Taylor-Couchman v. DeWitt-Couchman

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/13/2021 08:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950Ross Taylor-Couchman, appellee, v.
Jessica DeWitt-Couchman, appellant.
___ N.W.2d ___
Filed June 15, 2021. No. A-20-061.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
the trial court’s decision is based upon reasons that are untenable or
unreasonable or its action is clearly against justice or conscience, rea-
son, and evidence.
3. Child Custody: Appeal and Error. In child custody cases, where the
credible evidence is in conflict on a material issue of fact, the appellate
court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
4. Child Custody. To prevail on a motion to remove a minor child to
another jurisdiction, the custodial parent must satisfy the court that there
is a legitimate reason for leaving the state and that it is in the child’s
best interests to continue to live with that parent.
5. ____. The factors to be considered in determining whether removal is
in the child’s best interests include each parent’s reasons for seeking
or opposing the move, the potential that the move holds for enhancing
the quality of life for the child and the custodial parent, and the impact
the move will have on contact between the child and the noncusto-
dial parent.
6. ____. In cases where a noncustodial parent is seeking sole custody of
a minor child while simultaneously seeking to remove the child from
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950the jurisdiction, a court should first consider whether a material change
in circumstances has occurred and, if so, whether a change in custody
is in the child’s best interests. If this burden is met, then the court
must make a determination of whether removal from the jurisdiction is
appropriate.
7. Child Custody: Visitation. Nebraska’s removal jurisprudence does not
apply to a child born out of wedlock where there has been no prior adju-
dication addressing child custody or parenting time.
8. Child Custody. In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the children and
the custodial parent, a court should evaluate 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 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. This list does not set out a hierarchy of factors,
and depending on the circumstances of a particular case, any one factor
or combination of factors could be variously weighted.
Appeal from the District Court for Sarpy County: Nathan
B. Cox, Judge. Affirmed.
Jeffrey A. Wagner and Kyle J. Flentje, of Wagner, Meehan
& Watson, L.L.P., for appellant.
Kelly T. Shattuck, of Vacanti Shattuck, for appellee.
Bishop, Arterburn, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Jessica DeWitt-Couchman (Jessica) appeals the custody and
child support provisions of the decree dissolving her mar-
riage to Ross Taylor-Couchman (Ross). She contends that the
district court erred in various findings relating to its determi-
nation permitting Ross to remove the parties’ minor child to
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950California and in ordering Jessica to pay child support. For the
reasons set forth herein, we affirm.
II. STATEMENT OF FACTS
Jessica and Ross met in 2009 while attending Arizona State
University. In the summer of 2012, Ross entered a U.S. Air
Force delayed-entry program, which allowed him to defer basic
training until after the parties’ marriage in February 2013. Ross
entered Air Force basic training from March to May. After
Ross completed basic training, he was stationed in Monterey,
California, where Jessica joined him.
The parties lived in Monterey until October 2014, when
Ross was stationed at Goodfellow Air Force Base in San
Angelo, Texas, for intelligence training related to his linguist
job. During the period of time that Ross was in San Angelo,
Jessica lived with her parents in Nebraska. Once Ross com-
pleted his training in San Angelo, he and Jessica moved to
Maryland, where he was stationed at Fort George G. Meade.
The parties’ daughter, Penelope Sue Couchman (Penny), was
born in 2015.
In January 2018, while still residing in Maryland, the parties
began experiencing marital difficulties. On January 27, the par-
ties went on a “date night” during which Ross discovered that
Jessica had an online dating application, Tinder, on her phone.
Although Jessica initially attempted to deny having the appli-
cation on her phone, she eventually admitted having the appli-
cation and showed Ross that she had been communicating with
approximately 10 men. Jessica told Ross that she “had Tinder
in the past and had deleted it, and that she had just been using
it to get compliments.” The parties argued about Jessica’s use
of the Tinder application and returned to their home. During
that evening, Ross and Jessica had a conversation, which he
described as follows:
This conversation was about us filing for a divorce and
what would happen, what the implications of that would
be. [Jessica] said that she was planning on going to
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Cite as 29 Neb. App. 950Nebraska to be a teacher. And that she wanted to file a
legal separation. I had stated in the past that I wanted a
divorce if we were going to split. She said that it didn’t
matter if she was an alcoholic, it didn’t matter if she
had endangered Penny, it didn’t matter about her mental
health issues, that because I was in the military, the Court
would not award me custody.
Ross further asked Jessica if she would admit to being on men-
tal health medication and “bipolar medication,” to which ques-
tion he said she replied, “yep.” He also asked her if she would
admit “to endangering Penny by putting her in a car without a
car seat,” and he testified that Jessica responded “yep.”
Ross testified that after this conversation, Jessica decided
that she wanted to take Penny to stay with a friend who lived
approximately 45 minutes away. Ross objected because it was
late in the evening; Penny was sleeping; and, during the course
of the evening, Jessica had consumed at least two beers before
the parties left their home and then consumed one beer and a
“flight of beers” consisting of five small glasses (or samples)
of different beers while the parties were out on their “date.”
Ross eventually called the police, who advised Jessica that
she should have her friend pick her up. After this incident,
Jessica stayed in a hotel with her mother for a week, during
which time Ross cared for Penny. When Jessica returned to
the parties’ home, Ross stayed in a rented room for 2 weeks.
During this time, the parties attended marriage counseling
and reconciled.
In late March 2018, Ross was scheduled to attend 2 months
of officer training school (OTS) in Alabama. During the time
period that Ross was attending OTS, the parties decided that
Jessica and Penny would stay in Nebraska with Jessica’s par-
ents. On March 16, the parties left Maryland and drove cross
country on their way to Nebraska. During a portion of the drive
in Iowa while Jessica was driving, Ross asked her if she could
change the music they were listening to. She handed Ross
her phone and told him to “put on [their] wedding playlist.”
