Boyer v. Boyer ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/17/2017 09:08 AM CST
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BOYER v. BOYER
Cite as 24 Neb. Ct. App. 434
Jason Boyer, appellant, v.
Lauren Boyer, appellee.
___ N.W.2d ___
Filed January 17, 2017. No. A-16-150.
1. Child Custody: Visitation: Appeal and Error. Child custody and
visitation 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. Judges: Words and Phrases. A judicial abuse of discretion exists when
a judge, within the effective limits of authorized judicial power, elects
to act or refrains from acting, and the selected option results in a deci-
sion which is untenable and unfairly deprives a litigant of a substantial
right or a just result in matters submitted for disposition through a judi-
cial system.
3. Child Custody. In order to prevail on a motion to remove a minor child
to another jurisdiction, the custodial parent 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.
4. ____. Remarriage is a commonly found legitimate reason for removal of
a child from the state.
5. ____. Absent evidence of an ulterior motive, a custodial parent’s desire
to live with his or her current spouse, who is located outside of the cus-
todial jurisdiction, is a legitimate reason to remove the minor child.
6. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
7. Child Custody: Visitation. In determining whether removal to another
jurisdiction is in the child’s best interests, the court considers (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 move will have on contact
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between the child and the noncustodial parent, when viewed in the light
of reasonable visitation.
8. Child Custody. The ultimate question in evaluating the parties’ motives
in seeking removal of a child to another jurisdiction is whether either
party has elected or resisted removal in an effort to frustrate or manipu-
late the other party.
9. ____. In determining the potential that the removal to another jurisdic-
tion holds for enhancing the quality of life of the child and the custo-
dial parent, a court should evaluate the following considerations: (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 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 removal would antagonize hostilities between
the two parties; and (9) the living conditions and employment opportu-
nities for the custodial parent because the best interests of the child are
interwoven with the well-being of the custodial parent.
10. ____. The list of factors to be considered in determining the potential
that the removal to another jurisdiction holds for enhancing the quality
of life of the parent seeking removal and of the children should not be
misconstrued as setting out a hierarchy of considerations, and depend-
ing on the circumstances of a particular case, any one consideration or
combination of considerations may be variously weighted.
11. ____. The existence of educational advantages factor receives little or
no weight when the custodial parent fails to prove that the new schools
are superior.
12. Child Custody: Visitation. A noncustodial parent’s visitation rights are
important, but a reduction in visitation time does not necessarily pre-
clude a custodial parent from relocating for a legitimate reason.
13. Child Custody. In considering removal of a child to another jurisdic-
tion, a court focuses on the ability of the noncustodial parent to maintain
a meaningful parent-child relationship.
Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed.
Aimee S. Melton and A. Bree Robbins, of Reagan, Melton
& Delaney, L.L.P., for appellant.
Robin L. Binning, of Binning & Plambeck, for appellee.
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BOYER v. BOYER
Cite as 24 Neb. Ct. App. 434
Moore, Chief Judge, and Pirtle, Judge, and McCormack,
Retired Justice.
Pirtle, Judge.
I. INTRODUCTION
Jason Boyer appeals from an order of the district court for
Sarpy County which granted Lauren Boyer’s request to remove
the parties’ minor child from Nebraska to Alaska. We find that
Lauren had a legitimate reason to request removal and find,
upon our de novo review, that she sufficiently demonstrated
removal would be in the child’s best interests. Accordingly, we
affirm the district court’s order.
II. BACKGROUND
The parties met in Montana in 2004. Jason was a mem-
ber of the U.S. Air Force at the time. The parties married in
November 2006 in Nebraska, and they had one child together,
Micah Boyer, who was born in 2010. During their relation-
ship, they moved frequently due to Jason’s military service.
The parties separated around February 2011. At that time, they
were living in California. Following the separation, Lauren and
Micah moved to Bellevue, Nebraska, where Lauren’s parents
were living due to her father’s military service.
Jason filed for divorce in California, and a divorce decree
was entered on April 25, 2013. Lauren was awarded physical
custody of Micah, and the parties were awarded joint legal
custody. Lauren was allowed to stay in Nebraska with Micah.
Jason continued to live in California due to his military service
until he was honorably discharged in August 2014. He moved
to Nebraska in September 2014 to be closer to Micah.
