Burton v. Schlegel , 29 Neb. Ct. App. 393 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/19/2021 08:07 AM CST
- 393 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393Dwayne Burton, appellee, v.
Alexandra Schlegel,
appellant.
___ N.W.2d ___
Filed January 19, 2021. No. A-19-1208.
1. Child Custody: Appeal and Error. 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.
2. Child Custody. In cases where a noncustodial parent is seeking sole
custody of a minor child while simultaneously seeking to remove the
child from the jurisdiction, a court should first consider whether a mate-
rial change in circumstances has occurred and, if so, whether a change
in custody is in the child’s best interests. If this burden is met, then the
court must make a determination of whether removal from the jurisdic-
tion is appropriate.
3. Modification of Decree: Child Custody: Words and Phrases. In
cases involving the modification of child custody, a material change of
circumstances constituting grounds for modification means the occur-
rence 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.
4. Child Custody. In determining the best interests of a child in a custody
determination, a court must consider pertinent factors, such as the moral
fitness of the child’s parents, including sexual conduct; respective envi-
ronments offered by each parent; the age, sex, and health of the child
and parents; the effect on the child as a result of continuing or disrupt-
ing an existing relationship; the attitude and stability of each parent’s
character; and parental capacity to provide physical care and satisfy
educational needs of the child.
- 394 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 3935. ____. Although not a completely determinative factor, the promotion
and facilitation of a relationship by one parent with the other parent is a
factor that may be considered when awarding custody.
6. Child Custody: Intent. A parent’s intentional refusal to promote and
facilitate the other parent’s involvement in a child’s important educa-
tional, religious, and medical needs constitutes a significant factor to
consider when making custody decisions.
7. Child Custody. The best interests considerations for determining cus-
tody and the best interests considerations for determining removal
become intertwined when a change in custody necessarily includes the
relocation of the child’s primary residence to another state.
8. ____. In relocation cases, a parent must first satisfy the court that he or
she has a legitimate reason for leaving the state.
9. Child Custody: Proof: Visitation. Once the threshold burden of show-
ing a legitimate reason for leaving the state has been met, the court
then determines whether removal to another jurisdiction is in a child’s
best interests, which in turn depends on (1) each parent’s motives for
seeking or opposing the move, (2) the potential 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
the noncustodial parent, when viewed in the light of reasonable visita-
tion arrangements.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.
Eddy M. Rodell for appellee.
Bishop, Arterburn, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Alexandra Schlegel (Alexandra) appeals from the order of
the Lancaster County District Court which modified a prior
custody determination by awarding custody of the parties’ son
to his father, Dwayne Burton, who lives in Utah. We affirm.
- 395 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393II. BACKGROUND
1. Original Paternity
Action and Appeal
This case was previously before us on an appeal from
an original paternity action. See Burton v. Schlegel,
No. A-15-761, 2016 WL 3083232 (Neb. App. May 24, 2016)
(selected for posting to court website). As established in that
case, Alexandra and Dwayne are the parents of E.B., born
in 2013.
At an unspecified time prior to E.B.’s birth, Alexandra and
Dwayne began a relationship while Dwayne was living in Utah
and Alexandra was living in Wyoming. Alexandra became
pregnant with E.B., and the parties decided that Alexandra, and
her three children from previous relationships, would move
to Utah to live with Dwayne. During Alexandra’s pregnancy,
either Dwayne accepted a job offer in New Mexico, or his job
was transferred there, and Alexandra and her children moved
with him. Alexandra gave birth to E.B. in New Mexico at
the end of 2013. Shortly thereafter, Alexandra and Dwayne’s
relationship ended. In February 2014, Alexandra moved with
E.B. and her other children to Lincoln, Nebraska, to live with
her sister. Also in February, Dwayne returned to Utah, where
he subsequently married another woman, with whom he had
previously had a daughter out of wedlock.
In June 2014, Dwayne filed a complaint in the Lancaster
County District Court to establish paternity and custody
of E.B. A bench trial was held in May 2015. In July, the
court entered a written order in which it determined that
Dwayne was E.B.’s biological father and granted Alexandra
and Dwayne joint legal custody, but Alexandra had the final
say in the event of an impasse. The court granted Alexandra
physical custody, but concluded it was necessary to “set a
firm schedule for the parties to rely upon” given the “his-
tory between the parties.” Specifically, the court stated it was
“not confident that [Alexandra] would be accommodating,
- 396 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393flexible and liberal in allowing [Dwayne] parenting time,”
but that it hoped her attitude “will moderate after the parties
can settle into a routine with the child. There is a significant
distance between them and their communication has not been
desirable as far as the minor child goes.” The court awarded
Dwayne parenting time for the months of February, May, and
August each year, plus November in even-numbered years
and December in odd-numbered years. The court adopted a
parenting plan, consistent with its order, which further pro-
vided that “[t]he parties shall be flexible in coordinating the
commencement and conclusion of [Dwayne’s] parenting time
due to [his] work schedule, and the travel requirements,” and
“[b]oth parents acknowledge the responsibility to exercise
and provide visitation and that time is of the essence in exer-
cising and providing visitation.” Each parent was directed
to “provide the other parent with information and coopera-
tion related to educational achievements and deficiencies of
the child.” The names of both parents were to appear on all
medical and school records, and each parent was required
to assist the other parent in obtaining access to such records
if requested.
The district court also noted that the parenting time sched-
ule “may not work once the child is of school-age.” The
court indicated: “When the child reaches the age of five, he
becomes school-age which the Court deems a change in cir-
cumstances. At that time the parties may consider a change
to the parenting plan adopted by this order.” Dwayne was
ordered to pay child support of $400 per month, a devia-
tion of $235 below the guideline amount of support, based
on Dwayne’s travel expenses associated with parenting time.
Each party was responsible for his or her own work-related
childcare expenses.
Both parties raised issues on appeal, including Alexandra’s
claim that the district court erred in holding that “[E.B.’s]
turning five years old would constitute a material change of
circumstances not within the parties’ anticipation.” In May
- 397 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 3932016, this court affirmed the judgment of the district court, and
our mandate issued on June 28, 2016. See Burton v. Schlegel,
No. A-15-761, 2016 WL 3083232 (Neb. App. May 24, 2016)
(selected for posting to court website).
2. Modification Action
(a) Pleadings
On January 9, 2019, Dwayne filed a complaint for modi-
fication. He alleged that since the entry of the order estab-
lishing paternity and custody in July 2015, there had been a
material change in circumstances, including, but not limited
to the following: The order only contemplated a parenting
time schedule up until the time E.B. started kindergarten, and
he was scheduled to start kindergarten in 2019. Alexandra
failed to provide appropriate medical and/or dental care for
E.B. Alexandra denied any reasonable request by Dwayne to
accommodate minor changes to the parenting time schedule
to travel. Alexandra refused to pay her share of E.B.’s medi-
cal bills. Alexandra’s oldest daughter had been removed from
Alexandra’s home and was deemed uncontrollable. Alexandra
did not notify Dwayne of medical appointments or medical
emergencies regarding E.B. Despite being awarded joint legal
custody, Alexandra unilaterally made decisions on behalf of
E.B. without consulting Dwayne. Alexandra refused to speak
to Dwayne about E.B. and told Dwayne that he needed to have
his attorney contact her attorney. In his complaint, Dwayne
sought full custody of E.B., subject to Alexandra’s rights of
parenting time. Dwayne also sought permission to remove E.B.
from Nebraska to Utah, where Dwayne lived, and he sought an
award of child support.