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Cite as 29 Neb. App. 950Ross then “saw in her text messages that she was having a
romantic conversation with a man . . . [a]nd from that point,
[they] began to argue because [he] was upset that [his] wife
was communicating with this man.” Although Ross could not
understand the other man’s portion of the conversation because
it was in Spanish, he knew that the conversation was romantic
in nature “[b]ecause they were sending heart emojis and [he]
could understand [Jessica’s] parts of the conversation [which
were in English].” Ross admitted that he “yelled at [Jessica]”
and “called her some names,” but stated that Penny was asleep
and that he “was just hurt that the day [he] was getting ready
to leave [for OTS], [his] wife was telling another [man] that
she couldn’t wait to [video call] him later and that [Ross] was
getting on a plane soon.”
After Jessica stopped the car, Ross dropped Jessica’s phone
from the passenger window into the grass outside the car. When
Jessica left the driver’s seat of the car to retrieve her phone,
Ross, who was upset, got into the driver’s seat of the car and
“pulled [the car] forward approximate[ly] 100 feet to try and
process what had just happened.” Jessica got in the car, and the
parties continued the drive to Omaha, Nebraska.
Once the parties arrived in Omaha, they continued to argue.
The parties eventually got a hotel room for the night, but
argued, and Jessica contended that Ross would not let her
leave the hotel room and that he eventually shut the door on
her leg. Ross stated that he was standing by the door and “tried
to block it.” The police were called several times over a 2-day
period, but no citations were issued. Further, Jessica admitted
that at trial, she testified regarding allegations which she had
never previously mentioned to the police or included in any
prior affidavits or statements.
Ross left Omaha and attended OTS in Alabama, which
began on March 28, 2018. Ross testifed that during his time
at OTS, he had access to his computer, “so some messaging
was able to occur or e-mails with pictures, but the bulk of
[the] communication” between Jessica, Ross, and Penny “was
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950via cards and letters.” Ross further stated that Jessica asked
him not to discuss her behavior and to limit their conversations
to Penny and finances, but admitted that their communications
were amicable.
On the night of April 17, 2018, which was Ross’ birthday,
he tried to call Jessica eight times. Jessica texted Ross “to stop
trying to contact her.” However, the following morning on
April 18, Jessica allowed Ross to talk to Penny. One day later,
on April 19, Jessica filed a domestic abuse protection order
against Ross, alleging, among other things, that Ross continued
to call her after she texted him to stop, that she was frightened
of Ross, and that she did not want to have any further commu-
nication with him. A harassment protection order was entered
in May 2018 in lieu of Jessica’s requested domestic abuse pro-
tection order.
On April 22, 2018, 3 days after filing the application for
a protection order against Ross, Jessica purchased an airline
ticket, which Jessica admitted that she used to visit her boy-
friend in Maryland. Ross was unaware that Jessica was flying
to Maryland and later found out that Jessica allowed a third
party to care for Penny while Jessica was out of state.
On May 8, 2018, Ross filed a complaint for legal separation,
requesting, among other things, custody of Penny subject to
Jessica’s rights of reasonable visitation and permission to move
with Penny to Texas. Jessica filed an answer and “counter com-
plaint” that was subsequently amended to request, among other
things, dissolution of the parties’ marriage.
Shortly after the filing of the complaint for dissolution,
Ross graduated from OTS on May 24, 2018, and was relo-
cated to Texas. Jessica and Penny remained in Nebraska with
Jessica’s parents.
In June 2018, the court entered a temporary order granting
the parties temporary joint legal and physical custody of Penny
and setting a visitation schedule that provided for the par-
ties to have a 2-week-on, 2-week-off visitation schedule with
Ross’ parenting time taking place in Texas. In the temporary
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Cite as 29 Neb. App. 950order, the court further noted “it did not find domestic abuse
under the domestic abuse protection order as indicated by
its dismissal and the entry . . . of a harassment protection
order.” Further, the court noted that “there [was] no credible
evidence that either parent [was] a danger to the minor child,
. . . and it is evident that each parent loves her.” The court
further noted:
[Jessica] had accused [Ross] of trying to take the minor
child to the exclusion of herself. Yet, given the current
situation, she has managed to accomplish that end tem-
porarily for herself and is now requesting that the Court
allow that to continue. The Court declines to do so as it
is not in the best interest of the child. The evidence pre-
sented to the Court established that the parties are very
unhappy with each other. As such, until the protection
order is modified or dismissed, the Court finds that the
parties will need to exchange the minor child through
a third party. In addition, while the protection order
. . . remains in place, the parent that is not exercising
parenting time will be unable to call the other party to
interact with the child as that would be a violation of the
protection order unless the parties are able to otherwise
reach an agreement which can be submitted to the Court
for approval.
A further temporary order entered in September 2018 pro-
vided for, among other things, video call communications
between the parties and Penny on Mondays, Wednesdays, and
Sundays “between the hours of 7:00 p.m. and 8:00 p.m., for
a period of up to thirty (30) minutes. Calls may take place
directly between the parties for this purpose only and shall not
be considered a violation of any prior orders.” The dissolution
hearing was held in March 2019.
1. Trial Testimony
In January 2019, Ross received orders to report to Beale
Air Force Base in California by March 2019. At the time
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950of the dissolution hearing, he was permanently stationed in
California, north of Sacramento. Ross testified that his work
hours were Monday through Friday, 7:30 a.m. to 4:30 p.m., and
that his likelihood of deployment to a combat zone was “very
minimal.” The evidence further established that Ross’ income
had increased for the past 3 years.
Ross provided evidence regarding the apartment he had
leased, which provided access to a tennis court and swimming
pool. Ross testified that he had already arranged for daycare
for Penny which was located .8 miles from his home and
that he had researched the highly ranked elementary school
that Penny would be attending the following year which was
located .2 miles from his home.
Ross stated that during the calls he made to Jessica on his
birthday, he did not make any threats or leave any messages
that could be construed as threatening in any way. He further
testified that he did not do anything to endanger his fam-
ily or ever threaten family members with any type of bodily
harm. However, Ross admitted that “throughout the course
of the nearly 9 years [he and Jessica] were together, [they]
had arguments where [they] called each other names, and just
sometimes inappropriate curse words, but nothing outstanding.
Just typical argument[s] between a married couple that would
get heated.”
