State on behalf of Andreasen v. Andreasen ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE ON BEHALF OF ANDREASEN V. ANDREASEN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE ON BEHALF OF HONORA ANDREASEN, A MINOR CHILD, APPELLEE,
V.
MICHAEL R. ANDREASEN, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,
AND AHKESHIA K. HENLEY, THIRD-PARTY DEFENDANT, APPELLANT.
Filed August 18, 2020. No. A-19-929.
Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed.
Avis R. Andrews for appellant.
Linsey Moran Bryant and Shane J. Placek, of Sidner Law, for appellee Michael R.
Andreasen.
PIRTLE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
In 2013, Michael R. Andreasen and Ahkeshia K. Henley entered into a stipulated custody
order which awarded them joint legal custody of their minor child, Honora Andreasen, with
physical custody awarded to Ahkeshia. In 2016, Michael filed a complaint to modify in the Dodge
County District Court, seeking full custody of Honora as a result of receiving certified notice that
Ahkeshia intended to remove Honora from Nebraska to Idaho without a court order or hearing.
Ahkeshia filed a “Counter-Complaint” seeking full custody and permission to remove Honora
from Nebraska to Idaho. After a trial, the district court denied Ahkeshia’s removal request and
awarded Michael sole physical custody. On appeal, Ahkeshia challenges the district court’s denial
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of her request for removal, its calculation of child support, and its failure to award her attorney
fees and costs. We affirm.
II. BACKGROUND
1. PRIOR CIRCUMSTANCES
The parties lived together for a period of time after Honora’s birth in 2008. They separated
in June 2010; the record does not reflect that they were ever married. In 2013, the district court
entered a stipulated order awarding the parties joint legal custody of Honora, with primary physical
custody awarded to Ahkeshia. Other details of that order and its corresponding parenting plan were
discussed in State on behalf of Andreasen v. Andreasen, No. A-17-1195, 2019 WL 668519 (Neb.
App. Feb. 19, 2019) (selected for posting to court website).
2. CIRCUMSTANCES UPON AHKESHIA’S REQUEST TO
REMOVE HONORA TO IDAHO
(a) Parties’ Filings and District Court’s Temporary Order
On March 1, 2016, Michael filed a complaint to modify, alleging there had been a
substantial and material change in circumstances, namely, that Ahkeshia provided certified notice
around February 27 of her intent to remove Honora from Nebraska without a court order or
hearing. He argued it was in Honora’s best interests to remain in Nebraska and that he be granted
full temporary and permanent custody of her, and that child support be modified. The State filed
an answer on Honora’s behalf to generally deny Michael’s material allegations. After a hearing,
the district court issued an order on March 23 awarding Michael temporary full custody of Honora,
subject to Ahkeshia’s temporary parenting time (every other weekend at the maternal
grandmother’s residence, and reasonable, liberal telephonic communication). The district court
denied Honora’s removal from Nebraska without its permission and suspended Michael’s child
support obligation as of March 31.
On April 5, 2016, Ahkeshia filed an “Answer and Counter-Complaint,” denying Michael’s
material allegations. She sought full custody, revision of the parenting plan, leave to remove
Honora to Idaho, and determination of each party’s obligation for Honora’s financial support. She
alleged a modification of the stipulated order was warranted due to various reasons. She claimed
that to obtain the temporary order Michael mischaracterized her move and their discussions and
that her life changes necessitated her move.
(b) Trial
Trial took place on February 22, 2017. Evidence consisted of exhibits and testimony from
each party as well as the testimony of Ahkeshia’s mother, Joan Vignery, and Ahkeshia’s fiance,
Luis Velazquez.
Ahkeshia and Luis were longtime members of the U.S. Army Reserve. Luis was stationed
in Fremont, Nebraska, from about the summer of 2010 until August 2014. During that time, Luis
and Ahkeshia dated and they had their first child together (Honora’s half-sister). Ahkeshia said
she and Luis lived together from August 2011 to August 2013, and then separated. Ahkeshia then
lived with her parents at their home in Fremont. Ahkeshia said she and Luis tried resolving their
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“differences” and “got back together” in November 2015. After Luis left Fremont, he was stationed
in New Mexico and then became stationed in Idaho in March 2016. Ahkeshia, Luis, and Honora’s
half-sister moved to Idaho on March 15. Ahkeshia and Luis had another child (Honora’s
half-brother) in January 2017. Ahkeshia and Luis became engaged on February 14.
Michael owned a home in Kennard, Nebraska, where he had lived for about 10 years. In
March 2016, Michael started his own limited liability company. He installed “low voltage
electronics and security systems” and “whole house audio.” He worked Monday to Friday, 8 a.m.
to 5 p.m.; he made his own schedule. Michael traveled to different Nebraska cities and was “on
call wherever people need[ed] service.” Michael also worked as a subcontractor for a different
company. Regarding the time since Ahkeshia moved, Michael usually dropped Honora off at
school before work and then picked her up at about 5 p.m. to 5:15 p.m. after work. Honora’s school
had a free afterschool program until 5:45 p.m. After picking up Honora, she and Michael usually
went to the grocery store and then went home and were finished with dinner by 8:30 p.m. Michael
encouraged Honora to call Ahkeshia after dinner and tried to have Honora in bed by 9 p.m.
