Korth v. Korth ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/14/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
KORTH v. KORTH
Cite as 309 Neb. 115Cammy L. Korth, appellant, v.
Joel R. Korth, appellee.
___ N.W.2d ___
Filed April 29, 2021. No. S-20-637.
1. Child Custody. Questions concerning relocation and custody are ini-
tially entrusted to the discretion of the trial court.
2. Child Custody: Appeal and Error. Although reviewed de novo on the
record, the trial court’s answer to questions concerning relocation and
custody will ordinarily be affirmed absent an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Child Custody. Custody cases involving parental relocation are among
the most difficult and troubling for courts to decide.
5. Constitutional Law: Parental Rights: Child Custody. Because the
parent proposing the move in a parental relocation has constitutional
rights to travel between states and to migrate, resettle, find a new job,
and start a new life, an award of custody is not and should not be a
sentence of immobilization. Yet, a custody order should also heed both
parents’ constitutional rights to the care, custody, and control of their
child, as well as the child’s need for a stable, healthy environment.
6. Child Custody: Appeal and Error. To aid in settling parental relocation
matters, appellate courts have devised a two-part framework that trial
courts should use to evaluate whether to grant a request for removal.
7. Child Custody: Proof. Under the two-part framework that trial courts
should use to evaluate whether to grant a request for removal to
another jurisdiction, the custodial parent proposing to move the child
must first satisfy the court that he or she has a legitimate reason for
leaving the state. After clearing that threshold, the custodial parent
must next demonstrate that it is in the child’s best interests to continue
living with him or her after the proposed move. While both of these
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309 Nebraska Reports
KORTH v. KORTH
Cite as 309 Neb. 115prongs must be shown to support a removal request, the second prong
is of paramount concern.
8. Child Custody. A custodial parent’s desire to form a new family unit
through remarriage is a legitimate reason for removing his or her child
to another jurisdiction.
9. Child Custody: Visitation. To determine whether removal to another
jurisdiction is in the child’s best interests, a trial court should consider
(1) each parent’s motive for seeking or opposing the move, (2) the
potential that the move holds for enhancing the quality of life for the
child and the custodial parent, and (3) the impact such a move will have
on contact between the child and noncustodial parent when viewed in
the light of reasonable visitation.
10. Child Custody: Proof. It is the moving party’s burden to show, by a
combination of a trial court’s considerations, that removal would be in
the child’s best interests.
11. Evidence: Appeal and Error. When the evidence concerning a trial
court’s considerations is in conflict, an appellate court considers, and
may give weight to, the fact that the trial court heard and observed the
witnesses and accepted one version of the facts over another.
12. Child Custody: Appeal and Error. Although the relocating parent’s
motive is already examined during the threshold prong in a removal
analysis, an appellate court recognizes the wisdom of also weighing
the parents’ motives in the second prong insofar as they relate to the
child’s best interests. At this stage of analysis, both parents’ motives are
assessed to determine if one is more compelling than the other.
13. Child Custody. The ultimate question in a removal analysis is whether
one parent’s aim in supporting or opposing the proposed removal is to
frustrate or manipulate the other parent.
14. ____. There are nine components that may be involved in a trial court’s
consideration as to whether removal to another jurisdiction would
enhance the quality of life of the child and custodial parent: (1) the
emotional, physical, and developmental needs of the child; (2) the
child’s opinion or preference as to where to live; (3) the extent to which
the custodial parent’s income or employment will be enhanced; (4) the
degree to which housing or living conditions would be improved; (5) the
existence of educational advantages; (6) the quality of the relationship
between the child and each parent; (7) the strength of the child’s ties to
the present community and extended family there; (8) the likelihood that
allowing or denying the move would antagonize hostilities between the
two parents; and (9) the living conditions and employment opportunities
for the custodial parent, because the best interests of the child are inter-
woven with the well-being of the custodial parent.
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Nebraska Supreme Court Advance Sheets
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KORTH v. KORTH
Cite as 309 Neb. 11515. ____. A child’s intelligently stated preference regarding custody is
only one consideration among many in a determination of the child’s
best interests.
16. ____. The final consideration in assessing the best interests of the child
is what impact removal to another jurisdiction would have on the con-
tact between the child and the noncustodial parent.
17. Child Custody: Visitation. While every move will have some impact,
the impact of removal to another jurisdiction is chiefly concerned with
the ability of the parent opposing the move to maintain a meaning-
ful parent-child relationship after the move. Such assessment must
be undertaken in the light of the potential to establish and maintain a
reasonable visitation schedule, meaning one that provides a satisfactory
basis for preserving and fostering a child’s relationship with the non-
moving parent.
18. ____: ____. Indications of the custodial parent’s willingness to
comply with a modified visitation schedule also have a place in a
removal analysis.
19. Child Custody. Any move away from a parent is likely to hinder that
parent’s relationship with the child.
20. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
21. Child Custody. Physical custody over a minor child will not ordinarily
be modified absent a material change in circumstances, which shows
either that the custodial parent is unfit or that the best interests of the
child require such action.
22. Modification of Decree: Child Custody: Proof. It is the burden of the
party seeking modification to show two elements by a preponderance
of the evidence: First, that since entry of the most recent custody order,
a material change in circumstances has occurred that affects the child’s
best interests, and second, that it would be in the child’s best interests to
change custody.