In her answer and “[c]ounter-[c]omplaint,” Alexandra
denied there had been a material change in circumstances as
alleged by Dwayne. However, she alleged there had been a
material change in circumstances requiring that the parent-
ing plan be modified, as E.B. was to begin kindergarten in
the fall of 2019. She asked the district court to modify the
- 398 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393parenting plan and child support order and to award her attor-
ney fees and costs.
(b) Modification Hearing
The modification hearing was held in October 2019. Several
witnesses testified, and numerous exhibits, including text mes-
sage and email exchanges between the parties, were received
into evidence. A summary of the evidence follows.
Dwayne exercised all of his allotted parenting time. The
current parenting time schedule would no longer work because
E.B. started kindergarten in the 2019-20 school year. The
lack of a workable parenting schedule was the main reason
why Dwayne filed his complaint for modification. However,
Dwayne alleged other reasons why a modification of custody
was necessary.
In his complaint, Dwayne alleged that Alexandra failed
to provide appropriate medical and/or dental care for E.B.
Dwayne testified that E.B. had an “intussusception,” where his
intestines were “basically telescoping inside themselves and
essentially digesting himself.” Dwayne said that E.B.’s “large
intestine was within a half an inch of being excreted through
his colon”; it was discovered when E.B. was with Dwayne in
Utah, and Dwayne confirmed that it was happening prior to the
original trial starting in 2015. But Dwayne testified that other
health issues had come up since the last order.
In early 2018, they learned that E.B. had been born with
a previously undiagnosed heart murmur. The heart murmur
was discovered when Dwayne took E.B. to a medical clinic
for an infection in his mouth. When E.B. arrived in Utah, he
complained about some soreness and swelling in his mouth.
When Dwayne looked in E.B.’s mouth, he noticed that a bump
on E.B.’s upper gums was swelling and decided to schedule
an appointment to get it examined. It turned out that E.B.
had been in an accident in Nebraska, where “he had knocked
some of his front teeth” and the teeth ended up dying, becom-
ing infected, and needing to be pulled. Dwayne communi-
cated with Alexandra before and after taking E.B. to get his
- 399 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393mouth examined, and he also informed her about the discovery
of the heart murmur. E.B. was seen by a cardiologist in Utah to
determine the severity of his heart murmur. Dwayne informed
Alexandra that E.B. would need to have further evaluations
before being allowed to play sports and that there were certain
sports that he may not ever be able to play. Dwayne testi-
fied that Alexandra refused to reimburse him for her half of
E.B.’s cardiologist bill. In the email exchange received into
evidence, Alexandra’s reason for not paying her portion of the
bill was that Dwayne took E.B. to an out-of-network provider;
she thought E.B. could have waited to be examined by an
in-network provider when he returned to Nebraska a few days
later. However, at the modification hearing, Alexandra testified
that she did not know at the time of her email in 2018 that the
bill had already been submitted to Medicaid in Nebraska in
addition to Dwayne’s insurance company; she agreed that if
she is able to speak with Dwayne and resolve what needs to
happen with Medicaid, she would be willing to pay her portion
of the bill.
Dwayne testified that in early 2019, he had a conversation
with Alexandra about whether or not E.B. was caught up on
all of the necessary immunizations for school and she said
everything was current. However, after subsequently review-
ing E.B.’s medical records with his Utah pediatrician, Dwayne
learned that E.B.’s immunizations were not current. E.B. got
his immunizations at a scheduled appointment with his Utah
pediatrician, which Dwayne informed Alexandra of via text
prior to the appointment. During a subsequent text exchange
later that day, Alexandra told Dwayne she had intended to
have E.B. get his immunizations at his kindergarten physical
later that year. During that text exchange, Dwayne also posed
medical questions to Alexandra as to (1) whether Alexandra
sought medical clearance of E.B.’s heart murmur before sign-
ing him up for soccer, (2) when E.B.’s ears were last checked,
and (3) where E.B.’s ear doctor was located. Rather than
answering Dwayne’s questions, Alexandra told him to contact
- 400 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393her attorney. Dwayne testified that he would not have objected
to E.B. playing soccer if E.B. had proper medical clear-
ance. According to Dwayne, after interrogatories were sent to
Alexandra as part of the discovery process in this case, E.B.
received medical clearance to play soccer.
In his complaint, Dwayne also alleged that Alexandra did
not notify Dwayne of medical appointments or medical emer-
gencies regarding E.B. Dwayne testified that on one occasion,
E.B. was taken to an urgent care clinic and Alexandra did not
notify him. Dwayne learned about the visit when he received
an insurance statement. And Dwayne eventually learned that
E.B. had another infection in his teeth from the accident
described previously. In the November 2018 text exchange
received into evidence, when Dwayne confronted Alexandra
about the need to inform him about the urgent care clinic visit,
she said that she had informed him E.B. needed antibiotics and
that because it was a Sunday, Dwayne should have been able
to use “deductive reasoning” because doctors’ offices are not
open on Sundays.
Alexandra testified that she was not included as a contact
person on E.B.’s paperwork at various medical providers in
Utah. The paperwork was filled out by the woman who is now
Dwayne’s wife (although she was not his wife at the time of
the paperwork). Dwayne does not dispute that Alexandra was
not included on the paperwork, and he claims in part that
Alexandra failed to provide him with the necessary informa-
tion, such as her date of birth, but he believed he informed her
of all appointments.
In his complaint, Dwayne alleged that Alexandra denied rea-
sonable requests to accommodate minor changes to the parent-
ing time schedule for travel. Pursuant to the original parenting
plan, Dwayne’s standard parenting time was during the months
of February, May, and August every year, plus November in
even-numbered years and December in odd-numbered years.
The parties were to be flexible in coordi­nating the com-
mencement and conclusion of Dwayne’s parenting time to
- 401 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393accommodate his work schedule and travel requirements.
Parenting time exchanges were to occur on the weekends
closest to the first and last days of the months, and Dwayne
could pick E.B. up as early as Friday and return the child as
late as Sunday to accommodate the best travel fares. Dwayne’s
parenting time was never to be shorter than the number of
days in the given month that he was exercising his parenting
time. And he was to notify Alexandra no less than 1 week
prior as to the date and time he would pick up and return E.B.
Unless otherwise agreed upon, Dwayne was to pick E.B. up
from Alexandra at the commencement of his parenting time
and return him to her at the conclusion of his parenting time.
However, to the extent that Dwayne returned with E.B. to the
Lincoln or Omaha airport in Nebraska, Alexandra was to pick
E.B. up at the airport.
Various text messages showing disagreements over parent-
ing time exchanges were received into evidence. Dwayne
testified that he had issues coordinating “pick-ups and drop-
offs . . . [j]ust about every time.” When asked what kind of
issues he had, Dwayne responded, “What days [Alexandra]
would prefer for me to pick up and drop off versus what days
I’ve notified her are going to work best for me. Locations
of pick-up and drop-offs, times of pick-up and drop-offs.
Everything.” Dwayne said he drove the 26-hour round trip for
parenting time exchanges “most of the time.” And more prob-
lems seemed to occur when he flew to get E.B. for parenting
time. Because of his work and home schedules, Dwayne was
only able to make travel arrangements about 1 or 2 weeks in
advance of a scheduled visit. If he was going to fly, he said
that he would try to communicate with Alexandra and book
his flight “at the same time as best as possible” and that he
would “[t]ry to let her know” when he would be in Nebraska
“based on the flight availability.” When asked if Alexandra had
any requirements about who had to be there when he picked
E.B. up, Dwayne responded, “Yes,” “she personally ha[d] to
be [the] one to do the exchange with me.” Alexandra only
- 402 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393allowed Dwayne to pick E.B. up from daycare if she could be
there to personally oversee the transition. There were “multiple
times” when Alexandra would not allow a pickup from daycare
because she could not be there.
