Weaver v. Weaver , 28 Neb. Ct. App. 716 ( 2020 )


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    WEAVER v. WEAVER
    Cite as 
    28 Neb. Ct. App. 716
    Meaghann Shaw Weaver, appellee, v.
    John Glen Weaver, appellant.
    ___ N.W.2d ___
    Filed August 11, 2020.    No. A-19-1058.
    1. Modification of Decree: Appeal and Error. Modification of a dis-
    solution decree is a matter entrusted to the discretion of the trial court,
    whose order is reviewed de novo on the record, and which will be
    affirmed absent an abuse of discretion by the trial court.
    2. Child Custody. Ordinarily, custody of a minor child will not be modi-
    fied unless there has been a material change in circumstances showing
    that the custodial parent is unfit or that the best interests of the child
    require such action.
    3. Modification of Decree: Child Custody: Proof. In a child custody
    modification case, first, the party seeking modification must show a
    material change in circumstances, occurring after the entry of the previ-
    ous custody order and affecting the best interests of the child. Next, the
    party seeking modification must prove that changing the child’s custody
    is in the child’s best interests.
    4. Divorce: Judgments: Property Settlement Agreements: Final
    Orders. A decree is a judgment, and once a decree for dissolution
    becomes final, its meaning, including the settlement agreement incorpo-
    rated therein, is determined as a matter of law from the four corners of
    the decree itself.
    5. Divorce: Intent. If the contents of a dissolution decree are unam-
    biguous, the decree is not subject to interpretation and construction,
    and the intention of the parties must be determined from the contents of
    the decree.
    6. Divorce. If the contents of a dissolution decree are unambiguous, the
    effect of the decree must be declared in the light of the literal meaning
    of the language used.
    7. Constitutional Law: Foreign Judgments: States. The Full Faith and
    Credit Clause requires states to give the same effect to a judgment
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    in the forum state that it has in the state where the court rendered
    the judgment.
    8.    Stipulations: Parties: Trial: Courts. Stipulations voluntarily entered
    into between the parties to a cause or their attorneys, for the govern-
    ment of their conduct and the control of their rights during the trial
    or progress of the cause, will be respected and enforced by the courts,
    where such stipulations are not contrary to good morals or sound pub-
    lic policy.
    9.    Stipulations: Parties: Courts: Good Cause. Courts will enforce valid
    stipulations unless some good cause is shown for declining to do so,
    especially where the stipulations have been acted upon so that the par-
    ties could not be placed in status quo.
    10.    Stipulations: Parent and Child. Disposition of a question pertaining
    to a child’s best interests is not governed exclusively by a parental
    stipulation.
    11.    Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.
    Appeal from the District Court for Douglas County: James
    T. Gleason, Judge. Reversed and remanded with directions.
    John A. Kinney and Jill M. Mason, of Kinney Mason, P.C.,
    L.L.O., for appellant.
    Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., for
    appellee.
    Moore, Chief Judge, and Riedmann and Arterburn,
    Judges.
    Riedmann, Judge.
    INTRODUCTION
    John Glen Weaver (Glen) filed a complaint to modify
    the judgment of absolute divorce entered by the District of
    Columbia Superior Court, which complaint he had registered
    in the district court for Douglas County, Nebraska. Attached to
    the decree was a separation and property settlement agreement
    signed by the parties which gave Meaghann Shaw Weaver
    physical custody of their minor child. Although the district
    court found that additional time with Glen would be in the
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    best interests of the child, the court found no material change
    in circumstances had occurred; thus, it declined to modify the
    decree. We conclude that the agreement allowed modifica-
    tion of custody without a material change in circumstances.
    Therefore, because the court found modification would be in
    the child’s best interests, we reverse the order and remand
    the cause for the district court to reconsider the relief sought
    by Glen.
    BACKGROUND
    Glen and Meaghann were married in 2004 and had a child
    in 2015. They separated shortly after their child was born, and
    Meaghann later filed to dissolve the marriage. The parties were
    living in Washington, D.C., at the time, and they were able to
    reach an agreement on all aspects of their divorce, including
    custody of the child, parenting time, and child support. Thus,
    the District of Columbia Superior Court entered a decree in
    May 2016. The court incorporated the parties’ agreement into
    the decree and dissolved the marriage.
