Welch v. Peery , 26 Neb. Ct. App. 966 ( 2019 )

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03/12/2019 09:08 AM CDT
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WELCH v. PEERY
Cite as 26 Neb. App. 966Ashley Welch, appellee, v.
Preston Peery, appellant.
___ N.W.2d ___
Filed March 5, 2019. No. A-18-236.
1. Child Custody: Visitation: Child Support: Appeal and Error. Child
custody, visitation, and child support 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. Contempt: Appeal and Error. In a civil contempt proceeding where a
party seeks remedial relief for an alleged violation of a court order, an
appellate court employs a three-part standard of review in which the trial
court’s (1) resolution of issues of law is reviewed de novo, (2) factual
findings are reviewed for clear error, and (3) determinations of whether
a party is in contempt and of the sanction to be imposed are reviewed
for abuse of discretion.
4. 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.
5. ____. Both the desire to form a new family unit through remarriage
and the career advancement of the parent have been found to constitute
legitimate reasons for leaving the state.
6. Child Custody: Visitation. The court examines three broad consider-
ations in determining whether removal to another jurisdiction is in a
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Cite as 26 Neb. App. 966child’s best interests: (1) each parent’s motives for seeking or opposing
the move; (2) the potential that the move holds for enhancing the quality
of life for the child and the custodial parent; and (3) the impact such a
move will have on contact between the child and the noncustodial par-
ent, when viewed in the light of reasonable visitation arrangements.
7. 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 a removal in an effort to frustrate or manip-
ulate the other party.
8. ____. 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 move 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 inter-
woven with the well-being of the custodial parent.
9. ____. 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 factors.
10. Child Custody: Visitation. Consideration of the impact of removal of
children to another jurisdiction on the contact between the children and
the noncustodial parent, when viewed in light of reasonable visitation
arrangements, focuses on the ability of the court to fashion a reasonable
visitation schedule that will allow the noncustodial parent to maintain a
meaningful parent-child relationship.
11. ____: ____. Generally, a reasonable visitation schedule is one that pro-
vides a satisfactory basis for preserving and fostering a child’s relation-
ship with the noncustodial parent.
12. Modification of Decree: Child Custody: Notice. A trial court has no
authority to modify a prior custody order without notice to the parties
and an opportunity to be heard.
13. Modification of Decree: Child Support. Among the factors to be
considered when contemplating a modification of child support are the
changes in the financial position of the parent obligated to pay support,
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Cite as 26 Neb. App. 966the needs of the children for whom support is paid, the good or bad faith
motive of the obligated parent in sustaining a reduction in income, and
whether the change is temporary or permanent.
14. Jurisdiction: Appeal and Error. Notwithstanding whether the parties
raise the issue of jurisdiction, an appellate court has a duty to raise and
determine the issue of jurisdiction sua sponte.
15. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
16. Final Orders. Final orders must be signed by the judge as well as file
stamped and dated by the clerk.
17. Jurisdiction: Judgments: Appeal and Error. Neb. Rev. Stat.
§ 25-1912(2) (Reissue 2016) creates what the appellate courts have
called potential jurisdiction or springing jurisdiction, wherein an
announced decision creates a situation where the appellate court poten-
tially has jurisdiction that will spring into existence when the announced
decision is properly rendered and entered.
18. Pleadings: Judgments. If a postjudgment motion seeks a substantive
alteration of the judgment—as opposed to the correction of clerical
errors or relief wholly collateral to the judgment—a court may treat the
motion as one to alter or amend the judgment.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed in part, affirmed in part as modi-
fied, reversed in part, and in part dismissed.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.
No appearance for appellee.
Pirtle, Bishop, and A rterburn, Judges.
A rterburn, Judge.
I. INTRODUCTION
Preston Peery (Preston) appeals from an order of the district
court for Lancaster County which granted the request of Ashley
Welch (Ashley) to remove the parties’ minor child, Payton
P., from Nebraska to Florida. On appeal, Preston challenges
the district court’s decision to allow Ashley to move Payton
to Florida. In addition, he challenges the court’s decisions to
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Cite as 26 Neb. App. 966grant Ashley sole legal custody of Payton, to not modify the
prior child support order, and to not find Ashley in contempt
of a court order. For the reasons set forth herein, we affirm the
decision of the district court with regard to removal of Payton
to Florida and child support. However, we reverse the court’s
decision regarding legal custody of Payton and we modify the
amount of parenting time awarded to Preston in the parenting
plan. We do not have jurisdiction to consider Preston’s con-
tempt action against Ashley.
II. BACKGROUND
Preston and Ashley are the biological parents of Payton, a
daughter born out of wedlock in May 2008. In April 2014,
when Payton was almost 6 years old, a hearing was held where
the district court approved a stipulated paternity order and par-
enting plan. Pursuant to the parties’ joint stipulation and par-
enting plan, they shared joint legal custody of Payton. Ashley
was awarded sole physical custody of Payton, and Preston was
awarded liberal parenting time. Such parenting time included
every other weekend from 5 p.m. on Thursday to Monday
morning and every Tuesday from 5 p.m. to Wednesday morn-
ing. In addition, the parties divided up Payton’s summer vaca-
tion from school such that Payton resided with Preston every
other week for the first 10 weeks of the vacation. As a part
of the parenting plan, Preston agreed to pay child support to
Ashley in the amount of $150 per month.
On March 30, 2017, when Payton was almost 9 years old,
Ashley filed a complaint to modify the paternity order and
parenting plan. In her complaint, Ashley requested that she be
permitted to move to Florida with Payton. Ashley asserted that
she had a legitimate reason for wanting to move and that the
move would be in Payton’s best interests. On April 28, Preston
filed an answer to Ashley’s complaint to modify. He opposed
Ashley’s request to move to Florida with Payton.
