Rommers v. Rommers

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606 22 NEBRASKA APPELLATE REPORTS
monitoring. However, when the court sentenced Brooks to
probation, it was also required by § 60-6,197.03(6) to impose a
$1,000 fine, and it failed to do so.
[11] A sentence is illegal when it is not authorized by the
judgment of conviction or when it is greater or less than the
permissible statutory penalty for the crime. State v. Alba, 13
Neb. Ct. App. 519, 697 N.W.2d 295 (2005).
[12] Inasmuch as this court has the power on direct appeal
to remand a cause for the imposition of a lawful sentence
where an erroneous one is pronounced, see State v. Conover,
270 Neb. 446, 703 N.W.2d 898 (2005), we vacate the sentence
imposed for third-offense refusal to submit to a chemical test
and remand the matter for imposition of the sentence required
by law.
CONCLUSION
We reject Brooks’ claim that mitigating facts brought
to the attention of the court by a defendant pursuant to
§ 60-6,197.02(3) are used by the district court in determining
whether an otherwise valid prior offense should be used for
the purpose of enhancement. Therefore, we affirm his con-
viction. However, because we find that the court imposed an
illegal sentence by failing to impose a statutorily required fine,
we vacate Brooks’ sentence and remand the matter for imposi-
tion of the sentence required by law.
Affirmed in part, and in part vacated
and remanded for resentencing.
Aaron E. Rommers, appellant, v.
Elizabeth S. Rommers, appellee.
___ N.W.2d ___
Filed December 16, 2014. No. A-14-119.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of marriage,
an appellate court reviews de novo on the record the trial court’s determinations
of custody, child support, property division, alimony, and attorney fees; these
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determinations, however, are initially entrusted to the trial court’s discretion and
will normally be affirmed absent an abuse of that discretion.
2. Visitation: Appeal and Error. Parenting time 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.
3. Child Support: Taxation: Appeal and Error. An award of a dependency
exemption is reviewed de novo to determine whether the trial court abused
its discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
5. Evidence: Appeal and Error. When evidence is in conflict, an 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.
6. Child Custody. The standard for determining custody is parental fitness and the
child’s best interests.
7. ____. In determining the best interests of the child in a custody determination, a
court must consider, at a minimum, (1) the relationship of the minor child to each
parent prior to the commencement of the action or any subsequent hearing; (2)
the desires and wishes of the minor child if of an age of comprehension regard-
less of chronological age, when such desires and wishes are based on sound
reasoning; (3) the general health, welfare, and social behavior of the minor child;
and (4) credible evidence of abuse inflicted on any family or household member.
Other pertinent factors include the moral fitness of the child’s parents, including
sexual conduct; respective environments offered by each parent; the age, sex, and
health of the child and parents; the effect on the child as a result of continuing or
disrupting an existing relationship; the attitude and stability of each parent’s char-
acter; and the parental capacity to provide physical care and satisfy educational
needs of the child.
8. Evidence: Appeal and Error. When evidence is in conflict, an 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.
9. Child Custody. The custodial parent must satisfy the court that there is a legiti-
mate reason for leaving the state and that it is in the minor child’s best interests
to continue to live with that parent.
10. Child Custody: Visitation. There are three broad considerations to consider
whether removal from the state is in the children’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 children and the custodial parent; and (3)
the impact such a move will have on the contact between the children and the
noncustodial parent, when viewed in the light of reasonable visitation.
11. ____: ____. The purpose of requiring a legitimate reason for removing children
from the state is to prevent the custodial parent from relocating because of an
ulterior motive, such as frustrating the noncustodial parent’s visitation rights.
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12. ____: ____. A reasonable visitation arrangement should provide a satisfactory
basis for preserving and fostering a child’s relationship with the noncusto-
dial parent.
Appeal from the District Court for Holt County: Mark D.
Kozisek, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Joel E. Carlson, of Stratton, DeLay, Doele, Carlson &
Buettner, P.C., L.L.O., for appellant.