Since March 2016, Michael had gone to “parent/teacher conferences,” “PTA meetings,”
“Daddy/Daughter dances,” and other activities with Honora such as “Family Fun Night.”
(Ahkeshia admittedly had not stayed in touch with Honora’s school since moving to Idaho.)
Michael said he had attended “parent/teacher conferences” prior to entry of the temporary order as
well. Michael indicated Honora had been enrolled in swimming, but at the time of trial she was
not signed up for any activities. Michael took Honora to the zoo, the pumpkin patch, and the park,
and they kayaked during the summer. Michael occasionally allowed Honora to spend weekends
with Ahkeshia’s parents; Joan said Michael would let her have Honora for a weekend or up to at
least 4 days, “[p]robably about twice a month.” Michael and Honora frequently spent time with
other extended family in Nebraska, too.
Ahkeshia worked an evening shift as an area supervisor at a clothing retail store in Idaho
and expected to continue working that shift for at least 2 months. After that, she expected to work
during the daytime. The extent of Ahkeshia’s Army service was one weekend per month plus 2
weeks every year; Luis attended the same sessions. Ahkeshia said there were a couple months out
of the year where she “may” serve 3 or 4 days per month but usually it was 2 days per month. The
monthly training typically took place in Twin Falls, Idaho. Ahkeshia received advanced notice of
the date and location for the yearly 2-week training; in 2017, it was to occur in August in Virginia.
Ahkeshia indicated the wife of another service member in their unit watched their children during
the time that she and Luis were away from home for their 2-week training. Luis and Ahkeshia
acknowledged that they could be deployed at any time.
Luis was a main supervisor of over 100 soldiers. He expected the position to last for 3 to 5
years (he had already held the position for almost 1 year by trial). Luis anticipated retiring in about
5 years. It was “possible” he might reach retirement before he would have to move again. His
seniority did not provide him any control over the time he would have to move, but he could refuse
to move one time. Luis had two other teenage children from a prior marriage who lived in Texas.
Luis denied that he anticipated moving close to those children upon retirement. Luis’ normal work
hours were Monday through Friday, 8:30 a.m. to about 4:30 p.m. Concerning Ahkeshia’s night
shift at the store, Luis said he worked in a building with only four coworkers and could bring his
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children to work with him during times he and Ahkeshia both worked. He could also work from
home sometimes. Luis and Ahkeshia did not use childcare for their children; Ahkeshia said they
would do so once her store shift changed.
Luis and Joan described Ahkeshia as a “great” or “wonderful” mother. Luis and Ahkeshia
indicated they equally shared parenting responsibilities. If Honora moved to Idaho, Ahkeshia
intended to enroll her in a “Girl Scouts” troop (Honora had never been involved in that before).
Ahkeshia said Honora enjoyed hiking and visiting a lake when she visited Idaho in the summer of
2016; Michael agreed that Honora liked outdoor activities. Idaho also had a “YMCA” for indoor
activities and the family could visit Boise, Idaho, on the weekends. Ahkeshia made sure to “take
care of [her] children very well,” paid attention to their schooling, and made sure they “mind[ed]
[their] manners.” She believed in discipline but not in a “harsh” way; she indicated she also
believed in homemade meals and schedules. Michael and Luis had met during exchanges before;
Michael did not have any complaints regarding Luis’ care of Honora, and Luis supported Michael
as Honora’s father.
Other trial evidence is discussed below, as relevant to the issues on appeal. At the end of
trial, the district court took the matter under advisement.
(c) District Court’s Modification Order, Ahkeshia’s
Motion for New Trial, and First Appeal
The district court entered an “Order of Modification” on August 3, 2017. It denied
Ahkeshia’s request for removal and sustained Michael’s request for sole physical custody of
Honora; the parties retained joint legal custody. Ahkeshia was ordered to pay $330 per month in
child support. The district court set forth specific parenting time provisions in the order, namely
that Ahkeshia would have parenting time with Honora in the summer from June 1 until July 31
each year, plus the following holiday periods every year: from noon on “Christmas Day” until the
day before the end of “Christmas break,” the “entire Spring Break,” and “over the July Fourth
holiday.” The parties were given “Thanksgiving break” on an alternating basis, and Michael was
given the following holidays every year: Easter, Memorial Day, and Labor Day. Ahkeshia was to
have liberal and regular “telephone/Facetime/Skype” parenting time, and all transportation costs
“to effectuate the visitation schedule as ordered” were to be equally shared by the parties. Each
party would be responsible for their own attorney fees and costs related to the action. Michael’s
counsel was ordered to prepare an “Amended Parenting Plan” to be approved by each party’s
counsel as to form and content, and it was then to be submitted to the district court for its signature
upon completion.
After Ahkeshia’s August 10, 2017, “Motion for New Trial or Reconsideration” was
overruled in October, she appealed, claiming that the district court erred when it (1) denied her
removal request, (2) did not adopt an appropriate amended parenting plan, and (3) did not properly
calculate child support. We dismissed that appeal for lack of jurisdiction because the amended
parenting plan referenced in the modification order was not actually included or incorporated into
that order. See State on behalf of Andreasen v. Andreasen, supra.