Ross testified that he has never refused to allow video call
communications between Jessica and Penny during his parent-
ing time. However, Jessica was accepting phone and video
calls only if the communication was made through a third
party. Ross testified this demand was impractical for him
because he did not have a roommate to assist with supervis-
ing the communication and he was informed by a Goodfellow
Air Force Base family advocacy program that it was not pos-
sible to receive assistance with such a request. When Ross did
communicate by video call with Penny, all calls went through
Jessica’s mother at Jessica’s parents’ residence because Jessica
refused “any and all contact” with Ross. This arrangement
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950required Jessica to drive Penny to Jessica’s parents’ home at
around 7 p.m. and then back to Jessica’s apartment as late as
8 p.m. Ross explained that he thought that arrangement caused
Penny stress around the time she should be going to bed.
Despite the temporary court order that medical appoint-
ments for Penny were supposed to be agreed upon by the par-
ties and held at a time where both parties were able to attend,
Ross explained:
[Jessica] was taking Penny to medical appointments here
in Bellevue and never telling me in advance. She took
[Penny] to an appointment in May, one in July, and another
in November, and I was never notified of them. She then
tried to take her to a counselor . . . and you were notified
via her counsel of this appointment, and we objected to it.
And they continued to insist that they were going to take
her [anyway], so I contacted [the ­counselor’s office] and
told [the counselor] that as Penny’s father, it had nothing
to do with [the counselor] as a professional, but I was not
consenting to a counselling appointment because we had
requested why that counselling appointment was even
made, and we were ignored.
Ross also identified another counseling appointment for Penny
that Jessica scheduled the day before the parties’ December
7, 2018, hearing despite his objections and despite the fact
that he had made an appointment for Penny for the day of
the hearing. Despite Ross’ objection, Jessica took Penny to
the December 6 appointment and told Ross that if attending
the appointment “was so important to [Ross], [he] should have
taken a day off on the day before the hearing.” Then, after
the court requested an evaluation of Penny, Ross made an
appointment with a doctor, which fact he attempted to com-
municate to Jessica. However, Jessica made an appointment
with another doctor. After learning of the duplicative appoint-
ments, Ross asked Jessica to cancel the appointment she made
with the doctor because the appointment was for therapy, not
an evaluation. Jessica “again ignored” the request. Ross called
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Cite as 29 Neb. App. 950the doctor’s office on the day and at the time of Penny’s
scheduled therapy appointment, but Jessica “no-showed” for
the appointment. Ross also testified that he had provided
any medical paperwork requested for any of Penny’s medical
appointments where he had accompanied her.
Ross testified that during Jessica’s February 2019 deposi-
tion, Jessica admitted that she had started smoking during this
case and that she had started drinking alcohol five times per
week. Ross also testified that shortly after Penny’s birth in
2015, Jessica was diagnosed with postpartum depression and
anxiety for which she had been prescribed medication, and
that Jessica stated “she thought she might be bipolar.” Jessica
admitted that she suffered from postpartum depression after
Penny’s birth, but denied having any other mental illness. She
further disagreed with Ross’ testimony regarding her alcohol
use, stating that she did not drink five times per week, but had
five drinks per week.
Jessica testified that when she and Penny first moved back
to Nebraska, they resided with Jessica’s parents; however, in
December 2018, Jessica and Penny moved into a two-bedroom,
two-bathroom apartment. Jessica admitted that she did not dis-
close this change in her living arrangement until her February
2019 deposition. Jessica testified that she intends to remain in
Nebraska indefinitely.
Jessica testified that it was in Penny’s best interests for her
to be awarded sole legal and physical custody:
I have always been her primary caretaker. Now, that she’s
lived here for about a year, she’s becoming very estab-
lished here with her daycare. Like we already discussed,
both my parents live 5 minutes from where we live. My
brother, his wife, and their two kids who are Penny’s
cousins, they live 5 minutes from our place as well. A
lot of my extended family lives just across the [border]
in Iowa, so Penny is able to see my grandma regularly
or grandmas and then other younger cousins. I have the
teaching position, which has a good schedule. I get off
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Cite as 29 Neb. App. 950of work every day at 3:05 [p.m.], and I’m able to go pick
up Penny and spend the good part of the afternoon and
evening with her. And then lots of breaks interspersed
throughout the year and long weekends that if she’s not
spending with [Ross], it just is additional time . . . that I
would get to spend with her.
Jessica also testified that Penny has extended family in
Nebraska, including her maternal grandparents, an aunt, an
uncle, and cousins. According to Jessica, Penny sees her grand-
parents several times per week and sees her cousins on a
weekly basis.
Jessica also testified that she believed that it was not in
Penny’s best interests for physical custody to be awarded to
Ross in California:
I think that [Ross’] support system might not be as great.
I don’t know in three to four years after this duty station
where he would be expected to go next. And I feel like
I have a more positive relationship with our daughter,
and I still have some of those concerns based on my own
experiences with him as a husband and some of the inter-
actions I have seen him have with our daughter, and since
she’s been born, I just get concerned about his level of
patience and things like that.
However, on cross-examination, Jessica admitted that during
a February 2019 deposition, she had stated that Ross was a fit
parent and that she did not have any concerns about his par-
enting of Penny. Jessica stated that there was “no reason” for
the change in her testimony, just that her trial testimony repre-
sented her “beliefs.” She further admitted that it was just her
opinion that her relationship with Penny was better than Ross’
relationship with Penny.
Further, Jessica admitted that 2 days after filing for a domes-
tic abuse protection order, she bought airline tickets to return
to Maryland to visit the man with whom she was having an
affair, leaving Penny in the care of her parents. At one point
when Jessica went to a clinic to have a medical procedure
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Cite as 29 Neb. App. 950performed, she left Penny in the care of a third party whose
last name she could not remember. Jessica further admitted that
the domestic abuse protection order was converted to a harass-
ment protection order by the district court and further admitted
that there had never been a ticket issued against Ross or any
findings by the Air Force regarding any evidence of domes­
tic abuse.
2. Dissolution Decree and
Postdecree Motions
In July 2019, the district court entered an order dissolving
the parties’ marriage and, among other things, awarding Ross
and Jessica joint legal custody of Penny, with primary physical
custody awarded to Ross with permission to reside with her
in California subject to Jessica’s parenting time as set forth
in the parenting plan. The court ordered Jessica to pay $576
per month in child support, commencing retroactively as of
April 2019. The court specifically stated, “Having viewed the
witnesses and determined their credibility[,] the Court finds
[Ross] to be credible and [Jessica] to be not credible,” and
it made specific findings related to Ross’ request to remove
Penny to California.