Lori McClain Lee, of Legal Aid of Nebraska, for appellee.
Inbody, Riedmann, and Bishop, Judges.
Inbody, Judge.
INTRODUCTION
Aaron E. Rommers appeals the order of the Holt County
District Court dissolving his marriage to Elizabeth S. Rommers
and awarding her custody of the parties’ minor child in Arizona.
For the reasons that follow, we affirm in part, and in part
reverse and remand the matter back to the district court for
further proceedings.
STATEMENT OF FACTS
Aaron and Elizabeth were married in February 2010. Of
that marriage, one minor child, Samantha Rommers, was born
in June 2012. On January 2, 2013, Aaron filed a complaint for
dissolution asserting that the marriage between himself and
Elizabeth was over and that both parties were fit and proper
to have custody of Samantha. The complaint further asserted
that Elizabeth and Samantha had been living in Arizona
since December 4, 2012. The complaint requested that the
court dissolve the parties’ marriage, divide the property and
debts, and award the parties joint physical and legal custody
of Samantha.
Elizabeth filed an answer and counterclaim alleging that an
ongoing custody case had been filed on December 7, 2012,
in the Superior Court of Pinal County, Arizona, in which
Elizabeth had been granted temporary emergency custody of
Samantha. Elizabeth’s counterclaim requested that the court
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dissolve the parties’ marriage, divide the property and debts,
and award Elizabeth custody and child support. The proceed-
ings initiated in Arizona were later dismissed, and all further
proceedings were held in Nebraska.
At trial in December 2013, various family members for both
parties testified. Aaron testified that he married Elizabeth in
2010 and that he, Elizabeth, and Samantha lived in the same
home where he still resides in Ewing, Nebraska. Aaron testi-
fied that he has lived in Ewing his entire life and that he has
a large family which also lives in the area. Aaron testified that
he had family and community support and wanted to have
Samantha in his life.
Aaron testified that during the marriage, he shared parental
responsibilities with Elizabeth and would help out whenever
he could with both Samantha and household duties such as
cooking and cleaning. Aaron was employed full time and has
continued to maintain that employment throughout the pro-
ceedings, earning $17.84 per hour.
Aaron testified that Elizabeth left the family home with
Samantha on December 3, 2012. Aaron explained that
Elizabeth did not return any of his text messages that day
and that when he arrived home from work, she and Samantha
were gone. Aaron learned that Elizabeth was in Arizona when
he saw that she had used a debit card from his checking
account in that area. Sometime thereafter, Aaron spoke with
Elizabeth, who indicated that she and Samantha would not be
returning to Nebraska. Aaron testified that the distance from
his home to where Elizabeth and Samantha reside in Arizona
is 1,400 miles one way. Aaron testified that he attempted to
make arrangements with Elizabeth to see Samantha, but that
Elizabeth refused until June 2013, when she gave him permis-
sion to make a trip to Arizona before Samantha’s first birth-
day. On June 17, Aaron made the 24-hour car trip to Arizona,
where he spent four nights. Elizabeth did not allow Aaron
to see Samantha on the first day he was in Arizona, but did
allow about 3 hours per day thereafter, broken into two times
per day. Aaron testified that either Elizabeth, her brother, or
her sister-in-law was present at all of the visits. Aaron testi-
fied that the total expenses for the trip equated to $1,200 and
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that making that trip again would be very financially difficult
for him. Aaron testified that he has not made any further trips
to Arizona, but had recently begun to have “Skype visit[s]”
with Samantha over the Internet.
Aaron testified that initially, when Elizabeth left him, he
attempted to support her by putting money in his checking
account for her to access, but was unable to continually pro-
vide that type of support because he had been sued on several
debts and had his wages garnished.
Aaron testified that he believed Elizabeth left him because
she was upset by a picture and e-mail he received of another
woman, but that he did not have any Internet communications
with other women. Aaron testified that he had been frustrated
at times when Samantha was an infant because she was col-
icky and it was difficult for both him and Elizabeth to soothe
Samantha, but that he had not lost his patience with her. He
refuted Elizabeth’s accusations that he had lashed out against
property in moments of frustration.