In October 2018, Dwayne was trying to coordinate his
November parenting time and asked Alexandra if he could pick
E.B. up on October 28 in order to have him for Halloween, a
holiday Dwayne had not shared with E.B. since he was 1 year
old; Dwayne planned to return E.B. to Alexandra on Sunday,
December 2. Alexandra said no to the additional few days and
“told me if I had any problems with her decision, I would need
to contact my lawyer.”
In his complaint, Dwayne alleged that despite being awarded
joint legal custody, Alexandra unilaterally made decisions on
behalf of the minor child without consulting him. Dwayne
testified that Alexandra enrolled E.B. in a Catholic school
for kindergarten without the two of them having any dis-
cussions about what elementary school E.B. would attend.
Alexandra testified that she assumed Dwayne was “okay” with
her decision, because he did not respond to her text about
E.B.’s enrollment in the school. Dwayne also testified that
Alexandra informed him that she was having E.B. baptized
in the Catholic Church. Dwayne objected to E.B.’s baptism
into a faith that Alexandra herself was not baptized into. “I let
her know that if she wanted to first, herself, you know, join a
church and religion, that I would be open to the discussion of
[E.B.] being baptized into the same religion.” As evidenced by
text messages received into evidence, Alexandra told Dwayne
that she wanted to raise E.B. as a Catholic like her other
children. When Dwayne asked her additional questions, he
was ignored. Alexandra later sent Dwayne pictures of E.B.’s
baptism. Dwayne believed that he and Alexandra should have
had discussions prior to the baptism, but Alexandra told him to
“refer to the Decree.”
Alexandra and Dwayne usually communicated through text
messages, but also communicated via email. Dwayne stated
- 403 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393he “tr[ied]” to communicate well with Alexandra, but he did
not believe she did the same. Several text message threads
received into evidence reveal that when Dwayne questioned
Alexandra about medical bills, immunizations, et cetera, her
response was that he should contact her attorney. There were
also times when Dwayne posed medical questions regarding
E.B., and she ignored him.
In his complaint, Dwayne alleged that Alexandra’s oldest
daughter had been removed from the home and was deemed
uncontrollable. Dwayne testified that, according to court
records, Alexandra’s daughter was involved in a juvenile court
case that resulted in her being removed from Alexandra’s
home, although Dwayne was aware that her daughter was back
in the home as of the summer of 2019.
Alexandra testified that her oldest daughter, who was 18
years old at the time of the modification hearing, started hav-
ing issues in the eighth grade. Alexandra decided to apply to
the State to have her daughter deemed ungovernable so that
Alexandra could get assistance for her. In April 2018, her
daughter did not want to live with her anymore. Since her
daughter was still on probation, Alexandra told the juvenile
court judge that her daughter would not listen to her, so the
daughter was removed from the home. She went to different
facilities, and during a home visit that November, she “ran off”
and “got picked up.” She eventually completed the program,
“came home for a couple weeks,” and then moved out on her
own to go to school full time and to work full time. According
to Alexandra, her daughter’s probation officer “is planning on
letting her go on Halloween.” Alexandra stated she and her
daughter have a good relationship.
Dwayne believed that because Alexandra’s daughter was
deemed uncontrollable, this was “an indication of the things
that are happening at [Alexandra’s] house in Nebraska.” He
stated, “There’s already a question of her parenting regard-
ing the oldest child and the things that have been going
on with that child.” According to Dwayne, E.B. was also
- 404 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393experiencing behavioral problems. When asked if he feared
that E.B. was “headed down that path as well,” Dwayne
responded, “Absolutely.”
Dwayne first became aware of E.B.’s behavioral problems
when he subpoenaed daycare records for these court proceed-
ings. Dwayne said there were reports that indicated E.B. was
being disruptive in school, waking up during nap times
and running around the classrooms and in the hallways
exposing his private parts to teachers, to other students,
asking them to wake up and be naughty with him because
being naughty is fun, and asking them all to join in with
him in exposing themselves.
There were instances of E.B.’s physical aggression toward
other students, as well as toward teachers and the faculty,
and instances of his breaking and destroying property. There
were also issues with him “cursing and using foul language
while running through the schools as well as directed directly
at some of the adults, teachers, child care providers, [and]
administrators.” Dwayne was concerned about these behav-
ioral issues, none of which were reported to him by Alexandra.
Dwayne also learned at depositions the week prior to the mod-
ification hearing that E.B. was having issues at his elementary
school; Alexandra had mentioned “something along the lines
of [E.B.] had a few issues in the beginning.” Other than men-
tioning it at a deposition, Alexandra never told Dwayne about
E.B.’s behavioral issues at his elementary school. Dwayne
was concerned because “if [E.B. was] continuing to display
behaviors of something of this sort, it is absolutely something
that should be talked about and discussed with both parents.”
Alexandra acknowledged that she never informed Dwayne of
the behavioral issues E.B. had at his daycares and elemen-
tary school.
Christen Million was a behavioral consultant and then the
program director at E.B.’s first preschool in Lincoln. Million
stated that most of E.B.’s behavior incident reports started
happening when he was 3 or 4 years old, which is typical, and
that a lot of his behaviors occurred around naptime. Million
- 405 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393indicated that during one incident in January 2019, E.B.’s regu-
lar teacher was gone for the day and E.B. and another child
“became escalated and threw some things around the room
and [were] just disruptive.” E.B. threw water everywhere,
flipped things over, threw things across the room, and ripped
someone’s hoodie; Alexandra was called to come pick him up
for the day. That incident led to a behavior plan being put into
place. According to Million, Alexandra was “very responsive”
in meeting to create the plan and supporting it at home. Million
had no concerns about Alexandra’s parenting. E.B. left the pre-
school in April.
With regard to E.B.’s issues at preschool, Alexandra tes-
tified that “[i]t seemed like a very normal thing that he
was doing,” and there were things that E.B. was doing that
they thought he was doing because he was bored or needed
attention, but “it was never deemed a problem necessarily.”
However, he was put on a behavioral plan and Alexandra
did not inform Dwayne of the plan. In April 2019, Alexandra
switched E.B. to a different childcare center, because she
thought “changing atmospheres would help” E.B. because
there was less structure at the new center which was a “play-
based” center. According to Alexandra, E.B. continued to have
“some” issues during the months he was at the new center.
Copies of the incident reports and a letter from the new cen-
ter’s founder were received into evidence. In his letter, the
founder attributed E.B.’s calling a teacher and students a pro-
fane name to something E.B. picked up from another student,
and he attributed two other behavioral incidents to typical and
boundary testing behaviors.
As noted previously, E.B. was a kindergartener for the
2019-20 school year. Sister Janelle Buettner is the principal of
E.B.’s elementary school in Lincoln. She said that Alexandra
was honest in telling her that E.B. had behavioral problems
at his previous daycare facilities, and Buettner let her know
that the school staff would work with him and do what they
could. According to Buettner, “[E.B.] had a rough week and
a half ” in her school at the beginning of the school year,
- 406 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393but “he has blossomed in the environment and done very
well.” Documentation from August 16 through September 13,
2019, and from September 24, was received into evidence and
reveal E.B.’s behavior issues at school, including his refus-
ing to cooperate or follow directions, hitting, kicking, name
calling with profanity, and knocking things over; he had to
be removed from the classroom multiple times. The school
had to bring Alexandra in early on to see what was going on.
Buettner and her assistant watched as Alexandra treated E.B.
with “total dignity and love and respect” while talking to him
about the situation. After Alexandra left, the staff discussed
dealing with E.B. in a manner consistent with Alexandra’s
actions. There were more incidents, but as E.B. saw that the
staff “w[as]n’t going anywhere” and that they “loved him,”
his behaviors decreased. Buettner stated that at the beginning
of the year E.B. was testing his limits, like most children do.
