Schrag v. Spear ( 2015 )

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98 290 NEBRASKA REPORTS
conviction for use of a weapon to commit a felony. We there-
fore reverse the conviction and, for reasons based on Double
Jeopardy explained above, remand the cause with directions
to vacate the conviction and dismiss the charge of use of a
weapon to commit a felony. We further conclude that there was
sufficient evidence to support the $7,500 amount of restitution
ordered with respect to the felony criminal mischief convic-
tion. We therefore affirm the $7,500 amount of restitution in
the sentence for felony criminal mischief but we remand the
cause for resentencing with respect to the manner of payment
of restitution.
Affirmed in part, and in part reversed
and remanded with directions.
Ember M. Schrag, appellant, v.
Andrew S. Spear, appellee.
___ N.W.2d ___
Filed February 13, 2015. No. S-13-258.
1. Child Custody: Appeal and Error. Child custody determinations are matters ini-
tially entrusted to the discretion of the trial court, and although reviewed de novo
on the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court bases its decision upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. ____: ____. A judicial abuse of discretion requires that the reasons or rulings of
the trial court be clearly untenable insofar as they unfairly deprive a litigant of a
substantial right and a just result.
4. 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 wit-
nesses and accepted one version of the facts rather than another.
5. Child Custody. Before a custodial parent can remove a child from the state, per-
mission of the court is required, whether or not there is a travel restriction placed
on the custodial parent.
6. ____. In order to prevail on a motion to remove a minor child to another jurisdic-
tion, the custodial parent must first satisfy the court that he or she has a legitimate
reason for leaving the state. After clearing that threshold, the custodial parent
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must also demonstrate that it is in the child’s best interests to continue living
with him or her in the new location. The paramount consideration is whether the
proposed move is in the best interests of the child.
7. ____. Ordinarily, custody of a minor child will not be modified unless there has
been a material change in circumstances showing that the custodial parent is unfit
or that the best interests of the child require such action.
8. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
9. Modification of Decree: Child Custody: Proof. The party seeking modification
of child custody bears the burden of showing a change in circumstances.
10. Modification of Decree: Child Custody: Evidence: Time. In determining
whether the custody of a minor child should be changed, the evidence of the
custodial parent’s behavior during the year or so before the hearing on the motion
to modify is of more significance than the behavior prior to that time.
11. Modification of Decree: Child Custody. Removal of a child from the state,
without more, does not amount to a change of circumstances warranting a change
of custody. Nevertheless, when considered in conjunction with other evidence,
such a move may well be a change of circumstances that would warrant a modi-
fication of the decree.
12. Modification of Decree: Child Custody: Proof. Before custody may be modi-
fied based upon a material change in circumstances, it must be shown that the
modification is in the best interests of the child.
13. Child Custody. In addition to the “best interests” factors listed in Neb. Rev. Stat.
§ 43-2923 (Cum. Supp. 2014), a court making a child custody determination
may consider matters such as the moral fitness of the child’s parents, including
the parents’ sexual conduct; respective environments offered by each parent; the
emotional relationship between child and parents; the age, sex, and health of the
child and parents; the effect on the child as the result of continuing or disrupting
an existing relationship; the attitude and stability of each parent’s character; and
the parental capacity to provide physical care and satisfy the educational needs of
the child.
14. Child Custody: Appeal and Error. In contested custody cases, where material
issues of fact are in great dispute, the standard of review and the amount of defer-
ence granted to the trial judge, who heard and observed the witnesses testify, are
often dispositive of whether the trial court’s determination is affirmed or reversed
on appeal.
Petition for further review from the Court of Appeals,
Irwin, Moore, and Bishop, Judges, on appeal thereto from the
District Court for Lancaster County, Steven D. Burns, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
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Stephanie R. Hupp and Zachary L. Blackman, of McHenry,
Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O.,
for appellant.
Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Stephan, J.
The Nebraska Court of Appeals reversed an order of the
district court for Lancaster County which denied Ember M.
