Bohnet v. Bohnet ( 2015 )

Decisions of the Nebraska Court of Appeals
846 22 NEBRASKA APPELLATE REPORTS
Evan L. Bohnet, appellee, v. Katherine A. Bohnet,
now known as K atherine A. Balerud, appellant.
___ N.W.2d ___
Filed April 14, 2015. No. A-14-492.
1. Child Custody: Visitation: Appeal and Error. Child custody determinations,
and visitation determinations, are matters initially entrusted to the discretion of
the trial judge, and although reviewed de novo on the record, the trial judge’s
determination will normally be affirmed absent an abuse of discretion.
2. Judgments: Words and Phrases. A judicial abuse of discretion requires that the
reasons or rulings of a trial judge be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result.
3. Modification of Decree: Appeal and Error. Modification of a dissolution
decree is a matter entrusted to the discretion of the trial court, whose order is
reviewed de novo on the record, and which will be affirmed absent an abuse
of discretion.
4. Child Custody. Ordinarily, custody of a minor child will not be modified unless
there has been a material change of circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such action.
5. Modification of Decree: Child Custody: Proof. The party seeking modification
of a decree of dissolution bears the burden of showing a material change of cir-
cumstances affecting the best interests of a child.
6. Modification of Decree: Child Custody. Whether considering a modification of
custody or a proposed removal from the state, the best interests of the children
are the paramount considerations.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Terrance A. Poppe and Andrew K. Joyce, Senior Certified
Law Student, of Morrow, Poppe, Watermeier & Lonowski,
P.C., L.L.O., for appellant.
Peter C. Wegman and Jesse S. Krause, of Rembolt Ludtke,
L.L.P., for appellee.
Irwin, Riedmann, and Bishop, Judges.
Bishop, Judge.
The only issue raised in this modification of custody appeal
is whether the analysis required when a parent seeks to relo-
cate with a minor child from Nebraska to another state also
applies to intrastate moves. Specifically, does Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), apply
Decisions of the Nebraska Court of Appeals
BOHNET v. BOHNET 847
Cite as 22 Neb. App. 846when a move within Nebraska creates a distance of 148 miles
between parental households and therefore requires modifica-
tion to an existing parenting plan. We conclude that while
some of the longer distance moves within the state might
benefit from a more thorough removal analysis as set forth
in Farnsworth, we decline to require it until such time as the
Legislature or our Supreme Court directs us to do so. Further,
finding no abuse of discretion in the district court’s modifica-
tion order, we affirm.
BACKGROUND
Katherine A. Bohnet, now known as Katherine A. Balerud
(Katie), and Evan L. Bohnet are the parents of Madelynn Bohnet
(Maddie), born in 2008. Katie became pregnant with Maddie
at age 16 while a junior in high school in Columbus, Nebraska.
After graduating from high school in 2009, Katie commenced
her college education at the University of Nebraska-Lincoln.
Evan had graduated from Columbus High School in 2008, and
he also attended the University of Nebraska-Lincoln. Katie and
Evan were married on July 24, 2010; Evan filed for divorce
in June 2011. The parties both signed a property settlement
agreement and parenting plan, and on September 15, the
Lancaster County District Court entered an order dissolving
their marriage. Legal custody of Maddie was awarded jointly
to the parties, and physical custody was awarded to Evan sub-
ject to Katie’s reasonable parenting time. The parenting plan
agreed upon at that time provided for a “9/5 parenting time”
schedule, which gave Katie parenting time with Maddie every
other Thursday afternoon to the following Monday morning,
and during the “off” weeks, parenting time from Thursday
afternoon until Friday morning. The parties also agreed to
alternate weeks during the summer.
Upon Evan’s graduation in May 2013 with a degree in
“[s]econdary math” (grades 7 through 12), he accepted a
teaching position in South Sioux City, Nebraska, about 148
miles away from Lincoln, Nebraska, where Katie still resided.