Prior to the hearing on Ashley’s complaint to modify,
Preston filed a motion asking the court to find Ashley in
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Cite as 26 Neb. App. 966contempt. Preston alleged that Ashley had already moved to
Florida with Payton in violation of the original paternity order
and parenting plan. Preston indicated that he had evidence that
Ashley had registered Payton for school in Florida. The dis-
trict court entered an ex parte order requiring Ashley to return
with Payton to Nebraska. A hearing was scheduled to address
Preston’s motion for contempt for August 7, 2017.
At the hearing on the motion for contempt, Ashley testified
that she had returned to Nebraska from Florida the week before
so that Payton could start school on August 14, 2017. She
explained that she and Payton had not yet moved to Florida,
but that they had spent the summer there, visiting Ashley’s
father and spending time with Ashley’s fiance, Justin Abbott
(Justin), who had already moved to Florida to accept a job.
Ashley testified that she always intended for Payton to return
to Nebraska to start school in August. At the time of the con-
tempt hearing, Ashley and Payton were residing with Ashley’s
sister, because Ashley’s previous home in Nebraska was being
sold by Ashley’s parents, who owned the home.
Ashley explained that her decision to spend the summer in
Florida with Payton did not affect Preston’s parenting time
because Preston was otherwise unable to be present for visits
as he had been incarcerated since January 4, 2017. Ashley
testified that Preston was aware they were spending time
in Florida.
After the hearing, the district court found, “Based on the
evidence presented here today, I do not find by clear and con-
vincing evidence that [Ashley] is in willful contempt of the
Court . . . .” The court dismissed Preston’s contempt action.
A hearing was held on Ashley’s complaint to modify on
November 1, 2017. At the hearing, both Ashley and Preston
testified. In addition, Ashley’s father testified on her behalf and
Preston’s father testified on his behalf.
At the modification hearing, Ashley testified that she had
moved to Florida in order to accept an employment opportu-
nity which began on September 5, 2017. Payton was currently
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Cite as 26 Neb. App. 966residing in Nebraska with Ashley’s sister and attending a
“good” school nearby. Ashley indicated that Payton is excel-
ling at her current school. However, Ashley testified that the
school Payton would attend in Florida is also a good school
with experienced teachers, many extracurricular activities, and
relatively new facilities. Ashley testified she has returned to
Nebraska to see Payton one time per month since she moved
to Florida.
In Florida, Ashley is living at her father’s home with her
father, her stepmother, and Justin. Also living in the home are
the two children Ashley and Justin share. At the time of the
hearing, the oldest of these children was 4 years old and the
youngest of the children was less than 1 month old. Ashley
testified that she and Justin had been in a relationship “off and
on” for nearly 6 years. They planned to get married sometime
in 2018. Ashley admitted that she and Justin had been involved
in an incident of domestic violence in 2013. She explained that
both she and Justin had been drinking alcohol and had argued.
Justin became angry and hit her with an open hand across
her face. Ashley testified that Payton was not present at the
time. Since that incident, Justin has gone through counseling.
Ashley testified that “he doesn’t have a temper anymore.” She
described Justin as a good provider who enjoys spending time
with his family. In addition, Ashley testified that Payton and
Justin have a good relationship.
Ashley also testified that the house in Florida was appropri-
ate for Payton. The home was newly remodeled and was nicer
than the home where she and Payton had lived in Nebraska.
The home also included a great deal of outdoor space and had
a number of activities to engage in nearby. Ashley and Justin
had an arrangement with Ashley’s father that they would not
have to pay rent, but would assist financially with some of the
utility payments. Ashley testified that eventually, she and Justin
planned to acquire their own house in Florida.
Ashley testified that she has been employed as a licensed
practical nurse for the past 10 years. Prior to moving to
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Cite as 26 Neb. App. 966Florida, Ashley was employed at Madonna Rehabilitation
Hospital (Madonna) in Lincoln, Nebraska. As a part of her
job, Ashley typically worked night shifts and sometimes had
to work on weekends and on holidays. Her schedule changed
often, which made it difficult to parent her young children.
Ashley left her job at Madonna in May 2017, because she was
pregnant, Justin was making enough money to support the
family for a while, and she wanted to spend the summer in
Florida. She testified that she did look for other nursing jobs
in Nebraska, but did not find anything workable or better than
her job at Madonna.
Ashley accepted a new job in September 2017. She became
the care coordinator for a medical clinic in Florida. At the
new job, she works Monday through Friday and has “[f]lex-
ible hours.” She does not have to work nights, weekends, or
holidays. In addition, she earns a slightly higher salary (from
$18.90 per hour at Madonna to $22 per hour at the clinic in
Florida). Ashley testified that the total economic benefit for her
and Justin to move to Florida is $16,640 per year plus Justin’s
commissions. Ashley’s new job also offers better opportunities
for advancement than her job at Madonna.
Ashley acknowledged that the move to Florida would have
an effect on Preston’s relationship with Payton. Ashley indi-
cated that prior to Preston’s incarceration, the original par-
enting plan was working. Preston regularly attended parent-
ing time with Payton. In fact, Preston sometimes watched
Ashley’s middle child as well. Ashley testified that she has
always encouraged Payton to go to Preston’s parenting time.
Ashley testified that she knows that Preston loves Payton
and that Payton loves Preston. However, she did indicate
that, currently, Payton is upset with Preston as a result of his
incarceration.