    Pursuant to the agreement, the parties share joint legal
    custody of the child, but physical custody was placed with
    Meaghann subject to Glen’s parenting time. The agree-
    ment contemplated that both parties would move to Omaha,
    Nebraska, and set forth increased parenting time for Glen upon
    relocation to Omaha. The parties moved to Omaha in the sum-
    mer of 2016. At the time of the modification hearing, Glen had
    parenting time with the child every other weekend from Friday
    evening through Sunday evening and every other Wednesday
    from 4:30 to 6:30 p.m.
    Paragraph 4.2 of the agreement is entitled “Modification of
    Physical Custody” and states:
    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
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    child]. If either party believes the terms of this Agreement
    related to custody are not in [the child’s] best interest
    at a future time, the parties may discuss negotiation of
    a modification of custody in good faith and attempt to
    agree upon a resolution that is in the best interests of [the
    child]. If the parties are unable to agree, they shall fol-
    low the protocols for Dispute Resolution Regarding Child
    Custody set forth herein.
    The protocols for “Dispute Resolution Regarding Child
    Custody” are set forth in paragraph 4.4, which provides:
    The parties agree that if a dispute arises in the future
    about any important parenting issue and they are unable
    to resolve the dispute through several discussions on their
    own, they agree to meet with a mutually agreed upon
    mediator or facilitator, or they will meet with an expert
    in the field of the dispute (physician, teacher, etc.) to gain
    more information and advice. Parents share a commit-
    ment to resolve any future parenting disagreements via
    an alternat[ive] dispute resolution process that remains
    outside of Court. In the event the parties are unable
    to reach an agreement through this dispute resolution
    proc­ess, including agreements related to modifications in
    the physical custody schedule as provided in Paragraph
    4.1 and 
    4.2 supra
    , either party may petition a court of
    competent jurisdiction for relief, provided however that
    any court of competent jurisdiction shall apply the then-­
    governing legal standard to such a request for modifica-
    tion of custody.
    In February 2017, Glen filed a petition for registration of the
    foreign decree in the Douglas County District Court. The court
    entered an order of confirmation in May. In December, Glen
    filed the operative complaint to modify the decree, asking the
    court to award him joint physical custody of the child, allocate
    holidays and vacation time, and recalculate child support.
    A modification hearing was held in April 2019, and the evi-
    dence established that Glen is a lieutenant colonel in the U.S.
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    Air Force and is currently stationed at Offutt Air Force Base.
    He owns a home in Omaha, where the child has her own bed-
    room, and his home is close to a park and a school. Glen was
    fairly certain he would not be relocated to another city in the 4
    months that he has remaining in the military before he is retire-
    ment eligible and testified that thereafter, if he were asked to
    move, he would simply retire from the military.
    Glen is allotted no specific holidays or vacation time in the
    agreement, and he testified that he requested additional parent-
    ing time on at least 50 occasions during the 2 years preceding
    the hearing, but his requests were denied. He also explained
    that although the agreement allows him to see the child for
    additional parenting time while she is at daycare, he is pre-
    cluded from exercising that time in Meaghann’s home, and cur-
    rently, Meaghann’s mother provides full-time daycare for the
    child at Meaghann’s home while Meaghann is working. The
    child informed him that she is attending a preschool program
    two mornings per week, so he has attended an event at her
    school on one occasion. Otherwise, he has been unaware of the
    child’s daycare arrangements, other than Meaghann’s telling
    him that the child is “in a safe place.”
    Glen acknowledged that he agreed to the current custody
    and parenting time arrangement but explained that the child
    was an infant when the agreement was created and Meaghann
    was nursing her. Consequently, his priority was that the child
    be with Meaghann during that time. He testified that he never
    contemplated having so little time with the child when she was
    at daycare and explained that he wants to be an equal parent
    with equal time with the child, including alternating holidays
    and vacation time. He proposed a modified decree awarding
    the parties joint physical custody with a graduated parent-
    ing plan so that he has equal time, under a week-on-week-off
    schedule, by the time the child is 6 years old.
    Meaghann works as a pediatric palliative and hospice physi-
    cian. She testified that she has no objection to Glen’s seeing
    their child as long as it is conducive to the child’s development
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    and schedule. She explained that the current schedule is work-
    ing well for the child and that she is thriving. Nevertheless,
    she offered to give Glen additional parenting time, while still
    allowing her to retain physical custody.
    In an order following the hearing, the district court found
    that although it would be in the child’s best interests to have
    more time with Glen, there was insufficient evidence of a
    material change in circumstances which would warrant modifi-
    cation of the decree. The court therefore denied the complaint
    to modify. Thereafter, Glen filed a motion to alter or amend,
    which was denied. Glen now appeals to this court.
