Derby v. Martinez ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/10/2016 09:09 AM CDT
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DERBY v. MARTINEZ
Cite as 24 Neb. App. 17Weston D. Derby, appellee and
cross-appellant, v. Stephanie
R. M artinez, appellant
and cross-appellee.
___ N.W.2d ___
Filed May 10, 2016. No. A-15-336.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion. In such de novo review, when the evidence is in
conflict, 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.
2. Child Custody. To prevail on a motion to remove a minor child, the
custodial parent must first satisfy the court that he or she has a legiti-
mate reason for leaving the state. After clearing that threshold, the cus-
todial parent must next demonstrate that it is in the child’s best interests
to continue living with him or her.
3. Child Custody: Visitation. Nebraska’s removal jurisprudence does
not apply to a child born out of wedlock where there has been no prior
adjudication addressing child custody or parenting time. However, it
is appropriate for a court to give some consideration to the factors
described in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592(1999), in determining custody based on the children’s best interests.
4. Child Custody. Legitimate employment opportunities for a custodial
parent may constitute a legitimate reason for leaving the state.
5. ____. Legitimate employment opportunities may constitute a legitimate
reason where there is a reasonable expectation of improvement in the
career or occupation of the custodial parent, or where the custodial par-
ent’s new job includes increased potential for salary advancement.
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DERBY v. MARTINEZ
Cite as 24 Neb. App. 176. ____. A firm offer of employment in another state with a flexible sched-
ule in close proximity to the custodial parent’s extended family consti-
tutes a legitimate reason for relocation.
7. Child Custody: Visitation. Under Farnsworth v. Farnsworth, 257 Neb.
242, 597 N.W.2d 592 (1999), the trial court evaluates three consider-
ations in determining whether removal to another jurisdiction is in the
child’s best interests: (1) each parent’s motives for seeking or oppos-
ing the move, (2) the potential that the move holds for enhancing the
quality of life for the child and the custodial parent, and (3) the impact
such a move will have on contact between the child and the noncusto-
dial parent.
8. Child Custody. In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the child and
the parent seeking removal, a court should consider the following
factors: (1) the emotional, physical, and developmental needs of the
child; (2) the child’s opinion or preference as to where to live; (3) the
extent to which the relocating parent’s income or employment will be
enhanced; (4) the degree to which housing or living conditions would
be improved; (5) the existence of educational advantages; (6) the quality
of the relationship between the child and each parent; (7) the strength
of the child’s ties to the present community and extended family there;
(8) the likelihood that allowing or denying the move would antagonize
hostilities between the two parties; and (9) the living conditions and
employment opportunities for the custodial parent, because the best
interests of the child are interwoven with the well-being of the custo-
dial parent.
9. Child Custody: Visitation. Absent some aggravating circumstances,
such as an ulterior motive to frustrate the noncustodial parent’s visita-
tion rights, significant career advancement is a legitimate motive in and
of itself.
10. Rules of the Supreme Court: Appeal and Error. Under Neb. Ct. R.
App. P. § 2-109(D)(4) (rev. 2014), a party filing a cross-appeal must set
forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.
11. ____: ____. To comply with Neb. Ct. R. App. P. § 2-109(D)(4) (rev.
2014), a cross-appeal section must set forth a separate title page, a table
of contents, a statement of the case, assigned errors, propositions of law,
and a statement of facts.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Reversed and remanded with directions.
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DERBY v. MARTINEZ
Cite as 24 Neb. App. 17Jeff T. Courtney, P.C., L.L.O., for appellant.
Carol Pinard Cronin for appellee.
Irwin, Pirtle, and R iedmann, Judges.
Pirtle, Judge.
INTRODUCTION
Stephanie R. Martinez (Stephanie) appeals from an order
of the district court for Douglas County finding that Weston
D. Derby is the biological father of Harrison Jude Derby
and awarding Stephanie custody of Harrison but denying her
request to remove him from Nebraska to Texas. Based on the
reasons that follow, we reverse, and remand with directions.
