Lindblad v. Lindblad ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/15/2021 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776Nathan M. Lindblad, appellant, v.
Jessica N. Lindblad, appellee,
and Norman A. McConnell
and Cheri B. McConnell,
intervenors-appellees.
___ N.W.2d ___
Filed July 30, 2021. No. S-20-400.
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. Visitation: Appeal and Error. Determinations concerning grandparent
visitation are initially entrusted to the discretion of the trial court, whose
determinations on appeal will be reviewed de novo on the record and
affirmed in the absence of an abuse of the trial court’s discretion.
3. Modification of Decree: Child Custody: Proof. Ordinarily, custody
and parenting time of a minor child will not be modified unless there has
been a material change in circumstances showing that the best interests
of the child require modification.
4. ____: ____: ____. 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 and that
affects the best interests of the child. Second, the party seeking modifi-
cation must prove that changing the child’s custody or parenting time is
in the child’s best interests.
5. Modification of Decree: Words and Phrases. Generally speaking,
a material change in circumstances is the occurrence of something
which, had it been known to the dissolution court at the time of the
initial decree or prior modification, would have persuaded the court to
decree differently.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 7766. Modification of Decree: Child Custody: Proof. 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.
7. Visitation: Proof. A grandparent seeking visitation must prove by clear
and convincing evidence that (1) there is, or has been, a significant
beneficial relationship between the grandparent and the child; (2) it is
in the best interests of the child that such relationship continue; and
(3) such visitation will not adversely interfere with the parent-child
relationship.
8. Evidence: Proof: Words and Phrases. Clear and convincing evidence
is that amount of evidence which produces in the trier of fact a firm
belief or conviction about the existence of a fact to be proved.
9. Evidence: Appeal and Error. When evidence is in conflict, the appel-
late court considers and may give weight to the fact that the trial court
heard and observed the witnesses and accepted one version of the facts
rather than the other.
10. Moot Question. Mootness refers to events occurring after the filing of
a suit which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
11. ____. A case is not moot if a court can fashion some meaningful form
of relief, even if that relief only partially redresses the prevailing
­party’s grievances.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed as modified.
Jeffrey A. Gaertig, of Smith, Schafer, Davis & Gaertig,
L.L.C., for appellant.
Jessica N. Lindblad, pro se.
Jeffrey B. Hubka, of Hubka & Hubka, for intervenors-appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Stacy, J.
In 2018, the district court modified the custody and parent-
ing time provisions in a dissolution decree after finding the
mother was not properly caring for the parties’ young child
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776and was using controlled substances. The order of modifica-
tion gave custody to the father and required the mother’s par-
enting time to be supervised by the maternal grandparents. In
2019, the father sought to modify the order again, requesting
to suspend the mother’s supervised parenting time indefinitely
because of her continued substance use. The district court
denied the modification, finding there had been no mate-
rial change in circumstances affecting the best interests of
the child. In a separate order, the court granted the maternal
grandparents’ complaint for grandparent visitation. The father
appeals from both orders.
The primary issues on appeal are whether the mother’s
continued substance use and related arrests presented a mate-
rial change in circumstances sufficient to support modification
and whether the grandparents satisfied their burden of proof
regarding grandparent visitation. Because our de novo review
reveals no abuse of discretion in denying the requested modifi-
cation or allowing grandparent visitation, we affirm.
I. BACKGROUND
Nathan M. Lindblad and Jessica N. Lindblad were married
on a date which is unclear from our record. In 2013, a daughter,
F.L., was born to the marriage. In November 2016, the parties
divorced. Although the dissolution decree is not in our record,
other evidence indicates the decree awarded Jessica physical
custody of F.L., subject to Nathan’s regular parenting time.
1. 2018 Modification
Sometime after the decree was entered, Nathan filed a
complaint to modify, seeking a change in F.L.’s custody. That
complaint is not in our record, but the basis for seeking modi-
fication is apparent from the face of the court’s modification
order, which was entered February 9, 2018. That order found
there had been a material change in circumstances affecting the
best interests of F.L., in that Jessica was no longer providing
a safe, nurturing environment for the child. The court made
a specific finding that Jessica had not been properly caring
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776for F.L., and it recited that Jessica had obtained a drug and
alcohol evaluation and a mental health evaluation, but had not
complied with the treatment recommendations. Jessica had also
been involved in dating relationships with men who physically
assaulted her, and the court found she demonstrated a pattern
of poor decisionmaking by continuing to have contact with one
of her abusers and attempting to conceal it.
The modification order granted Nathan primary legal and
physical custody of F.L., and it awarded Jessica supervised par-
enting time on alternating weekends from Friday at 6 p.m. until
Sunday at 6 p.m. and on every Tuesday and Wednesday from
4 to 7:30 p.m. The court ordered Jessica’s parenting time to be
supervised by F.L.’s maternal grandparents. The modification
order included a provision discouraging requests to modify
Jessica’s parenting time “until such time as she has completed
both drug/alcohol and mental health counseling . . . and has
demonstrated the ability to maintain sobriety for a significant
period of time thereafter.”
