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303 Nebraska Report

VanSKIVER v. VanSKIV

Cite as 303 Neb. 664

Anne E. VanSkiver, appell

Todd J. VanSkiver, appel

___ N.W.2d ___

Filed July 12, 2019. No. S-18-852.

1. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, 

whose order is reviewed de novo on the record, and which will be 

affirmed absent an abuse of discretion by the trial court.

2. Modification of Decree: Visitation. Visitation rights established by a 

marital dissolution decree may be modified upon a showing of a material change of circumstances affecting the best interests of the children.

3. Modification of Decree: Words and Phrases. 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.

4. Modification of Decree: Visitation: Proof. The party seeking to modify visitation has the burden to show a material change in circumstances 

affecting the best interests of the child.

5. Modification of Decree: Visitation. The best interests of the children 

are primary and paramount considerations in determining and modifying 

visitation rights.

6. Courts: Child Custody: Visitation. Under Nebraska law, the court is 

responsible for developing and approving a parenting plan, and it has 

a nondelegable duty to determine questions of custody and parenting 

time of minor children according to their best interests. The authority 

to determine custody and visitation cannot be delegated to a third party, 

because it is a judicial function.

Appeal from the District Court for Adams County: Steph

R. Illingworth, Judge. Affirmed as modifi

Nebraska Supreme Court Online Library

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

09/18/2019 01:11 AM CDT
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VanSKIVER v. VanSKIV

Cite as 303 Neb. 664

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., 

for appellant.

Lucinda Cordes Glen for appellee.

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

Papik, and Freudenberg, J

Stacy, 

The marriage of Anne E. VanSkiver and Todd J. VanSkiver 

was dissolved in April 2015. Anne was granted legal and 

physical custody of the parties’ two minor children, subject to 

a parenting plan agreed to by the parties and approved by the 

court. In July 2017, Anne moved to modify and suspend Todd’s 

parenting time pending family therapy, alleging that his erratic 

and threatening behavior had escalated and that the children 

were frightened of him. The district court did not order family therapy, but did modify the parenting plan. Todd filed this 

timely appeal. We affirm as modified.

FACTS

Anne and Todd married in 2000, and in October 2009, 

she filed a complaint to dissolve the marriage. After years of 

contentious litigation, the parties reached a settlement agreement and the marriage was dissolved in April 2015. Anne was 

awarded legal and physical custody of the parties’ two minor 

children, and Todd was awarded parenting time pursuant to an 

agreed-upon parenting plan. Under the plan, Todd had parenting time every Monday and Wednesday evening from 5:30 to 

7:30 and the second weekend of every month from 5:30 p.m. 

on Friday until 5:30 p.m. on Sunday. The plan also set forth a 

rotating holiday parenting time schedule.

In July 2017, Anne sought to modify Todd’s parenting 

time, asking that it be suspended pending family therapy. She 

alleged that since the entry of the decree, Todd had “become 

increasingly angry, threatening, harassing, and erratic” to her, 
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VanSKIVER v. VanSKIV

Cite as 303 Neb. 664

the children, and others. She alleged that she had obtained a 

protection order against Todd due to this new behavior, that 

he had violated the protection order, and that the children 

“fear[ed] for their safety” when they were with Todd. She 

asked that Todd’s parenting time be modified in an appropriate manner and suspended until the children were comfortable 

with him after family therapy. Todd’s answer denied Anne’s 

allegations and alleged that no material change in circumstances had occurred.

Trial on the complaint to modify was held May 2, 2018. 

Anne testified that she obtained a protection order against 

Todd on May 25, 2017, based on threats he made to her, such 

as “tic toc . . . time is running out,” “[w]atch out from being 

alone in the dark,” and “[t]he sands of time are closing in.” 

She testified she understood these statements to be threats 

that Todd was going to harm or kill her. Anne further testified 

that Todd violated this protection order in June 2017 by sending similar text messages, including some alluding to digging 

her grave.

The protection order was still in effect at the time of trial, 

and thus Todd was precluded from having contact with Anne. 

Because of this, Todd had been contacting the older child, who 

was born in 2002 and was 15 at the time of trial, to arrange 

parenting time. Anne testified that Todd often had dinner with 

the children two nights a week, but that he had not exercised 

his weekend parenting time for approximately 1 year (since 

May 2017). Anne said the children had expressed concerns to 

her about spending time with Todd. She testified that Todd had 

“become more frightening” since the time of the divorce, and 

she asked that his parenting time be modified to occur only 

“when the kids wanted to see [him].”