23. Modification of Decree: Words and Phrases. A material change in
circumstances is an occurrence that, if it had been known at the time the
most recent custody order was entered, would have persuaded the court
to decree differently.
24. Modification of Decree: Child Custody. Before custody is modified,
it should be apparent that any material change in circumstances alleged
will be permanent or continuous, not merely transitory or temporary.
25. ____: ____. Removal of a child from the state, without more, does
not amount to a change of circumstances warranting a change of cus-
tody. Nevertheless, such a move, when considered in conjunction with
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KORTH v. KORTH
Cite as 309 Neb. 115other evidence, may result in a change of circumstances that warrants
a modification.
26. Child Custody. Physical custody involves the exercise of day-to-day
decisionmaking and continuous supervision over a child for significant
periods of time.
27. ____. Depending on the child’s age and needs, physical custody may
include providing suitable shelter, clothing, food, toys, and emo-
tional care.
28. ____. While the child’s best interests is also a consideration in a removal
analysis, the relevant consideration in that context is limited to whether
remaining with the custodial parent after removal to another jurisdiction
would be in the child’s best interests.
29. ____. A relevant consideration in a relocation is whether changing cus-
tody to the noncustodial parent would be in the child’s best interests.
30. ____. Determining whether a change in custody is in the child’s best
interests requires consideration of various mandatory and permis-
sive factors.
31. Modification of Decree: Child Custody: Visitation. Relevant consid-
erations that may also be considered in a change in custody include the
stability of the child’s existing routine, minimization of contact and con-
flict between the parents, and the general nature and health of the child.
No one factor is dispositive, and various factors may weigh more or less
heavily, depending on the facts of the case. The one constant is that the
child’s best interests are always the standard by which any custody or
parenting time decision is made.
Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Affirmed.
Loralea L. Frank and Nathan P. Husak, of Bruner, Frank &
Schumacher, L.L.C., for appellant.
Nicole J. Luhm and Elizabeth J. Klingelhoefer, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
This appeal concerns the “where” and “with whom” of
three siblings’ living situation. C.K., T.K., and I.K. were born
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309 Nebraska Reports
KORTH v. KORTH
Cite as 309 Neb. 115while their parents, Cammy L. Korth and Joel R. Korth, were
married. The couple then divorced, and Cammy was awarded
sole physical custody over the children, subject to parenting
time with Joel. Cammy and Joel agreed to live within 20 min-
utes of each other near Kearney, Nebraska.
When Cammy remarried, she requested to move the children
with her out of state to live with her new husband. But after a
trial, the trial court found that such a move, although proposed
for a legitimate reason, was not in the children’s best interests.
The court thus denied Cammy’s removal request and instead
awarded sole physical custody over the children to Joel, subject
to parenting time with Cammy.
Because the trial court did not abuse its discretion in deny-
ing removal and modifying custody, we affirm.
II. BACKGROUND
1. Divorce
Cammy and Joel married in 2001. Between 2005 and 2013,
Cammy gave birth to three children: C.K., T.K., and I.K.
The family lived together in Kearney until October 2018,
when Cammy filed a complaint for dissolution of the mar-
riage. Joel entered a voluntary appearance in the dissolution
action, and in early 2019, Cammy and Joel agreed to terms for
their divorce.
Accepting those terms, on April 3, 2019, the district court
adopted a parenting plan to provide for the children’s care and
custody. Cammy and Joel were awarded joint legal custody
over the children, and Cammy was awarded sole physical cus-
tody, subject to parenting time with Joel every other weekend,
during summers, and on rotating holidays. Both parents were
allowed “liberal telephone contact with the minor children
during reasonable hours” and were encouraged to provide
“a maximum opportunity” for each other to attend the chil-
dren’s events.
In the parenting plan, Cammy and Joel agreed their “[c]hil-
dren shall attend Amherst Public Schools from Kindergarten
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KORTH v. KORTH
Cite as 309 Neb. 115through 12th grade [and] unless [Cammy] and [Joel] agree to a
change, the parents will live within 20 minutes of one another
and [of] Amherst Public Schools.” Another provision in the
parenting plan reiterated, “[Cammy] and [Joel] will live within
20 minutes of each other to assist in all aspects of co-parenting,
children’s activities and involvement.”
2. Request to Modify
Cammy remarried on February 14, 2020. On February 24,
she filed a complaint in the district court for Buffalo County
to modify the parenting plan. Cammy sought leave to move
the children with her to Westfield, Indiana, a city in the
Indianapolis, Indiana, metropolitan area where she planned to
live with her new husband.
Cammy claimed that the move would be in the children’s
best interests because it would improve their housing and liv-
ing situation, allow them greater opportunities, and enhance
her own “income or employment.” She claimed that her remar-
riage and intent to relocate constituted a material change in
circumstances that warranted a change in the parenting plan.
She denied that her request to move was an attempt to frus-
trate Joel’s parenting time or to prevent him from participating
meaningfully in the children’s lives.
Joel filed an answer in which he contested Cammy’s basis
for moving the children out of state and raised an affirmative
defense to Cammy’s proposed modified parenting plan. He
alleged there had been no material change in circumstances
because “[Cammy had] already [been] in communications with
her now husband at the time the [dissolution] [d]ecree was
entered . . . and that during the entirety of those communica-
tions and ensuing relationship [her now] husband resided in the
State of Indiana.”
