State on behalf of Savannah E. & Catilyn E. v. Kyle E. ( 2013 )

Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 409
Cite as 21 Neb. App. 409State of Nebraska on behalf of Savannah E. and
Catilyn E., minor children, appellee, v. Kyle E.,
appellee, and A manda W., appellant.
___ N.W.2d ___
Filed October 15, 2013. No. A-12-1027.
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. Modification of Decree: Child Support: Appeal and Error. Modification of
child support payments is entrusted to the trial court’s discretion, and although,
on appeal, the issue is reviewed de novo on the record, the decision of the trial
court will be affirmed absent an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrains
from acting, and the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through a judicial system.
4. Evidence: Appeal and Error. When evidence is in conflict, an appellate court
considers, and may give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another.
5. Child Custody. In cases where a noncustodial parent is seeking sole custody of a
minor child while simultaneously seeking to remove the child from the jurisdic-
tion, 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.
6. ____. Ordinarily, custody of a minor child will not be modified unless there has
been a material change of circumstances showing that the custodial parent is unfit
or that the best interests of the child require such action.
7. Child Custody: Proof. The party seeking modification of child custody bears the
burden of showing a material change in circumstances.
8. 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.
9. Child Custody. In determining a child’s best interests, courts may consider fac-
tors such as general considerations of moral fitness of the child’s parents, includ-
ing 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 disrupt-
ing an existing relationship; the attitude and stability of each parent’s character;
parental capacity to provide physical care and satisfy educational needs of the
child; the child’s preferential desire regarding custody if the child is of sufficient
Decisions of the Nebraska Court of Appeals
410 21 NEBRASKA APPELLATE REPORTS
age of comprehension regardless of chronological age, and when such child’s
preference for custody is based on sound reasons; and the general health, welfare,
and social behavior of the child.
10. ____. In relocation cases, a parent must first satisfy the court that he or she has a
legitimate reason for leaving the state.
11. Child Custody: Proof: Visitation. Once the threshold burden of showing a
legitimate reason for leaving the state has been met, the court then determines
whether removal to another jurisdiction is in a child’s best interests, which in turn
depends on (1) each parent’s motives for seeking or opposing the move, (2) the
potential the move holds for enhancing the quality of life for the child and the
custodial parent, and (3) the impact such a move will have on contact between
the child and the noncustodial parent, when viewed in the light of reasonable
visitation arrangements.
Appeal from the District Court for Kimball County: Derek
C. Weimer, Judge. Affirmed.
Audrey M. Elliott, of Kovarik, Ellison & Mathis, P.C., for
appellant.
Leonard G. Tabor for appellee Kyle E.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Moore, Judge.
I. INTRODUCTION
Kyle E. and Amanda W. are the biological parents of two
minor children, Savannah E. and Catilyn E. In 2005, Kyle and
Amanda agreed that Amanda would have primary physical
custody of Savannah and Catilyn and that Kyle would have
liberal visitation time. This custodial arrangement remained
intact until January 2011, when Kyle filed a motion to modify
custody of the children. In the motion, he asked that he be
awarded primary physical custody. After a hearing, the district
court granted Kyle’s request. Amanda appeals from the court’s
decision here.
On appeal, Amanda alleges that the district court erred in
granting Kyle’s motion to modify custody, because Kyle failed
to prove that a material change of circumstances had occurred
since 2005 when the parties agreed that Amanda would have
primary physical custody of the children and because Kyle
failed to demonstrate that a change in custody was in the
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 411
Cite as 21 Neb. App. 409girls’ best interests. Upon our de novo review of the record,
we affirm.
II. BACKGROUND
These proceedings involve Savannah, born in March 2003,
and Catilyn, born in December 2004. Amanda is the children’s
biological mother, and Kyle is their biological father. Amanda
and Kyle have never been married to each other.
1. P rocedural History
In July 2005, Amanda and Kyle entered into a stipulation
concerning custody of Savannah and Catilyn. As a part of the
stipulation, they agreed that Amanda would maintain physical
custody of the girls and that Kyle would be awarded liberal
visitation time. On July 19, the district court entered an order
reflecting the terms of the parties’ stipulation.
On January 20, 2011, more than 5 years after the parties
agreed that Amanda would maintain physical custody of the
girls, Kyle filed a motion to modify that custody arrangement.
