Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/05/2022 08:06 AM CDT
- 162 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
Justin J. Winkler, appellant, v.
Crystal R. Winkler, now known as
Crystal R. Werner, appellee.
___ N.W.2d ___
Filed July 5, 2022. No. A-21-467.
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 discre-
tion 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. Child Custody: Appeal and Error. In child custody cases, where the
credible evidence is in conflict on a material issue of 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.
3. Modification of Decree: Child Custody: Proof. 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 that affects the best interests of the child.
Second, the party seeking modification must prove that changing the
child’s custody or parenting time is in the child’s best interests.
4. ____: ____: ____. 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.
5. 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.
6. Modification of Decree: Words and Phrases. A material change in
circumstances means the occurrence of something which, had it been
- 163 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
known to the dissolution court at the time of the initial decree, would
have persuaded the court to decree differently.
7. Visitation: Appeal and Error. Parenting time determinations are mat-
ters initially entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion.
8. Visitation. The best interests of the children are the primary and para-
mount considerations in determining and modifying parenting time.
9. ____. The right of parenting time is subject to continual review by the
court, and a party may seek modification of a parenting time order on
the grounds that there has been a material change in circumstances.
10. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change in circum-
stances which (1) occurred subsequent to the entry of the original decree
or previous modification and (2) was not contemplated when the decree
was entered.
11. Modification of Decree: Child Support: Alimony: Good Cause.
Material change in circumstances in reference to modification of child
support is analogous to modification of alimony for good cause.
12. Modification of Decree: Child Support. Among the factors to be con-
sidered in determining whether a material change of circumstances has
occurred are changes in the financial position of the parent obligated to
pay support, the needs of the children for whom support is paid, good
or bad faith motive of the obligated parent in sustaining a reduction
in income, and whether the change is temporary or permanent. But,
the paramount concern in child support cases, whether in the original
proceeding or subsequent modification, remains the best interests of
the child.
13. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
14. ____. Customarily, attorney fees are awarded only to prevailing parties
or assessed against those who file frivolous suits.
15. Divorce: Attorney Fees. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
Appeal from the District Court for Phelps County: Stephen
R. Illingworth, Judge. Affirmed.
Jaclyn N. Daake, of Duncan, Walker, Schenker & Daake,
P.C., L.L.O., for appellant.
- 164 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
Nicole M. Mailahn and Allison R. Seiler, of Jacobsen, Orr,
Lindstrom & Holbrook, P.C., L.L.O., for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Justin J. Winkler appeals from an order of the district court
for Phelps County overruling his request to modify primary
physical custody of two children born to the now dissolved
marriage between Justin and Crystal R. Winkler, now known
as Crystal R. Werner. Justin also challenges the court’s order
increasing his child support obligation and awarding Crystal
a portion of her attorney fees. For the reasons that follow,
we affirm.
BACKGROUND
Justin and Crystal were married in March 2010, and there
were two children born to the marriage: a daughter born in
2011 and a son born in 2013. Justin and Crystal divorced
pursuant to a decree of dissolution entered in October 2018.
The 2018 decree awarded the parties joint legal custody of the
children, and Crystal was awarded primary physical custody
subject to Justin’s parenting time as set forth in an attached
parenting plan. Justin was also ordered to pay $684 per
month in child support and to maintain health insurance for
both children.
Under the 2018 parenting plan, Justin’s parenting time
included every other weekend, specified holidays, and 6 weeks
during the summer. The plan further provided that “Mother and
Father understand that the needs of the child(ren) may change
as the child(ren) get(s) older and Mother and Father will inter-
pret and apply this Plan in a way that best serves any changing
needs of the child(ren).” The plan also provided that “Mother
and Father can temporarily change the terms of this Plan as
long as they both agree to it.”
- 165 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
In October 2019, Justin filed a complaint to modify custody,
parenting time, and child support. The complaint alleged that
there had been a material change in circumstances since the
entry of the 2018 decree, to wit: Justin exercised parenting
time beyond that outlined in the prior parenting plan; Crystal
relocated, “causing an unstable living situation for the minor
children”; Crystal was “romantically involved with an indi-
vidual who is a major safety concern”; Crystal “continually
failed to meet the financial and support obligations for the
minor children”; and Justin began carrying both children on his
health insurance plan.