Ashley did testify about her concerns regarding Preston’s
parenting. Ashley noted that Preston’s most recent incarcera-
tion was his third period of incarceration during Payton’s
lifetime. During the most recent incarceration, Payton has
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Cite as 26 Neb. App. 966not been able to see Preston for a significant period of time
because he was housed at a work ethic camp in McCook,
Nebraska. The last time Preston was able to speak with Payton
on the telephone was July 2017, approximately 4 months prior
to the modification hearing. In addition, Ashley testified that
Preston has a problem with both alcohol and illegal drugs. She
referred to Preston as a “severe alcoholic” who drinks every
day. She also testified that Preston regularly used cocaine when
they were in a relationship.
Ashley testified about incidents that have caused a strain in
her relationship with Preston. She described an incident prior
to Preston’s incarceration when he failed to return Payton after
his scheduled parenting time. Instead, he filed a protection
order against Ashley, claiming that she had threatened him
with a knife and that she had attacked him. Ashley testified
that these allegations were false. In another incident, Preston
“called CPS on Justin claiming that he punched [Payton] in
her face.” According to Ashley, this allegation was also false.
Finally, Ashley indicated that in March 2017, when she first
told Preston about her plan to move to Florida, he threatened
to take custody from her and to delay the court proceedings
until she “r[a]n out of money.” In addition, Ashley testified that
Preston offered her $10,000 if she would give him full custody
of Payton.
Ashley indicated that Preston has not consistently paid
child support to her. In 2015, Preston paid her approximately
$1,000, instead of the $1,800 that was court ordered. In 2016,
Ashley received only $800 in child support payments. In 2017,
Ashley did not receive any child support payments because of
Preston’s incarceration. Ashley testified that Preston’s failure
to consistently pay his child support obligation caused her
financial strain, which ultimately necessitated her seeking out
better employment.
Ashley proposed a parenting plan if she was permitted to
move to Florida with Payton. In the proposed plan, she would
receive sole legal and physical custody of Payton and Preston
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Cite as 26 Neb. App. 966would receive 6 weeks of parenting time each summer. In addi-
tion, he would receive 2 weeks of parenting time every other
Christmas. Ashley testified that Preston could also have parent-
ing time with Payton during the Thanksgiving holiday on years
he did not see her for Christmas. However, in the proposed
parenting plan she submitted to the district court, Ashley did
not mention the Thanksgiving holiday parenting time.
Ashley told the district court that she was willing to forgo
receiving any child support from Preston so that he would have
additional funds to pay for travel expenses. Ashley testified
that in addition to the scheduled parenting time, she was will-
ing to facilitate both telephone conversations and “Skype” con-
versations between Preston and Payton. Ashley also indicated
that because she has extended family in Nebraska, including
her mother, her sister, and her stepmother’s family, she would
probably return to Nebraska three times per year. During those
visits, she was willing to provide Preston parenting time with
Payton. Ashley also indicated that because Payton is particu-
larly close to Preston’s other two children, it would be pos-
sible for them to visit Payton in Florida. Ashley stated that if
her request to move to Florida with Payton is denied, she will
return to Nebraska.
Finally, Ashley testified that during a previous court case
involving Preston, she lied to the court. In 2009, Ashley filed
a request for a protection order against Preston. In her request,
she indicated that Preston had assaulted her. However, shortly
after filing her request, she filed a retraction. Ashley testified
at the modification hearing that the statements she made in her
retraction were not truthful. She explained, “[H]e apologized,
and, like an idiot, I always returned. I did that for six and a half
years with him . . . .” Ashley testified that the truth was that
during her relationship with Preston, he was manipulative, vio-
lent, and verbally demeaning. She admitted that she was very
immature during the relationship.
Preston also testified at the modification hearing. Preston tes-
tified that at the time of the hearing, he remained incarcerated.
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Cite as 26 Neb. App. 966He had been placed at a community corrections center in
Lincoln for the 2 months prior to the hearing. Before that,
he was placed at the work ethic camp in McCook. Preston
did not specifically indicate when he expected to be released
from prison.
Preston testified that his current incarceration was the result
of his convictions for perjury and possession of a controlled
substance. There was evidence that Preston’s possession con-
viction was the result of him “planting” cocaine in a car owned
by the mother of one of his other children with whom he was
involved in a custody dispute. Previously, he has been con-
victed of a probation violation, possession of a stolen firearm,
and, on three different occasions, driving under the influence.
His driving privileges have been revoked for 15 years.
Preston testified that he is “currently” employed at a busi-
ness as a sales manager, project manager, and finance manager.
He indicated that he has been employed in this capacity for
the last 2 years and earns only the minimum wage. It is not
clear whether Preston was testifying about his employment
prior to his incarceration, whether he was allowed out of the
community corrections center to work during the day, or if
Preston will have this job after his release. Preston did testify
that he has provided financial support to Payton since her birth.
He admitted that in the past, he has paid less than the court-
ordered amount of child support to Ashley, but he explained
that she has always agreed to the reductions.
Preston testified that prior to his incarceration, the original
parenting plan was “working perfectly fine.” He saw Payton
four or five times per week. Preston noted that at the time
Ashley agreed to the parenting plan, he already had a crimi-
nal history and she had previously accused him of domestic
violence. Yet, she still allowed him to spend time with Payton
12 nights per month. Preston testified that since his incarcera-
tion, he has not been able to exercise any of his parenting time
with Payton. He indicated that he has tried to set up visits, but
Ashley has not permitted him to see Payton.