    ASSIGNMENTS OF ERROR
    Glen assigns that (1) the district court erred in determining
    that he was required to plead and prove a material change in
    circumstances, (2) the court erred in determining that he failed
    to prove a substantial and material change in circumstances had
    taken place not within the contemplation of the parties at the
    time of the original judgment, (3) the court erred in failing to
    determine child custody modifications should be determined on
    the basis of the best interests of minor children and should have
    found that the original judgment violated Nebraska’s Parenting
    Act, and (4) administrative dismissal of the first complaint to
    modify was not a decision on the merits.
    STANDARD OF REVIEW
    [1] Modification of a dissolution decree is a matter entrusted
    to the discretion of the trial court, whose order is reviewed de
    novo on the record, and which will be affirmed absent an abuse
    of discretion by the trial court. Hopkins v. Hopkins, 
    294 Neb. 417
    , 
    883 N.W.2d 363
    (2016).
    ANALYSIS
    [2,3] Glen first argues that the district court erred in finding
    that he was required to plead and prove a material change in
    circumstances in order to modify custody. Ordinarily, custody
    of a minor child will not be modified unless there has been a
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    material change in circumstances showing that the custodial
    parent is unfit or that the best interests of the child require such
    action.
    Id. First, the party
    seeking modification must show a
    material change in circumstances, occurring after the entry of
    the previous custody order and affecting the best interests of
    the child.
    Id. Next, the party
    seeking modification must prove
    that changing the child’s custody is in the child’s best inter-
    ests.
    Id. The parties’ agreement,
    which was incorporated into the
    dissolution decree, addresses custody modification. Paragraph
    4.2 states that upon a material and significant change in
    circumstance of either party, or in the needs or interests of
    the child, either party may request modification of physical
    custody. What follows in the remainder of paragraph 4.2 and
    paragraph 4.4 is the procedure for modifying physical cus-
    tody. If those efforts are unsuccessful, the parties may turn to
    the court.
    [4-6] A decree is a judgment, and once a decree for dissolu-
    tion becomes final, its meaning, including the settlement agree-
    ment incorporated therein, is determined as a matter of law
    from the four corners of the decree itself. Carlson v. Carlson,
    
    299 Neb. 526
    , 
    909 N.W.2d 351
    (2018). If the contents of a dis-
    solution decree are unambiguous, the decree is not subject to
    interpretation and construction, and the intention of the parties
    must be determined from the contents of the decree. Rice v.
    Webb, 
    287 Neb. 712
    , 
    844 N.W.2d 290
    (2014). In such a case,
    the effect of the decree must be declared in the light of the
    literal meaning of the language used.
    Id. Based on the
    plain
    language of paragraph 4.2, we conclude that the parties agreed
    that upon the request of either Glen or Meaghann, modification
    of physical custody was permissible without a material change
    in circumstances if doing so would be in the best interests of
    the child.
    Glen argues on appeal that because the parties agreed to
    allow custody modification based solely on the best interests
    of the child, the district court erred in requiring that he prove
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    a material change in circumstances. We recognize that he did
    not specifically raise this argument in the district court, and
    generally, issues raised for the first time on appeal will not be
    considered. See First Express Servs. Group v. Easter, 
    286 Neb. 912
    , 
    840 N.W.2d 465
    (2013). However, Meaghann does not
    claim that Glen waived this issue and, by contesting his request
    for modification, she was asking that the terms of the decree
    be enforced.
    [7] Regardless of whether the specific language of the agree-
    ment was raised in the district court, both state and federal law
    require that we give full faith and credit to the decree, includ-
    ing the parties’ agreement. The Full Faith and Credit Clause of
    U.S. Const. art. IV, § 1, requires states to give the same effect
    to a judgment in the forum state that it has in the state where
    the court rendered the judgment. In re Adoption of Jaelyn B.,
    
    293 Neb. 917
    , 
    883 N.W.2d 22
    (2016). Acting under its author-
    ity in art. IV, § 1, Congress enacted 28 U.S.C. § 1738A (2012)
    to ensure states give full faith and credit to other states’ cus-
    tody orders. See Gjertsen v. Haar, 
    347 P.3d 1117
    (Wyo. 2015).
    Section 1738A(a) provides: “The appropriate authorities of
    every State shall enforce according to its terms, and shall not
    modify except as provided in subsections (f), (g), and (h) of
    this section, any custody determination or visitation determina-
    tion made consistently with the provisions of this section by a
    court of another State.” (Emphasis supplied.)
