Schrag v. Spear ( 2014 )

Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 139
Cite as 22 Neb. Ct. App. 139
Ember M. Schrag, appellant, v.
Andrew S. Spear, appellee.
___ N.W.2d ___
Filed July 15, 2014. No. A-13-258.
1. Child Custody: Appeal and Error. Child custody determinations are matters ini-
tially entrusted to the discretion of the trial court, and although reviewed de novo
on the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Modification of Decree: Child Support: Appeal and Error. Modification of
child support payments is entrusted to the trial court’s discretion, and although,
on appeal, the issue is reviewed de novo on the record, the decision of the trial
court will be affirmed absent an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court bases its decision upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Child Custody. Ordinarily, custody of a minor child will not be modified unless
there has been a material change in circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such action.
5. Child Custody: Proof. The party seeking modification of child custody bears the
burden of showing a material change in circumstances.
6. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
7. Child Custody: Proof. Prior to the modification of a child custody order, two
steps of proof must be taken by the party seeking modification. First, the party
seeking modification must show a material change in circumstances, occurring
after the entry of the previous custody order and affecting the best interests of the
child. Next, the party seeking modification must prove that changing the child’s
custody is in the child’s best interests.
8. Child Custody. According to Neb. Rev. Stat. § 43-2923(1) (Cum. Supp. 2012),
the best interests of the child require a parenting arrangement which provides for
a child’s safety, emotional growth, health, stability, and physical care and regular
and continuous school attendance and progress.
9. ____. In addition to the statutory factors relating to the best interests of the child,
a court 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; parental capacity to provide physical care and satisfy educational needs
of the child; the child’s preferential desire regarding custody if the child is of
sufficient age of comprehension, regardless of chronological age, and when such
child’s preference is based on sound reasons; and the general health, welfare, and
social behavior of the child.
Decisions of the Nebraska Court of Appeals
140 22 NEBRASKA APPELLATE REPORTS
10. Modification of Decree: Child Custody. Not every change warrants a change
in custody. The best interests of the children are not served by constant custody
disputes and a shifting of custody control from one parent to the other.
11. Modification of Decree: Child Custody: Evidence: Time. Evidence of the cus-
todial parent’s behavior during the year or so before the hearing on the motion to
modify is of more significance than the behavior prior to that time.
12. Modification of Decree: Child Custody. In order to find that a material change
in circumstances has occurred in child custody determinations, the changes in
the parties’ circumstances must be significant enough to have affected the best
interests of the children involved.
13. Child Custody. In order to prevail on a motion to remove a minor child to
another jurisdiction, the custodial parent must first satisfy the court that he or
she has a legitimate reason for leaving the state. After clearing that threshold, the
custodial parent must next demonstrate that it is in the child’s best interests to
continue living with him or her.
14. ____. Legitimate employment opportunities for a custodial parent may constitute
a legitimate reason for leaving the state.
15. ____. Legitimate employment opportunities may constitute a legitimate reason
for leaving the state when there is a reasonable expectation of improvement in the
career or occupation of the custodial parent.
16. Child Custody: Visitation. In determining whether removal to another jurisdic-
tion is in the child’s best interests, the court considers (1) each parent’s motives
for seeking or opposing the move; (2) the potential the move holds for enhancing
the quality of life for the child and the custodial parent; and (3) the impact such
a move will have on contact between the child and the noncustodial parent, when
viewed in light of reasonable visitation.
17. Child Custody. The ultimate question in evaluating the parties’ motives in seek-
ing 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.
18. ____. In determining the potential that removal to another jurisdiction holds for
enhancing the quality of life of the child and the custodial parent, a court should
evaluate the following considerations: (1) the emotional, physical, and devel-
opmental needs of the child; (2) the child’s opinion or preference as to where
to live; (3) the extent to which the relocating parent’s income or employment
will be enhanced; (4) the degree to which housing or living conditions would
be improved; (5) the existence of educational advantages; (6) the quality of the
relationship between the child and each parent; (7) the strength of the child’s
ties to the present community and extended family there; and (8) the likelihood
that allowing or denying the removal would antagonize hostilities between the
two parties.
19. ____. The list of factors to be considered in determining the potential that
removal to another jurisdiction holds for enhancing the quality of life of the
parent seeking removal and of the child 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.
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 141
Cite as 22 Neb. Ct. App. 139
20. Rules of the Supreme Court: Child Support. The Nebraska Child Support
Guidelines provide that earning capacity may be considered in lieu of a par-
ent’s actual, present income when the circumstances merit. Earning capacity
may include factors such as work history, education, occupational skills, and
job opportunities.
21. Child Support: Evidence. Earning capacity should be used in determining a
child support obligation only when there is evidence that the parent can realize
that capacity through reasonable efforts.
22. ____: ____. When the evidence demonstrates that the parent is unable to realize
a particular earning capacity by reasonable efforts, it is clearly untenable for the
trial court to attribute that earning capacity to the parent for purposes of deter-
mining child support.
23. Child Support. A reduction in child support is not warranted when an obligor
parent’s financial position diminishes due to his or her own voluntary wastage or
dissipation of his or her talents and assets and a reduction in child support would
seriously impair the needs of the children.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Stephanie R. Hupp and Zachary L. Blackman, of McHenry,
Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O.,
for appellant.
Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellee.
Irwin, Moore, and Bishop, Judges.
P er Curiam.
Ember M. Schrag appeals from an order of the district court
for Lancaster County which modified custody of the parties’
daughter, Lillian Schrag, to award her father, Andrew S. Spear
(Andrew), primary physical custody; denied Ember’s applica-
tion to remove Lillian from Iowa to New York; removed a
visitation restriction on Ember’s adoptive mother; and ordered
Ember to pay child support based upon a prior earning capac-
ity. For the reasons that follow in our opinion below, we
reverse the modification of custody and the denial of Ember’s
application to remove Lillian to New York. However, we affirm
the removal of the visitation restriction on Ember’s adoptive
Decisions of the Nebraska Court of Appeals
142 22 NEBRASKA APPELLATE REPORTS
mother and the award of child support for the time that Lillian
has been in Andrew’s primary physical custody.
I. FACTUAL BACKGROUND
Ember and Andrew are the biological parents of Lillian,
who was born in November 2007. They were never married
and did not live together after Lillian was born. At the time
of Lillian’s birth, Ember resided in Lincoln, Nebraska, and
Andrew resided near Kansas City, Missouri. Ember filed a
paternity action in the district court for Lancaster County
on November 7, 2007, and a temporary order was entered in
March 2008, approving the parties’ stipulated agreement. The
agreement provided for Ember to have temporary custody of
Lillian subject to Andrew’s parenting time, which consisted
of every other Saturday in Lincoln. Andrew was also ordered
to pay child support. On January 21, 2009, the district court
entered a final order of paternity awarding Ember custody of
Lillian, subject to Andrew’s rights of parenting time set forth
in the parties’ parenting plan, and requiring Andrew to pay
Ember child support and half of her incurred childcare costs.
Andrew’s regular parenting time consisted of every third
weekend from 9 p.m. on Thursday until 9 p.m. on Tuesday,
together with holiday parenting time and summer parenting
time which began as two 1-week periods in 2009 and gradu-
ally increased each year, concluding with two 3-week periods
in 2012. Andrew provided all transportation for his parent-
ing time and was allocated a $100-per-month reduction in
his child support obligation, from $349 per month to $249
per month, because of this. A judgment of $330 per month
was also entered against Andrew to cover his share of child-
care costs.
Just over 2 weeks later, on February 6, 2009, in response
to an order to show cause filed by Ember on December 10,
2008, seeking payment for amounts due from Andrew under
the prior temporary order, the district court entered an order
adopting an agreement reached by the parties. That agreement
included a judgment of $2,085 owed by Andrew to Ember,
payable at $100 per month, with said judgment resolving child-
care costs owed by Andrew through January 30, 2009. Based
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 143
Cite as 22 Neb. Ct. App. 139
on this agreement, the previously entered order to show cause
was vacated.
On November 6, 2009, Ember again filed a motion for an
order to show cause, claiming that Andrew was behind in
child support by $797.27 and in childcare by $2,469.55 and
that he still owed $1,988.94 on the judgment entered in the
prior contempt proceeding. On December 18, a contempt order
was entered against Andrew, committing him to 30 days in the
Lancaster County jail, but which provided for a suspension of
the sentence as long as Andrew paid the amounts indicated in
the contempt order.
A little over a year later, in February or March 2011, Ember
moved with Lillian from Lincoln to Decorah, Iowa. She made
this move because she and Bryan Day, her boyfriend at the
time, were not in a good financial situation in Lincoln and
Day’s parents had offered them a free place to live in their
home in Decorah. In April 2011, Ember and Day married.
Ember claimed that during a telephone call with Andrew in
February, she requested permission from Andrew to move to
Decorah. She stated that Andrew seemed “very amicable” when
he told her, “‘I don’t care if you move anywhere in the world,
as long as I still get to see Lillian.’” Ember told Andrew that
he would need to sign modification papers, and she was under
the impression he was in agreement. He even agreed to change
the visitation exchange location to Des Moines, Iowa, and they
met in Des Moines on a couple of occasions. But when she
gave him the modification papers to sign during an exchange
in April (when Andrew was picking up Lillian for his parent-
ing time), he refused to sign the papers. And when he was
supposed to meet in Des Moines to return Lillian to Ember,
Andrew told Ember that he would no longer consent to meet in
Des Moines and that Ember would have to drive to Lincoln, a
7-hour drive for Ember, to pick up Lillian. About 1 hour before
the scheduled exchange time in Lincoln, Andrew texted Ember
that he would not be bringing Lillian back because he had been
given emergency custody of Lillian.
Andrew had filed an action to modify the paternity order
and sought emergency custody of Lillian. On April 26, 2011,
an order for ex parte custody was entered, awarding Andrew
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custody of Lillian pending a later temporary custody hear-
ing. On May 31, following the temporary custody hearing, the
court restored custody of Lillian to Ember. In that order, the
court noted that Andrew’s affidavit in support of the ex parte
custody order stated that Ember had moved without the court’s
approval and without Andrew’s consent or agreement. The
court then stated:
As a result of the most recent hearing where both par-
ties had an opportunity to present affidavits, that state-
ment turns out not to be the case. It is true that the court
has not approved the move. It is not true that the move
was made without [Andrew’s] consent. [Andrew’s] own
affidavit discloses that he knew of the move and agreed
to it.
The court also noted that “[Andrew’s] ex parte affidavit also
states that he did not know the whereabouts of his child from
January, 2011 to April 26, 2011. Again, following the hearing
where both parties had an opportunity to present evidence,
this proves not quite to be the fact.” The court then stated,
“These discrepancies are significant in that they formed the
basis for the need for ex parte action on the part of the court.”
The court concluded that the ex parte order “should not have
issued,” vacated the order, and restored custody of Lillian
to Ember.
On February 22, 2012, a modification order was entered
which approved a joint stipulation and parenting plan submit-
ted by Ember and Andrew and which granted Ember permis-
sion to move Lillian to Iowa. The parenting plan specified that
Ember and Andrew would share joint legal custody of Lillian
and stated that the parties “shall discuss educational, medical,
religious and social decisions concerning the parenting func-
tions necessary to raising the child. In the event of an impasse,
[Ember] shall have the final say; however, [Andrew] retains the
right to submit the issue to mediation or return to Court.” The
parenting plan also provided that the principal place of resi-
dence of Lillian during the school year would be with Ember.
Andrew was provided parenting time which included various
school breaks and holidays, together with all of the summer
break from school except for the first and last full weeks of
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 145
Cite as 22 Neb. Ct. App. 139
the summer break. It was agreed that the most effective way
to communicate regarding Lillian was for either parent to send
an e-mail to the other parent and to follow up with a telephone
call. The parties agreed to share transportation responsibili-
ties, and the record shows that they met in Des Moines for
parenting-time exchanges. The parties also included a provi-
sion in the plan stating that Ember’s mother by adoption, Cindy
Chesley, would not have any contact with Lillian unless such
contact was supervised by either party. The parties further
agreed to reside in the states of Nebraska, Missouri (including
the Kansas City metropolitan area), and Iowa unless otherwise
agreed to by the parties. The parties stated their intention for
Nebraska to maintain jurisdiction as the home state for Lillian.
Finally, the parties agreed that they “can temporarily change
the terms of this Plan as long as they both agree to it in writ-
ing,” but they also acknowledged that any permanent changes
to the plan required court approval before the change would
become binding and enforceable.
