Olson v. Olson , 27 Neb. Ct. App. 869 ( 2019 )

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Nebraska Court of Appeals Advance Sheets
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OLSON v. OLSON
Cite as 27 Neb. Ct. App. 869
Andrew J. Olson, appellee,
v. Kirsti M. Olson,
appellant.
___ N.W.2d ___
Filed December 10, 2019. No. A-18-1210.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of
marriage, an appellate court reviews de novo on the record the trial
court’s determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be affirmed
absent an abuse of that 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: Appeal and Error. In child custody cases, where the
credible evidence is in conflict on a material issue of fact, the appellate
court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
4. ____: ____. Child custody determinations are matters initially entrusted
to the discretion of the trial court, and although reviewed de novo on the
record, the trial court’s determination will normally be affirmed absent
an abuse of discretion.
5. Divorce: Child Custody. When custody of a minor child is an issue in a
proceeding to dissolve the marriage of the child’s parents, child custody
is determined by parental fitness and the child’s best interests.
6. Child Custody. When both parents are found to be fit, the inquiry for
the court is the best interests of the children.
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Cite as 27 Neb. Ct. App. 869
7. ____. The paramount consideration in determining child custody is the
best interests of the children.
8. ____. Neb. Rev. Stat. § 43-2923 (Reissue 2016) of Nebraska’s Parenting
Act sets forth a nonexhaustive list of factors to be considered in deter-
mining the best interests of a child in regard to custody.
9. ____. The best interests factors of Neb. Rev. Stat. § 43-2923 (Reissue
2016) include the relationship of the minor child to each parent; the
desires and wishes of the minor child; the general health, welfare, and
social behavior of the minor child; credible evidence of abuse inflicted
on any family or household member; and credible evidence of child
abuse or neglect or domestic intimate partner abuse.
10. ____. While the wishes of a child are not controlling in the determina-
tion of custody, if a child is of sufficient age and has expressed an intel-
ligent preference, the child’s preference is entitled to consideration.
11. ____. In child custody cases where the minor child’s preference was
given significant consideration, the child was usually over 10 years
of age.
12. ____. In addition to the “best interests” factors listed in Neb. Rev. Stat.
§ 43-2923 (Reissue 2016), a court making a child custody determination
may consider matters such as the moral fitness of the child’s parents,
including the parents’ sexual conduct; respective environments offered
by each parent; the emotional relationship between child and parents;
the age, sex, and health of the child and parents; the effect on the
child as the result of continuing or disrupting an existing relationship;
the attitude and stability of each parent’s character; and the parental
capacity to provide physical care and satisfy the educational needs of
the child.
13. ____. In child custody cases, the preference of a mature, responsible,
intelligent minor child regarding his or her custody should be given
consideration, but should not be controlling.
14. Evidence: Appeal and Error. When evidence is in conflict, the appel-
late court considers and may give weight to the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
15. Child Custody: Proof. Generally, before a court will permit the
removal of a minor child from the jurisdiction, the custodial parent must
satisfy the court that there is a legitimate reason for leaving the state
and that it is in the minor child’s best interests to continue to live with
that parent.
16. Child Custody: Visitation. In determining whether removal to another
jurisdiction is in the children’s best interests, the trial court evaluates
three considerations: (1) each parent’s motives for seeking or opposing
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OLSON v. OLSON
Cite as 27 Neb. Ct. App. 869
the move, (2) the potential that the move holds for enhancing the quality
of life for the children and the custodial parent, and (3) the impact such
a move will have on contact between the children and the noncusto-
dial parent.
17. Child Custody. Removal jurisprudence has been applied most fre-
quently when a custodial parent requests permission to remove a child
from the state and custody has already been established.
18. ____. In determining the potential that removal to another jurisdiction
holds for enhancing the quality of life of the children and the custodial
parent, a court should evaluate the following factors: (1) the emotional,
physical, and developmental needs of the child; (2) the child’s opinion
or preference as to where to live; (3) the extent to which the custodial
parent’s income or employment will be enhanced; (4) the degree to
which housing or living conditions would be improved; (5) the existence
of educational advantages; (6) the quality of the relationship between the
child and each parent; (7) the strength of the child’s ties to the present
community and extended family there; (8) the likelihood that allowing
or denying the move would antagonize hostilities between the two par-
ents; 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.
Appeal from the District Court for Polk County: Rachel
A. Daugherty, Judge. Affirmed in part, and in part reversed
and vacated.
Eddy M. Rodell for appellant.
Steffanie J. Garner Kotik for appellee.
Moore, Chief Judge, and Pirtle and Welch, Judges.
Pirtle, Judge.
I. INTRODUCTION
Kirsti M. Olson appeals from the order of the district court
for Polk County entered on November 26, 2018. The order dis-
solved her marriage to Andrew J. Olson and awarded the par-
ties joint legal custody of their minor child, Lukas Olson. The
court awarded Andrew physical custody of Lukas and granted
him permission to remove Lukas from Nebraska to Minnesota.
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OLSON v. OLSON
Cite as 27 Neb. Ct. App. 869
For the reasons that follow, we affirm in part, and in part
reverse and vacate.
II. BACKGROUND
Kirsti and Andrew married in April 2003 in Minneapolis,
Minnesota, and later separated in 2007 or 2008 (we note there
was inconsistent testimony as to the precise year). The parties
had one child by marriage, Lukas, who was born in 2004. Soon
after the parties separated, Kirsti moved back to Nebraska
with Lukas, who was then almost 4 years old. Throughout the
separation, Lukas resided with Kirsti in Nebraska, with her and
Andrew attempting to work out summer and holiday visits for
Lukas in Minnesota with Andrew.