    Likewise, the Uniform Child Custody Jurisdiction and
    Enforcement Act (UCCJEA), Neb. Rev. Stat. §§ 43-1226 to
    43-1266 (Reissue 2016 & Cum. Supp. 2018), 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 custody determination by a court of another
    state unless the order has been vacated, stayed, or modified
    by a court having jurisdiction to do so under §§ 43-1238 to
    43-1247. See § 43-1260. In addition, a court of this state shall
    recognize and enforce a child custody determination of a court
    of another state if the latter court exercised jurisdiction in
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    substantial conformity with the UCCJEA or the determination
    was made under factual circumstances meeting the jurisdic-
    tional standards of the UCCJEA and the determination has not
    been modified in accordance with the UCCJEA. § 43-1250(a).
    There is no dispute that the trial court in Washington, D.C.,
    properly exercised jurisdiction in conformity with the UCCJEA
    at the time the decree was entered or that Nebraska now
    qualifies as the child’s home state under the UCCJEA. See
    §§ 43-1227 and 43-1238. Therefore, the decree and agreement
    must be enforced according to their terms.
    In a case similar to the case at issue, the parties in Gjertsen
    v. 
    Haar, supra
    , reached an agreement regarding custody of
    their child, visitation, and child support, which was incorpo-
    rated into a judgment in a California court while California
    was the child’s home state. The stipulated judgment recog-
    nized that the father and child had moved to Wyoming and
    that the mother planned to move there as well; it set forth
    the mother’s visitation upon her relocation. The agreement
    also provided that the mother’s visitation schedule “‘may be
    adjusted on request by either party, without the necessity of
    proving a change of circumstances, as is in the best interests
    of [the child] as the Court, in its discretion, may believe to be
    proper.’”
    Id. at 1123.
       In that case, the father registered the judgment in Wyoming;
    thereafter, the mother filed a petition to modify the California
    judgment, asserting that there had been material changes in
    circumstances since the California judgment was entered and
    seeking modification of custody, child support, and visitation.
    Following trial, the court found that the mother was required to
    establish a material change of circumstances in order to war-
    rant a change in custody or visitation but that she had not met
    that burden. The trial court, therefore, denied her modification
    motion, although it also indicated a change in the terms of visi-
    tation may be in the child’s best interests.
    On appeal, the Wyoming Supreme Court observed that
    Wyoming law generally requires proof of a material change
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    in circumstances in order to modify an order concerning child
    custody or visitation. Gjertsen v. Haar, 
    347 P.3d 1117
    (Wyo.
    2015). It noted that the California judgment, however, con-
    tained a provision allowing modification upon a showing that
    it is in the child’s best interests, without requiring proof of a
    material change of circumstances.
    Id. The mother argued
    on
    appeal that the trial court erred in failing to give full faith
    and credit to this provision of the California judgment and,
    instead, requiring her to establish a material change of cir-
    cumstances before it would consider modifying visitation. The
    father asserted that the mother waived this argument by fail-
    ing to present it to the district court, but the Supreme Court
    observed that it was the father who registered the judgment
    in Wyoming and that in response to the mother’s petition, he
    repeatedly asked the trial court to enforce the terms of the
    California judgment.
    Id. Further, the Supreme
    Court found that the significance of
    the provision which allowed changes in visitation in the best
    interests of the child without a showing of material change of
    circumstances was clear.
    Id. It cited the
    Full Faith and Credit
    Clause of the federal Constitution and 28 U.S.C. § 1738A, as
    well as the UCCJEA of Wyoming. Gjertsen v. 
    Haar, supra
    . The
    court noted that under the Supremacy Clause, U.S. Const. art.
    VI, cl. 2, federal law preempts state law in proper cases, and
    in that case, the Wyoming Supreme Court found that federal
    law required it to give full faith and credit to the California
    judgment as long as it was in effect. Gjertsen v. 
    Haar, supra
    .
    The Supreme Court determined that pursuant to 28 U.S.C.
    § 1738A, the California judgment had to be enforced accord-
    ing to its terms, and that those terms, which were stipulated by
    the parties and approved by the California court, state that the
    mother’s visitation rights may be altered upon a showing that
    it is in the best interests of the child, even though no material
    change in circumstances has occurred.