Schrag’s application to move her minor daughter to New
York and modified a prior custody determination by award-
ing custody of the child to her father, Andrew S. Spear.1 On
further review, we conclude the district court did not abuse
its discretion and therefore reverse the judgment of the Court
of Appeals.
I. BACKGROUND
1. Facts
The underlying facts are set forth in greater detail in the
published opinion of the Court of Appeals. We summarize
them here.
Lillian Schrag was born in November 2007 and resided
with Ember in Lincoln, Nebraska. Ember initiated a paternity
action in the district court for Lancaster County in which she
alleged that Andrew was Lillian’s biological father. Ember
and Andrew were never married and never lived together after
Lillian’s birth. In a decree entered January 21, 2009, the court
determined Andrew was Lillian’s father. The court awarded
custody of Lillian to Ember, subject to Andrew’s rights of
visitation as set forth in a parenting plan. Andrew was ordered
to pay child support for Lillian and one-half of the childcare
expenses incurred by Ember. At the time of the decree and
at all subsequent times, Andrew has resided near Kansas
City, Missouri.
1
See Schrag v. Spear, 22 Neb. Ct. App. 139, 849 N.W.2d 551 (2014).
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Cindy Chesley is Ember’s mother and Lillian’s grand-
mother. She and her husband reside in North Platte, Nebraska.
From late 2008 through 2010, Chesley and her husband cared
for Lillian for extended periods of time while Ember worked
as a touring folk singer. Chesley and Ember had a falling out
in early 2011 when Chesley told Ember she would be unable
to care for Lillian for another extended period due to other
family obligations. Ember testified she had no ongoing rela-
tionship with Chesley and that they had been “estranged for
two years.”
In early 2011, Ember moved with Lillian to Decorah, Iowa,
where they resided with Ember’s boyfriend and his parents.
Ember married this man in April 2011. She did not obtain
approval of the court before relocating Lillian from Nebraska
to Iowa. Andrew, believing the move was temporary, did not
oppose it until Ember presented him with documents indicat-
ing the move was permanent. Andrew obtained emergency
custody of Lillian for a brief time before she was returned
to Ember’s custody. Andrew thereafter sought modification
of custody, and Ember sought court approval to move Lillian
to Iowa, which had already occurred. The parties eventually
resolved this dispute by entering into a stipulation and parent-
ing plan which were approved by the court in an order entered
on February 22, 2012. This order left Lillian in Ember’s physi-
cal custody and granted Ember permission to move to Iowa
with the child.
The parenting plan provided that the parties would have
joint legal custody of Lillian and specified Andrew’s rights of
visitation. The plan also provided that the parties would “reside
in the states of Nebraska, Missouri (including the Kansas City
metro), and Iowa unless otherwise agreed to by the parties.”
Further, the parenting plan provided that Lillian was to have
no unsupervised contact with Chesley. The final paragraph of
the parenting plan provides: “The parties intend for Nebraska
to maintain jurisdiction of this matter as the home state for
the child.”
While Ember and Lillian resided in Iowa, Ember worked
two part-time jobs, which she did not consider to be related to
her music career. In June 2012, while Lillian was with Andrew
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for her summer visitation, Ember separated from her husband.
A September 6 decree dissolving the marriage was entered by
an Iowa court.
On the same day that she separated from her husband,
Ember traveled to the home of Robert Bannister in Brooklyn,
New York. She had met Bannister in March 2011, and became
romantically involved with him when she arrived at his home
in June 2012. Bannister, who is approximately 24 years older
than Ember, is employed in the software industry. He is sepa-
rated but not divorced from his second wife.
Ember spent most of the summer of 2012 on the East Coast,
primarily in New York and Philadelphia, Pennsylvania, where
she had a housesitting job. She testified that while there, she
was “looking for a living arrangement that would be in the best
interest” and eventually decided to move to New York.