2. Complaint to Modify and Ex Parte
Order Suspending Visitation
Approximately 15 months later, in May 2019, Nathan filed
another complaint to modify, this time asking that Jessica’s
parenting time be suspended indefinitely. His complaint alleged
there had been a material change in circumstances affecting
the best interests of F.L., in that Jessica had been arrested and
charged with several drug offenses since the last modifica-
tion. The complaint alleged that Jessica’s most recent arrest
occurred at a sports facility immediately following F.L.’s youth
soccer game. Based on these events, Nathan alleged Jessica
had “deliberately and knowingly exposed [F.L.] to narcotics”
during her parenting time and was no longer “a fit and proper
person to have parenting time.”
Along with the complaint to modify, Nathan filed a motion
requesting an ex parte order immediately suspending Jessica’s
parenting time; the motion was supported by Nathan’s
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776affidavit and the affidavit of the officer who arrested Jessica
after the soccer game. Nathan’s affidavit recited that Jessica
had been arrested after the soccer game and that Jessica knew
her purse contained methamphetamine while she was hold-
ing F.L. on her lap. The officer’s affidavit stated that Jessica
was approached by officers in the parking lot after the soccer
game and advised of an active arrest warrant for driving under
suspension and no proof of insurance. Jessica was carrying a
purse at the time, and she gave officers consent to look inside
it. When they did, they found what later tested positive for
methamphetamine. Jessica was arrested on the warrant and
for possession of a controlled substance and possession of
drug paraphernalia.
Based on these affidavits, the court issued an ex parte order
suspending Jessica’s parenting time pending an evidentiary
hearing. After that hearing, the court entered a temporary order
reducing Jessica’s supervised parenting time to 4 hours each
Wednesday, to be supervised by “Better Living Counseling
Services or [a] similar agency.” The temporary order required
Jessica to pay the costs of such supervision, and it expressly
conditioned each visit upon Jessica’s passing a drug screen and
submitting to a search of her person.
3. Grandparent Intervention
and Temporary Agreement
A few months later, the maternal grandparents intervened in
the modification action to file a complaint seeking grandparent
visitation with F.L. The parties agreed to a consolidated trial on
Nathan’s complaint to modify and the grandparents’ complaint
for visitation.
Before trial occurred, Nathan and the grandparents medi-
ated a temporary agreement under which the grandparents
would have regular visitation with F.L. for 5 hours every
other Sunday afternoon. The mediated agreement provided that
Jessica would not be present during the grandparents’ tempo-
rary visitation. The court entered a temporary order consistent
with the parties’ mediated agreement.
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309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 7764. Trial Evidence
In May 2020, the consolidated trial was held. Jessica
appeared pro se, and all other parties appeared with counsel.
Nathan’s complaint to modify was tried first, followed by
the grandparents’ complaint for visitation. As pertinent to the
issues on appeal, the following evidence was adduced.
(a) Nathan
Nathan testified that he and his current wife have four
children between them, ranging in age from 4 months to 10
years. Nathan stated he filed the complaint to modify because
Jessica had drugs in her purse at the soccer game and F.L. was
playing “at least within two f[ee]t” of the purse. He admitted
the grandparents were at the soccer game supervising F.L.’s
interactions with Jessica. Nathan testified that after the game,
he was walking with F.L. to his vehicle when he saw police
officers approaching Jessica. Nathan saw what was happen-
ing and took steps that prevented F.L. from seeing Jessica’s
arrest. Nathan testified that was Jessica’s third arrest for drug
possession.
Nathan admitted he was aware, before the 2018 custody
modification, that Jessica had a problem with drug use. But he
testified the problem was “not getting better” and he was par-
ticularly concerned about Jessica’s most recent arrest at F.L.’s
soccer game because drugs were found in Jessica’s purse and
F.L. had been near the purse. Nathan admitted that F.L. had
not been present during Jessica’s other arrests. In response to
a question from the court, Nathan testified that the only time
he thought F.L. was in danger was when Jessica was arrested
at the soccer game; Nathan did not believe F.L. had ever been
in danger when the grandparents were supervising Jessica’s
parenting time.
Nathan asked the court not to reinstate Jessica’s parenting
time until she demonstrated the ability to maintain sobri-
ety. He proposed that Jessica’s parenting time be suspended
altogether until her pending criminal cases were resolved.
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309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776Thereafter, Nathan proposed a phased parenting plan under
which Jessica would initially have supervised parenting time
at an agency like Better Living Counseling Services (Better
Living), where she could be screened for drugs. Assuming that
went well, Nathan proposed that Jessica’s parenting time could
progress to being supervised by the grandparents, and eventu-
ally progress to being unsupervised.
With respect to the grandparents’ complaint for visitation,
Nathan agreed that F.L. had a significant beneficial relationship
with her maternal grandparents, and he testified that he wanted
that relationship to continue. But Nathan opposed a set visita-
tion schedule with the grandparents, and instead, he preferred
to have discretion as to when F.L. would see her grandparents,
similar to the discretion Nathan exercised with respect to his
own parents. Nathan did not think the temporary grandparent
visitation schedule agreed to by the parties had been working
well with his family’s busy schedule, explaining:
The weekends are when we have the time to spend with
our family. . . . With sporting events and stuff, I just —
it’s not fair, like, okay, we are going to a sporting event
and [F.L.] has to stay back because she has to go see
grandma and grandpa instead of staying in a motel and
swimming and she misses out on family functions.
Nathan also testified that sometimes F.L. “[did not] listen”
after she returned from visits with her grandparents.