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Cite as 26 Neb. App. 966Preston indicated that he is opposing the move to Florida
in order to preserve his relationship with Payton. Although he
believes the current arrangement is working “fine,” he believes
that if Ashley moves to Florida, Payton would be better off
in Nebraska in his custody. Preston testified that “[a]ll of
[Payton’s] family” lives in Nebraska. Preston admitted that he
offered to pay Ashley $10,000 if she would stay in Nebraska
with Payton. Preston testified that if Payton moves to Florida
with Ashley, he will not have a relationship with Payton. He
indicated his concern that Ashley will not follow the court’s
orders regarding whatever parenting time he is permitted.
Preston testified regarding his concerns with Ashley’s par-
enting. Preston spent a great deal of his testimony describing
his belief that Ashley was a liar. He indicated his belief that a
“[m]ajority” of her testimony at the modification hearing was
a lie. Specifically, he indicated that she lied about him being
abusive to her during their relationship. Preston testified that,
in fact, Ashley was the one who was abusive “[a]t times.” He
also indicated that Ashley lied when she testified that he was
an alcoholic and a drug user. He denied having a problem with
alcohol or with drugs. He admitted to using cocaine a total of
15 times during his lifetime, but testified that he never had an
addiction problem. Preston indicated that Ashley downplayed
the seriousness of the domestic violence incident involving
Justin. Preston testified that Ashley told him that Justin was
repeatedly physically abusive toward her. Finally, Preston testi-
fied that he “doubt[ed]” whether Ashley actually had a new job
in Florida because she failed to provide him any documentation
about this job during the discovery process.
Preston requested that if Ashley is permitted to move to
Florida with Payton, he be permitted to see Payton in Nebraska
every other weekend. Preston also requested that his child sup-
port be modified.
As we noted above, both Ashley’s father and Preston’s
father also testified at the modification hearing. Ashley’s father
generally corroborated Ashley’s testimony about her living
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Cite as 26 Neb. App. 966situation in Florida. He testified that he will permit Ashley,
Justin, and the children to reside in his home rent free. He also
testified that Ashley and Justin will only be responsible for
paying “the electricity bill and the cable.” Ashley’s father testi-
fied that he is employed as the vice president of a water treat-
ment company and that Justin is one of his employees. Justin
earns $18 per hour plus $400 to $600 per month in commis-
sions. In addition, there are opportunities for Justin to advance
in the company. Ashleys’ father generally testified that despite
the domestic violence incident in 2013, he has no concerns
regarding Justin’s living in his home or being in a relationship
with Ashley.
Preston’s father testified that Preston is “a really good dad”
who loves Payton. He described Preston as being patient, active,
and involved with his children. Preston’s father acknowledged
that Preston has made mistakes and that he does have a prob-
lem with alcohol. However, he also testified that he does
not have any concerns regarding Preston’s parenting abilities.
Preston’s father testified that Ashley is a devoted mother to
Payton, but he did not believe that moving to Florida was in
Payton’s best interests because Payton has “a lot of [extended]
family” in Nebraska.
Following the modification hearing, the district court entered
its order on February 28, 2018. In the order, the court granted
Ashley’s complaint to modify custody and to remove Payton
to Florida. The court also modified the prior paternity order
and parenting plan by awarding Ashley sole legal custody
of Payton. The court awarded Preston parenting time for 6
weeks during each summer and for Payton’s Christmas break
from school every other year. Preston is to be responsible for
Payton’s travel expenses to and from Nebraska. In addition, the
court ordered that Preston be permitted to have “reasonable”
telephone contact with Payton. The court declined to modify
Preston’s child support obligation as “the issue of child support
was not raised in [Ashley’s] Complaint for Modification.”
Preston appeals from the district court’s order.
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Cite as 26 Neb. App. 966III. ASSIGNMENTS OF ERROR
Preston assigns that the district court erred in (1) finding
that permitting Ashley to move to Florida with Payton was in
Payton’s best interests, (2) awarding Ashley sole legal custody
of Payton, (3) failing to modify the prior child support order,
and (4) failing to find Ashley in contempt for not complying
with the previous parenting plan.
IV. STANDARD OF REVIEW
[1,2] Child custody and visitation determinations are mat-
ters 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. Dragon v. Dragon, 21 Neb. App. 228, 838 N.W.2d
56 (2013). The same standard applies to the modification of
child support. Armknecht v. Armknecht, 300 Neb. 870, 916
N.W.2d 581 (2018). 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 sub-
mitted for disposition through a judicial system. Dragon v.
Dragon, supra.
[3] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which the trial
court’s (1) resolution of issues of law is reviewed de novo, (2)
factual findings are reviewed for clear error, and (3) determi-
nations of whether a party is in contempt and of the sanction
to be imposed are reviewed for abuse of discretion. Patera v.
Patera, 24 Neb. App. 425, 889 N.W.2d 624 (2017).
V. ANALYSIS
1. R emoval to Florida
Preston challenges the district court’s decision to allow
Ashley to move with Payton to Florida. Specifically, he asserts
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Cite as 26 Neb. App. 966that such a move is not in Payton’s best interests. Upon our
review of the evidence, we cannot say that the district court
abused its discretion in permitting Ashley to move to Florida
with Payton. As a result, we affirm this portion of the district
court’s decision.
[4] 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 con-
tinue living with him or her. Dragon v. Dragon, supra.
