Armitage v. Armitage

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Armitage v. Armitage

Case Number
A-16-0281
Call Date
October 12, 2016
Case Time
1:30 PM
Case Summary

A-16-281, Ronny L. Armitage v. Lori R. Armitage (Appellant)

Madison County, District Judge Mark A. Johnson

Attorney for Appellant: Melissa A. Wentling

Attorney for Appellee: Patricia M. Samuels (Copple, Rockey, McKeever, & Schlecht P.C., L.L.O.)

Civil Action: Physical Custody Modification

Action Taken by Trial Court: The district court found there was a material change in circumstances that required a modification of the physical custody of the parties' two minor children, and found it was in the best interest of the children to award physical custody to Ronny.

Assignment of Error on Appeal: Restated, Lori assigns that the district court erred in finding a material change in circumstances warranting modification of the divorce decree as to the physical custody of the children.

Extended Case Summary (for Educational Purposes):
A-16-0281 Ronny L. Armitage (Appellee) v. Lori R. Armitage (Appellant)

Original trial court: District Court, Madison County, Judge Mark A. Johnson

Background:

Ronny Armitage and Lori Armitage were divorced in April 2011. At that time, they agreed to joint legal custody of their two sons, with physical custody granted to Lori. In February 2015, the State of Nebraska filed a complaint to modify Ronny's child support obligation. In July 2015, Ronny filed a 'cross complaint' to modify the divorce decree; he wanted physical custody of the children and for Lori to pay child support. In September 2015, the parties stipulated to an increase in Ronny's child support obligation and an order was entered approving their agreement. Trial was held in January 2016 related to custody, parenting time, and child support (in the event custody should change). Only the parties' two sons, Chrystian (age 15) and Cameron (age 12), testified.

The district court found that both parents were fit to have the care, custody and control of their children, and that both parents appeared to have the best interests of their children in mind. However, the court concluded Ronny was more engaged with the boys and that he provided a positive environment for them. The court found that Lori was not as actively engaged with the children, and that the relationship between Lori and Chrystian had deteriorated. Chrystian wanted physical custody changed to his father, and although Cameron wanted to live with both parents on a 50/50 basis, the district court noted that the Nebraska Supreme Court has stated that it is sound public policy to keep siblings together. Therefore, based upon the testimony of the parties' sons, the district court found there was a material change in circumstances that warranted modification of physical custody and found it was in the children's best interests to award physical custody to Ronny. Lori timely appealed.

The Court of Appeals will look at the following issue raised by Lori in her brief on appeal:

The district court erred in finding that a material change in circumstances occurred which warranted modifying the physical custody of the parties' two children, and that such modification was in the children's best interests.
Lori argues that Nebraska law requires that a divorce decree fixing custody of minor children should not be modified unless there has been a material change in circumstances indicating that the person having custody is unfit for that purpose or that the best interests of the children require such action. A material change in circumstances is something that has occurred, which if the trial court had been aware of the existence of these circumstances initially, the trial court would have granted custody to the other parent. The party seeking modification of custody bears the burden of showing a change in circumstances. Lori argues that although the wishes of a child can be considered, they are not controlling; further, even if the evidence supported changing physical custody of Chrystian, there was no evidence to support changing physical custody of Cameron.

An appellate court reviews such cases de novo on the record (through its own lens, so to speak) to determine whether there has been an abuse of discretion by the trial judge. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Further, 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.

Attorneys: Melissa A. Wentling (Appellant Lori R. Armitage) --- Patricia M. Samuels (Copple, Rockey, McKeever, & Schlecht, PC, LLO) (Appellee Ronny L. Armitage)

Case Location
Doane University
Panel Text
Inbody, Riedmann, and Bishop, Judges