On cross-examination, Anne testified that Todd made daily 

threats to her during the marriage. She admitted being frightened of him prior to the divorce. On redirect, she explained 

that since the divorce, Todd’s “whole demeanor” had changed, 
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VanSKIVER v. VanSKIV

Cite as 303 Neb. 664

in addition to the “way he is with the kids.” She testified that 

the children were now “scared of him,” had realized “that he’s 

crazy,” and were “afraid.”

A licensed independent mental health practitioner testified 

that he had provided counseling services for both children 

during the fall and winter of 2017 and for the younger child 

in April 2018. The practitioner testified that the relationship between the younger child and Todd was “strained” and 

“poorly-formed.” He did not think the relationship was improving. The practitioner admitted he had never met Todd.

At the time of trial, Todd was on probation for violating the 

protection order Anne obtained against him and his probation 

was subject to various conditions. Todd’s probation officer testified that a motion to revoke probation was pending because 

Todd had failed to comply with certain conditions, including 

completion of a 36-week education class and not possessing 

firearms. The record indicates Todd was dismissed from the 

education class due to disruptive behavior and noncompliance 

with course rules. The probation officer noted that revocation 

proceedings remained pending and that Todd had denied the 

allegations of the motion to revoke.

The older child’s school counselor testified that she began 

seeing him weekly at the beginning of the 2017-18 school 

year. Some weeks she sees him more than once, because the 

child seeks her out for additional counseling if he is having a 

difficult day. The counselor testified that she works with the 

child to help him destress and cope with his anxiety so that he 

can focus on his schoolwork. She testified the child often has 

stomach aches due to his anxiety and sometimes needs to go 

home from school. The counselor testified that one source of 

the child’s stress and anxiety was contact with his father. The 

counselor had viewed some text correspondence between the 

child and Todd and opined that Todd’s messages were inappropriate. She also opined that the child felt a responsibility 

to shelter and protect the younger child from his father. The 
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VanSKIVER v. VanSKIV

Cite as 303 Neb. 664

counselor had discussed these issues with Anne, but had never 

met Todd.

The older child testified in chambers. The parties’ lawyers 

were present, but the parents were not. He was 15 years old 

at the time of trial and a high school freshman. His younger 

brother was 11 years old. He stated that his preference would 

be that he would like “little to no time” with his father, except 

maybe on holidays and Christmas. He thought that less contact 

with his father would be a big stress relief for him. He testified 

he was worried about his younger brother’s safety, because he 

thought his father could possibly hurt him. The child explained 

that Todd is “unpredictable” and that he never knew when 

Todd was “going to outburst and into rage.” He testified he 

was afraid of his father, and he thought his brother was afraid 

too. He asked that any parenting time with his father be limited 

to when the children wanted to see him. The child was unsure 

whether joint counseling with his father would help, because 

he did not think his father would be open to it. He stated he 

does not really bring up issues to his father, because his father 

“brush[es] them off.” He testified he was fearful that his father 

and grandmother might attempt to kidnap him as some sort 

of “vendetta.”

The child testified that on one occasion when his father 

picked them up for a visit, there was a gun in the back seat 

of the car, next to where his younger brother was riding. He 

also described an incident where his father got angry with 

his younger brother and grabbed the child’s face during a 

card game, but otherwise testified Todd had never physically 

struck either of them. He stated his father often called him 

names, such as “mother fucker,” “master baitor,” “wiener,” 

“wanger,” and “wise ass.” He stated the name calling made 

him feel “[e]motionally drained.” He testified the relationship 

with his father was causing him stress. However, the child 

said he did not mind being the go-between to set up visits 

with his father.
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VanSKIVER v. VanSKIV

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Todd testified that he did not believe any change in the parenting plan was warranted. He stated that communicating with 

the older child directly to set up visitation times was generally 

working. He denied ever calling the older child names, even in 

a joking manner. He also denied ever having a gun in the vehicle when he picked up the boys. Todd’s mother testified that 

she had never heard him call the boys names or threaten them.

On August 17, 2018, the district court entered an order 

modifying the parenting time. The order made specific factual 

findings, including the following:

[T]he Court observed the conduct and demeanor of [Anne] 

and [Todd] during the modification hearing. [Anne] is 

clearly afraid of [Todd]. She is distressed to be in the 

same room with him. As to [Todd], he has total disrespect 

for [Anne], the Court and anyone in a position of authority. During [Anne’s] testimony the Court observed his 

mocking behavior, laughing during testimony and general 

contemptuous attitude. . . .