On May 13, Katie filed a “Complaint for Modification of
Decree and Praecipe,” wherein she alleged a material and sub-
stantial change of circumstances had occurred since the entry
Decisions of the Nebraska Court of Appeals
848 22 NEBRASKA APPELLATE REPORTS
of the decree in that Evan had accepted a job in South Sioux
City, that he was planning to move there, and that this would
make it impossible for her to exercise her parenting time as
set forth in the decree. Katie requested custody of Maddie,
and she asked for orders pertaining to parenting time, child
support, and attorney fees. Trial was held September 16, 17,
and 20.
At trial, Evan testified that he looked for work in Lincoln
but that nothing was available, so he gradually expanded his
search radius and received the job offer from South Sioux City
Community Schools. Evan claimed that he was offered the job
in mid-April 2013 and that he talked with Katie about it the
first week of May before signing a contract. At the time of
trial, he was an “8th grade math teacher” earning $33,500 per
year. Evan purchased a home in South Sioux City with help
from his parents on the downpayment, and Maddie started kin-
dergarten at Cardinal Elementary School (Cardinal) in South
Sioux City, which school is located four to six blocks from
Evan’s home. Katie testified that Maddie’s teacher at Cardinal
is “wonderful” and that she did not have “any major concerns
about the school in particular.”
Katie testified that she hoped to graduate in December 2013
with a major in “special education mild/moderate secondary[,
grades] 7 through 12.” At the time of trial in September 2013,
she was working as a paraeducator with students “who have
severe and profound disabilities” at a Lincoln high school. Her
hours were 8 a.m. to 3 p.m., Monday through Friday, and she
was earning $12.95 per hour. Her hope was to secure a teach-
ing position at the same high school in the next school year
following the completion of her degree. Katie also worked
part time at a golf course in North Bend, Nebraska, man-
aged by her father. Her regular hours there were Thursdays
from 4:30 to 8:30 p.m. and then occasionally on weekends.
Maddie would accompany her to Columbus where Katie’s
mother would watch Maddie until Katie was done with work
in North Bend.
Both parties and the witnesses who testified about their
observations of Maddie all agreed in various complimentary
words that Maddie is “[a]ctive, fun, funny, a ball of energy,”
Decisions of the Nebraska Court of Appeals
BOHNET v. BOHNET 849
Cite as 22 Neb. App. 846“athletic,” “bright,” “easy to get along with,” “popular,” “out-
going,” and “you can’t help but love her” (Evan’s testimony);
is an “excited, happy, five-and-a-half-year-old [who] loves to
be a helper,” “loves to spend time outside,” and is “very well
behaved” (Katie’s testimony); is “very happy” and loves Katie
“[v]ery much” (testimony of a friend of Katie’s family since
1990); “loves to spend time with [Katie,] depends on [Katie],”
and is “healthy,” “happy,” and “well adjusted” (testimony of
a friend of Katie’s family for 16 years); is “very happy” and
has a “[v]ery loving, very positive” relationship with Katie
(testimony of a relative of Katie’s by a former marriage who
is a fourth grade teacher at Pyrtle Elementary School (Pyrtle)
in Lincoln); is “happy, healthy and well adjusted most of the
time” (testimony of Katie’s mother); and is “a happy, healthy,
well-adjusted girl,” and that Maddie and Evan have a “very
loving relationship,” and that “Maddie loves [Evan]” (testi-
mony of Evan’s sister). The sum of the testimony reflects a
happy, well-adjusted child with a healthy relationship with
both parents.
A witness from the Nebraska Department of Education,
Dean Folkers, was called by Katie to testify about data col-
lected from Nebraska’s public schools and to engage in com-
parisons between Pyrtle in Lincoln (where Katie wished to
enroll Maddie due to proximity to her home) and Cardinal
in South Sioux City. In one example, Folkers explained that
86.49 percent of the students who took the Nebraska State
Accountability third grade mathematics test at Pyrtle met or
exceeded the expectation as compared to 60.34 percent at
Cardinal. The poverty percentage at Cardinal was 67.60 per-
cent, and at Pyrtle it was 23.68 percent. Folkers explained that
the poverty percentage is based upon a student’s eligibility for
free or reduced lunch. Folkers also discussed “adequate yearly
progress,” which he explained is a designation stemming from
the “No Child Left Behind” requirements. As part of those
requirements, schools must meet certain criteria to receive
funds for extra support in reading and other learning areas.