Lillian spent the summer of 2012 with Andrew, returning to
Ember on August 27, 2012. On that day, the parties met at the
agreed-upon location in Des Moines. They exchanged cordial
conversation, and no mention was made by Ember that she was
moving Lillian to New York that day. On August 30, Ember
notified Andrew in an e-mail that she had separated from Day.
(Ember’s divorce from Day was finalized when an Iowa dis-
trict court entered a decree of dissolution on September 6.) In
the August 30 e-mail, Ember also informed Andrew that Day
was her only connection to Iowa and that without him, there
was no reason to stay in Iowa. Ember explained that she had
“spent the summer working on the east coast and developing
a new support system in Philadelphia and New York City.”
Ember noted that she had “gotten an opportunity to move to
New York City that will greatly improve Lillian’s situation.”
The e-mail also noted:
Although this is the first you’re hearing of it, this is not
sudden, and it will be the best for Lillian. I’ll be in a
much better spot, better able to care for her and spend
time with her. We’ll be living in a very nice neighborhood
in [New York City].
Decisions of the Nebraska Court of Appeals
146 22 NEBRASKA APPELLATE REPORTS
Ember stated that because of New York’s age requirements
for school, Lillian would be starting kindergarten that fall,
and Ember included a list of schools that Lillian could attend.
Ember stated, “I’d appreciate your response regarding input
into her educational opportunities,” and then she provided
Internet links to a Montessori school, along with links to two
public schools—one school which Lillian would be automati-
cally “zoned” to attend based on where they would live and the
other school in a closer location where the children of several
of Ember’s friends attended. Since Lillian would be in school,
Ember noted that Andrew would no longer have to contribute
to childcare expenses. In the e-mail, Ember also stated that she
would pay for the travel expenses when Andrew had his par-
enting time, mentioned the “hugely increased cultural opportu-
nities available to Lillian,” and indicated that Lillian would be
attending a highly regarded dance school (Mark Morris Dance
Center). Andrew replied on September 1, saying only, “I do
not agree moving Lillian to New York is what’s best for her.”
Within the week, on September 7, he filed a complaint to mod-
ify, seeking a change in custody of Lillian. On September 20,
Ember filed an answer and counterclaim, wherein she sought
the court’s permission to move Lillian to New York. That same
day, Ember also filed a motion for order to show cause assert-
ing that Andrew was willfully refusing to pay ongoing child-
care costs in the amount of $7,758.91, a childcare judgment
for $962.35, and an attorney fee judgment of $600. An order
to show cause was issued on January 4, 2013, showing that the
contempt matter would be heard on February 11, the same day
the matter was scheduled for trial.
On February 11, 2013, trial was held on Andrew’s com-
plaint and Ember’s counterclaim. Ember, age 27 at the time
of trial, is a folk singer. During the summer of 2012, while
Lillian was with Andrew and in light of her separation from
Day, Ember was looking for a new living arrangement and
support system either in Philadelphia, Pennsylvania, or New
York City, New York. Since she and Day had been living
with Day’s parents, she could no longer stay there, and she
had no other family or friends in Decorah. Ember did not
consider moving back to Nebraska because the only family
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 147
Cite as 22 Neb. Ct. App. 139
there was her adoptive mother, Chesley (who lived in North
Platte, Nebraska), and Ember had been estranged from her
for 2 years. Ember believed Philadelphia and New York City
seemed to offer the best options, so for part of the summer, she
was “housesitting in Philadelphia,” while she also engaged in
musical opportunities. She had a Philadelphia record label put
out her second full-length album, and she had a lot of friends
with whom she could collaborate musically, so she also played
several shows while there. In considering Philadelphia as a
possible place to live, Ember evaluated neighborhoods. She
had many people tell her that the public schools were not very
good, which was also in the news. Ember noted that the “rent
wasn’t as expensive there as some places,” but that it “just
didn’t feel as safe to me.”
Ember ultimately decided to move to New York. Although
Ember has no family in the New York area, she had many
musician friends there, and she believed that New York would
enhance Lillian’s quality of life. The educational opportuni-
ties were significant, and Ember was going to be able to
spend more time with Lillian than ever before. Ember stated,
“I’m really happy to be able to pick her up every day, and I
feel more relaxed because I’m in a supported place where I
can work on my music in a way that doesn’t take me away
from her.”
From the end of August 2012 until the district court’s order
in February 2013, Ember and Lillian resided with Robert
Bannister in his two-bedroom apartment in New York City.
Ember and Bannister share one of the bedrooms while Lillian
has her own bedroom. Ember met Bannister in March 2011
at a concert. She reconnected with Bannister at a concert in
Chicago in May 2012 and began a romantic relationship with
him about a month later.
At the time of trial, Bannister was 52 years old and was
the director of the quality assurance department at an edu-
cational software development company. Bannister had been
estranged from his second wife for 5 years, but was not
yet legally divorced. He testified that he still supported his
second wife by paying certain bills for her. Bannister had a
son studying science at a college north of New York City.
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Bannister shared custody of his son, who, prior to college,
resided with Bannister rather than his mother during the week
because Bannister’s apartment was closer to his high school.
When Bannister’s son occasionally visits from college, he and
Lillian enjoy interacting with each other, including doing sci-
ence experiments together.
Ember conceded at trial that she is dependent on Bannister
to provide Lillian and her with a place to live, but was ada-
mant that her relationship with him did not show any signs of
instability. Bannister also testified that he did not anticipate
his relationship with Ember would terminate in the foresee-
able future.
Since moving to New York, Ember has essentially become
a stay-at-home mother caring for Lillian. Ember testified that
while Lillian is at school or asleep, Ember works on composi-
tion, rehearsal, and promotion of her music career. During the
fall of 2012, Ember traveled to other cities to perform shows
and was away from home for only two to three evenings, dur-
ing which time Bannister cared for Lillian. Ember testified
that New York has been beneficial for her career as a musician
because she can perform at night while Lillian is sleeping and
these performances have more impact on her career.
According to Ember, Lillian did not have much difficulty
adjusting to life in New York. Ember described Lillian as
outgoing, extroverted, creative, friendly, smart, and confident.
Ember indicated that Lillian seems to be comfortable, secure,
and happy in New York. Lillian was able to begin kindergar-
ten at a nearby school, and she has generally done well at
school. Lillian participates in afterschool programs, including
science and music. Lillian attends a creative dance class, and
a music instructor comes to their home to give Lillian violin
lessons. Letters from her violin teacher and dance instruc-
tor were received into evidence and highlighted Lillian’s
budding abilities. Additionally, Ember presented evidence
to suggest that Lillian has developed a strong relationship
with Bannister.
Testimony from Ember, Bannister, and a friend and neigh-
bor of Bannister was received concerning the neighborhood
they live in and about Ember’s care of Lillian. Various
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Cite as 22 Neb. Ct. App. 139
photographs of the area were received in evidence. The area
is residential with many different types of old buildings, and
there are playgrounds and parks nearby. Bannister’s friend
described the neighborhood as “family oriented.” None of
these individuals had any concerns about the neighborhood
with respect to criminal activity or violence. The building that
Bannister lives in has a security doorman. Bannister’s friend’s
youngest daughter and Lillian are close in age, and he sees
Lillian and Ember nearly every day before and after school.
He has no concerns about Ember’s parenting. He testified
that Bannister is protective of Lillian and that their home is a
supportive environment for Lillian’s creativity. Ember walks
Lillian to and from school every day. According to Ember,
Lillian has friends through school and in the neighborhood.
Ember takes Lillian to the nearby playground, parks, and
museums. Ember helps Lillian with her homework, cooks the
meals, bathes her, and reads to her, and they sing and play
instruments together. Bannister engages in and assists with
many of these activities.
Ember does not believe that physical custody of Lillian
should be modified, because Ember has always been Lillian’s
primary caregiver and because a change in custody would cause
serious disruption. Although the record shows that Andrew was
current on child support at the time of the modification hear-
ing, Ember also questioned whether Lillian was a priority for
Andrew, since he had not regularly paid his child support in
the past. Ember was also concerned about Andrew’s contact
with Chesley.
Andrew married his wife, Holly Spear, in October 2010.
They have a son who was nearly 2 years old at the time of
trial, and they were expecting another baby boy due to be born
in June 2013. Andrew works as a restaurant general manager
for a franchisee of a pizza restaurant. He testified at trial that
he was training to become an area manager. Andrew typically
works Monday through Saturday, from 8 a.m. to 6 p.m. On
Sundays, he and his family attend church together. Andrew
earns 3 weeks of vacation each year, which he typically takes
in the summer when Lillian is with him. Holly also works at
a restaurant, and she testified that she will be changing her
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hours to 9 a.m. to 3 p.m. so that she is available to take Lillian
to and from school. Currently, Andrew’s aunt provides daycare
in her home for Andrew and Holly’s son at no charge, and she
will also do so for both Lillian and the new baby.
Andrew and Holly are currently renting a home in Liberty,
Missouri, and are working toward being able to purchase a
home. Photographs of their home were received in evidence,
in addition to the public school that Lillian would attend and a
nearby park. Andrew testified that Lillian is comfortable in his
home and that the consistency he provides to Lillian is good
for her.
Andrew has many relatives in the Kansas City area, includ-
ing his parents, grandmother, brother, aunts and uncles, and
numerous cousins. Lillian has several cousins near her age
that she enjoys getting together with. Lillian also has friends
in Andrew’s neighborhood that she plays with. Andrew and
Holly testified about some of the activities that they do with
Lillian, including crafts, going to museums, and working with
flashcards. Andrew and Holly both testified to having a close
relationship with Lillian.
Chesley has been visiting Lillian at Andrew’s home under
his supervision since the previous court order. Chesley testi-
fied to her observations of the interaction between Andrew and
Lillian. She indicated that Andrew is very tender with Lillian
and that there is a lot of cuddling between the two. Chesley
believes that Lillian feels safe with Andrew and respects him.
According to Chesley, Andrew is firm and there are clear rules
in his home, Andrew is very engaged with Lillian, and Lillian
has a close relationship with her half brother. Chesley testified
regarding concerns that she had about Ember’s care of Lillian,
but she has not been able to observe the relationship since
Chesley and Ember’s estrangement in early 2011. Chesley
admitted that she has paid a portion of Andrew’s attorney fees
in connection with this proceeding and that she had previously
assisted Ember with her attorney fees.
Andrew believes that Lillian’s best interests require a change
of custody. Andrew testified regarding his concerns about
Ember’s parenting, the move to New York, and the new rela-
tionship with Bannister. Specifically, he indicated, “I don’t
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 139
think [New York City] is the neighborhood that I want my
daughter growing up in.” He also pointed to the instability in
Lillian’s life over the last couple of years with the frequent
moves and changes of significant people in her life. Andrew
testified that the “nomadic life” is not good for Lillian. Andrew
highlighted the stability that he has had in his family life—he
has lived and worked in the same area for several years and has
regularly exercised the parenting time provided to him by the
various orders.
On February 27, 2013, the district court entered its order
denying Ember’s request for removal and modifying custody
of Lillian to Andrew. In its order, the court found that Ember
did not have a legitimate motive to move to New York and
that removal was not in Lillian’s best interests. In granting
Andrew’s modification request, the court noted that this change
in custody was going to be another abrupt change in Lillian’s
life, but believed that this change would stop the pattern of
sudden, dramatic changes. The court also lifted the supervised
contact restriction on Chesley, revised the parties’ child support
obligations, and indicated that the parties had reached an agree-
ment on the contempt matter.
Ember filed a motion for a new trial. The district court
denied this motion, but issued an amended order on March 18,
2013. Ember appeals from this order.
II. ASSIGNMENTS OF ERROR
Ember assigns and argues four errors. She alleges, sum-
marized, restated, and reordered, that the district court erred
in (1) modifying custody, (2) denying her application to
remove Lillian to New York, (3) removing the requirement that
Chesley’s visitation with Lillian be supervised, and (4) calcu-
lating her child support obligation.
III. STANDARD OF REVIEW
[1] 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 discretion.
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
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152 22 NEBRASKA APPELLATE REPORTS
[2] Modification of child support payments is entrusted to
the trial court’s discretion, and although, on appeal, the issue
is reviewed de novo on the record, the decision of the trial
court will be affirmed absent an abuse of discretion. Pearson v.
Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013).
[3] An abuse of discretion occurs when a trial court bases its
decision upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Watkins v. Watkins, supra.