3. Trial
Cammy testified at trial about the advantages she and
the children would enjoy while living in Westfield. Cammy
claimed that because she would be able to live in her husband’s
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KORTH v. KORTH
Cite as 309 Neb. 115house and rely on his income, she would reduce her workload
and thus have more time at home with the children. She
claimed that her husband’s house, although still being remod-
eled, would soon have ample space for her children and,
during his parenting time, for her husband’s two daughters.
Cammy emphasized that she desired for the children to be
raised in “a two-parent household,” but that she was “not try-
ing to replace [Joel]” in their lives.
As compared to Kearney, Cammy testified that Westfield
would allow the children to attend larger, higher-ranked schools
with more class offerings and activities. For example, C.K.,
who played on a regional ice hockey team in Kearney, would
be eligible to play in Westfield High School’s highly competi-
tive hockey program. T.K., another hockey player, and I.K., a
dancer and gymnast, could also continue their activities at
private clubs in Westfield. To show the children’s breadth of
opportunities after moving, Cammy offered into evidence the
Westfield High School activity book which, she noted, “was
over 15 pages long.” Asked whether the children would have
to give up any activities by moving, Cammy replied, “I can’t
think of any.”
Cammy denied that she would ever stop Joel from having
parenting time with the children, particularly if he traveled the
750 miles from his home near Kearney to Westfield. Cammy
acknowledged that Joel “has a very loving relationship” with
the children, “loves and cares for those children,” and “is
a good dad.” She also acknowledged that she would move
to Westfield even if her children were not allowed to move
with her.
The oldest child, C.K., who was 14 years old at the time
of trial, testified in support of the move. Speaking in camera
with only the court, he expressed optimism that the move
would allow him to play in a more competitive hockey
program, to attend a larger school with more class offer-
ings, and to live near many college options as he proceeded
through high school. When pressed, C.K. acknowledged that
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KORTH v. KORTH
Cite as 309 Neb. 115his knowledge about how his life might look in Westfield
derived “only [from] what my mom’s told me, really.” Still,
the record indicates he stated an intelligent preference, sup-
ported by sound reasoning.
Cammy next called her husband to testify. He described
the healthy relationships he had attempted to foster with the
children. He also claimed that his job in Westfield was non-
transferable and that it therefore made more financial sense for
Cammy to move to where he lived rather than for him to move
closer to where she lived.
Joel testified that throughout the children’s lives he had
been “daily” present and involved in their activities. When,
from an early age, C.K. and T.K. expressed interest in ice
hockey, Joel learned to ice skate and began coaching their
teams. He also coached I.K.’s softball team, taught the chil-
dren’s 4-H classes, and served as a councilman for the church
in which the children were being catechized. Joel claimed that
whereas he had only ever missed two of the children’s activi-
ties, including those occurring on days outside of his parent-
ing time, “Cammy ha[d] missed quite a few,” especially since
she had begun traveling frequently to visit her now husband
in Indiana.
Although Joel acknowledged that Westfield is in a more
urban setting than Kearney, he cited the benefits to the children
in remaining near Kearney. He and Cammy had chosen to raise
the children there. Indeed, they had opted to send the children
to Amherst Public Schools precisely for its size, despite the
availability nearby of larger schools, more comparable in size
to Westfield’s schools. In Amherst Public Schools and around
Kearney, the children had always been surrounded by sup-
portive friends and neighbors, as well as family on both their
maternal and paternal sides. By contrast, Joel noted, no bio-
logical relatives resided near Westfield.
Moving to Westfield would upend the stability in the
children’s lives, Joel claimed. Since Cammy had filed the
request to modify, Joel had already noticed tension in their
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KORTH v. KORTH
Cite as 309 Neb. 115coparenting relationship. Recently, Joel had likewise observed
hostility between Cammy and her parents, who lived near
Kearney. Joel expressed concern that the children’s relation-
ships with him and with the rest of their family would suffer if
the children moved out of state.
Rather, Joel requested that the children remain in Kearney
and live with him. He had recently been promoted to a super-
visory role at his work and would thus have the flexibility nec-
essary to ready the children every morning for school and be
present for them after work and on his days off. To the extent
he would need to work outside of school hours, Joel said that
C.K. and neighbors could help to supervise the children.
Four witnesses also testified against removal. The witnesses
generally voiced concern that uprooting the children from the
Kearney community would harm the children’s social and
emotional well-being. One witness also conveyed her willing-
ness to help supervise the children and transport them to and
from activities if they lived with Joel and he were temporar-
ily unavailable.
4. District Court Judgment
Based on the evidence adduced at trial, the district court
denied Cammy’s request to remove the children to Indiana.
The court’s order observed that “removal cases are very dif-
ficult cases for a trial court to decide.” While “[Cammy’s]
decision to pursue a relationship and eventually marry a
person living at a distant location was a matter of her own
choosing[,] [s]uch a relationship has consequences for all par-
ties involved.”
Then, despite finding that “[a] desire to reside with a new
spouse is a legitimate reason for removing the minor children
from the [s]tate,” the district court concluded that “[Cammy]
has not met her burden of proof that the move is the best inter-
est of the minor children.”
In addition, based on Cammy’s acknowledgment that she
planned to move to Westfield regardless of whether the chil-
dren were allowed to go with her, the district court deemed
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KORTH v. KORTH
Cite as 309 Neb. 115the existing parenting plan to be “obviously unworkable.” The
court accordingly modified it, awarding Joel sole physical cus-
tody over the children, subject to parenting time with Cammy
one weekend per month, during summers, and on rotating holi-
days. Cammy and Joel retained joint legal custody. Joel’s child
support obligation was suspended.