Schools must meet a benchmark established by the state, and
Folkers testified that both schools met this benchmark, except
that Cardinal’s special education students did not meet the
Decisions of the Nebraska Court of Appeals
850 22 NEBRASKA APPELLATE REPORTS
benchmark established for such students. Folkers stated that
with regard to reading and mathematics improvement scores,
Cardinal had improved in every category from 2010-11 to
2011-12; whereas, Pyrtle had declined in 5 of the 10 categories
in that same year.
A licensed psychologist employed by the university began
counseling Katie in February 2011. She largely discussed
Katie’s need to develop “her internal sense of who she is
. . . raising her self-confidence . . . and her self-esteem.” The
psychologist testified that Katie’s “trajectory has been upward
and strong . . . [h]er self-reflection and growth . . . has been
very solid and I feel good about her progress and maturity.”
She did not have any concerns about Katie having custody
of Maddie.
Dr. Lisa Blankenau, a licensed psychologist with a spe-
cialty in families, couples, and court evaluations for families,
testified about the impact of moves on a parent’s relationship
with a child. Dr. Blankenau met with Katie only twice in
July 2013 and once in August; she never met either Evan or
Maddie. She was not asked to render an expert opinion with
respect to custody in the pending case; rather, Katie’s coun-
sel elicited testimony about parenting schedules generally
and the impact of decreased parenting time. Dr. Blankenau
stated that she advocates for 10 days with one parent and 4
days with the other parent (10/4 schedule) or 9 days with one
parent and 5 days with the other parent (9/5 schedule). She
explained that it takes an adjustment period of 2 days before
“real parenting occurs.” Dr. Blankenau testified that if a par-
ent had
four or five days in a row, you’d have the first couple
days of just adjustment and then after that, you’d be able
to do real parenting: getting them on a schedule, doing
some caretaking activities, doing other things besides just
entertainment and fun things. And so that would make
the parenting bond with both parents stronger and a less
disruption to a child’s life.
Dr. Blankenau testified that time with the child is important
to develop a close bond and that if the distance “gets too far
away,” then it is hard to find that needed time. She did not
Decisions of the Nebraska Court of Appeals
BOHNET v. BOHNET 851
Cite as 22 Neb. App. 846consider “Skype . . . an appropriate substitute for one-on-one
parenting time,” in particular with children of Maddie’s age,
because they do not have “the attention span to spend . . . much
time on Skype.” Also, “[Skype is] not a physical presence,”
and “[p]art of being a parent is being able to kiss and hug and
love them and hold hands and just that physical touch that par-
ents have . . . .” And based on studies, “without a strong bond
with both parents, children . . . go one of two ways. They can
be more aggressive and [act] out, or they can be more passive
and develop more depressive like symptoms.” Further, “[c]hil-
dren with a strong bond with both parents tend to be more suc-
cessful in their life overall. They . . . do better in school . . .
have more educational goals . . . are more stable . . . are less
likely to break . . . important rules like the law[, and are] less
likely to have mental health issues.” Dr. Blankenau stated that
“[t]here is a definite difference between the two populations.”
Dr. Blankenau also testified generally about “alienation of
affections,” but did not address anything specific to the case at
hand. On cross-examination, Dr. Blankenau was asked whether
she had any other recommendations on how to make weekend
parenting work besides Friday evening to Sunday evening,
given that Evan lived in South Sioux City and Katie lived in
Lincoln. Her response was, “Not with that distance. I don’t
know how else it would work.”
Katie and Evan both testified about their relationship with
Maddie, their activities, and why one location was better
than the other. The evidence reveals two good parents, each
with good intentions for themselves and for Maddie. Evan
agreed in several instances that he could improve on his com-
munication with Katie and expressed his intention to do so.
And understandably, Katie was concerned about the reduced
parenting time having a negative impact on her relationship
with Maddie.