On approximately August 27, 2012, Andrew returned Lillian
to Ember at their agreed-upon meeting place in Des Moines,
Iowa. They exchanged pleasantries, but Ember made no men-
tion of any change in her living arrangements. Ember then
almost immediately took Lillian to New York and moved into
Bannister’s apartment, where they have subsequently resided.
On August 30, 2012, after she had relocated to New York,
Ember sent an e-mail message to Andrew informing him that
she had separated from her husband and had spent the summer
“working on the east coast and developing a new support sys-
tem in Philadelphia and New York City.” She informed him for
the first time of Lillian’s relocation, stating: “Although this is
the first you’re hearing of it, this is not sudden, and it will be
the best for Lillian.” Andrew responded, “I do not agree mov-
ing Lillian to New York is what’s best for her.” Ember did not
seek or obtain approval of the district court prior to relocating
Lillian to New York.
Ember and Lillian have continued to reside with Bannister
in his two-bedroom apartment in Brooklyn. Other than occa-
sional musical performances, Ember is not employed, and she
takes care of Lillian when Lillian is not in school. When Ember
is performing outside New York, Bannister cares for Lillian.
Ember and Lillian are entirely dependent on Bannister for
housing. Ember’s income was approximately $8,000 in 2012,
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and her only regular income during 2013 was from Andrew’s
monthly child support payments.
Andrew was married in 2010 and resides with his wife and
children in Liberty, Missouri, near Kansas City. He is employed
as a restaurant manager, and his wife is also employed outside
the home. They have a good relationship with Lillian and
believe she is comfortable in their home. Andrew has extended
family in the Kansas City area and enjoys a good relationship
with Chesley, whom he invites for a visit whenever Lillian is
visiting his home.
2. P rocedural Background
(a) District Court
Upon learning that Ember had relocated with Lillian to
New York, Andrew filed a complaint in the district court for
Lancaster County seeking an award of legal and physical cus-
tody of Lillian. Ember filed an answer and a counterclaim in
which she sought permission of the court to move Lillian from
Iowa to New York.
After a trial at which Ember, Andrew, Chesley, Bannister,
and other witnesses testified, the district court entered an order
denying Ember’s request to move Lillian to New York. The
court examined Ember’s motives for the relocation, its poten-
tial for enhancement of Lillian’s quality of life, and its impact
on Andrew’s parenting time.2 Based on this analysis, it con-
cluded Ember had not carried her burden of establishing that
the move to New York was in Lillian’s best interests. And it
made a further finding that under the circumstances of the case,
the move was not in Lillian’s best interests.
The court concluded Andrew had met his burden of proving
a material change in circumstances which warranted modifica-
tion of custody. The court awarded primary physical custody of
Lillian to Andrew, subject to Ember’s reasonable rights of visi-
tation. The court also calculated Ember’s child support obliga-
tion and vacated that portion of its prior order which placed
restrictions on Chesley’s contact with Lillian.
2
See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
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(b) Court of Appeals
Ember perfected a timely appeal, asserting that the district
court erred in modifying custody, denying her application to
remove Lillian to New York, removing the restrictions on
Chesley’s visitation with Lillian, and calculating her support
obligation. A divided panel of the Court of Appeals affirmed
in part, and in part reversed, and remanded with directions.3
The majority concluded that the district court abused its dis-
cretion when it denied Ember permission to move Lillian to
New York and when it awarded physical custody of Lillian to
Andrew. But the majority concluded that the district court did
not err when it removed the restrictions on Chesley’s visitation
with Lillian and calculated Ember’s child support obligation.
The dissent concluded that the district court had not abused its
discretion with respect to any of its rulings.
We granted Andrew’s petition for further review.
II. ASSIGNMENTS OF ERROR
Andrew assigns, restated, that the Court of Appeals erred
in concluding that the district court abused its discretion in
(1) denying Ember permission to relocate Lillian to New
York and (2) modifying its orders to award physical cus-
tody of Lillian to Andrew. Neither party sought further
review of the Court of Appeals’ decision with respect to
visitation by Chesley or the calculation of Ember’s child sup-
port obligation.
III. STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.4
[2,3] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
3
Schrag, supra note 1.
4
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013); Maska v.
Maska, 274 Neb. 629, 742 N.W.2d 492 (2007).
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and evidence.5 A judicial abuse of discretion requires that the
reasons or rulings of the trial court be clearly untenable insofar
as they unfairly deprive a litigant of a substantial right and a
just result.6
[4] 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.7
IV. ANALYSIS
1. R elocation
We have previously observed that parental relocation cases
are “among the most complicated and troubling” cases that
courts must resolve.8 This is so because of the competing and
often legitimate interests of the parents in proposing or resist-
ing the move, and because courts ultimately have the difficult
task of weighing the bests interests of the child at issue “which
may or may not be consistent with the personal interests of
either or both parents.”9 In these cases, courts are required to
balance the noncustodial parent’s desire to maintain their cur-
rent involvement in the child’s life with the custodial parent’s
chance to embark on a new or better life.10 It is for this reason
that such determinations are matters initially entrusted to the
discretion of the trial judge, and the trial judge’s determination
is to be given deference.11
This case also has two other areas of potential complex-
ity. First, the record shows that neither parent nor the child
resided in Nebraska at the time the district court was asked
to approve the relocation to New York. The parenting plan
5
Watkins, supra note 4.
6
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
7
Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
8
Farnsworth, supra note 2, 257 Neb. at 248, 597 N.W.2d at 597.
9
Id. at 249, 597 N.W.2d at 597.
10
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
11
Id.
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approved in the 2012 order specifically provided that “[t]he
parties intend for Nebraska to maintain jurisdiction of this
matter as the home state for the child.” We note there has
been no determination by a court of this state or any other
state that we lack jurisdiction.12 Second, the record shows that
the child in question was born out of wedlock. In Coleman v.
Kahler,13 the Court of Appeals held that Nebraska’s removal
jurisprudence does not apply to a child born out of wedlock
where there has been no prior adjudication addressing child
custody or parenting time. But in this case, there were two
prior custody determinations—the initial paternity decree in
2009 and the 2012 order which permitted Ember to relocate
with Lillian to Iowa. Accordingly, we conclude that the dis-
trict court had jurisdiction to decide Ember’s request to relo-
cate Lillian from Iowa to New York. We conclude that legal
principles governing requests by custodial parents to relocate
children from Nebraska to another state are applicable in
this action.
[5,6] Before a custodial parent can remove a child from the
state, permission of the court is required, whether or not there
is a travel restriction placed on the custodial parent.14 In order
to prevail on a motion to remove a minor child to another
jurisdiction, the custodial parent must first satisfy the court
that he or she has a legitimate reason for leaving the state.15
After clearing that threshold, the custodial parent must also
demonstrate that it is in the child’s best interests to continue
living with him or her in the new location.16 The paramount
consideration is whether the proposed move is in the best
interests of the child.17 We have discouraged trial courts from
12
See Neb. Rev. Stat. § 43-1239 (Reissue 2008).
13
Coleman v. Kahler, 17 Neb. Ct. App. 518, 766 N.W.2d 142 (2009).
14
State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994),
overruled on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d
780 (1999); Coleman, supra note 13.
15
See, Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d 79 (2014);
Steffy, supra note 10.
16
See id.
17
Id.
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granting temporary permission to remove children to another
jurisdiction prior to a ruling on permanent removal, because
such temporary permission “complicates matters and makes
more problematic the subsequent ruling on permanent removal
and encumbers appellate evaluation of the ultimate decision
on permanent removal.”18 In this case, Ember’s removal of
Lillian from Iowa to New York without seeking any prior
approval of the district court has created a similar problem-
atic scenario.
As noted, the threshold issue with respect to removal is
whether the custodial parent had a legitimate reason for the
proposed relocation.19 Although the district court did not make
a specific finding as to whether Ember had a legitimate “rea-
son” to move to New York, it examined the legitimacy of
her motives for relocating. As we noted in Farnsworth v.