Between February 2011 and September 2014, Jason made
multiple trips to Nebraska to visit Micah. Jason also main-
tained contact with Micah through telephone and “Skype” con-
versations. Upon moving to Nebraska, Jason began spending
time with Micah on a frequent basis.
After moving to Nebraska, Jason enrolled in a bachelor’s
degree program, which he completed, and he also worked
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part time. At the time of trial in January 2016, he had been
accepted into a master’s degree program in security manage-
ment that was set to start the month after trial.
When Lauren first moved to Nebraska with Micah, they
lived with Lauren’s parents for about 6 months and then moved
into a two-bedroom apartment. At the time of trial, they were
living with Lauren’s parents again, because Lauren had given
up her apartment in anticipation of her move out of state.
After moving to Nebraska, Lauren went to nursing school,
and in August 2014, she became a licensed practical nurse
(LPN). She was employed as a nursing supervisor at a long-
term care facility, where she had worked various shifts.
In the summer of 2014, Lauren met her current husband,
Collin Stone, on a dating Web site. They began communicating
with each other by telephone and e-mail, and she learned early
on that Collin lived in Alaska. After about a year of commu-
nicating with him, Collin came to Nebraska in June 2015, and
she met him in person for the first time. Micah met Collin as
well. Lauren and Collin next saw each other in July, when they
met each other in Montana. Micah was not present on this trip.
During this visit, Lauren and Collin became engaged. They
were married in August, after Jason filed this action. Lauren
had never been to Alaska until August or September, after her
marriage to Collin. The first time Micah went to Alaska was
for Christmas. At trial, Lauren testified that three home preg-
nancy tests had indicated she was pregnant, although she had
not yet been to a doctor.
On August 5, 2015, Jason filed an application to register the
parties’ California dissolution order in Nebraska. He also filed
a complaint for modification alleging that material changes in
circumstances had occurred that warranted a modification to
the decree. The alleged changes were that Jason had moved
to Nebraska to be closer to Micah; that the parties mediated
a parenting plan, and Jason had been actively involved in
Micah’s life; that Lauren told Jason that she was getting mar-
ried, moving to Alaska, and taking Micah with her; that such
move would substantially impact Jason’s relationship with
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Micah; and that the move to Alaska is contrary to Micah’s best
interests. He requested that the decree be modified to order
Lauren to stay in Nebraska with Micah or, in the alternative, to
order that Micah stay in Nebraska. If Lauren chooses to leave
Nebraska, Jason asked that custody be awarded to him. Jason
also requested an increase in the amount of his visitations pre-
viously ordered.
Lauren filed an answer and counterclaim on August 13,
2015. In her counterclaim, she alleged that material changes
in circumstances had occurred to warrant modification of the
decree, in that joint legal custody was no longer in Micah’s
best interests, that Lauren is remarried and plans to relocate
to Alaska, that it was in Micah’s best interests to grant Lauren
permission to remove Micah from Nebraska, and that Lauren
has been responsible for providing the daily care and the finan-
cial support for Micah since the decree was entered. Lauren
requested that the court award her legal and physical cus-
tody of Micah, subject to reasonable parenting time by Jason,
and grant her permission to remove Micah from Nebraska
to Alaska.
Following trial on Jason’s complaint for modification and
Lauren’s counterclaim for modification, the trial court found
that Lauren had met her burden of proof as to removal and
granted her permission to remove Micah from Nebraska
to Alaska.
III. ASSIGNMENTS OF ERROR
Jason assigns that the trial court erred in (1) finding that
Lauren had a legitimate reason to remove Micah from Nebraska
to Alaska, (2) finding that removal was in Micah’s best inter-
ests, (3) receiving exhibit 39 into evidence, and (4) finding that
the parties shall share joint legal custody of Micah effective
January 1, 2018.
IV. STANDARD OF REVIEW
[1,2] Child custody and visitation determinations are mat-
ters initially entrusted to the discretion of the trial court, and
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although reviewed de novo on the record, the trial court’s
determination will normally be affirmed absent an abuse of
discretion. Dragon v. Dragon, 21 Neb. Ct. App. 228, 838 N.W.2d
56 (2013). A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects
to act or refrains from acting, and the selected option results in
a decision which is untenable and unfairly deprives a litigant
of a substantial right or a just result in matters submitted for
disposition through a judicial system. Id.