Specifically, the district court found that Ross had a legiti-
mate reason for moving to California “as his Orders from the
Air Force required this move.” In determining that it was in
Penny’s best interests to live with Ross in California, the court
conducted the following best interests analysis:
a. [Ross] proved he was best suited to provide for
the minor child’s emotional, physical, and developmen-
tal needs. The parties had, while still together, equally
shared in the care of the minor child and since awarded
parenting time in this case, [Ross] has shown he can pro-
vide for all [her] needs independently. This factor favors
[Ross’] having primary possession [of] the minor child in
California.
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Cite as 29 Neb. App. 950b. Due to the age of the child, her opinion was not
offered and was not considered by the Court.
c. [Ross] was able to prove enhanced income by
remaining in the Air Force pursuant to his Orders and this
factor favors the move to California.
d. Improved Housing: [Ross] provided the Court [with]
evidence of good housing, and nearby schools that were
highly rated. [Jessica] provided little or no documentation
regarding the quality of her housing or schools near her
home. The Court finds this element slightly favors the
move to California.
e. Educational Advantages: [Ross] provided evidence
that the minor child will have access to good schools
within .2 miles of [Ross’] home and can begin school
next year. [Jessica] provided little or no documentation
regarding the quality of schools, but when the minor child
is with her the travel requirements to get her to school
increase[]. This factor favors the move to California.
f. Quality of Relationship with Each Parent: There is
no credible evidence that the minor child has a better
relationship with one parent over the other. This factor is
neutral.
g. Whether the Move Would Antagonize the
Relationship: [Ross] never lived in Nebraska and there is
no evidence that the move to California would antagonize
the relationship. This factor is neutral.
h. Connections to the Community and Family Ties:
[Ross] is originally from California and that is where his
family resides. [Jessica’s] family is from both Nebraska
and Iowa. There was little evidence of ties to the commu-
nity, other than family ties due to the minor child’s age.
This factor is neutral.
i. Other factors the Court Considered in Determining
the Best Interest:
i. History of Abuse: [Jessica] raised the issue of abuse
as a reason that she should be awarded custody of the
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Cite as 29 Neb. App. 950minor child. While there was evidence of marital argu-
ments that at times were heated, the Air Force investi-
gation and Court found no credible evidence to support
[Jessica’s] claims of abuse during the marriage.
ii. Moral Fitness: The Court believes the totality of
evidence presented proves that [Jessica] had several moral
lapses that are concerning and point to poor decision
making, deceit and putting her own needs and wants
above the minor child at times.
Following the entry of the dissolution decree, Jessica timely
filed a motion for new trial which she subsequently amended to
a motion for new trial or, in the alternative, a motion to alter,
amend, or reconsider. In the amended motion, Jessica alleged
that certain findings by the court were not sustained by suffi-
cient evidence and that errors of law had occurred, including,
among other things, the court’s order that she should pay child
support commencing in April 2019 and its use of different per-
centages for cost sharing throughout the decree.
On December 31, 2019, the district court denied the major-
ity of Jessica’s amended motion for a new trial and motion to
alter, amend, or reconsider, finding as follows:
[E]ach of [Jessica’s] claims [was] without merit with
the exception of one argument set forth and agreed to
by [Ross]. Specifically, [Jessica] asserts that her child
support obligation should begin on July 31, 2019[,] as
opposed to April 2019. [Ross] agrees. Further, [Jessica]
asserts that the percentage of expenses that she is obli-
gated to pay should be set to a flat rate. [Ross] agrees and
proposes [that] the percentages shall be set at [Jessica’s]
requested rates of 43% for [Jessica] and 57% for [Ross].
The Court finds that the Decree should be amended to
reflect the following aforementioned provision.
All other provisions of the July 19, 2019, Decree of
Dissolution if not modified herein, shall remain in full
force and effect as set forth in that Decree.
Jessica has timely appealed to this court.
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Cite as 29 Neb. App. 950III. ASSIGNMENTS OF ERROR
On appeal, Jessica contends that the district court abused its
discretion in (1) finding that Ross had a legitimate reason for
his move to California, (2) permitting Ross to remove Penny
from Nebraska to California, (3) factoring Jessica’s moral char-
acter into the court’s best interests analysis, (4) failing to factor
Ross’ alleged history of abuse into its best interests analysis,
and (5) ordering her to pay child support.
IV. STANDARD OF REVIEW
[1,2] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. Dycus
v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020). This standard
of review applies to the trial court’s determinations regard-
ing custody, child support, division of property, alimony, and
attorney fees. Id. An abuse of discretion occurs when the trial
court’s decision is based upon reasons that are untenable or
unreasonable or its action is clearly against justice or con-
science, reason, and evidence. Adams v. Adams, 13 Neb. App.
276, 691 N.W.2d 541 (2005).
[3] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the 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. Schrag v. Spear, 290 Neb. 98, 858
N.W.2d 865 (2015); Kashyap v. Kashyap, 26 Neb. App. 511,
921 N.W.2d 835 (2018).
V. ANALYSIS
1. Review of Removal Jurisprudence
Before addressing the merits of Jessica’s first four spe-
cific allegations of error, we note that Jessica did not assign
as error, or argue, that the district court erred in awarding
the parties joint legal custody of Penny or in awarding sole
physical custody of Penny to Ross. Jessica’s assignments relate
solely to specific findings by the court in connection with its
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Cite as 29 Neb. App. 950removal analysis. However, we question whether a separate
removal analysis is necessary in circumstances such as those
presented by this dissolution case where the parent who is
awarded physical custody of a child has never resided in
the State of Nebraska. In reaching our conclusion regarding
whether a removal analysis is required under these facts, we
recount prior case law which has discussed the necessity of a
removal analysis under different factual circumstances.
[4,5] In Farnsworth v. Farnsworth, 257 Neb. 242, 597
N.W.2d 592 (1999), the Nebraska Supreme Court discussed
the appropriate factors to consider in determining whether to
permit a custodial parent to move with a child to a different
state, hereinafter referred to as the “Farnsworth analysis.”