(b) Jessica
Jessica testified that she had been working full time as a
bartender before the coronavirus pandemic, but at the time of
trial, she was unemployed and living with F.L.’s grandparents.
She admitted there were two criminal cases pending against her
for drug possession; both were set for trial in May 2020, and
plea negotiations were ongoing. Jessica admitted she had been
arrested three times for possession of controlled substances,
but testified that none of the arrests occurred during her parent-
ing time.
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309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776Jessica admitted she had undergone a drug and alcohol
evaluation in connection with her pending criminal cases, but
she declined to testify about the results of that evaluation, other
than to say she had been participating in counseling. Jessica
also admitted to failing 4 of the 32 drug tests at Better Living,
but she claimed the failed tests were misinterpreted, and she
specifically denied being under the influence of illegal drugs
while in F.L.’s presence. Jessica invoked the Fifth Amendment
when asked whether she had ever possessed drugs while exer-
cising parenting time.
(c) Better Living Supervisor
The records custodian and supervisor from Better Living
testified about Jessica’s supervised parenting time under the
court’s temporary order. He testified that from September 2019
through April 2020, Jessica scheduled 32 supervised visits with
F.L. at Better Living. The process required Jessica to prepay
for each visit several days ahead of time, at a cost of $50 for
each hour. Then, on the day of the scheduled visitation, Jessica
would arrive early and provide a urine sample, for which she
paid another fee of $50. If the test was negative for controlled
substances, Nathan was contacted and the supervised visita-
tion occurred.
The supervisor testified that of the 32 scheduled visits,
Jessica tested positive for methamphetamine four times and
was a “no-show” twice. Regarding the supervised visits that
did occur, no evidence was adduced of any concerns, and
the supervisor testified that the visit he personally supervised
“went well.”
(d) F.L.’s Therapist
The licensed therapist who had been treating F.L. since
January 2019 also testified at trial. She stated that F.L., who
was 6 years old at the time, had been diagnosed with attention
deficit hyperactivity disorder and post-traumatic stress disorder
and was taking medication for each condition. She opined that
F.L.’s trauma was “related to when she was living with her
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776biological mom,” but she provided no specifics regarding the
nature of that trauma. The therapist confirmed that she had not
identified any trauma sustained by F.L. since the 2018 custody
modification and that currently F.L. is working through her
past trauma and “doing well.” When asked whether F.L. has
any issues with respect to visitation with Jessica, the thera-
pist replied, “The only concern is that when her mother does
not have a visit, that increases her worry . . . .” The therapist
opined that visits with Jessica “need to be consistent.”
Regarding grandparent visitation, the therapist testified that
during 2 of the 17 therapy sessions with F.L., the child expressed
anxiety about visitation with her grandparents, reporting that
her grandmother had made negative comments about Nathan’s
current wife. In response to questioning from the court, the
therapist admitted that she told Nathan what F.L. had reported,
but had not followed up with or reached out to the grandparents
to learn their version of events. According to the therapist, F.L.
expressed that she “wishes everybody would love her and stop
being negative about other family members.”
(e) Grandparents
Before offering evidence, the grandparents advised the court
that if Jessica’s parenting time was suspended indefinitely, they
were requesting visitation with F.L. every other weekend, but
if Jessica continued to have supervised parenting time with
F.L., the grandparents would plan to see F.L. during Jessica’s
parenting time.
The grandmother testified that she and the grandfather
had been supervising Jessica’s parenting time with F.L. since
September 2017. Those visits had occurred every other week-
end, as well as Monday and Tuesday evenings, and the grand-
parents had not missed any visits. The grandmother testi-
fied that even after Jessica’s supervised parenting time was
switched to Better Living, the grandparents still had regular
visits with F.L. under the mediated agreement and temporary
order. An exhibit was received documenting 34 such visits dur-
ing the 11 months immediately preceding trial.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776The grandmother generally testified that F.L. was happy
and engaged when she was with them and that she would
sometimes accompany them on visits to see extended family
and interact with F.L.’s aunts, uncles, and cousins. The grand-
mother thought F.L. benefited from spending time with her
grandparents and thought it was in F.L.’s best interests to have
a continuing relationship with them, as well as a relationship
with F.L.’s extended family on Jessica’s side. The grandmother
testified that she had no intention of interfering with Nathan’s
rights as a father or his time with the child, and she gener-
ally denied making negative comments about Nathan’s current
wife. The grandmother testified that although Jessica was liv-
ing with them, they ask Jessica to leave on the days they have
visitation with F.L. and Jessica complies.
The grandfather testified that if asked the same questions
as the grandmother, he would give substantially the same
answers. He also testified that he felt it was important to com-
municate with Nathan, and the grandparents made an effort to
keep Nathan apprised of F.L.’s activities and meals during their
visits. The grandfather wanted to have a good relationship with
Nathan, but felt the relationship had deteriorated during the
past several months.