Andrew filed a complaint for dissolution of the parties’
marriage in the district court for Polk County in August 2017.
The complaint requested dissolution of marriage, division of
property, and custody of Lukas. At the time of the complaint,
Andrew had continued to reside in Minnesota and no prior
custody determination had been made. While the complaint
did not specifically state such, Andrew also sought to remove
Lukas from the State of Nebraska. In September 2017, Kirsti
filed an answer and counterclaim seeking both temporary
and permanent custody of Lukas, child support, and alimony.
The matter was tried before the district court on November
20, 2018.
At trial, because Kirsti was self-represented, the minor
child, Lukas, then 14 years old, testified in chambers with
only the judge and the court-appointed guardian ad litem pres-
ent. Lukas testified that he had been attending middle school
in Lincoln, Nebraska, since the second half of the previous
school year and was previously involved in cross country,
track, and soccer until he stopped due to foot injuries. Lukas
further testified that he usually earned grades of A’s and B’s
in school. Prior to attending middle school in Lincoln, Lukas
attended elementary school in Osceola, Nebraska; was tempo-
rarily homeschooled by Kirsti until near the end of his fifth
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grade year; and then remained in public school while living
in Osceola.
Lukas previously lived with his mother and grandparents
but later moved with Kirsti to his uncle’s home in Columbus,
Nebraska, when he was 13 years old, where he briefly attended
seventh grade. He testified that his mother had been unem-
ployed and staying home because she was “sick most of the
time” before she saved up enough money for an apartment and
found a job. At that point, Kirsti and Lukas moved to Lincoln
where they remained up until trial.
Lukas testified that he lived with his younger half brother
(who is not Andrew’s biological son) and that the two would
“fight a lot,” but he would often let him into his room “so that
he [could] watch videos on YouTube using [Lukas’] hot spot.”
Lukas noted that while living with his mother, he did not have
internet, which made it difficult for him to do his homework.
Lukas said that he would often call his father, Andrew, in order
to get help with his homework and that Andrew provided him
with a cell phone and “hot spot.” Lukas had his own room at
his mother’s home, and he said that he would likewise have his
own bedroom at his father’s house and that there would “prob-
ably be more space there.”
Lukas testified that when he stayed at his father’s house,
it was the two of them and his father’s fiance, Carla Perdew
(Carlie); occasionally, one of Carlie’s children from a previ-
ous marriage would also be there. At his father’s house, Lukas
played games, ate out often, and visited his grandparents and
cousins whom he did not see often. Lukas testified that he had
several family members in Nebraska, including two uncles,
cousins, and his maternal grandparents, whom he “[got] along
with . . . great.”
Lukas further testified that both his parents had spoken
negatively about each other, but he more frequently heard
negative comments from his mother. He noted that this made
him “feel really bad for [his] dad and just [made him] feel
really uncomfortable.” He also testified that he frequently
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Cite as 27 Neb. Ct. App. 869
called his father on his cell phone and that sometimes when
he got mad at his mother, she would take his cell phone away
to prevent him from talking poorly about her to his father. On
one occasion, Lukas overheard a discussion about a previous
conversation where his mother threatened his father that she
would not bring Lukas to visit without receiving money from
him for travel expenses for her, Lukas, and Lukas’ younger
half brother.
When specifically asked if he had an opinion on where
he wished to live, Lukas testified that he would like to live
with his father during the school year and visit his mother on
holidays and during the summer. He noted that he thought his
father could “support [him] just a little bit better than Mom
can,” had a more stable income, and did not yell at him. Lukas
then stated that he thought living with his mother was “haz-
ardous” because she was a “hoarder” and the home was dirty
with clutter and animal waste. He testified that the cats had
urinated on his mattress, on his clothes, and in his closet, and
that he often could still smell it. On one occasion, Lukas went
to school and when another student mentioned a smell, Lukas
smelled his coat and discovered there was cat urine on it.
Lukas testified that the environment at his father’s house was
“[v]ery clean” and that he was not nervous about switching
schools because he had “already done it like two times.”
Andrew testified that he had resided in Minnesota since
he was 17 and that he remained there throughout his entire
marriage to Kirsti. Andrew testified that during his marriage
to Kirsti, she gave birth to two children, but that only Lukas
was his biological son. Around 2008, Kirsti and Andrew sepa-
rated but remained legally married. Andrew testified that he
was employed by the Federal Reserve Bank of Minneapolis
where he had worked in technical support for the last 7 years.
He worked overnights Thursday through Sunday, and most
of his work was done from home with one required office
visit approximately every 3 weeks. Andrew testified that
despite his work schedule, he would nevertheless be available
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to Lukas in the evenings if granted custody. Andrew’s pay
was between $23 and $24 per hour, and he worked 40 hours
per week.
Andrew testified that he provided health insurance for
Lukas, that he voluntarily provided financial support to Kirsti
for Lukas, that he and his parents had paid for most of Lukas’
involvement in extracurricular activities, and that he and his
parents exclusively paid for travel expenses for Andrew to
see Lukas.
As to his relationship with Lukas, Andrew testified that he
spoke with Lukas frequently on the cell phone and that they
“certainly communicate every week.” When Lukas would visit,
the two would “take [the] dog out,” visit family, go to mov-
ies, and play games. Andrew noted that if Lukas were to come
reside with him, there would be opportunities to participate
in activities such as taekwondo and soccer, and that he would
provide the finances and share information regarding any com-
petitions or events with Kirsti.