BACKGROUND
Stephanie and Weston started dating in 2011, but were never
married. Stephanie gave birth to Harrison in July 2013. The
parties’ relationship ended in January 2014. On April 3, 2014,
Weston filed an amended complaint to establish paternity, cus-
tody, parenting time, and related issues. Weston sought sole
custody of Harrison or, in the alternative, joint physical cus-
tody. Stephanie filed an amended answer and amended coun-
tercomplaint in which she sought sole custody of Harrison and
permission to “leave the jurisdiction with” Harrison.
Trial was held in March 2015. Weston testified that he is
self-employed as a stonemason, which involves building and
restoring items such as outdoor fireplaces, patios, building
entrances, pillars, and chimneys. He testified that he does not
have a set work schedule and works as much as he can.
Weston testified that he was raised in Omaha, Nebraska. His
mother lives in Omaha, as well as two of his siblings and their
children. Weston has another son, who was 7 years old at the
time of trial. He testified that he has parenting time with his
older son on a regular basis and has a good relationship with
that son’s mother. There was also evidence that Weston’s older
son and Harrison get along well with each other.
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Cite as 24 Neb. App. 17Weston testified that he was present for Harrison’s birth and
that although the parties kept separate residences, he has helped
out with Harrison since his birth. He testified that in January
2014, Stephanie cut off his contact with Harrison, which led
him to file his amended complaint. After a temporary order
was entered giving him set parenting time, he had regular con-
tact with Harrison. He testified that after the temporary order
was entered, he and Stephanie were getting along with each
other. He would bring food over to her house, purchase cloth-
ing and diapers for Harrison, and help Stephanie out around
her house. Between April and November 2014, he did various
repair and improvement work on her house. He also did work
on Stephanie’s parents’ house.
At the time of trial, Weston was living in a two-bedroom,
two-bathroom house owned by a friend. Weston had been fix-
ing up and renovating the home in lieu of rent. Weston planned
to eventually buy the home.
Weston testified that in November 2014, Stephanie’s father
told him that he and his wife, Stephanie’s mother, were think-
ing about buying a dog kennel business in Colorado and
wanted Stephanie and Harrison to move with them. Weston
told him that he did not want Harrison to move. The matter
was brought up a short time later, and Weston again indi-
cated he would not agree to Harrison’s moving out of state.
Stephanie subsequently cut off Weston’s contact with Harrison.
She also obtained an ex parte harassment protection order
against Weston on November 25 which was subsequently
ordered to remain in effect for 1 year and, thus, was still
in effect at the time of trial. At the end of December 2014,
Stephanie began allowing Weston his court-ordered parenting
time again, which continued up to the time of trial. Weston
testified that sometime between December 2014 and March
2015, he learned that Stephanie’s parents planned to move to
Weatherford, Texas, and that Stephanie wanted to move with
them and take Harrison with her.
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Cite as 24 Neb. App. 17Stephanie’s father testified that he had worked for an electric
utility company for over 24 years and was going to retire in
April 2015. He testified that he wanted to own a dog kennel
business and had located one in Weatherford that he intended
to purchase. Weatherford is located about 40 miles west of Fort
Worth, Texas, and has a population of 25,000. The distance
between Omaha and Weatherford is 664 miles, which is about
a 10-hour drive.
Stephanie’s father explained that the business he intended to
buy was not only a boarding business, but also a grooming and
breeding business, with a residence located on the property.
At the time of trial, he had signed contracts to purchase the
business and the residence on the same property for $450,000,
but the contracts were contingent on Harrison’s being able to
move to Weatherford. He testified that he wants the dog kennel
business to be a family business run by himself, Stephanie’s
mother, Stephanie, and her brother. He testified Stephanie
would be the office manager for the business. He planned
to pay her a salary of $40,000 per year, provide retirement
benefits, and make health insurance available. He testified
that Stephanie and Harrison would initially live in the home
located on the property with him and Stephanie’s mother. The
home had three bedrooms and two bathrooms. He planned to
eventually build a separate home on the property for Stephanie
and Harrison.