    Likewise here, we must enforce the agreement accord-
    ing to its terms, which permitted a modification of custody
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    without showing a material change in circumstances. Pursuant
    to ­paragraph 4.4 of the agreement, the court was to apply the
    “then-governing legal standard to such a request for modifica-
    tion of custody.”
    [8-10] As previously explained, generally a material change
    in circumstances is required before a court of this state can
    modify custody. See Hopkins v. Hopkins, 
    294 Neb. 417
    , 
    883 N.W.2d 363
    (2016). However, as we found above, the parties
    agreed to allow modification of custody based solely on the
    best interests of the child as an alternative to showing a mate-
    rial change in circumstances. In Walters v. Walters, 12 Neb.
    App. 340, 
    673 N.W.2d 585
    (2004), this court recognized that
    stipulations voluntarily entered into between the parties to a
    cause or their attorneys, for the government of their conduct
    and the control of their rights during the trial or progress of the
    cause, will be respected and enforced by the courts, where such
    stipulations are not contrary to good morals or sound public
    policy. Courts will enforce valid stipulations unless some good
    cause is shown for declining to do so, especially where the
    stipulations have been acted upon so that the parties could not
    be placed in status quo.
    Id. We also recognized,
    however, that
    disposition of a question pertaining to a child’s best interests is
    not governed exclusively by a parental stipulation.
    Id. In Walters v.
    Walters, supra
    , the parties stipulated in their
    divorce decree that the decree with respect to child visitation
    would be subject to modification upon the application of either
    party without a showing of a material change in circumstances.
    This court noted that although whether there is a material
    change in circumstances is one factor courts normally examine
    when modifying child visitation, it is not the only factor; nor
    is it the most important factor.
    Id. We reiterated that
    it is the
    children’s best interests which are paramount to a decision to
    modify.
    Id. We found that
    agreeing to allow visitation to be
    modified without showing a material change in circumstances
    potentially enhances the visitation rights of both parties by
    reducing the potential for litigation over visitations, and it
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    makes modification dependent solely on the best interests
    of the children, not on the nuances of the parties’ circum-
    stances.
    Id. We also determined
    that the stipulation and the decree did
    not contradict the statute controlling child visitation, as the stat-
    ute looks to the best interests of the child as being paramount
    in decisions of child visitation and does not require a mate-
    rial change in circumstances. Walters v. 
    Walters, supra
    . See
    Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2018). We therefore
    concluded that the parties’ stipulation, which was expressly
    made part of the decree, was not against good morals or public
    policy, and thus, the trial court abused its discretion in deny-
    ing modification based on a finding that there was no material
    change in circumstances. See Walters v. 
    Walters, supra
    .
    The same analysis is applicable with regard to custody
    modification. As with visitation, the children’s best inter-
    ests are also paramount to a custody award or modification.
    Section 42-364(2) also governs custody awards and states that
    custody shall be determined on the basis of the best interests
    of the child. As cited above, a party who requests modification
    of custody must show that doing so would be in the child’s
    best interests. See Hopkins v. Hopkins, 
    294 Neb. 417
    , 
    883 N.W.2d 363
    (2016). Thus, the “then-governing legal standard”
    which would apply “to such a request for modification” refer-
    enced in Glen and Meaghann’s agreement would refer to the
    standard set forth in Walters v. Walters, 
    12 Neb. Ct. App. 340
    ,
    
    673 N.W.2d 585
    (2004), which enforces agreements between
    parties to allow modification of custody without requiring
    proof of a material change in circumstances if modification is
    in the best interests of the child. The district court therefore
    abused its discretion in requiring proof of a material change
    in circumstance. Because the district court found that it would
    be in the child’s best interests to have more time with Glen,
    we reverse, and remand for the district court to reconsider the
    relief sought by Glen in accordance with the best interests of
    the child.
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    [11] Given the outcome of this assignment of error, we need
    not address Glen’s remaining assigned errors. An appellate
    court is not obligated to engage in an analysis that is not neces-
    sary to adjudicate the case and controversy before it. Applied
    Underwriters v. S.E.B. Servs. of New York, 
    297 Neb. 246
    , 
    898 N.W.2d 366
    (2017).
    CONCLUSION
    Because the custody agreement incorporated into the parties’
    dissolution decree stipulated that modification of custody could
    be sought based solely on the best interests of the child, the
    district court abused its discretion in requiring that Glen prove
    a material change in circumstances. We therefore reverse the
    court’s order and remand the cause with directions consistent
    with this opinion.
    Reversed and remanded with directions.