The district court entered its “Findings” on February 24,
2014, concluding that “a material and substantial change
in circumstances requiring the modification of the previ-
ous decree” existed and that legal custody shall be awarded
jointly, with physical custody awarded to Evan. Parenting
time for Katie was modified to every other weekend from
Decisions of the Nebraska Court of Appeals
852 22 NEBRASKA APPELLATE REPORTS
Friday at 6 p.m. until Sunday at 6 p.m. Katie was to pick
Maddie up in South Sioux City at the commencement of her
parenting time; Evan was to pick her up in Lincoln at the
conclusion of that parenting time. Katie was ordered to pay
child support of $145 per month; this reflected a downward
deviation from the $189 per month child support calculation
in consideration of transportation expenses necessary for
Katie to exercise her parenting time. Health insurance and
medical costs were also addressed. An “Order” was entered
the same day, and following a motion for new trial filed
February 25, an amended order was filed April 30, which
changed the transportation requirement to the parties meeting
at a mutually agreed-upon location in Blair, Nebraska, at the
commencement of Katie’s parenting time, with Evan picking
Maddie up from Katie’s home at the conclusion of that par-
enting time. Katie timely appealed.
ASSIGNMENT OF ERROR
Katie’s sole assignment of error is that the district court
abused its discretion by awarding physical custody to Evan
without applying the factors set forth in Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), to deter-
mine if the move was in Maddie’s best interests.
STANDARD OF REVIEW
[1,2] Child custody determinations, and visitation determi-
nations, are matters initially entrusted to the discretion of the
trial judge, and although reviewed de novo on the record, the
trial judge’s determination will normally be affirmed absent an
abuse of discretion. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d
328 (2000). A judicial abuse of discretion requires that the
reasons or rulings of a trial judge be clearly untenable insofar
as they unfairly deprive a litigant of a substantial right and a
just result. Id.[3] Modification of a dissolution decree is a matter entrusted
to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an
abuse of discretion. Garza v. Garza, 288 Neb. 213, 846 N.W.2d
626 (2014).
Decisions of the Nebraska Court of Appeals
BOHNET v. BOHNET 853
Cite as 22 Neb. App. 846ANALYSIS
The parties’ September 15, 2011, divorce decree provided
for joint legal custody, with physical custody of Maddie
awarded to Evan. Katie’s parenting time was based on the
9/5 schedule described earlier. Following the modification
trial, the district court’s February 24, 2014, order found that a
material and substantial change in circumstances existed that
required modification of the original decree. Although the
district court did not change the legal and physical custody
as previously ordered, it did modify Katie’s parenting time
from the 9/5 schedule to every other weekend from Friday
at 6 p.m. until Sunday at 6 p.m. As a result, Katie’s parent-
ing time went from five overnights to two overnights in each
14-day period.
Referring to Farnsworth, supra, Katie argues that “Nebraska
Courts have applied the Farnsworth removal factors in several
cases where the distance moved by the removing parent was
comparable or significantly less than [Evan’s] 148 mile move
currently before this Court.” Brief for appellant at 17. Katie
directs us to the following:
Keiser v. Hohenthaner, A-11-590, 2012 WL 1869269(Neb. Ct. App. May 22, 2012) ([r]emoval analysis applied
to 5-10 mile move from Crofton[, Nebraska,] to Yankton,
South Dakota); Curtis v. Curtis, 17 Neb. App. 230, 759
N.W.2d 269 (2008) ([r]emoval applied to 17.6 mile move
from Falls City[, Nebraska,] to Big Lake, Missouri);
Ginter v. Ginter, A-07-752, 2008 WL 373165 (Neb. Ct.
App. Feb. 12, 2008) ([r]emoval analysis applied to 142
mile move from Nebraska to Iowa); and State ex rel. Bach
v. Keiper, A-04-439, 2005 WL 41547 (Neb. Ct. App. Jan.
11, 2005) ([r]emoval analysis applied to 280 mile move
from Chadron[, Nebraska,] to Denver[, Colorado]).
Brief for appellant at 17.