Stephanie’s father admitted that neither he nor Stephanie’s
mother has any experience operating a kennel and that his wife
has no experience running any type of business. He has some
experience with dogs, in that he has owned and raised a spe-
cific breed of dog for 18 years. He also testified that Stephanie
does not have any experience operating a business, or any
office experience.
Stephanie testified that she lived in a house in La Vista,
Nebraska, that she purchased on her own. She testified that
she had a state cosmetology license and was working full
time cutting hair, making $10 per hour plus tips. She was also
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Cite as 24 Neb. App. 17working every other Friday at a restaurant/bar, making $5 per
hour plus tips. Her W-2 wage and tax statement from 2014
showed that her gross earnings for the year were $30,222.19.
She stated that she does not have a retirement plan with her
current employer and that health insurance is available through
that employer but she cannot afford it.
She explained that the reason she did not let Weston see
Harrison in January 2014 was because Weston was using ste-
roids and she was concerned about Harrison’s being around
him. Weston admitted that he used steroids in the past, but has
not used any since January 2014.
Stephanie testified that she wants to move to Weatherford to
better her life for herself and Harrison. She testified that she
is not asking to move with Harrison to Weatherford to prevent
Harrison from spending time with Weston.
Stephanie testified that in April 2014, she began keeping
track of the times Weston exercised his parenting time. Under
the temporary order, he had parenting time every other week-
end and every Wednesday evening. She testified that between
April 2014 and March 9, 2015, he had been late for parenting
time at least 9 times and either was a “no-show” or did not
keep Harrison overnight about 32 times. She further explained
that since January 2015, he had regularly exercised his parent-
ing time as set forth in the temporary order, with the exception
of being late at times.
On March 31, 2015, the court entered a decree of paternity
finding that Weston was the biological father of Harrison and
awarding Stephanie sole legal and sole physical custody of
Harrison, subject to Weston’s rights of reasonable parenting
time. The court denied Stephanie’s request to remove Harrison
from Nebraska to Texas, finding that she did not prove a legiti-
mate reason to move.
ASSIGNMENT OF ERROR
Stephanie assigns that the trial court erred in finding that she
did not prove she had a legitimate reason to relocate to Texas
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Cite as 24 Neb. App. 17and asserts that had the court found she had a legitimate reason
to relocate, the evidence supported a finding that the removal
to Texas would be in Harrison’s best interests.
STANDARD OF REVIEW
[1] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
discretion by the trial court, whose judgment will be upheld in
the absence of an abuse of discretion. In such de novo review,
when the evidence is in conflict, 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. Citta v. Facka, 19 Neb. App. 736, 812
N.W.2d 917 (2012).
ANALYSIS
Removal.
[2,3] Stephanie assigns that the trial court erred in finding
that she did not prove she had a legitimate reason to relocate
to Texas. The court’s “legitimate reason” finding comes from
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592(1999), which provides that to prevail on a motion to remove
a minor child, 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. Id. However, in Coleman v. Kahler,
17 Neb. App. 518, 766 N.W.2d 142 (2009), we held that
Nebraska’s removal jurisprudence does not apply to a child
born out of wedlock where there has been no prior adjudica-
tion addressing child custody or parenting time. However, we
noted that in a case where the children’s coguardians filed a
motion to remove the children to Texas, we had stated, “‘[I]f
the instant case is determined by the children’s best interests,
then we can conceive of no good reason why Farnsworth
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Cite as 24 Neb. App. 17. . . would not be properly included in the analytical frame-
work to determine the children’s best interests.’” Coleman v.
Kahler, 17 Neb. App. at 529, 766 N.W.2d at 150, quoting In re
Interest of Eric O. & Shane O., 9 Neb. App. 676, 617 N.W.2d
824 (2000), disapproved on other grounds, In re Interest of
Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011).
Accordingly, we stated in Coleman that we would give some
consideration to the Farnsworth factors in determining custody
based on the children’s best interests.