But “what I see of [E.B.] now is a very carefree, loving, funny,
smart little boy.”
Dwayne testified that in Utah, E.B. never had writeups or
outbursts similar to what he had in Lincoln. When asked if
he had behavioral issues with E.B, Dwayne responded, “No.”
Only once “a couple years ago” did E.B become physically
aggressive and hit a sibling during a disagreement. Alexandra
testified that E.B. does not typically have behavioral problems
at home.
In July 2019, Alexandra informed Dwayne that she was pro-
ceeding with her attorney’s advice and taking E.B. to see Dr.
Rick McNeese, a psychologist, to get an assessment of her and
E.B. and that Dr. McNeese would like Dwayne to do the same.
When asked if he participated in that evaluation, Dwayne
responded that he did not. When asked why he did not partici-
pate, Dwayne responded:
Some of the concerns [were] that it had not been pre-
discussed or predetermined as a necessity through . . . my
attorney. It also provided some difficulties in a situation
where I lived out of state and the possibility of getting
Dr. McNeese to fly out to Utah to do some visits and
- 407 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393stuff with myself and [E.B.] while he was in my care, it
just did not seem like a logical or reasonable option.
There was also no indication that the evaluation was medi-
cally necessary.
Dr. McNeese testified that he was retained by Alexandra
to conduct a psychological evaluation of her and a behavioral
evaluation of E.B. His report, which was received into evi-
dence, was titled “Psychological Evaluation With Regards to
Custody and Parenting” and was dated September 24, 2019.
Dr. McNeese utilized psychological testing of Alexandra,
questionnaires completed by Alexandra, diagnostic interviews
of Alexandra and E.B., observations of E.B. in the office and
in Alexandra’s home, and a review of collateral informa-
tion from Buettner and Million. According to Dr. McNeese,
Alexandra was “pretty straight forward and open and honest
with things,” and that was reflected in her “validity scales” in
the testing. E.B. had some challenging behaviors, “some ele-
ments of attention kinds of issues,” “some elements of oppo-
sitional behavior,” “[e]ven some elements of conduct prob-
lems that are more significant.” Dr. McNeese stated that E.B.
“didn’t really fall into any diagnostic criteria at that point, but
it was pretty obvious that he had more, what we call, exter-
nalizing behaviors or acting-out behaviors.” Dr. McNeese’s
“conceptualization at this point is that [E.B.] is undergoing,
obviously, a number of stressors in the family and changes”
like adapting to a different school and environment, but “some
behavior problems . . . have been there for a while.” From Dr.
McNeese’s review of collateral information, it did appear that
in the past month, E.B.’s behavior was “much more manage-
able and we’re seeing more positive behavior from him.” Dr.
McNeese would suggest an “ADHD” evaluation at “some
point down the line.”
Dr. McNeese acknowledged that much of the reporting came
from Alexandra and collateral contacts in Nebraska. He did pro-
vide Dwayne a parental questionnaire and a copy of the finan-
cial and assessment agreement that parents sign disclosing
- 408 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393costs and procedures, but he did not hear back from him.
Dr. McNeese stated that it would have been helpful for him
to have the parental questionnaire, because it would have
given him “a start on kind of seeing what he was seeing in
another environment.”
In his testimony and in his report, Dr. McNeese concluded:
Dwayne showed a “modest interest” in more active participa-
tion in the evaluation and assistance with decisionmaking;
a major household change would place the child at risk of
developing further problem behaviors; according to the col-
lateral information, Dwayne had largely been uninvolved in
E.B.’s childcare and school performance in Lincoln, whereas
Alexandra had been actively involved in supporting E.B.’s
teachers and doing what she could to assist in his behavior
management plans; there was a risk that Dwayne’s lack of
involvement in E.B.’s school performance and activities would
potentially lead to further distancing or withdrawing from
the relationship with E.B., and it was in E.B.’s best interests
for Dwayne to be involved and for E.B. to continue to have
access to Dwayne; E.B. was at a developmental stage where
he needed a sense of order and predictability; another devel-
opmental concern for children as young as E.B. was that being
away from a mother who was the primary parent was difficult
for that child; and there were suggestions of potential “ADHD”
which bears watching in the next couple of years. Dr. McNeese
recommended having E.B. remain with Alexandra during the
school year and having 4 to 6 weeks of parenting time with
Dwayne each summer. He also recommended that E.B. have
communication with the parent he is not having parenting time
with at least three times weekly by phone, “FaceTime/Skype,”
or other technological means.
On cross-examination, Dr. McNeese was asked if he would
be surprised to learn that for the last several years, the parents
had been doing video conferences with E.B. at least twice a
week no matter who E.B. was with. Dr. McNeese responded,
“I guess, honestly, I would be some [sic] surprised because
- 409 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393I didn’t get the feel for there being much communication
between the two of them.” And when asked if he would be
surprised to learn that Alexandra did not report any of E.B.’s
behavioral problems to Dwayne, Dr. McNeese responded,
“Again, . . . I have operated under the impression that . . .
there wasn’t much communication,” “[s]o I don’t know that I
would be surprised.”
According to Dwayne, in August 2019, Alexandra informed
him that she was getting a counselor for E.B. Dwayne did not
object and felt that it was appropriate given the behavior prob-
lems Dwayne learned E.B. was having.
Dwayne believed he could provide a safe and suitable envi-
ronment for E.B. in Utah. Dwayne acknowledged that when he
was married to his ex-wife (the mother of his oldest child), he
left E.B. with her and then later found her under the influence
of alcohol while she was caring for him. He also acknowl-
edged that he and his ex-wife had physical confrontations
while E.B. was present. Dwayne divorced his ex-wife because
of the issues they had “with her alcoholism” and the physi-
cal altercations.
Dwayne lives in Utah with his current wife, Megan Burton;
they lived together for approximately 2 years and were mar-
ried in the spring of 2019. Between the two of them, they have
six children. Dwayne has custody of his 9-year-old daughter
from a previous relationship, and he has E.B. Megan has three
children (ages 14, 12, and 9 at the time of the hearing) from
a previous marriage; those three children live with Dwayne
and Megan 50 percent of the time, on an every-other-week
schedule. And Dwayne and Megan have a 1-year-old daughter.
Dwayne and Megan’s home has five bedrooms. E.B. shares a
bedroom with his stepbrother.
On a typical day when E.B. is at Dwayne’s house, Dwayne
is “up and out the door” before the children wake up for
school. Megan gets the children up, ready, and off to school;
she also picks them up after school. Dwayne gets home
between 2 and 5 p.m., at which point, he and Megan share
- 410 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393responsibilities. According to Dwayne, E.B. and Megan have
a “very, very open,” “[v]ery loving, very affectionate” rela-
tionship. E.B. and Dwayne’s older child are “best friends”
and spend the most time together. E.B. also likes playing with
his stepsiblings, especially his stepbrother. Additionally, E.B.
has some neighbor friends in Utah. Dwayne’s parents and
two of Dwayne’s seven siblings live within a 30-minute drive
of Dwayne’s house, and E.B. has a good relationship with
Dwayne’s extended family. E.B. also has a good relationship
with Megan’s extended family that lives within 20 minutes of
them. In Utah, E.B. would attend the same school that his older
half sister and two of his stepsiblings attend.
In Dwayne’s proposed parenting plan, he would be awarded
physical custody of E.B. and Alexandra would receive par-
enting time every summer commencing the first Saturday in
June and concluding the first Saturday in August; every spring
break; in even-numbered years, Thanksgiving break as well
as Christmas break beginning on December 27; and in odd-­
numbered years, the entire Christmas break. Dwayne would
also bear the burden of E.B.’s transportation costs. In the event
that Alexandra was awarded custody, Dwayne asked for the
same parenting time schedule to apply, but that he receive a
deviation in his child support obligation for travel costs.