Cammy appealed, and we moved the case to our docket.
III. ASSIGNMENTS OF ERROR
Cammy assigns the district court erred in (1) denying her
request to remove the children with her from Nebraska and
(2) modifying the divorce decree to award Joel sole physical
custody over the children.
IV. STANDARD OF REVIEW
[1-3] Questions concerning relocation and custody are ini-
tially entrusted to the discretion of the trial court. 1 Although
reviewed de novo on the record, the trial court’s answer to
such questions will ordinarily be affirmed absent an abuse of
discretion. 2 A judicial abuse of discretion exists if the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. 3
V. ANALYSIS
1. Removal
[4,5] As we have observed before, custody cases involv-
ing parental relocation are among the most difficult and trou-
bling for courts to decide. 4 Because the parent proposing the
1
See Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021).
2
See id.3
Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
4
See, State on behalf of Ryley G. v. Ryan G., 306 Neb. 63, 943 N.W.2d 709(2020); Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
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Cite as 309 Neb. 115move has constitutional rights to travel between states and
to “‘migrate, resettle, find a new job, and start a new life,’”
an award of custody is not and should not be a sentence of
immobilization. 5 Yet, a custody order should also heed both
parents’ constitutional rights to the care, custody, and con-
trol of their child, 6 as well as the child’s need for a stable,
healthy environment.
[6,7] To aid in settling these matters, we have devised a two-
part framework that trial courts should use to evaluate whether
to grant a request for removal. 7 Under that framework, the
custodial parent proposing to move the child must first satisfy
the court that he or she has a legitimate reason for leaving the
state. 8 After clearing that threshold, the custodial parent must
next demonstrate that it is in the child’s best interests to con-
tinue living with him or her after the proposed move. 9 While
both of these prongs must be shown to support a removal
request, the second prong is of paramount concern. 10
(a) Legitimate Reason
[8] Here, it is undisputed that the first prong of the above
removal framework was met. We have held previously that a
custodial parent’s desire to form a new family unit through
remarriage is a legitimate reason for removing his or her
5
Daniels v. Maldonado-Morin, 288 Neb. 240, 243, 847 N.W.2d 79, 82
(2014) (quoting Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.
Ed. 2d 600 (1969), overruled on other grounds, Edelman v. Jordan, 415
U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)). See, also, Ryan G.,
supra note 4.
6
Daniels, supra note 5 (citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000)); Steffy, supra note 4. See, also, Davis v.
Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).
7
See Ryan G., supra note 4.
8
See id.
9
See id.
10
See, id.; Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
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KORTH v. KORTH
Cite as 309 Neb. 115child to another jurisdiction. 11 Joel does not allege that
Cammy’s request to remove the children to Indiana was aimed
at frustrating his parenting time. 12 Instead, as Cammy testified
at trial, her aim in moving was to bring the children with her to
live with her new husband.
Our removal analysis is thus limited to the second prong of
the framework.
(b) Best Interests of Child
[9] Under the second prong, we articulated in Farnsworth v.
Farnsworth 13 three “broad considerations” that should “serve
as appropriate guideposts” in a trial court’s analysis. To deter-
mine whether removal to another jurisdiction is in the child’s
best interests, a trial court should consider (1) each parent’s
motive for seeking or opposing the move, (2) the potential that
the move holds for enhancing the quality of life for the child
and the custodial parent, and (3) the impact such a move will
have on contact between the child and noncustodial parent
when viewed in the light of reasonable visitation. 14
[10,11] These three considerations are not exhaustive, nor
will they be present in every case. 15 It is the moving party’s
burden to show, by a combination of these considerations, that
removal would be in the child’s best interests. 16 When the evi-
dence concerning one of these considerations is in conflict, an
appellate court considers, and may give weight to, the fact that
the trial court heard and observed the witnesses and accepted
one version of the facts over another. 17
11
See, e.g., Daniels, supra note 5; Demerath v. Demerath, 233 Neb. 222,
444 N.W.2d 325 (1989); Gerber v. Gerber, 225 Neb. 611, 407 N.W.2d 497(1987); Maack v. Maack, 223 Neb. 342, 389 N.W.2d 318 (1986).
12
Compare Schrag, supra note 10. See, also, Daniels, supra note 5.
13
Farnsworth, supra note 4, 257 Neb. at 249, 252, 597 N.W.2d at 598, 599.
14
See, id. Accord Ryan G., supra note 4.
15
See Farnsworth, supra note 4.
16
See Steffy, supra note 4.
17
Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020).
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Cite as 309 Neb. 115In its order denying removal, the district court recited all
three of the Farnsworth considerations. Its analysis, how-
ever, only explicitly considered the second, concluding that
the proposed move was not likely to enhance the quality of
life for the children and Cammy. Still, we find no abuse of
discretion in the district court’s application of that second
Farnsworth consideration. And we find that the other two
considerations also favored, or were at least neutral to, Joel’s
position against removal.
(i) Each Parent’s Motive
[12,13] Although the relocating parent’s motive is already
examined during the threshold prong in a removal analysis,
we have recognized the wisdom of also weighing the parents’
motives in the second prong insofar as they relate to the child’s
best interests. 18 At this stage of analysis, both parents’ motives
are assessed to determine if one is more compelling than the
other. 19 The ultimate question in this assessment is whether one
parent’s aim in supporting or opposing the proposed removal is
to frustrate or manipulate the other parent. 20
As stated above, Cammy’s motive for proposing to move
the children is that she has remarried and wishes to form a new
family unit with her husband in Indiana. It is understandable
that Cammy would wish for the children, over whom she has
exercised sole physical custody since the divorce, to join that
new family unit with her.