5. District Court Orders
(a) Complaint to Modify
On May 22, 2020, the district court entered an order deny-
ing Nathan’s complaint to modify Jessica’s parenting time. The
court concluded that Jessica’s continued substance use and
drug-related arrests did not amount to a material change in cir-
cumstances affecting the best interests of the child. The court
reasoned that the 2018 modification order showed Jessica’s
substance use was one of the reasons for awarding F.L.’s
legal and physical custody to Nathan and for requiring all of
Jessica’s parenting time to be supervised by the grandpar-
ents. The court acknowledged there had been an increase in
Jessica’s drug-related arrests since the 2018 modification, but
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776it found that none of the arrests occurred in F.L.’s presence, and
there was no evidence that Jessica’s conduct had placed F.L.
in danger or that she had exposed F.L. to narcotics during her
parenting time. It further found the grandparents had provided
safe supervision for Jessica’s parenting time, and there was no
evidence that supervision by Better Living was necessary to
ensure F.L.’s safety during Jessica’s parenting time. The order
thus denied Nathan’s request to indefinitely suspend Jessica’s
parenting time, and it directed the parties to resume the super-
vised parenting time schedule under the 2018 modification,
with the grandparents’ providing the supervision.
(b) Grandparent Visitation
The same day, in a separate order, the district court granted
the complaint for grandparent visitation. Citing the three-factor
test from Hamit v. Hamit, 1 the court found the grandparents
had proved, by clear and convincing evidence, (1) that there
exists a significant beneficial relationship, past or present; (2)
that it is in the best interests of the child that such relationship
continue; and (3) that such visitation will not adversely inter-
fere with the parent-child relationship. The court acknowledged
Nathan’s resistance to a set visitation schedule, but found the
temporary grandparent visitation had been going well, and
Nathan had presented no evidence that having a set schedule
would interfere with his relationship with F.L. even if it might
be somewhat inconvenient to his family’s activities. Moreover,
the court found that regular grandparent visitation provided “a
critical link” between F.L. and her mother, as well as main-
taining the relationship with F.L.’s “like age cousins” and
extended family.
As to setting a schedule for grandparent visitation, the
court’s order stated:
1
Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006). See, also, Nelson
v. Nelson, 267 Neb. 362, 674 N.W.2d 473 (2004); Eberspacher v. Hulme,
248 Neb. 202, 533 N.W.2d 103 (1995).
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309 Nebraska Reports
LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776[B]ased on the Court’s order in the Custody Modification,
the Court is not defining a set schedule because [the
grandparents] will be seeing [the child] while they super-
vise parenting time with her mother. Should that change
in the future, [the grandparents] should move this Court
for a specific schedule and that will be ordered after a
hearing where all parties can be heard and offer suggested
schedules to the Court.
Nathan timely appealed from both the order denying modifi-
cation and the order allowing grandparent visitation. We moved
the appeal to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Nathan assigns the district court erred in (1) denying his
complaint to modify and (2) ordering grandparent visitation.
III. STANDARD OF REVIEW
[1] Modification of a judgment or decree relating to child
custody, visitation, or support is a matter entrusted to the dis-
cretion of the trial court, whose order is reviewed by an appel-
late court de novo on the record, and will be affirmed absent
an abuse of discretion. 2
[2] Determinations concerning grandparent visitation are
initially entrusted to the discretion of the trial court, whose
determinations on appeal will be reviewed de novo on the
record and affirmed in the absence of an abuse of the trial
court’s discretion. 3
IV. ANALYSIS
1. Complaint to Modify
Nathan presents two arguments in support of his assignment
that the district court erred in denying his complaint to modify.
First, he argues that even though the 2018 modification was
also premised on Jessica’s substance use, the court should
2
Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020).
3
Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776have found a material change in circumstances due to Jessica’s
continued substance use and an increase in drug-related arrests.
Next, he argues the court abused its discretion in failing to
separately address his claims that Jessica’s continued substance
use rendered her unfit to exercise even supervised parenting
time. We address each argument in turn, but first, we review
the governing legal principles.
[3,4] Ordinarily, custody and parenting time of a minor child
will not be modified unless there has been a material change
in circumstances showing that the best interests of the child
require modification. 4 Modifying a custody or parenting time
order requires two steps of proof. 5 First, the party seeking
modification must show by a preponderance of the evidence
a material change in circumstances that has occurred after the
entry of the previous custody order and that affects the best
interests of the child. 6 Second, the party seeking modification
must prove that changing the child’s custody or parenting time
is in the child’s best interests. 7 Here, the district court found
that Nathan had not met his burden of proving a material
change in circumstances affecting F.L.’s best interests, so we
focus our analysis on that inquiry.
[5,6] Generally speaking, a material change in circumstances
is the occurrence of something which, had it been known to
the dissolution court at the time of the initial decree or prior
modification, would have persuaded the court to decree dif-
ferently. 8 We have explained that proof of a material change
in circumstances is the “threshold inquiry in a proceeding on
4
See, Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020); VanSkiver v.
VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019); Eric H. v. Ashley H.,
302 Neb. 786, 925 N.W.2d 81 (2019).
5
See, Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021); Jones,
supra note 4; Eric H., supra note 4.
6
See id.
7
See id.
8
See, Weaver, supra note 5; Eric H., supra note 4.