Dwayne believed his relationship with Alexandra would
get better if he was granted permission to move E.B. to Utah
because a lot of the arguments and disagreements they have
stem from a lack of communication from Alexandra, as well
as disagreements and arguments about transportation arrange-
ments. Dwayne thought a change in custody “would ­definitely
alleviate a vast majority of those situations.” On cross-­
examination, Dwayne stated that he is “not innocent” regard-
ing the hostilities between the parties. He also acknowledged
that in 2015, after trial, but prior to the entry of the order in the
original paternity action, he sent an email to Alexandra calling
her a “white trash baby maker” and stating that her children
would rather commit suicide than live with her.
- 411 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393Alexandra believes that she can care for E.B. appropriately.
Alexandra lives in Lincoln with her “partner,” Brent Cushman
(Brent). Between the two of them, they have eight children,
seven of whom live at home. Alexandra has three teenage
children from previous relationships; one of those children,
her daughter, lives on her own. Alexandra also has E.B. Brent
has two teenage children from a previous relationship. And
Alexandra and Brent have two younger children together.
Alexandra and Brent’s home has five bedrooms. E.B. used
to share a room with an older half brother, but had his own
room at the time of the modification hearing. Either Alexandra
or Brent drop E.B. off at school. After school, E.B. goes to
extended daycare for approximately 2 hours, before he goes
home for the evening. If Alexandra needs someone to provide
care for the children, it is either Brent or her mother.
Alexandra believed it was in E.B.’s best interests to remain
in her custody. She had always been E.B.’s primary caregiver
and put his needs first. Alexandra was concerned that when
E.B. was in Dwayne’s care, Dwayne was not E.B.’s primary
caregiver—Dwayne’s significant others were. Alexandra stated
that E.B. had trouble with change and that transitions were dif-
ficult for him. She said “we are finally at a good place, as he
feels safe and loved and trusts where he’s at. And to take that
away from him would be very damaging.”
In Alexandra’s proposed parenting plan, the parties would
maintain joint legal custody of E.B. and she would maintain
physical custody. She proposed that Dwayne have parent-
ing time 6 weeks every summer, every fall break, every
Thanksgiving break, half of Christmas break, and every Easter/
spring break.
Alexandra believes that she and Dwayne can successfully
coparent. With regard to communication between the two of
them, Alexandra stated:
It is little to none if either of us can help it. . . . The more
we talk, the more toxic we are to each other. And it just
doesn’t go well for us. And so I assume he’s doing his
- 412 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393best. I assume he believes I’m doing my best. And we
just go from there.
Alexandra agreed that many of their issues surround “pick-up
and drop-off.”
(c) District Court’s Order
In its order entered on December 20, 2019, the district
court engaged in the removal analysis set forth in Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). After
completing its removal analysis, the court found that “when
viewed considering all of the circumstances, there is a change
in circumstances and that a change in the custody is in the best
interests of the minor child.” The court sustained Dwayne’s
complaint to modify and denied Alexandra’s “[c]ounter-
[c]omplaint.” The parenting plan adopted by the court and
attached to the court’s order awarded the parties joint legal
custody of E.B., with physical custody awarded to Dwayne
beginning January 3, 2020. Alexandra was awarded regular
summer parenting time to commence on the seventh day fol-
lowing the release of the child for the summer recess and con-
cluding 7 days before school commences in the fall. She was
awarded regular school year parenting time during E.B.’s fall
and spring breaks every year. A Thanksgiving and Christmas
break parenting time schedule was also established, and it
included that Alexandra have extended Christmas break par-
enting time in odd-numbered years. Dwayne is to provide
Alexandra additional parenting time if she has the opportunity
to exercise parenting time in Utah. Further, the parties are
to work in good faith to allow Alexandra to have additional
parenting time as schedules and circumstances allow. Unless
otherwise agreed upon between the parties, Dwayne is to pro-
vide transportation for E.B. between Utah and Nebraska twice
per year; Alexandra is to be responsible for all other trans-
portation. The court ordered Alexandra to pay child support
in the amount of $50 per month beginning January 1, 2020;
this is a downward deviation from the child support guidelines
- 413 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393because of the transportation costs she will incur to exercise
her parenting time. Each party was ordered to pay their own
costs and attorney fees.
Alexandra appeals.
III. ASSIGNMENTS OF ERROR
Alexandra assigns, restated, that the district court erred by
(1) failing to find that Dwayne did not meet his burden of
establishing a material change in circumstances which was not
contemplated by the parties at the time of the original order,
(2) improperly applying the removal analysis to a noncustodial
parent without first determining that a change in custody was
in the child’s best interests, (3) failing to find a legitimate rea-
son to leave the state with the minor child, and (4) permitting
removal of the child against his best interests.
IV. STANDARD OF REVIEW
[1] 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. Schrag
v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
V. ANALYSIS
1. Applicable Three-Step Analysis
The most factually similar case we can find to the present
case is State on behalf of Savannah E. & Catilyn E. v. Kyle E.,
21 Neb. App. 409, 838 N.W.2d 351 (2013), a custody modifi-
cation case wherein a noncustodial parent sought custody of
his two children and permission to move the children from
Nebraska to Wyoming where he lived. In that case, the district
court entered a detailed order granting the father’s request
to modify the original custody arrangement such that he was
awarded primary physical custody of the children. The court
conducted a three-part analysis: It first considered whether
there had been a material change of circumstances since the
original custody agreement, it next considered whether the
- 414 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393best interests of the children required modification of custody,
and it then considered whether relocation of the children from
Nebraska to Wyoming should be ordered.
[2] On appeal, this court concluded that in the case of a non-
custodial parent seeking a modification of custody and removal
from the jurisdiction, the approach utilized by the district court
was appropriate. This court then held:
[I]n cases where a noncustodial parent is seeking sole
custody of a minor child while simultaneously seeking to
remove the child from the jurisdiction, a court should first
consider whether a material change in circumstances has
occurred and, if so, whether a change in custody is in the
child’s best interests. If this burden is met, then the court
must make a determination of whether removal from the
jurisdiction is appropriate.
State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb.
App. at 419, 838 N.W.2d at 360.
As noted by Alexandra, the district court in the present
case did not follow the applicable three-step analysis as set
forth in State on behalf of Savannah E. & Catilyn E. v. Kyle
E., supra. She contends that “[w]here a noncustodial parent
simultaneously seeks modification of custody and removal, the
appropriate procedure is to first consider whether a modifica-
tion of custody is appropriate and then to consider whether
removal is appropriate.” Brief for appellant at 22 (emphasis
in original). While Alexandra agrees that a “traditional best
interests analysis” and a removal best interests analysis “are
necessarily intertwined,” she nevertheless contends that the tra-
ditional best interests analysis must be performed first before
reaching a removal analysis. Id. Dwayne also acknowledges
that the court “did not first perform a separate custody analysis
before addressing” the removal factors, but he argues that the
“best interests analysis is intertwined with a removal analysis.”
Brief for appellee at 21. He points out that the court’s order
“goes into great detail” on each of the removal factors and
that “[s]uch an analysis goes hand in hand with an analysis for
modification of custody.” Id.
- 415 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393Both parties make good points. While we agree with
Alexandra that the district court did not strictly follow the
three-step analysis set forth in State on behalf of Savannah E.