(a) Legitimate Reason
for Leaving State
[5] In his brief on appeal, Preston states that although he
“disputes Ashley’s reason for moving, he concedes that the
record does not support an abuse of discretion as to the thresh-
old inquiry of a legitimate reason to move.” Brief for appel-
lant at 16. We agree with Preston’s concession. The evidence
presented at the modification hearing revealed that Ashley
offered two reasons for wanting to move to Florida. First, she
wants to live with her fiance, Justin. Ashley and Justin have
been in a relationship for a significant period of time and share
two young children together. They plan to marry sometime
in 2018. Justin has found a good job in Florida. Ashley also
desires to improve her own employment situation by moving
to Florida. There, Ashley found a job which provides her with
a slightly higher income, much more room for advancement,
and more time to spend with her children. Both the desire
to form a new family unit through remarriage and the career
advancement of the parent have been found to constitute legiti-
mate reasons for leaving the state. See Daniels v. Maldonado-
Morin, 288 Neb. 240, 244, 847 N.W.2d 79, 82 (2014) (stat-
ing that absent evidence of ulterior motive, courts have held
that “career advancement of the parent, career advancement
of the new spouse, and the desire to form a new family unit
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Cite as 26 Neb. App. 966through remarriage are legitimate reasons to remove a child to
another jurisdiction”).
Given that Preston does not assign error to the district
court’s decision that Ashley had a legitimate reason for leaving
the state and given the evidence presented at the modification
hearing, we find no abuse of discretion in the district court’s
decision that Ashley “met the threshold requirement of proving
a legitimate reason for moving.”
(b) Best Interests
[6] After demonstrating a legitimate reason for leaving the
state exists, the custodial parent must next show that it is in
the child’s best interests to continue living with him or her. See
Daniels v. Maldonado-Morin, supra. The paramount consider-
ation is whether the proposed move is in the best interests of
the child. Id. We examine three broad considerations in deter-
mining whether removal to another jurisdiction is in a child’s
best interests: (1) each parent’s motives for seeking or oppos-
ing the move; (2) the potential that the move holds for enhanc-
ing 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 visitation arrangements. See Brown v. Brown, 260
Neb. 954, 621 N.W.2d 70 (2000).
(i) Each Parent’s Motives
[7] 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). In
this case, we agree with the district court that “neither party
acted in bad faith or with ill motives in seeking or oppos-
ing removal.”
The evidence reveals that Ashley’s primary motives in seek-
ing removal are her desire to live with Justin, with whom
she shares two young children, and her desire to maintain
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Cite as 26 Neb. App. 966employment as a licensed practical nurse with a higher rate of
pay and a better work schedule. Ashley provided evidence to
demonstrate that because of her new employment and Justin’s
new employment in Florida, her family will be in a better
financial position than they were in Nebraska. In addition, she
will be able to spend more time with her children due to her
new schedule.
Preston testified that he opposes the removal because he
wishes to preserve his current relationship with Payton. Prior to
Preston’s incarceration, he was involved in Payton’s activities
and saw her four or five times per week. This level of involve-
ment would be impossible if removal was granted.
We find that both parents have valid reasons for and against
removal of their child to Florida. Their motives being equal,
this factor does not weigh for or against removal.
(ii) Quality of Life
[8,9] 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 evalu-
ate the following considerations: (1) the emotional, physi-
cal, 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 condi-
tions 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 likeli-
hood that allowing or denying the move would antagonize
hostilities between the two parties; and (9) the living condi-
tions and employment opportunities for the custodial parent
because the best interests of the child are interwoven with the
well-being of the custodial parent. Boyer v. Boyer, 24 Neb.
App. 434, 889 N.W.2d 832 (2017). This list of factors to be
considered in determining the potential that the removal to
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Cite as 26 Neb. App. 966another 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 factors. McLaughlin
v. McLaughlin, supra. Depending on the circumstances of a
particular case, any one factor or combination of factors may
be variously weighted. Id.a. Factors Favoring Removal
Evidence presented at the modification hearing revealed
that, for a majority of Payton’s life, both Ashley and Preston
have been involved in meeting her needs. However, the evi-
dence also reveals that Ashley has really been Payton’s primary
caregiver and the parent responsible for her emotional, physi-
cal, developmental, and financial needs. Preston did spend time
with Payton on a regular basis until his incarceration began in
January 2017. Nevertheless, by the time of the hearing, he had
not seen Payton in approximately 11 months because of his
incarceration. According to Ashley’s testimony, this is not the
first time that Preston has been incarcerated and unable to see
Payton during her lifetime. Ashley indicated that, currently,
Payton is upset with Preston because of his extended absence.
Ultimately, we agree with the district court that Ashley “has a
more stable and constant presence in Payton’s life and has been
the one historically responsible for her emotional, physical, and
developmental needs.”
The third, fourth, and ninth factors are best examined
together. Ashley testified at the modification hearing that the
move to Florida will enhance her income and improve her
work schedule. Prior to accepting her new position in Florida,
Ashley worked at Madonna in Lincoln. She testified that at
Madonna, she was required to work nights, some weekends,
and some holidays in order to maintain her annual salary of
$45,000. Ashley testified that at her new job in Florida, she
would earn approximately $3 more per hour than at her old job,
without having to work any nights, weekends, or holidays. In
addition, there are opportunities for her to advance.
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Cite as 26 Neb. App. 966Ashley also presented evidence that Justin’s income would
be enhanced by moving to Florida. In Florida, Justin has
secured a good job, where he earns approximately $5 more per
hour than he was earning at his previous job in Nebraska. In
addition, he earns between $400 and $600 in commissions each
month and there are opportunities for him to advance and earn
even more income.
There was evidence to demonstrate that Ashley, Justin, and
their family will reside with Ashley’s father in Florida. Ashley
testified that her father’s house in Florida has been recently
remodeled and is in “good condition.” She indicated that the
house is newer than where she and Payton resided in Nebraska
and has a great deal of outdoor space for the children to play.