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(d) Further Proceedings in District Court and Second Appeal
On March 1, 2019, Ahkeshia filed a motion for an order compelling Michael’s counsel to
prepare and submit for review a parenting plan as previously ordered. She also asked that Michael
be ordered to pay her attorney fees and costs incurred in relation to the appeal and further
proceedings. During an evidentiary hearing on March 25, the same day this court’s mandate of the
first appeal issued, the district court orally ordered Michael’s counsel to prepare a parenting plan
and then send it to Ahkeshia’s counsel; a signed parenting plan was to be submitted to the court
by April 8. On March 28, the district court entered a judgment spreading the mandate of this court
and ordering Ahkeshia to pay the costs of the first appeal.
On April 8, 2019, Michael’s counsel filed a parenting plan, which was approved as to form
and content by Ahkeshia’s counsel. The parenting plan conformed to the modification order.
However, it lacked a case caption or judge approval. On May 7, Ahkeshia filed an appeal, evidently
from the April 8 parenting plan. During an evidentiary hearing on July 29, the district court said it
would not award any attorney fees and it directed Ahkeshia’s counsel to prepare and file a modified
order with a parenting plan attached to it. Thereafter, on September 27, this court granted Michael’s
motion for summary dismissal of Ahkeshia’s second appeal for lack of jurisdiction because the
parenting plan was not a final order.
(e) District Court’s Approval and Incorporation of Parenting Plan Into
Prior Modification Order and Ahkeshia’s Instant Appeal
On August 22, 2019, the district court entered an order stating: “A Parenting Plan having
been prepared and submitted herein pursuant to the Court’s prior orders, said Parenting Plan is
approved by the court and considered as part of the Order of Modification entered herein on August
3, 2017, and fully incorporated therein by reference.” We note that although the order is
file-stamped August 22, 2019, the transcript index reflects a date of August 23 and the parties refer
to August 23 in their briefs. Because the clerk of the court’s file-stamp is dated August 22, 2019,
we will refer to that date as the date of the final order. See Neb. Rev. Stat. § 25-1301(3) (Cum.
Supp. 2018) (entry of judgment, decree, or final order occurs when clerk of court places file stamp
and date upon judgment, decree, or final order; for purposes of determining time for appeal, date
stamped on judgment, decree, or final order shall be date of entry).
Ahkeshia now appeals from the August 22, 2019, order.
III. ASSIGNMENTS OF ERROR
Ahkeshia claims, consolidated and restated, that the district court erred when it (1) denied
her request to remove Honora from Nebraska to Idaho, (2) did not properly calculate child support,
and (3) did not award her attorney fees and costs.
IV. STANDARD OF REVIEW
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).
In child custody cases, where the credible evidence is in conflict on a material issue of fact, the
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appellate court considers, and may give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another. Id.
Modification of child support is entrusted to the discretion of the trial court. Hotz v. Hotz,
301 Neb. 102, 917 N.W.2d 467 (2018). An appellate court reviews proceedings for modification
of child support de novo on the record and will affirm the judgment of the trial court absent an
abuse of discretion. Id.
When an attorney fee is authorized, the amount of the fee is addressed to the trial court’s
discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion. Gonzalez v.
Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
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. Schrag v. Spear, supra.
V. ANALYSIS
1. REMOVAL
Ahkeshia argues that but for her move to Idaho, “there would be no basis for a change in
physical custody.” Brief for appellant at 27. She claims that she should have been granted leave to
remove Honora from Nebraska to Idaho. Before a custodial parent can remove a child from the
state, permission of the court is required, whether or not there is a travel restriction placed on the
custodial parent. Schrag v. Spear, supra. 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. Id. After clearing that threshold, the custodial parent must also
demonstrate that it is in the child’s best interests to continue living with him or her in the new
location. Id. The paramount consideration is whether the proposed move is in the best interests of
the child. Id. We proceed to consider Ahkeshia’s claim under that framework.
(a) Legitimate Reason to Leave State
Ahkeshia’s reasons for moving to Idaho were that Luis was stationed there, she had a child
with Luis and wanted them to stay together as a family unit, and she had financial commitments.
The district court found that Ahkeshia had a legitimate reason for requesting removal of Honora
to Idaho. Michael indicates some disagreement with that decision in his appellate brief, but he did
not cross-appeal any aspect of the district court’s decision. Regardless, the record supports the
district court’s determination that Ahkeshia’s reasons for moving constituted a legitimate reason
for removal.
(b) Child’s Best Interests
In determining whether removal to another jurisdiction is in the child’s best interests, the
trial court considers (1) each parent’s motives for seeking or opposing the move; (2) the potential
that the move holds for enhancing the quality of life for the child and the custodial parent; and (3)
the impact such a move will have on contact between the child and the noncustodial parent, when
viewed in the light of reasonable visitation. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d
577 (2002). See, also, Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
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(i) Each Parent’s Motives
The ultimate question in evaluating the parties’ motives is whether either party has elected
or resisted a removal in an effort to frustrate or manipulate the other party. McLaughlin v.