IV. ANALYSIS
1. Modification of Custody
Ember argues that the district court erred when it determined
that Andrew should be awarded primary physical custody of
Lillian. She claims that there has been no material change in
circumstances and also believes that a change in custody is not
in Lillian’s best interests.
[4-6] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best inter-
ests of the child require such action. Id. The party seeking
modification of child custody bears the burden of showing a
material change in circumstances. State on behalf of Savannah
E. & Catilyn E. v. Kyle E., 21 Neb. Ct. App. 409, 838 N.W.2d 351
(2013). A material change in circumstances means the occur-
rence of something which, had it been known to the dissolution
court at the time of the initial decree, would have persuaded
the court to decree differently. Heistand v. Heistand, 267 Neb.
300, 673 N.W.2d 541 (2004).
[7] Prior to the modification of a child custody order, two
steps of proof must be taken by the party seeking modifica-
tion. First, the party seeking modification must show a material
change in circumstances, occurring after the entry of the previ-
ous custody order and affecting the best interests of the child.
Next, the party seeking modification must prove that changing
the child’s custody is in the child’s best interests. Adams v.
Adams, 13 Neb. Ct. App. 276, 691 N.W.2d 541 (2005).
[8,9] According to Neb. Rev. Stat. § 43-2923(1) (Cum.
Supp. 2012), the best interests of the child require a parenting
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arrangement which provides for a child’s safety, emotional
growth, health, stability, and physical care and regular and
continuous school attendance and progress. Donscheski
v. Donscheski, 17 Neb. Ct. App. 807, 771 N.W.2d 213 (2009).
Section 43-2923(6) states:
In determining custody and parenting arrangements, the
court shall consider the best interests of the minor child,
which shall include, but not be limited to, consideration
of the foregoing factors and:
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member. . . . and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
In addition to the statutory factors relating to the best interests
of the child, a court 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; parental
capacity to provide physical care and satisfy educational needs
of the child; the child’s preferential desire regarding custody if
the child is of sufficient age of comprehension, regardless of
chronological age, and when such child’s preference is based
on sound reasons; and the general health, welfare, and social
behavior of the child. Smith-Helstrom v. Yonker, 249 Neb. 449,
544 N.W.2d 93 (1996).
[10] The Nebraska Supreme Court has explained that not
every change warrants a change in custody and that “[t]he best
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interests of the children are not served by constant custody
disputes and a shifting of custody control from one parent
to the other.” Hoschar v. Hoschar, 220 Neb. 913, 915, 374
N.W.2d 64, 66 (1985), disapproved on other grounds, Parker
v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989). The Hoschar
court further stated that a decree fixing custody should not be
modified “unless there has been a change of circumstances
indicating that the person having custody is unfit for that
purpose or that the best interests of the children require such
action.” Id.
[11] Nebraska courts have also held that evidence of the cus-
todial parent’s behavior during the year or so before the hear-
ing on the motion to modify is of more significance than the
behavior prior to that time. Hoins v. Hoins, 7 Neb. Ct. App. 564,
584 N.W.2d 480 (1998) (citing Kennedy v. Kennedy, 221 Neb.
724, 380 N.W.2d 300 (1986), and Hassenstab v. Hassenstab, 6
Neb. Ct. App. 13, 570 N.W.2d 368 (1997)).
The focus is on the best interests of the child now and
in the immediate future, and how the custodial parent
is behaving at the time of the modification hearing and
shortly prior to the hearing is therefore of greater signifi-
cance than past behavior when attempting to determine
the best interests of the child.
Hoins v. Hoins, 7 Neb. Ct. App. at 569, 584 N.W.2d at 484.
In Kennedy v. Kennedy, supra, a district court modified
custody from a mother to a father based on evidence that after
the divorce, the mother had at different times cohabitated
with two men to whom she was not married. The Nebraska
Supreme Court reversed that decision. The Kennedy court
pointed out that the mother had lived with her current husband
for about 6 months prior to marrying him and that “[a]side
from the fact that the parties lived together without first mar-
rying, there is no evidence to indicate that the children were
in any other way adversely affected by the relationship.” 221
Neb. at 726, 380 N.W.2d at 302. In evaluating whether there
had been a material change of circumstances for the district
court to change custody, the Kennedy court concluded that
other than the fact that the mother had at different times lived
with three men at times she was not married to any of them,
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there had been no significant material change in circum-
stances. The court also concluded that there was no evidence
that the children were in any manner adversely affected by
the living arrangements or exposed to any sexual activity. The
Kennedy court stated:
Where, as here, the evidence discloses that although the
mother may have engaged in sexual activity with men
not her husband when the children were home, absent
a showing that the children were exposed to such activ-
ity or were in any manner damaged by reason of such
activity, such sexual activity does not justify a change
in custody.
221 Neb. at 727, 380 N.W.2d at 303. The Kennedy court also
pointed out that just because the father now has a more stable
home than at the time of the original order does not justify
removing the children from the mother, noting that “‘[t]he best
interests of the children are not served by constant custody
disputes and a shifting of custody control from one parent to
the other. Rather, to the extent we can, we should attempt to
provide some sense of stability for the children.’” Id. at 728,
380 N.W.2d at 303.
In Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d
93 (1996), a trial court modified custody of a child from the
mother to the father. The Nebraska Supreme Court reversed
that decision. Among other issues in that case, the mother
admitted she had violated a provision of the dissolution decree
which prohibited her from cohabitating with men not her hus-
band. The Smith-Helstrom court noted:
[V]iolation of a court decree is unquestionably a serious
matter. But it is the best interests of the son which must
be our paramount concern. While it is true that evidence
concerning the moral fitness of the parents, including
sexual conduct, can be considered as a factor in determin-
ing a child’s best interests, . . . absent a showing that the
mother’s cohabitation adversely affected her son, we do
not give this factor much weight.
249 Neb. at 460, 544 N.W.2d at 101 (citation omitted).
Of significance in our review of the district court’s February
27, 2013, order in this case is its decision to consider a
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number of matters occurring before the previous custody
order was entered just a year earlier on February 22, 2012,
as well as its decision to conduct an analysis on the removal
issue before addressing the modification of custody issue.
After concluding that Ember “has failed to carry the burden
of establishing that moving Lillian to New York City is in
Lillian’s best interest,” the trial court then addressed Andrew’s
request to change custody, noting that it was Andrew’s burden
to establish a material change in circumstances. Without pro-
viding any details, the trial court stated, “The court concludes
that Andrew has met this burden. There has been a material
change in circumstances since the last modification.” The trial
court then proceeded to analyze the best interests of the child,
stating, “Ember’s conduct as described above has been con-
sidered in reaching this decision to change custody. Further
discussion of those facts is unnecessary.” The trial court then
proceeded to discuss the evidence adduced about Andrew and
his wife, Holly.
[12] There is nothing in the record to indicate that in
the year between the February 2012 custody order and the
February 2013 custody order, there was any material change
in circumstances adversely affecting Lillian’s best interests.
While it can be argued that Ember’s decision to move to New
York to live with Bannister after her divorce from Day might
constitute a change in circumstances, there is no evidence to
support that these changes had any adverse impact whatsoever
on Lillian. In fact, there was substantial evidence to indicate
that Lillian was flourishing in her new environment. However,
the trial court elected to avoid consideration of that evidence,
stating, “There was considerable evidence about Lillian’s life
in New York City. That evidence is, of course, relevant only
if the court determines that the move is justified.” The trial
court then proceeded to first discuss the removal of Lillian
from Iowa to New York, rather than to first evaluate whether a
material change in circumstances affecting Lillian’s best inter-
ests had occurred that would warrant a change in custody. The
trial court did not consider Lillian’s relationship with Ember,
nor how happy and thriving Lillian appeared to be when she
was with Ember; rather, the trial court focused more on the
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fact that Ember moved without permission and viewed her
lifestyle as less stable than Andrew’s. However, not every
change in the parties’ circumstances justifies a change in cus-
tody. See Youngberg v. Youngberg, 193 Neb. 394, 227 N.W.2d
396 (1975). Instead, in order to find that a material change in
circumstances has occurred, the changes in the parties’ circum-
stances must be significant enough to have affected the best
interests of the children involved. See id.
In this case, the trial court essentially based the change in
custody on Ember’s failure to obtain Andrew’s and/or the trial
court’s permission to move before actually moving to New
York. The trial court stated:
Ember’s email has been demonstrated to be nothing more
than a rather blatant effort at manipulation. . . . Had
Ember truly cared for Andrew’s input she would have
been honest about her desire to move to New York City
three months earlier and given him an opportunity to
truly consider possible schools. . . . Ember’s actions were
designed to prevent Andrew from seeking a court decision
in advance of the move.
Although there is no doubt that an earlier discussion of a
desire to move to New York City would have put Ember in
a more favorable light, Ember’s testimony that she waited
until Lillian was back in her care before telling Andrew about
moving to New York, based on “what happened the last time
I requested permission to move out of state,” was understand-
able in light of Andrew’s filing for ex parte emergency custody
the last time she talked to him about moving (to Iowa). And in
fact, in this case, upon sending the e-mail on August 30, 2012,
rather than responding or attempting to discuss the matter in
any manner, Andrew filed a lawsuit to change custody within
the next week.
In Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93
(1996), the Nebraska Supreme Court considered the mother’s
violation of a provision of the dissolution decree which pro-
hibited her from cohabitating with men not her husband and
concluded that absent a showing that the violation (cohabita-
tion) adversely affected her child, it would not give that factor
much weight. We agree with the Smith-Helstrom court that
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a violation of a court order is a serious matter, but that our
paramount concern must be the best interests of Lillian. There
is no evidence to indicate that Lillian was adversely impacted
by the move to New York in any way; in fact, all of the evi-
dence shows that Lillian was doing well in school, had a lot
of friends to play with, was happy with the people around her
and her activities, and was “calm and secure and happy.” Her
reading had improved, she was in afterschool programs for sci-
ence and singing, and she was attending creative dance class at
Mark Morris Dance Center. According to Ember, Lillian’s apti-
tude for dance was shown in Decorah, where a teacher there
recommended private lessons. Upon moving to New York City,
Ember enrolled Lillian at Mark Morris Dance Center and walks
Lillian and a friend to class every Wednesday. Ember also
enrolled Lillian in music lessons from a violinist/composer,
who comes to Ember’s home once a week to give violin and
piano lessons and to also teach music theory.
The evidence presented at the modification hearing revealed
that despite the moves in Ember’s life, Lillian is generally a
happy, healthy, and well-adjusted young child. Her mother’s
musical influence can be seen in Lillian’s preference for lis-
tening to Beethoven’s Violin Concerto in D during breakfast
before school. According to Bannister, Lillian resists almost
any other suggestion for breakfast music and they respect
Lillian’s preference for a melodic keyboard composition at
bedtime. There is no cable television in Bannister’s apartment,
and Ember limits Lillian’s time that “she can watch a DVD or
be on the PBS Kids site” on the computer to weekend morn-
ings only. At the time of the hearing, Ember had been Lillian’s
primary caregiver for over 5 years, during which time Lillian
by all accounts has thrived. As discussed previously, since the
move to New York, Lillian has done well in kindergarten and
has begun music and dance lessons. Andrew did not present
any specific evidence that the changes in Ember’s life have had
a negative impact on Lillian.
It is clear from the record that both parents love Lillian and
that they have each generally provided for her safety, health,
and physical care. Lillian appears to have a close relationship
with both parents, and there is no evidence of abuse inflicted
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by either parent. These facts have not changed since the entry
of the previous order. While Andrew presented evidence of
his greater stability than Ember with respect to his residence,
family, and employment, such evidence in itself is insufficient
to justify a change in custody. As set forth in Kennedy v.
Kennedy, 221 Neb. 724, 380 N.W.2d 300 (1986), just because
a parent now has a more stable home than at the time of the
original order does not justify changing custody. Stability in
this case required leaving Lillian in Ember’s primary care
where she had been for more than 5 years prior; stability
should not be based solely upon a parent’s relocation. If that
were the case, custodial parents who have to move due to
business, military, or other such transfers would be subject
to constant modification actions because of relocations man-
dated by their jobs. It is particularly unfair in this case to
remove Lillian from Ember’s primary care when Ember has
now found a way to be at home with Lillian more while still
having opportunities to advance her music career. Looking at
the best interests factors listed in § 43-2923(6), the factors
relevant in this case are subsections “(a) [t]he relationship
of the minor child to each parent prior to the commence-
ment of the action or any subsequent hearing” and “(c) [t]he
the general health, welfare, and social behavior of the minor
child.” There is absolutely no evidence to suggest that Ember
and Lillian have anything but a loving and healthy parent-
child relationship or that Lillian is lacking in proper parental
care. After reviewing the record, although the move to New
York may constitute a change in circumstances occurring
since the last custody order, Andrew has failed to establish
that those changes had any adverse impact on Lillian’s best
interests or that her best interests warrant a change in custody.