Andrew testified that he had several family members living
nearby, including his parents, who had a close relationship with
Lukas and were “always glad to see him” when he visited. He
also noted that Lukas’ relationship with Carlie was also good.
Andrew went on to testify about his home, that he and Carlie
kept the place very clean, and that Lukas would have his own
room there.
Andrew testified that he had concerns about Lukas’ health
with Kirsti because her apartment was “unsanitary” and that
he believed her parenting style was “almost dictatorship in
style.” Andrew believed that Kirsti’s use of chores as punish-
ment was not healthy. Andrew testified that up until recently,
he was unaware of most medical updates with Lukas, including
discussion of the possibility Lukas may have attention deficit
disorder. He also had not been given access to resources to
check on Lukas’ progress in school.
Andrew testified that there had been many instances where
Kirsti had attempted to limit Lukas’ communication with him
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and that she often required Lukas to talk on speakerphone so
she could hear what the two talk about. He noted that Lukas
was free to contact Kirsti while visiting him.
On cross-examination, Andrew denied ever agreeing that
Carlie’s child from a previous marriage and Lukas would
“never meet again” after an “incident” when Lukas was 6
years old. He further denied ever making a death threat to his
previous ex-wife. He testified that he had in fact made Kirsti
aware of his attention deficit disorder diagnosis as a child
despite Kirsti’s insistence that he had only told her about it
recently. Andrew further clarified previous statements regard-
ing his relationship with his sister in stating that they were “not
extremely close, [but] we’re not distant.” Andrew denied any
current recreational drug use. He further explained that he had
removed toxic relationships from his life and had friendships
with coworkers. Andrew denied that Carlie ever used drugs
or had a drug conviction. He further denied ever counseling
Lukas to “bad mouth” Kirsti. Andrew denied ever neglecting
family events to play video games. He also denied signing a
document giving up parental rights to his child from a previ-
ous marriage.
Andrew went on to testify that he wanted to see Lukas
have the opportunity to succeed, have access to extracurricular
activities, develop a friend base, and “have a chance to grow
up with the influence of his father for once in his life” outside
of the controlling environment he believed was experienced
with Kirsti. He further explained that he would utilize paren-
tal discipline through discussion and restrictions rather than
punishment through chores. Andrew stated his belief that it
was not a parent’s responsibility to ensure their child inter-
acts with others, but rather a child would “develop their own
friend base.”
Andrew’s father testified that he spoke with his son a couple
times a month and that he and his wife were able to see Lukas
once or twice when he came to visit Andrew. He testified that
he had no concerns with the cleanliness of Andrew’s home. He
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went on to testify that Andrew’s relationship with Lukas was a
“warm, easy-going, comfortable relationship” and that he had
no concerns about Andrew’s parenting style. Andrew’s father
noted that he and his wife had previously provided financial
support for Lukas by purchasing him a computer, plane tick-
ets, and providing additional funds so Lukas could participate
in extracurricular activities. He noted that on one prior occa-
sion, Kirsti had unexpectedly called and said Lukas would
not be on a plane to Minneapolis after they were already on
the way to the airport to pick him up. He further testified that
Lukas and Carlie seemed to “get along comfortably.”
Andrew’s mother testified that she and Andrew frequently
texted each other and that they saw each other in-person a
couple of times a month, on average. She testified that she
enjoyed “going out,” reading, and doing activities with Lukas.
She noted that Andrew and Lukas had good interaction while
together and that she had no concerns. Andrew’s mother testi-
fied she and her husband assisted with financial support for
Lukas because they “felt that Lukas needed to have extra
opportunities and involvement other than just the school.”
Andrew’s fiance, Carlie, testified that she had resided with
Andrew for the past 10 years and that her children had occa-
sionally stayed there when Lukas visited. She testified that
she did not have any felony or other criminal convictions. She
went on to testify that both her and Andrew ensured Lukas
was taking care of his hygiene, but it was mostly Andrew who
did so. Carlie described Andrew’s relationship with Lukas as
being “two peas in a pod” and that her personal relationship
with Lukas was “great” despite not doing much together. She
testified that she supported Lukas’ coming to live with her and
Andrew full-time and that Andrew was able to provide a posi-
tive environment for Lukas.
On cross-examination, Carlie testified that her daughter
had previously stayed with her and Andrew at times when
Lukas was visiting and that Lukas may have had to sleep on
the couch one night because there were not enough beds. She
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testified that she remembered an incident between Lukas and
her son, when Lukas was 6 years old, where the two were
“horse playing,” but that the two have largely been kept apart
since then and the event was misunderstood.
In her case in chief, Kirsti offered several exhibits, includ-
ing Lukas’ report cards; notes from recent doctor, dentist, and
eye appointments; and recent pay stubs. She also introduced
a signed statement detailing her observations and care of
Lukas over the years and both her and Lukas’ relationship
with Andrew.
Kirsti explained the photographs of her apartment that were
introduced, noting that the closet of her apartment was left
exclusively for the pets because otherwise they would “tear up
the whole house.” She explained that the clutter and mess in
the pictures was only temporary and that the condition of the
apartment was not usually like that. She testified that she had
a “problem with organization” and that certain areas of the
apartment needed to be better organized. Kirsti testified that
she hardly drank alcohol but Lukas did not like it when she
did. She also noted that her new job was difficult and was the
cause of a lot of the mess in her apartment. She explained that
Lukas liked things clean, so she regularly had him clean his
room because “he’s happier when it’s clean.”
