Weaver v. Weaver ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2021 08:10 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WEAVER v. WEAVER
Cite as 308 Neb. 373Meaghann 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 appel-
late 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 chang-
ing conditions.
6. Modification of Decree: Visitation. The right of parenting time is sub-
ject 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
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WEAVER v. WEAVER
Cite as 308 Neb. 373of 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 mean-
ing, including the settlement agreement incorporated therein, is deter-
mined as a matter of law from the four corners of the decree itself.
10. Divorce: Judgments: Intent. The meaning of a decree must be deter-
mined 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 cir-
cumstances 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 chang-
ing 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 deter-
mine 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 origi-
nal action.
17. Appeal and Error. An appellee’s argument that a lower court’s deci-
sion should be upheld on grounds specifically rejected below constitutes
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WEAVER v. WEAVER
Cite as 308 Neb. 373a 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 pro-
vision 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 deter-
mining whether there has been a material change of circum-
stances. 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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WEAVER v. WEAVER
Cite as 308 Neb. 373II. 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 para-
graph 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 pro-
vides 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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WEAVER v. WEAVER
Cite as 308 Neb. 373maternal grandmother would be the childcare provider, inas-
much as it described payment to the grandmother for these
services. Specifically, the agreement stated that for care pro-
vided 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 par-
ties,” 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 holi-
days, 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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WEAVER v. WEAVER
Cite as 308 Neb. 373The 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 modifica-
tion 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 proto-
cols 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 discus-
sions on their own, they agree to meet with a mutually agreed
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WEAVER v. WEAVER
Cite as 308 Neb. 373upon 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 agree-
ments 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 contingen-
cies 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 representa-
tive 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 rep-
resented 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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WEAVER v. WEAVER
Cite as 308 Neb. 373alleged 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 mate-
rial 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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Cite as 308 Neb. 373retire, explaining that he “love[d] serving the Air Force” and
would continue to do so if allowed to stay in Omaha, but stat-
ing 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, support-
ing 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 mat-
ters 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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WEAVER v. WEAVER
Cite as 308 Neb. 373extensions 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 pre-
school and activities.
Meaghann testified that she had kept Glen abreast of where
the child was attending preschool and the details of the pre-
school 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 gen-
erally 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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WEAVER v. WEAVER
Cite as 308 Neb. 373were 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 over-
night 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 visi-
tation 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 contempla-
tion 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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WEAVER v. WEAVER
Cite as 308 Neb. 373in 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 stipu-
lations 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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WEAVER v. WEAVER
Cite as 308 Neb. 373change in circumstances, the Court of Appeals did not decide
whether a court in equity may grant a motion to modify a cus-
tody 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’ separa-
tion 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 prec-
edent 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 modi-
fication, Glen assigns that (1) the trial court erred in deter-
mining 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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Cite as 308 Neb. 373modifications 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) admin-
istrative 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 indepen-
dent 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 con-
clusion 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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Cite as 308 Neb. 373custody determination by a court of another state. Section
43-1240 provides for jurisdiction to modify a child cus-
tody 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 visi-
tation. 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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Cite as 308 Neb. 373interests 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 circum-
stances is not an optional element to a modification proceed-
ing. 16 Proof of a material change of circumstances is the thresh-
old inquiry in a proceeding on a complaint to modify, because
issues determined in the prior custody order are deemed preclu-
sive 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 modi-
fication 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 com-
petent 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 disso-
lution 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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Cite as 308 Neb. 373to 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 mat-
ter 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 signifi-
cant change in circumstance of either party, or in the needs or
interests of [the child], either party may request a modifica-
tion 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 media-
tion, 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
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Cite as 308 Neb. 373matter 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 modifica-
tion 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 agree-
ment 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 provi-
sions setting forth the threshold standard for discussion and
mediation should be construed under the decree as the “then-
governing 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 mate-
rial 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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Cite as 308 Neb. 373That said, we find merit to Glen’s assignment on appeal that
the district court erred in finding no material change in circum-
stances, 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 employ-
ment 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 fac-
tor 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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Cite as 308 Neb. 373First, 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 visit-
ing the child while the child was in daycare outside of pre-
school; he was simply told the child was “in a safe place.”
Meaghann’s testimony did not specifically refute Glen’s testi-
mony 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 never-
theless 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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Cite as 308 Neb. 373the 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 cur-
rent obstacles to visitation with the child while in daycare dur-
ing 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 result-
ing 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 stabil-
ity 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 evi-
dence 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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Cite as 308 Neb. 373witnesses 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 par-
ties 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 consid-
ered together, sufficient to satisfy the mother’s burden of dem-
onstrating a material change in circumstances.
Here, the district court did not make specific findings regard-
ing 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 dis-
trict 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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Cite as 308 Neb. 373original 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 dis-
solution 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 cross-
appeal in order for that argument to be considered. 40 An appel-
lee 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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Cite as 308 Neb. 373Having 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 attor-
ney 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 deter-
mine 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 total-
ity of the evidence presented at the hearing on the complaint
to modify.
VI. CONCLUSION
We affirm on different grounds the Court of Appeals’ deci-
sion reversing the judgment of the district court and remanding
the cause with directions.
Affirmed.