V. ANALYSIS
[3] Jason’s first two assignments of error relate to the trial
court’s granting Lauren permission to remove Micah from
Nebraska to Alaska. In order to prevail on a motion to remove
a minor child to another jurisdiction, the custodial parent must
first satisfy the court that he or she has a legitimate reason
for leaving the state. After clearing that threshold, the cus-
todial parent must next demonstrate that it is in the child’s
best interests to continue living with him or her. Dragon v.
Dragon, supra.
1. Legitimate R eason for
Leaving State
[4,5] The trial court found that Lauren’s remarriage and
subsequent pregnancy constituted legitimate reasons to leave
the state. It is well established in Nebraska case law that remar-
riage is a commonly found legitimate reason for removal of a
child from the state. See, Vogel v. Vogel, 262 Neb. 1030, 637
N.W.2d 611 (2002); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d
328 (2000); Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325
(1994); Curtis v. Curtis, 17 Neb. Ct. App. 230, 759 N.W.2d 269
(2008). Our precedent has recognized that absent evidence
of an ulterior motive, a custodial parent’s desire to live with
his or her current spouse, who is located outside of the cus-
todial jurisdiction, is a legitimate reason to remove the minor
child. Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d
79 (2014).
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Jason argues that the facts in this case are distinguishable
from the facts in prior cases where marriage has been found to
be a legitimate reason for removal. He contends that in cases
such as Vogel v. Vogel, supra, and McLaughlin v. McLaughlin,
264 Neb. 232, 647 N.W.2d 577 (2002), the parties met their
spouses in Nebraska and sought removal after the new spouse
needed to relocate for career reasons, which is not the situa-
tion here. Lauren and Collin did not meet in Nebraska, and
removal is not being sought for a career reason of Collin’s.
Jason also argues that because Lauren met her current husband
online and did not meet him in person until a few months
before their marriage, her marriage is somehow less credible
than that of a couple meeting by other means. As the trial
court found, there is no basis in the case law to treat this
marriage differently than those found in other cases. We con-
clude that Lauren’s marriage to Collin was a legitimate reason
for removal.
[6] Having concluded that Lauren’s remarriage was a legiti-
mate reason for removal, we need not determine whether her
pregnancy was also a legitimate reason. An appellate court is
not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it. Doty v. West Gate
Bank, 292 Neb. 787, 874 N.W.2d 839 (2016).
2. Best Interests
Having determined Lauren met the threshold requirement,
we will consider upon our de novo review whether she demon-
strated that removing Micah from Nebraska is in his best inter-
ests. See Dragon v. Dragon, 21 Neb. Ct. App. 228, 838 N.W.2d
56 (2013).
[7] In determining whether removal to another jurisdiction
is in the child’s best interests, the court considers (1) each par-
ent’s motives for seeking or opposing the move; (2) the poten-
tial the move holds for enhancing the quality of life for the
child and the custodial parent; and (3) the impact such move
will have on contact between the child and the noncustodial
parent, when viewed in the light of reasonable visitation. Id.
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(a) Each Parent’s Motives
[8] The ultimate question in evaluating the parties’ motives
in seeking removal of a child to another jurisdiction is whether
either party has elected or resisted removal in an effort to frus-
trate or manipulate the other party. Wild v. Wild, 15 Neb. Ct. App.
717, 737 N.W.2d 882 (2007).
The evidence shows Lauren sought removal because she
wants to live with her new husband, who has lived in Alaska
for 20 years; who teaches aviation in high school, which is
not something he can easily teach anywhere else; and who has
shared custody of his three children in Alaska. We note the
trial court’s concern about the future stability of this marriage,
given that Lauren and her new husband have not spent signifi-
cant time together. Nevertheless, we agree that her motivation
in seeking removal appears to be sincere and not an effort to
frustrate or manipulate Jason.
Jason’s motives for resisting the removal are also sincere.
He opposes removal because it would dramatically affect his
parenting time and his relationship with Micah. When Jason
was discharged from the Air Force, he moved to Nebraska to
be close to Micah. Since his move in September 2014, Jason
has been spending time with Micah on a regular basis and has
been working on establishing a good relationship with him.
There is no indication that his opposition to removal is an
attempt to frustrate or manipulate Lauren.
Both parties have sincere motives for seeking or opposing
removal and neither party acted in bad faith. This factor does
not weigh for or against removal.