In the motion, he alleged that a material change of circum-
stances had occurred since he entered into the custody agree-
ment with Amanda. Specifically, he alleged that both parties
had married, that Amanda had a baby with her new husband,
that Savannah occasionally takes care of Catilyn and Amanda’s
new baby, that Amanda spends a lot of time in the bars, that
the girls and their clothing are usually dirty when they come to
visit Kyle, that the girls are occasionally late for school, and
that Amanda has been neglecting the children and is no longer
a fit and proper parent to have permanent custody of the chil-
dren. In addition, he alleged that in December 2010, Amanda
was arrested for domestic assault. Kyle requested that he be
awarded physical custody of the girls, that Amanda be ordered
to pay child support, that the court establish a visitation sched-
ule, and that he be granted permission to move the children to
the State of Wyoming.
On February 17, 2011, Amanda filed an answer and a cross-
complaint to modify. Amanda denied that there had been any
material change of circumstances warranting a modification of
the original custody arrangement. However, she alleged that
Decisions of the Nebraska Court of Appeals
412 21 NEBRASKA APPELLATE REPORTS
there had been a material change of circumstances warranting
a modification of Kyle’s child support obligation.
While the modification action was pending in the district
court, Amanda informed Kyle that she was planning on mov-
ing from Nebraska to Colorado in order to assist an ailing
relative. Prior to informing Kyle about her plans, Amanda had
removed the children from their school and was preparing for
the move. Kyle immediately filed an ex parte motion request-
ing temporary custody of the girls so that Amanda could not
remove them from Nebraska. The district court granted Kyle’s
request on February 13, 2012, and awarded him immediate,
temporary custody of Savannah and Catilyn. Kyle moved the
children to his home in Pine Bluffs, Wyoming, and enrolled
them in school.
One week later, on February 21, 2012, a hearing was held
to determine whether Kyle should maintain temporary cus-
tody of the girls pending the modification hearing. The evi-
dence presented at the hearing revealed that although Amanda
had planned on moving to Colorado, she had since decided
to remain in Nebraska. In addition, there was evidence that
Amanda did not know that she could not move with the
children outside of Nebraska and that she did not intend the
move to affect Kyle’s visitation in any way. The evidence
revealed that if Amanda moved to Colorado, she would still
live only approximately 11⁄2 hours away from Kyle’s home
in Wyoming.
Because Amanda had decided not to move out of the state,
the court returned the girls to her custody pending the modi-
fication hearing. The court ordered Kyle to return the girls to
Amanda and ordered Amanda to enroll them again in school.
In September 2012, a hearing was held on Kyle’s request
to modify custody and on Amanda’s request to modify Kyle’s
child support obligation. At the hearing, Amanda and Kyle both
presented evidence about their relationships with Savannah and
Catilyn and about their current circumstances.
2. Amanda’s Evidence
Amanda testified that at the time of the modification hear-
ing, she was living in a home in Dix, Nebraska, with Savannah
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 413
Cite as 21 Neb. App. 409and Catilyn and her youngest daughter, who was approximately
3 years old. Amanda was working part time as a nurse’s aide
for a disabled individual, and she was enrolled at a community
college. However, she had not yet started attending any classes,
because she was waiting for funding.
Amanda had married Robert G. in March 2009. They were
still married at the time of the modification hearing, but
Amanda testified that they were separated and planned to get
a divorce.
Amanda and Robert’s marriage has been tumultuous. Both
Amanda and Robert have requested protection orders against
each other. Robert filed for protection orders against Amanda
in January and April 2011. Robert alleged that Amanda was
physically violent with him and threatened to cause him harm.
Amanda was arrested for domestic assault in April 2011 as
a result of Robert’s assertions. Amanda filed for a protection
order against Robert in November 2010 or 2011. During her
testimony at the modification hearing, she indicated that she
requested the protection order because she was “physically
scared.” She testified that even though Robert has never caused
her to suffer any physical injuries, she has felt threatened by
him because he is bigger and stronger and sometimes things
get “out of . . . control.”
Robert testified that none of the incidents between him and
Amanda occurred “in front of the kids.” He testified that he
could not specifically remember if the girls were present in
the house during the incidents or if they were with Amanda’s
mother, but he did testify that if the children were at home,
they would have been upstairs in their bedrooms. There was
no other evidence to indicate that the girls were ever physi-
cally present during the incidents between Amanda and Robert
or that they had any knowledge of what had occurred during
these incidents.