Aaron’s aunt testified that she had observed Aaron with
Samantha in the months after her birth and that he positively
interacted with Samantha and was a proud father. Aaron’s aunt
had not seen Samantha since September 2012.
Aaron’s mother, Laura Rommers, testified that Aaron owns
his own home, which was approximately four blocks from her
home, and that it is a two-bedroom, one-bathroom home where
he had lived with Elizabeth and Samantha during the marriage.
Laura testified that Aaron took care of Samantha and shared
parental and household responsibilities with Elizabeth. Laura
testified that Elizabeth breastfed Samantha and that there were
not many occasions when Aaron could feed Samantha. Laura
also observed him changing diapers and bathing Samantha.
Laura testified that after Samantha was born, Aaron worked
full time and Elizabeth became a stay-at-home mother. Laura
testified that in December 2012, Elizabeth took Samantha with
her to Arizona and did not return to Nebraska, and that since
that time, Aaron has been sad and more quiet than normal.
Laura testified that Aaron has a large family and support in
the area and that Aaron should have custody of Samantha
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because he loves Samantha and would do everything he could
for her.
Elizabeth testified that she grew up in an Amish community
and met Aaron on a “Farmers Only” Web site “chat room.”
Elizabeth testified that she has 10 siblings, none of whom live
in Nebraska. In September 2009, Elizabeth moved to Nebraska
to live with Aaron and worked full time as a manager at a gro-
cery store, earning $8 per hour, until shortly before giving birth
to Samantha. Elizabeth did not return to any type of employ-
ment until moving to Arizona.
After Samantha’s birth, Elizabeth stayed at home as the
primary caregiver and Aaron worked a full-time job. Elizabeth
testified that Aaron did not assist her with Samantha and
became easily frustrated because of Samantha’s colic, often
yelling at Samantha to shut up. Elizabeth testified that on one
occasion, Aaron became so frustrated he punched a dent into a
wall and said he was done being a father. Elizabeth described
Aaron as often aggressive and destructive of property in frus-
tration. Elizabeth testified that Aaron spent “quite a bit of
time” at home on the computer and that she was worried about
leaving him alone with Samantha.
Elizabeth testified that she observed conversations that
Aaron had with other women through e-mail and pictures on
social media Web sites. Elizabeth believed that the conversa-
tions were inappropriate because she believed they were with
younger women, but she did not know the ages of any of the
women he had engaged with during online conversations.
Elizabeth submitted evidence of one such conversation with
Aaron’s ex-girlfriend’s sister, who Elizabeth testified was 12
or 13 years old, which involved an inappropriate picture of the
girl. Elizabeth explained that she asked Aaron to stop com-
municating with other women, but that when he did not, she
decided to leave.
Elizabeth left for Arizona on December 3, 2012, and she
testified that she left Aaron a note and her wedding ring,
but did not actually speak with him until the following day.
Elizabeth testified that since moving to Arizona, she has lived
with her brother and his wife, along with their six children,
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who range in age from 7 to 15. The home has four bedrooms
and three bathrooms, and Elizabeth and Samantha share a
bedroom and bathroom. Elizabeth pays her brother $100 per
month for both rent and childcare. Elizabeth testified that this
residential situation is only temporary and that she hopes to be
able to get her own place in the future. Elizabeth is employed
as a cashier at a truckstop, earning $8.50 per hour and work-
ing approximately 30 hours a week. While Elizabeth works,
her sister-in-law cares for Samantha, who gets along very well
with her cousins.
Elizabeth testified that she has never refused Aaron visita-
tion with Samantha if he was willing to travel to Arizona,
but explained that she could not travel because she does not
have a vehicle. Elizabeth testified that she has had frequent
contact with Aaron and had also allowed Aaron visitation with
Samantha during the time she and Samantha were in Nebraska
for the trial proceedings. Elizabeth explained that she wanted
supervised visitations between Aaron and Samantha because
she was concerned with his temper and outbursts.