(b) Quality of Life
[9] In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the child
and the custodial parent, a court should evaluate the following
considerations: (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
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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
removal would antagonize hostilities between the two parties;
and (9) the living conditions and employment opportunities for
the custodial parent because the best interests of the child are
interwoven with the well-being of the custodial parent. See,
Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Wild
v. Wild, supra.
[10] This list should not be misconstrued as setting out a
hierarchy of considerations, and depending on the circum-
stances of a particular case, any one consideration or combi-
nation of considerations may be variously weighted. Wild v.
Wild, supra.
(i) Emotional, Physical, and
Developmental Needs
We first consider the impact on Micah’s emotional, physical,
and developmental needs in assessing the extent to which the
move could enhance the child’s life.
The evidence shows that Lauren has always been Micah’s
primary caregiver and, thus, has been the parent responsible
for his emotional, physical, and developmental needs. Lauren
testified that when Micah was an infant, she was the one pri-
marily responsible for his care and he was with her all the time.
During the marriage, Jason often worked very long hours as a
result of his military duties. When Lauren and Micah moved
to Nebraska, Lauren was Micah’s primary parent and was
responsible for his daily needs. The evidence demonstrates that
Micah’s emotional, physical, and developmental needs have
always been met.
Since Jason moved to Nebraska, he and Micah have been
spending time together regularly and Jason has been taking on
more responsibility in meeting Micah’s emotional, physical,
and developmental needs. However, Lauren has a more stable
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and constant presence in Micah’s life and has been the one
historically responsible for his emotional, physical, and devel-
opmental needs. We agree with the trial court that this factor
weighs somewhat in favor of removal.
(ii) Child’s Opinion or Preference
Micah did not testify and was too young, at the age of 5,
to state his preference on where to live. This factor does not
weigh in favor of or against removal.
(iii) Enhancement of Custodial
Parent’s Income
Lauren claims that the move to Alaska will enhance her
income. At the time of trial, she was working as an LPN in
a long-term care facility and earning $18 per hour. She testi-
fied that she believed that her current income reflected the
maximum income she could earn as an LPN in the Omaha,
Nebraska, area. She testified that she had not applied anywhere
besides the place she works, because the starting pay at other
LPN jobs would be lower than what she makes. However, she
had no corroborating evidence to support her opinions.
Lauren testified that she had been offered a job with the
school district in Nenana, Alaska. She testified that she was
offered a position as a school nurse, which the school currently
does not have. She stated that she would be paid $25 per hour
and that her work hours would be the same hours as Micah’s
schoolday. She also testified that she would be working at
the same school Micah would be attending. Lauren testified
that the job was an opportunity that she would not have in
Nebraska, because there are a lot of nurses in Nebraska.
Lauren testified that she had received a written confirma-
tion of the job offer from the Nenana school district. Exhibit
39 is the purported job offer from the superintendent of the
school district, which exhibit was admitted into evidence, over
Jason’s objection.
Jason assigns that the trial court erred in receiving exhibit
39 into evidence. He objected to the admission of the exhibit
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into evidence based on the grounds of hearsay and foundation.
Lauren’s counsel stated she was not offering the exhibit for the
truth of the matter asserted in the exhibit, but for confirmation
that Lauren received an offer from the Nenana school district.
The court overruled Jason’s objection and received the exhibit
for the limited purpose as offered.
Assuming without deciding that the trial court erred in
admitting exhibit 39 into evidence, it was harmless error
because the exhibit failed to provide any evidence that Lauren
has a job in Alaska. The “offer” that was made to Lauren, as
set forth in exhibit 39, was to do “an assessment of the medi-
cal practices and procedures utilized at the Nenana Student
Living Center and throughout the Nenana City School.” The
assessment was expected to take 1 month, and during that
time, Lauren would be paid $25 an hour. Exhibit 39 further
states that once the assessment is complete, the school district
would then decide, based on the results, whether it would offer
Lauren a permanent position to provide nursing services. A
permanent position would provide “competitive wages”; a fully
paid medical, dental, and vision plan; and “participation in
Alaska’s Public Employees Retirement System.”