In addition, Ashley testified that the house is near a number of
outdoor recreational opportunities. Ashley and Justin will not
have to pay rent to Ashley’s father while they reside with him
in Florida. As such, Ashley and Justin will be able to spend or
save more of their enhanced income than would occur if they
remained in Nebraska. We do note that there was no evidence
presented about Preston’s home before he became incarcerated,
nor was there any evidence about his plans for obtaining hous-
ing after his release.
b. Neutral Factors
Payton did not testify as to her living preference during the
modification hearing. However, in a discovery document which
was offered into evidence at the hearing by Preston, Ashley
indicated that Payton has expressed a strong desire to move to
Florida. We do not give this evidence much weight, since the
information was not received directly from Payton.
Although Ashley did testify about the high quality of the
school that Payton would attend in Florida, she also indicated
that Payton’s school in Nebraska was good and that Payton
was excelling there. Accordingly, there was no significant
testimony demonstrating one location to have an educational
advantage over the other.
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Cite as 26 Neb. App. 966Finally, the evidence shows that there is hostility between
the parties, primarily as a result of Ashley’s desire to move to
Florida. Any decision in this case has the potential to antago-
nize the hostilities between the parties. Ashley could be hostile
toward Preston if she is not allowed to move to Florida to
be with Justin, who is the father of her two other children.
Similarly, Preston may be hostile if Ashley is allowed to move
to Florida with Payton. Therefore, this factor does not weigh in
favor of or against removal.
c. Factors Against Removal
Both Ashley and Preston testified that a majority of Payton’s
family resides in Nebraska, including Preston’s entire family,
Ashley’s mother, Ashley’s sister, and Ashley’s stepmother’s
family. The evidence demonstrates that Payton is very close
to her extended family and that they are a large part of her
life. In addition, Preston’s two other children, who Payton
is very close to, also reside in Nebraska. If Payton were to
move to Florida, she would be living with Ashley’s father and
stepmother, who she is also very close to. In addition, she
would reside with two of her half siblings. Ashley testified
that she would bring Payton back to Nebraska a few times per
year to visit her family, but even with frequent visits, Payton
will not enjoy the same relationship with her Nebraska fam-
ily members.
Similarly, it is likely that the quality of relationship enjoyed
by Preston and Payton will suffer given the loss of fre-
quent contact that would be occasioned by a move to Florida.
Notably, however, this factor is tempered by the fact that
Preston, through his own misconduct, has already hindered his
relationship with Payton.
d. Quality of Life Conclusion
The district court concluded that as a whole the quality of
life factors weighed in favor of removal. Given the evidence
presented at the modification hearing, we cannot say that the
district court abused its discretion in reaching its conclusion.
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Cite as 26 Neb. App. 966(iii) Impact on Noncustodial Parent’s
Contact With Child
[10,11] The third factor in the best interests determination is
the impact of the move on the contact between a child and the
noncustodial parent, when viewed in light of reasonable visita-
tion arrangements. Maranville v. Dworak, 17 Neb. App. 245,
758 N.W.2d 70 (2008). This consideration focuses on the abil-
ity of the court to fashion a reasonable visitation schedule that
will allow the noncustodial parent to maintain a meaningful
parent-child relationship. Id. Generally, a reasonable visitation
schedule is one that provides a satisfactory basis for preserv-
ing and fostering a child’s relationship with the noncustodial
parent. Id. Of course, the frequency and the total number
of days of visitation and the distance traveled and expense
incurred go into the calculus of determining reasonableness.
Id. Indications of the custodial parent’s willingness to comply
with a modified visitation schedule also have a place in this
analysis. Id.There will be an impact from the move on the contact
between Preston and Payton. Preston testified that prior to
his incarceration in January 2017, he saw Payton four or five
times per week. There was also evidence that Preston has been
involved in Payton’s extracurricular activities. Obviously, if
Payton moves to Florida, Preston will no longer enjoy the fre-
quent in-person contact that he enjoyed prior to January 2017.
The district court awarded Preston 6 consecutive weeks of
parenting time during Payton’s summer vacation from school.
In addition, Preston was awarded Payton’s entire Christmas
break every other year. The district court also ordered that
Preston was permitted to have reasonable telephone contact
with Payton, “taking into account school hours, work hours,
time zone changes, expenses, and other relevant factors.”
Ashley also testified at the hearing that she would facilitate
“Skype” conversations between Preston and Payton.
Given the record presented in this case, we must conclude
that the district court abused its discretion in fashioning a
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Cite as 26 Neb. App. 966reasonable visitation schedule for Preston and Payton. Prior
to his incarceration, Preston saw Payton multiple times every
week and was, essentially, a part of her daily life. In the dis-
trict court’s order granting Ashley’s request to remove Payton
to Florida, the court awarded Preston only three blocks of
parenting time over a 2-year period. Such a limited amount of
time together will not foster Preston’s relationship with Payton,
especially considering that in the years Preston does not see
Payton over her Christmas break, he will go nearly a full year
without any in-person contact with her. We note that the par-
enting time awarded is less than the amount of time Ashley
offered in her testimony.
However, we do believe that a parenting plan can be created
which would foster Preston and Payton’s relationship even
while Payton resides in Florida. Accordingly, we modify the
district court’s parenting plan such that, in addition to the 6
weeks of summer visitation and the alternating year Christmas
vacation from school, Preston will also have parenting time
during the Thanksgiving holiday on the years he does not
see Payton for Christmas. We note that in her trial testimony,
Ashley indicated her acquiescence to such an arrangement.
Additionally, if Preston chooses to travel to Florida during
Payton’s school year, he should be permitted to have parenting
time with Payton from Friday after school to Sunday at 5 p.m.
during any weekend he is present. Preston must provide Ashley
with notice of the weekend he intends to travel to Florida at
least 30 days in advance of his weekend parenting time. He
shall also be limited to no more than two weekends in any
4-week period.