Kirsti testified that she was happy Lukas wanted to spend
quality time with Andrew but that she believed she had done
a good job parenting him and allowed Lukas to regularly con-
tact Andrew. She testified that throughout their relationship,
Andrew had ongoing issues with his previous wife regarding
visitation and child support of another child, and that this
required Kirsti to support them while she was pregnant with
Lukas. She testified that Andrew once made a comment to
her about his ex-wife stating, “If you leave me, I’m going
to kill [my ex-wife],” and that this made her afraid when
they separated.
Kirsti testified that 5 or 6 months after their separation,
Andrew began making voluntary child support payments. She
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noted that since she moved to Nebraska, it had been more dif-
ficult to schedule visits between Andrew and Lukas, but the
two largely worked it out. She testified that toward the end of
their relationship, Andrew treated her poorly, causing her to
become depressed, and that he frequently “spent all his time
playing video games.”
She testified that when Lukas was in fourth grade and
fifth grade, he was struggling to get homework done so she
decided to homeschool him temporarily, and that he had since
done well in school. She noted that her parents had been sup-
portive and that she and Lukas often visited nearby family.
She testified that the decision to move to Lincoln was made
because she wanted Lukas to have more of an opportunity to
make friends and she needed more opportunities for work.
She noted that Andrew’s parents had helped out financially
with travel costs for Lukas to visit Andrew in Minnesota, but
that they rarely initiated contact when Lukas was with her in
Nebraska. She also testified that when Lukas was younger,
Andrew was far less proactive in reaching out to talk to
Lukas, and that he had become more interested as Lukas had
gotten older.
Kirsti addressed her concerns with Lukas’ living with
Andrew’s fiance, Carlie, namely because she did not know her
very well. She explained that she believed Carlie prioritized
her own children over Lukas. For example, when Carlie’s
daughter visited at the same time as Lukas, he was forced to
sleep on the couch. When Carlie’s oldest daughter got married,
Kirsti did not receive any child support around that time, which
she believed to be because of the wedding costs. She testified
about an incident between Carlie’s son and Lukas when they
were younger and that law enforcement was involved but no
charges were ever filed.
On cross-examination, Kirsti was asked about the photo-
graphs of her apartment and she explained that she believed
Lukas intentionally took the photographs to make her “look
bad.” She added that the photographs did not accurately
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reflect the day-to-day condition of the apartment. She went
on to testify that she very rarely limited Lukas’ cell phone
access and that she usually did so only when he was spend-
ing too much time on the cell phone “watching YouTube
videos.” On the rare occasion Kirsti had limited Lukas’ cell
phone calls with Andrew, she noted that it was because they
had been “talk[ing] for so long” and she had somewhere she
needed to be with Lukas. She testified that she was trying to
get Lukas involved in more extracurricular activities but that
he was often “burnt out,” so balancing activities and school
was difficult. Kirsti testified that she moved to Nebraska to be
close to her family and that Andrew gave his permission for
her to move.
The court questioned Kirsti about her pets and their history
of urinating on Lukas’ bed and clothing. Kirsti noted that she
cleaned the mattress extensively and “the smell is gone” and
that the animals had “gotten better.” She noted that she was
“undecided” on whether “to get rid of the cats.”
Although the district court found that Lukas had done well
with Kirsti, it nevertheless found that his overall quality of life
would be improved living with Andrew. The court awarded
Andrew physical custody of Lukas, subject to reasonable par-
enting time with Kirsti. The court further amended the pro-
posed parenting plan regarding Kirsti’s summer parenting time.
This appeal followed.
III. ASSIGNMENTS OF ERROR
Kirsti asserts the district court erred by (1) awarding Andrew
sole physical custody of their child; (2) allowing Andrew to
remove the child from the State of Nebraska “without perform-
ing a removal analysis”; and (3) allowing her only extended
summer parenting time with the child in odd-numbered years,
rather than every year.
IV. STANDARD OF REVIEW
[1] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s
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determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however, are
initially entrusted to the trial court’s discretion and will nor-
mally be affirmed absent an abuse of that discretion. Mamot v.
Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
[2] 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 dis-
position through a judicial system. McLaughlin v. McLaughlin,
264 Neb. 232, 647 N.W.2d 577 (2002).
[3] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Schrag v. Spear, 290 Neb. 98, 858
N.W.2d 865 (2015).
V. ANALYSIS
1. Determination of Custody
Kirsti’s first assignment of error is that the district court
erred by awarding Andrew sole physical custody of Lukas.
Kirsti’s primary assertion is that the court improperly rested
a majority of its decision on the desires and wishes of Lukas,
who testified that he would prefer to live with Andrew.
[4-6] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discre-
tion. Schrag v. Spear, supra. When custody of a minor child
is an issue in a proceeding to dissolve the marriage of the
child’s parents, child custody is determined by parental fit-
ness and the child’s best interests. Maska v. Maska, 274 Neb.
629, 742 N.W.2d 492 (2007). When both parents are found
to be fit, the inquiry for the court is the best interests of the
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children. Id. Here, both parties concede, and the district court
agreed, that both parents were fit for the custody and care
of Lukas.