Amanda has a criminal history. Since 2005, when the parties
entered into the original custody agreement, Amanda has been
convicted of domestic assault, possession of marijuana, failure
to appear, and issuing a bad check. She has also been convicted
of disturbing the peace on two separate occasions. During the
pendency of the modification proceedings, in August 2012,
Decisions of the Nebraska Court of Appeals
414 21 NEBRASKA APPELLATE REPORTS
Amanda was arrested for driving under the influence. In the
days prior to the modification hearing, she pled no contest
to that charge and her license was suspended. Savannah and
Catilyn were not with Amanda on the day of that incident.
Amanda testified that on two occasions, she spent a few nights
in jail as a result of being arrested. However, there was no evi-
dence that she had spent any significant time in jail away from
the children.
Amanda has moved multiple times since the entry of the
2005 custody agreement. She testified that she has lived in
approximately seven different residences since 2005, including
her parents’ house and her uncle’s house while he was residing
outside of the country.
Amanda has had multiple jobs since 2005. She has worked
at a few restaurants and bars, a daycare, various professional
offices, and other, various “odd jobs.” She has not worked at
any one place for a significant period of time. Amanda testi-
fied that she considers herself to be a stay-at-home mother. She
indicated that she is willing to work if she needs to, but that
it is important to her to be available for her children. Amanda
also admitted that recently, she has struggled to find any
employment as a result of her criminal history.
Amanda presented evidence to demonstrate that she is very
involved in her children’s lives. She testified that Savannah
and Catilyn are very active in Girl Scouts. In addition, they
participate in soccer, softball, and swimming. Savannah also
sings in a musical group. Amanda testified that both Savannah
and Catilyn are good students who are thriving in school. She
indicated that she regularly communicates with the girls’ teach-
ers about how they are doing. She testified that they are both
healthy and happy girls.
In addition, Amanda testified that she does her best to com-
municate and work with Kyle concerning his visitation time
and that she is willing to maintain such efforts if she continues
to have physical custody of the girls. In fact, there was evi-
dence that Amanda has permitted the girls to spend a signifi-
cant amount of additional time with Kyle during the summer
months and that she has told the girls that when they want to
see their father, they just have to tell her.
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 415
Cite as 21 Neb. App. 4093. Kyle’s Evidence
At the time of the modification hearing, Kyle was living
with his wife and their infant son. Kyle and his wife married
in December 2010 and have resided in Pine Bluffs since that
time. Kyle testified that he and his wife plan on remaining in
Pine Bluffs.
Kyle currently works as a wind turbine technician and has
been with the same company for 41⁄2 years. He indicated that
he plans on keeping his same employment for the foresee-
able future.
Kyle testified that when he has visitation with his daugh-
ters, they engage in a variety of family activities, includ-
ing attending various high school sporting events, watching
movies, playing outside, playing video games, and spend-
ing time with Kyle’s extended family. In addition, Kyle and
his wife have taken the girls to do special activities in the
Denver, Colorado, area, including going to a Denver zoo,
viewing a dinosaur exhibit, and playing at a water park.
Kyle testified that Savannah and Catilyn are happy and well-
behaved children.
Kyle did present evidence that during the 2011-12 school
year, the girls were absent from school approximately 10 days
and were tardy approximately 6 days. However, there was no
evidence to explain why the girls were absent or tardy from
school, nor was there any evidence that such absences were
unusual or excessive.
Kyle believes it is in Savannah’s and Catilyn’s best interests
to live with him on a full-time basis. He testified that he can
provide the girls with everything they need because he has a
stable lifestyle and because both he and his wife have full-
time, steady jobs. To the contrary, Kyle believes that Amanda
is an unfit mother because she does not have steady employ-
ment and is unable to support herself and the girls. Further,
Kyle testified that he is concerned that Amanda does not
spend much time with the girls and that she does not “take as
good of care of them as she used to.” Kyle is also concerned
that Amanda is using marijuana, although he admitted that he
did not have any personal knowledge concerning Amanda’s
drug use.
Decisions of the Nebraska Court of Appeals
416 21 NEBRASKA APPELLATE REPORTS
Kyle told the district court that if he is awarded physical
custody of Savannah and Catilyn, he is willing to be flex-
ible with Amanda in permitting her to see the girls often.