Farnsworth,20 the legitimacy of the custodial parent’s motive
for a proposed relocation is part of the “threshold question” of
whether the parent has a legitimate reason for moving, and also
plays a “further role in ascertaining a child’s best interests” if
the threshold showing is made. Thus, we consider the district
court’s findings with respect to the legitimacy of Ember’s
motives as pertinent to whether she established a legitimate
reason for the move.
The district court found no merit to Ember’s contention that
the relocation was necessary in order to establish a new living
arrangement and support system, because both of those factors
were entirely dependent upon the continuation of her relation-
ship with Bannister, a married man whom she had known for
approximately 1 year and whom Lillian had never met prior
to the relocation. The district court also made a specific find-
ing that Ember “has not carried the burden of establishing that
career enrichment was a legitimate motive for the move,” not-
ing that there was “no evidence to support that moving to New
York would or has advanced [her] music career or the income
associated with her music career.”
18
Jack v. Clinton, 259 Neb. 198, 210, 609 N.W.2d 328, 337 (2000).
19
Daniels, supra note 15; Steffy, supra note 10.
20
Farnsworth, supra note 2, 257 Neb. at 250, 597 N.W.2d at 598.
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These findings are fully supported by the record. We can-
not agree with the Court of Appeals’ conclusion that “Ember’s
reasonable expectation of improvement in her music career”
in New York was a legitimate reason for the move.21 It is
true that absent some aggravating circumstance, such as an
ulterior motive to frustrate the noncustodial parent’s visitation
rights, significant career enrichment is a legitimate reason for
relocation.22 For example, job-related changes are legitimate
reasons for moving where there is a reasonable expectation of
improvement in the career or occupation of the custodial parent
and the custodial parent’s new job included increased potential
for salary advancement.23 We have held that a firm offer of
employment in another state with a flexible schedule in close
proximity to the custodial parent’s extended family constitutes
a legitimate reason for relocation.24 Likewise, we have held
that a career enhancement for a custodial parent’s spouse is a
legitimate reason for removal when the career change occurred
after a marriage.25
But unlike the other cases in which we have applied these
principles, Ember did not relocate in order to accept a firm
offer of employment or any other definite income-generating
activity, in the music industry or otherwise. She had only
a vague notion that her music career would somehow be
enhanced by living in New York. But she has been unem-
ployed since the relocation, and her musical performances have
not generated any appreciable income or demonstrable career
enhancement. At the time of the relocation and since, she and
Lillian have been almost entirely dependent for their housing
upon Bannister, who has no legal obligation to shelter or other-
wise support either of them.
21
Schrag, supra note 1, 22 Neb. Ct. App. at 163, 849 N.W.2d at 570.
22
Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000);
Farnsworth, supra note 2.
23
Jack, supra note 18; Farnsworth, supra note 2.
24
See, Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack, supra
note 18.
25
See McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
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And we agree with the conclusion of the district court that
Ember had an ulterior motive for the relocation. The record
fully supports the district court’s determination that
one of Ember’s unstated motives was to avoid Andrew’s
and this Court’s involvement in the decision to move . .
. . This is not the first time Ember has moved Lillian from
one state to another without seeking Lillian’s father’s
input on the decision. It is not the first time Ember has
moved without seeking court permission. It is not the
first time she has move[d] surreptitiously. Ember cannot
claim ignorance of the requirement of court approval. Nor
can she claim ignorance of the importance of involving
Andrew in such decisions.
The record reflects quite clearly that Ember moved to New
York with no firm or even likely prospects for employment or
career enhancement, that she did so with the intent of enter-
ing into a living arrangement which offered no assurance
of stability or permanency for herself or her child, and that
she orchestrated the move in a manner designed to impair
Andrew’s parental rights and evade the jurisdiction of the dis-
trict court. Based upon our de novo review, and the deference
which we give to the factual determinations of the district
court, we conclude that Ember did not have a legitimate rea-
son for the relocation. Because she did not meet this threshold
burden, we need not engage in a best interests analysis on
this issue.