Joel notes that in several provisions of the parenting plan,
Cammy agreed to live within 20 minutes of him near Kearney
and that Cammy had already been “talking” to her now hus-
band when she stipulated to those provisions in the parent-
ing plan. 21 However, Cammy contends that she did not at the
18
See Farnsworth, supra note 4. See, also, Schrag, supra note 10.
19
See Farnsworth, supra note 4.
20
Steffy, supra note 4. See, e.g., Schrag, supra note 10.
21
Brief for appellee at 6.
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Cite as 309 Neb. 115time anticipate marrying him or moving out of state to live
with him. Thus, Cammy claims, contrary to Joel’s suggestion,
that she agreed to the parenting plan in good faith and that her
motive for subsequently seeking removal was not to frustrate
Joel’s parenting time.
Joel’s motive for opposing removal is no less compelling.
He has developed close relationships with the children borne
from daily interactions and parenting time with them, and he
understandably worries that if they are allowed to move 750
miles away, he is unlikely to see them as often or maintain
the closeness of those relationships. Joel’s record of consist­
ently exercising his parenting time and developing a positive
relationship with the children indicates that he is primarily
concerned with maintaining frequent and regular contact with
the children.
In light of the record evidence, while Joel’s motive here is
perhaps slightly more compelling, the record does not indicate
that either parent has come to their position in an effort to frus-
trate or manipulate the other. We deem this first consideration
under Farnsworth equally balanced between the parties.
(ii) Enhanced Quality of Life
The second consideration under Farnsworth is whether
removal to another jurisdiction would enhance the quality of
life of the child and custodial parent. 22 This was the consider-
ation emphasized in the district court’s order.
[14] As the district court found, there are nine components
that may be involved in this consideration: (1) the emotional,
physical, and developmental needs of the child; (2) the child’s
opinion or preference as to where to live; (3) the extent to
which the custodial parent’s income or employment will be
enhanced; (4) the degree to which housing or living condi-
tions would be improved; (5) the existence of educational
advantages; (6) the quality of the relationship between the
22
See Farnsworth, supra note 4.
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Cite as 309 Neb. 115child and each parent; (7) the strength of the child’s ties to the
present community and extended family there; (8) the likeli-
hood that allowing or denying the move would antagonize
hostilities between the two parents; and (9) the living condi-
tions and employment opportunities for the custodial parent,
because the best interests of the child are interwoven with the
well-being of the custodial parent. 23
The record largely supports the district court’s analysis of
these components in support of its determination that mov-
ing might not enhance the quality of life for the children and
Cammy. Having lived in the Kearney community for all of
their lives, the children are acclimated and comfortable there.
Their friends and all of their family live nearby. In contrast,
apart from Cammy, the children would have no other biological
family in Indiana.
In Kearney, the children play sports, are engaged in clubs,
and participate in church activities. They have earned good
grades. And the fact that the parents jointly selected Amherst
Public Schools over other, larger schools around Kearney indi-
cates they did not believe it was in the children’s best interests
to attend a larger school. Indeed, while larger schools like
Westfield High School may offer more courses and activities,
the children appear to be thriving in the smaller setting that
Amherst Public Schools provides.
Moving to Westfield would upend the stability in the chil-
dren’s lives. Given its distance, such move would also inevi-
tably limit Joel’s contact with the children. Likely for this
reason, Cammy’s request for removal appears to have already
antagonized hostilities between her and Joel.
It is true that moving to Westfield would likely enhance
the income of Cammy’s household. The district court found
to the contrary, observing that Cammy had quit her job in
Kearney in anticipation of the move and so far has been unable
to find work in Westfield. Still, Cammy’s new husband’s
23
See id. Accord, Steffy, supra note 4; Brown v. Brown, 260 Neb. 954, 621
N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000).
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Cite as 309 Neb. 115salary is nearly three times what Cammy previously was
earning annually, and he owns a house, whereas Cammy was
renting a duplex. Cammy’s husband testified he was willing
to support Cammy and the children and, unless she wished
to do so, did not expect her to seek full-time employment
upon moving. Therefore, even if Cammy’s own employment
after the move does not yield enhanced income, it appears
likely that so long as she and her husband remain married,
Cammy’s household income will be improved by virtue of her
husband’s earnings.
It is also true that C.K. stated an intelligent preference, sup-
ported by sound reasoning, to move to Westfield. He wished to
attend school in Westfield, play on the Westfield High School
hockey team, and live near colleges he might one day wish to
attend. In cases where the child’s stated preference is given
significant consideration, the child is typically at least 10 years
old; C.K. was 14 years old at the time of trial. 24
[15] However, as the district court rightly noted, a child’s
intelligently stated preference regarding custody is only one
consideration among many in a determination of the child’s
best interests. 25 Indeed, Farnsworth makes explicit that the
child’s stated preference is typically only one of about nine
components in determining whether a move will enhance the
child’s and moving parent’s quality of life. 26 The district court
therefore rightly concluded that although C.K.’s stated prefer-
ence was a “factor weigh[ing] slightly in favor of the move,”
it did not dispositively show that removal would enhance the
quality of life of the children and Cammy.