We recently affirmed our holding in Coleman that it is
appropriate to give some consideration to the Farnsworth fac-
tors in a case involving an initial custody determination in a
paternity action. In Shandera v. Schultz, 23 Neb. App. 521,
876 N.W.2d 667 (2016), the mother and father had one child
together, and a few months after the child was born, the mother
moved to Texas with the child. The father filed a petition to
establish paternity and custody. The trial court gave some con-
sideration to the factors set forth in Farnsworth in determining
the child’s best interests and awarded the father custody. On
appeal, the mother argued that the trial court erred in doing
a complete Farnsworth analysis in a case involving an initial
custody determination in a paternity action. We concluded that
the trial court did not do a complete Farnsworth analysis, but,
rather, only gave some consideration to the Farnsworth factors
in determining what was in the child’s best interests, which
was appropriate based on Coleman.
The present case, like Shandera and Coleman, is an initial
custody determination in a paternity action where one par-
ent wants to move out of state with the parties’ child. Based
on Shandera and Coleman, it was proper for the trial court
to give some consideration to the Farnsworth factors, which
the trial court did when it addressed whether Stephanie had a
legitimate reason to leave the state. However, the court stopped
its analysis there because it concluded Stephanie did not have
a legitimate reason for removal. We disagree, and find this
decision by the trial court to be an abuse of discretion. We
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Cite as 24 Neb. App. 17determine, based on our de novo review of the record before
us, that Stephanie had a legitimate reason for removal and that
when other Farnsworth factors are considered in determining
what is in Harrison’s best interests, Stephanie should have been
allowed to move.
[4-6] In regard to a legitimate reason for removal, Stephanie
wants to move to Texas with Harrison because her parents are
moving and buying a business. Her father wants her to be the
office manager of the business and plans to pay her $40,000
per year, which is much more than she was making at her jobs
in Nebraska. She will also have retirement benefits and medi-
cal insurance. Her father also testified that he plans to have
Stephanie and her brother inherit the business. This court has
repeatedly held that legitimate employment opportunities for a
custodial parent may constitute a legitimate reason for leaving
the state. Dragon v. Dragon, 21 Neb. App. 228, 838 N.W.2d 56(2013). We have also stated that such legitimate employment
opportunities may constitute a legitimate reason where there is
a reasonable expectation of improvement in the career or occu-
pation of the custodial parent, or where the custodial parent’s
new job includes increased potential for salary advancement.
Id. We have further held that a firm offer of employment in
another state with a flexible schedule in close proximity to the
custodial parent’s extended family constitutes a legitimate rea-
son for relocation. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015).
The job in Texas provides a reasonable expectation of
improvement in Stephanie’s career and includes an increased
salary and other benefits. We conclude that Stephanie had a
legitimate reason to remove Harrison to Texas. Having so con-
cluded, we will give some consideration to the best interests
factors described in Farnsworth v. Farnsworth, 257 Neb. 242,
597 N.W.2d 592 (1999), in determining whether Stephanie
should be allowed to move to Texas with Harrison.
[7] Under Farnsworth, the trial court evaluates three
considerations in determining whether removal to another
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Cite as 24 Neb. App. 17jurisdiction is in the child’s best interests: (1) each parent’s
motives for seeking or opposing the move, (2) the potential
that the move holds for enhancing the quality of life for the
child and the custodial parent, and (3) the impact such a move
will have on contact between the child and the noncustodial
parent. See Bird v. Bird, 22 Neb. App. 334, 853 N.W.2d
16 (2014).
