018 decree. Crystal acknowledged her financial 

difficulties, including the failure to make car payments that 

resulted in the repossession of her vehicle. However, the record 

shows that Crystal has been gainfully employed at all times 

since the 2018 decree, and Crystal emphasized that she has 

always been able to provide for the children’s needs. Indeed, 

Justin admitted that the children have always been properly 

fed, clothed, and sheltered while in Crystal’s care. The district 

court found that Crystal “has persevered despite financial difficulties” and “has shown good character and still provided for 

her children.” Under the circumstances of this case, Crystal’s 

financial difficulties do not amount to a material change in circumstances justifying modification of physical custody.

Justin ultimately argues that he “can provide, and has provided, a stable living environment with extensive family support.” Brief for appellant at 15. We have no reason to doubt 

that this is true, but the fact that the children could arguably 

achieve similar or even somewhat greater stability if Justin had 

primary physical custody is not a basis to modify an existing 

custody order. In the end, the court found that “both parties are 
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good parents but that there has not been a material change in 

circumstances warranting a modification of physical custody.” 

Upon our de novo review of the record, we cannot say this was 

an abuse of discretion, and we affirm the court’s finding that 

Justin failed to carry his burden to prove a material change in 

circumstances justifying modification of physical custody.

Modification of Parenting Plan.

While the district court found that modification of physical custody was not warranted, it nevertheless modified the 

parenting plan to provide Justin with an additional 2 weeks of 

summer parenting time. Justin argues this created an untenable result on the grounds that the court cannot simultaneously 

modify parenting time and find that Justin failed to prove a 

material change in circumstances justifying modification of 

physical custody. Crystal counters that the court’s modification 

was proper in light of the court’s independent responsibility 

to ensure every parenting plan is in the best interests of the 

children. Moreover, Crystal points out that the modification 

“merely formalizes the Parties’ informal agreement” regarding 

summer parenting time. Brief for appellee at 23.

[7‐9] Parenting time 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. 

Olander v. McPhillips, 28 Neb. App. 559, 947 N.W.2d 578 

(2020). The best interests of the children are the primary and 

paramount considerations in determining and modifying parenting time. Id. 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. Id.

Under the circumstances of this case, we cannot say it was 

an abuse of discretion to modify the parenting plan to provide Justin with an additional 2 weeks of summer parenting 

time. While the court did not specifically identify the material 
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change in circumstances justifying the modification of parenting time, the parties had previously agreed to informally alter 

the terms of the parenting plan to provide Justin with additional 

parenting time in the summer. At oral argument, the parties 

reiterated that the additional summer parenting time reflected a 

mutual agreement, and neither party indicated that the court’s 

modification of parenting time was not in the best interests of 

the children. Accordingly, we conclude the court acted within 

its discretion to modify the parenting plan so as to reflect the 

present circumstances of the parties.

Modification of Child Support.

For purposes of the 2018 decree, the parties stipulated that 

Justin’s monthly income was $4,000. Because the parties simply agreed to that figure, there was no evidence as to the source 

of Justin’s income. In this case, Justin testified that he earned a 

monthly salary of $4,000 from Winkler, Inc., which is consist

ent with the stipulation in the 2018 decree. Justin also testified 

to a number of “in‐kind” benefits and other forms of income

that were not accounted for in the $4,000 monthly paycheck 

from Winkler, Inc. For example, the district court specifically noted that Justin resides rent free in a home provided by 

Winkler, Inc., and he receives nonmonetary compensation from 

Winkler, Inc., in the form of calves to sell, a fuel card, and a 

side of beef each year.

While the court mentioned these additional benefits in its 

final order, it did not assign them a monetary value for purposes of incorporating them in Justin’s total monthly income. 

Rather, the court relied upon Justin’s 2018 and 2019 tax returns, 

in conjunction with Justin’s testimony regarding what his 2020 

tax return would reflect, to determine that Justin earned an 

average yearly income of $54,000. Dividing this number by 

12 reveals the basis for the court’s imputing to Justin a total 

monthly income of $4,500.

