Fish v. Fish ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
FISH V. FISH
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
TERESA ANN FISH, APPELLANT,
V.
BRADLEY STEVEN FISH, APPELLEE.
Filed April 16, 2013. No. A-12-588.
Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge. Affirmed.
James H. Truell, of Truell, Murray & Associates, for appellant.
John B. McDermott, of Shamberg, Wolf, McDermott & Depue, for appellee.
SIEVERS, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
I. INTRODUCTION
Teresa Ann Fish, now known as Teresa Ann Hill, appeals from the order of the district
court for Hall County filed June 5, 2012, which denied Teresa’s application to remove the
parties’ two minor children from the State of Nebraska. For the reasons that follow, we affirm.
II. BACKGROUND
Teresa and Bradley Steven Fish divorced, and the decree of dissolution of marriage was
entered by the district court for Hall County on February 1, 2011. Subject to the terms of the
parenting plan, Teresa was given physical custody of the parties’ two minor children, Abbie Fish
and Megan Fish, who at the time of trial were age 13 and age 10 respectively. Teresa and
Bradley held legal custody jointly.
The parties separated in October 2009, and Teresa began a relationship with James Hill
during the pendency of the dissolution action. Hill, a career officer in the U.S. Navy who held
the rank of lieutenant commander, was divorced and had custody of his two sons. Hill was a
-1-
former high school classmate of Teresa’s in Superior, Nebraska, and they reconnected in
September 2010.
After the decree of dissolution of Teresa and Bradley’s marriage was entered in February
2011, Teresa quit her teaching job in Grand Island, Nebraska, and hoped to move to Omaha,
Nebraska, to find employment and be nearer to Hill.
Hill proposed marriage to Teresa in the first week of April 2011, and he was notified 1
week later that he would be transferred to San Diego, California. Teresa moved with the children
to Superior in June 2011. She decided to go to Superior to be near her father, family, and friends.
Abbie and Megan were enrolled in school in Superior for the 2011-12 school year.
Bradley’s parenting time was scheduled to take place every Monday and Wednesday
from 4:30 to 7:30 p.m. and every other weekend from 4:30 p.m. Friday to 7:30 p.m. Sunday.
Teresa and the children’s move to Superior required Bradley to drive approximately 1½ hours
each way from Grand Island to exercise his parenting time and approximately 1,800 to 2,000
miles per month. Teresa said Bradley exercised his visitation well and was flexible to
accommodate the children’s schedules for activities.
On June 15, 2011, Teresa filed her “Application for Consent to Relocate” to California.
Teresa and Hill entered into a lease agreement to rent a home in Chula Vista, California,
on July 12, 2011, and were married August 5. Teresa sent the children’s beds and belongings
from Grand Island to the rental home in California during the summer of 2011 and decorated
their bedrooms accordingly.
On May 3, 2012, the trial was held before the district court for Hall County on Teresa’s
request for removal.
Teresa testified regarding the home she leased with Hill and introduced evidence
regarding the quality of the schools in the area. Teresa is “endorsed in Elementary, Special
Ed[ucation and] can teach kindergarten through 8th grade,” and she testified that she planned to
search for a teaching job in Chula Vista if she was allowed to move. Teresa testified that she
communicates with Bradley by either “email or text,” because there is “tension between [them]”
and she does not like “being yelled at over the phone.”
Abbie and Megan met in March 2010 with Shari Schnuelle, a licensed independent
professional counselor, to discuss the transitions associated with the divorce and adjusted
parenting time schedules. Teresa and Bradley met with her jointly to work out the parenting time
schedule. Teresa contacted Schnuelle again in April 2011 to schedule times for Abbie and
Megan to discuss Teresa’s upcoming marriage to Hill and the potential move to California.
Schnuelle testified that Megan was feeling conflicted about the move to California because she
wanted to see and spend time with Bradley, but she wanted to be with Teresa in California.
Schnuelle said the children have shown the ability to adapt to the relocation to Superior, but that
both children expressed a desire to be in California with Teresa. Schnuelle also indicated that the
children sometimes sleep in the same bed as Bradley. She said there was no indication that there
was any inappropriate contact or anything untoward, but she believed it to be inappropriate.