[8] In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the child
and the parent seeking removal, a court should consider the
following factors: (1) the emotional, physical, and develop-
mental needs of the child; (2) the child’s opinion or preference
as to where to live; (3) the extent to which the relocating par-
ent’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; (8) the likelihood that allowing or denying the move
would antagonize hostilities between the two parties; and (9)
the living conditions and employment opportunities for the
custodial parent, because the best interests of the child are
interwoven with the well-being of the custodial parent. See
Farnsworth v. Farnsworth, supra.Stephanie testified that she wants to move to Texas because
of a job opportunity and to be close to her family. She stated
that the move was not to prevent Weston from spending time
with Harrison. Weston testified that he opposes the move
because he wants to parent Harrison and does not want to
miss any time with him while he is growing up. Weston also
believes that Stephanie’s mother, whom he does not get along
with, will be Harrison’s primary caregiver if Stephanie moves
to Texas.
In regard to Harrison’s quality of life, we note that both par-
ties are good parents who love and properly care for Harrison.
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Cite as 24 Neb. App. 17Both are capable of meeting his emotional, physical, and
developmental needs. Stephanie’s income will be enhanced
by the move, and the job at the dog kennel business will give
her an opportunity she likely would not have in Nebraska.
Harrison has extended family from both parents in Nebraska,
but because Stephanie’s parents are moving too, he will have
extended family in Nebraska and Texas.
The evidence seems to indicate that allowing the move
would not antagonize hostilities between Stephanie and
Weston. Prior to the entry of the protection order (which has
now expired), the parties were getting along and communicat-
ing well. It will be important for Stephanie’s mother not to
interfere with the relationship between Weston and Harrison.
The record is clear that Weston and Stephanie’s mother do
not get along and that Weston believes she is too involved
with Harrison.
The dissent posits that while Stephanie’s new position may
have improved both her income and her benefits, “it was in
an area in which [she] had no education or training.” Thus,
the dissent concludes, “her ability to carry out the duties of an
office manager is speculative.”
[9] On the other hand, Stephanie would be working for a
family business where any needed training would be readily
available and certainly a generous learning curve would be
provided by the owners, her parents. As noted in Farnsworth v.
Farnsworth, 257 Neb. 242, 253, 597 N.W.2d 592, 600 (1999):
“Absent some aggravating circumstance, such as an ulterior
motive to frustrate the noncustodial parent’s visitation rights,
significant career enrichment is a legitimate motive in and of
itself.” (Emphasis supplied.)
Based on our de novo review of the record before us, we
determine that it would be in Harrison’s best interests to allow
Stephanie to move with him from Nebraska to Texas. Thus,
we conclude that the trial court erred in denying Stephanie’s
request to remove Harrison from Nebraska.
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Cite as 24 Neb. App. 17Cross-Appeal.
The cover of Weston’s brief indicates a cross-appeal, and he
alleges that the trial court erred in considering the harassment
protection order to deny his request for custody.
[10,11] Under Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014),
a party filing a cross-appeal must set forth a separate division
of the brief prepared in the same manner and under the same
rules as the brief of appellant. Friedman v. Friedman, 290
Neb. 973, 863 N.W.2d 153 (2015). Thus, the cross-appeal sec-
tion must set forth a separate title page, a table of contents, a
statement of the case, assigned errors, propositions of law, and
a statement of facts. Id. Other than setting forth an assigned
error, there is no cross-appeal set forth in a separate division of
the brief as required by our court rules. Therefore, we do not
consider the merits of Weston’s purported cross-appeal.
CONCLUSION
We conclude that the trial court abused its discretion in
denying Stephanie’s request to remove Harrison from Nebraska
to Texas. Accordingly, we reverse the district court’s finding
denying Stephanie’s request to remove Harrison to Texas and
remand the matter to the district court to establish parenting
time for Weston that takes into account the distance between
the parties.
R eversed and remanded with directions.
R iedmann, Judge, dissenting.
I respectfully disagree with the conclusion of the major-
ity that the district court abused its discretion in determining
that Stephanie did not have a legitimate reason for removing
Harrison from Nebraska. Based on the evidence, the district
court concluded that the success of the kennel business and
the expectation that Stephanie’s career would improve were
too speculative to constitute a legitimate reason for removal.