Accordingly, we find that the district court abused its discre-
tion in modifying Lillian’s primary physical custody from
Ember to Andrew.
2. Denial of Application to R emove
Lillian to New York
[13] In order to prevail on a motion to remove a minor child
to another jurisdiction, the custodial parent must first satisfy
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the court that he or she has a legitimate reason for leaving the
state. After clearing that threshold, the custodial parent must
next demonstrate that it is in the child’s best interests to con-
tinue living with him or her. McLaughlin v. McLaughlin, 264
Neb. 232, 647 N.W.2d 577 (2002); Colling v. Colling, 20 Neb.
App. 98, 818 N.W.2d 637 (2012).
This case presents an unusual factual situation as it relates
to the removal jurisprudence. While the Nebraska court has
continued to exercise jurisdiction in this case (with the par-
ties’ agreement), neither parent resides in Nebraska. Ember
previously resided in Nebraska but was granted permission
to move to Iowa in the last modification order, and she now
resides in New York. Andrew has never resided in Nebraska;
rather, he has continuously resided in the Kansas City area
since the inception of this action. Without acknowledging the
unusual factual scenario in this case, the district court applied
the above test for removal and concluded that Ember’s appli-
cation to remove Lillian should be denied. However, the
court did not apply the entirety of that test in its order. Our
review shows that the court’s order omits analysis of the
first factor—whether Ember had a legitimate reason to leave
the state.
On appeal, Ember questions whether this part of the test
should even apply to her case. She notes in her brief that the
requirement for her to establish a legitimate reason for leav-
ing the state may not apply in this case because of the “large
geographic distance that already existed between the parties”
while she lived with Lillian in Iowa and Andrew lived in
Missouri. Brief for appellant at 21. Ember further argues that
there should be no need for her to prove a legitimate reason
to move from a state in which the noncustodial parent does
not reside.
We note that the above test for removal was first established
by the Nebraska Supreme Court in Farnsworth v. Farnsworth,
257 Neb. 242, 597 N.W.2d 592 (1999). Since its inception,
this test has been applied to numerous cases. Although many
of these applications have occurred in situations in which both
parents were residing in Nebraska, this court has held that the
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test from Farnsworth applies when a court considers a cus-
todial parent’s request for permission to make a subsequent
move to yet another state. Maranville v. Dworak, 17 Neb.
App. 245, 758 N.W.2d 70 (2008). In addition, the Nebraska
Supreme Court recently considered the Farnsworth analysis
in a situation where the noncustodial parent did not reside
in Nebraska but nevertheless sought to prevent the custodial
parent from relocating from Nebraska to Texas. See Steffy
v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014) (relocation
denial by district court upheld under plain error analysis). In
Steffy, the Nebraska Supreme Court chose not to address the
threshold question of whether the custodial parent had a legiti-
mate reason to relocate, because its holding on best interests
was dispositive. Nonetheless, Nebraska appellate courts have
not considered whether this test (in particular the existence of
a legitimate reason to relocate) should be applied in the present
factual scenario—when neither parent lives in this state and
the noncustodial parent is attempting to prevent the custodial
parent’s subsequent move to another state.
Having reviewed the facts of this case and the applicable
law, we agree with Ember that this case does not present the
traditional application of Farnsworth. However, we need not
determine whether the test should be different in this case,
because we conclude that application of the Farnsworth test,
in its current form, would not alter the ultimate outcome of the
case. Applying the Farnsworth test in its entirety, we conclude
the district court erred when it denied Ember’s application to
remove Lillian.
(a) Legitimate Reason to Leave State
Ember testified that in light of her separation from Day
in June 2012, she no longer had a home in which to live
in Decorah, where she and Day had been living with Day’s
parents. Ember had been working two part-time jobs in
Decorah, neither of which were career-related jobs. She did
not consider moving back to Nebraska because the only fam-
ily remaining there was Chesley, her adoptive mother, from
whom she had been estranged for 2 years. Although she had
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friends in Lincoln, Ember decided Philadelphia or New York
City seemed to be the best options for her and Lillian. After
spending some time in Philadelphia and having a Philadelphia
record label put out her second full-length album, Ember
learned the schools there were not very good, whereas she
understood the New York public schools were “some of the
best in the country.” Ember also had many musician friends
in New York who had children, and after she and Bannister
started a romantic relationship in the summer of 2012, they
discussed Ember’s moving in with him. While concerns about
Ember’s living with and being supported by a man not yet
divorced from his estranged wife are understandable, we do
not see these concerns as a basis to conclude that her request
to move to New York was illegitimate. Rather, in our opin-
ion, the focus should be on whether it was legitimate for
Ember to seek to move from Iowa to New York. We conclude
that Ember’s reasons to move to New York were legitimate,
because they were based on her desire to continue enhancing
her music career while also making more time to be at home
with Lillian.
[14,15] Legitimate employment opportunities for a custo-
dial parent may constitute a legitimate reason for leaving the
state. Rosloniec v. Rosloniec, 18 Neb. Ct. App. 1, 773 N.W.2d
174 (2009); Wild v. Wild, 15 Neb. Ct. App. 717, 737 N.W.2d 882
(2007). Such legitimate employment opportunities may consti-
tute a legitimate reason when there is a reasonable expectation
of improvement in the career or occupation of the custodial
parent. Id. Ember testified that the move to New York would
be beneficial for her music career because she can accomplish
more in New York than she could have in Iowa and because
her performances in New York have had “a lot more impact”
for her career.
In Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000),
the mother requested to move from Nebraska to Pittsburgh,
Pennsylvania, because she had extended family there and also
believed that she could enhance her employment opportuni-
ties. As it turned out, she earned less money in Pittsburgh,
but there was greater potential for salary advancement at the
Pittsburgh job. The mother testified that there was also less
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overtime required of her in Pittsburgh, which in turn allowed
her to spend more time with the children. The Nebraska
Supreme Court concluded that there was sufficient evidence
that although the mother’s Pittsburgh job did not pay as well
as her prior Nebraska job, the mother had a reasonable expec-
tation for improvement in her career. The same can be said in
the instant case for Ember’s expectations of career opportuni-
ties and advancement in New York versus Iowa. Ember testi-
fied that living in Iowa required her to be gone for extended
overnights in order to do performances, while maintaining that
performances and music opportunities in New York did not
require her to be gone overnight and that the “shows that I do
play have a lot more impact for me.”
In Kalkowski v. Kalkowski, 258 Neb. 1035, 1046, 607 N.W.2d
517, 526 (2000), the Nebraska Supreme Court concluded a
mother’s wish to relocate to Canada to be near extended fam-
ily and to pursue educational and employment opportunities
there were legitimate even though the mother “did not investi-
gate educational opportunities in Nebraska and conducted only
a limited investigation of employment opportunities in this
state.” In Ember’s case, she specifically testified to the advan-
tages of pursuing her career in New York over staying in Iowa,
where she worked two jobs not related to her music career and
had to be away for extended overnights in order to perform.
Ember’s reasonable expectation of improvement in her music
career by moving to New York is a legitimate reason to request
to move there.
Because we conclude a legitimate reason exists for the
move, it is not necessary to address Ember’s argument that
this factor need not be considered in light of the fact that both
parties live in separate states outside of Nebraska. Accordingly,
the next analysis is whether it is in Lillian’s best interests to
continue living with Ember in New York.
(b) Best Interests
[16] In determining whether removal to another jurisdic-
tion is in the child’s best interests, the court considers (1)
each parent’s motives for seeking or opposing the move; (2)
the potential the move holds for enhancing the quality of
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164 22 NEBRASKA APPELLATE REPORTS
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 light of reasonable
­visitation. McLaughlin v. McLaughlin, 264 Neb. 232, 647
N.W.2d 577 (2002).
(i) Each Parent’s Motives
[17] 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. McLaughlin v.
McLaughlin, supra; Colling v. Colling, 20 Neb. Ct. App. 98, 818
N.W.2d 637 (2012).
The record shows that Ember sought removal after she
divorced Day and could no longer reside with Day’s parents
in Iowa. Ember was in a position where she had to move
from her residence in Iowa and needed to make decisions
about relocation. After considering Philadelphia and New York
City, she decided New York was the best location based on
career opportunities for herself and educational and cultural
opportunities for Lillian. Ember offered to pay for Lillian’s
travel costs in order for Andrew to maintain the same level of
parenting time. Ember’s delay in notifying Andrew about mov-
ing to New York and her failure to get court approval first are
discussed in the custody portion of the opinion and will not be
repeated here. The trial court’s statement, “Ember’s motive in
making the move is unclear,” is not supported by the evidence.
Rather, the evidence showed that she could no longer live with
Day’s parents and that her reasons for selecting New York as
a point of relocation were reasonable given her aspirations as
a musician. Andrew opposed this move, stating, “I don’t think
[New York City] is the neighborhood that I want my daughter
growing up in,” and he also had concerns about Ember’s mov-
ing from place to place and the “inconsistencies of living a
nomadic life.”
We conclude that neither party in this case acted in a way to
intentionally frustrate or manipulate the other. Little weight is
attributed to this factor.
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(ii) Potential for Enhancing
Quality of Life
[18,19] In determining the potential that removal to another
jurisdiction holds for enhancing the quality of life of the child
and the custodial parent, a court should evaluate the following
considerations: (1) the emotional, physical, and developmental
needs of the child; (2) the child’s opinion or preference as to
where to live; (3) the extent to which the relocating parent’s
income or employment will be enhanced; (4) the degree to
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 fam-
ily there; and (8) the likelihood that allowing or denying the
removal would antagonize hostilities between the two parties.
Dragon v. Dragon, 21 Neb. Ct. App. 228, 838 N.W.2d 56 (2013).
See McLaughlin v. McLaughlin, supra. 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 vari-
ously weighted. Dragon v. Dragon, supra. See McLaughlin v.
McLaughlin, supra.
a. Emotional, Physical, and Developmental
Needs of Child
Having reviewed the record, we conclude this factor weighs
quite heavily in favor of removal. The trial court found that
Ember’s “repeated moving among relationships and geographic
areas is not beneficial to Lillian’s emotional or developmen-
tal needs” and that “[t]his particular move was done without
sufficient recognition of the emotional impact on Lillian.”
However, the trial court also acknowledged:
There is evidence that Lillian’s development in musical
areas may be enhanced by this move. In New York City
she is surrounded by cultural influences which would
be beneficial to her upbringing. It is certainly beneficial
that she is surrounded by people who are not glued to a
television set.
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The trial court did not indicate if the weighting tipped one way
or the other after indicating both negative and positive reasons
related to this factor. We note that Lillian had primarily lived
with Ember for all of her life and that all evidence pointed to
Lillian’s being a very well-adjusted, happy, and creative child.
When considering the best interests of a child, in our opinion,
the emotional and developmental stability of the child should
not be determined solely or primarily by where they are liv-
ing or the number of times they may have to move; rather,
these factors are primarily influenced by the relationships with
people involved in the child’s life, most of all familial relation-
ships, but also friends, schoolmates, teachers, and other regular
contacts in that child’s life. In this case, all of the evidence
indicated a happy and outgoing child doing well in school and
in her music and dance activities. This evidence all points to
her emotional, physical, and developmental needs being more
than satisfactorily met while having lived primarily in Ember’s
care. We see this factor as being one of the most significant
factors to consider, and we assign it considerable weight in
considering Lillian’s best interests.
b. Child’s Opinion or Preference
There is no evidence in the record to establish Lillian’s opin-
ion or preference, and this factor therefore does not weigh in
favor of or against removal.
c. Enhancement of Custodial Parent’s
Income or Employment
The trial court stated that “Ember’s income and employment
have not been shown to be positively enhanced by the move.”