On December 30, 2013, the district court entered an order
dissolving the parties’ marriage. The court divided the parties’
assets and debts, ordered no alimony, and ordered each party
to pay his or her own costs and attorney fees. The court found
that Elizabeth had moved to Arizona with Samantha before
any proceedings were initiated in Nebraska, but determined
that since there had been no previous custody determination,
the court was not required to engage in a removal analysis
under Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d
592 (1999), insomuch as Elizabeth was not required to prove
that she had a legitimate reason for leaving the state. However,
the court found that although Farnsworth was not the requisite
analysis, the factors of the Farnsworth analysis should be taken
into account within the framework of a best interests analysis,
and the court was still required to take into consideration the
parents’ reasons for seeking or opposing the move, the poten-
tial that the move holds for enhancing the quality of life for the
child and custodial parent, and the impact the move will have
on the child and noncustodial parent.
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Cite as 22 Neb. Ct. App. 606
As to the motives of the parties, the trial court found
that Elizabeth moved to Arizona with Samantha to live with
her brother because she had reported Aaron to law enforce-
ment after finding a picture of what she believed to be a
young naked girl on his cell phone and due to his temper
and aggressiveness. The court found that Aaron opposed the
move because it would curtail his time with Samantha, but
that the parties’ motives favored the move to Arizona. The
court further determined that the move to Arizona was not
for better employment opportunities and that over the past
year, Elizabeth had been working as a cashier for minimum
wage without evidence of improvement, which factor weighed
against the move. The court also found that both parties had
large families and that while Samantha had a close relation-
ship with Elizabeth’s large family in Arizona, Samantha had
little contact with Aaron’s family, which weighed slightly
against the move.
The court also engaged in a review of several other factors
and found that the parties had both testified as to their family
relationship and had given considerably different accounts.
The court found that Elizabeth was the primary caregiver and
provided for the majority of Samantha’s needs and that Aaron
helped, but was not the primary provider. The court found
that Elizabeth had been taking care of Samantha with the help
of family, but without much financial help from Aaron. The
court found that because Samantha was very young, there
was no evidence regarding her desires and wishes or of her
general health, welfare, and social behavior. The court found
that there was no credible evidence of child abuse, neglect,
or domestic intimate partner abuse, but that Aaron had a tem-
per and had acted out in a physical and aggressive manner
which justified Elizabeth’s concerns about leaving Aaron alone
with Samantha.
The district court found that while there was no evi-
dence concerning Elizabeth’s moral fitness, there was evi-
dence which called into question Aaron’s moral fitness and
did not reflect favorably thereon—such as pictures of a naked
young girl and communications with young girls with sexual
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614 22 NEBRASKA APPELLATE REPORTS
innuendos—but that “[o]ther than Aaron’s relationships with
young girls, the evidence did not disclose any deficits in the
attitude or stability of [either party’s] character.” The court
found that Aaron lived alone and that Elizabeth and Samantha
lived with her brother’s family of eight in a four-bedroom
home. The court further found that Samantha had not formed
relationships because of her young age, and as such, the court
was unable to conclude that any less-frequent contacts would
be detrimental.
The court concluded that custody of Samantha with
Elizabeth in Arizona, subject to visitation with Aaron, was
in Samantha’s best interests. The court ordered that due to
Samantha’s young age, if Aaron were to exercise any visita-
tion with Samantha, it must be done in Arizona at Aaron’s
expense, citing evidence which rebutted the presumption of
the application of the Nebraska Child Support Guidelines;
it ordered a deviation of $75 per month for Aaron’s travel
expenses. The court ordered Aaron to pay $424 per month
in child support. The court ordered Aaron to maintain health
insurance for Samantha and ordered that after the first $480
of any calendar year’s unreimbursed health care expenses for
Samantha, for which Elizabeth was to be responsible, Aaron
was to be responsible for 70 percent of any further such
expenses and Elizabeth for 30 percent.