McLaughlin, supra. The district court found no evidence of this, and found the parties’ motives to
be equally balanced. Despite some complaints by Ahkeshia about how Michael responded to her
request for removal, the record does not show his opposition was improper or ill motivated. The
record supports that Michael simply wanted Honora to remain in Nebraska because of the
relationship he shared with her. He testified that “it hurts just thinking about not seeing [Honora]
every day.” Ahkeshia’s removal request was not done to frustrate or manipulate Michael either.
She had a legitimate reason for her request. We agree with the district court that the parties’
motives were equally balanced.
(ii) Quality of Life
The Nebraska Supreme Court has set forth a number of factors to assist trial courts in
assessing whether the proposed move will enhance the quality of life for the child and the custodial
parent. See Farnsworth v. Farnsworth, supra. Factors to be considered include: (1) the emotional,
physical, and developmental needs of the child; (2) the child’s opinion or preference as to where
to live; (3) the extent to which the custodial parent’s income or employment will be enhanced; (4)
the degree to which housing or living conditions would be improved; (5) the existence of
educational advantages; (6) the quality of the relationship between the child and each parent; (7)
the strength of the child’s ties to the present community and extended family there; (8) the
likelihood that allowing or denying the move would antagonize hostilities between the two parents;
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. Kashyap v.
Kashyap, 26 Neb. Ct. App. 511, 921 N.W.2d 835 (2018). This list should not be misconstrued as
setting out a hierarchy of factors. Id. Depending on the circumstances of a particular case, any one
factor or combination of factors may be variously weighted. Id. Ahkeshia argues that the district
court failed to properly weigh several of those factors.
a. Emotional, Physical, and Developmental Needs of Honora
The district court found both parents to have a “strong bond” with Honora, and that both
parents “are decent people and seem to be a positive influence” on Honora. Important to the district
court was the fact that Honora had “spent her entire life in Nebraska and has family and friends
here,” and has been enrolled in the Fremont schools since she started school. Honora “has
emotional and familial ties to this state.” The district court found this factor weighed against
removal.
Although Ahkeshia and Joan testified about some concerns related to Honora maintaining
proper hygiene under Michael’s care, the district court did not attribute much weight to the hygiene
complaints because it found that Michael provided a “solid and stable” home and appeared to
provide “well” for Honora. The record supports that Honora’s emotional, physical, and
developmental needs could be met either by Michael in Nebraska or by Ahkeshia in Idaho.
Although the district court found this factor weighed against removal, its findings relate more
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closely to factor “g.” below. We conclude this factor is neutral given both parents’ ability to
provide proper care for Honora.
b. Honora’s Opinion or Preference
This factor is not applicable here because Honora did not testify at trial.
c. Enhancement of Income or Employment
The district court concluded that although Ahkeshia and Luis had good employment
opportunities in Idaho, the evidence did not indicate that “any advancement, enhancement, or
significant additional employment opportunities” were not available in Nebraska. It therefore
found this factor weighed against removal.
Before Ahkeshia’s move, she was an administrative assistant for a company in Valley,
Nebraska. She worked 8 a.m. to 5 p.m. (work days not specified) and earned $18 per hour. She
agreed that she earned between $5,000 and $6,000 a year from the Army. Her 2015 tax returns
reflect an income of about $47,000; her 2014 tax returns show about $38,000. She said the income
for those years came from her administrative assistant job and the Army. Besides her continued
Army employment, Ahkeshia did not have a job when she moved to Idaho or for a period of time
thereafter. She said she had interviewed for a job but was not hired. Ahkeshia and Luis decided
she would be a “stay-at-home mom” for a while. Ahkeshia said Luis was able to support her and
their children. By trial, Ahkeshia was an area supervisor at a clothing retail store in Idaho. She
made $11.50 per hour. Her “training hours” were 3 p.m. to 11 p.m. (days worked varied, sometimes
she had weekdays off and sometimes she worked on weekends); she anticipated having that shift
for at least 2 more months. After that, her shift would be “whatever, to cover the management
schedule” but she expected her hours to be 8 a.m. to 3 p.m.
Ahkeshia argues that for her to be with Luis and their children, “Nebraska was not an
option” because Luis was “stationed where he was stationed.” Brief for appellant at 31. Although
it appears Ahkeshia could have continued her Army training while maintaining a Nebraska
residence, the record supports that Luis had to move to Idaho to continue his Army service. A
custodial parent’s income can be enhanced because of a new spouse’s career opportunities. See
McLaughlin v. McLaughlin, supra. Ahkeshia and Luis were not engaged to each other at the time
of their move, and even though they already had a child together they had lived separately for
some time before that. Nevertheless, the record supports that they intended to live as a family unit
at the time of the Idaho move. Since Ahkeshia did not enhance her own income or employment by
moving to Idaho, the record supports the district court’s conclusion that this factor weighed against
removal.
d. Housing or Living Conditions
The district court found the quality of housing and living conditions for Ahkeshia and
Honora “would be essentially the same whether in Idaho or Nebraska,” thus finding “[t]his factor
weighs equally between the parties.”