That parent, a mother who had previously been granted physi-
cal custody of the parties’ minor child, filed an application to
modify the custody order such that she be permitted to move
with the child from Nebraska to Denver, Colorado, so that she
could accept a new job opportunity. The Supreme Court ulti-
mately affirmed the decision of the district court to modify the
previous custody order to allow the mother to remove the child
from Nebraska to Colorado. Id. In reaching this decision, the
court reiterated 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. See id. After
clearing that threshold, the custodial parent must next demon-
strate that it is in the child’s best interests to continue living
with him or her. Id. The factors to be considered in determin-
ing whether removal is in the child’s best interests include
each parent’s reasons for seeking or opposing the move, the
potential that the move holds for enhancing the quality of life
for the child and the custodial parent, and the impact the move
will have on contact between the child and the noncustodial
parent. Id.Subsequently, in State on behalf of Savannah E. & Catilyn
E. v. Kyle E., 21 Neb. App. 409, 838 N.W.2d 351 (2013), this
court applied the Farnsworth analysis to a paternity action
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Cite as 29 Neb. App. 950where a noncustodial parent filed an application to modify
custody such that he be awarded custody and be permitted
to move the parties’ minor children to Wyoming, where he
resided. In State on behalf of Savannah E. & Catilyn E. v.
Kyle E., supra, the parents, who were never married, had ini-
tially agreed to allow the mother to have sole physical custody
of the children. The mother and the children thereafter resided
in Nebraska, while the father resided in Wyoming. The father
later filed an application to modify, requesting that physi-
cal custody be awarded to him, and that he be permitted to
move the children to Wyoming. The district court granted the
father’s application to modify. Id. The district court indicated
that a material change in circumstances had occurred warrant-
ing a change in custody and that a change in custody was in
the best interests of the children. Id. Then, the court conducted
a separate analysis to determine whether removal was also
appropriate. Id.
[6] On appeal, we affirmed the decision of the district court.
Id. In our analysis, we first noted that the case presented a
question of first impression because the parent seeking removal
was the noncustodial parent. Id. We then held:
[I]n cases where a noncustodial parent is seeking sole
custody of a minor child while simultaneously seeking to
remove the child from the jurisdiction, a court should first
consider whether a material change in circumstances has
occurred and, if so, whether a change in custody is in the
child’s best interests. If this burden is met, then the court
must make a determination of whether removal from the
jurisdiction is appropriate.
Id. at 419, 838 N.W.2d at 360. Our analysis in State on behalf
of Savannah E. & Catilyn E. v. Kyle E., supra, clearly directed
trial courts to conduct a Farnsworth analysis prior to making a
decision regarding removal in a modification action, even if a
material change of circumstances has been found and the trial
court has concluded that a change of custody is in the chil-
dren’s best interests.
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Cite as 29 Neb. App. 950In contrast, the Supreme Court has determined that a
Farnsworth analysis is not necessary in analyzing an initial
custody determination in a paternity action. In State on behalf
of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d
749 (2004), a father who lived in Texas sought custody of his
child who had been living with her mother in Nebraska. The
parents had never been married, and no prior custody deter-
mination had been made in any court. Ultimately, the trial
court awarded custody of the child to the father and allowed
the child to reside with the father in Texas. On appeal, the
mother argued that the district court should have conducted
a Farnsworth analysis before permitting the father to remove
the child from Nebraska. The Supreme Court distinguished the
facts in State on behalf of Pathammavong v. Pathammavong,
supra, from the facts in Farnsworth v. Farnsworth, 257 Neb.
242, 597 N.W.2d 592 (1999), because in State on behalf of
Pathammavong v. Pathammavong, supra, there was no request
for parental relocation or modification of a previous custody
order. Since the court order appealed from was the first order
awarding custody to one parent or the other and the parties
already lived in different states, the Supreme Court found that
the issue was not whether a parent should be able to relocate
with a child, but which parent should be awarded permanent
custody of the child as a matter of initial judicial determina-
tion. The court stated, “This question must be resolved on the
basis of the fitness of the parents and the best interests of the
child.” Id. at 6, 679 N.W.2d at 755. As a result, the court found
“the district court was not required to apply the Farnsworth
[analysis] in resolving the disputed custody issue in this case.”
Id. at 7, 679 N.W.2d at 755.
[7] This court followed the Supreme Court’s decision in
State on behalf of Pathammavong v. Pathammavong, supra,in a subsequent paternity case in which the father sought to
prevent the mother from removing the children from Nebraska
when there was no prior custody order. Coleman v. Kahler, 17
Neb. App. 518, 766 N.W.2d 142 (2009). See, also, Westerhold
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Cite as 29 Neb. App. 950v. Dutton, 28 Neb. App. 17, 938 N.W.2d 876 (2020). In
Coleman v. Kahler, we held, “Nebraska’s removal jurispru-
dence does not apply to a child born out of wedlock where
there has been no prior adjudication addressing child cus-
tody or parenting time.” 17 Neb. App. at 529, 766 N.W.2d at
150. Accordingly, we declined to conduct a full Farnsworth
analysis in reviewing the trial court’s award of custody to the
mother, who by that time lived outside of Nebraska. However,
we explained that in determining the child’s best interests, it
would not be inappropriate to consider the relevant factors of
the Farnsworth analysis. As a result, we gave “some consid-
eration” to these factors in reviewing the trial court’s custody
determination. Coleman v. Kahler, 17 Neb. App. at 529, 766
N.W.2d at 150.
Contrary to the Nebraska Supreme Court’s holding that
a Farnsworth analysis is not necessary in an initial custody
determination in a paternity action, it has strictly applied the
Farnsworth analysis to initial custody determinations in dis-
solution actions when one party requests to move the child
from Nebraska. In Kalkowski v. Kalkowski, 258 Neb. 1035,
607 N.W.2d 517 (2000), the district court entered a decree
of dissolution which awarded custody of the parties’ minor
children to the mother, but denied her request to move with
the children from Nebraska, where she and the father cur-
rently resided, to Canada, where the mother had grown up.
On appeal, the Nebraska Supreme Court affirmed the decision
of the district court after conducting a complete Farnsworth
analysis. Kalkowski v. Kalkowski, supra.This court has followed the Supreme Court’s decision in
Kalkowski v. Kalkowski, supra, that a complete Farnsworth
analysis is necessary in an initial custody determination
made during dissolution proceedings. See, e.g., Rommers v.
Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014). In
Rommers v. Rommers, supra, the mother moved with the minor
child from Nebraska to Arizona prior to filing for a dissolution
of marriage. After the father initiated dissolution proceedings
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Cite as 29 Neb. App. 950in Nebraska, the trial court awarded physical custody of the
minor child to the mother and allowed the mother to continue
residing in Arizona. However, the trial court determined that
because there had been no prior custody determination, it was
not required to engage in a complete Farnsworth analysis in
deciding to allow the mother and child to reside in Arizona.
Rommers v. Rommers, supra. On appeal, we affirmed the trial
court’s decision to award the mother with physical custody, but
reversed, and remanded regarding whether the mother should
be permitted to remove the child from Nebraska. We explained
that after the trial court made its initial custody determination,
a full Farnsworth analysis was necessary to determine the
issue of removal. Rommers v. Rommers, supra. We remanded
the matter to the district court for a determination regarding
whether the mother had a legitimate reason to leave the state
and whether removal was in the child’s best interests. Id. In
our analysis, we specifically found that the mother should not
gain the benefit of avoiding a complete Farnsworth analysis by
leaving Nebraska with the child prior to seeking custody in the
court system. Rommers v. Rommers, supra.
Similarly, in Hiller v. Hiller, 23 Neb. App. 768, 876 N.W.2d
685 (2016), this court held that with respect to an initial cus-
tody determination in a dissolution action where both parents
reside in Nebraska, the trial court must first make a determi-
nation regarding physical custody. Once that determination is
made, the trial court must complete a Farnsworth analysis to
determine whether the parent awarded physical custody may
remove the children from Nebraska. In Hiller v. Hiller, supra,
the trial court had indicated that it was not required to consider
the factors ordinarily considered in removal cases, as there
was no prior custody order. However, the court did discuss and
consider each of the “traditional” factors of the Farnsworth
analysis. The court ultimately awarded physical custody of
the children to the mother and permitted her to move with
the children to Virginia to accept new employment. Hiller
v. Hiller, supra. On appeal, we affirmed the decision of the
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Cite as 29 Neb. App. 950district court to allow the mother to remove the children from
Nebraska, but we found error with the trial court’s conclu-
sion that the Farnsworth analysis need not be strictly applied.
Hiller v. Hiller, supra.
In Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d
835 (2018), we applied a complete Farnsworth analysis to a
sit­uation where the mother and child resided in Nebraska at
the time of the initiation of the dissolution proceedings, but
the father resided in a different state. In that case, the parties
were married in Nebraska and initially lived in Nebraska where
their child was born. Subsequent to the child’s birth, the entire
family moved to England as a result of the father’s military
service. While in England, the parties decided to separate and
the mother and child returned to Nebraska, where the mother
initiated dissolution proceedings. Following a trial, the trial
court awarded sole custody of the minor child to the father,
who was then stationed in Arizona. The court indicated that the
child should be permitted to move to Arizona to reside with
the father.
On appeal, we affirmed the order of the trial court. See
Kashyap v. Kashyap, supra. In our analysis, we first reviewed
the trial court’s decision to award the father with sole custody.
We then turned to the court’s decision to allow the child to live
with the father in Arizona. We conducted a full Farnsworth
analysis, including a discussion of whether the father had a
legitimate reason to leave the state and whether the removal
was in the child’s best interests. However, we did not explicitly
address whether such an analysis was required, given that the
father did not live in Nebraska at the time the dissolution pro-
ceedings were entered or at any point thereafter.
Recently, in Olson v. Olson, 27 Neb. App. 869, 937 N.W.2d
260 (2019), we were presented with circumstances factually
similar to the present case. Therein, the parties were married
in Minnesota, where one child was born to them. They sepa-
rated approximately 4 years later, and at that time, the mother
moved to Nebraska with the child. Approximately 13 years
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Cite as 29 Neb. App. 950later, the father filed for dissolution, seeking custody and per-
mission to move the child back to Minnesota. Following trial,
the trial court found that sole custody should be awarded to the
father. The court stated in its decree, “‘To a certain extent, I do
think I’ll do some type of Farnsworth analysis. . . . It’s still a
removal from the state and I think I have to take that analysis
into consideration . . . .’” Olson v. Olson, 27 Neb. App. at 885,
937 N.W.2d at 273. On appeal, the mother asserted that the trial
court erred in failing to perform a complete Farnsworth analy-
sis. We indicated that “the district court, to the extent it was
required to, did conduct an appropriate Farnsworth analysis
under the circumstances.” Olson v. Olson, 27 Neb. App. at 886,
937 N.W.2d at 273. We made no explicit finding of whether a
full application of the factors of the Farnsworth analysis was
necessary, but we did conduct a complete Farnsworth analysis
and affirmed the decision of the district court, which awarded
sole custody to the father and permitted the father to move the
child back to Minnesota.
Like in Olson v. Olson, supra, the present case involves an
original dissolution action where one parent has never resided
in Nebraska and is requesting physical custody such that the
child must move from Nebraska to that parent’s home state.
Here, the parties met and married in Arizona. Penny was born
in Maryland. At the time of the dissolution proceedings, Jessica
was residing in Nebraska with Penny. Ross was residing in
California. In awarding custody of Penny to Ross, the district
court did not conduct a strict Farnworth analysis, which would
have required making a custody determination first and only
then determining whether Ross had a legitimate reason to move
to California and whether moving to California was in Penny’s
best interests. Instead, the court combined its custody and
removal analyses by applying factors relevant to both inquiries.
Given the circumstances presented in this case, and given our
review of the case law, we believe the district court conducted
an appropriate analysis when determining to award custody of
Penny to Ross in California.
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Cite as 29 Neb. App. 950We find that when a court is making an initial custody deter-
mination in a dissolution case where one of the parties has
never resided in Nebraska, a separate Farnsworth analysis is
not necessary when awarding physical custody to the out-of-
state parent. When one parent has never resided in Nebraska,
we see no reason to add an additional burden to that parent
to not only prove that it is in the child’s best interests that
he or she should receive custody, but then have to jump the
additional hurdle of prevailing under a Farnsworth analysis.