Without analysis, the majority simply concludes that because
Stephanie’s father plans to employ Stephanie in his new ven-
ture and because her parents are moving to Texas, her reason
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Cite as 24 Neb. App. 17for removal was legitimate and the district court’s failure to
conclude otherwise was an abuse of discretion.
Based upon my de novo review of the record, and particu-
larly those facts set forth below, I find no abuse of discretion in
the trial court’s determination that the evidence was too specu-
lative to constitute a legitimate reason for removal and I would
affirm the district court’s decision.
STANDARD OF REVIEW
As stated in the dissent in Schrag v. Spear, 22 Neb. App. 139,
175, 849 N.W.2d 551, 577 (2014), reversed on other grounds
290 Neb. 98, 858 N.W.2d 865 (2015), the standard of review
should “significantly control[] 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. Schrag v. Spear, 290
Neb. 98, 858 N.W.2d 865 (2015).
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. A judicial abuse of discretion requires that the rea-
sons or rulings of the trial court be clearly untenable insofar as
they unfairly deprive a litigant of a substantial right and a just
result. Id.FACTS
In addition to the facts set forth in the majority opinion,
the following are relevant to the analysis of whether the trial
court abused its discretion in denying removal: Stephanie’s
father was employed at one of a utility company’s nuclear
stations at the time of trial. Like Stephanie, he has no col-
lege degree or experience operating a dog kennel, nor does
Stephanie’s mother. He testified it had “been a dream of [his]
for 20 years” to own a dog kennel. And although he had
signed a purchase agreement for a kennel in Texas, contin-
gent upon Stephanie’s being allowed to remove Harrison, the
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Cite as 24 Neb. App. 17Martinez family was not moving to Texas unless Harrison
could go. In Stephanie’s father’s words, “No one is leaving
without Harrison.”
As to the operation of the business, Stephanie’s father testi-
fied that he wanted the business to initially be family-run, but
stated, “[I]f we’re successful and can grow this, I will need
help down the road at some point, possibly.” Despite his opti-
mism in operating this business, he had a contingency plan,
testifying that “if things went south, [he] would go get a job
in Weatherford.”
The location of the kennel was happenstance; the Martinez
family does not have any relatives in the area and had origi-
nally considered purchasing a kennel in Colorado.
ANALYSIS
I agree with the majority that the district court analyzed this
case within the proper framework of our case law, first deter-
mining custody and then considering whether Stephanie had a
legitimate reason for removing Harrison to Texas. I disagree,
however, that when the proper standard of review is utilized,
the district court abused its discretion in finding no legitimate
reason for removal. To be an abuse of discretion, the deci-
sion must be based upon untenable or unreasonable reasons
or must be “clearly against justice or conscience, reason, and
evidence.” Schrag v. Spear, 290 Neb. at 104-05, 858 N.W.2d
at 873.
In Schrag, the Nebraska Supreme Court highlighted the
importance of our standard of review in relocation cases:
We have previously observed that parental relocation
cases are “among the most complicated and troubling”
cases that courts must resolve. This is so because of the
competing and often legitimate interests of the parents
in proposing or resisting the move, and because courts
ultimately have the difficult task of weighing the best
interests of the child at issue “which may or may not be
consistent with the personal interests of either or both
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Cite as 24 Neb. App. 17parents.” In these cases, courts are required to balance
the noncustodial parent’s desire to maintain [his or her]
current involvement in the child’s life with the custodial
parent’s chance to embark on a new or better life. It is for
this reason that such determinations are matters initially
entrusted to the discretion of the trial judge, and the trial
judge’s determination is to be given deference.
290 Neb. at 105, 858 N.W.2d at 873, quoting Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), and citing
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
The threshold issue with respect to removal is whether
the custodial parent had a legitimate reason for the proposed
relocation. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865(2015). The Nebraska Supreme Court has held that job-related
changes may be legitimate reasons for moving where there is
a “‘“reasonable expectation of improvement in the career or
occupation of the custodial parent”’” and where the custo-
dial parent’s new job included increased potential for salary
advancement. Jack v. Clinton, 259 Neb. 198, 205, 609 N.W.2d
328, 333 (2000), quoting Farnsworth v. Farnsworth, supra.Where there are career advancement opportunities, a desire
to be in close proximity to extended family may also consti-
tute a legitimate reason for removing a minor child. Jack v.