Michael lived in a two-story house which had a parlor, living room, kitchen, bathroom, and
three bedrooms. Honora had her own room. Michael said a large garage located next to his home
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was used as his shop for his company. His neighborhood was “very peaceful.” There were children
who were Honora’s age in the neighborhood. There was a city park a “block away” from Michael’s
house. Honora enjoyed playing with Michael’s two dogs. In the past, Michael was in a relationship
with a woman who occasionally stayed with him overnight at times when Honora was there. By
trial, Michael was not in a relationship with anyone.
Ahkeshia had testified that Michael’s home was “fairly cluttered” at the time she had seen
it. She said a hallway was obstructed by boxes. Ahkeshia indicated she had seen Michael’s house
while talking with Honora over “Facetime.” However, the last time Ahkeshia had been to his house
was about a year before trial. Michael said Ahkeshia had never “physically [sic]” expressed
concern about the cleanliness of his house to him. The record does not show that Michael’s home
was unsuitable for raising a child.
Prior to her move to Idaho, Ahkeshia lived with her parents at their home in Fremont.
Ahkeshia and Luis moved into a home in Twin Falls in March 2016. The church they attended was
about 1½ miles away from that home. Michael attended church with Honora in Nebraska, too.
When Honora visited Idaho in the summer of 2016, she shared a bedroom with her half-sister.
Luis’ other two children visited him in the summer and some holidays. There were times when all
five children would be living with Ahkeshia and Luis.
By trial, Ahkeshia and Luis had signed a 1-year lease for a different home in Twin Falls
that they were going to move into on March 1, 2017. Ahkeshia said it was “much larger” than their
first Idaho home. The new home would have four bedrooms. Ahkeshia said Honora could play
with other service members’ children and would make friends in school in Idaho. Ahkeshia and
Luis testified about how Honora had positive relationships with her half-siblings. Ahkeshia felt it
was important for Honora and her half-siblings to grow up together. Luis said Honora also got
along well with his other children. Luis felt the new neighborhood was “very good.” Ahkeshia said
a park would be about 20 feet away from their backyard. Luis believed Twin Falls was a good
location for the family.
The quality of Ahkeshia’s housing and living conditions improved from her move as she
was able to live with Luis and their children. However, a comparison of the quality of Honora’s
housing and living conditions in Nebraska versus Idaho does not show much of a distinction, all
things considered. In previous cases, where the evidence does not establish any significant
improvement in housing or living conditions, we have determined that the factor does not weigh
in favor of or against removal. See, Hiller v. Hiller, 23 Neb. Ct. App. 768, 876 N.W.2d 685 (2016);
Dragon v. Dragon, 21 Neb. Ct. App. 228, 838 N.W.2d 56 (2013). For the same reason, we agree with
the district court that this factor does not weigh for or against removal here.
e. Educational Advantages
The district court found the educational opportunities for Honora were essentially the same
between Idaho and Nebraska, and thus this factor weighed equally between the parties.
Honora had attended Grant Elementary, a public school in Fremont, for almost 3 years.
Honora’s second grade report card showed she received good grades and only had two absences
for the year so far. Grant Elementary had been on a continuous education calendar. Michael had
opted to keep Honora there after Ahkeshia’s move because he thought Honora did not “lose the
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education over the summer.” The school was switching to a “standard school year” at the end of
2017. Michael’s home was located in the Arlington or Blair school district. He was considering
transferring Honora to a school in Arlington; Honora had toured it and “seemed to like it a lot.”
But Michael was also considering keeping Honora at Grant Elementary. Ahkeshia did not have
any concerns with Honora’s school at the time of trial. Ahkeshia found that the schools in Idaho
were on what Michael had described as the “standard school year” schedule. The Idaho schools
had test scores that were “average to fairly -- to above average.” Ahkeshia compiled a packet
regarding things available for Honora in Idaho, including schooling; it included a handwritten note
that they were considering enrolling Honora in a public school or a Christian school where they
attended church. It contained some statistics about Idaho schools and a school calendar for a certain
Twin Falls school district.
Ahkeshia contends that the evidence showed that regardless of the district court’s decision,
Honora “would be changing schools.” Brief for appellant at 32. However, the record suggests there
was still a chance that Honora would remain at Grant Elementary if she remained in Nebraska.
The educational advantages factor receives little or no weight when the custodial parent fails to
prove that new schools are superior. See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d
592 (1999). While Ahkeshia provided some documents and testimony about schools in Idaho, she
failed to offer any evidence to show that education in Idaho would be somehow superior to
Honora’s schooling in Nebraska. See id. Rather, she thought Honora would “excel” in school in
Idaho “just as much as she does here [in Nebraska].” Ahkeshia also argues that Honora would
benefit educationally from moving as she would be “part of a family that includes her siblings.”
Brief for appellant at 32. But Honora has plenty of family in Nebraska to learn from as well. We
agree with the district court that this factor is neutral.
f. Relationship Between Honora and Each Parent
The district court found Honora to be “well bonded to both her parents.” However, it was
concerned that “the significant distance from Nebraska to Idaho” would “greatly impact the
relationship between [Honora] and the parent left behind.” The court noted that electronic
visitation would lessen the distance impact to a limited extent, and that extended summer parenting
time would help as well. The court found that “when all factors are considered, it is apparent to
this Court that the removal of the child to Idaho would create a significant barrier to the quality of
the relationship between the minor child and the Father.” The court concluded that “[t]he
diminished contact between the Father and child weighs against removal” from Nebraska.