[10‐12] A party seeking to modify a child support order must

show a material change in circumstances which (1) occurred 
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subsequent to the entry of the original decree or previous 

modification and (2) was not contemplated when the decree 

was entered. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 

551 (2009). The Nebraska Supreme Court has said that a material change in circumstances in reference to modification of 

child support is analogous to modification of alimony for good 

cause. Id. Among the factors to be considered in determining 

whether a material change of circumstances has occurred are 

changes in the financial position of the parent obligated to pay 

support, the needs of the children for whom support is paid, 

good or bad faith motive of the obligated parent in sustaining 

a reduction in income, and whether the change is temporary 

or permanent. Id. But, the paramount concern in child support 

cases, whether in the original proceeding or subsequent modification, remains the best interests of the child. Id.

On appeal, Justin argues that the district court abused its 

discretion because there had not been a material change in 

circumstances occurring subsequent to the entry of the 2018 

decree. Justin emphasizes that all of the nonmonetary compensation discussed above “existed at the time of the decree and 

for many years prior.” Reply brief for appellant at 5. It is true 

that Justin was apparently receiving the calves to sell and the 

side of beef both before and after the 2018 decree. The record 

is less clear with regard to the rent‐free residence and the fuel

card; however, at oral argument, Crystal’s counsel seemed to 

concede that Justin’s financial circumstances had not actually 

changed since the entry of the 2018 decree. Rather, it appears 

that the evidence in this case simply reflects a more accurate 

accounting of Justin’s income than was stipulated to in the 

2018 decree.

Nevertheless, we cannot say it was an abuse of discretion 

to modify Justin’s child support obligation under the circumstances of this case. While the evidence suggests that Justin’s 

actual monthly income remained more or less unchanged, 

Justin’s own child support calculation proposed that his obligation be calculated from a total monthly income of $4,300 as 
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opposed to the $4,000 figure used in the 2018 decree. Justin’s 

proposed child support calculation also included a $172 deduction for retirement contributions which he testified that he 

was not making. Moreover, the 2018 child support calculation 

included a $416 credit for costs associated with the children’s 

health insurance, and Justin testified that he is no longer faced 

with those costs.

If the court had simply adopted Justin’s proposed child 

support calculation, even including the $172 deduction for 

retirement contributions that he was not making, the resulting 

obligation would have been $770 per month. Excluding the 

$172 deduction for retirement contributions and using Justin’s 

proposed monthly income of $4,300, Justin’s modified obligation would have been $782 per month. In either case, Justin’s 

proposed child support calculation results in an increase of 

more than 10 percent from the stipulated obligation of $684 

per month, thus creating a rebuttable presumption of a material 

change in circumstances justifying modification. The district 

court ultimately recalculated Justin’s child support obligation 

using his average monthly income from 2018 to 2020, resulting in a modified obligation of $794 per month. Altogether, 

we cannot say this was an abuse of discretion, and we affirm 

the district court’s upward modification of Justin’s child support obligation.

Attorney Fees.

[13‐15] Attorney fees and expenses may be recovered only

where provided for by statute or when a recognized and 

accepted uniform course of procedure has been to allow recovery of attorney fees. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 

626 (2014). Customarily, attorney fees are awarded only to 

prevailing parties or assessed against those who file frivolous 

suits. Id. A uniform course of procedure exists in Nebraska for 

the award of attorney fees in dissolution cases. Id.

In this case, the court ordered Justin to pay $5,000 of 

Crystal’s attorney fees. The court observed that Crystal 
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prevailed on the issues of custody and child support and noted 

the relative economic circumstances of the parties. We cannot 

say this was an abuse of discretion, and we affirm the court’s 

order that Justin pay $5,000 of Crystal’s attorney fees.

CONCLUSION

For the foregoing reasons, we conclude the record fails to 

demonstrate an abuse of discretion in any respect. Accordingly, 

the order of the district court is affirmed.

Affirmed.