Katie argues that the underlying concern should be “the
impact that the relocation has on the child, not whether arbi-
trary state lines are crossed,” brief for appellant at 20-21, and
that applying Farnsworth v. Farnsworth, 257 Neb. 242, 597
N.W.2d 592 (1999), to a 17-mile move as in Curtis v. Curtis,
17 Neb. App. 230, 759 N.W.2d 269 (2008), but not to a
Decisions of the Nebraska Court of Appeals
854 22 NEBRASKA APPELLATE REPORTS
220-mile move as in McLean v. McLean, No. A-08-879, 2009
WL 1270492 (Neb. App. May 5, 2009) (selected for post-
ing to court Web site) (move from Ponca, Nebraska, to rural
Brewster, Nebraska), produces “arbitrary and illogical results,”
brief for appellant at 21. We do not disagree that it may seem
illogical to require the more extensive Farnsworth removal
analysis in situations involving some of the short distances
noted above simply because a state line has been crossed,
but not require such an analysis when a greater intrastate
distance is involved, such as in the present case. However, as
Katie acknowledges, this court, in unpublished opinions, has
declined to apply the Farnsworth removal analysis to signifi-
cant moves within this state’s border. Katie cites to Houchin v.
Houchin, No. A-11-483, 2012 WL 882450 (Neb. App. Mar. 13,
2012) (selected for posting to court Web site), and McLean,
supra. Katie nevertheless argues that the removal analysis in
Farnsworth, supra, was “borrowed” from other states, such
as New York, Massachusetts, and New Jersey, and that since
“the Nebraska Supreme Court has not indicated whether its
removal analysis should be applied to in-state moves, this
Court should look to those states from which” Farnsworth was
modeled. Brief for appellant at 18,19. As indicated previously,
while some long-distance intrastate moves might benefit from
a thorough Farnsworth analysis when considering custody and
parenting time issues within the state, neither our Supreme
Court nor the Legislature has made that the current state of
the law, and therefore, we continue to decline to require the
application of the Farnsworth analysis to intrastate moves and
cannot say that the district court abused its discretion in failing
to do so.
We would also note that in McLaughlin v. McLaughlin,
264 Neb. 232, 248-49, 647 N.W.2d 577, 592 (2002), the dis-
sent touched on this issue of intrastate moves being handled
differently than interstate moves, stating, “It is also true that
the distance between Omaha and Huron, South Dakota, is not
so great that it would absolutely preclude regular visitation;
as the majority correctly notes, this distance is no greater
than some intrastate relocations which would not require
court approval.”
Decisions of the Nebraska Court of Appeals
BOHNET v. BOHNET 855
Cite as 22 Neb. App. 846[4-6] Until directed otherwise, the current law applicable
to requests for modification of custody and/or parenting time
that arise due to an intrastate move of a custodial parent would
fall under the propositions of law generally found in custody
modification cases, that being that ordinarily, custody of a
minor child will not be modified unless there has been a mate-
rial change of circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such
action. Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000).
Further, the party seeking modification of a decree of dissolu-
tion bears the burden of showing a material change of circum-
stances affecting the best interests of a child. Id. Whether con-
sidering a modification of custody or a proposed removal from
the state, the best interests of the children are the paramount
considerations in our determination. Id.When considering Maddie’s best interests, based upon the
record before us as discussed in relevant part earlier, we cannot
say that the district court abused its discretion in leaving cus-
tody as previously ordered and in modifying the parenting plan
to accommodate the distance created by Evan’s new teaching
job in South Sioux City. Certainly, the decreased weekly par-
enting time for Katie is unfortunate given what appears to be
a very healthy mother-child relationship. We are also mindful
of Dr. Blankenau’s compelling testimony regarding the impact
of decreased parenting time on a parent’s relationship with a
child. However, even Dr. Blankenau had to admit that given
the distance between the residences, other than the Friday to
Sunday night parenting schedule, “I don’t know how else it
would work.” Accordingly, the district court did not abuse its
discretion in modifying the parenting plan to accommodate the
distance between the parties’ households.
CONCLUSION
The district court’s February 24, 2014, modification order,
as amended April 30, is affirmed.
Affirmed.