We disagree for the same reasons set forth in the discussion
on whether Ember had a legitimate reason to move to New
York. It is not just a matter of increased earnings. Ember’s
ability to stay at home with Lillian, walk her to and from
school, and engage in more of Lillian’s day-to-day activities is
a significant advantage for Lillian. Ember’s ability to enhance
her own music career without extended overnight traveling is
likewise an advantage for Lillian. Requiring a musician who
has shown success in the industry to stay in Iowa, Nebraska,
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or Missouri seems an inappropriate infringement of that par-
ent’s “right to travel between states and the right to ‘migrate,
resettle, find a new job, and start a new life.’ We have stated
that an award of custody is not and should not be a sentence of
immobilization.” Daniels v. Maldonado-Morin, 288 Neb. 240,
243, 847 N.W.2d 79, 82 (2014) (quoting Shapiro v. Thompson,
394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), over-
ruled on other grounds, Edelman v. Jordan, 415 U.S. 651, 94
S. Ct. 1347, 39 L. Ed. 2d 662 (1974)). We conclude this factor
weighs in favor of removal.
d. Degree to Which Housing or Living
Conditions Would Be Improved
The trial court found that Ember failed to carry her “burden
of establishing any improvement in housing or living condi-
tions,” because there was no evidence of housing or living
conditions while Ember was still living with Day versus after
she separated from Day. We find there is insufficient evidence
to compare the living conditions in Iowa to those in New York,
and accordingly, we find this factor does not weigh in favor of
or against removal.
e. Existence of Educational Advantages
The trial court concluded that “[w]hile the educational
opportunities are different in New York City compared to
Iowa, there is no evidence a New York City education is
more advantageous to Lillian compared to an Iowa education.”
However, the trial court also noted, “Lillian’s musical talents
have thrived recently. However, it is not clear whether that is
a function of New York City, or merely a function of Lillian’s
age.” We agree with the trial court that there was insufficient
evidence to compare an Iowa education to a New York educa-
tion and that simply based on a comparison of school systems,
there was insufficient evidence to weigh in favor of or against
removal on that factor.
However, the evidence also showed that Lillian was able
to start kindergarten at a younger age in New York and that
she was able to participate in dance instruction and private
music lessons in New York City, where her musical abilities
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have flourished—as noted by the trial judge. There was also
evidence of greater musical and cultural opportunities avail-
able to Lillian in New York City, such as the Metropolitan
Museum of Art, which she visited a couple of times; the
Brooklyn Museum, displaying art and artifacts; a new natu-
ral history museum; and the Mark Morris Dance Center.
For those reasons, we would find that this factor slightly
favors removal.
f. Quality of Relationship Between
Child and Each Parent
On this factor, the trial court stated, “Lillian appears to have
a good relationship with both parents. It is clearly a different
relationship with each parent.” We agree with the trial court the
record shows that Lillian has a good relationship with each par-
ent and that Ember has been the custodial parent for the major-
ity of Lillian’s life, while Andrew has exercised his allocated
parenting time.
We conclude that Ember’s being the primary custodial par-
ent for all of Lillian’s life weighs in favor of her continuing
to primarily reside with Ember. When, by all indications,
Lillian was thriving under Ember’s primary care, that relation-
ship should not be disrupted by a change in physical custody.
“‘The best interests of the children are not served by constant
custody disputes and a shifting of custody control from one
parent to the other. Rather, to the extent we can, we should
attempt to provide some sense of stability for the children.’”
Kennedy v. Kennedy, 221 Neb. 724, 728, 380 N.W.2d 300, 303
(1986). Continuing to primarily reside with Ember would be in
Lillian’s best interests in order to preserve that primary parent-
child relationship, which the evidence shows has produced a
healthy, thriving child.
g. Strength of Child’s Ties to Present
Community and Extended Family
The record shows that Lillian and Ember do not currently
have any family ties in Iowa, nor had Lillian commenced
school when removal was requested. There was absolutely
nothing to tie Lillian to Decorah. Although Ember retained
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friends in the Lincoln area, the only family connection in
Nebraska was with Chesley in North Platte, from whom Ember
had been estranged for 2 years. Ember has no family ties to
Missouri. Andrew presented evidence of an extensive extended
family network near the Kansas City area, and he argued that
the considerable distance created by the removal would make
it more difficult for Lillian to have these relationships. The
trial court opined that “[a] move to New York makes it much
more difficult for Lillian to have a relationship with other fam-
ily members.” However, those other family relationships were
built despite the distance from Kansas City to Decorah or, pre-
viously, Lincoln. Andrew has never lived in the same commu-
nity with Lillian and Ember, so traveling to spend time together
is not a new challenge. Andrew admitted that he made no trips
to Decorah for additional parenting time with Lillian. Given
that Lillian has built relationships with Andrew’s extended
family in the Kansas City area while she was there during
designated parenting times establishes that distance alone does
not impact the ability to maintain such relationships. Given that
neither Ember, Lillian, nor Andrew had any ties to Decorah,
this factor weighs in favor of removal.
h. Likelihood That Allowing or Denying
Move Would Antagonize Hostilities
Between Parties
We agree with the trial court that there is no evidence in the
record to suggest hostilities would be antagonized between the
parties whatever the outcome, and this factor therefore does
not have any weight in the removal analysis.
(iii) Impact on Noncustodial Parent
in Light of Reasonable Visitation
As discussed above, Andrew has never lived in the same
state as Ember and Lillian. Traveling distance has always been
a necessary component to Andrew’s exercising parenting time
with Lillian. That has usually involved Andrew’s or both par-
ties’ having to drive a good distance to facilitate parenting
exchanges. Ember testified that with her moving to New York,
the current parenting schedule could be maintained with the
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exception of Andrew’s parenting time on Lillian’s birthday
weekend. Ember proposed that this time be added to Andrew’s
parenting time in the summer. Ember proposed that she would
take responsibility for transporting Lillian to Andrew for his
parenting time and would be responsible for associated costs.
Andrew argued that if Lillian lived in New York, it would no
longer be feasible for him to drive to see her at any events that
were outside his parenting time. However, he conceded that he
never went to Decorah to see Lillian during the time she lived
there, but explained that this was because she was “never in
school.” He acknowledged that Ember had provided him with
some contacts to obtain information related to programs at the
Montessori daycare Lillian was attending there. Ember testi-
fied that Lillian was in a dance class in Decorah and that she
had told Andrew about a recital; however, Andrew never went
to visit Lillian in Decorah.
There is no question that putting more miles between resi-
dences makes driving for parenting time less feasible, although
not impossible. There was evidence in the record that Chesley,
Lillian’s grandmother, traveled (presumably drove, based on
the number of days of travel) to New York City and took
photographs of Ember’s neighborhood on Lillian’s birthday,
shortly after a hurricane had hit parts of New York. The trial
judge concluded, “If the move were approved, Andrew would
no longer be able to pack the family in a car and drive to one
of Lillian’s school event’s [sic] or a dance or violin recital.”
The trial judge further concluded, “Andrew and Lillian will
never be able to be together for her birthday celebration.
Those opportunities are gone.” First of all, as noted previ-
ously, Andrew never “pack[ed] the family in a car” to drive to
see Lillian in an activity when she was in a more manageable
driving distance. Second, a family road trip can still be made
for special events if desired; clearly, Chesley was willing
to drive that distance, even without having made advanced
arrangements to see Lillian on her birthday. As to enjoying a
birthday with Lillian, there is no reason a parenting schedule
could not address this; these opportunities are not just “gone.”
Although making arrangements will require greater coopera-
tion, coordination, and flexibility between the parents, there
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is no reason Andrew should have any less parenting time than
previously available to him; it may just come in fewer, but
longer, periods of time.
Due to there being no change to the amount of time Andrew
can spend with Lillian, and in light of Ember’s being willing
to take responsibility for travel costs, we conclude this factor
weighs neither in favor of nor against removal.
(iv) Conclusion on Move
In considering the factors above, all factors either weighed
in favor of removal or were neutral. The weight of the evidence
supports the move’s being in Lillian’s best interests. Ember has
shown that she has a legitimate reason to move to New York
and that such a move is in Lillian’s best interests. Accordingly,
we reverse the district court’s decision denying Ember’s request
to move to New York with Lillian, and remand the cause for
entry of an order (1) granting permission for the move, (2)
revising the parenting plan to switch Andrew’s and Ember’s
parenting time accordingly, and (3) requiring Ember to be
responsible for the costs associated with transporting Lillian to
and from Andrew for his scheduled parenting time.
3. Chesley’s Visitation With Lillian
As noted above, Chesley is Ember’s mother by adoption.
Chesley had a significant relationship with Lillian after she
was born. In fact, Chesley cared for Lillian for extended peri-
ods of time at her home in North Platte from 2008 through
2010 while Ember was on tour. However, Chesley’s relation-
ship with Ember soured when she informed Ember that she
could not care for Lillian in January 2011 for the extended
period of time Ember requested. Chesley testified that Ember
reacted poorly to this refusal and that she has not seen Ember
much since that time. Chesley also testified that she and her
husband attempted to visit Ember and Lillian in New York City
just after a hurricane occurred to make sure they were safe,
but they were not able to make contact with Ember in spite of
numerous efforts.
Ember contradicted Chesley’s version of the events and
argued that Chesley acted irrationally in January 2011. Ember
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claimed that when she tried to leave with Lillian after a visit,
Chesley became overly emotional and tried to take Lillian
from her. Ember also stated that she and Lillian were not in
any danger during the hurricane, because Bannister’s apartment
was on high ground. Ember became distressed and afraid when
she learned that Chesley was attempting to visit her in New
York City.
When Andrew and Ember reached agreement on a revised
parenting plan in February 2012, they included a provision
that Chesley was not to have any unsupervised contact with
Lillian. Andrew testified at trial that he allowed this provi-
sion because of what he learned about Chesley from Ember.
While this parenting plan was in effect, however, Andrew and
his family developed a relationship with Chesley. He super-
vised a number of visits between Chesley and Lillian and
concluded that Ember’s concerns were unfounded. Andrew
requested that the court lift the supervised contact restriction.
As additional support for this request, Andrew also submitted
a psychological evaluation of Chesley in which the psycholo-
gist concluded that she would be a dependable, stable, and
loving influence in all of her relationships and unlikely to
harm anyone.
The district court determined that there was no evidence to
justify continuing Chesley’s visitation restriction and vacated
that part of the previous order. We agree with that conclu-
sion. Although Ember may still not want a relationship with
Chesley, there is nothing in the record to show that she is a
bad influence in Lillian’s life or that she is an unsafe person.
The district court did not abuse its discretion when it lifted this
restriction. This assigned error is without merit.
4. Child Support Modification
In her final assignment of error, Ember argues that the
district court abused its discretion when it modified her child
support obligation. Although we have found that the district
court abused its discretion in modifying custody, because child
support was due Andrew while Lillian was in his custody, we
address this issue. However, consistent with our reversal of the
custody modification, we remand the cause to the district court
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with directions to enter an order terminating Ember’s child
support obligation and ordering payment of child support by
Andrew, based upon the worksheet attached to the February
2013 order, to commence upon the first day of the month fol-
lowing the return of Lillian’s custody to Ember.
Specifically, Ember contends that the court erred in using
her earning capacity from 2009 to determine child support
when the evidence at trial showed that she has earned minimal
income since her move from Iowa to New York.
When the court determined child support in its order, it uti-
lized the parties’ 2009 total monthly incomes as reflected in the
original paternity order and attached child support worksheet,
since it noted that neither party had proposed a change to the
child support calculation used in the 2009 order. Accordingly,
the court assigned total monthly income of $1,733 to Andrew
and $1,790 to Ember. The court utilized these incomes because
it did not find any evidence that the parties’ income or earn-
ing capacity had changed since 2009. The court also made
adjustments to its calculations by reflecting Andrew’s payment
of Lillian’s health insurance and granting Ember a deviation
because of the transportation costs she will incur in exercising
her parenting time with Lillian.
Andrew did not present any evidence of his current income
at trial. Ember presented evidence that she earned $8,000
in 2012; however, this appears to be income earned in Iowa
before her move to New York. Ember currently has no income
and has voluntarily become a stay-at-home mother since mov-
ing to New York, consciously choosing to rely on Bannister
for her housing and living expenses and on Andrew for
child support.