& Catilyn E. v. Kyle E., 21 Neb. App. 409, 838 N.W.2d 351(2013), we also agree with Dwayne that the district court in
essence intertwined a traditional best interests analysis with a
removal best interests analysis. In its order, the court appears
to have combined the three-step analysis into one blended
analysis by first setting forth the evidence under removal fac-
tors, which are designed to consider a child’s best interests, in
order to set forth the court’s reasoning for finding a material
change in circumstances and its decision to modify physical
custody. While the court’s blended analysis is not the preferred
three-step analysis set forth in State on behalf of Savannah
E. & Catilyn E. v. Kyle E., supra, we cannot say the blended
analysis in and of itself constitutes an abuse of discretion war-
ranting reversal. Rather, in our de novo review, we will apply
the three-step analysis to the evidence in the record to deter-
mine whether the district court abused its discretion when it
granted custody to Dwayne and allowed him to remove E.B.
to Utah.
2. Material Change
in Circumstances
[3] In cases involving the modification of child custody,
a material change of circumstances constituting grounds for
modification 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 dif-
ferently. See Fichtl v. Fichtl, 28 Neb. App. 380, 944 N.W.2d
516 (2020).
We previously indicated in the prior case that it was not an
abuse of discretion for the district court to reserve ruling on
what parenting plan would be in E.B.’s best interests by the
time he reached school age. Burton v. Schlegel, No. A-15-761,
2016 WL 3083232 (Neb. App. May 24, 2016) (selected for
posting to court website). We noted that given the history
- 416 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393of frequent and significant changes in the parties’ lives at
that time, it was reasonable for the trial court to suspect
that their circumstances would be different by the time E.B.
started school. We concluded that the court did not act unrea-
sonably in declining to predict what would be in E.B.’s best
interests when he reached school age. Here, the fact that E.B.
was starting kindergarten constituted a material change of
circumstances that, at a minimum, warranted a modification
of parenting time. Alexandra acknowledges that modification
to the parenting time schedule was warranted; however, she
argues that Dwayne failed to prove that custody should be
modified. She contends that at the time of the original decree,
the court “was clearly aware of the parties’ acrimonious rela-
tionship, yet still awarded custody to [Alexandra].” Brief for
appellant at 21. She claims, “The court set her up to fail from
the start, [which] cannot be the basis for a change of circum-
stances.” Id.However, based on our review of the record, besides the
known existence of the parties’ acrimonious relationship at
the time of the original decree, there were subsequently other
material changes for the district court to consider related to
modifying physical custody. Although, as the district court
noted, Dwayne was not without fault in “the communication
area” and “instigated conflict where another path might have
been available,” the “weightiest” concern was that Alexandra
had “simply taken positions inconsistent with the responsibili-
ties inherent as primary parent as to cooperation and communi-
cation.” Notably, the court stated:
With regard to the best interests of the child, it is the
willingness of the custodial parent to be open, inform­
ative and cooperative that serves the best interests of the
minor child. . . . If a parent does not promptly inform and
consult with the other party, the best interests of the minor
child are not served. . . .
In this case, it does not appear that [Alexandra] has
or will take the necessary steps to be cooperative and
- 417 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393informative. While she expresses a [newfound] under-
standing of her obligations, her credibility is lacking.
Distance is difficult enough, but when the noncustodial
parent is not advised of medical, religious, social and
educational progress and needs, the difficulties created
by distance are exacerbated. The evidence very clearly
weighs in favor of [Dwayne] when evaluating which
party would be most cooperative with the other.
The record before us reveals that since the time of the origi-
nal decree, Alexandra did not exhibit flexibility and coopera-
tion with parenting time exchanges, she withheld information
regarding E.B.’s behavioral issues, she made unilateral deci-
sions regarding E.B. without engaging in meaningful discus-
sion with Dwayne and otherwise took advantage of the “final
say” authority granted to her, and she repeatedly refused to
converse with Dwayne or ignored his legitimate questions and
instead told him to contact her lawyer. The behaviors between
the parties, and most notably Alexandra, constitute a material
change of circumstances affecting E.B.’s best interests, which
had it been known to the trial court at the time of the initial
decree, would have persuaded the court to decree differently.
Although at the time of the initial decree the court noted its
lack of confidence in Alexandra’s ability to be flexible and
accommodating, the court “hope[d] this attitude [would] mod-
erate after the parties [could] settle into a routine with the
child.” The court’s hope did not come to fruition. Accordingly,
we cannot say that the district court abused its discretion in
finding there was a material change in circumstances affecting
the best interests of the minor child.
3. Best Interests
The next inquiry is whether the best interests of the child
compel a change of custody.
[4] Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides
that in determining custody and parenting arrangements:
- 418 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393[T]he court shall consider the best interests of the minor
child, which shall include, but not be limited to, consid-
eration of . . . :
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member. . . ; and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
Other pertinent factors include the moral fitness of the child’s
parents, including sexual conduct; respective environments
offered by each parent; the age, sex, and health of the child
and parents; the effect on the child as a result of continuing or
disrupting an existing relationship; the attitude and stability of
each parent’s character; and parental capacity to provide physi-
cal care and satisfy educational needs of the child. Kashyap v.
Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018).
Based upon our de novo review of the record, we cannot
say that the district court abused its discretion by concluding
that it was in E.B.’s best interests to have his physical custody
awarded to Dwayne. We previously set forth the court’s expla-
nation regarding E.B.’s best interests and its concerns about
leaving physical custody with Alexandra. We acknowledge
that E.B. has a loving relationship with both of his parents.
Both parents provide for E.B. while in their care. And there is
no evidence of abuse in either household. However, as stated
above, Alexandra has exhibited an attitude of uncooperative-
ness with Dwayne, particularly as it relates to parenting time
exchanges and to informing him of E.B.’s behavioral and medi-
cal issues.
- 419 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393Alexandra’s lack of cooperation in facilitating parenting
time between Dwayne and E.B. is concerning; such behavior
demonstrates a disregard for the importance of the relationship
between them. The district court stated that Alexandra “has
failed and refused to be ‘accommodating, flexible and liberal’”
related to parenting time. The court found that
maintaining the status quo would embolden her in ways
that would not be in the child’s best interests. During
recent communications, [Alexandra] simply responded
that [Dwayne] should just call his attorney. That is cer-
tainly not the sort of thing the Court would have expected
in this case, especially during the pendency of the action.
The fact that one parent might interfere with the other’s
relationship with the child is a factor the trial court may con-
sider in granting custody, but it is not a determinative factor.
Kashyap v. Kashyap, supra. We therefore also look at the
other evidence related to E.B.’s best interests which was con-
sidered by the court in reaching its decision to modify physi-
cal custody.
[5,6] The court stated, “Importantly, [Alexandra] has failed
to disclose significant issues relating to the minor child and
has not involved [Dwayne] in matters that might be material
and important in the life of the minor child such as worri-
some behaviors during school [and] making changes without
[Dwayne’s] input.” Although not a completely determina-
tive factor, the promotion and facilitation of a relationship
by one parent with the other parent is a factor that may be
considered when awarding custody. See Kashyap v. Kashyap,
supra. It stands to reason that a parent’s intentional refusal
to promote and facilitate the other parent’s involvement in a
child’s important educational, religious, and medical needs
constitutes a significant factor to consider when making cus-
tody decisions.
The court also concluded that E.B. has fit in well with
Dwayne, his family, and his environment during the extended
parenting times. The court stated that Dwayne “offers a bit
- 420 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393more structure in the home environment which would benefit
[E.B.]” On the other hand, the court noted that Alexandra’s
“household was loving but hectic.” The court summarized,
“For reasons that are very difficult to articulate it appears that
the home environment of [Dwayne] might offer more structure
and accountability to [E.B.]” Given the evidence related to
E.B.’s behavioral concerns, the district court’s finding related
to Dwayne’s ability to offer more structure to E.B. is an impor-
tant consideration in our review, as is its determination that
Dwayne and his wife would better provide for E.B.’s medical
and mental health needs.