[7-11] The paramount consideration in determining child
custody is the best interests of the children. Donald v. Donald,
296 Neb. 123, 892 N.W.2d 100 (2017). Neb. Rev. Stat.
§ 43-2923 (Reissue 2016) of Nebraska’s Parenting Act sets
forth a nonexhaustive list of factors to be considered in
determining the best interests of a child in regard to custody.
Floerchinger v. Floerchinger, 24 Neb. Ct. App. 120, 883 N.W.2d
419 (2016). Such factors include the relationship of the minor
child to each parent; the desires and wishes of the minor child;
the general health, welfare, and social behavior of the minor
child; credible evidence of abuse inflicted on any family or
household member; and credible evidence of child abuse or
neglect or domestic intimate partner abuse. See id. (citing
§ 43-2923(6)(b)). With regard to the desires of the child, the
statute provides that courts should consider such “regard-
less of chronological age, when such desires and wishes are
based on sound reasoning.” § 43-2923(6)(b). The Nebraska
Supreme Court in applying this provision has stated that while
the wishes of a child are not controlling in the determination
of custody, if a child is of sufficient age and has expressed
an intelligent preference, the child’s preference is entitled
to consideration. Floerchinger v. Floerchinger, supra (citing
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002), and
Adams v. Adams, 13 Neb. Ct. App. 276, 691 N.W.2d 541 (2005)).
The Supreme Court has also found that in cases where the
minor child’s preference was given significant consideration,
the child was usually over 10 years of age. Floerchinger v.
Floerchinger, supra (citing Vogel v. Vogel, supra).
[12] In addition to the factors of § 43-2923, the Supreme
Court has held that a court may also consider
matters such as the moral fitness of the child’s parents,
including the parents’ sexual conduct; respective environ-
ments offered by each parent; the emotional relationship
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between child and parents; the age, sex, and health of
the child and parents; the effect on the child as the result
of continuing or disrupting an existing relationship; the
attitude and stability of each parent’s character; and the
parental capacity to provide physical care and satisfy
the educational needs of the child.
Schrag v. Spear, 290 Neb. 98, 112, 858 N.W.2d 865, 877
(2015) (citing Smith-Helstrom v. Yonker, 249 Neb. 449, 544
N.W.2d 93 (1996)).
[13] Kirsti argues that in awarding physical custody of
Lukas to Andrew, the district court abused its discretion by
placing too much of an emphasis on Lukas’ preferences, and
not enough on the current living conditions with her and the
fact she had been Lukas’ primary caregiver for over 10 years.
We disagree. While it is true we have held that “the prefer-
ence of a mature, responsible, intelligent minor child regard-
ing his or her custody should be given consideration, but
[not] that it should be controlling,” and that other factors are
to be considered under the direction of § 42-2923, see Adams
v. Adams, 13 Neb. Ct. App. at 286, 691 N.W.2d at 549, nothing
in the record of the present case indicates the district court
abused its discretion by failing to consider the other factors
required by statute.
[14] The district court specifically laid out the best interests
factors of § 43-2923(6) and relevant case law. Although the
district court did not address each factor individually in the
decree, the record indicates it adequately weighed the evi-
dence before it and gave consideration to factors such as the
unclean living conditions at Kirsti’s apartment (particularly
the presence of urine and feces from the animals), the com-
parative living arrangements at both Kirsti’s and Andrew’s
homes, the relationship Lukas has with his father versus the
sometimes tense relationship with his mother, and Kirsti’s
occasionally controlling parenting style. The court found no
credible evidence of abuse by either parent. The district court’s
order also considered testimony by Kirsti regarding Andrew’s
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obsession with video games while the two were together,
Andrew’s previous drinking habits and marijuana use, and an
instance where Andrew made a comment about his previous
ex-wife that Kirsti found to be threatening. When evidence
is in conflict, the appellate court considers and may give
weight to the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than
another. Floerchinger v. Floerchinger, 24 Neb. Ct. App. 120, 883
N.W.2d 419 (2016). The district court also acknowledged, and
considered, the fact that Kirsti had adequately provided for
Lukas and his educational and emotional needs since she and
Andrew separated nearly 10 years earlier. The district court
was entitled to weigh all the evidence before it in conducting
a best interests analysis.
Furthermore, the district court did not abuse its discretion
by placing significant weight on Lukas’ desires. When asked
whether he had a preference on whether to live with his father
or continue living with his mother, Lukas stated that he would
prefer to live with his father. When asked the reasons for his
preference, Lukas indicated that he still wanted to see his
mother and his younger half brother during breaks but thought
his father could support him better because “[h]e has more
stable income [and] doesn’t ever yell at [him].” He indicated
that his father was able to help him with homework and that
he did not want “to live in such a hazardous environment any-
more.” When asked why the environment with his mother was
“hazardous,” he noted that she was a “hoarder,” the apartment
was not clean, his mother would lose things, and it caused him
“stress[].” Further, Lukas had previously testified that he had a
good relationship with his father and Carlie and that he was not
concerned about switching schools because he had previously
done so and the adjustment was “pretty easy.”
This is not a case where the minor child was unable to
articulate an intelligent rationale for preferring to reside with
one parent over the other. In Wild v. Wild, 15 Neb. Ct. App. 717,
746, 737 N.W.2d 882, 904 (2007), this court held the minor
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child’s preferences were not entitled to significant weight
because she was unable to provide a “‘reasonable and per-
suasive reason[] for her decision.’” When asked why she
preferred to live with her mother, the child responded, “‘Uhm,
because I think it’s, uhm — I think it’s a good choice because,
uhm, I think I’ll be safer there than here.’” Id. at 745, 737
N.W.2d at 904. When asked to explain why she felt that way,
the child testified, “‘It’s just a feeling that I get sometimes.’”