However, the same can be said for the impact on Ahkeshia’s relationship with Honora if Honora
remains in Nebraska. As noted by Ahkeshia, the district court focused more on the issue of the
impact of a move on contact between Honora and Michael (addressed below under item “(iii)”)
rather than on the quality of the relationship between Honora and each parent. We agree, and
because Honora had a quality relationship with both parents, we find this factor to be neutral.
g. Honora’s Ties to Present Community and Extended Family
The district court found this factor weighed against removal and we agree. The record
suggests that Honora had generally been around the same classmates during her time at Grant
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Elementary. She played with other children in Michael’s neighborhood. Several of Michael’s
extended family members lived in or near Kennard, including his parents, two of his aunts and one
uncle, his grandmother, his cousin and her husband and their son, his sister and her husband and
their four kids, and his brother. Since 2013, those family members would try to get together at least
once a week for dinner. They spent holidays together. Michael saw his sister “quite a bit” during
the week. It also “seemed like every other weekend” the family got together. Ahkeshia’s mother
and father as well as two of her sisters lived in Fremont.
Joan had regularly spent time with Honora throughout her life. Even though Joan loved
Honora, Joan supported Ahkeshia’s request to remove Honora to Idaho. Joan said she and her
husband planned to visit Idaho in August 2017, and she wanted to make regular trips there once
or twice a year. Ahkeshia admitted that her family from Nebraska had not visited her in Idaho yet
(it had been about 1 year). Nevertheless, Joan agreed that she could get along with Michael and
continue to have time with Honora regardless of the court’s decision and that she could put aside
any personal differences and do what was best for Honora.
In Idaho, Honora would be surrounded by family as well (Ahkeshia, Luis, her two
half-siblings, and sometimes Luis’ other children). Honora could make new friends and classmates
in Idaho. However, the evidence reflects that Honora had existing strong ties to both the paternal
and maternal sides of her family in Nebraska. This factor therefore weighs against removal.
h. Hostilities Between Parents
The district court found this factor to be equally balanced, noting that the evidence did “not
indicate that there is a great deal of hostility or antagonistic feelings between the parents.” The
court noted that the level and quality of communication between the parents could be better, but
that “a structured and consistent visitation and communication schedule will keep the relationship
between the parents intact while not in any way increasing the hostility between the parties.”
However, Ahkeshia believes the evidence showed that “while the parties tried to be civil,
it was clearly [Michael] who was more aggressive and non-communicative when it came to dealing
with [her] desire to move [Honora].” Brief for appellant at 34. She asserted that he did not appear
to be “overly amenable” to working with her to maintain her relationship with Honora. Id. Though
the parties had some difficulties communicating regarding Ahkeshia’s removal request, they were
agreeable to sharing legal custody of Honora as they had done in the past and they had a history
of being able to communicate with one another about Honora. During trial, Michael agreed he
would try his best to comply and allow Ahkeshia to see Honora. The parties had been able to agree
on physical parenting time for Ahkeshia other than what was stated in the temporary order. Michael
had facilitated Ahkeshia being able to maintain regular contact with Honora via technology. As
the district court stated at the end of trial, Ahkeshia and Michael both care about and love Honora.
They were able to put aside their personal differences and put Honora “first.” The record does not
support that allowing or denying removal would antagonize the hostilities between Ahkeshia and
Michael. We agree with the district court that this factor is neutral.
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W. Child’s Best Interests Are Interwoven With
Well-Being of Custodial Parent
This factor was not addressed by the district court. This final quality of life factor listed in
Farnsworth v. Farnsworth, 257 Neb. 242, 251, 597 N.W.2d 592, 599 (1999), considers “the living
conditions and employment opportunities for the custodial parent because the best interests of the
children are interwoven with the well-being of the custodial parent.” Since a comparison of the
physical residences and the custodial parent’s employment or income enhancements is considered
under separate factors, we view this factor to focus more on how the proposed new living
conditions and employment will impact the well-being of the custodial parent and how that might
impact the child. See Hiller v. Hiller, 23 Neb. Ct. App. 768, 876 N.W.2d 685 (2016). Clearly,
Ahkeshia’s well-being would be best served by being able to live in the same household with all
her children and Luis, so this factor would favor removal insofar as Ahkeshia’s happier state of
mind would favorably impact Honora.
j. Summary of Quality of Life Factors
The district court found four quality of life factors weighed against removal: Honora’s
emotional, physical, and developmental needs; enhancement of income or employment; Honora’s
relationship with her parents; and Honora’s ties to her present community and extended family. It
found the remaining factors to be neutral. We found the record supported the district court’s
determinations for the most part, disagreeing only twice that factors were neutral rather than
weighing against removal (Honora’s emotional, physical, and developmental needs, and Honora’s
relationship with her parents). We also found the final factor, not addressed by the district court,
favored removal. Therefore, overall, the quality of life factors tipped against removal and we
cannot say the district court abused its discretion when considering these factors.