Based on the record before us, we cannot say that the district
court abused its discretion in finding that a material change in
circumstances had occurred since the original decree such that
it was in E.B.’s best interests to change his physical custody
from Alexandra to Dwayne. We are mindful of the fact that the
trial judge heard and observed the witnesses and was in a bet-
ter position to determine the credibility of the parties. Notably,
the court specifically found “credibility is lacking” regarding
Alexandra’s newfound understanding of her obligations as a
custodial parent.
[7] Having determined the district court did not abuse
its discretion in modifying physical custody, we now con-
sider Dwayne’s request to remove E.B. to Utah. In custody
modification cases that do not involve removal of a child to
another state, the best interests considerations we discussed
above would conclude our analysis. However, where a change
in physical custody will also require relocating the child to
another state, additional factors must be considered to deter-
mine whether the change in custody is still in the child’s best
interests. Thus, the best interests considerations for determining
custody and the best interests considerations for determining
removal become intertwined when a change in custody neces-
sarily includes the relocation of the child’s primary residence
to another state. See, e.g., Clinton M. v. Paula M., 21 Neb.
App. 856, 844 N.W.2d 814 (2014) (in circumstances where
- 421 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393parents share joint legal and physical custody, parent seeking
modification must first prove material change in circumstances
affecting best interests of child by evidence of legitimate rea-
son to leave state, together with expressed intention to do so;
once parent seeking modification has met threshold burden,
separate analyses of whether custody should be modified and
removal should be permitted become intertwined). See, also,
Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000). We
now consider E.B.’s best interests in the context of his reloca-
tion to Utah.
4. Removal From Jurisdiction
(a) Legitimate Reason
to Leave State
[8] In relocation cases, a parent must first satisfy the court
that he or she has a legitimate reason for leaving the state. See
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592(1999). Like in State on behalf of Savannah E. & Catilyn E.
v. Kyle E., 21 Neb. App. 409, 838 N.W.2d 351 (2013), this
case differs from the typical removal case because Dwayne,
the noncustodial parent, was seeking to gain physical custody
of E.B., which necessarily would require moving him to Utah.
Further, Dwayne is not leaving the state, but, rather, he has
resided in Utah for several years and is seeking permission to
relocate E.B. there. See id. Accordingly, Dwayne demonstrated
a legitimate reason to relocate E.B.
(b) Best Interests of Child
[9] Once the threshold burden of showing a legitimate rea-
son for leaving the state has been met, the court then deter-
mines whether removal to another jurisdiction is in a child’s
best interests, which in turn depends on (1) each parent’s
motives for seeking or opposing the move, (2) the potential
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 the noncustodial
- 422 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393parent, when viewed in the light of reasonable visitation
arrangements. State on behalf of Savannah E. & Catilyn E. v.
Kyle E., supra.
(i) Each Parent’s Motives
The ultimate question in evaluating the parties’ motives is
whether either party has elected or resisted a removal in an
effort to frustrate or manipulate the other party. McLaughlin v.
McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
Although Alexandra claims that Dwayne’s only stated
motive was a reduction in his child support, her claim is simply
not supported by the record. We have previously set forth the
many reasons why Dwayne sought a modification of custody.
We agree with the district court’s findings that the evidence
presented showed both parties care about E.B.’s well-being
and that there were legitimate reasons for seeking and oppos-
ing E.B.’s move as both parties are “fully enmeshed” in their
respective home states. There is no evidence that either par-
ent’s motive in requesting or opposing removal was adverse to
E.B.’s best interests.
(ii) Quality of Life
In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the par-
ent seeking removal and of the child, we have previously con-
sidered several pertinent factors, including: (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 relocating 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 advan-
tages; (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 parties; and (9) the living conditions and
employment opportunities for the custodial parent because the
- 423 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393best interests of the child are interwoven with the well-being
of the custodial parent. Kashyap v. Kashyap, 26 Neb. App.
511, 921 N.W.2d 835 (2018). See Farnsworth v. Farnsworth,
257 Neb. 242, 597 N.W.2d 592 (1999). This list should not be
misconstrued as setting out a hierarchy of factors. Kashyap v.
Kashyap, supra. Depending on the circumstances of a particu-
lar case, any one factor or combination of factors may be vari-
ously weighted. Id.
Alexandra argues that the district court failed to properly
weigh several of those factors. While we will conduct our own
review of the factors, we find it unnecessary to specifically
weigh each factor, since our purpose in this particular analysis
is to consider the evidence in terms of whether any factor(s)
would so strongly overcome the determination already made
that it is in E.B’s best interests to be placed into Dwayne’s
physical custody. In other words, we will consider the evidence
in the context of whether a factor weighs against E.B.’s best
interests by being removed from Nebraska to be in his father’s
physical custody in Utah.
a. Emotional, Physical, and
Developmental Needs of E.B.
The district court found the evidence reflected that E.B. had
been having rather significant difficulties at school and behav-
ior issues. Alexandra consistently failed to disclose those issues
to Dwayne or communicate with him as to the needed plans
for dealing with those issues. While Alexandra adequately pro-
vided for the minor child in terms of food, shelter, and nurture,
there was some dispute as to whether the medical and dental
care had been sufficient.
Dr. McNeese recognized that E.B.’s behavioral problems
were of concern and suggested an “ADHD” evaluation at some
point in the future. Dr. McNeese was concerned about E.B.’s
ability to adapt to change and suggested a move would be
detrimental to him. And Dr. McNeese favored a parenting plan
similar to that proposed by Alexandra.
- 424 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393Alexandra argues the district court should have given more
weight to Dr. McNeese’s opinions. However, the district court
was concerned that Dr. McNeese did not seem to have a back-
ground of the history between the parties and the actions of
each since the last order was entered. The court indicated it
had considered Dr. McNeese’s concerns about E.B.’s “adapt-
ability to change and the issues caused by new environments,”
and that a move would be detrimental to him. The court
said it had “considered those factors and trusts those opin-
ions.” Nevertheless, the court concluded that E.B. was young
and that
the surroundings, people and circumstances of [Dwayne’s]
environment are very well known to [E.B.] The difference
really is starting a new school in the middle of a term.
The court finds that [Dwayne] is aware of those concerns
and willing and able, with his family, to navigate any
issues related in going to a new school.
The district court observed that Dr. McNeese did not have
information about Dwayne or the nature of the circumstances
that were available to E.B. if he moved to Utah. We acknowl-
edge that it was Dwayne’s choice not to participate in the
evaluation, but we also acknowledge his reasons for not par-
ticipating, namely that the necessity of an expert was not previ-
ously discussed with him, the expert was chosen and hired by
Alexandra, and the distance presented a problem.
Dwayne is not a stranger to E.B. Until the 2019-20 school
year, E.B. spent 4 months every year in Utah, seemingly
without incident. It appears that both Alexandra and Dwayne
would be able to provide for the emotional, physical, and
developmental needs of E.B. However, the district court found
that Dwayne and his wife might have a better handle on
E.B.’s medical and mental health needs if he was in Dwayne’s
care. We are mindful of the fact that the trial judge heard and
observed the witnesses and was in a better position to deter-
mine the credibility of the parties. No evidence under this fac-
tor weighs against E.B.’s removal from Nebraska to be in his
father’s physical custody in Utah.
- 425 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393b. E.B.’s Opinion or Preference
This factor is not applicable here because E.B. did not tes-
tify at trial.
c. Enhancement of Income
or Employment
The district court found that this factor is neutral because
there was no evidence that income or employment is an
issue. We find that in a situation like this, where both parties
continue to work in their home states, this factor is neutral
or inapplicable.
d. Housing or Living Conditions
Each party has a five-bedroom home that is shared by two
adults and six or seven children. E.B. shares a bedroom when
he is at Dwayne’s home and has recently stopped sharing a
bedroom at Alexandra’s home. There was no evidence that
either home was inappropriate.