[20-23] The Nebraska Child Support Guidelines provide
that earning capacity may be considered in lieu of a parent’s
actual, present income when the circumstances merit. See
Neb. Ct. R. § 4-204. Earning capacity may include factors
such as work history, education, occupational skills, and job
opportunities. Id. Earning capacity should be used in deter-
mining a child support obligation only when there is evidence
that the parent can realize that capacity through reasonable
efforts. Johnson v. Johnson, 20 Neb. Ct. App. 895, 834 N.W.2d
Decisions of the Nebraska Court of Appeals
174 22 NEBRASKA APPELLATE REPORTS
812 (2013). When the evidence demonstrates that the parent
is unable to realize a particular earning capacity by reasonable
efforts, it is clearly untenable for the trial court to attribute
that earning capacity to the parent for purposes of determining
child support. Id. A reduction in child support is not warranted
when an obligor parent’s financial position diminishes due to
his or her own voluntary wastage or dissipation of his or her
talents and assets and a reduction in child support would seri-
ously impair the needs of the children. Incontro v. Jacobs, 277
Neb. 275, 761 N.W.2d 551 (2009).
We conclude that the district court did not abuse its discre-
tion when it calculated the parties’ child support based on their
2009 incomes. Because Ember has voluntarily chosen not to
work in New York in a manner that would provide her with
monthly income, her 2009 income reflects the best evidence of
her earning capacity. There is no evidence that Ember is unable
to work or to show that she could not achieve the same level of
income, through reasonable efforts in New York, as she earned
in 2009. This assigned error is without merit.
V. CONCLUSION
Because the district court abused its discretion in modify-
ing Lillian’s primary physical custody from Ember to Andrew,
we reverse that portion of the district court’s order and restore
primary physical custody to Ember. We also reverse the district
court’s denial of Ember’s request to move to New York with
Lillian and direct the district court to enter an order granting
permission for the move. We also direct the court to revise
the parenting plan, switching Andrew’s and Ember’s parenting
time accordingly and requiring Ember to be responsible for the
costs associated with transporting Lillian to and from Andrew
for his scheduled parenting time.
However, the district court did not abuse its discretion
when it removed Chesley’s visitation restriction and calculated
Ember’s child support during the period that Lillian has been
in Andrew’s custody. We remand the cause to the district court
with directions to enter an order terminating Ember’s child
support obligation and ordering payment of child support by
Andrew, based upon the worksheet attached to the February
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2013 order, to commence upon the first day of the month fol-
lowing the return of Lillian to Ember’s custody.
Affirmed in part, and in part reversed
and remanded with directions.
Moore, Judge, concurring in part, and in part dissenting.
I respectfully disagree with the conclusion of the major-
ity that the district court abused its discretion in modifying
Lillian’s custody from Ember to Andrew. Based upon my de
novo review of the record, I agree with the district court that a
material change in circumstances has occurred since the entry
of the previous order of modification and that it is now in the
best interests of Lillian to place her custody with Andrew. I
also disagree with the majority’s finding that the district court
abused its discretion with respect to the denial of Ember’s
request to move Lillian to the State of New York. Based upon
my de novo review of the record, not only did Ember fail to
establish a legitimate reason to move Lillian to New York, but
she also failed to show that it was in Lillian’s best interests to
move there.
I. STANDARD OF REVIEW
As a starting point, I refer again to our standard of review
which I believe significantly controls the outcome in this case.
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. State on
behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. Ct. App.
409, 838 N.W.2d 351 (2013). A judicial abuse of discretion
exists when a judge, within the effective limits of authorized
judicial power, elects to act or refrains from acting, and the
selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through a judicial
system. Id. Where credible evidence is in conflict on a mate-
rial 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. Collins v. Collins, 21 Neb. Ct. App. 161, 837 N.W.2d
Decisions of the Nebraska Court of Appeals
176 22 NEBRASKA APPELLATE REPORTS
573 (2013). In fact, in contested custody cases, where mate-
rial issues of fact are in dispute, the standard of review and
the amount of deference granted to the trial judge, who heard
and observed the witnesses testify, are often dispositive of
whether the trial court’s determination is affirmed or reversed
on appeal. Id.
With respect to parental relocation cases, the Nebraska
Supreme Court has recently recognized:
In parental relocation cases, trial and appellate courts
deal with the tension created by a mobile society and the
problems associated with uprooting children from stable
environments. Courts are required to balance the noncus-
todial parent’s desire to maintain their current involve-
ment in the child’s life with the custodial parent’s chance
to embark on a new or better life. These issues are among
the most difficult issues that courts face in postdivorce
proceedings. It is for this reason that such determina-
tions are matters initially entrusted to the discretion of
the trial judge, and the trial judge’s determination is to be
given deference.
Steffy v. Steffy, 287 Neb. 529, 537, 843 N.W.2d 655, 662-63
(2014). And, as noted by Justice Stephan in his dissenting
opinion in McLaughlin v. McLaughlin, 264 Neb. 232, 246, 647
N.W.2d 577, 592 (2002):
Where, as in this case, there are no absolutes and no
clearly right or clearly wrong answers, it is particularly
important to bear in mind that our standard of review
requires an appellate court to give deference to the discre-
tion of the trial judge, who observed the demeanor of the
witnesses as he or she heard their testimony.
II. MODIFICATION OF CUSTODY
1. Material Change in Circumstances
The trial court found that Andrew met his burden of estab-
lishing a material change in circumstances since the last modi-
fication order. The majority recognizes that Ember’s decision
to move to New York to live with Bannister after her divorce
from Day might constitute a change in circumstances since
the last custody order, but I believe that it fails to recognize
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the extreme nature of this change. Rather, the majority rests
its decision on the lack of concrete evidence that Lillian has
been harmed in any visible way by this extreme change. In
my opinion, the fact that Ember—less than 4 months after the
February 2012 order was entered—separated from Day, left
Iowa for the east coast without a job or solid housing, moved
in with a married man nearly twice her age, and then moved
Lillian into this situation without notifying Andrew, let alone
seeking court approval, clearly constitutes a material change
in circumstances.
The majority downplays Ember’s blatant violation of the
previous court order and suggests that the previous attempt
by Andrew to gain custody of Lillian when Ember moved to
Iowa without court approval somehow justifies this conduct.
And the majority suggests that Ember’s fears were realized
(and therefore justified) when Andrew again sought custody
in this proceeding. Certainly, Andrew should not be criticized
for instituting this modification action after Ember again took
matters into her own hands and moved Lillian halfway across
the country, and certainly, such action by Ember should not
be condoned. Less than 4 months before Ember left Iowa for
the east coast, she agreed (1) that she would share joint legal
custody of Lillian with Andrew; (2) that she would discuss
with Andrew decisions concerning the parenting of Lillian;
(3) that she would reside in the states of Nebraska, Missouri
(including the Kansas City area), or Iowa unless otherwise
agreed to by the parties; and (4) that the terms of the parent-
ing plan could be temporarily changed as long as both parents
agree in writing, but that any permanent changes to the plan
required court approval before the change would become bind-
ing and enforceable. Clearly, Ember knew the significance of
this agreement and her breach thereof, having been down the
modification road so recently. The only conclusion that can be
reached, in my opinion, is that she willfully chose to ignore
the agreement and court order. Had the trial court, in February
2012, known that Ember was going to leave Iowa for the east
coast 4 months later to secure a new living arrangement and
support system and remove Lillian to New York, I strongly
believe that it would have decreed differently.
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178 22 NEBRASKA APPELLATE REPORTS
2. Best Interests
Nevertheless, Ember’s actions in defying the court order
cannot solely form the basis for modification of custody. It is
well established that in order to modify custody, there must
also be evidence that the change in circumstances affects the
best interests of the child. See Heistand v. Heistand, 267 Neb.
300, 673 N.W.2d 541 (2004). In support of its finding that
Lillian’s best interests require returning her custody to Ember,
the majority places much emphasis on the fact that Lillian has
been “flourishing” in New York City since being moved there.
Ember’s evidence was that Lillian started kindergarten, attends
afterschool programs, attends creative dance class at Mark
Morris Dance Center, and has private music lessons. However,
it is important to note that the evidence concerning Lillian’s life
in New York City was only developed as a result of Ember’s
unilateral decision to move Lillian there before obtaining either
Andrew’s consent or prior court approval. Both the Nebraska
Supreme Court and this court have discussed this evidentiary
conundrum in connection with the grant of temporary permis-
sion to remove children to another jurisdiction prior to ruling
on the issue of permanent removal, which practice has been
specifically discouraged. See, Jack v. Clinton, 259 Neb. 198,
609 N.W.2d 328 (2000); Wild v. Wild, 15 Neb. Ct. App. 717, 737
N.W.2d 882 (2007). This court summarized the Jack v. Clinton
discussion, stating:
[U]nnecessary and unfortunate complications . . . arise
when a trial court grants a motion for temporary removal
of a minor pending resolution of an application for per-
manent removal. In addition to necessarily causing the
record to include facts pertaining to the periods prior to
and after relocation, an ultimate denial of the applica-
tion for permanent removal will necessitate ordering the
minor, who may have already recently adjusted to one
move, to move again and return to the jurisdiction. .
. . The Supreme Court held, “The grant of temporary
permission to remove children to another jurisdiction
complicates matters and makes more problematic the
subsequent ruling on permanent removal and encumbers
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Cite as 22 Neb. Ct. App. 139
appellate evaluation of the ultimate decision on perma-
nent removal.”
Wild v. Wild, 15 Neb. Ct. App. at 735, 737 N.W.2d at 897.
In the case before us, it was Ember, not the trial court, who
caused this “unnecessary and unfortunate complication” by
unilaterally removing Lillian to a new jurisdiction, thus allow-
ing Ember to adduce evidence of the results of Lillian’s experi-
ence during the approximately 6 months that she was in New
York before trial. Not only should this practice of absconding
with a child to a new jurisdiction be discouraged, it should
not be allowed to form the basis for a finding regarding best
interests as it relates to either the custody modification decision
or the removal decision. Thus, I would discount the evidence
presented by Ember, that Lillian is “flourishing” since being
moved to New York, in analyzing her best interests.
The majority substantially bases its decision on best inter-
ests by finding there was no evidence to support that any
change in circumstances had an adverse effect upon Lillian.
Admittedly, there is no evidence of any physical harm or any
outward manifestation of emotional harm to Lillian during
the 6 months between her moving to New York and the trial.
Although Andrew was able to exercise his Christmas parent-
ing time in Kansas City, he was not able to have any personal
contact with Lillian in New York during this period of time or
make any investigation into her living situation. Neither parent
presented any expert testimony relating to the effect of this
move on Lillian. Rather, the evidence of her “flourishing” in
New York came solely from Ember, Bannister, and a friend of
Bannister. Again, I believe that this evidence should be dis-
counted as discussed above.
I further disagree that it is essential to a modification of
custody that an adverse impact from a material change in
circumstances must be explicitly shown by the evidence to
the exclusion of the other relevant factors in determining
best interests of a child. In addition, I believe that a trial
court, and an appellate court, can find adverse impacts by
implication from a review of the record. In other words, by
evaluating the relevant best interests factors and choosing to
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180 22 NEBRASKA APPELLATE REPORTS
modify custody, a trial court can essentially find by implica-
tion that the change in circumstances has an adverse impact
upon the child.
In our recent decision in State on behalf of Savannah E.
& Catilyn E. v. Kyle E., 21 Neb. Ct. App. 409, 838 N.W.2d 351
(2013), we were presented with a somewhat similar situation
to the case at hand. In that case, the parents of the two minor
children were not married and originally agreed that the mother
would have primary physical custody, subject to the father’s
parenting time. Both parents subsequently married others and
had additional children. Several years later, the father sought
modification of custody. At the outset of the modification
proceedings, the mother attempted to move the children from
Nebraska to Colorado despite the father’s objection, but she
returned to Nebraska after an ex parte order modifying custody
was entered, and the children were returned to her custody
pending trial. The evidence at trial showed that the mother
had frequently changed residences and employment since the
original custody agreement. After the mother’s marriage, she
relied upon her husband to help her care for the children, but at
the time of trial, she was separated from her husband and plan-
ning to get a divorce. She had convictions for domestic assault
(relating to her husband), possession of marijuana, failure to
appear, issuing a bad check, and disturbing the peace (twice),
and she had recently been charged with driving under the influ-
ence. There was some evidence that the mother was spending
time in bars rather than caring for the children. She was work-
ing part time, but only because she felt she had to “‘to please
the court’s,’” and she preferred to stay home with her children.
Id. at 421, 838 N.W.2d at 361. The children had numerous
absences and tardies from school during the year prior to trial
while in the mother’s care, but there was no evidence that
their schoolwork had been negatively affected. The evidence
concerning the father, on the other hand, showed that he had
steady employment and housing and demonstrated stability in
his marriage.
