Lindvall v. Lundberg ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
LINDVALL V. LUNDBERG
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
DREW O. LINDVALL, APPELLEE AND CROSS-APPELLANT,
V.
MEGAN M. LUNDBERG, FORMERLY KNOWN AS MEGAN M. BORGMANN,
APPELLANT AND CROSS-APPELLEE.
Filed June 6, 2023. No. A-22-485.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Reversed
and dismissed.
Ryan K. McIntosh, of Brandt, Horan, Hallstrom & Stilmock, for appellant.
Steffanie J. Garner Kotik, of Kotik & McClure Law, for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Megan M. Lundberg, formerly known as Megan M. Borgmann, appeals from the district
court for Lancaster County, which modified the physical custody and parenting time arrangement
between Megan and Drew O. Lindvall as it relates to their minor child. Megan challenges the
evidence in support of the district court’s physical custody modification, and Drew cross-appeals,
challenging the district court’s failure to modify child support. For the reasons that follow, we
reverse and dismiss.
BACKGROUND
Megan and Drew are the parents of one minor child born in 2012. Megan and Drew were
never married and they live apart. Both parties live with a significant other and additional minor
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children that are not at issue in this appeal. In October 2020, the district court awarded the parties
joint legal custody of their minor child, and Megan was awarded primary physical custody subject
to Drew’s rights of parenting time as provided in a mediated parenting plan which the court
approved and incorporated into its order.
The parenting plan provided that Drew “have reasonable and liberal rights of parenting
time,” and established a “nine-five” parenting time schedule during the school year and a
“seven-seven” parenting time schedule during the summer. Under the nine-five schedule, Megan
exercised 9 days of continuous parenting time beginning on Monday at the commencement of
school and ending the following Wednesday after school. On those Wednesdays Drew would pick
the child up from school and exercise 5 days of continuous parenting time from Wednesday to
Monday at the commencement of school. Under the summertime schedule, both parties exercised
7 days of continuous parenting time on an alternating basis, and the minor child was to be
exchanged on Mondays at 7 p.m.
Roughly 8 months after the parties’ parenting plan was adopted, Drew filed a complaint to
modify the parenting plan, seeking joint physical custody and an equal seven-seven parenting time
schedule during the school year. Drew alleged that circumstances had materially changed, to wit:
a. [Megan] refuses to co-parent the minor child ion [sic] a meaningful way.
b. [Megan] refuses to allow positive interactions between [Drew] and the minor
child during [Megan’s] parenting time.
c. [Megan] limits [Drew’s] ability to have a meaningful relationship with the minor
child because of her actions.
d. [Megan] acts in ways that are contrary to the best interests of the minor child.
In answer, Megan denied Drew’s allegations as to a material change in circumstances.
Trial on Drew’s complaint was held in February 2022. The only witnesses to testify at trial
were the parties themselves, along with brief testimony from Megan’s husband and Megan’s sister.
The parties stipulated to the admission of 10 exhibits. The exhibit most discussed at trial was
exhibit 3, which contains 226 pages of correspondence between the parties via an application
called “AppClose.” Both parties agreed that AppClose had been their primary means of
communication between October 2020 and February 2022.
The central dispute at trial was whether there had been a material change in circumstances
warranting modification of physical custody and the parties’ parenting time arrangement. Drew’s
position was that “while these parents each love their child, there are communication issues. . . .
[D]uring the school year especially, the current parenting arrangement does not behoove their
minor child . . . [and] the evidence will show that a seven-seven [parenting time schedule] would
be more appropriate.” In contrast, Megan’s position was that there had not been a material change
in circumstances warranting modification of physical custody or the parenting time schedule.
Megan acknowledged the parties’ communication issues, but she argued that while “[t]here’s
clearly a conflict between the parties, . . . that is nothing new.” Megan maintained that “[s]imply
changing the parenting time to seven-seven is not going to alleviate the conflict of the parties.”
The bulk of the parties’ testimony at trial pertained to their contentious relationship and the
variety of conflicts that had arisen as a result. For example, Drew testified to issues in scheduling
the minor child’s medical appointments and extracurricular activities, and he accused Megan of
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denying him telephone contact and generally restricting his contact with the minor child. On the
other hand, Megan testified that Drew communicated with her in an “[a]ggressive, demeaning,
belittling, rude, [and] scolding” manner, which left her feeling “intimidated” and “upset.” Megan
further suggested that Drew refused to co-parent in a meaningful way, and she highlighted an
incident in which Drew took the minor child to get her ears pierced without Megan’s approval.
The issue most discussed at trial was Megan’s alleged reluctance to cooperate with Drew’s
requests for additional parenting time beyond that which was outlined in the parenting plan. Drew
testified that he had requested additional parenting time on 27 different occasions, and that Megan
either refused those requests or would agree only if Drew forfeited an equal amount of his allotted
parenting time in return. Drew testified to only one occasion in which Megan allowed him to
exercise extra parenting time without simultaneously insisting that they “trade” parenting time.