He also testified that he does not speak negatively about
Amanda in front of the children. However, during cross-­
examination, Kyle admitted that he told the girls that Amanda
was “on drugs.”
4. District Court Order
After the modification hearing, the district court entered a
detailed order granting Kyle’s request to modify the original
custody arrangement such that he be awarded primary physi-
cal custody of Savannah and Catilyn. The court conducted a
three-part analysis: It first considered whether there had been
a material change of circumstances since the 2005 custody
agreement, it then considered whether the best interests of the
children required modification of custody, and it lastly con-
sidered whether relocation of the children from Nebraska to
Wyoming should be ordered.
The court first found that there had been a material change in
circumstances since the 2005 custody agreement. Specifically,
the court indicated:
The juxtaposition of the two lives of the [parties] estab-
lishes [such a] change. [Amanda’s] life has been marked
by changes in residence, changes in employment, criminal
charges and convictions, and marital difficulties. By con-
trast, [Kyle’s] life is marked by stability: in residence, in
relationships, in employment. The minor children in this
case have been moved at least seven times since the par-
ties separated. They have been moved to three different
school districts . . . . This is sufficient evidence of a mate-
rial change of circumstances.
The court next found that “it would be in the best interests
of the minor children that custody be modified.” In reaching
this conclusion, the court analyzed the various statutory and
case law factors concerning best interests. See, Neb. Rev. Stat.
§ 43-2923(1) (Cum. Supp. 2012); Neb. Rev. Stat. § 42-364(2)
(Cum. Supp. 2012); Klimek v. Klimek, 18 Neb. App. 82, 775
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 417
Cite as 21 Neb. App. 409N.W.2d 444 (2009). The court found that both parents enjoy
a positive and healthy relationship with the children; that
they are typical, healthy, and well-adjusted children and they
do well in school; that there has been no abuse between the
parents or involving the children (although the court noted
the domestic assault allegations between Amanda and her
husband); that the other familial relationships would not be
detrimentally impacted by a change of custody, because the
children would not be going far away; and that both parties
have the capacity to provide for the children’s physical care
and satisfy their educational needs. The court went on to find
that Amanda has had legal problems and relationship difficul-
ties which reflect on her moral fitness, whereas Kyle has a
stable and solid marriage; has found and maintained good,
long-term employment; and has maintained a residence in one
place for an extended period of time. The court found that
Kyle offered a more stable environment for the children due
to the stability of his home, employment, and relationships as
compared to Amanda. The court found that the “attitude and
stability of [Amanda’s] character is decidedly less stable than
that of [Kyle’s].”
The court then analyzed the factors regarding relocation
from Nebraska to Wyoming as set forth in Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). The court
found that Kyle had a legitimate reason to relocate the children
to Wyoming. In concluding that it was in the best interests of
the minor children to relocate to Wyoming, the court found
that neither party seems to be “ill-motivated” in his or her
position regarding relocation, that the children’s quality of
life will be improved by relocation, that the parties live only
about 40 miles apart, and that the relocation of the children to
Wyoming would not detrimentally impact Amanda’s ability to
have meaningful parenting time.
After granting Kyle’s request for a modification of custody
and awarding him physical custody of Savannah and Catilyn,
the district court ordered Amanda to pay Kyle child support in
the amount of $50 per month.
Amanda appeals from the district court’s order.
Decisions of the Nebraska Court of Appeals
418 21 NEBRASKA APPELLATE REPORTS
III. ASSIGNMENTS OF ERROR
On appeal, Amanda asserts that the district court erred in
modifying the parties’ 2005 custody agreement by awarding
Kyle sole physical custody of Savannah and Catilyn. In addi-
tion, Amanda alleges that if we reverse the district court’s
decision to modify custody, we should also reverse the court’s
decision concerning the parties’ child support obligations.
IV. ANALYSIS
1. Standard of R eview
[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. See
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
[2] Modification of child support payments is entrusted to
the trial court’s discretion, and although, on appeal, the issue is
reviewed de novo on the record, the decision of the trial court
will be affirmed absent an abuse of discretion. Peter v. Peter,
262 Neb. 1017, 637 N.W.2d 865 (2002).
[3] A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act
or refrains from acting, and the selected option results in a
decision which is untenable and unfairly deprives a litigant of
a substantial right or a just result in matters submitted for dis-
position through a judicial system. Id.[4] When evidence is in conflict, an appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Keig v. Keig, 20 Neb. App. 362, 826
N.W.2d 879 (2012).