Bradley testified that he is a shipping auditor and works 6 a.m. to 4:30 p.m. and that on
days when he has visitation with Abbie and Megan, he leaves work early, at 2:30 p.m. He stated
that it is very important to him to have regular contact with his children, but that he adjusts his
parenting time to accommodate the children’s activities and time with friends. Bradley testified
-2-
that Abbie and Megan have good relationships with extended family in Nebraska, including
Bradley’s brother, his wife, and their three children; Bradley’s aunts and uncles in Grand Island;
and the children’s grandmother in Lincoln, Nebraska. Bradley said he wants the children to stay
in Nebraska so he can be a part of their lives. He wants to exercise visitation; be there for them;
and go to their parent-teacher conferences, music recitals, and athletic games. He enjoys being
their father and wants to be a part of their lives.
An elementary school teacher in Grand Island testified that she had taught both Abbie
and Megan and had worked with Teresa when she taught. The teacher said Bradley and Teresa
were contacted through a reading program at the school to address the difficulties Megan had
with some of her schoolwork. The teacher said that Bradley attended the scheduled conferences
and that when he could not come, he called to discuss Megan’s progress. The teacher described
Bradley as an involved parent who showed an interest in both Abbie’s and Megan’s schoolwork.
Megan expressed her preference not to be interviewed, while Abbie was interviewed
regarding her opinions and preferences regarding the potential move to California. Abbie stated
that when they lived in Grand Island, Abbie participated in gymnastics, dance, soccer, and
softball. In Superior, she was involved in softball, skating, bowling, and volleyball. She did not
express an interest in activities which are currently unavailable to her in Superior, except for
dance, which was something she had done while in Grand Island.
Abbie said she talked to Hill about “school ratings, and like how he thinks it will be
really easy to fit in, and the beaches and stuff like that.” She said Hill said there are more clubs
and sports in which to participate in California versus Grand Island or Superior. She said that she
has been to California twice and that she likes it because “there’s beaches really close, and
there’s huge malls. And it’s warm.” She said she wants to live with Hill and his sons, who are
“fun to hang out with,” and because Hill is easier to talk to than Bradley. She said Bradley is a
little more protective and less open with her about topics such as violence or drugs.
Abbie said that when she found out there was a possibility of moving, she was “kind of
sad because [she] didn’t want to leave [her] friends and [she] didn’t know how it was going to be
[in California] because [she] never moved out of state.” She said that after the move from Grand
Island to Superior, she realized it “wasn’t that bad to move,” and that she became more excited
about the possibility. She said that she has not seen the school she would attend in California, but
that she has heard it is like a college campus. She said she was “kind of scared since it’s so big,”
but she said “if [she] get[s] used to it, then it will be fine.”
Abbie testified that Bradley has been flexible with visitation time and allowed her to
occasionally spend time with friends in Superior instead of going to Grand Island. She also said
he has occasionally changed plans or asked family members to change plans so Abbie can spend
time with family as well as her friends. Abbie said she had not considered how the move would
affect her relationship with Bradley. She said it would be “kind of hard just to see him [when she
is] out of school and [on] breaks.” Abbie also said it would bother her not to see her grandfather
as much, because in Superior she “can just like walk down to his house” anytime. She said it
would bother her not to see her grandmother in Lincoln and her uncle in Kearney as often. She
said she would also miss a few of her friends who she currently sees daily.
-3-
Following the hearing, the court entered an order on June 5, 2012, denying Teresa’s
“Motion for Permission to Remove Minor Children.” Teresa timely filed her notice of appeal on
June 29, 2012.
III. ASSIGNMENTS OF ERROR
Teresa’s assignments of error, consolidated and restated, are that the district court erred
in determining that although Teresa had a legitimate reason to leave the State of Nebraska, it was
not in the children’s best interests to do so.