2. Modification of Custody
[7,8] The legal principles governing modification of child
custody are well settled. Ordinarily, custody of a minor child
will not be modified unless there has been a material change
in circumstances showing that the custodial parent is unfit
or that the best interests of the child require such action.26
A material change in circumstances means the occurrence of
something which, had it been known to the dissolution court at
26
Watkins, supra note 4; Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d
541 (2004); Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002).
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the time of the initial decree, would have persuaded the court
to decree differently.27
(a) Material Change
in Circumstances
Here, the district court found that Andrew had met his bur-
den of establishing a material change in circumstances. The
Court of Appeals acknowledged that “Ember’s decision to
move to New York to live with Bannister after her divorce . . .
might constitute a change in circumstances,” but it concluded
that there was no evidence that the move had any adverse
effect on Lillian.28
[9,10] The party seeking modification of child custody
bears the burden of showing a change in circumstances.29 In
determining whether the custody of a minor child should be
changed, the evidence of the custodial parent’s behavior during
the year or so before the hearing on the motion to modify is of
more significance than the behavior prior to that time.30
[11] Removal of a child from the state, without more, does
not amount to a change of circumstances warranting a change
of custody.31 Nevertheless, when considered in conjunction
with other evidence, such a move may well be a change of cir-
cumstances that would warrant a modification of the decree.32
Here, Ember moved Lillian from Iowa to New York without
Andrew’s knowledge just months after she signed and asked
a court to approve a parenting plan in which she agreed to
notify Andrew of any plan to change her residence, and further
agreed to reside in Nebraska, Iowa, or Missouri unless other-
wise agreed to by Andrew. Further, Ember conducted the move
without prior approval of the court just months after resolving
a dispute involving her move from Nebraska to Iowa without
court approval.
27
Tremain, supra note 26.
28
Schrag, supra note 1, 22 Neb. Ct. App. at 156, 849 N.W.2d at 566.
29
Tremain, supra note 26.
30
Heistand, supra note 26.
31
Brown, supra note 24.
32
Id.
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In State ex rel. Reitz v. Ringer,33 we held that a trial court did
not err in finding a material change in circumstances warrant-
ing modification of custody where a custodial parent removed
a child from Nebraska without obtaining permission of the
court which had adjudicated paternity and granted custody
and visitation rights. We reasoned that such action denied the
noncustodial parent his court-ordered visitation rights. Here,
Ember’s intentional and unilateral conduct had the effect of
negating provisions of the existing parenting plan regarding
the parties’ place of residence, and thus affected the manner in
which Andrew was able to exercise his visitation rights. As the
district court correctly determined, the relocation to New York
“has a substantial adverse impact on the relationship between
Lillian and Andrew.”
We agree with the dissenting member of the Court of
Appeals that such conduct on Ember’s part “clearly consti-
tutes a material change in circumstances.”34 And we therefore
conclude that the district court did not abuse its discretion in
reaching the same conclusion.
(b) Best Interests
[12] Before custody may be modified based upon a mate-
rial change in circumstances, it must be shown that the
modification is in the best interests of the child.35 Neb. Rev.
Stat. § 43-2923 (Cum. Supp. 2014), requires a court, in deter-
mining custody and parenting arrangements, to consider cer-
tain factors relevant to the best interests of the minor child,
including:
(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
33
State ex rel. Reitz, supra note 14.
34
Schrag, supra note 1, 22 Neb. Ct. App. at 177, 849 N.W.2d at 578 (Moore,
Judge, concurring in part, and in part dissenting).
35
See, Brown, supra note 24; Parker v. Parker, 234 Neb. 167, 449 N.W.2d
553 (1989).
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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.