Therefore, exhibit 39 shows only that the school district will
allow Lauren to do an assessment to see if there is a need for
a new position. She had not been offered a permanent position,
only the possibility of one. Further, even if we could construe
exhibit 39 as a job offer, there is nothing to indicate that her
income will be enhanced. She will be paid $25 per hour dur-
ing the assessment, but in regard to a permanent position, we
know only that she will be paid “competitive wages.” There is
no indication as to what that means or any evidence as to what
LPN’s are paid on average in Alaska. In addition, Lauren failed
to provide any evidence regarding the cost of living in Nenana
versus Bellevue. Any potential increase in her earnings could
be spent on cost-of-living increases. See Wild v. Wild, 13 Neb.
App. 495, 696 N.W.2d 886 (2005). Finally, we note that Lauren
also testified that she always wanted to be a stay-at-home
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mother and that she could do that if she wanted by moving to
Alaska, which contradicts any evidence about an enhancement
in her income.
We conclude that there is no evidence that Lauren’s income
will be enhanced by a move to Alaska. Accordingly, this factor
does not weigh in favor of removal.
(iv) Degree to Which Housing or Living
Conditions Would Be Improved
At the time of trial, Lauren and Micah were living with
Lauren’s parents in their home. Prior to making plans to
move to Alaska, Lauren and Micah lived in a two-bedroom
apartment. Lauren testified that if she stayed in Nebraska
with Micah, she would find another two-bedroom apartment
to live in. Jason also lives in a two-bedroom apartment. If
removal were allowed, Lauren and Micah would live in a
three-bedroom house that Collin owns. There was testimony
that a loft area of the house could be used as an additional
bedroom. The house is located on a 1-acre lot in a wooded
area just outside Nenana, which is a small town of about 500
people. The closest city is Fairbanks, Alaska, which is about
a 40-minute drive.
We conclude that housing or living conditions would be
somewhat improved by the move to Alaska. Accordingly, this
factor weighs in favor of removal.
(v) Existence of Educational Advantages
[11] We next consider whether Alaska offers educational
advantages. We have held this factor receives little or no
weight when the custodial parent fails to prove that the new
schools are superior. Maranville v. Dworak, 17 Neb. Ct. App. 245,
758 N.W.2d 70 (2008).
At the time of trial, Micah was attending school in the
Bellevue public school system. In Alaska, he would attend
school in the Nenana public school system. There was no
evidence presented that one school district would provide edu-
cational advantages over the other. Lauren testified that she
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believed both school systems would provide a good education
and that the education factor was neutral. Therefore, we find
this factor does not weigh in favor of or against removal.
(vi) Quality of Relationship Between
Child and Each Parent
The evidence showed that Micah has a good and loving
relationship with both parents. There was no real bond estab-
lished between Jason and Micah when Micah was a baby,
because Jason often worked long hours and Lauren and Micah
moved to Nebraska when Micah was less than a year old. The
relationship between Jason and Micah has gotten s­tronger
since Jason’s move to Nebraska. They have grown closer
since then, and they spend time with each other on a regular
basis. As the trial court noted, Jason has made a sincere effort
to build a strong relationship with Micah since he moved to
Nebraska. Lauren testified that Micah has a lot of fun with
Jason and that they do activities and go places when they are
together. She was concerned, however, that Jason does not
discipline Micah and that they are more “buddies” than father
and son.
Lauren has been Micah’s primary caregiver all of his life,
and they have a strong bond. As the court noted, if Micah had
to be separated from one or the other parent, he would more
easily adapt to not seeing Jason on a frequent basis, given his
close bond to Lauren.
Although the evidence shows that Jason has a good rela-
tionship with Micah, the relationship between Lauren and
Micah is stronger and well-established. Therefore, we con-
clude that Micah’s strong bond with Lauren weighs in favor
of removal.
(vii) Strength of Child’s Ties to Present
Community and Extended Family
Micah was only 5 years old at the time of trial, so he does
not have any strong ties to the Bellevue community. He does,
however, have strong ties to Lauren’s extended family who
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live in the Bellevue area. Lauren’s parents and several of
her siblings live in Bellevue. Lauren and Micah lived with
Lauren’s parents when they first moved to Nebraska and lived
with them again after Lauren planned to move to Alaska.
Lauren’s parents have also been Micah’s childcare providers
when Lauren is working.
Lauren’s father, however, testified that he and his wife may
move out of Nebraska at some point because he would like to
pursue other career opportunities. Lauren’s father was in the
Air Force and was stationed in Nebraska in 2006. He retired
in 2009 and has stayed in Nebraska since then, working at the
Air Force base as a civilian employee. He testified that he and
his wife would consider moving out of Nebraska for a career
opportunity, but not until after his daughter finished her cosme-
tology school education in the next 18 months. He had previ-
ously turned down job offers outside of Nebraska because the
timing was not right. He testified that if he and his wife moved,
he did not know whether his two adult children that live in
Bellevue would also move or remain in Nebraska.