. . . .

The Court has consistently forced children to go on 

visitations with non custodial parents when they did not 

want to go and the children were not at risk for mental or 

physical harm. This case is different. These children have 

been and are at risk for mental abuse from their father. 

[Todd] has consistently shown signs of extreme anger, 

contempt for authority, a total disregard of the rules 

functioning citizens are required to live by and a pattern 

of threats and intimidation to his children and former 

wife. . . . The Court will therefore enter an order to allow 

the boys to see their father at their discretion. Hopefully 

[Todd] will seek mental health counseling to help him 

repair his relationship with his boys.

The court’s order then provided:

1. There has been a material change in circumstances 

warranting a modification of [Todd’s] parenting time. 
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Paragraph V, time sharing on page 3 of the parenting plan 

is modified as follows:

The Father shall have parenting time as follows:

A. Monday and Wednesday evenings of each week 

from 5:30 P.M. to 7:30 P.M. The boys may decline to go 

on these visits if [Todd] acts in a threatening manner.

B. Holidays and special days - the boys shall decide if 

they wish to see their father on the holidays and special 

days set out in the parenting plan.

2. There will be no overnight visitations until [Todd] 

engages in individual mental health counseling and then 

counseling with the boys. He may then petition the Court 

for additional parenting time.

Todd filed this timely appeal, and we moved the case to our 

docket on our own motion.

ASSIGNMENTS OF ERROR

Todd assigns that the district court abused its discretion 

in (1) determining a material change in circumstances had 

occurred since the entry of the decree, (2) delegating to the 

minor children the right to determine whether to exercise parenting time with Todd, and (3) limiting his parenting time.

STANDARD OF REVIEW

[1] Modification of a dissolution decree is a matter entrusted 

to the discretion of the trial court, whose order is reviewed de 

novo on the record, and which will be affirmed absent an abuse 

of discretion by the trial court.1

ANALYSIS

Material Change in Circums

[2-5] Visitation rights established by a marital dissolution 

decree may be modified upon a showing of a material change 

1 Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). See Flores v. 

Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
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of circumstances affecting the best interests of the children.2

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.3 The party seeking to modify visitation 

has the burden to show a material change in circumstances 

affecting the best interests of the child.4 The best interests 

of the children are primary and paramount considerations in 

determining and modifying visitation rights.5

Todd argues Anne failed to show a material change in circumstances that would support modifying his parenting time. 

Bluntly put, his contention is that Anne was afraid of him at 

the time of their divorce due to his threatening behavior, so 

the fact that she remains afraid of him due to his threatening behavior is nothing new. We do not find Todd’s contention persuasive.

The evidence does show that Anne was afraid of Todd and 

felt threatened by his behaviors at the time of their divorce. 

But it also shows that Todd’s behavior has escalated since 

that time, to the point where Anne had to obtain a protection 

order against him. Perhaps more important, regardless of the 

relationship between Todd and Anne, there is evidence that 

the circumstances of the relationship between Todd and the 

children has deteriorated. Anne testified Todd’s behavior has 

escalated, his demeanor toward the children has changed, and 

the children are afraid of him. The older child confirmed he 

was afraid of his father, and there was evidence that child was 

experiencing significant stress as a result of his father’s harmful behavior and mental abuse. On this record, we find Anne 

2 Berndt v. Berndt, 25 Neb. App. 272, 904 N.W.2d 24 (2017).

3 Id.

4 Id.

5 Id.
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has shown a material change in circumstances affecting the 

best interests of the children. Todd’s first assignment of error 

is meritless.

Modification of Paren

[6] In his second assignment of error, Todd argues the 

district court erred in “delegating to the minor children the 

right to determine whether to exercise parenting time.”6 Under 

Nebraska law, the court is responsible for developing and 

approving a parenting plan.7 Both this court8 and the Court 

of Appeals9 have held that a trial court has a nondelegable 

duty to determine questions of custody and parenting time of 

minor children according to their best interests. And we have 

emphasized that the authority to determine custody and visitation cannot be delegated to a third party, because it is a judicial function.10

Todd’s argument that there has been an improper delegation 

of the court’s authority to establish parenting time is premised 

on the assumption that when the court modified his parenting 

time, it retained the specific blocks of scheduled parenting 

time awarded previously, but authorized the children to decide, 

based on Todd’s behavior, whether he could exercise that parenting time. This is a plausible interpretation of the court’s 

language, but we are not convinced on de novo review that it 

is the proper one.