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Cite as 309 Neb. 776a complaint to modify, because issues determined in the prior
custody order are deemed preclusive in the absence of proof
of new facts and circumstances.” 9 The rationale for limiting
modifications of custody and parenting time to only those
necessitated by a material change in circumstances is to avoid
extensive and repetitive litigation and unnecessary, potentially
harmful fluctuations in the child’s life. 10 Simply put, a cus-
tody or parenting time order will not be modified absent proof
of new facts and circumstances arising since the order was
entered that affect the best interests of the child. 11
Here, Nathan generally concedes that when the 2018 modi-
fication order was entered, the parties and the court were
aware of, and attempting to address, the impact of Jessica’s
substance use. This is amply supported by the record, as the
face of the 2018 modification order shows that the change
in custody and the supervised visitation were put in place to
address evidence of Jessica’s substance use and poor decision­
making. Furthermore, the 2018 modification order appears to
have anticipated the possibility that Jessica’s substance use
would continue, as it directed that future modifications to her
parenting time would not be entertained unless she “completed
both drug/alcohol and mental health counseling . . . and has
demonstrated the ability to maintain sobriety for a significant
period of time thereafter.”
Nathan does not argue that the nature or severity of Jessica’s
substance use has changed significantly since the 2018 modifi-
cation, and he adduced no evidence of such a change. Instead,
he argues that her “continued drug use and multiple arrests
for drug possession,” 12 and “especially her arrest” 13 at the
9
Weaver, supra note 5, 308 Neb. at 388, 954 N.W.2d at 630, citing Eric H.,
supra note 4.
10
See id.
11
See id.
12
Brief for appellant at 15.
13
Id.
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LINDBLAD v. LINDBLAD
Cite as 309 Neb. 776youth soccer game, support finding a material change in cir-
cumstances. We understand Nathan to be arguing that even
if Jessica’s use of illegal substances is essentially the same
now as it was in 2018, the evidence showed that her drug-
related arrests have increased, and that such evidence is enough
to prove a material change in circumstances affecting F.L.’s
best interests.
Our case law demonstrates that an increase or escalation in
parental instability or parental behavior that affects the best
interests of the child can support a judicial finding that there
has been a material change in circumstances, even if there is
some evidence of similar behavior in the past. 14 In Jones v.
Jones, 15 we found that an increase in the custodial mother’s
periods of unemployment and resulting housing instability
since the prior modification had affected the best interests of
the child by exposing him to frequent moves and requiring him
to “liv[e] alongside people who were verbally and physically
abusive to [his mother], used illegal drugs, engaged in criminal
activity, and had violent tempers.” We concluded that even
though the mother had experienced periods of unemployment
and financial difficulty in the past, the escalation in those cir-
cumstances since the prior modification amounted to a material
change in circumstances affecting the best interests of the child
and supported a modification in custody and fewer overnight
visits at the mother’s home. 16
Similarly, in VanSkiver v. VanSkiver, 17 we found that a post-
decree escalation in the father’s angry, abusive, and threatening
behavior toward his minor sons amounted to a material change
in circumstances affecting the best interests of the children
and supported modifying the decree to indefinitely suspend
the father’s parenting time. We expressly rejected the father’s
14
See, Jones, supra note 4; VanSkiver, supra note 4.
15
Jones, supra note 4, 305 Neb. at 630, 941 N.W.2d at 512.
16
See Jones, supra note 4.
17
VanSkiver, supra note 4.
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Cite as 309 Neb. 776contention that there was no proof of a material change in cir-
cumstances because his ex-wife 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.” 18
Nathan is correct that evidence in our record shows an
increase in the number of Jessica’s drug-related arrests since
the 2018 modification. Before the 2018 modification, Jessica
was arrested for possession of methamphetamine, marijuana,
alprazolam, Suboxone, and drug paraphernalia. Approximately
8 months after the 2018 modification, Jessica was arrested
again for possession of methamphetamine, marijuana, codeine,
and drug paraphernalia. Then roughly 7 months later, Jessica
was arrested for possession of methamphetamine after F.L.’s
soccer game.
Nathan has presented concerning evidence that Jessica’s
continued drug use has, quite predictably, led to continued
drug-related arrests. But even if we assume that the increase
in Jessica’s arrests was unanticipated at the time of the 2018
modification, we agree with the district court that Nathan has
failed to adduce evidence showing that the additional arrests
present a material change in circumstances that has affected the
best interests of F.L. and require a change to Jessica’s super-
vised parenting time.
It is undeniable that a parent’s use of illegal substances can
expose minor children to dangerous and illegal activity; can
interfere with the parent’s ability to provide safe, stable, and
appropriate care for the children; and can cause deterioration of
the parent-child relationship. Additionally, a parent’s habitual
use of alcohol or drugs can render the parent unfit when their
conduct is found by the court to be seriously detrimental to
the health, morals, or well-being of the juvenile. 19 But there
18
Id. at 671, 930 N.W.2d at 574.
19
See, e.g., Neb. Rev. Stat. § 43-292 (Reissue 2016); In re Interest of Joshua
M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).
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Cite as 309 Neb. 776was no such evidence adduced at trial in this case. Instead, the
evidence showed that, at least so far, the significant modifica-
tions to custody and parenting time made in the 2018 order
have protected F.L. from the potentially serious and predict-
able consequences of Jessica’s substance use by giving legal
and physical custody to Nathan and requiring Jessica’s limited
parenting time to be fully supervised.
In our de novo review, we see no evidence that, since the
2018 modification, Jessica has been under the influence of
drugs or alcohol during her supervised parenting time, nor was
there evidence that she has exposed F.L. to dangerous people
or illegal activity. Like Nathan, we are concerned by the fact
that Jessica had drugs in her purse during F.L.’s soccer game,
but the evidence showed that the grandparents were supervis-
ing F.L.’s interactions with Jessica during this time, and there
is nothing in the record suggesting that F.L. had contact with or
access to the purse, or contact with any controlled substances.