2. Modification of Custody
On appeal, Amanda argues that the court erred in modify-
ing the custodial arrangement by awarding Kyle sole physi-
cal custody of Savannah and Catilyn. We begin our analysis
with a discussion of the procedural posture of this case. This
case presents an unusual factual situation wherein the non-
custodial parent is seeking a modification of custody and at
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 419
Cite as 21 Neb. App. 409the same time is seeking permission to remove the children
from the state. We have not found any reported cases, nor
have the parties directed us to any, with a similar factual situ-
ation. Generally, removal cases present to us when a custodial
parent seeks to move with the children out of state. See,
e.g., McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d
577 (2002); Farnsworth v. Farnsworth, 257 Neb. 242, 597
N.W.2d 592 (1999); Maranville v. Dworak, 17 Neb. App. 245,
758 N.W.2d 70 (2008); Wild v. Wild, 15 Neb. App. 717, 737
N.W.2d 882 (2007).
In Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000),
the parents shared joint legal and physical custody of the chil-
dren and the mother sought permission to modify the decree by
awarding her sole custody of the children and granting her per-
mission to move them to another state. The Nebraska Supreme
Court enunciated a two-part analysis in which it required that
the parent seeking modification first prove a material change
in circumstances affecting the best interests of a child by evi-
dence of a legitimate reason to leave the state, together with an
expressed intention to do so. Once the party seeking modifica-
tion has met this threshold burden, the separate analyses of
whether the custody should be modified and whether removal
should be permitted become intertwined.
[5] In the case of a noncustodial parent seeking a modifica-
tion of custody and removal from the jurisdiction, we conclude
that the approach utilized by the district court in this action
was appropriate. We hold that in cases where a noncustodial
parent is seeking sole custody of a minor child while simul-
taneously seeking to remove the child from the jurisdiction, a
court should first consider whether a material change in cir-
cumstances has occurred and, if so, whether a change in cus-
tody 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.
(a) Material Change in Circumstances
Amanda asserts that the district court erred in concluding
that there has been a material change in circumstances since
the entry of the 2005 custody agreement. Upon our de novo
Decisions of the Nebraska Court of Appeals
420 21 NEBRASKA APPELLATE REPORTS
review of the record, we conclude that Amanda’s assertion is
without merit.
[6,7] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change of circumstances
showing that the custodial parent is unfit or that the best inter-
ests of the child require such action. Vogel v. Vogel, 262 Neb.
1030, 637 N.W.2d 611 (2002). The party seeking modification
of child custody bears the burden of showing a material change
in circumstances. See Heistand v. Heistand, 267 Neb. 300, 673
N.W.2d 541 (2004).
The Nebraska Supreme Court has previously explained
the type of situation which constitutes a material change in
circumstances. In Hoschar v. Hoschar, 220 Neb. 913, 915,
374 N.W.2d 64, 66 (1985) (disapproved on other grounds,
Parker v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989)), the
court explained:
By this rule we do not mean that every change, no matter
how insignificant, justifies a change in custody. Rather,
by material change of circumstances we mean that the
evidence must show that something has occurred, which
if the trial court had been aware of the existence of these
circumstances initially, the trial court in the best inter-
ests of the children would have granted their custody to
the other parent. “‘A decree awarding custody of minor
children and fixing child-support payments is not subject
to modification in the absence of a material change in
circumstances occurring subsequent to the entry of the
decree of a nature requiring modification in the best inter-
ests of the children.’” Youngberg v. Youngberg, 193 Neb.
394, 396, 227 N.W.2d 396, 397 (1975).
We do not mean to say that the paramount question is
not the best interests of the children, for, indeed, it is. We
do mean to say that in response to a motion to modify a
custody decree, before the trial court considers what is
in the best interests of the children, the court must first
find that there has been a material change of circum-
stances which occurred after the entry of the earlier order
granting custody and which affects the best interests of
the children.