IV. STANDARD OF REVIEW
Child custody determinations, and visitation determinations, are matters initially
entrusted to the discretion of the trial court, and although reviewed de novo on the record, the
trial court’s determination will normally be affirmed absent an abuse of discretion. Wild v. Wild,
15 Neb. App. 717, 737 N.W.2d 882 (2007). A judicial abuse of discretion requires that the
reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a
substantial right and a just result. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
V. ANALYSIS
There is a two-step process before a custodial parent is allowed 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. Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
1. LEGITIMATE REASON FOR REMOVAL
Teresa sought permission to remove the children from Nebraska and to move to
California, where she planned to reside with her new husband, Hill. Previously, Teresa and Hill
resided in Nebraska, but he was transferred to San Diego to fulfill his duties as an officer in the
U.S. Navy. The court found, and the parties agree, that Teresa showed a legitimate reason to
leave the state. Having found Teresa has satisfied the first step of the removal process, we will
consider the best interests of the minor children.
2. BEST INTERESTS OF MINOR CHILDREN
After clearing the threshold of showing a legitimate reason for leaving the state, the
custodial parent must next demonstrate that the move is in the child’s best interests. Farnsworth,
supra. Whether the proposed move is in the best interests of the child is the paramount
consideration. Id. See, also, Evenson v. Evenson, 248 Neb. 719, 538 N.W.2d 746 (1995).
In determining whether removal to another jurisdiction is in the child’s best interests, the
court considers (1) each parent’s motives for seeking or opposing the move; (2) the potential that
the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the
impact such move will have on contact between the child and the noncustodial parent, when
viewed in the light of reasonable visitation. Wild, supra.-4-
(a) Each Parent’s Motives
The first factor that must be considered is each parent’s motives for seeking or opposing
the removal of the minor child from the jurisdiction. 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 manipulate the other party. Id.The trial court determined Teresa was motivated to join Hill in the San Diego area and to
pursue career opportunities in teaching following her arrival. The court also found Bradley
opposed the move, primarily because of the substantial change it will create in his ongoing
opportunity to have contact with his children and be a regular and integral part of their lives, on a
weekly, if not daily, basis. Ultimately, the court determined the motives of the parents did not
weigh in favor of removal or in favor of denial of removal of the children, and we agree.
(b) Quality of Life
The second factor that must be considered is the potential that the move holds for
enhancing the quality of life for the child and the custodial parent. This factor requires an
analysis of other considerations which bear upon the potential enhancement of the child’s quality
of life. Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007).
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 evaluates the following
considerations: the emotional, physical, and developmental needs of the child; the child’s
opinion or preference as to where to live; the extent to which the relocating parent’s income or
employment will be enhanced; the degree to which housing or living conditions would be
improved; the existence of educational advantages; the quality of the relationship between the
child and each parent; the strength of the child’s ties to the present community and extended
family there; and the likelihood that allowing or denying the removal would antagonize
hostilities between the two parties. Id. This list should not be misconstrued as setting out a
hierarchy of considerations, and depending on the circumstances of a particular case, any one
consideration or combination of considerations may be variously weighted. Id.(i) Emotional, Physical, and Developmental
Needs of Children
The court found the evidence showed that both parents in this case are loving and
concerned parents and that each is more than capable of meeting the children’s emotional,
physical, and developmental needs. Ultimately, the court found this factor weighed neither in
favor of removal or in favor of denial of removal, and we agree.
The court noted the testimony of Schnuelle expressing disapproval of Bradley’s practice
of allowing Megan to climb into his bed when she is fearful during a thunderstorm. However, the
court stated this behavior suggests no significant danger, emotional or otherwise, to either child.
Further, the court stated that it appeared Schnuelle had chosen sides in the dispute and that the
court found none of her testimony was deemed particularly helpful.
Teresa asserts that Schnuelle had not chosen sides and that therefore, the court did not
give sufficient weight to the testimony regarding the children’s emotional and physical
development. Teresa argues Schnuelle had not indicated relocation is better or worse for the
-5-
children; she solely concluded communication between the parties is such that it is in the best
interests of the children to remain with Teresa.
Where 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 court heard and observed the witnesses
and accepted one version of the facts rather than another. Pohlmann v. Pohlmann, 20 Neb. App.
290, 824 N.W.2d 63 (2012).
The issue here is removal, not placement of custody between the mother and the father.
Teresa indicated she would be willing to stay in Nebraska if the court denied removal, and
accordingly, the court gave appropriate weight to Schnuelle’s testimony. The trial court’s
decision with regard to Schnuelle’s testimony is not an abuse of discretion.