Further, there is no evidence that Jessica’s continued substance
use or her arrests have made her unavailable or unable to exer-
cise parenting time. Moreover, the evidence was undisputed
that the relationship between F.L. and Jessica continues to be
good. According to F.L.’s therapist, the only current concern
regarding Jessica’s visitation is that when visits do not occur, it
causes F.L. to worry.
Nor are we persuaded that Nathan has shown Jessica’s con-
tinued substance use necessarily renders her unfit to exercise
even supervised parenting time. We simply see no evidence
that the existing supervised parenting time conditions have
been, or may be, inadequate to address the obvious safety
concerns accompanying Jessica’s continued use of controlled
substances. 20 While we have no doubt that sobriety would
vastly improve Jessica’s opportunities to meaningfully parent
20
See, e.g., In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733(2020) (finding insufficient evidence to adjudicate children on ground they
had been exposed to mother’s persistent drug use when mother had placed
children in grandmother’s care).
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Cite as 309 Neb. 776F.L., Nathan has not shown that Jessica’s ongoing substance
use, or an increase in her drug-related arrests, presents a mate-
rial change in circumstances that has affected F.L.’s best inter-
ests and requires modifying the supervised visitation provisions
under the 2018 modification order.
Stated differently, had the district court known of Jessica’s
continued drug use and additional arrests at the time it entered
the 2018 modification order, we are not persuaded it would have
imposed any different custody arrangement or supervised par-
enting time provisions. Instead, the record shows the supervised
parenting time schedule the court imposed in 2018 continues to
be necessary and, at least so far, has been an effective way to
maintain the important parent-child relationship while keeping
F.L. safe. On this record, the district court did not abuse its dis-
cretion in denying Nathan’s complaint to modify.
2. Grandparent Visitation
In his second assignment of error, Nathan argues the district
court erred in awarding grandparent visitation. His primary
argument is that the grandparents failed to meet their burden of
proof. He also argues the district court abused its discretion in
failing to set a specific schedule for grandparent visitation. We
begin our analysis with a review of the legal principles govern-
ing grandparent visitation.
(a) Legal Principles
Grandparent visitation in Nebraska is governed by statute.
Neb. Rev. Stat. § 43-1801 (Reissue 2016) defines a grand­
parent as the “biological or adoptive parent of a minor child’s
biological or adoptive parent.” Neb. Rev. Stat. § 43-1802
(Reissue 2016) provides that a grandparent may seek visitation
if, among other things, the marriage of the child’s parents has
been dissolved. In determining whether a grandparent shall be
granted visitation, § 43-1802 provides:
(2) . . . [T]he court shall require evidence con-
cerning the beneficial nature of the relationship of the
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Cite as 309 Neb. 776grandparent to the child. The evidence may be presented
by affidavit and shall demonstrate that a significant
beneficial relationship exists, or has existed in the past,
between the grandparent and the child and that it would
be in the best interests of the child to allow such rela-
tionship to continue. Reasonable rights of visitation may
be granted when the court determines by clear and con-
vincing evidence that there is, or has been, a significant
beneficial relationship between the grandparent and the
child, that it is in the best interests of the child that such
relationship continue, and that such visitation will not
adversely interfere with the parent-child relationship.
(3) The court may modify an order granting or deny-
ing such visitation upon a showing that there has been
a material change in circumstances which justifies such
modification and that the modification would serve the
best interests of the child.
[7,8] Summarizing these statutory requirements, we have
explained that a grandparent seeking visitation must prove by
clear and convincing evidence that (1) there is, or has been, a
significant beneficial relationship between the grandparent and
the child; (2) it is in the best interests of the child that such
relationship continue; and (3) such visitation will not adversely
interfere with the parent-child relationship. 21 Clear and con-
vincing evidence is that amount of evidence which produces in
the trier of fact a firm belief or conviction about the existence
of a fact to be proved. 22
As noted, Nathan conceded at trial that the grandparents and
F.L. have a significant beneficial relationship, and we do not
understand him to argue otherwise on appeal. Rather, Nathan’s
argument is that the grandparents failed to meet their bur-
den of proving the second and third elements recited above.
21
Hamit, supra note 1. See, also, Nelson, supra note 1; Eberspacher, supra
note 1.
22
Hamit, supra note 1.
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Cite as 309 Neb. 776As we explain, our de novo review of the record persuades
us otherwise.
(b) Grandparents Met Burden of Proof
Our review of the record demonstrates the grandparents met
their burden of proving both that it was in F.L.’s best interests
to continue the relationship with her maternal grandparents
and that grandparent visitation would not adversely interfere
with the parent-child relationship. We address each element of
proof in order.