The district court found that “[f ]or reasons that are very
difficult to articulate it appears that the home environment
of [Dwayne] might offer more structure and accountability to
[E.B.]” No evidence under this factor weighs against E.B.’s
removal from Nebraska to be in his father’s physical custody
in Utah.
e. Educational Advantages
As noted by the district court, it appears that the educa-
tional needs of E.B. are being met. It does not appear from
our record that there would be any educational advantages in
Utah as opposed to Nebraska. E.B. appears to struggle some-
what with transition. By all accounts, E.B. had a rough start in
kindergarten, although some of those behaviors were present
earlier when he was in daycare. However, Buettner, the prin-
cipal at E.B.’s elementary school, stated that E.B.’s behaviors
improved as time went on. Although this evidence might lean
toward keeping E.B. in the same school environment, it does
not by itself outweigh the other factors supporting E.B.’s
- 426 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393removal from Nebraska to be in his father’s physical custody
in Utah.
f. Relationship Between
E.B. and Each Parent
Until the 2019-20 school year started, E.B. was spending 4
months each year with Dwayne in Utah. As evidenced by the
record, E.B. has a good relationship with both of his parents.
And, as noted by the district court, neither party suggested, in
any way, that the other parent was lacking in his/her relation-
ship with the minor child. The district court found that the
bond between Alexandra and E.B. was strong, and it ultimately
found this factor disfavored the move. However, there is noth-
ing to suggest that Dwayne does not also have a strong bond
with E.B. Therefore, there is no evidence under this factor
weighing against E.B.’s removal from Nebraska to be in his
father’s physical custody in Utah.
g. E.B.’s Ties to Present Community
and Extended Family
In Utah, E.B. lives with his two half siblings and three step-
siblings with whom he has a good relationship. Additionally,
Dwayne’s parents and two of Dwayne’s seven siblings live
within a 30-minute drive of Dwayne’s house, and E.B. has a
good relationship with Dwayne’s extended family. E.B. also
has a good relationship with Megan’s extended family who
live within 20 minutes of them. Further, E.B. has neighbor-
hood friends.
In Nebraska, E.B. lives with four out of five of his half
siblings, plus Brent’s two other children. Alexandra’s mother
appears to also live in the area, and she sometimes provides
care for E.B. and his half siblings. Additionally, E.B. has a
close relationship with his cousins in Lincoln.
No evidence under this factor weighs against E.B.’s
removal from Nebraska to be in his father’s physical custody
in Utah.
- 427 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393h. Hostilities Between Parents
We agree with the district court that this factor is, in
this case, the weightiest. Both parties are capable and lov-
ing parents. However, there has been a lack of cooperation
between the parties. Of import here, and as stated by the
district court, Alexandra “has simply not understood the need
to maintain the flexibility, adaptability and communication
required.” She has failed to be cooperative regarding parent-
ing time exchanges. But more importantly, she has failed to
share important information with Dwayne regarding E.B.,
e.g., his behavioral issues, and she has made important deci-
sions for E.B., such as getting him baptized, without engaging
in meaningful discussions with Dwayne. On several occa-
sions, Alexandra has refused to communicate with Dwayne
or answer questions regarding E.B., and instead, she told
Dwayne to contact her lawyer. At the time of the original
custody order in 2015, the district court was concerned about
Alexandra’s conduct toward Dwayne. And as stated in its cur-
rent order, the district court found that Alexandra’s conduct
“really has not changed,” and “[i]n fact, in some ways [her]
negative conduct has amplified.”
We agree with the district court that Alexandra “has just
simply taken positions inconsistent with the responsibilities
inherent as primary parent as to cooperation and communica-
tion.” The district court found that “maintaining the status quo
would embolden her in ways that would not be in the child’s
best interests.” We are mindful of the fact that the trial judge
heard and observed the witnesses and was in a better position
to determine the credibility of the parties. As noted previously,
Dwayne is not without fault in this case. His communication
and cooperation could be improved. The outcome in this case
should make it very clear to both parties that the failure to
properly communicate and cooperate with regard to matters
pertinent to E.B.’s well-being is not in E.B.’s best interests
and that such failures are significantly weighted among other
factors when a court considers whether to modify custody.
- 428 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393See Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835(2018) (although not only factor, promotion and facilitation of
relationship by one parent with other parent is factor that may
be considered when awarding custody).
There is no evidence under this factor which weighs against
E.B.’s removal from Nebraska to be in his father’s physical
custody in Utah, and in fact, this particular factor weighs heav-
ily in support of the removal.
i. Child’s Best Interests Are
Interwoven With Well-Being
of Custodial Parent
The best interests of the child are interwoven with the well-
being of the custodial parent. Farnsworth v. Farnsworth, 257
Neb. 242, 597 N.W.2d 592 (1999). In the present case, each
parent will continue to live and work in their home states under
satisfactory conditions. This factor has little to no application
under these circumstances.
j. Summary of Quality
of Life Factors
Keeping in mind that we found no abuse of discretion by
the district court in concluding that E.B.’s best interests would
be better served by placing him in Dwayne’s physical custody
for the reasons previously set forth, we cannot say that our
conclusion is any different after considering these quality of
life factors.
(iii) Impact on Noncustodial
Parent’s Visitation
The final consideration in the best interests of the child
analysis is the effect of the child’s relocation on the noncus-
todial parent’s ability to maintain a meaningful parent-child
relationship. See McLaughlin v. McLaughlin, 264 Neb. 232,
647 N.W.2d 577 (2002). This effect must be viewed in light of
the court’s ability to devise reasonable parenting time arrange-
ments. See id.- 429 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393Here, regardless of who has custody, the noncustodial par-
ent would not be able to enjoy the same liberal parenting
time that was available before E.B. began elementary school.
However, the parenting plan established in the district court’s
order does its best to minimize the impact on parenting time.
Alexandra was awarded regular summer parenting time to
commence on the seventh day following E.B.’s release from
school for the summer recess and concluding 7 days before
school commences in the fall, and regular school year parent-
ing time during E.B.’s fall and spring breaks every year. A
Thanksgiving and Christmas break parenting time schedule
was also established, and it included extended Christmas
break parenting time in odd-numbered years for Alexandra.
Additional parenting time was to be provided if Alexandra
had the opportunity to exercise parenting time in Utah. And
the parties were to work in good faith to allow Alexandra
to have additional parenting time as schedules and circum-
stances allow.
We agree with the district court’s finding that
it appears that [Dwayne] is willing to communicate
with [Alexandra] and keep her advised of all the issues
relative to the minor child. The Court believes ulti-
mately that [Dwayne] will cooperate with [Alexandra]
so that she may receive all the information with regard
to the minor child without unnecessary limitation. The
Court does not believe that would be true if custody
remained static.
(c) Did District Court Abuse
Its Discretion?
We previously concluded that the district court did not
abuse its discretion in determining that it was in E.B.’s best
interests to award his physical custody to Dwayne. Nothing
in our review of the removal factors causes us to reach a
different conclusion when considering E.B.’s best interests.
Accordingly, we cannot say that the district court abused
- 430 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
BURTON v. SCHLEGEL
Cite as 29 Neb. App. 393its discretion in granting Dwayne physical custody of E.B. and
allowing him to remove E.B. to Utah.
VI. CONCLUSION
For the reasons stated above, we affirm the decision of the
district court which awarded Dwayne physical custody of E.B.
and allowed him to remove E.B. to Utah.
Affirmed.