[13] In addition to these statutory “best interests” factors, a
court making a child custody determination may consider mat-
ters such as the moral fitness of the child’s parents, including
the parents’ sexual conduct; respective environments offered
by each parent; the emotional relationship between child and
parents; the age, sex, and health of the child and parents; the
effect on the child as the result of continuing or disrupting an
existing relationship; the attitude and stability of each parent’s
character; and the parental capacity to provide physical care
and satisfy the educational needs of the child.36
In concluding that the change of custody was in Lillian’s
best interests, the district court reasoned that Ember’s conduct
had brought about abrupt endings of very important relation-
ships for Lillian and that such conduct “has made it abundantly
clear that she does not care what Andrew thinks about raising
Lillian.” The court determined that Ember’s abrupt and unilat-
eral decision to move to New York with Lillian “demonstrates
an inability to abide [by] agreements she makes with Andrew
and does not bode well for any expectation by Andrew or this
Court that continuing custody with Ember would have any
likelihood of her involving Andrew in Lillian’s life in any
meaningful way.” The court further found that “Andrew has
impressed the Court with his willingness to involve Ember.” It
found that the parenting plan submitted by Andrew was reason-
able and in Lillian’s best interests.
36
See Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996).
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The Court of Appeals reasoned modification of custody was
not shown to be in Lillian’s best interests, because the evidence
showed that she was “‘calm and secure and happy’” in her
new surroundings and Andrew had not presented “any specific
evidence that the changes in Ember’s life have had a negative
impact on Lillian.”37 It further reasoned that stability “should
not be based solely upon a parent’s relocation” and that it
would be “particularly unfair in this case to remove Lillian
from Ember’s primary care when Ember has now found a way
to be at home with Lillian more while still having opportunities
to advance her music career.”38
We agree with the dissent that Ember’s evidence that Lillian
is “‘flourishing’” in New York should be discounted, because
such evidence was “only developed as a result of Ember’s
unilateral decision to move Lillian there before obtaining
either Andrew’s consent or prior court approval.”39 The dissent
further reasoned that a showing of actual harm to a child as
a result of a material change in circumstances is not required
and that “by evaluating the relevant best interests factors and
choosing to modify custody, a trial court can essentially find
by implication that the change in circumstances has an adverse
impact upon the child.”40 The dissent reasoned that Ember’s
conduct with respect to her relocation to New York “speaks
to [her] judgment, which, albeit indirectly, speaks to her
suitability as a custodial parent.”41 As examples of Ember’s
judgmental deficiencies detrimental to Lillian’s best interests,
the dissent noted that she moved into Bannister’s home with
Lillian only within 2 or 3 months after beginning a romantic
relationship with him and without Lillian’s previously hav-
ing met him. The dissent further noted that Ember is entirely
37
Schrag, supra note 1, 22 Neb. Ct. App. at 158, 849 N.W.2d at 567.
38
Id. at 159, 849 N.W.2d at 567.
39
Id. at 178, 849 N.W.2d at 578-79 (Moore, Judge, concurring in part, and in
part dissenting).
40
Id. at 179-80, 849 N.W.2d at 579.
41
Id. at 182, 849 N.W.2d at 581.
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114 290 NEBRASKA REPORTS
dependent upon Bannister for housing and support and that
she and Lillian would have no place to go if that relationship
ended. The dissent viewed the evidence as tending to show
that “Ember is making decisions, changes in relationships,
and far-reaching moves that serve her desires and musical
interests rather than a consideration of how these changes
affect Lillian.”42
We agree with the dissent that a noncustodial parent need
not show that actual harm has befallen a child in order to
establish that a modification of custody due to a material
change in circumstances would be in the child’s best interests.
And we also agree that the record reflects significant flaws in
Ember’s judgment which could adversely impact Lillian’s life
and well-being. Ember precipitously decided to move Lillian
to a city where Ember has no job or other apparent means of
support and into the home of a man with whom she had only
recently begun a romantic relationship and whom Lillian had
not previously met. Ember admitted that she has no family in
New York, and as noted by the dissent, she readily acknowl-
edged that she would have “nowhere to live” if the relationship
with Bannister ended.43 In contrast, the evidence reflects that
Andrew can provide Lillian with a stable home and financial
security with a nearby network of extended family. The dis-
trict court rejected Ember’s criticism of Andrew’s parenting
skills, finding such criticism to be “disingenuous” and with-
out significance.