The record contains clear and convincing evidence that it is
in F.L.’s best interests for her relationship with her maternal
grandparents to continue. First, we observe this issue was not
really contested at trial; Nathan testified that he believed the
relationship between F.L. and her grandparents was beneficial
and should continue, but he did not want a set visitation sched-
ule. Furthermore, the parties’ temporary mediated agreement,
entered into evidence at trial, expressly stated that “all [par-
ties believe] that it is in the best interest of [F.L.] (age 6) to
share as full a relationship as possible with both Nathan and
her maternal grandparents.” There was also ample evidence
that continuing F.L.’s relationship with her grandparents helps
to facilitate safe and structured interaction with F.L.’s mother,
her same-age cousins, and her extended family, which is also
in F.L.’s best interests. Similar grandparent relationships have
been found to be in the child’s best interests in other cases
decided by this court. 23
Nathan’s primary contention, both before the district court
and on appeal, is that the grandparents did not meet their bur-
den of proving the third element of grandparent visitation: that
allowing such visitation will not adversely interfere with the
parent-child relationship. According to Nathan, ordering grand-
parent visitation on “a mandated schedule would adversely
interfere with his relationship with [F.L.] and his nuclear
23
See, Hamit, supra note 1; Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73(1994).
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Cite as 309 Neb. 776family consisting of [his current wife] and their other three
children.” 24 We addressed a similar argument in Hamit. 25
There, the paternal grandparents sought visitation after their
son died. On the question of whether allowing grandpar-
ent visitation would adversely interfere with the parent-child
relationship, a psychologist interviewed the grandparents and
testified she did not think they were harboring resentment
toward the mother, and other witnesses testified they had never
heard the grandparents speak negatively about the mother in
the presence of the children. The grandparents testified that
they had no animosity toward the mother and that they tried to
follow the mother’s directions and wishes concerning the care
of the children, including returning the children early when
requested. However, the record also contained testimony from
the children’s therapist that one of the children did not want to
visit his grandparents and was afraid of them. The trial court
did not find this aspect of the therapist’s testimony credible,
noting she had never talked with the grandparents or observed
the children with the grandparents, and other evidence in the
record directly contradicted the suggestion that the children
were scared while visiting their grandparents. On our de novo
review, we concluded in Hamit that despite evidence of a
strained relationship between the grandparents and the mother,
the grandparents had shown by clear and convincing evidence
that grandparent visitation of 10 hours per month and 7 days in
the summer would not adversely interfere with the parent-child
relationship.
In contrast, in Morris v. Corzatt, 26 we found the grandparents
had not sufficiently proved the third factor of the grandparent
visitation test. In that case, after the father was killed in an
automobile accident, the maternal grandparents sought visita-
tion. The children’s mother opposed visitation, and she testified
24
Brief for appellant at 23.
25
See Hamit, supra note 1.
26
Morris v. Corzatt, 255 Neb. 182, 583 N.W.2d 26 (1998).
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Cite as 309 Neb. 776that she felt the grandparents undermined her authority with
the children by ignoring her wishes regarding discipline, telling
the children how much better things were at the grandparents’
home compared to their mother’s home, and even taking one
of the children to an eye doctor without the mother’s permis-
sion. Other witnesses observed that the relationship between
the mother and the grandparents was significantly strained and
that they appeared to be competing to “one-up the other for
the children’s affection.” 27 There was also testimony that the
grandparents told the guardian ad litem “‘[t]he children would
be better off with us, we could raise them better.’” 28
The district court in Morris concluded that the persistent
animosity and competition between the grandparents and
the mother was unhealthy for the children, undermined the
­mother’s parental authority, and adversely affected the parent-
child relationship. On de novo review, we agreed and found no
abuse of discretion in denying grandparent visitation.
[9] Here, the facts are far more similar to those in Hamit
than those in Morris. There was no evidence that the grand-
parents were attempting to undermine Nathan’s authority with
F.L. by ignoring his wishes regarding discipline or diet. To the
contrary, they testified they try to communicate with Nathan
and respect his wishes about how to discipline and feed F.L.
during visitation, and they wanted to maintain a positive rela-
tionship. There was evidence that the grandmother spoke nega-
tively about Nathan’s current wife—a claim the grandparents
denied—but it is plainly apparent that the district court consid-
ered the grandparents’ testimony on this issue to be more cred-
ible. When evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than the other. 29
27
Id. at 184, 583 N.W.2d at 28.
28
Id. at 185, 583 N.W.2d at 28.
29
Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d 768 (2020).
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Cite as 309 Neb. 776And to the extent Nathan seems to be arguing that grand­
parent visitation would interfere with his parent-child relation-
ship simply because it would take F.L. away from her paternal
nuclear family, we note that is not the type of interference with
the parent-child relationship that this prong of the grandparent
visitation test was intended to address. All grandparent visita-
tion necessarily results in some time away from the natural
parents, and the reasonableness of the visitation schedule is a
separate issue from whether the grandparents have carried their
burden of showing that visitation would not adversely interfere
with the parent-child relationship. And in any event, as we
discuss next, because the grandparent visitation time awarded
in this case was coextensive with Jessica’s parenting time, it
will have no practical impact at all on the time F.L. spends
with Nathan.
On this record, the district court did not abuse its discre-
tion in finding the grandparents had proved all three factors of
grandparent visitation by clear and convincing evidence.
(c) Grandparent Visitation Schedule
Was Not Abuse of Discretion
Nathan argues that even if grandparent visitation was prop-
erly ordered, the schedule set by the district court was an abuse
of discretion. The district court’s order found the grandparents
met their burden of proof and “should be granted grandparent
visitation time.” It then directed:
[B]ased on the Court’s order in the Custody Modification,
the Court is not defining a set schedule because [the
grandparents] will be seeing [the child] while they super-
vise parenting time with her mother. Should that change
in the future, [the grandparents] should move this Court
for a specific schedule and that will be ordered after a
hearing where all parties can be heard and offer suggested
schedules to the Court.