Finally, Ashley testified that she intends to return to Nebraska
at times in order to visit family. She indicated that when she
is in Nebraska, she would allow Preston to visit with Payton.
However, Ashley’s offer was not memorialized in the parent-
ing plan. We find that the parenting plan should be modified
to include a provision which permits Preston to have parenting
time with Payton when she is in Nebraska with Ashley for not
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Cite as 26 Neb. App. 966less than 4 hours for every 2 days Ashley and Payton are visit-
ing Nebraska.
Although we conclude that Preston’s relationship with
Payton will not be of the same quality that could occur if
removal were denied, we also conclude that the parenting plan,
as modified above, provides a reasonable visitation schedule
that will continue to foster a meaningful relationship between
Preston and Payton.
(iv) Best Interests Conclusion
The district court did not abuse its discretion in finding that
Ashley had a legitimate basis for seeking removal of Payton
from Nebraska to Florida due to her employment opportunity
and due to her imminent marriage to Justin, who is currently
employed in Florida. Further, in reviewing the best interests
considerations set forth in Farnsworth v. Farnsworth, 257
Neb. 242, 597 N.W.2d 592 (1999), as applied to the evidence
in this case, we cannot say that the district court abused its
discretion by granting Ashley’s request to remove Payton from
Nebraska to Florida.
2. Legal Custody
The original paternity order and parenting plan provided
that Preston and Ashley were to share joint legal custody of
Payton. The district court modified the parties’ joint legal
custody arrangement in the modified parenting plan such that
Ashley was awarded sole legal custody of Payton. On appeal,
Preston argues that the district court erred in modifying legal
custody of Payton when Ashley did not request such relief in
her complaint for modification. We find Preston’s assertion to
have merit.
[12] The Nebraska Supreme Court has previously stated
that a trial court has no authority to modify a prior custody
order without notice to the parties and an opportunity to be
heard. See Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d
578 (2003). In this case, Ashley did not specifically request
in her complaint for modification that the prior custody order
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Cite as 26 Neb. App. 966be modified to provide her with sole legal custody, nor did
either of the parties specifically testify about the legal custody
arrangement. Given that Ashley did not raise the issue of legal
custody in her pleading and given that neither party addressed
legal custody during their testimonies, we find that the district
court did not have the authority to modify legal custody of
Payton. There is no indication that either party understood the
modification of legal custody to be at issue during the proceed-
ings. Accordingly, there is no indication that either Ashley
or Preston had notice that the modification of legal custody
should be addressed at trial. We reverse the district court’s
order to the extent it modified legal custody. The parties will
continue to share joint legal custody, as was awarded in the
original parenting plan.
3. Child Support
In the district court’s order, it declined to modify Preston’s
child support obligation because “the issue of child support
was not raised in the Amended Complaint for Modification of
Order.” On appeal, Preston asserts that the district court erred
in failing to modify his child support. He argues that the issue
of child support was sufficiently raised by Ashley’s complaint
for modification when she asked for “such other relief as may
be just and equitable in the premises.” He also argues that
because Ashley agreed during her testimony at the modifica-
tion hearing to waive child support in order to provide Preston
with more money to pay for travel expenses, such waiver
should have been granted.
Assuming without deciding that the issue of child support
was properly raised before the district court, we do not find
an abuse of discretion in the district court’s ultimate decision
to not modify the original child support order. In the origi-
nal paternity order and parenting plan, Preston was obligated
to pay $150 per month in child support for the benefit of
Payton. Preston admitted that he has not been paying all of
his child support obligation. In fact, the evidence presented
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Cite as 26 Neb. App. 966at the modification hearing revealed that Preston has not paid
any child support to Ashley since his incarceration began in
January 2017.
[13] Ashley did testify at the modification hearing that she
was willing to waive child support so that Preston would have
more funds available to pay for travel expenses. However,
there was no other credible evidence presented to demonstrate
whether such a waiver was necessary given Preston’s financial
circumstances or whether such waiver would be in Payton’s
best interests. Among the factors to be considered when con-
templating a modification of child support are the changes in
the financial position of the parent obligated to pay support,
the needs of the children for whom support is paid, the good
or bad faith motive of the obligated parent in sustaining a
reduction in income, and whether the change is temporary or
permanent. See Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d
107 (1994).
Preston did not provide any specific testimony about his cur-
rent financial situation. He has been incarcerated since January
2017, and he did not provide any information about when he is
expected to be released or what his plans were after his release.
He provided some vague testimony about a job he claimed to
have had for the past 2 years, but it is not clear whether this job
existed only prior to his incarceration, whether he was work-
ing via work release at the time of the trial, or whether this job
will be available to him after his release. Preston also did not
provide any information about his financial support of his other
two children.
Given the lack of credible evidence about Preston’s current
financial circumstances and given that the original child sup-
port he is obligated to pay is only $150 per month, we do not
find that the district court abused its discretion in failing to
modify child support. Although Ashley’s agreement to waive
child support is laudable, there is simply no evidence that such
a waiver is in Payton’s best interests. The paramount concern
and question in determining child support is the best interests
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Cite as 26 Neb. App. 966of the child. Sabatka v. Sabatka, supra. Moreover, there is sim-
ply no evidence that Preston will be unable to afford any travel
expenses associated with his parenting time in addition to his
$150 per month in child support.