To the contrary, other components indicated to the district
court that the children’s and Cammy’s quality of life would not
be enhanced by the move. We cannot say this was an abuse
of discretion.
24
See Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020).
25
See Ryan G., supra note 4. See, also, Jaeger, supra note 24.
26
See Farnsworth, supra note 4. Accord Steffy, supra note 4.
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Cite as 309 Neb. 115(iii) Impact on Noncustodial
Parent’s Visitation
[16-18] The final consideration under Farnsworth in assess-
ing the best interests of the child is what impact removal to
another jurisdiction would have on the contact between the
child and the noncustodial parent. 27 While every move will
have some impact, this consideration is chiefly concerned
with the ability of the parent opposing the move to maintain
a meaningful parent-child relationship after the move. 28 Such
assessment must be undertaken in the light of the potential
to establish and maintain a reasonable visitation schedule,
meaning one that provides a satisfactory basis for preserv-
ing and fostering a child’s relationship with the nonmoving
parent. 29 Indications of the custodial parent’s willingness to
comply with a modified visitation schedule also have a place
in this analysis. 30
Here, the record indicates that Joel has formed a strong
relationship with each of the three children. He exercises all
parenting time that he is allotted, is involved in the children’s
activities, and transports them to activities when needed. He
testified that since the divorce, he has periodically exercised
the role of “primary caregiver.” It is uncontested that Joel’s
relationship with the children is important to both Joel and
the children.
Although Cammy testified that she is willing to accommo-
date Joel’s inperson visitation rights and that Joel can main-
tain a long-distance relationship with the children via daily
phone calls, the record indicates that the move will neverthe-
less hinder the meaningfulness of Joel’s ability to interact with
the children. Joel testified that Westfield is approximately
27
See Farnsworth, supra note 4. Accord Ryan G., supra note 4.
28
See, Brown, supra note 23; Jack, supra note 23; Kalkowski v. Kalkowski,
258 Neb. 1035, 607 N.W.2d 517 (2000); Farnsworth, supra note 4.
29
See, Ryan G., supra note 4; Farnsworth, supra note 4.
30
Farnsworth, supra note 4.
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Cite as 309 Neb. 115750 miles, at least an 11-hour drive, from Kearney. This sig-
nificant distance would make it impractical for Joel to visit in
person with his children on most days. Nor could Joel con-
tinue to coach the children’s hockey and softball teams, teach
their 4-H classes, or help to oversee their catechism. And,
considering that the children have been accustomed to daily
inperson contact with Joel for all of their lives, limiting that
contact with the children on most days to phone calls would
be a meaningful disruption in their lives.
[19] Obviously, any move away from a parent is likely to
hinder that parent’s relationship with the child. 31 A reduction
in parenting time therefore does not necessarily preclude a cus-
todial parent from relocating for a legitimate reason. 32 But due
to the closeness of the parent-child relationship in this case,
we find that a move would have a particularly acute negative
impact on Joel’s ability to visit the children and be a part of
their lives. This third consideration under Farnsworth hence
weighs against removal.
Based on our evaluation of the three considerations dis-
cussed in Farnsworth, we cannot say that the district court
abused its discretion in finding Cammy had not met her burden
of showing that removal was in the children’s best interests.
Cammy’s first assignment of error is without merit.
2. Change of Physical Custody
Cammy assigns, second, that even if it was not error to
deny her request to remove the children, it was still error for
the district court to modify the parenting plan to award sole
physical custody over the children to Joel. She argues in her
brief that the district court’s modification of physical custody
was unsupported by the evidence and that such error was
31
See id.32
See, Hicks v. Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986); Little v. Little,
221 Neb. 870, 381 N.W.2d 161 (1986). See, also, Dragon v. Dragon, 21
Neb. App. 228, 838 N.W.2d 56 (2013).
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Cite as 309 Neb. 115compounded by the fact Joel failed to file a formal pleading
raising the issue that custody might be modified. To the con-
trary, Cammy alleges that Joel’s answer denied there had been
a material change of circumstances that warranted a change
in custody.
[20] We note, as an initial matter, that Cammy has failed to
properly assign error based on Joel’s alleged failure to seek a
change in custody. To be considered by an appellate court, an
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error. 33
But the assignments of error section of Cammy’s brief states
only that “[t]he District Court of Buffalo County Abused its
Discretion by Awarding [Joel] Physical Custody [over] the
Minor Children.” There is no specifically assigned error based
on Joel’s alleged failure to request a change in custody.
And even if it had been properly assigned, this alleged error
is without merit. As best we understand it, Cammy’s argument
is that she was not afforded notice that her removal action
might result in a change of custody over the children. In a simi-
lar context, we have stated that when a trial court determines at
a general custody hearing that joint physical custody is or may
be in a child’s best interests but neither party has requested
joint custody, due process requires the court to give the par-
ties an opportunity to present evidence on the issue before it
imposes joint custody. 34 For example, in Zahl v. Zahl, 35 where
both parties had only sought sole physical custody over the
children and neither party had requested joint custody, we
reversed the trial court’s award of joint physical custody, rea-
soning that the parties had not been put on notice prior to trial
that joint custody was in issue.
33
See Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).
34
See Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).