(ii) Child’s Opinion and Preferences
The court concluded this factor weighed neither in favor of removal or in favor of denial
of removal, taking into consideration only the opinion and preferences of Abbie, as Megan
expressed her preference not to be interviewed by the court. The court found Abbie’s desires and
preferences were driven by the “sun, surf, sand and glamour of California,” rather than any
sound reasoning. The court noted Abbie’s repeated statements that she had not really thought out
in any detail the repercussions associated with her removal from the only state she had ever
known or lived in, and where Bradley and virtually every member of her extended family on
both sides will continue to live.
Though Abbie stated her desire to move to California with Teresa, Hill, and Hill’s sons,
she repeatedly stated that she had not considered various factors, including the impact of the
move on her relationships with Bradley, extended family, and friends in Nebraska. Upon a
review of the record, we find Abbie’s preference did not weigh for or against removal.
(iii) Enhancement of Custodial Parent’s Income,
Employment, and Economic Circumstances
The court concluded that Teresa’s desire to live in California is not motivated primarily
by economic enhancement, but it would likely provide the opportunity for expanded income if
she is able to secure employment as a teacher in Chula Vista.
Teresa provided evidence that at one point she had a potential job in Omaha, but that in
Superior she has fewer opportunities. In comparison, a teaching job for Teresa in California, in
addition to Hill’s income and military benefits, was determined to be an enhancement of income,
employment, and economic circumstances weighing in favor of removal.
Bradley disagreed with the court’s analysis, as Teresa quit a job paying $64,000 per year
in Grand Island in order to be closer to Hill when he lived in Omaha. Further, he asserts Teresa
did not attempt to obtain employment in Omaha or withdraw her resignation from her teaching
job in Grand Island after she found out Hill would be transferred.
We find the court correctly determined that compared to her current circumstances in
Superior, the move to California would enhance Teresa’s income, employment, and economic
circumstances.
-6-
(iv) Housing and Living Conditions
Teresa acquired the marital home as part of the parties’ dissolution. She sold the home,
and as a result, the living conditions for Teresa and the children in Superior are only temporary.
Teresa and Hill leased a “well appointed” home in Chula Vista, and the court determined it
appears comfortable, secure, and in a relatively upscale neighborhood with good schools.
The court determined that the Chula Vista home is clearly an improvement over the
temporary home in Superior and that it is unclear what housing or living conditions Teresa could
or would provide in Nebraska. The court determined this factor weighs slightly in favor of
removal, and we agree.
(v) Education Advantages
Teresa introduced a substantial amount of information on various school districts
available in Chula Vista. The court stated the schools appear to be excellent in terms of resources
and opportunities available to the children, but it is clear the children will also be in much larger
classes on much larger campuses. The court said it would be unfair to speculate on the resources
of any Nebraska schools to which Teresa would be expected to move and found this factor
weighs slightly for removal.
Teresa asserts the court erred in not giving the proper weight to the increased educational
advantages of schools in California. Bradley asserts the court erred in considering the statistics
provided for schools in Grand Island, as the children have not attended school there in the past
year. They attended schools in Superior for the 2011-12 year. Bradley also asserts the State of
California ranks lower in the nation in SAT test scores than Nebraska.
Upon a review of the evidence, we find the trial court did not err in either respect. Teresa
did not provide data regarding the schools the children currently attend. However, the court
recognized that, should Teresa stay in Nebraska, she may not stay in Superior or Grand Island,
and the court did not rely heavily on the Grand Island data. Further, the SAT scores are reflective
of the states as a whole and are not necessarily indicative of the Chula Vista school districts. The
Chula Vista schools will have ample resources and opportunities, as well as an expanded
offering of courses and extracurricular activities; this factor weighs slightly in favor of removal.
(vi) Quality of Relationship Between
Child and Parents
The court determined the children are well parented and have a strong relationship with
both parents, who are committed and loving. The court recognized that Abbie is currently
estranged to some degree from Bradley and that she has difficulty communicating with him. The
court determined this is not a result of any deficiency of Bradley’s parenting, but, rather, this is a
product of her age and her desire to move to California. A review of the record supports this
finding, as Abbie stated that Bradley is more protective and tended to get emotional or angry
when discussing the potential move to California with her. The court stated this factor weighs
neither in favor of removal or in favor of denial of removal, and we agree.