Specifically, as to Aaron’s visitation, Aaron was awarded
parenting time until Samantha was 5 years old on Christmas
and during spring break in even-numbered years, on New
Year’s Day and during fall break in odd-numbered years, and
for 1 continuous week of summer visitation. Once Samantha
reached the age of 5, Aaron was awarded holiday parenting
time in odd-numbered years during Easter, the Fourth of July,
Thanksgiving, and New Year’s Day and in even-numbered
years during the Memorial Day weekend, the Labor Day
weekend, Christmas, and Samantha’s birthday. Furthermore,
once Samantha reached the age of 5, Aaron was awarded
visitation on Father’s Day and Aaron’s birthday and his sum-
mer visitation was extended to 6 continuous weeks. Aaron
was also allowed to call and video chat with Samantha on
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Sunday, Wednesday, and Friday of each week, for not less than
15 minutes.
Aaron filed a motion for new trial or, in the alternative, to
alter and amend, which was denied by the district court. Aaron
has timely appealed to this court.
ASSIGNMENTS OF ERROR
Aaron assigns that the district court erred by awarding
custody of Samantha to Elizabeth, by ordering a parenting
plan that restricts his parenting time with Samantha, in fail-
ing to find that Elizabeth’s flight to another state was a factor
in determining custody and parenting time, in failing to find
that Elizabeth intentionally alienated Samantha from Aaron, in
not providing a sufficient deviation in the child support cal-
culation for transportation costs, and in failing to allocate the
income tax exemption for Samantha.
STANDARD OF REVIEW
[1] In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court’s determi-
nations of custody, child support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion. Mamot v. Mamot,
283 Neb. 659, 813 N.W.2d 440 (2012).
[2] Parenting time 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.
See Rosloniec v. Rosloniec, 18 Neb. Ct. App. 1, 773 N.W.2d
174 (2009).
[3] An award of a dependency exemption is reviewed de
novo to determine whether the trial court abused its discretion.
Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).
[4] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Fitzgerald v. Fitzgerald, 286
Neb. 96, 835 N.W.2d 44 (2013).
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[5] When evidence is in conflict, an appellate court consid-
ers, 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. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013).
ANALYSIS
Application of Coleman
v. Kahler.
Both parties in this case focus on Coleman v. Kahler, 17
Neb. Ct. App. 518, 766 N.W.2d 142 (2009), which the district
court relied upon in its order on the dissolution of the par-
ties’ marriage. The district court determined that the tradi-
tional removal analysis under Farnsworth v. Farnsworth,
257 Neb. 242, 597 N.W.2d 592 (1999), was not necessary
in the custody determination at hand because there had been
no prior custody order. Instead, the district court engaged in
an analysis of the best interests of Samantha regarding plac-
ing custody with Elizabeth in line with the findings made
in Coleman.
In Coleman v. Kahler, supra, a father and mother were in
a relationship from which two children were born, but they
were never married. Various orders regarding paternity and
child support were entered, but no custody determinations were
made, and the mother eventually moved with the children out
of the state. Id. The trial court awarded custody of the par-
ties’ minor children to the mother, finding that it was in the
best interests of the children to award the mother custody and
to allow her to remove the children out of the state. Id. On
appeal, the father asserted that the trial court erred in allowing
the mother to remove the children and in denying his request
for custody. Id. This court held that Nebraska’s removal juris-
prudence does not apply to a child born out of wedlock where
there has been no prior adjudication addressing child custody
or parenting time. Id.
Clearly, the facts of the present case differ from those of
Coleman v. Kahler, supra, insofar as this case involves an
original action for dissolution, as Aaron and Elizabeth had
been married, and insofar as this was not a paternity action.