(iii) Impact on Noncustodial Parent’s Visitation
The final consideration in the best interests of the child analysis is the effect of the
relocation on the noncustodial parent’s ability to maintain a meaningful parent-child relationship.
See McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002). This effect must be
viewed in light of the court’s ability to devise reasonable parenting time arrangements. See id.
Ahkeshia realizes that regardless of how the matter was decided, Honora would be
spending time with the noncustodial parent “fewer times per year but in larger increments.” Brief
for appellant at 34. That had certainly been Ahkeshia’s experience since her move to Idaho.
Understandably, Ahkeshia had not exercised the physical parenting time granted to her every other
weekend under the temporary order.
Since her move to Idaho, Ahkeshia had visited Nebraska in April and May 2016, for about
1 week each, during which she spent time with Honora. Honora stayed with Ahkeshia in Idaho for
4 continuous weeks that summer. Other than that, she did not have physical contact with Honora
until she arrived in Nebraska for trial. There had been a plan for Ahkeshia to have physical
parenting time with Honora over Christmas 2016, but it did not happen as Ahkeshia was 9½
months pregnant with Honora’s half-brother at the time. Ahkeshia’s more regular parenting time
with Honora happened via cell phone or “Facetime” calls about three times per week. Ahkeshia’s
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parenting time under the modified parenting plan entitled her to about the same time as she had
exercised from March 2016 to trial.
Michael was accustomed to having frequent parenting time with Honora throughout her
life. His parenting role had only increased since the time that Ahkeshia moved to Idaho. The record
shows that there would have been a negative effect on Michael’s ability to maintain the same
meaningful parent-child relationship he had enjoyed with Honora if Honora were to relocate to
Idaho. This factor weighs against removal.
(c) Did District Court Abuse Its Discretion?
This case presented a difficult decision regarding removal. The parties’ motivations in
seeking or opposing removal were neutral as were several of the quality of life factors. However,
overall, the quality of life factors weighed against removal. And the third consideration, the impact
the move would have on contact between Michael and Honora, also weighed against removal.
Where, as here, both parents demonstrated favorable qualities as parents, the district court’s
decision could have gone either way. Under such circumstances, we cannot say that the district
court abused its discretion in denying Ahkeshia’s request to remove Honora to Idaho.
2. CHILD SUPPORT
Ahkeshia believes the calculation of child support was inequitable because it did not factor
in any deviations. She was ordered to pay $330 per month in child support, beginning September
1, 2017. Although the evidence showed that Michael’s net income for 2016 was around $25,000
(about $11,000 from his new company and the rest from his prior employment), Michael said he
had “a lot of start-up costs” for his company and anticipated making more money from his
company in the future. His 2015 tax returns showed an adjusted gross income of $41,961; his
proposed child support calculation used that amount for his income. The district court’s child
support calculation used $3,497 per month as his monthly income. The evidence showed Ahkeshia
made $11.50 per hour and her counsel had stated that she worked 40 hours per week; Ahkeshia
agreed that she earned between $5,000 and $6,000 a year from the Army. The district court’s
calculation set Ahkeshia’s monthly income at $2,500 per month. Ahkeshia received a credit of
$187 for the health insurance premium she continued to pay for Honora.
The paramount concern and question in determining child support, whether in the initial
marital dissolution action or in the proceedings for modification of decree, is the best interests of
the child. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). The main principle
behind the Nebraska Child Support Guidelines is to recognize the equal duty of both parents to
contribute to the support of their children in proportion to their respective incomes. Gangwish v.
Gangwish, supra. In general, child support payments should be set according to the Nebraska Child
Support Guidelines, which compute the presumptive share of each parent’s child support
obligation. Gangwish v. Gangwish, supra. A deviation in the amount of child support is allowed
whenever the application of the guidelines in an individual case would be unjust or inappropriate.
See Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013). Deviations from the guidelines
must take into consideration the best interests of the child. Id.; Neb. Ct. R. § 4-203 (rev. 2011).
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Specifically, Ahkeshia claims that the district court should have granted her deviations in
consideration of her other children, her extended summer parenting time with Honora, and the
transportation costs related to exercising her parenting time.
(a) Ahkeshia’s Other Biological Children
As relevant here, credit may be given for biological or adopted children for whom the
obligor provides regular support. Neb. Ct. R. § 4-205(E) (rev. 2016). The trial court has discretion
to choose whether and how to calculate a deduction for subsequent children. Schwarz v. Schwarz,
289 Neb. 960, 857 N.W.2d 802 (2015). When the court decides to allow a deduction, the
calculation is left to its discretion so long as it considers the obligations to both families and the
income of the subsequent child’s other parent. Id. No precise mathematical formula exists for
calculating child support when subsequent children are involved, but the court must perform the
calculation in a manner that does not benefit one family at the expense of the other. Id. The party
requesting a deduction for his or her obligation to support subsequent children bears the burden of
providing evidence of the obligation, including the income of the other parent of the child. Id.