This case differs from Tremain v. Tremain,44 in which we
affirmed a trial court’s determination that a custodial father
had not established grounds to remove his children to another
state, but reversed the trial court’s modification of the decree
to award permanent custody to the mother. The father had
removed the children from Nebraska to Oregon, where he had
obtained new employment, without first obtaining approval
of the court. In response to a contempt order, the children
42
Id. at 183, 849 N.W.2d at 582.
43
Id. at 183, 849 N.W.2d at 581.
44
Tremain, supra note 26.
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were returned to the temporary custody of their mother in
Nebraska pending resolution of the removal issue, while the
father remained in Oregon. There was no evidence beyond the
move to Oregon to support a finding of a material change in
circumstances. In reversing the modification order, we deter-
mined that because both parents were fit to have custody,
the trial court should have ascertained whether the father
would relocate back to Nebraska in order to retain custody of
the children.
In this case, as in Tremain, both parents are fit to have cus-
tody. But when Ember was asked where she would live if the
court granted custody of Lillian to Andrew, she replied: “Well,
New York City is the place that I currently have a workable
solution.” Although given an opportunity to do so, she gave
no indication that she would relocate in order to retain cus-
tody. Further, this is not the first time Ember has uprooted
Lillian without permission. Here, the relocation is not the
only evidence that supports a finding of a material change in
circumstances.
We conclude that the district court did not err in determin-
ing that there had been a material change in circumstances
which warranted a modification of custody.
V. CONCLUSION
[14] In contested custody cases, where material issues of
fact are in great dispute, the standard of review and the amount
of deference granted to the trial judge, who heard and observed
the witnesses testify, are often dispositive of whether the trial
court’s determination is affirmed or reversed on appeal.45 The
resolution of key issues in this case were dependent on the
trial judge’s assessment of Ember’s credibility and her motives
in moving Lillian to New York without prior approval of the
court, and of Andrew’s motives and credibility in resisting the
move and seeking modification of custody.
Based on our de novo review of the record, we agree with
the dissenting member of the Court of Appeals that the trial
45
Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
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116 290 NEBRASKA REPORTS
court did not abuse its discretion in its resolution of these issues
in favor of Andrew. We reverse the judgment of the Court of
Appeals with respect to the issues of removal and modifica-
tion of custody. Because further review was not requested, we
do not disturb that portion of the Court of Appeals’ judgment
pertaining to visitation by Chesley and Ember’s child sup-
port obligation. We remand the cause to the Court of Appeals
with directions to affirm the judgment of the district court in
all respects.
R eversed and remanded with directions.
Heavican, C.J., participating on briefs.
Dwight E. Whitesides, appellee, v.
Linda M. Whitesides, appellant.
___ N.W.2d ___
Filed February 13, 2015. No. S-13-493.
1. Pleadings: Judgments. A postjudgment motion must be reviewed based on the
relief sought by the motion, not based on the title of the motion.
2. Motions to Vacate: Proof: Appeal and Error. An appellate court will reverse a
decision on a motion to vacate or modify a judgment only if the litigant shows
that the district court abused its discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
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.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a
tribunal to hear and determine a case in the general class or category to which
the proceedings in question belong and to deal with the general subject mat-
ter involved.
5. Courts: Jurisdiction: Divorce. Pursuant to Neb. Rev. Stat. § 42-351 (Reissue
2008), full and complete general jurisdiction over the entire marital relationship
and all related matters is vested in the district court in which a petition for dis-
solution of marriage is properly filed.
6. Courts: Jurisdiction: Divorce: Property Settlement Agreements. A district
court, in the exercise of its broad jurisdiction over marriage dissolutions, retains
jurisdiction to enforce all terms of approved property settlement agreements.
7. Courts: Jurisdiction. A court that has jurisdiction to make a decision also has
the power to enforce it by making such orders as are necessary to carry its judg-
ment or decree into effect.