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Harlow v. Lewis4/5/2005
to the modification of a child custody order, two steps of proof must be taken by the party seeking the modification." Adams v. Adams, 13 Neb. App. 276, 285, 691 N.W.2d 541, 548 (2005). We went on to state, "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. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests." Id. at 285, 691 N.W.2d at 548-49.
Thus, it is clear that a court may not modify a child's custody based purely on whether that change is in the child's best interests. Rather, the first question is whether a material change in circumstances has occurred. In the instant case, the court found that there had been no material change in circumstances, and we agree that there is no such evidence on this record.
In her petition to modify, Michelle stated that Skye's custody ought to be modified because David regularly and excessively abuses alcohol and, when doing so, is verbally abusive in the presence of Skye. Michelle also alleged that David's employment is irregular due to his abuse of alcohol.
At trial, Michelle testified that since May 2001, she observed David drinking at a bar on four or five occasions. Michelle stated that on one of those occasions, Skye was with David. Michelle testified that since May 2001, David had not been charged with any crime or traffic violation as a result of drug or alcohol use. David denied any abuse of alcohol and testified that he has a beer once in a while when he is out with his friends. Clearly, the evidence on this record falls far short of showing that David abuses alcohol.
Similarly, Michelle did not prove her allegation that David's employment is irregular because of his alcohol use. At trial, Michelle testified that David is unemployed because he abuses alcohol. David testified that he was unemployed because of lack of work in his industry and that he has been laid off on several other occasions in his job as an electrician. The trial court clearly did not find Michelle's testimony on this issue credible, and we will not overturn the trial court's finding in that regard.
The only other reason Michelle gave to justify a change in Skye's custody is that David becomes verbally abusive after he abuses alcohol. Given our conclusion that the evidence fails to show that David has an alcohol problem, we cannot give any credence to Michelle's claim. We do note the record shows that David and Michelle at times have heated arguments and that Skye may overhear these arguments. There is no evidence to show that these arguments are new. Therefore, we cannot say on this record that the trial court erred in finding that Michelle failed to meet her burden to prove that a material change in circumstances had occurred.
We can say, though, that the district court erred in proceeding to determine whether a change in custody would be in Skye's best interests. As stated above, a court may not change custody unless there has been a material change in circumstances affecting the child's best interests. Even after finding that a material change in circumstances had not occurred, the court modified the previous decree in which the parties had joint custody of Skye, with David's having primary physical custody of Skye and Michelle's having time with Skye on Tuesday and Thursday evenings and every other weekend. The court stated that David and Michelle would now alternate primary physical custody of Skye on a monthly basis, with the other party having visitation during the months in which he or she is not the primary custodian.
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