In January 2020, Crystal filed an amended answer and coun-
terclaim, denying the pertinent allegations in Justin’s complaint
and seeking an upward modification of Justin’s child support.
Crystal also requested that she be awarded reasonable attorney
fees and costs. Justin answered Crystal’s counterclaim by deny-
ing the allegations therein.
A final hearing on the complaint and counterclaim was
held in February 2021, after which the court entered an order
finding that Justin had failed to prove a material change in
circumstances justifying modification of physical custody. The
court nevertheless modified the 2018 parenting plan to provide
Justin with 8 weeks of summer parenting time, as opposed to
the original 6 weeks. The court also recalculated Justin’s child
support obligation and ordered him to pay $5,000 of Crystal’s
attorney fees. Justin now appeals.
ASSIGNMENTS OF ERROR
Justin assigns, restated, that the district court erred in (1)
finding that Justin failed to meet his burden to prove a material
change in circumstances justifying modification of physical
custody, (2) increasing Justin’s child support obligation, and
(3) ordering Justin to pay a portion of Crystal’s attorney fees.
STANDARD OF REVIEW
[1] Modification of a judgment or decree relating to child
custody, visitation, or support is a matter entrusted to the
- 166 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
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. Lindblad v. Lindblad, 309 Neb.
776, 962 N.W.2d 545 (2021).
[2] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, 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. Eric H. v. Ashley H., 302 Neb. 786,
925 N.W.2d 81 (2019).
ANALYSIS
Modification of Physical Custody.
[3,4] Modifying a custody or parenting time order requires
two steps of proof. Lindblad v. Lindblad, supra. 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 that affects the
best interests of the child. Id. Second, the party seeking modi-
fication must prove that changing the child’s custody or parent-
ing time is in the child’s best interests. Id. Proof of a material
change in circumstances is the threshold inquiry in a proceed-
ing 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. Accordingly, we
first examine whether the court abused its discretion in finding
that Justin failed to prove a material change in circumstances
affecting the best interests of the children.
[5,6] 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. Schrag v. Spear, 290
Neb. 98, 858 N.W.2d 865 (2015). A material change in circum-
stances means the occurrence of something which, had it been
known to the dissolution court at the time of the initial decree,
would have persuaded the court to decree differently. Id.
- 167 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
In this case, Justin raised a number of grievances ranging
from Crystal’s choice of romantic partners and her tumultuous
financial circumstances to the fact that the children have often
shared a bedroom while in Crystal’s care. However, there is
nothing in the record showing a material change in circum-
stances that would render Crystal as unfit or that would prove
the best interests of the children require that Justin be awarded
primary physical custody. In fact, Justin seemed to acknowl-
edge that the children were more or less “happy” and “well
adjusted” under the current custody arrangement. Moreover,
both parties testified that they have generally been able to
communicate well and cooperate with regard to parenting mat-
ters. Indeed, the parties have frequently agreed to temporarily
alter the terms of the 2018 parenting plan, ultimately resulting
in the parties’ exercising nearly equal parenting time since the
2018 decree. Even on appeal, Justin emphasizes that he has had
“little to no issues communicating effectively with [Crystal] to
co‑parent and share legal custody since the time of their sepa-
ration.” Brief for appellant at 16.
Despite what appears to be a harmonious and cooperative
arrangement, Justin argues that “the record is replete with
evidence that material changes regarding the stability, safety,
and well‑being of the parties’ children have occurred since the
time of the decree.” Id. at 12. Justin then identifies a number
of events that occurred subsequent to the 2018 decree and
argues that “[t]he culmination of each of these changes adds up
to materially affecting the children in this action and certainly
constitutes a material change in circumstances.” Id. at 15.