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 421
Cite as 21 Neb. App. 409In its order modifying the original custody agreement, the
district court found that a material change of circumstances
had occurred since 2005, because Kyle has demonstrated sta-
bility and security in his lifestyle and Amanda has been unable
to demonstrate the same level of stability and security in her
lifestyle. Specifically, the court found that since 2005, Kyle
has had a stable home, has established a stable relationship,
and has secured stable employment. In contrast, since 2005,
Amanda has changed residences and employment frequently, is
in the midst of a divorce, and has been convicted of multiple
criminal offenses.
Upon our de novo review of the record, we conclude that the
district court did not abuse its discretion in finding a material
change of circumstances which affected the best interests of
the children.
[8] The evidence presented at the modification hearing
revealed that in the approximately 7 years since the origi-
nal custody agreement, Amanda has changed residences and
employment frequently. At the time of trial, she testified that
she is trying to get a job “to please the court’s, to please
everyone else,” but that she feels that a mother should stay
home with her children. Amanda admitted that her inabil-
ity to find stable employment was related to her criminal
convictions. In 2011, Amanda was convicted of possession
of marijuana, domestic assault, and disturbing the peace. In
2012, in the midst of these proceedings, Amanda was con-
victed of driving under the influence of alcohol. In addition,
Amanda’s current marriage has been marked by instability.
Amanda has relied upon her husband to help care for the girls;
however, Amanda and her husband are currently separated
and planning to divorce. At the outset of these proceedings,
Amanda attempted to move the children to Colorado despite
Kyle’s objection. During the school year prior to trial, the
girls had numerous unexplained absences and tardies from
school while in Amanda’s care. We note, however, that there
was no evidence these absences and tardies have negatively
affected their schoolwork and that the record indicates both
girls have done well in school so far. In sum, the evidence
concerning Amanda’s lifestyle in the last couple of years, and
Decisions of the Nebraska Court of Appeals
422 21 NEBRASKA APPELLATE REPORTS
consequently the lifestyle to which these children are exposed,
presents a legitimate concern regarding their custody. See
Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004)
(in determining whether custody of minor child should be
changed, evidence of custodial parent’s behavior during year
or so before hearing on motion to modify is of more signifi-
cance than behavior prior to that time).
By contrast, during those same 7 years, Kyle has obtained
steady employment and housing and he has demonstrated sta-
bility in his marriage. This evidence clearly demonstrates that
Kyle currently has a more stable lifestyle than Amanda. Kyle
expressed concern that Amanda is not able to support herself
and the girls, and he testified that Amanda does not take care
of the girls as much or as well as she did in 2005. Kyle once
smelled marijuana in Amanda’s residence when picking up
the girls. Kyle indicated that the girls sometimes come to his
home for visitation in dirty clothes and not having showered
for some time.
We conclude that the totality of the evidence amounts to a
material change in circumstances which has affected the chil-
dren’s best interests. In other words, had the district court been
presented with this set of facts in 2005 in the context of a con-
tested custody dispute, it would likely have been led to award
custody of the children to Kyle.
(b) Best Interests
The next inquiry is whether the best interests of these chil-
dren compel a change of custody.
[9] Section 43-2923(6) 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 . . . :
(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
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 423
Cite as 21 Neb. App. 409age, when such desires and wishes are based on sound
reasoning; [and]
(c) The general health, welfare, and social behavior of
the minor child.
In addition to these factors, the Nebraska Supreme Court has
held that in determining a child’s best interests, courts
“‘may consider factors such as general considerations
of 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 continu-
ing or disrupting an existing relationship; the attitude
and stability of each parent’s character; parental capacity
to provide physical care and satisfy educational needs
of the child; the child’s preferential desire regarding
custody if the child is of sufficient age of comprehen-
sion regardless of chronological age, and when such
child’s preference for custody is based on sound reasons;
and the general health, welfare, and social behavior of
the child.’”
Davidson v. Davidson, 254 Neb. 357, 368, 576 N.W.2d 779,
785 (1998).
Based upon our de novo review of the record, we agree that
the best interests of the children will be served by being placed
in Kyle’s custody. We acknowledge that this is a close case
in that the girls are “typical, healthy, well-adjusted children”
and that both Amanda and Kyle “enjoy a positive and healthy
relationship with the minor children.” Nevertheless, Kyle is
able to offer a more stable environment for the children by
virtue of his stable and solid housing, employment, and mar-
riage, when compared to Amanda’s past conduct and current
living situation.