6 Brief for appellant at 16.

7 See Neb. Rev. Stat. § 43-2929 (Reissue 2016).

8 See, Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988); Deacon 

v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980), disapproved on other 

grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).

9 See, Barth v. Barth, 22 Neb. App. 241, 851 N.W.2d 104 (2014); Mark J. 

v. Darla B., 21 Neb. App. 770, 842 N.W.2d 832 (2014); In re Interest of 

Teela H., 3 Neb. App. 604, 529 N.W.2d 134 (1995).

10 See Ensrud, supra note 8.
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No Improper Delegat

We are guided by the court’s expressed intentions. Before 

articulating the terms of the modified parenting plan, the court 

stated its intent was to “enter an order to allow the boys to see 

their father at their discretion.” This does not suggest to us 

that the court intended to retain any enforceable parenting time 

with Todd. To the contrary, we understand the court as stating 

an intent to completely eliminate Todd’s enforceable parenting 

time, while simultaneously acknowledging the practical reality that the boys may at times still wish to spend time with 

their father.

The remainder of the court’s order is consistent with this 

intention. The order expressly eliminated Todd’s overnight parenting time and provided that if Todd “engages in individual 

mental health counseling and then counseling with the boys 

. . . [h]e may then petition the Court for additional parenting time.”

We acknowledge the court’s order provided that the boys 

could “decide if they wish to see their father” on holidays and 

“may decline to go on” the Monday and Wednesday evening 

visits, but we do not understand this language as delegating to the children the judicial duty of establishing the parenting schedule. Instead, the order eliminated all of Todd’s 

scheduled parenting time and recognized the reality that the 

boys, now ages 16 and 12, may want to spend time with their 

father despite the fact Todd has no enforceable parenting time 

schedule. Contrary to Todd’s contention, the children were not 

given discretion to set the parenting time schedule, nor were 

they given authority to determine whether or when Todd could 

exercise parenting time.

Indeed, were we to adopt Todd’s interpretation of the court’s 

order, it would be inconsistent with the court’s factual findings 

and difficult to enforce. The district court articulated genuine 

concern about Todd’s escalating behavior and its negative effect 

on the children, which the court described as mental abuse, and 
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it would be inconsistent for the court to then award Todd specific parenting time contingent on the children’s determination 

of whether Todd was acting in a threatening manner. Moreover, 

were we to construe the order of modification in this fashion, 

the only way to enforce it would be for Todd to bring a contempt action against his children, and we cannot imagine that 

was the court’s intention.

Construed in context with the other provisions of the court’s 

order of modification, we find the court developed a modified 

parenting plan designed to protect the children from Todd’s 

harmful behavior by suspending all of his scheduled parenting time. We find this construction is not only supported by 

the record but is consistent with the court’s stated intention in 

modifying the parenting plan. To the extent the language of the 

modification order could be read otherwise, we modify it on de 

novo review for the sake of clarity.

In doing so, we reject Todd’s claim that the court has 

improperly delegated decisions about parenting time to the 

minor children. Instead, we clarify that the court has modified 

Todd’s parenting time by suspending it entirely. Todd’s second 

assignment of error is meritless.

No Abuse of Discr

In his final assignment of error, Todd argues the court 

abused its discretion in limiting his parenting time. Having 

clarified that the court actually suspended Todd’s parenting 

time altogether, we find no abuse of discretion.

The record is replete with evidence that Todd’s threatening 

behavior toward Anne and the children has escalated since 

the decree was entered and the original parenting plan was 

approved. The older child testified he is afraid of his father, 

and the court specifically found Todd’s behavior amounted to 

mental abuse of the children. Evidence showed Todd violated 

the protection order Anne obtained against him and had been 

noncompliant with the terms of his probation, indicating an 
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VanSKIVER v. VanSKIV

Cite as 303 Neb. 664

unwillingness to acknowledge or change his behavior. As the 

court noted, the evidence established that “[Todd] has consistently shown signs of extreme anger, contempt for authority, 

a total disregard of the rules functioning citizens are required 

to live by and a pattern of threats and intimidation to his children and former wife.”

On this record, we find no abuse of discretion in suspending 

Todd’s scheduled parenting time.

CONCLUSION

The order of modification was warranted by a material 

change in circumstances, and the court did not improperly 

delegate its authority to determine parenting time. Instead, 

as modified by this court for clarity, the district court’s order 

suspended Todd’s parenting time entirely. Because the record 

supports this modification, we affirm the order of the district 

court as modified.

Affirmed as modif