First, Justin points to two of Crystal’s former romantic
partners, Jeremy Johnson and Tyler Stutheit. With regard to
Johnson, the record shows that Crystal moved in with him
in mid‑ to late November 2018. She continued to live with
Johnson until she broke up with him following “an alterca-
tion” in March 2019. Crystal explained that Johnson was upset
about something and began raising his voice and throwing
things around the room. While Johnson never harmed Crystal,
- 168 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
she testified that it was a “scary situation,” and she added that
“[t]hat was the first time I was ever scared of him.” Crystal
indicated that Johnson had exhibited some “controlling or pos-
sessive” behavior prior to that night, but that she had never
before witnessed the sort of violent behavior he exhibited
that night. The children were not present for the incident, and
Crystal ended the relationship immediately thereafter.
With regard to Stutheit, the record shows that Crystal dated
him from approximately June to November 2019. Crystal testi-
fied that she was aware Stutheit had a criminal record and that
she understood it to be related to “a mutual confrontation that
resulted in a criminal arrest.” Crystal denied that there was ever
any form of domestic dispute between her and Stutheit. Crystal
introduced Stutheit to the children on one occasion; however,
she broke up with Stutheit shortly thereafter because “Justin
had an issue with him . . . even though he never brought it up
to me personally.” Rather, Crystal inferred that Stutheit might
be an issue for Justin in light of the allegations Justin raised in
his complaint regarding Crystal’s romantic relationships.
The district court found that Crystal’s relationships with
Johnson and Stutheit were not a basis to modify custody,
as Crystal had handled those relationships appropriately. We
agree. There was no evidence that the children were ever
exposed to any form of domestic violence. In fact, the record
is largely devoid of evidence as to how Crystal’s romantic
relationships may or may not have impacted the best interests
of the children. General grievances about a custodial parent’s
choice of romantic partners, standing alone, are not a basis to
modify a custody order.
Justin also points to Crystal’s living arrangements since
the 2018 decree, and he highlights the fact that the children
have often shared a room while in Crystal’s care. The record
shows that Crystal initially resided in a three‑bedroom apart-
ment after she and Justin separated in 2016. Crystal and the
children resided in that apartment for approximately 21⁄2 years,
until they moved in with Johnson in November 2018. After
- 169 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
the March 2019 incident with Johnson, Crystal moved in
with her friend, Lindsey Britton, until Crystal could get back
on her feet. Crystal testified that she lived with Britton until
November 1, 2019, at which point she and the children moved
into a two‑bedroom house where they continued to reside at the
time of the final hearing.
Crystal testified that the children initially each had their
own room in the three‑bedroom apartment, but they eventually
began sharing one room for sleeping and used the third room
as a play room. Crystal testified that the children continued to
share a room at each subsequent residence; however, she did
not recall Justin’s ever expressing any concern with regard
to that arrangement. Crystal further testified that the children
always got along great and that there had never been any issues
with them sharing a room. Nevertheless, Crystal acknowledged
that the children would need their own rooms eventually, and
she expressed her intention to move into a bigger house once
that was feasible.
Justin also points to what he described as a “kind of a
rough situation” while Crystal was residing with Britton. Justin
testified that Britton reached out to him after Crystal moved
out, expressing various complaints about Crystal’s time there.
Specifically, Britton claimed that Crystal still owed her money
for rent and other living expenses, as well as some cleaning
expenses incurred as a result of Crystal and the children’s liv-
ing there. Crystal, on the other hand, testified that she paid
Britton in full prior to moving out of that house. Crystal testi-
fied that Britton did not expect her to pay anything for the first
couple months after moving out of Johnson’s house, but that
Crystal eventually began paying rent and contributing to utili-
ties. Crystal further testified that she later helped Britton move
out of that house, at which time she also helped Britton clean
the house. Indeed, Justin also recalled that Crystal eventually
“made square” with Britton and returned to help clean the
house when Britton moved out.
- 170 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
Furthermore, as it relates to Crystal’s living arrangements,
Justin points to the fact that Crystal and the children “are cur-
rently in violation of lease [sic] agreement by having pets.”
Brief for appellant at 15. Crystal confirmed that the lease to
her current two‑bedroom house does not allow pets and that
mevertheless, there are two cats living with Crystal and the
children in that house. However, Crystal argues on appeal
that her “landlord is aware that she has the cats and has never
raised it as a matter of concern.” Brief for appellee at 21. In
any case, the evidence regarding Crystal’s living arrangements
does not amount to a material change in circumstances justify-
ing modification of physical custody. Once again, the record is
largely devoid of evidence demonstrating how Crystal’s vari-
ous living arrangements actually impacted the best interests of
the children.