Ahkeshia argues she should have been given a deviation for being financially responsible
for her and Luis’ two children born after Honora. While the evidence did not show that Luis was
under a “legal obligation,” brief for appellant at 35, such as a child support order to support those
children, Ahkeshia testified that she and Luis had combined their incomes since their move to
Idaho to support their children. From Ahkeshia’s own testimony, she and Luis both financially
contributed to the regular support of their children. However, while Ahkeshia’s paystubs and
individual tax returns were received into evidence, there is no evidence about Luis’ income. Nor
is there evidence of the amount required to regularly support their children. Ahkeshia had the
burden to present that evidence. See Schwarz v. Schwarz, supra. Moreover, her proposed child
support calculation did not include a deduction for regular support for other children. We cannot
say the district court abused its discretion by not granting Ahkeshia a deviation for her support of
her and Luis’ two children.
(b) Extended Summer Parenting Time
The guidelines indicate that abatement of a child support obligation may be appropriate
during periods of extended parenting time. Neb. Ct. R. § 4-210 states, in relevant part:
Visitation or parenting time adjustments or direct cost sharing should be specified
in the support order. If child support is not calculated [pursuant to a joint custody order],
an adjustment in child support may be made at the discretion of the court when visitation
or parenting time substantially exceeds alternating weekends and holidays and 28 days or
more in any 90-day period. During visitation or parenting time periods of 28 days or more
in any 90-day period, support payments may be reduced by up to 80 percent.
Ahkeshia asserts that such an abatement should have been made in light of her extended
parenting time with Honora from June 1 through July 31 each year, which is a total of 61
continuous days of parenting time. That parenting time exceeds 28 days in a 90-day period and
therefore § 4-210 provides for a reduction of support payments by up to 80 percent during that
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time. However, § 4-210 does not mandate any adjustment. Given that the distance between Idaho
and Nebraska will reduce more regularly scheduled parenting time between Ahkeshia and Honora
during the other 10 months of the year, this will result in Michael shouldering increased financial
responsibilities during those other months. We cannot say the district court abused its discretion
by not deviating from the guidelines in consideration of Ahkeshia’s extended parenting time each
summer.
(c) Transportation Costs
Ahkeshia complains that the district court did not allow a deviation in child support for
transportation costs. Section 4-210 provides that the court may deviate from the guidelines when
a parent must pay substantial and reasonable long-distance transportation costs directly associated
with parenting time. There was evidence that the parties had agreed during mediation that they
would meet halfway in Denver to exchange Honora for all holidays and parenting time. The district
court ordered that all transportation costs related to effectuating the parenting time schedule were
to be equally shared by the parties. Under those circumstances, we cannot say the district court
abused its discretion by not granting Ahkeshia a deviation in child support for transportation costs.
3. ATTORNEY FEES AND COSTS
Ahkeshia claims the district court erred by failing to award her attorney fees and costs. Her
counsel’s affidavit was received into evidence during the March 25, 2019, hearing on her motion
to compel, showing legal fees and costs totaling $4,782.75. Attorney fees relate to Ahkeshia’s
motion for a new trial, her first appeal, and her motion to compel and the March 25 hearing. Costs
relate to Ahkeshia’s first appeal.
Attorney fees and expenses may be recovered only where provided for by statute or when
a recognized and accepted uniform course of procedure has been to allow recovery of attorney
fees. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019). Attorney fees and costs are
statutorily allowed in paternity and child support cases. Coleman v. Kahler, 17 Neb. Ct. App. 518, 766
N.W.2d 142 (2009) (citing to Neb. Rev. Stat. § 43-1412(3) (Reissue 2008) and Cross v. Perreten,
257 Neb. 776, 600 N.W.2d 780 (1999)). In Cross v. Perreten, supra, the Nebraska Supreme Court
affirmed a district court’s award of attorney fees in a paternity action, finding that Neb. Rev. Stat.
§§ 43-512.04(5) and 43-1412(3) (Reissue 1998) “specifically provide that attorney fees and costs
are allowed in paternity and child support cases brought by a child’s mother, father, guardian or
next friend, the county attorney, or other authorized attorney.” Cross v. Perreten, 257 Neb. at 783,
600 N.W.2d at 786. Also, attorney fees and costs shall be awarded against a party who alleged a
claim or defense that the court determined was frivolous, interposed any part of the action solely
for delay or harassment, or unnecessarily expanded the proceedings by other improper conduct.
Neb. Rev. Stat. § 25-824(4) (Reissue 2016).
When an attorney fee is authorized, the amount of the fee is addressed to the trial court’s
discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion. Gonzalez v.
Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
Ahkeshia argues that if Michael’s counsel would have complied with the order to prepare
a parenting plan and timely submitted the same, it would have saved her time and expense. Under
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the 2017 partial modification order, Michael’s counsel was to prepare a parenting plan for
submission to the court for its signature. Michael’s counsel failed to do that before Ahkeshia filed
her motion for a new trial and her first appeal. Arguably, Ahkeshia’s action in filing an appeal
before the parenting plan was submitted and approved by the district court also contributed to the
delay in the underlying proceedings. It appears that both parties’ counsel contributed to the delay
in this action related to the parenting plan and securing a final, appealable order. We cannot say
that the district court abused its discretion by not awarding Ahkeshia her requested attorney fees
and costs.
VI. CONCLUSION
We affirm the district court’s August 22, 2019, order which fully incorporates the August
3, 2017, modification order and subsequently filed parenting plan.
AFFIRMED.
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