Jason has no ties to Nebraska and no family in the state.
Neither Jason nor Lauren have any family in Alaska. We con-
clude that this factor does not weigh in favor of or against
removal.
(viii) Likelihood That Allowing or
Denying Move Would Antagonize
Hostilities Between Parties
The evidence shows that there is hostility between the par-
ties, primarily as a result of Lauren’s desire to move to Alaska.
Prior to Lauren’s remarriage and desire to move, the parties
were able to communicate with each other about Micah. There
has been some contentious communication between the parties
in the past, primarily caused by Jason.
Any decision in this situation has the potential to antagonize
the hostilities between the parties, at least for a period of time.
Lauren could be hostile toward Jason if she is not allowed to
move to Alaska with her new husband and the father of the
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child she is pregnant with. Likewise, Jason may be hostile if
Lauren is allowed to take Micah to Alaska, after he moved
from California to Nebraska to be near Micah. Therefore, this
factor does not weigh in favor of or against removal.
(ix) Living Conditions and Employment
Opportunities of Custodial Parent
This factor is repetitive of other facts already discussed. We
concluded that the living conditions in Alaska would somewhat
improve and that Lauren’s income or employment opportuni-
ties would not necessarily improve. We give no weight to this
factor as it is incorporated into other factors.
(x) Conclusion Regarding
Quality of Life
After considering all of the quality-of-life factors, we con-
clude upon our de novo review of the record that Lauren estab-
lished removal would enhance the quality of life for Micah.
(c) Impact on Noncustodial
Parent’s Visitation
Relocating to Alaska will undoubtedly have a significant
impact on Jason’s visitation time. Since moving to Nebraska,
Jason has been spending time with Micah on a regular basis
and has become very involved in his life. If Lauren is allowed
to move to Alaska with Micah, given the distance involved,
Jason will no longer see Micah on a regular basis and is mostly
likely to see him only a few times per year. The new parent-
ing plan provides for Jason to have Micah in Nebraska for 7
weeks during the summer vacation and approximately 1 week
during the Christmas vacation, with transportation paid for by
Lauren. Jason also has the option to exercise parenting time
during spring break, at his cost, and to have three 1-week visits
in Alaska. The majority of Jason’s contact with Micah would
be by telephone or Skype, which cannot replace the frequent,
in-person contact he currently has and would continue to have
if Micah were to remain in Nebraska.
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[12,13] Nebraska courts have recognized that a noncusto-
dial parent’s visitation rights are important, but a reduction in
visitation time does not necessarily preclude a custodial parent
from relocating for a legitimate reason. Dragon v. Dragon, 21
Neb. Ct. App. 228, 838 N.W.2d 56 (2013), citing Hicks v. Hicks,
223 Neb. 189, 388 N.W.2d 510 (1986). Rather, we focus on
the ability of the noncustodial parent to maintain a meaning-
ful parent-child relationship. Dragon v. Dragon, supra, cit-
ing Maranville v. Dworak, 17 Neb. Ct. App. 245, 758 N.W.2d 70
(2008). A meaningful relationship would be difficult, if not
impossible, if Lauren moves to Alaska.
This factor weighs against removal because the move will
dramatically reduce the amount of in-person contact Jason has
with Micah and it would be difficult to maintain a meaning-
ful relationship.
(d) Conclusion on Best Interests
A de novo review of the evidence shows that the parents
were not motivated by an effort to frustrate the relationship
of their child with the other parent and that the move would
enhance Micah’s quality of life. Although the move would
greatly impact the relationship between Jason and Micah, the
record overall demonstrates that it is in Micah’s best interests
to move with Lauren from Nebraska to Alaska.
(e) Conclusion on Removal
Based on the totality of the record, we conclude that the
trial court did not err in finding that Lauren has a legitimate
reason for leaving the state and that it is in Micah’s best inter-
ests to continue living with Lauren. Accordingly, we affirm the
court’s order granting Lauren permission to move with Micah
to Alaska.