35
Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), disapproved on
other grounds, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933,
932 N.W.2d 692 (2019).
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Cite as 309 Neb. 115In contrast, we found in Blank v. Blank 36 that the record
indicated both parents had received reasonable notice, “unlike
the complete lack of prior notice in Zahl.” To support that
conclusion in Blank, we emphasized certain pleadings and tes-
timony that indicated the parents knew or should have known
joint physical custody may be an alternative outcome to their
requests for sole physical custody. 37
Cammy points to no opinion in which we have detailed a
similar notice requirement prior to a trial court’s modification
of physical custody during a removal proceeding. Assuming,
without deciding, that due process imposes a similar notice
requirement in this context, we find that, like in Blank, the
facts here indicate that Cammy had adequate notice that cus-
tody was in issue. In her request for removal, Cammy explic-
itly prayed for a “[d]etermin[ation] that a material change in
circumstances exist[ed] that would warrant a change in custody
and state of residence.” And although Joel did not explicitly
request sole physical custody in his answer, he did allege that if
Cammy moved to Indiana, “the [existing parenting plan] would
need to be modified.” Shortly thereafter, in a motion for tem-
porary orders, Joel requested that “if [Cammy] were to move to
the State of Indiana during the pendency of this proceeding[,]
that [he] be granted temporary legal and physical custody and
control of the parties’ minor children.” These pleadings are
similar to the ones in Blank that we found had provided reason-
able notice of what was in issue. 38
Additionally, it is clear from the record that Cammy under-
stood at trial that physical custody was in issue. During cross-
examination, she was asked what she intended to do if her
removal request were denied. She answered, “If my request
36
Blank, supra note 34, 303 Neb. at 613, 930 N.W.2d at 532 (citing Zahl,
supra note 35).
37
See Blank, supra note 34.
38
See id.- 135 -
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Cite as 309 Neb. 115is denied, I will move to Indiana to be with my husband.”
Then, when pressed about who should have custody over the
children if she moved without them, Cammy asserted that
physical custody over the children should be changed, either
to “joint custody with each other” or to “a flip of the parent-
ing plan that [she had] proposed,” meaning that Joel would
assume sole physical custody over the children, subject to her
parenting time. Considering Cammy’s testimony and what was
alleged in the pleadings, we find that the record clearly shows
she had reasonable notice that custody was in issue.
[21,22] We turn to that issue. In determining if a change in
physical custody over the children was appropriate, we abide
by a familiar standard: Physical custody over a minor child
will not ordinarily be modified absent a material change in
circumstances, which shows either that the custodial parent is
unfit or that the best interests of the child require such action. 39
Specifically, it is the burden of the party seeking modification
to show two elements by a preponderance of the evidence:
First, that since entry of the most recent custody order, a
material change in circumstances has occurred that affects the
child’s best interests, and second, that it would be in the child’s
best interests to change custody. 40
(a) Material Change in Circumstances
[23,24] A material change in circumstances is an occurrence
that, if it had been known at the time the most recent custody
order was entered, would have persuaded that court to decree
differently. 41 Before custody is modified, it should be ­apparent
that any material change in circumstances alleged will be per-
manent or continuous, not merely transitory or temporary. 42
39
See Weaver, supra note 1.
40
See id.41
See id.42
Jaeger, supra note 24.
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Cite as 309 Neb. 115[25] We have stated previously that removal of a child from
the state, without more, does not amount to a change of cir-
cumstances warranting a change of custody. 43 Nevertheless,
such a move, when considered in conjunction with other evi-
dence, may result in a change of circumstances that warrants
a modification. 44
For example, in Brown v. Brown, 45 we found a material
change in circumstances when one parent, who had previously
exercised joint legal and physical custody with the other par-
ent, accepted a job out of state. We held that “in cases of joint
legal and physical custody, a legitimate reason for leaving the
state, taken together with an expressed intent to do so, may
constitute a material change in circumstances affecting the best
interests of a child, sufficient to require examination of the
best interests of the child.” 46 In other words, because the two
parents’ ability to jointly exercise legal and physical custody
depended on them living near each other, one parent’s move
was an occurrence that required a different arrangement. 47
In Tremain v. Tremain, 48 we reached the opposite conclu-
sion where it was unclear if the parent who had sole physical
custody and was requesting removal would continue to live
out of state even if the children were not allowed to live there
with him. We affirmed the district court’s denial of removal,
but reversed its change in custody, finding no material change
43
See, Schrag, supra note 10; Tremain v. Tremain, 264 Neb. 328, 646
N.W.2d 661 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611(2002); Brown, supra note 23; State ex rel. Reitz v. Ringer, 244 Neb. 976,
510 N.W.2d 294 (1994), overruled on other grounds, Cross v. Perreten,
257 Neb. 776, 600 N.W.2d 780 (1999).
44
See Schrag, supra note 10; Tremain, supra note 43; Vogel, supra note 43;
Brown, supra note 23; Ringer, supra note 43.
45
Brown, supra note 23.
46
Id. at 963, 621 N.W.2d at 78.
47
See id.48
Tremain, supra note 43.