In so finding, we recognize that most, if not all, of the best
interests factors of the Farnsworth analysis are still relevant
to the court’s custody decision. However, those factors should
be applied within the framework of the custody analysis in
this scenario.
Moreover, we see little if any utility in requiring the out-of-
state parent to prove a legitimate reason to leave the state. Here,
as in State on behalf of Pathammavong v. Pathammavong, 268
Neb. 1, 679 N.W.2d 749 (2004), one of the parents has never
lived in Nebraska. The issue before the court is not whether
that parent should be allowed to relocate with the child, but
who should have custody. Therefore, we find that in an ini-
tial custody determination as part of a dissolution action, the
out-of-state parent shall not be required to prove a legitimate
reason to leave the state.
In reaching our decision, we recognize that we have some-
what departed from our opinion in Olson v. Olson, 27 Neb.
App. 869, 937 N.W.2d 260 (2019), wherein we conducted
a full Farnsworth analysis even though the parent who was
ultimately awarded physical custody had never resided in
Nebraska. However, in Olson v. Olson, supra, we did indi-
cate that under the specific facts of that case, such a full
Farnsworth analysis may not have been necessary. In addition,
we distinguish the facts of this case from the facts present in
our decision in Kashyap v. Kashyap, 26 Neb. App. 511, 921
N.W.2d 835 (2018), where the out-of-state parent had previ-
ously lived in Nebraska when the parties were married and
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Cite as 29 Neb. App. 950when the child was born. We reiterate that our decision not
to require a full Farnsworth analysis in original dissolution
proceedings is limited to those circumstances where one of the
parents does not reside, nor has ever resided, within the State
of Nebraska.
2. Jessica’s Specific Assigned
Error Regarding Removal
Given our decision that a separate Farnsworth analysis
regarding removal is not necessary in this case because Ross
has never resided in the State of Nebraska, we must now
decide whether, and how, to address Jessica’s assignments
of error which on their face appear to relate only to the dis-
trict court’s decision to allow Penny to reside with Ross in
California, rather than the court’s decision to grant custody
of Penny to Ross. The difficulty with Jessica’s assignments of
error is that they presume that separate custody and removal
analyses were made in this case and were required. The district
court, however, combined its analyses of custody and removal
factors and made a combined finding that physical custody be
awarded to Ross with permission to remove. The factors ana-
lyzed and recounted in the decree as to best interests include
both the best interests factors of the Farnsworth analysis and
other relevant factors. Since the court combined its custody and
removal analyses and we have endorsed the court’s approach
herein, we find that it is appropriate for us to review Jessica’s
assignments of error as they relate to the district court’s ulti-
mate decision.
Here, in her first four assignments of error, Jessica spe-
cifically argues that the district court erred in (1) finding that
Ross had a legitimate reason for his move to California, (2)
permitting Ross to remove Penny from Nebraska to California,
(3) factoring Jessica’s moral character into the court’s best
interests analysis, and (4) in failing to factor Ross’ alleged
history of abuse into its best interests analysis. Therefore, we
will consider whether the district court abused its discretion
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Cite as 29 Neb. App. 950by concluding it was in Penny’s best interests to be placed
into Ross’ custody in California and we will address each of
Jessica’s specific claims.
(a) Legitimate Reason for Leaving State
Jessica first claims that the district court erred in determining
that Ross had a legitimate reason for leaving the state, because
the “only piece of evidence submitted at the time of trial was
a Request and Authorization for Permanent Change of Station
— Military.” Brief for appellant at 13. As we discussed above,
this specific assignment of error relates to the first factor in a
full Farnsworth analysis when a removal analysis is warranted.
Because a full removal analysis is not warranted under these
facts, this factor is not germane to deciding whether it was in
Penny’s best interests to be placed in Ross’ custody. Because
this factor was not relevant to the court’s analysis, this specific
assignment of error fails.
(b) Permitting Ross to Remove Child
From Nebraska To California
Jessica next argues that the court erred in permitting Ross to
remove Penny from Nebraska to California. Because we previ-
ously held that a formal removal analysis is not warranted, but
found that some, if not all, of the factors of the Farnsworth
analysis should be considered by a court in making an initial
custody determination of this nature, we liberally construe
Jessica’s assignment to mean that the district court improperly
weighed the factors it considered in reaching its custody deci-
sion here. In making its best interests determination, the dis-
trict court appeared to apply the factors set forth in the second
prong of the Farnsworth analysis, that is, the factors normally
used to determine the potential the move holds for enhancing
the quality of life for the child and custodial parent.
[8] These quality of life considerations identified by the
Nebraska Supreme Court 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
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Cite as 29 Neb. App. 950custodial 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 opportu-
nities for the custodial parent, because the best interests of the
child are interwoven with the well-being of the custodial par-
ent. Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592(1999). The court specifically noted that this list did not set out
a hierarchy of factors and that depending on the circumstances
of a particular case, any one factor or combination of factors
could be variously weighted. Id.Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides:
In determining custody and parenting arrangements, the
court shall consider the best interests of the minor child,
which shall include, but not be limited to, consideration
of the foregoing factors and:
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member. For purposes of this subdivision,
abuse and family or household member shall have the
meanings prescribed in section 42-903; and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse. For purposes of this sub-
division, the definitions in section 43-2922 shall be used.
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Cite as 29 Neb. App. 950Because the Farnsworth v. Farnsworth, supra, quality of life
considerations analyzed by the district court were relevant con-
siderations in this best interests analysis, we will briefly review
those here, as those considerations relate to Jessica’s general
assignment that the court erred in analyzing them.
The first factor is the emotional, physical, and develop-
mental needs of the child. The district court found that this
factor favored Ross’ having primary possession of Penny in
California because Ross had proved he was best suited to
provide for Penny’s emotional, physical, and ­developmental
needs. The court noted that while the parties were still together,
they had shared equally in Penny’s care, and that since being
awarded parenting time, Ross has shown he can provide for
all of Penny’s needs independently. We agree with the court’s
determination and add that the record reflects that Ross dem-
onstrated that he was willing to enable Penny to foster a
good relationship with Jessica, whereas Jessica attempted to
thwart Ross’ relationship with Penny. It is in Penny’s best
interests emotionally, physically, and developmentally to be in
California with Ross. This factor weighs in favor of custody
with Ross in California.