Id. Here, as detailed above, Lukas clearly articulated a reason-
able basis for his preference.
The district court was entitled to give significant consider-
ation to Lukas’ preferences, and it did not abuse its discretion
in doing so. At the time of trial, Lukas was 14 years old, and
the district court specifically found him to be “super bright,”
“really smart,” and “very articulate.” In its order, the district
court noted that “Lukas was very mature in his reasoning and
his desires were well thought out.” Because the district court
was entitled to give Lukas’ preferences consideration, and
adequately considered the other factors of § 43-2923, we hold
that the district court did not abuse its discretion in awarding
Andrew physical custody of Lukas.
2. Removal of Minor Child
Kirsti next argues that the district court erred in permit-
ting Andrew to remove Lukas from the State of Nebraska.
Kirsti asserts that the district court was required, and failed,
to perform a removal analysis as set forth in Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), in deter-
mining whether removal of the minor child was appropriate.
The district court in this case noted in its decree:
To a certain extent, I do think I’ll do some type
of Farnsworth analysis. Even though the child lived in
Minnesota when the parents were together, the child
moved here. It’s still a removal from the state and I think
I have to take that analysis into consideration, and I think
the evidence . . . addresses those items.
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For the reasons that follow, we find that the district court,
to the extent it was required to, did conduct an appropriate
Farnsworth analysis under the circumstances and that it was
not in error to award Andrew custody and permit Lukas to
move with Andrew to his home in Minnesota.
[15,16] In Farnsworth v. Farnsworth, supra, the Supreme
Court established a detailed two-step process required before
a custodial parent is permitted to remove a child from the
State of Nebraska. The custodial parent must satisfy the court
that there is a legitimate reason for leaving the state and that
it is in the minor child’s best interests to continue to live with
that parent. Hiller v. Hiller, 23 Neb. Ct. App. 768, 876 N.W.2d
685 (2016) (citing Farnsworth v. Farnsworth, supra). In
determining whether removal to another jurisdiction is in the
children’s best interests, the trial court evaluates three con-
siderations: (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 children and the custodial parent,
and (3) the impact such a move will have on contact between
the children and the noncustodial parent. Hiller v. Hiller,
supra (citing Bird v. Bird, 22 Neb. Ct. App. 334, 853 N.W.2d
16 (2014)). Under the second “quality of life” prong, the
Supreme Court enumerated nine factors to be taken into con-
sideration. See Farnsworth v. Farnsworth, supra. Three years
after Farnsworth, the Supreme Court reaffirmed its removal
analysis in Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611
(2002), in a proceeding to modify the parties’ prior decree of
dissolution. In Vogel, the mother sought permission to remove
her minor children from the State of Nebraska to the State
of Virginia, where her new husband had recently been trans-
ferred by the U.S. Air Force.
[17] Removal jurisprudence has been applied most fre-
quently when a custodial parent requests permission to remove
a child from the state and custody has already been estab-
lished. Hiller v. Hiller, supra. Notably, this court has applied
the Farnsworth removal analysis in situations where a prior
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custody determination has not been established. See, e.g.,
Kashyap v. Kashyap, 26 Neb. Ct. App. 511, 921 N.W.2d 835
(2018) (dissolution proceeding where temporary custody order
had been established with mother and father was stationed
out-of-state); Hiller v. Hiller, supra (dissolution proceeding
where both parties resided in Nebraska at time of proceeding);
Rommers v. Rommers, 22 Neb. Ct. App. 606, 858 N.W.2d 607
(2014) (dissolution proceeding where mother left Nebraska
with child prior to filing of dissolution complaint).
In Rommers, the parties were before the court on a dissolu-
tion action whereby both parties sought custody of the minor
child. Prior to the initiation of the dissolution and custody
action in Nebraska, the mother had moved with the child
to the State of Arizona without the father’s knowledge. In
reversing the district court’s determination that Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), was inap-
plicable, we held:
If the Nebraska court system were to allow litigants to
mesh original custody determinations and removal deter-
minations in such a way as has occurred in this case,
it would allow parents to leave the state with children
before any filing occurred and without any repercussions
and would allow parents to avoid any scrutiny under
a removal analysis. The trial court should have first
entered an order regarding custody and then conducted a
proper Farnsworth removal analysis, which would take
into account an appropriate parenting plan in accordance
with the custody determination and decision regarding
removal . . . .
Rommers v. Rommers, 22 Neb. Ct. App. at 617, 858 N.W.2d
at 616.
Under Farnsworth, we first consider whether the custodial
parent has a legitimate reason for leaving the state. Here,
there is no dispute that Andrew has a legitimate reason for
“leaving” the state, and this issue was conceded by Kirsti’s
counsel during oral argument. Prior to this action, Andrew
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had been living in Minnesota since he was 17 years old, and
both Kirsti and Lukas lived there with him prior to moving
to Nebraska.
Under Farnsworth, the court next considers the child’s best
interests. In determining whether removal to another jurisdic-
tion is in the child’s best interests, the trial court considers (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 parent, when viewed in the light of reasonable
visitation. Kashyap v. Kashyap, supra. See, also, Farnsworth v.
Farnsworth, supra.