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Cite as 309 Neb. 115of circumstances had been shown. We found that the custo-
dial parent’s mere request for removal, without more, did not
necessitate a different custodial arrangement, and that “[t]he
court should have ascertained whether [the custodial parent
who was proposing removal] would relocate to Nebraska in
order to retain custody of the children.” 49 Without such an
acknowledgment, the removal request alone was not a material
change in circumstances. 50
Here, as in Brown, Cammy’s ability to exercise sole physi-
cal custody over the children depends on their living with or at
least near her. 51 And unlike the custodial parent who was pro-
posing removal in Tremain, Cammy acknowledged unequivo-
cally that she intends to move to Indiana regardless of whether
she is allowed to bring the children to live with her. 52
[26,27] Upon that unequivocal acknowledgment by Cammy
and upon the district court’s denial of her request to move the
children with her, a different custodial arrangement became
necessary. Physical custody, after all, involves the exercise of
day-to-day decisionmaking and continuous supervision over a
child for significant periods of time. 53 Depending on the child’s
age and needs, physical custody may include providing suit-
able shelter, clothing, food, toys, and emotional care. 54 With
the children remaining in Kearney, Cammy will not be able to
daily and continuously meet those needs for the children after
she moves 750 miles away to Indiana.
Therefore, although Joel denied in his answer that there
had yet been a material change in circumstances, that did
not later preclude the district court from finding as much
49
Id. at 336, 646 N.W.2d at 667.
50
See id.51
See Brown, supra note 23.
52
See Tremain, supra note 43.
53
See Brown, supra note 23. See, also, Neb. Rev. Stat. § 43-2922(20) (Cum.
Supp. 2020).
54
See Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
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Cite as 309 Neb. 115upon its denial of Cammy’s request for removal. The court’s
denial—coupled with Cammy’s unequivocal acknowledgment
that she intended to move to Indiana even if the children could
not move there with her—amounted to a material change in
circumstances. The first element for a modification of custody
was thus met.
(b) Best Interests of Child
[28,29] The second element for a modification of custody
requires consideration of the child’s best interests. 55 While
the child’s best interests is also a consideration in a removal
analysis, the relevant consideration in that context is limited
to whether remaining with the custodial parent after removal
to another jurisdiction would be in the child’s best interests. 56
In contrast, here, the relevant consideration is whether chang-
ing custody to the noncustodial parent would be in the child’s
best interests. 57
[30] Determining whether a change in custody is in the
child’s best interests requires consideration of various manda-
tory and permissive factors. 58 Neb. Rev. Stat. § 43-2923(6)
(Reissue 2016) requires that certain factors be considered,
including (1) the relationship of the child to each parent prior
to the commencement of the action; (2) the desires and wishes
of a sufficiently mature child, if based on sound reasoning; (3)
the general health, welfare, and social behavior of the child; (4)
credible evidence of abuse inflicted on any family or household
member; and (5) credible evidence of child abuse or neglect or
domestic intimate partner abuse. 59
[31] Other relevant considerations that may also be con-
sidered include the stability of the child’s existing routine,
55
See Weaver, supra note 1.
56
See Ryan G., supra note 4.
57
See Weaver, supra note 1.
58
See Jaeger, supra note 24.
59
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Cite as 309 Neb. 115minimization of contact and conflict between the parents, and
the general nature and health of the child. 60 No one factor is
dispositive, and various factors may weigh more or less heav-
ily, depending on the facts of the case. 61 The one constant is
that the child’s best interests are always the standard by which
any custody or parenting time decision is made. 62
Here, the record supports the district court’s determination
that it is in the children’s best interests to change physical
custody to Joel. The testimony showed him to be an involved
father who coaches the children’s hockey and softball teams,
teaches the children’s 4-H classes, and serves as a council-
man for the church in which the children are being catechized.
Since Cammy acquired sole physical custody over the chil-
dren, Joel has only ever missed two of the children’s activities,
including those occurring on days outside of his parenting
time. He testified that he has periodically exercised the role of
“primary caregiver.”
Cammy herself acknowledged that Joel “has a very lov-
ing relationship” with the children, “loves and cares for those
children,” and “is a good dad.” There are no concerns that Joel
will fail to meet the children’s needs. The children are stable
living in Kearney and attending Amherst Public Schools, and
they will remain so if Joel is awarded sole physical custody
over them.
During his testimony, Joel acknowledged that he works
10-hour shifts, 4 days per week. Yet, the record supports Joel’s
assertion that during his parenting time, he has still man-
aged to be a present father despite that schedule. On morn-
ings before work, Joel wakes up early to ready the children
in time for school. To the extent he needs to work outside of
school hours, Joel’s neighbors and C.K. are able and willing
60
Id.61
Id.62
Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020). See Tilson v.
Tilson, 307 Neb. 275, 948 N.W.2d 768 (2020).
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Cite as 309 Neb. 115to supervise the children. And Joel testified that because of a
recent promotion, his new role as supervisor entitles him to
additional flexibility during the workday. He does not work on
weekends or on Fridays, when many of the children’s activi-
ties take place.
While C.K. did state a preference to live with Cammy rather
than with Joel, that preference is entitled to observance among
other factors, but is not itself dispositive in determining the
children’s best interests. 63 Indeed, as the district court found,
the weight of other factors tips the other way.
It was thus not an abuse of discretion for the district court
to change the parenting plan to award Joel sole physical cus-
tody over the children, subject to parenting time with Cammy.
Cammy’s second assignment of error is without merit.
VI. CONCLUSION
After considering the facts in this case, we do not find that
the district court erred in its assessment of where and with
whom Cammy and Joel’s children should live. Specifically, it
was not an abuse of discretion to overrule Cammy’s motion for
removal and to modify physical custody.
We therefore affirm the district court’s order in this case.
Affirmed.
63
See Jaeger, supra note 24.