Clinton, supra.While the evidence reveals that Stephanie’s father intended
to employ her in a more lucrative position with better ben-
efits, it was in an area of employment in which Stephanie
had no education or training. In prior cases allowing removal
based on career advancement, the job opportunities were in
the same or related areas of work in which the custodial par-
ent had past experience, education, or training. See, e.g.,
Farnsworth v. Farnsworth, supra; Jack v. Clinton, supra; and
Dragon v. Dragon, 21 Neb. App. 228, 838 N.W.2d 56 (2013).
While most employment positions do not guarantee a definite
term of employment, they virtually always require that the
employee be qualified for the position. Given Stephanie’s lack
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DERBY v. MARTINEZ
Cite as 24 Neb. App. 17of managerial skills, her ability to carry out the duties of an
office manager is speculative.
Moreover, the job opportunity arises only if Stephanie is
allowed to move Harrison to Texas. Her father’s purchase
agreement is contingent upon the court’s allowing Stephanie
to remove Harrison. Her father testified that “[n]o one is leav-
ing without Harrison.” This means that if removal is denied,
Stephanie’s father is not buying the business and there is no job
for Stephanie. This presents a different scenario than the cases
in which removal was allowed based upon a firm employment
offer. Therefore, although a $40,000 job with benefits is better
than what Stephanie presently has, given the circumstances of
the job offer, it was not an abuse of discretion for the district
court to find the employment too speculative to be the basis for
a legitimate reason for removal.
Aside from Stephanie’s lack of training, experience, or edu-
cation to fulfill the duties of an office manager, the business at
which this position is proposed is a new venture for Stephanie’s
family. No one in her family has any training, experience, or
education in operating a dog kennel. This is not a situation
in which a custodial parent is being offered a position at an
established company in another state. Even Stephanie’s father
had a contingency plan to “get a job in Weatherford” if “things
went south.”
In discussing the legitimacy of a custodial parent’s motives
for relocating, which is part of the “‘threshold question’” of
whether the parent has a legitimate reason for moving, the
Nebraska Supreme Court, in Schrag v. Spear, 290 Neb. 98,
107, 858 N.W.2d 865, 874 (2015), found no abuse of discretion
in a trial court’s determination that relocation was not neces-
sary in order to establish a new living arrangement and support
system. The district court’s conclusion was based upon the
fact that “both of those factors were entirely dependent upon
the continuation of her relationship” with a man whom the
custodial parent “had known for approximately 1 year.” Id. at
107, 858 N.W.2d at 875. Affirming the district court’s decision
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DERBY v. MARTINEZ
Cite as 24 Neb. App. 17denying removal, the Supreme Court stated that the record
clearly reflected that the custodial parent’s living arrangements
“offered no assurance of stability or permanency for herself
or her child.” Id. at 109, 858 N.W.2d at 876. In essence, the
court determined the relationship was too tenuous to support a
legitimate reason.
Likewise, in the present case, Stephanie’s proposed move
is based upon tenuous circumstances. She is accepting a job
for which she has no experience, training, or education, with a
company whose management also has no experience, training,
or education. These are sufficient facts upon which the district
court could properly determine that Stephanie’s employment
opportunities are too speculative to be the bases for a legiti-
mate reason for removal.
Nor is Stephanie’s desire to relocate near extended family
a legitimate reason for removal, in light of the facts that the
Martinez family was still in Nebraska at the time of trial and
that Stephanie’s father testified the family would not pursue the
business opportunity if removal were denied.
Based upon the above facts, the trial court’s decision to deny
removal because Stephanie did not have a legitimate reason for
removal was neither untenable nor unreasonable; nor was it
clearly against justice, conscience, reason, or evidence. I would
therefore affirm the district court’s decision.