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Therefore, the parties’ focus and the district court’s reliance
on the findings of Coleman are misplaced. If the Nebraska
court system were to allow litigants to mesh original custody
determinations and removal determinations in such a way
as has occurred in this case, it would allow parents to leave
the state with children before any filing occurred and with-
out any repercussions and would allow parents to avoid any
scrutiny under a removal analysis. The trial court should have
first entered an order regarding custody and then conducted a
proper Farnsworth removal analysis, which would take into
account an appropriate parenting plan in accordance with the
custody determination and decision regarding removal and
would also include a determination regarding child support
and an award of the tax exemption. Cf. Clinton M. v. Paula
M., 21 Neb. Ct. App. 856, 844 N.W.2d 814 (2014), and State
on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb.
App. 409, 838 N.W.2d 351 (2013) (in cases where noncus-
todial parent is seeking sole custody of minor child while
simultaneously seeking to remove that child from jurisdiction,
court should first consider whether material change in circum-
stances has occurred and, if so, whether change in custody
is in child’s best interests; if this burden is met, then court
must make determination of whether removal from jurisdiction
is appropriate).
Therefore, upon our de novo review of the record, the dis-
trict court’s and the parties’ reliance upon Coleman v. Kahler,
supra, was in error. We shall address the effect of this determi-
nation upon the district court’s specific findings in turn.
Custody.
Aaron argues that the district court erred by awarding
Elizabeth custody of Samantha subject to his rights of reason-
able parenting time.
[6-8] The standard for determining custody is parental fit-
ness and the child’s best interests. See Gress v. Gress, 271
Neb. 122, 710 N.W.2d 318 (2006). Nebraska’s Parenting Act
states that it is in the best interests of the child to have a “safe,
stable, and nurturing environment.” Neb. Rev. Stat. § 43-2921
(Reissue 2008). In determining the best interests of the child
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in a custody determination, a court must consider, at a mini-
mum, (1) the relationship of the minor child to each parent
prior to the commencement of the action or any subsequent
hearing; (2) the desires and wishes of the minor child if of an
age of comprehension regardless of chronological age, when
such desires and wishes are based on sound reasoning; (3)
the general health, welfare, and social behavior of the minor
child; and (4) credible evidence of abuse inflicted on any fam-
ily or household member. Other pertinent factors include the
moral fitness of the child’s parents, including sexual conduct;
respective environments offered by each parent; the age, sex,
and health of the child and parents; the effect on the child as a
result of continuing or disrupting an existing relationship; the
attitude and stability of each parent’s character; and the paren-
tal capacity to provide physical care and satisfy educational
needs of the child. Robb v. Robb, 268 Neb. 694, 687 N.W.2d
195 (2004). When evidence is in conflict, an 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. Hajenga v. Hajenga, 257 Neb.
841, 601 N.W.2d 528 (1999).
The record in this case indicates that Samantha was very
young when Elizabeth left the home and that thus, there was
not much evidence regarding the relationship of Samantha
with each parent prior to the commencement of the action,
other than testimony given that Elizabeth was the primary
caregiver and that Aaron was involved with Samantha’s care.
This also affects consideration of the desires and wishes of
the child, as Samantha is too young to speak, much less com-
municate her preference. The record indicates that Samantha
was generally healthy, with the exception of being colicky as
a newborn, and was progressing as expected. The record does
not contain any credible evidence of abuse inflicted on any
family or household member.
The record indicates that both parents could provide
Samantha with a place to live and that both parents were fit
and had the capacity to provide physical care and satisfy the
educational needs of Samantha. However, the record indicates
that Aaron had a temper and was easily frustrated in dealing
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Cite as 22 Neb. Ct. App. 606
with Samantha’s fussiness associated with her colicky condi-
tion. The record also indicates that Elizabeth was concerned
with Aaron’s moral fitness after finding a picture of a naked
woman on his cell phone and social media Web site conversa-
tions with other women on his computer.
Based upon our de novo review of the evidence, we find
that the district court did not abuse its discretion by awarding
custody of Samantha to Elizabeth. Both parents are fit to parent
Samantha, but because Elizabeth is the primary caregiver of
Samantha, custody with Elizabeth is not an abuse of discretion.
Therefore, we affirm that portion of the district court’s order
awarding custody of Samantha to Elizabeth.
Removal.