Nathan argues that this visitation schedule was an abuse
of discretion and “makes no practical sense in application or
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Cite as 309 Neb. 776enforcement.” 30 First, he argues that once the court entered the
order denying his complaint to modify and effectively reinstat-
ing Jessica’s supervised parenting time, the grandparent visi-
tation request was moot and the grandparent visitation order
became simply “advisory” 31 because no case or controversy
was before the court.
[10,11] Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the
resolution of the dispute that existed at the beginning of the
litigation. 32 A case is not moot if a court can fashion some
meaningful form of relief, even if that relief only partially
redresses the prevailing party’s grievances. 33
The reinstatement of Jessica’s supervised parenting time
did not render the grandparents’ request for visitation moot
or merely advisory. Nothing in Nebraska’s grandparent visita-
tion statutes limits the grandparents to seeking visitation only
if one of the parents does not have parenting time. And at
least two Nebraska cases have affirmed awards of grandparent
visitation even when both parents had parenting time. 34 The
grandparents here pursued their statutory right to grandparent
visitation, which ensured their legal right to visitation time
with F.L. The fact that their grandparent visitation schedule
was coextensive with Jessica’s supervised parenting time, as
explained below, does not render the relief ordered by the court
any less meaningful. The reinstatement of Jessica’s parenting
30
Brief for appellant at 26.
31
Id. at 28.
32
Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018).
33
Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 N.W.2d 742(2015).
34
See Rosse, supra note 23 (grandparents given 7 hours visitation every
other month when mother had primary custody and father had 10 hours
visitation every other weekend); Beal v. Endsley, 3 Neb. App. 589, 529
N.W.2d 125 (1995) (grandparents given visitation of fifth weekend of any
month where father had primary custody and mother had parenting time).
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Cite as 309 Neb. 776time therefore did not render the grandparents’ request for
visitation moot or invalid.
Second, Nathan argues the grandparent visitation order is
ineffective because it awarded no specific grandparent time.
Setting aside questions of whether Nathan invited the very
error about which he now complains, we disagree with Nathan
that the court ordered an “open-ended ‘wait and see’” 35 visi-
tation schedule. We understand the court to have ordered
a grandparent visitation schedule that was coextensive with
Jessica’s supervised parenting time.
The Nebraska Court of Appeals addressed a somewhat simi-
lar order in Beal v. Endsley. 36 In that case, the mother and father
were divorced. The father, who lived in Alliance, Nebraska,
had physical custody, and the mother, who lived in Colorado,
had parenting time. The maternal grandparents, who lived in
Kansas, sought grandparent visitation. The district court found
the grandparents had met their burden of proof on all three
grandparent visitation factors and awarded them
“weekend visitation on the fifth weekend of any month
that occurs. They shall also be allowed to exercise week-
end visitation on any weekend or holiday that their daugh-
ter [the mother] is allowed visitation with the children.
They may also have visitation during the summer months
with the minor children when the daughter [the mother]
has visitation with the minor children . . . .” 37
The grandparents appealed, contending the visitation time
awarded was insufficient and thus unreasonable under the
statutes.
In examining the district court’s order, the Court of Appeals
found that the portion of the order stating the grandparents
“‘may’” have visitation during the summer did not award
35
Brief of appellant at 26.
36
Beal, supra note 34.
37
Id. at 594, 529 N.W.2d at 129.
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Cite as 309 Neb. 776specific visitation, but simply recognized the grandparents had
the opportunity to see the children during the mother’s summer
parenting time. 38 And it clarified that the portion of the order
granting the grandparents visitation on the mother’s holidays
and weekends meant they could visit only when the mother
invited them during this time. It thus construed the district
court’s order as awarding specific grandparent visitation time
on only the fifth weekend of any month that occurs and ana-
lyzed whether such an award was reasonable.
Here, the district court similarly concluded the grandparents
had met their burden of proof and were entitled to specific
grandparent visitation. In addressing the visitation schedule,
we construe the order to have declined setting a schedule
that was separate from Jessica’s existing supervised visitation
schedule; instead, the court ordered that grandparent visitation
would occur at the same time the grandparents were supervis-
ing Jessica’s parenting time. Jessica has not opposed such a
schedule and has not cross-appealed on the issue. Furthermore,
we construe the order to acknowledge that if and when the
grandparents are no longer supervising visits between Jessica
and F.L., then they can seek to modify the grandparent visita-
tion order, as is permitted under the grandparent visitation stat-
ute upon showing a material change in circumstances. 39
We thus clarify that, having found the grandparents met their
burden by clear and convincing evidence, the district court
awarded them grandparent visitation coextensive with Jessica’s
supervised parenting time, which the grandparents are respon-
sible for supervising under the 2018 order of modification.
For the sake of clarity, we modify the order of grandparent
visitation to reflect such a construction, and we reject Nathan’s
contention that the court’s grandparent visitation order was an
abuse of discretion.
38
Id. at 598, 529 N.W.2d at 131.
39
See § 43-1802(3).
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Cite as 309 Neb. 776V. CONCLUSION
We affirm the district court’s order denying Nathan’s com-
plaint to modify. And we affirm, as modified, the court’s order
awarding grandparent visitation.
Affirmed as modified.
Freudenberg, J., not participating.