-7-
(vii) Ties to Community and Extended Family
The court determined Abbie and Megan have significant extended family in the Superior
and Grand Island areas, as well as other areas of Nebraska. Abbie stated she has a close
relationship with at least two members of her extended family and expressed that it would bother
her not to see them as often. The children have no extended family in California. The court also
considered the bonds Abbie and Megan have developed with Hill and his sons. The court
determined this factor weighed against allowing removal.
Teresa asserts the court did not give proper weight to the relationships formed between
Abbie, Megan, Hill, and his sons. She acknowledges that their relationship has been short term,
but that they have blended as a family.
A review of the evidence shows that while this may be true, Abbie and Megan have
significant and longstanding bonds with their extended family in Nebraska and ties to the
community in both Superior and Grand Island. Although they have lived in Superior for only a
year, they had prior ties to that community through their extended family, specifically their
grandfather. This factor weighs against removal.
(viii) Hostility Between Parties
The court stated that it is clear the parties are already antagonistic to each other and that
there are communication problems. Bradley feels misled by Teresa’s actions in first agreeing to
the parenting plan and soon after attempting to remove the children from Nebraska. The court
acknowledged that Teresa said she is willing to allow the children to return to Nebraska for
much, if not all, of the breaks from school. However, the court also noted that as the children
grow older, their involvement in activities and relationships with friends will affect their ability
to visit and will also require continuous communication between the parties. Ultimately, the
court found that it is likely removal will increase hostility between the parents, and this weighed
against removal.
(c) Impact on Noncustodial Parent’s
Relationship With Children
The trial court concluded that removal would significantly impact the relationship
between the children and Bradley. There would be a considerable reduction of “available face
time and, more importantly, a reduction in the opportunities that Bradley would have to see and
participate in the day to day activities and experiences of his children.” The court took into
consideration the fact that Bradley consistently exercised his visitation to the full extent
permitted by the parenting plan, despite the time and expense required to travel between Superior
and Grand Island.
Teresa asserts the trial court erred in calculating that Bradley averages 172 days per year
of parenting time, as “nearly all of them are for only 2 or 3 hours at a time.” Brief for appellant at
12. The record shows Bradley has time with the children every Monday and Wednesday and
every other weekend from Friday evening until Sunday evening. The court does not state that
these are 172 full days of parenting time, but, rather, that there are approximately that many days
during the year when the children have contact for a few hours or more with Bradley. The court
cites this number to illustrate that the number of days the children would be in contact with
-8-
Bradley would be significantly reduced if they relocate to California. The court’s reference to the
number of days Bradley is in contact with the children is not an abuse of discretion.
The court also considered the travel expenses Bradley would potentially incur if he were
to make several trips back and forth to California each year to exercise his parenting time. The
court determined Teresa’s proposed move would deprive Bradley of the parenting opportunities
he has now, and this factor weighed heavily against removal.
After a review of the record, we agree that the proposed move would significantly impact
Bradley’s relationship with his children and that the decision of the trial court was not an abuse
of discretion.
(d) Conclusion on Best Interests
The court determined the motives of the parties were neutral. In considering quality of
life factors, the court found that the enhancement of income for Teresa weighed in favor of
removal and that the educational opportunities and housing and living conditions both weighed
slightly in favor of removal. Alternately, the court determined the children’s ties to the
community and extended family, as well as the potential for increased hostility between the
parties due to the necessity for ongoing communication, weighed against removal. Finally, the
court stated it is difficult to reconcile the impact the move will have on the relationship of the
children with Bradley and extended family and found the balance tips in favor of denying
removal. Our review of the evidence did not indicate an abuse of discretion.
VI. CONCLUSION
The district court for Hall County found Teresa successfully showed a legitimate reason
to remove the children from the state, but determined it was not in the children’s best interests to
do so. Following a de novo review of the record, we find the court did not abuse its discretion
when it denied Teresa’s request to remove the parties’ children from the State of Nebraska.
AFFIRMED.
-9-