(a) Each Parent’s Motives
The first consideration is each parent’s motives for seeking
or opposing the move. Both parties concede that there are legit-
imate reasons for seeking and opposing the move of Lukas to
Minnesota. Andrew has lived in Minnesota throughout most of
his life. Kirsti has been living in Nebraska for the last 10 years.
Both parties are employed in their respective home states.
Therefore, we find that both parties have legitimate reasons to
seek or oppose the move.
(b) Quality of Life
[18] Under the second consideration, the Supreme Court
has enumerated nine factors to determine whether the pro-
posed move will enhance the quality of life of the child and
the custodial parent. See Farnsworth v. Farnsworth, 257 Neb.
242, 597 N.W.2d 592 (1999). Those factors to be considered
are as follows: (1) the emotional, physical, and developmental
needs of the child; (2) the child’s opinion or preference as to
where to live; (3) the extent to which the custodial parent’s
income or employment will be enhanced; (4) the degree to
which housing or living conditions would be improved; (5)
the existence of educational advantages; (6) the quality of
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the relationship between the child and each parent; (7) the
strength of the child’s ties to the present community and
extended family there; (8) the likelihood that allowing or
denying the move would antagonize hostilities between the
two parents; and (9) the living conditions and employment
opportunities for the custodial parent, because the best inter-
ests of the child are interwoven with the well-being of the cus-
todial parent. Id. This list should not be construed as setting
out a hierarchy of factors. Id. Depending on the circumstances
of a particular case, any one factor or combination of factors
may be variously weighted. Id. We will address each of these
nine factors in turn.
(i) Emotional, Physical, and
Developmental Needs
Our first consideration in assessing the extent the move
would enhance the minor child’s quality of life is the impact
it would have on the child’s emotional, physical, and devel-
opmental needs. The evidence presented shows that Lukas
has had a history of attention issues (namely attention defi-
cit disorder) but has improved significantly over time in
Kirsti’s care and now performs well in school. Nothing in
the record suggests that Lukas would not continue to thrive
in this regard under Andrew’s care; in fact, Lukas testified
that Andrew often was available by cell phone to help Lukas
with his homework. While Kirsti has adequately provided for
Lukas physically in terms of food, medical care, shelter, and
the like, there was evidence that her apartment was disorga-
nized and unclean and that the cats had urinated on Lukas’
mattress, on his clothes, and in his closet on multiple occa-
sions. Lukas testified that the environment at his mother’s
apartment was “hazardous.” Andrew testified that Lukas had
commented to him that fumes from the animals had often
made him feel sick.
Emotionally, Lukas has a close relationship with both par-
ents. However, there is testimony that Kirsti’s parenting style
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is sometimes controlling and that she will impose chores as
punishment, will take away Lukas’ cell phone if she believes
he is talking negatively about her to Andrew, and will often
talk negatively about Andrew herself. Overall, this factor
weighs slightly in favor of removal.
(ii) Child’s Opinion or
Preference
As discussed previously in the custody discussion of this
opinion, Lukas expressed a preference to live with his father
and provided several well-thought-out reasons for his prefer-
ence. This factor weighs in favor of removal.
(iii) Enhancement of Relocating Parent’s
Income or Employment
Both Kirsti and Andrew are already employed in their
respective states and are not seeking removal to pursue alterna-
tive employment opportunities. Both parties concede, and we
agree, that because this is an initial custody determination, this
is a nonfactor and is neutral.
(iv) Degree to Which Housing or Living
Conditions Would Be Improved
The evidence shows that Lukas enjoys having his own room
at both Andrew’s home in Minnesota and Kirsti’s apartment in
Nebraska. The district court found, and the evidence shows,
that Kirsti’s apartment is generally unclean and disorganized.
The presence of three animals, which have a history of urinat-
ing in Lukas’ room and on his clothing and mattress, adds to
the uncleanliness. Andrew currently makes between $23 and
$24 per hour and works full time. Kirsti currently earns $12
per hour and works full time; however, she has had periods
of unemployment while Lukas was in her care. Lukas testi-
fied that he believed Andrew could support him “just a little
bit better” than Kirsti could. Based on the evidence comparing
the conditions of their respective homes and employment, and
the testimony that Lukas preferred a clean environment and
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referred to Kirsti’s home as “hazardous,” this factor weighs in
favor of removal.
(v) Existence of Educational Advantages
At the time of trial, Lukas was attending eighth grade at
a Lincoln middle school and was performing well, receiving
grades of A’s and B’s in his classes. While there was no evi-
dence presented suggesting the quality of education available
in Minnesota, there was also no evidence suggesting that it
would be inferior to what Lukas has received in Nebraska.
Lukas overcame much of his attention issues after a brief
period of homeschooling by Kirsti, and he receives significant
help with his homework over the cell phone from Andrew. This
factor is neutral.
(vi) Quality of Relationship Between
Child and Each Parent
The lower court found, and the evidence suggests, that
Lukas has maintained a close relationship with both of his
parents. While Lukas has been in Kirsti’s custody since he was
around 4 years old, he has also established a close relationship
with Andrew through regular communication and visits. While
Lukas has the occasional disagreement with Kirsti, his rela-
tionship with both parents is overall healthy and loving. This
factor is neutral.
(vii) Strength of Child’s Ties to Present
Community and Extended Family
Lukas has lived with Kirsti for around 10 years and has
developed a close relationship with his maternal grandpar-
ents, whom he lived with for approximately 5 years while in
Nebraska. While living with Kirsti, Lukas has also lived with
his younger half brother, and although the two occasionally
fight, they appear to have a normal sibling relationship. Lukas
has also maintained a relationship with his maternal uncles
and cousins. On Andrew’s side of the family, Lukas has been
able to establish a close relationship with his extended family.