Justin also points generally to Crystal’s financial difficul-
ties since the 2018 decree. Crystal acknowledged her financial
difficulties, including the failure to make car payments that
resulted in the repossession of her vehicle. However, the record
shows that Crystal has been gainfully employed at all times
since the 2018 decree, and Crystal emphasized that she has
always been able to provide for the children’s needs. Indeed,
Justin admitted that the children have always been properly
fed, clothed, and sheltered while in Crystal’s care. The district
court found that Crystal “has persevered despite financial dif-
ficulties” and “has shown good character and still provided for
her children.” Under the circumstances of this case, Crystal’s
financial difficulties do not amount to a material change in cir-
cumstances justifying modification of physical custody.
Justin ultimately argues that he “can provide, and has pro-
vided, a stable living environment with extensive family sup-
port.” Brief for appellant at 15. We have no reason to doubt
that this is true, but the fact that the children could arguably
achieve similar or even somewhat greater stability if Justin had
primary physical custody is not a basis to modify an existing
custody order. In the end, the court found that “both parties are
- 171 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
good parents but that there has not been a material change in
circumstances warranting a modification of physical custody.”
Upon our de novo review of the record, we cannot say this was
an abuse of discretion, and we affirm the court’s finding that
Justin failed to carry his burden to prove a material change in
circumstances justifying modification of physical custody.
Modification of Parenting Plan.
While the district court found that modification of physi-
cal custody was not warranted, it nevertheless modified the
parenting plan to provide Justin with an additional 2 weeks of
summer parenting time. Justin argues this created an unten-
able result on the grounds that the court cannot simultaneously
modify parenting time and find that Justin failed to prove a
material change in circumstances justifying modification of
physical custody. Crystal counters that the court’s modification
was proper in light of the court’s independent responsibility
to ensure every parenting plan is in the best interests of the
children. Moreover, Crystal points out that the modification
“merely formalizes the Parties’ informal agreement” regarding
summer parenting time. Brief for appellee at 23.
[7‑9] Parenting time determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Olander v. McPhillips, 28 Neb. App. 559, 947 N.W.2d 578
(2020). The best interests of the children are the primary and
paramount considerations in determining and modifying par-
enting time. Id. The right of parenting time is subject to con-
tinual review by the court, and a party may seek modification
of a parenting time order on the grounds that there has been a
material change in circumstances. Id.
Under the circumstances of this case, we cannot say it was
an abuse of discretion to modify the parenting plan to pro-
vide Justin with an additional 2 weeks of summer parenting
time. While the court did not specifically identify the material
- 172 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
change in circumstances justifying the modification of parent-
ing time, the parties had previously agreed to informally alter
the terms of the parenting plan to provide Justin with additional
parenting time in the summer. At oral argument, the parties
reiterated that the additional summer parenting time reflected a
mutual agreement, and neither party indicated that the court’s
modification of parenting time was not in the best interests of
the children. Accordingly, we conclude the court acted within
its discretion to modify the parenting plan so as to reflect the
present circumstances of the parties.
Modification of Child Support.
For purposes of the 2018 decree, the parties stipulated that
Justin’s monthly income was $4,000. Because the parties sim-
ply agreed to that figure, there was no evidence as to the source
of Justin’s income. In this case, Justin testified that he earned a
monthly salary of $4,000 from Winkler, Inc., which is consist
ent with the stipulation in the 2018 decree. Justin also testified
to a number of “in‑kind” benefits and other forms of income
that were not accounted for in the $4,000 monthly paycheck
from Winkler, Inc. For example, the district court specifi-
cally noted that Justin resides rent free in a home provided by
Winkler, Inc., and he receives nonmonetary compensation from
Winkler, Inc., in the form of calves to sell, a fuel card, and a
side of beef each year.
While the court mentioned these additional benefits in its
final order, it did not assign them a monetary value for pur-
poses of incorporating them in Justin’s total monthly income.