The second factor is the minor child’s opinion or preference
as to where to live. The district court found that this factor was
neutral because, due to the young age of the child, her opinion
was not offered and was not considered by the district court.
We agree that this factor is neutral.
The third factor is the extent to which the custodial parent’s
income or employment will be enhanced. We agree with the
district court’s finding that this factor favors custody with Ross
in California because Ross was able to establish enhanced
income and career opportunities by remaining in the Air Force
pursuant to his orders.
The fourth factor is the degree to which housing or living
conditions would be improved. The evidence supports the
district court’s findings that Ross provided evidence of good
housing and nearby schools that were highly rated, whereas
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Cite as 29 Neb. App. 950Jessica provided little or no documentation regarding the qual-
ity of her housing or the schools near her home. We agree
with the district court that this factor slightly favors custody
with Ross in California.
The fifth factor is the existence of educational advantages.
The district court found that Ross provided evidence that
Penny would have access to good schools within .2 miles of
Ross’ home and could begin school the following year, whereas
Jessica provided little or no documentation regarding the qual-
ity of schools where she would seek to enroll Penny. Jessica’s
limited testimony in this area was that if Penny is with her, her
travel requirements to get Penny to school will increase. We
agree that this factor favors custody with Ross in California.
The sixth factor is the quality of the relationship between
the child and each parent. We agree with the district court’s
finding that this factor is neutral because there was no credible
evidence that Penny had a better relationship with one parent
over the other.
The seventh factor is the strength of the child’s ties to the
present community and extended family there. The court found
that Ross was originally from California and his family resides
there, even if several hours away; Jessica’s family is from both
Nebraska and Iowa; and there was little evidence of ties to the
community other than family ties due to Penny’s young age.
We agree with the district court that this factor is neutral.
The eighth factor is the likelihood that allowing or denying
the move would antagonize hostilities between the two parents.
We agree with the district court’s finding that this factor was
neutral, as Ross had never lived in Nebraska and there was no
evidence that the move to California would antagonize the par-
ties’ relationship.
The ninth factor is the living conditions and employment
opportunities for the custodial parent because the best inter-
ests of the child are interwoven with the well-being of the
custodial parent. The district court did not specifically make
a finding regarding the ninth factor, but the court did consider
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Cite as 29 Neb. App. 950Ross’ living conditions and employment opportunities within
the third and fourth factors and noted that California provided
increased employment opportunities for Ross and good living
conditions. We find that this factor weighs in favor of removal
to California.
After reviewing this record, we conclude that the district
court considered all relevant Farnsworth v. Farnsworth, 257
Neb. 242, 597 N.W.2d 592 (1999), considerations in con-
nection with its best interests analysis and did not abuse its
discretion in finding those factors weighed in favor of placing
custody of Penny with Ross. Accordingly, Jessica’s second
assignment of error fails.
(c) Best Interests
Jessica’s next two assignments of error allege that the dis-
trict court abused its discretion in failing to consider Ross’
prior history of abuse and in factoring her moral character into
the court’s best interests analysis. In considering whether cus-
tody with Ross in California was in Penny’s best interests, the
district court specifically addressed the factors of Ross’ alleged
history of abuse and Jessica’s moral fitness.
Regarding Jessica’s claim that the district court erred in
failing to factor Ross’ alleged history of abuse into its analy-
sis, the record clearly demonstrates the opposite. The court’s
order states that “[w]hile there was evidence of marital argu-
ments that at times were heated, the Air Force investigation
and Court found no credible evidence to support [Jessica’s]
claims of abuse during the marriage.” The court further noted
in its order that it did not find Jessica to be credible. In child
custody cases, where the credible evidence is in conflict on a
material issue of fact, the appellate court considers, and may
give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather
than another. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865(2015); Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d
835 (2018). In this instance, we consider and give weight to
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TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950the fact that the district court heard and observed the wit-
nesses and accepted Ross’ version of the facts in making this
determination.
Jessica also claims that the district court erred in factoring
her moral character into the best interests analysis. Jessica
cites case law similar to that set forth in Anderson v. Anderson,
5 Neb. App. 22, 554 N.W.2d 177 (1996), in which this court
noted that when litigants seek to use a custodial parent’s
sexual activity as a basis for a change in custody or custody
arrangements, the Nebraska Supreme Court has repeatedly
found the overriding factor to be whether the children are
directly exposed to sexual activity or whether there is other
proof that the children are adversely affected. Jessica then
argues that Ross “never produced any evidence [that her extra-
marital affair had] a negative impact on [Penny].” Brief for
appellant at 25. However, Jessica ignores the district court’s
findings of other instances of other “moral lapses.” The dis-
trict court stated in its order that it “believes the totality of
evidence presented proves that [Jessica] had several moral
lapses that are concerning and point to poor decision making,
deceit and putting her own needs and wants above the minor
child at times.” We again note that the district court heard
and observed the witnesses and note that the evidence pro-
vided several instances of questionable judgment by Jessica,
including, but not limited to, attempting to drive a car with
Penny in it after drinking alcohol, driving a car with Penny
in it but without her car seat, lying to her parents about the
reason for her trip to Maryland, and leaving Penny with a third
party whom she could not readily name. The aforementioned
factors do not relate solely to Jessica. Instead, these factors
related directly to Penny’s well-being. Accordingly, these mat-
ters were relevant to the court’s consideration and the court did
not err in considering these factors.
3. Child Support
Jessica’s final assignment of error is that the district court
abused its discretion in ordering her to pay child support.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
TAYLOR-COUCHMAN v. DeWITT-COUCHMAN
Cite as 29 Neb. App. 950However, her argument is based solely on her argument that
“the court abused its discretion in permitting [Ross] to remove
[Penny] from the jurisdiction.” Brief for appellant at 27-28.
Having determined that the district court did not abuse its
discretion in awarding physical custody of Penny to Ross, we
conclude this assignment of error necessarily fails.
VI. CONCLUSION
For the reasons set forth herein, we affirm the July 2019 dis-
solution decree as modified by the court’s December 31 order.
Affirmed.