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When Lukas visits Andrew in Minnesota, he often does activi-
ties with his grandparents and has gotten to know his older
half brother. Lukas testified that he would like to see his pater-
nal grandparents and cousins more frequently.
While Lukas has lived in Nebraska for most of his life, he
has made several moves and attended a number of schools in
that time. Lukas testified that switching to a new school does
not make him nervous because he had already done so more
than once.
The record reflects that Lukas is fortunate enough to have
a close and loving relationship with both his maternal and
paternal extended family. While a move to Minnesota would
decrease Lukas’ connections to his maternal relatives, it would
allow the opportunity to improve relationships with his pater-
nal relatives. This factor is neutral.
(viii) Likelihood That Allowing or
Denying Move Would Antagonize
Hostilities Between Parties
The district court correctly noted that both parties have a
close relationship with Lukas, and Kirsti and Andrew have
been able to work together to coordinate opportunities for
Lukas to visit Andrew in Minnesota. There is no evidence that
allowing or denying the move would antagonize the parties.
This factor is neutral.
(ix) Well-Being of Custodial Parent
The final “‘quality of life’” factor listed in Farnsworth v.
Farnsworth, 257 Neb. 242, 250, 597 N.W.2d 592, 598 (1999),
is consideration of the “living conditions and employment
opportunities for the custodial parent, because the best inter-
ests of the child are interwoven with the well-being of the
custodial parent,” id. at 251, 597 N.W.2d at 599. Accord Hiller
v. Hiller, 23 Neb. Ct. App. 768, 876 N.W.2d 685 (2016). This
factor focuses largely on “how the proposed new living condi-
tions and employment impact the well-being of the custodial
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parent.” Id. at 789, 876 N.W.2d at 699. Because this is a case
where the parties have been living and working in their respec-
tive states for several years, and neither party is seeking to
relocate with the child, this is a nonfactor and is neutral.
(x) Conclusion Regarding
Quality of Life
After our review of the record, we find that the district court
was correct in finding that both parties are fit and capable par-
ents. We also note that the court-appointed guardian ad litem
for Lukas likewise found both Kirsti and Andrew to be fit and
capable parents and expressed his belief that it would be in
Lukas’ best interests to award custody in accordance with his
preference. Furthermore, after reviewing the evidence in light
of the Farnsworth factors, we find that, although Lukas has
done well under Kirsti’s care, removal would enhance his qual-
ity of life.
(c) Impact on Noncustodial
Parent’s Visitation
When, as here, the parties live hundreds of miles apart, there
will undoubtedly be an effect on the noncustodial parent’s visi-
tation. However, Kirsti and Andrew have worked amicably to
make the arrangement work and to facilitate visitation for the
last 10 years. Regardless of whether or not removal is granted,
Lukas will necessarily spend time traveling between the two
homes. Permitting removal, therefore, would not increase the
amount of time Lukas is required to travel or increasingly
burden the parties to arrange visitation as they have previ-
ously done.
(d) Conclusion on Best Interests
A de novo review of the record shows that both parties have
a legitimate reason for seeking or opposing the move and that
permitting removal would enhance the quality of life of Lukas.
While the move will surely affect the amount of time Kirsti
spends with Lukas, the parties have been able to work out a
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visitation schedule in the past, and the district court imposed
an appropriate parenting plan to facilitate organized visits. The
record demonstrates sufficient evidence that it is in Lukas’ best
interests to move from Nebraska to Minnesota and that it was
not in error for the district court to determine such.
3. Modification of Summer
Parenting Time
Kirsti’s final assignment of error is that the district court
erred in modifying the portion of time allotted to her for sum-
mer parenting time within the proposed parenting plan without
any explanation for the modification. Both parties, and this
court, agree.
At trial, Andrew offered to the court as an exhibit a proposed
parenting plan. In the event that Andrew was granted custody
of Lukas, the plan called for Kirsti to have extended parent-
ing time every summer with the parties alternating which half
of the summer they would receive. In even-numbered years,
Kirsti would have parenting time from mid-July until just
prior to the start of the school year. In odd-numbered years,
Kirsti would have from June 15 until July 30. In its decree,
the district court noted it had modified the proposed parenting
plan “by changing the portion of the summer parenting time.”
This change, which can be seen in the modified parenting plan
attached to the decree, shows the court crossed off the portion
of the plan reading: “In the even-numbered years, the mother’s
summer parenting time shall begin at noon on the ____ day
of July and conclude at noon on the Friday immediately prior
to the first day of school.” Section 43-2923(4) provides that
“[i]f the court rejects a parenting plan, the court shall provide
written findings as to why the parenting plan is not in the best
interests of the child.” The district court gave no explanation
for the modification, or why it would be in the best interests
of Lukas, and we cannot see one evident from the record.
Because the parties do not dispute, and we see no reason that
Kirsti should not be granted extended parenting time every
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summer, we reverse and vacate the modification to the summer
parenting time provision of the proposed parenting plan and
reinstate such without modification.
VI. CONCLUSION
We conclude that the district court did not err in award-
ing custody of Lukas to Andrew and allowing Andrew to
remove Lukas to the State of Minnesota. We reverse and
vacate the modification to the summer parenting time provi-
sion of the proposed parenting plan and reinstate such with-
out modification.
Affirmed in part, and in part
reversed and vacated.