The trial court in Kyle E. modified custody by awarding
primary physical custody to the father, and we affirmed. We
first concluded that the totality of the evidence amounted to a
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 139
material change in circumstances which had affected the chil-
dren’s best interests. In reaching this conclusion, we noted the
evidence concerning the mother’s lifestyle in the last couple of
years, and “consequently the lifestyle to which these children
are exposed,” finding that such evidence presented a legiti-
mate concern regarding their custody. Id. at 422, 838 N.W.2d
at 361. We also noted the evidence demonstrating the father’s
stable lifestyle. After considering the best interests of the chil-
dren under Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2012) and
related case law, we agreed that the best interests of the chil-
dren would be served by being placed in the father’s custody.
We acknowledged this was a close case in that the children
were “‘typical, healthy, well-adjusted children’” thriving in
the mother’s care and that both parents “‘enjoy a positive and
healthy relationship with the minor children.’” State on behalf
of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. Ct. App. at 423,
838 N.W.2d at 362. Nevertheless, we concluded that the father
was able to offer a more stable environment for the children
when compared to the mother’s past conduct and current liv-
ing situation. In reaching this conclusion, we gave deference to
the fact that the trial judge heard and observed the witnesses
and was in a better position to determine the credibility of
the parties.
Thus, while there was no explicit evidence that the children
had been adversely affected by the mother’s conduct and the
change in circumstances since entry of the previous custody
order, as noted by the dissenting opinion, the majority con-
cluded that the best interests analysis nevertheless supported
a modification of custody. See State on behalf of Savannah
E. & Catilyn E. v. Kyle E., 21 Neb. Ct. App. 409, 838 N.W.2d
351 (2013) (Irwin, Judge, dissenting). The petition for further
review was subsequently denied by the Supreme Court.
As noted in Kyle E., the relative stability of the parents
is an appropriate consideration in determining custody. See,
also, § 43-2923(1) (stability in parenting arrangement is fac-
tor in determining best interests of child). In the instant case,
a review of Ember’s actions since the previous modifica-
tion order reveals a continuing pattern of instability. While
this evidence supports a finding of a material change in
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182 22 NEBRASKA APPELLATE REPORTS
circumstances as I concluded above, I believe it also speaks to
Ember’s judgment, which, albeit indirectly, speaks to her suit-
ability as a custodial parent.
The prior modification order resulted from Ember’s move
from Nebraska to Iowa with a boyfriend due to financial
difficulties she was experiencing. Although Ember married
this boyfriend, this marriage lasted only a short time. When
Ember’s marriage ended, she found herself without a means
of financial support and housing. Ember then decided that she
would seek a new living arrangement and support system on
the east coast, focusing on her music career. Ember picked
Lillian up in Des Moines at the conclusion of the summer
in 2012 without making any mention to Andrew that Ember
had moved to New York or that she was taking Lillian there.
Ember met Bannister in 2011 and began a romantic relation-
ship with him, a married man nearly twice her age, on the
same day that she separated from her husband in 2012. She
moved in with Bannister within 2 to 3 months of beginning
this romantic relationship and moved Lillian into Bannister’s
apartment and life without Lillian’s having previously met
him. In my opinion, this conduct of Ember shows great insta-
bility and poor judgment, which certainly affects Lillian’s
best interests.
The majority points to case law that indicates that cohabi-
tation by a custodial parent does not necessarily support a
modification of custody. See, Smith-Helstrom v. Yonker, 249
Neb. 449, 544 N.W.2d 93 (1996); Kennedy v. Kennedy, 221
Neb. 724, 380 N.W.2d 300 (1986). I agree that cohabitation
alone does not amount to a material change in circumstances.
However, we have more than mere cohabitation involved in
this case. Not only is Ember cohabitating with a married man
nearly twice her age, she moved Lillian into this situation
without her ever having met Bannister and after uprooting her
once again and moving her halfway across the country. Quite
simply, Ember has not demonstrated that she is able to present
a stable environment for Lillian.
Considered against the backdrop of the underhanded
approach taken by Ember to move Lillian to New York City,
the record does not reveal a parent who is making good
Decisions of the Nebraska Court of Appeals
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decisions with regard to her daughter. Lillian did not know
anyone in New York City other than Ember when she was
abruptly moved there. While Ember is able to spend more time
with Lillian because Ember is presently not employed, she is
also unable to financially support herself, let alone Lillian.
Ember is entirely dependent upon Bannister for her support and
housing, and Ember acknowledged that she and Lillian would
have nowhere to live if her relationship with Bannister ends.
Ember also testified that should Andrew be awarded custody of
Lillian, New York City is the only place that Ember currently
has a “workable situation.”
The majority emphasizes that no evidence exists to show
that Lillian has been adversely affected by Ember’s living
arrangements. While it is true that there was no evidence that
Lillian has been exposed to the sexual activity of Ember and
Bannister, as noted in Kennedy, the lack of such evidence
does not necessarily equate with a finding that Lillian’s best
interests are being served in this environment. Rather, the evi-
dence tends to show that Ember is making decisions, changes
in relationships, and far-reaching moves that serve her desires
and musical interests rather than a consideration of how these
changes affect Lillian. And, as the majority opinion cor-
rectly concluded with respect to the removal issue, moving
Lillian such a great distance from Andrew has a detrimental
impact on their relationship, a matter not seriously considered
by Ember prior to making this unilateral decision to relo-
cate Lillian.
In determining the best interests of Lillian, we are to con-
sider, among other things, the moral fitness of the parents,
the respective environments offered by each parent, the effect
on the child as the result of continuing or disrupting an exist-
ing relationship, and the attitude and stability of each parent’s
character. Smith-Helstrom v. Yonker, supra. In my opinion, all
of these factors weigh in favor of Andrew. The environment
that Andrew can provide Lillian includes an intact family unit
with half siblings for Lillian. Andrew and his family currently
live in a home in a good neighborhood, with a yard and a
nearby school and playground. Andrew has many relatives in
the Kansas City area and an aunt who provides daycare for
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Andrew’s children without charge. Kansas City also presents
many cultural opportunities and family activities. Andrew’s
lifestyle shows much greater stability; he has lived in the same
area and worked for the same employer for several years.
Lillian is well cared for by Andrew and his wife and is a
happy, healthy child when in his care. Ember, on the other
hand, demonstrates very little stability, as evidenced by her
abrupt life changes. Ember has shown a pattern of “uproot-
ing [Lillian] from stable environments” throughout her life.
See Steffy v. Steffy, 287 Neb. 529, 537, 843 N.W.2d 655, 663
(2014). Ember continues to disrupt relationships with people in
Lillian’s life, which relationships in the past have included her
maternal grandmother, Chesley; Lillian’s stepfather, Day; and
now Andrew and his family—not to mention other relation-
ships that Lillian undoubtedly formed in the various places she
has lived. At this young stage of her life, Lillian has apparently
been able to adapt to all of the changes brought on by Ember.
However, the lack of “negative impact” evidence should not
be the sole factor in determining whether a modification of
custody is warranted. Certainly, a sense of stability would be
in Lillian’s best interests.
Before concluding my discussion of the modification of cus-
tody, I must respond to the majority’s reference to Andrew’s
prior difficulties in timely paying his child support obligation.
I agree that this does not reflect positively on Andrew and that
we should not be unconcerned about this. However, the trial
court was presented with this evidence and it was presum-
ably considered in the court’s final decision. Many custody
disputes present conflicting evidence which calls into ques-
tion the relative strengths and weaknesses of each parent with
respect to their parenting skills and attention to the needs of
the children. The Nebraska Supreme Court and this court have
recognized that in such a situation, the standard of review is
often controlling:
[W]here neither parent can be described as unfit in a legal
sense but neither can be described as an ideal parent, . . .
we give particular weight to the fact that the trial court
saw and heard the witnesses in making necessary findings
as to the best interests and welfare of the children.
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 185
Cite as 22 Neb. Ct. App. 139
Davidson v. Davidson, 254 Neb. 357, 369, 576 N.W.2d 779,
786 (1998). See, also, Edwards v. Edwards, 16 Neb. Ct. App. 297,
744 N.W.2d 243 (2008).
In my opinion, the record, when taken as a whole, sup-
ports a finding that it is in Lillian’s best interests to be placed
in the custody of Andrew. Had the trial court known, at the
time of the last modification order, that Ember would again, 6
months later, move Lillian to another state without prior court
approval, it would likely not have granted Ember retained
custody of Lillian and permission to move to Iowa. Andrew
satisfied his burden of showing a material change in circum-
stances since the entry of the previous order, which change in
circumstances affected Lillian’s best interests and warranted a
modification in custody.
III. REMOVAL TO NEW
JURISDICTION
Regardless of whether modification of custody occurs in
this case, for the following reasons, I conclude that the district
court did not abuse its discretion in denying Ember’s postmove
application to remove Lillian to New York. As such, I would
affirm the order of the district court.
1. Legitimate R eason to Leave State
Although the district court did not explicitly provide analysis
of this portion of the test in its order, after my de novo review,
I conclude that Ember did not prove that she had a legitimate
reason to move Lillian to New York. From my review of the
record, Ember presented evidence on two reasons which she
believed would validate her move from Iowa to New York: a
new living arrangement and advancement of her music career.
I conclude that neither of these was a legitimate reason to leave
Iowa and move to New York.
Ember testified that after her separation and divorce from
Day, she had no remaining connections to Iowa. She spent
the following summer looking for a new living arrangement
and settled on New York City. Having chosen New York
City, Ember began a romantic relationship with Bannister and
moved in with him, despite having little previous contact.
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186 22 NEBRASKA APPELLATE REPORTS
It is well established in Nebraska case law that remarriage
is commonly found to be a legitimate reason for a move in
removal cases. See Jack v. Clinton, 259 Neb. 198, 609 N.W.2d
328 (2000). But in this case, Ember’s desire to move was not
based on remarriage or even a possibility of remarriage. In
fact, Ember was moving in and beginning a relationship with
a man she had known for only a little over a year before the
move. Additionally, at the time of trial, Ember and Bannister
were not even able to legally marry because Bannister was still
married and supporting his estranged spouse. Ember’s desire to
establish a new living arrangement was not a legitimate reason
for relocating to New York.
While legitimate employment opportunities for a custodial
parent may constitute a legitimate reason for relocating, I do
not believe that Ember carried her burden of showing that she
had legitimate employment opportunities in New York.
Ember testified that the move to New York is beneficial for
her music career because she can accomplish more in New
York than she could have in Iowa. She also believed that the
shows she plays in New York have “a lot more impact” for
her career. Despite her belief that New York is a better loca-
tion for her music career, Ember has not shown that moving
to New York was for a legitimate employment opportunity or
that the move has improved her music career. Ember did not
produce any evidence to demonstrate exactly how her music
career would be enhanced in New York. Ember is unemployed
and, in fact, has argued that her lack of employment is benefi-
cial in that she is able to spend more time with Lillian. While
Ember has allegedly performed some shows and produced an
album, there is absolutely no evidence that these activities have
produced any income, record contracts, sales, or future book-
ings. At this stage, Ember has not realized any objective signs
of success in the music industry gained from moving to New
York and it appears that her music is more of a hobby. At the
time of trial, Ember did not have any current income or means
of financial support for Lillian besides Andrew’s child sup-
port payments. She is also completely dependent on Bannister
for her living expenses and a place to live. It is impossible
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 139
to conclude that the move to New York was for a legitimate
employment opportunity.
Finally, Ember produced no evidence to support a conclu-
sion that advancement of her music career could occur only
in the New York area. A mere 4 months before leaving for the
east coast, Ember agreed that the parties should continue to
reside in the midwestern states of Iowa, Nebraska, or Missouri
(the Kansas City area). Presumably, Ember was satisfied with
the status of her music career at the time of such agreement.
While Ember testified that she had no reason to stay in Iowa
because of her separation and divorce from Day, she did not
make any effort to seek a new living arrangement, support
system, or employment in any of the agreed-upon states.
There is no evidence that moving to the east coast was her
only option. In fact, there is evidence in the record to support
that Ember previously pursued her music career in a substan-
tial way when she lived in Nebraska. While Ember may have
quickly grown dissatisfied with her ability to actively pursue
her musical ambitions in Iowa, she is the one who requested
permission to move to Iowa (and thus represented that such a
move was for a legitimate reason) before the last order. After
recently being granted permission to move to Iowa, Ember’s
assertion that moving from Iowa is now necessary in order for
her to find success in the music industry carries little weight,
in my opinion. My review of the evidence shows that Ember
made a hasty, unilateral decision to ignore the agreement and
court order and to pursue a new living arrangement and sup-
port system in a place she had never lived, with a man she
barely knew, and without any means of supporting herself
or Lillian.