Aaron assigns that the district court erred by allowing
Elizabeth to leave the state with Samantha. Aaron agrees
with the district court that while the analysis set forth in
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592
(1999), does not “‘technically’” apply, the factors of the
Farnsworth analysis should be taken into consideration. Brief
for appellant at 20.
[9] Once the district court has made the initial custody deter-
mination, it should not skip over the majority of the removal
analysis if the parent has requested or, as in this case, has
already left the state with the child. There is a two-step process
before a custodial parent is allowed to remove a child from the
State of Nebraska. The custodial parent must satisfy the court
that there is a legitimate reason for leaving the state and that
it is in the minor child’s best interests to continue to live with
that parent. See id.
[10] Farnsworth sets forth three broad considerations to
consider whether removal is in the children’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 children and the custodial parent; and (3) the
impact such a move will have on the contact between the chil-
dren and the noncustodial parent, when viewed in the light of
reasonable visitation. See Wild v. Wild, 15 Neb. Ct. App. 717, 737
N.W.2d 882 (2007).
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620 22 NEBRASKA APPELLATE REPORTS
[11] The purpose of requiring a legitimate reason is to pre-
vent the custodial parent from relocating because of an ulterior
motive, such as frustrating the noncustodial parent’s visitation
rights. See Farnsworth v. Farnsworth, supra.
In this case, there was ample evidence presented which
would have allowed the district court first to analyze whether
or not Elizabeth had a legitimate reason to leave the state
and then, if necessary, to engage in an analysis of whether
Elizabeth then demonstrated that removing Samantha from
Nebraska was in her best interests. See id. However, the court
did not properly do so in line with Nebraska Supreme Court
precedent on removal. As such, we reverse the order of the
district court allowing Elizabeth to remove Samantha from
the State of Nebraska and remand the matter for a determina-
tion by the district court, on the record as it now exists, to
determine whether Elizabeth has a legitimate reason to leave
the state and then, if necessary, whether said removal is in
Samantha’s best interests.
Parenting Plan and Child Support.
Aaron argues that the district court abused its discretion in
the parenting plan entered by failing to consider if the plan
would foster a relationship between himself and Samantha, by
entering a plan that is more accommodating to Elizabeth, and
by awarding him inequitable parenting time with Samantha.
[12] Having reversed the district court’s determination
regarding removal and remanded that matter for a proper deter-
mination based upon the requirements set forth in Farnsworth
v. Farnsworth, supra, we also reverse the district court’s deter-
minations on the parenting plan and child support order. We
also remand those matters back to the district court for rede-
termination, mindful that a reasonable visitation arrangement
should provide a satisfactory basis for preserving and fostering
a child’s relationship with the noncustodial parent. See Vogel v.
Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
Tax Exemption.
Aaron argues that the district court failed to award either
party the tax exemption. However, upon our review of the
Decisions of the Nebraska Court of Appeals
ROMMERS v. ROMMERS 621
Cite as 22 Neb. Ct. App. 606
record, we find that the issue was not properly raised before
the district court, either in the pleadings or at trial. Had the
issue been raised at the trial court level, this court could
address the issue on appeal, but it is well established that an
issue not properly presented to and passed upon by the trial
court may not be raised on appeal. See Gebhardt v. Gebhardt,
16 Neb. Ct. App. 565, 746 N.W.2d 707 (2008).
CONCLUSION
In conclusion, based upon our de novo review of the record,
we find that the district court’s award of custody of Samantha
to Elizabeth is in Samantha’s best interests. We decline to
address Aaron’s assignment of error regarding the tax exemp-
tion because that matter was not properly presented to and
passed upon by the trial court. However, we reverse the order
of the district court allowing Elizabeth to leave the State of
Nebraska with Samantha and remand the matter back to the
district court for an appropriate retrial on the matter of removal
based upon the record as it exists before this court. The district
court’s order regarding the parenting plan and child support is
also reversed and the matter remanded to the district court for
redetermination on the current record.
Affirmed in part, and in part reversed and
remanded for further proceedings.