4. Contempt Action
Preston asserts that the district court erred in failing to find
Ashley in contempt for violating the original paternity order
and parenting plan. Specifically, Preston asserts that evidence
presented at the contempt hearing revealed that Ashley violated
the original paternity order and parenting plan when she (1)
changed addresses without informing Preston, (2) attempted to
enroll Payton in school in Florida, and (3) intended to move
Payton to Florida prior to the district court’s granting her per-
mission to do so. Upon our review, we conclude that we do
not have jurisdiction over the district court’s decision to deny
Preston’s motion to hold Ashley in contempt. Accordingly, we
do not address the merits of Preston’s assertions.
[14,15] Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdic-
tional issues presented by a case. Connelly v. City of Omaha,
278 Neb. 311, 769 N.W.2d 394 (2009). Notwithstanding
whether the parties raise the issue of jurisdiction, an appellate
court has a duty to raise and determine the issue of jurisdic-
tion sua sponte. Id. For an appellate court to acquire jurisdic-
tion of an appeal, there must be a final order entered by the
court from which the appeal is taken. Id. Here, there is no
written order contained within our record which purports to
deny Preston’s contempt motion. The only disposition of this
motion contained in our record is the district court’s oral pro-
nouncement in court immediately after the contempt hearing
on August 7, 2017.
[16] Neb. Rev. Stat. § 25-1301 (Reissue 2016) sets forth
two ministerial requirements for a final judgment. The first is
rendition of the judgment, defined as “the act of the court, or a
judge thereof, in making and signing a written notation of the
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Cite as 26 Neb. App. 966relief granted or denied in an action.” § 25-1301(2). The sec-
ond ministerial step for a final judgment is that entry of a final
order occurs when the clerk of the court places the file stamp
and date upon the judgment. § 25-1301(3). In sum, final orders
must be signed by the judge as well as file stamped and dated
by the clerk. In re Trust Created by Crawford, 20 Neb. App.
502, 826 N.W.2d 284 (2013).
[17] However, Neb. Rev. Stat. § 25-1912(2) (Reissue 2016)
provides:
A notice of appeal or docket fee filed or deposited after
the announcement of a decision or final order but before
the entry of the judgment, decree, or final order shall be
treated as filed or deposited after the entry of the judg-
ment, decree, or final order and on the date of entry.
In State v. Brown, 12 Neb. App. 940, 687 N.W.2d 203 (2004),
this court noted that announcement of a decision can come,
among other ways, from the bench orally, from trial docket
notes, from file-stamped but unsigned journal entries, or from
signed journal entries which are not file stamped. Section
25-1912(2) creates what we have called potential jurisdic-
tion or springing jurisdiction, wherein an announced decision
creates a situation where the appellate court potentially has
jurisdiction that will spring into existence when the announced
decision is properly rendered and entered. See State v. Brown,
supra. In the present case, the district court announced its deci-
sion from the bench on August 7, 2017, which announcement
created potential jurisdiction, but there is no appealable order
until such time as the court renders a final decision that is
signed, dated, and file stamped.
We must also note the day after the district court orally
indicated that it did not find Ashley to be in contempt and
that Preston’s motion was dismissed, Preston filed a motion
to reconsider. There is nothing in our record which indicates
the motion to reconsider was ever ruled on by the district
court. As such, even if Preston provides this court with a
properly entered decision on his motion for contempt, a
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Cite as 26 Neb. App. 966further jurisdictional issue remains with regard to his motion
to reconsider.
[18] We review a postjudgment motion based on the relief it
seeks, rather than its title. Clarke v. First Nat. Bank of Omaha,
296 Neb. 632, 895 N.W.2d 284 (2017). If the postjudgment
motion seeks a substantive alteration of the judgment—as
opposed to the correction of clerical errors or relief wholly col-
lateral to the judgment—a court may treat the motion as one
to alter or amend the judgment. Id. Neb. Rev. Stat. § 25-1329(Reissue 2016) provides:
A motion to alter or amend a judgment shall be filed
no later than ten days after the entry of the judgment.
A motion to alter or amend a judgment filed after the
announcement of a verdict or decision but before the
entry of judgment shall be treated as filed after the entry
of judgment and on the day thereof.
Section 25-1912(3) provides that the running for the time for
appeal shall be terminated by the filing of a timely motion to
alter or amend judgment. Section 25-1912(3) further specifies:
When any motion terminating the time for filing a notice
of appeal is timely filed by any party, a notice of appeal
filed before the court announces its decision upon the ter-
minating motion shall have no effect, whether filed before
or after the timely filing of the terminating motion. A new
notice of appeal shall be filed within the prescribed time
after the entry of the order ruling on the motion. No addi-
tional fees are required for such filing.
From the record now before us, it appears that Preston’s
motion to reconsider was timely filed and that there has been
no announcement or rendition of a decision on the motion to
reconsider. Thus, with regard to the district court’s decision to
deny his motion for contempt, Preston’s notice of appeal is of
no effect. A new notice of appeal must be filed within 30 days
of entry of an order ruling on his motion to reconsider.
In summary, this court does not have jurisdiction to review
Preston’s assigned error involving the denial of his contempt
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Cite as 26 Neb. App. 966motion until he (1) obtains properly rendered and file-stamped
orders denying his motions for contempt and to reconsider and
(2) files a new notice of appeal within 30 days of such ruling
on his motion to reconsider.
VI. CONCLUSION
For the reasons set forth above, we affirm the district court’s
order to the extent it permitted Ashley to move to Florida with
Payton and declined to modify Preston’s child support obli-
gation. We reverse the court’s order to the extent it awarded
Ashley sole legal custody of Payton. We modify the court’s
order with regard to the amount of parenting time awarded
to Preston. Finally, we conclude that we do not have jurisdic-
tion over Preston’s contempt action, as a final order has not
been entered.
A ffirmed in part, affirmed in part as modified,
reversed in part, and in part dismissed.