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Harlow v. Lewis4/5/2005
001 order, he had been unemployed, and that he experiences periods of unemployment on a regular basis in his job as an electrician. David stated that he is receiving unemployment compensation and had been employed for only 1 month in 2004. David asked that he retain custody of Skye and that Michelle pay child support based on her current rate of pay, which had increased since the court's May 2001 order.
David testified that if he retains primary possession, he will continue to encourage Skye's relationship with Michelle, and that the visitation could be expanded for Michelle to have Skye overnight on Tuesdays and Thursdays during the summer. David asked that Michelle pay some of his attorney fees.
At the close of all of the evidence, the court noted that both David and Michelle are fit parents and that neither party had proved a material change in circumstances, dictating a change in custody. The court noted, though, that it was required to look at Skye's best interests and that Skye's interests mandated a change in that the parties would now alternate months as Skye's primary caregiver. The court stated that neither party would be required to pay child support and that each party would be responsible for daycare when Skye is in his or her possession. The court also stated that each party was to pay his or her own attorney fees, with Michelle to pay the costs of the action. Subsequently, the court issued an order setting out these findings. David appeals.
ASSIGNMENT OF ERROR
David's sole assignment of error on appeal is that the district court erred in modifying custody of Skye without finding that a material change in circumstances had occurred.
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. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004).
An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004).
ANALYSIS
On appeal, David argues that the district court erred in modifying custody of Skye without finding that a material change in circumstances had occurred. Ordinarily, custody of a minor child will not be modified 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. Heistand v. Heistand, supra. The party seeking modification of child custody bears the burden of showing a change in circumstances. Id. A material change in circumstances 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.
In denying Michelle's motion to modify, the trial court stated that both David and Michelle are fit parents and that it could not find a material change in circumstances, but that Skye's best interests dictated a change in custody. Therefore, the court stated that the joint custody arrangement would remain, but that David no longer had primary physical possession of Skye. Instead, the court ordered that David and Michelle alternate months as Skye's primary custodian and that neither party would be required to pay child support . David contends that the court abused its discretion in modifying the decree. We agree.
Recently, we have stated that "prior
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