3. Legal Custody
Finally, Jason assigns that the trial court “erred in find-
ing that the parties shall share joint legal custody of Micah
effective January 1, 2018.” Brief for appellant at 28. Jason
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contends that the court ordered that Lauren would have sole
legal custody until January 1, 2018, at which time he and
Lauren would have joint legal custody of Micah as originally
set forth in the decree. He argues there was no reason for such
an order.
The court found that communication between the parties
had become strained and that joint decisionmaking had become
more difficult, but was likely to improve in the future. As a
result, it held:
[T]he Court finds that the parties shall continue to have
joint legal custody of their minor child. However, due
to the current level of animosity and difficulty of com-
munication, the Court finds that final decision-making
authority on all major decisions involving the minor
child shall be granted to [Lauren] through December 31,
2017. Effective January 1, 2018, the parties shall resume
joint legal custody as outlined in the decree of dissolu-
tion. During the interim period, [Lauren] shall discuss
all major decisions regarding the child’s well being with
[Jason] and seek to reach consensus with [him] regarding
said decisions. She shall only exert her final decision-
making authority in the event that a complete impasse
exists between the parties. No major decision shall be
made without consultation with [Jason].
We conclude that the court did not temporarily change joint
legal custody, as Jason contends. Rather, the court ordered
that the parties would continue to have joint legal custody of
Micah, but it gave Lauren temporary final decisionmaking
authority on all major decisions until December 31, 2017. We
find no merit to Jason’s final assignment of error and further
conclude that the trial court did not abuse its discretion in giv-
ing Lauren temporary final decisionmaking authority.
VI. CONCLUSION
We conclude the district court did not abuse its discretion
in determining that Lauren’s marriage to Collin constituted a
legitimate reason to leave the state and that it was in Micah’s
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best interests to continue living with Lauren in Alaska. We
further conclude that the district court did not err in giv-
ing Lauren final decisionmaking authority until December 31,
2017. Accordingly, the district court’s opinion and order of
modification is affirmed in its entirety.
A ffirmed.
Moore, Chief Judge, concurring.
I write separately to express my discomfort with the dis-
trict court’s grant of Lauren’s application to remove Micah
from Nebraska. While I have no complaint with the finding
that Lauren established a legitimate reason to move from
Nebraska, I am troubled by the finding that the move would
be in Micah’s best interests. The facts that, in my mind, weigh
against granting the removal are as follows: (1) Jason’s move
from California to Nebraska to be close to Micah; (2) the
significant distance between Nebraska and Alaska, with the
corresponding travel limitations; and (3) the relatively weak
evidence that Micah’s quality of life would be enhanced in
Alaska. The strongest argument against removal, though, is
the negative impact that the move will have on the relation-
ship between Jason and Micah, a relationship that has grown
substantially stronger since Jason moved to Nebraska. The
parenting plan, while granting Jason visitation in Nebraska
during part of the Christmas and summer vacations, does not
adequately substitute for the more regular interaction that
Jason and Micah have grown accustomed to in Nebraska. In
addition, at the time of trial, Micah had not had an opportu-
nity to establish a meaningful relationship with his stepfather,
Collin; they had only met on one occasion before the marriage
and only two or three times before the trial. Thus, Micah is
moving far away from his stable home in Nebraska, where
his father, grandparents, and aunts and uncles reside, to a
home in Alaska where he is largely unfamiliar with his new
blended family.
Nevertheless, I ultimately agree that our standard of review
in custody and removal cases dictates that we affirm the trial
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court’s decision in this case. The Nebraska Supreme Court
has recognized:
In parental relocation cases, trial and appellate courts
deal with the tension created by a mobile society and the
problems associated with uprooting children from stable
environments. Courts are required to balance the noncus-
todial parent’s desire to maintain their current involve-
ment in the child’s life with the custodial parent’s chance
to embark on a new or better life. These issues are among
the most difficult issues that courts face in postdivorce
proceedings. It is for this reason that such determina-
tions are matters initially entrusted to the discretion of
the trial judge, and the trial judge’s determination is to be
given deference.
Steffy v. Steffy, 287 Neb. 529, 537, 843 N.W.2d 655, 662-63
(2014). See, also, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015).
After giving appropriate deference to the discretion of the
trial judge, who observed the demeanor of the witnesses, I am
unable to find that the decision was so untenable as to rise
to the level of an abuse of that discretion. Thus, I join in the
majority’s opinion affirming the trial court’s decision.