Thus, I believe that the evidence rather overwhelmingly
shows that Ember has not demonstrated a legitimate reason for
removing Lillian to New York.
2. Best Interests
Although I have concluded that Ember did not meet the
threshold requirement of proving a legitimate reason for her
move to New York, I will also engage in the best interests
analysis for the sake of completeness. I conclude that Ember
Decisions of the Nebraska Court of Appeals
188 22 NEBRASKA APPELLATE REPORTS
did not demonstrate that allowing removal to New York is in
Lillian’s best interests.
(a) Each Parent’s Motives
As noted by the majority, Ember sought removal after
she divorced Day, could no longer reside with his parents in
Decorah, and needed to make decisions about relocation. The
majority finds that Ember’s reasons for selecting New York as
a point of relocation were reasonable, given her aspirations as
a musician. However, the majority does not address Ember’s
failure to research relocation in the agreed-upon states of Iowa,
Nebraska, or Missouri (the Kansas City area). While Ember’s
motives for leaving Decorah are understandable, her motive in
choosing to settle in New York is questionable given her previ-
ous agreement to remain in the midwestern states noted in the
agreement. Finally, and perhaps more important, Ember admit-
ted that she did not advise Andrew before moving Lillian to New
York, because of her fear that he would again pursue custody.
This admission shows a motive to frustrate Andrew’s relation-
ship with Lillian. As opposed to discussing with Andrew her
situation and what would be best for Lillian, she led Andrew to
believe that she was returning Lillian to Iowa at the conclusion
of his summer parenting time on August 27, 2012. Then, by
way of an e-mail 3 days later, Ember informed Andrew that she
had moved Lillian to New York City. Although Ember extols
the virtues of living there, at no point does she advise Andrew
what Lillian’s living situation was going to be or how Ember
was going to provide for Lillian.
Andrew first opposed the move by not agreeing with the
suggestions in Ember’s e-mail that it was beneficial for Lillian
to be in New York City. Certainly, Andrew’s response was
not unreasonable, given the abrupt and after-the-fact manner
in which the move was dropped on him by Ember. At trial,
Andrew opposed this move because of the difficulty the dis-
tance would place on his ability to have a relationship with
Lillian, the instability in Ember’s (and Lillian’s) life, and his
concerns over the living arrangements in New York City. I do
not find that Andrew acted in a way to frustrate or manipu-
late Ember.
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 189
Cite as 22 Neb. Ct. App. 139
Having examined each party’s motive in this case, I find that
this factor weighs against removal.
(b) Potential for Enhancing
Quality of Life
(i) Emotional, Physical, and Developmental
Needs of Child
Although it appears that Lillian has adapted to life in New
York, this is the second substantial move that she has experi-
enced at a young age. However, there was no evidence of how
this move initially affected Lillian emotionally, although I note
that Lillian had not even met Bannister at the time she moved
in with him. There is nothing in the record to suggest that
Lillian’s physical needs are not being met in New York or were
not being met previously.
The district court did note that the move to New York from
Iowa has provided Lillian with exposure to dance and musical
instruction as well as cultural influences which would be ben-
eficial to her upbringing. However, there was no evidence pre-
sented as to what other options for dance and music instruction
existed in the other agreed-upon states in order to determine
whether the instruction in New York is superior, keeping in
mind that this is a young child. In fact, the record shows that
Lillian was also enrolled in a dance class while living in Iowa.
And there are certainly cultural influences available in other
areas than New York City.
I also feel inclined to note that while much emphasis has
been placed by Ember on the artistic, creative, and cultural
advantages existing in New York City, she fails to acknowl-
edge that her recent agreement to live in Iowa, Nebraska, or
Missouri (the Kansas City area) was presumably based upon
her belief that living in such areas would be in Lillian’s best
interests. There are certainly advantages to children in having
a midwestern upbringing, which seem to have been overlooked
by Ember and the majority in this case. I believe the photo-
graphs of the respective neighborhoods contained in the record
partially bear this out.
The majority gives great weight to Ember’s having been the
primary physical custodian of Lillian during her young life
Decisions of the Nebraska Court of Appeals
190 22 NEBRASKA APPELLATE REPORTS
and attributes the fact that Lillian is a happy, healthy child to
Ember’s influence. Without discounting Ember’s abilities as
a mother, the record shows that Ember has not been the sole
caretaker of Lillian throughout her life. While Ember resided
in Nebraska, her mother, Chesley, provided substantial care
for Lillian when Ember was traveling for musical engage-
ments, sometimes for weeks at a time. At some point, Ember
moved in with Day and thereafter moved with him to Iowa,
where they were married. Thus, Ember had the assistance of
Day, and later his parents, in providing a home for and rais-
ing Lillian. And now, Ember and Bannister both testified to
the assistance that he gives her in raising Lillian. Finally,
and most important, Andrew has been a regular influence
in Lillian’s life, exercising all of his parenting time with
Lillian, including school holidays and the bulk of the summer
months. Thus, I disagree that we should attribute the meeting
of Lillian’s physical, emotional, and developmental needs to
only Ember.
I conclude that this factor does not weigh in favor of or
against removal.
(ii) Child’s Opinion or Preference
There is no evidence in the record to establish Lillian’s
opinion or preference. This factor does not weigh in favor of
or against removal.
(iii) Enhancement of Custodial Parent’s
Income or Employment
Ember argues that she has unlimited potential to enhance her
income and employment by living in New York. She also notes
that she can network within the music field without sacrificing
time with Lillian. However, the evidence at trial showed that
she has earned no income from this career while in New York
and has actually assumed the role of a stay-at-home mother
who is dependent on others to provide income. The majority
emphasizes the benefit to Lillian of Ember’s being able to
be at home with Lillian during the day. While this certainly
may be a benefit to a child in general, that is not the relevant
consideration in this analysis. Rather, it is necessary to show
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 191
Cite as 22 Neb. Ct. App. 139
enhancement to income or employment in order to justify tak-
ing a child to a new jurisdiction farther away from the noncus-
todial parent. Ember has not shown in any concrete way how
her music career has been improved by living in New York as
opposed to living in any of the agreed-upon states. This factor
weighs against removal.
(iv) Degree to Which Housing or Living
Conditions Would Be Improved
Before her move to New York City, Ember and Lillian lived
with Ember and Day in his parents’ home in Decorah. There is
no further description of Lillian’s living conditions in Decorah.
After her move to New York City, Ember and Lillian began
living with Bannister in a two-bedroom apartment located near
Lillian’s school and dance classes. Lillian has her own room in
this apartment.
Because the living conditions in Iowa and New York can-
not be compared, I conclude that this factor does not weigh in
favor of or against removal.
(v) Existence of Educational Advantages
Another factor to consider is whether New York provides
Lillian with educational advantages that she would not receive
in Iowa. After leaving Iowa, Lillian began kindergarten in New
York. Ember testified that she heard New York public schools
are some of the best in the country and that she opted Lillian
into the best public school that was close to Bannister’s apart-
ment. Ember also testified that Lillian is receiving enhanced
dance instruction and private music lessons in New York and
that Lillian’s musical abilities have flourished.
Despite the testimony about Lillian’s school in New York,
Ember did not show how an Iowa education compares with a
New York education. Nor does the record indicate that Ember
researched schools in any of the other agreed-upon states. This
factor receives little or no weight when the custodial parent
fails to prove that the new schools are superior. Dragon v.
Dragon, 21 Neb. Ct. App. 228, 838 N.W.2d 56 (2012); Maranville
v. Dworak, 17 Neb. Ct. App. 245, 758 N.W.2d 70 (2008). As noted
above, Ember also failed to show that the dance and music
Decisions of the Nebraska Court of Appeals
192 22 NEBRASKA APPELLATE REPORTS
instruction in New York is superior to that which is available
in any of the agreed-upon states. Therefore, I do not weigh this
factor in favor of or against removal.
(vi) Quality of Relationship Between
Child and Each Parent
The record shows that Lillian has a good relationship with
each parent. Ember has been the primary custodial parent
for the majority of Lillian’s life (with assistance from others
as noted above), while Andrew has exercised his allocated
parenting time. This factor does not weigh in favor of or
against removal.
(vii) Strength of Child’s Ties to Present
Community and Extended Family
The record shows that Lillian and Ember do not currently
have any family ties in either Iowa or New York. Ember does
have family ties in Nebraska, although she has chosen to not
have a relationship with Chesley, her mother, at this time. On
the other hand, Andrew presented evidence of an extensive
extended family network near the Kansas City area (one of
the agreed-upon locations) that includes his parents, brother,
aunts and uncles, grandmother, and many cousins. Andrew
testified that Lillian has been able to form relationships within
Andrew’s extended family and that she has many young cous-
ins. These relationships exist in one of the locations in which
Ember previously agreed to live. Andrew is concerned that the
considerable distance created by the removal would make it
more difficult for Lillian to have these relationships. This fac-
tor weighs against the removal.
(viii) Likelihood That Allowing or Denying
Move Would Antagonize Hostilities
Between Parties
There is no evidence in the record to suggest that either
decision in this case would antagonize hostilities between
the parties. This factor does not have any weight in the
removal analysis.
Decisions of the Nebraska Court of Appeals
SCHRAG v. SPEAR 193
Cite as 22 Neb. Ct. App. 139
(c) Impact on Noncustodial Parent
in Light of Reasonable Visitation
The third factor in our consideration of the best interests is
the impact this move will have on Andrew’s parenting time.
Ember argues that the move will actually make it more con-
venient for Andrew to exercise his parenting time, because he
will no longer have to drive to Des Moines to pick up Lillian,
but, rather, he will only have to make a short drive to the
nearby Kansas City airport to pick her up. Ember also stated
that she is willing to assume all of the transportation costs.
Finally, Ember asked that the current visitation schedule be
maintained with the exception of Andrew’s parenting time on
Lillian’s birthday weekend. Ember proposed that this time be
added to Andrew’s parenting time in the summer.
Andrew disagreed with Ember’s conclusion that the move
would have little impact on his relationship with Lillian. He
noted that if Lillian lived in New York, it would no longer
be feasible for him to drive to see her at any events that were
outside his parenting time. He conceded that he had not visited
Lillian in Iowa during the time she lived there, but testified that
he had not been made aware of any such opportunity. Further,
Lillian only resided in Iowa for approximately 1 year, during
which time she was not in school and did not have school
activities for Andrew to attend.
I agree with Andrew that the distance involved in the move
from Iowa to New York greatly inhibits his ability to partici-
pate in any of Lillian’s activities that fall outside his parenting
time. The ability to participate in these activities will become
more important as Lillian continues to get older. Further, I
reject the majority’s suggestion that Andrew could feasibly
drive his entire family to visit Lillian for special occasions. A
simple Internet search reveals that such a trip is nearly 1,200
miles, requiring approximately 19 hours of driving, each way.
It is not hard to imagine the difficulties and expenses this
“family road trip” would present to a family with two small
children, where both parents work full-time jobs. This factor
weighs against the removal.
Decisions of the Nebraska Court of Appeals
194 22 NEBRASKA APPELLATE REPORTS
(d) Conclusion on Move
Having conducted a thorough review of the record in this
case, I conclude Ember did not show that she has a legitimate
reason to move Lillian to New York or that such a move is in
Lillian’s best interests. This case presents yet another difficult
and unusual situation in the removal jurisprudence, which is
the reason that I give deference to the trial judge’s determi-
nation. See Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655
(2014). I find that the district court’s conclusion was not an
abuse of discretion.
IV. REMAINING ASSIGNED ERRORS
I concur with the majority opinion with respect to removal
of the visitation restriction on Lillian’s maternal grandmother,
Chesley, and with regard to the determination of child support.
As such, I would affirm the decision of the district court in
its entirety.
State of Nebraska, appellee, v.
Lewis D. Rakosnik, appellant.
___ N.W.2d ___
Filed July 15, 2014. No. A-13-663.
1. Jury Instructions: Judgments: Appeal and Error. An assigned error of incor-
rect jury instructions is a question of law, and an appellate court has an obli-
gation to reach an independent conclusion irrespective of the decision of the
court below.
2. Jury Instructions: Appeal and Error. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
4. Trial: Testimony: Appeal and Error. The scope of cross-examination of a wit-
ness rests largely in the discretion of the trial court, and its ruling will be upheld
on appeal unless there is an abuse of discretion.