Megan testified that, from her perspective, Drew “[c]onstantly” requested additional parenting
time, and that she found it difficult to accommodate all of his many requests. Megan then testified
to a number of requests that she did accommodate, but Megan also confirmed multiple occasions
in which she insisted on trading parenting time rather than agreeing to Drew’s requests for extra
time.
Altogether, Drew’s position was that, in light of the parties’ contentious relationship, the
existing parenting time schedule had proven unworkable. Drew argued that an equal seven-seven
parenting time schedule during the school year would alleviate much of the conflict between the
parties and was thus in the best interests of the minor child. In contrast, Megan’s position was that
there simply had been no material change of circumstances warranting modification of the existing
parenting time schedule. Megan emphasized that the parties had “challenges” prior to the 2020
parenting plan, and that those same challenges continued after that parenting plan was adopted.
Rather than alleviate the conflict between the parties, Megan suggested that an equal seven-seven
parenting time schedule during the school year would actually make matters worse.
After trial, the district court entered an order of modification, granting Drew’s request for
joint physical custody and modifying the parenting plan to establish an equal seven-seven
parenting time schedule during the school year. While the court found that a material change of
circumstances had occurred, it failed to make any explicit findings as to what the nature of that
change had been. Megan appealed, and Drew cross-appealed.
ASSIGNMENTS OF ERROR
Megan assigns that the district court erred in (1) finding that a material change in
circumstances affecting the minor child’s best interests had occurred, (2) awarding the parties joint
physical custody, and (3) changing the exchange day and time for the minor child.
On cross-appeal, Drew assigns that the district court erred in failing to recalculate child
support in light of the modification of physical custody.
STANDARD OF REVIEW
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. Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81(2019). In child custody cases, where the credible evidence is in conflict on a material issue of
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fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts rather than another. Id.ANALYSIS
Prior to the modification of a child custody order, two steps of proof must be taken by the
party seeking the modification. 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 interests. Id. A material change in circumstances eludes precise
and concise definition. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021). Generally
speaking, a material change in circumstances is the occurrence of something which, had it been
known to the district court at the time of the initial custody order, would have persuaded the court
to decree differently. See id.The Nebraska Supreme Court has explained that proof of a change in circumstances is not
an optional element to a modification proceeding. Weaver v. Weaver, supra. Rather, proof of a
material change of circumstances is a threshold inquiry in a proceeding on a complaint to modify,
because issues determined in the prior custody order are deemed preclusive in the absence of proof
of new facts and circumstances. Id. Furthermore, limiting custody changes to material changes in
circumstances avoids extensive and repetitive litigation and unnecessary, potentially harmful
fluctuations in the child’s life. Id.Megan assigns that the district court erred in finding a material change of circumstances
affecting the minor child’s best interests. Megan argues that “there has been absolutely no changes
in circumstances that affect the minor child.” Brief for appellant at 11. Megan emphasizes the
relatively short period of time that had passed since the adoption of the parenting plan in October
2020, and she argues that “there was virtually no evidence before the Court of any circumstances
different than when the parties attended mediation” and the court adopted that plan. Id. at 10-11.
Upon our de novo review of the record, we agree.
The vast majority of the evidence pertained to the continuation of the parties’ contentious
relationship and communication issues, and there was no dispute that those circumstances existed
at the time the parties’ parenting plan was adopted. Drew emphasizes Megan’s reluctance to
provide him with additional parenting time above and beyond that which was outlined in the
parenting plan, however, Megan was under no obligation to do so. Moreover, the record reflects
that Megan did accommodate a number of Drew’s requests to temporarily modify the parenting
time schedule on a case-by-case basis. On appeal, Drew relies on the provision in the parenting
plan that he have “reasonable and liberal rights of parenting time.” However, there is no evidence
in the record that Drew’s rights to parenting time had been wrongfully denied, nor is there evidence
that Megan was otherwise violating the terms of the parenting plan.
Rather, the record reflects that Drew was understandably frustrated by the continuation of
conflict between the parties and the disparate parenting time schedule during the school year.
However, as Megan points out, the conflict between the parties is nothing new, and Drew agreed
to the custody and parenting time arrangement in October 2020. Drew simply failed to meet his
burden to demonstrate new facts and circumstances arising since that time that warrant
modification, and it was an abuse of discretion for the district court to find that he had. Thus, we
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reverse the district court’s order of modification and dismiss Drew’s complaint for modification.
Because we conclude that Drew failed to satisfy the threshold inquiry as to a material change of
circumstances, there is no need to address the remainder of Megan’s assignments of error on appeal
or Drew’s assignment of error on cross-appeal. See Brumbaugh v. Bendorf, 306 Neb. 250, 945
N.W.2d 116 (2020) (appellate court not obligated to engage in analysis not necessary to adjudicate
the case and controversy before it).
CONCLUSION
For the foregoing reasons, we reverse the district court’s order of modification and dismiss
the complaint for modification.
REVERSED AND DISMISSED.
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