Rather, the court relied upon Justin’s 2018 and 2019 tax returns,
in conjunction with Justin’s testimony regarding what his 2020
tax return would reflect, to determine that Justin earned an
average yearly income of $54,000. Dividing this number by
12 reveals the basis for the court’s imputing to Justin a total
monthly income of $4,500.
[10‑12] A party seeking to modify a child support order must
show a material change in circumstances which (1) occurred
- 173 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
subsequent to the entry of the original decree or previous
modification and (2) was not contemplated when the decree
was entered. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d
551 (2009). The Nebraska Supreme Court has said that a mate-
rial change in circumstances in reference to modification of
child support is analogous to modification of alimony for good
cause. Id. Among the factors to be considered in determining
whether a material change of circumstances has occurred are
changes in the financial position of the parent obligated to pay
support, the needs of the children for whom support is paid,
good or bad faith motive of the obligated parent in sustaining
a reduction in income, and whether the change is temporary
or permanent. Id. But, the paramount concern in child support
cases, whether in the original proceeding or subsequent modi-
fication, remains the best interests of the child. Id.
On appeal, Justin argues that the district court abused its
discretion because there had not been a material change in
circumstances occurring subsequent to the entry of the 2018
decree. Justin emphasizes that all of the nonmonetary compen-
sation discussed above “existed at the time of the decree and
for many years prior.” Reply brief for appellant at 5. It is true
that Justin was apparently receiving the calves to sell and the
side of beef both before and after the 2018 decree. The record
is less clear with regard to the rent‑free residence and the fuel
card; however, at oral argument, Crystal’s counsel seemed to
concede that Justin’s financial circumstances had not actually
changed since the entry of the 2018 decree. Rather, it appears
that the evidence in this case simply reflects a more accurate
accounting of Justin’s income than was stipulated to in the
2018 decree.
Nevertheless, we cannot say it was an abuse of discretion
to modify Justin’s child support obligation under the circum-
stances of this case. While the evidence suggests that Justin’s
actual monthly income remained more or less unchanged,
Justin’s own child support calculation proposed that his obliga-
tion be calculated from a total monthly income of $4,300 as
- 174 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
opposed to the $4,000 figure used in the 2018 decree. Justin’s
proposed child support calculation also included a $172 deduc-
tion for retirement contributions which he testified that he
was not making. Moreover, the 2018 child support calculation
included a $416 credit for costs associated with the children’s
health insurance, and Justin testified that he is no longer faced
with those costs.
If the court had simply adopted Justin’s proposed child
support calculation, even including the $172 deduction for
retirement contributions that he was not making, the resulting
obligation would have been $770 per month. Excluding the
$172 deduction for retirement contributions and using Justin’s
proposed monthly income of $4,300, Justin’s modified obliga-
tion would have been $782 per month. In either case, Justin’s
proposed child support calculation results in an increase of
more than 10 percent from the stipulated obligation of $684
per month, thus creating a rebuttable presumption of a material
change in circumstances justifying modification. The district
court ultimately recalculated Justin’s child support obligation
using his average monthly income from 2018 to 2020, result-
ing in a modified obligation of $794 per month. Altogether,
we cannot say this was an abuse of discretion, and we affirm
the district court’s upward modification of Justin’s child sup-
port obligation.
Attorney Fees.
[13‑15] Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recov-
ery of attorney fees. Garza v. Garza, 288 Neb. 213, 846 N.W.2d
626 (2014). Customarily, attorney fees are awarded only to
prevailing parties or assessed against those who file frivolous
suits. Id. A uniform course of procedure exists in Nebraska for
the award of attorney fees in dissolution cases. Id.
In this case, the court ordered Justin to pay $5,000 of
Crystal’s attorney fees. The court observed that Crystal
- 175 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WINKLER V. WINKLER
Cite as 31 Neb. App. 162
prevailed on the issues of custody and child support and noted
the relative economic circumstances of the parties. We cannot
say this was an abuse of discretion, and we affirm the court’s
order that Justin pay $5,000 of Crystal’s attorney fees.
CONCLUSION
For the foregoing reasons, we conclude the record fails to
demonstrate an abuse of discretion in any respect. Accordingly,
the order of the district court is affirmed.
Affirmed.