We conclude that the record supports a finding that a mate-
rial change in circumstances has occurred such that it is in
the best interests of the children to change their custody from
Amanda to Kyle. In reaching this conclusion, we note that
the 2005 order granting Amanda custody was based upon the
Decisions of the Nebraska Court of Appeals
424 21 NEBRASKA APPELLATE REPORTS
parties’ stipulation, and there was no explicit finding by the
district court that such a custody award was in the best interests
of the children. We are also mindful of the fact that the trial
judge heard and observed the witnesses and was in a better
position to determine the credibility of the parties.
In determining that the trial court did not abuse its discre-
tion in modifying custody of the children, we do not find that
Amanda is an unfit parent. To the contrary, the evidence shows
that Amanda is a loving parent and that the girls have generally
been thriving in her care. Nevertheless, the record supports the
district court’s determination that their best interests would be
better served in Kyle’s custody.
(c) Removal From Jurisdiction
Although Amanda did not assign error separately to the
portion of the order granting Kyle permission to remove the
children from the jurisdiction, for the sake of completeness, we
address this issue.
[10] In relocation cases, a parent must first satisfy the court
that he or she has a legitimate reason for leaving the state.
See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d
592 (1999). As noted above, this case differs from the typical
removal case because Kyle was the noncustodial parent seek-
ing to move the children. It differs further in that Kyle is not
“leaving the state,” but, rather, he has resided in Pine Bluffs for
several years and is seeking permission to relocate the children
there. We agree with the district court that Kyle has demon-
strated a legitimate reason to relocate the children.
[11] Once the threshold burden of showing a legitimate
reason for leaving the state has been met, the court then deter-
mines whether removal to another jurisdiction is in a child’s
best interests, which in turn depends on (1) each parent’s
motives for seeking or opposing the move, (2) the potential
the move holds for enhancing the quality of life for the child
and the custodial parent, and (3) the impact such a move will
have on contact between the child and the noncustodial par-
ent, when viewed in the light of reasonable visitation arrange-
ments. Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000);
Farnsworth v. Farnsworth, supra.Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 425
Cite as 21 Neb. App. 409(i) Each Parent’s Motives
The district court determined that neither party seemed to be
“ill-motivated” in his or her position regarding a relocation of
the children. We agree.
(ii) Children’s Quality of Life
The district court noted its previous findings in support
of the conclusion that the children’s best interests would be
served by a change in custody. The court concluded that the
children’s quality of life “will be improved by relocation to the
State of Wyoming.” We agree.
(iii) Impact on Noncustodial Parent
As noted by the district court, this factor is usually of para-
mount concern when a child is being relocated some distance
away from the noncustodial parent. The court found that this
was not the issue here, because the parties now live only about
40 miles apart. The court further found that this distance has
not affected the current custodial and parenting arrangements
and that a change in the custodial arrangements would not det-
rimentally impact Amanda’s ability to have meaningful parent-
ing time. We agree.
(d) Conclusion Regarding Custody
We conclude that the district court did not abuse its discre-
tion in finding that a material change in circumstances had
occurred since entry of the 2005 order and in finding that it
was in the best interests of the children to modify custody from
Amanda to Kyle. We further conclude that there was no abuse
of discretion in granting Kyle permission to move the children
to Wyoming.
3. Child Support
After the district court awarded Kyle custody of Savannah
and Catilyn, it addressed the parties’ current financial circum-
stances and resulting child support obligations. Ultimately,
the court imputed to Amanda an average monthly income of
$628.33 and found that Kyle earned an average monthly income
of $3,196.89. The court then indicated that normally, the
court would prepare a “step worksheet” to reflect the parties’
Decisions of the Nebraska Court of Appeals
426 21 NEBRASKA APPELLATE REPORTS
obligations to their other children; however, in this instance,
such a calculation was unnecessary because Amanda’s obliga-
tion as the noncustodial parent “would be set at the minimum
level of $50.00 per month regardless of other obligations.” The
district court then ordered Amanda to pay child support in the
amount of $50 per month.
On appeal, Amanda appeals from the district court’s order
concerning child support. Essentially, Amanda argues that the
court erred in ordering her to pay child support because the
court erred in awarding Kyle custody of the children. Given
our resolution of Amanda’s first assignment of error regarding
custody of the children, we find that the district court did not
err in determining Amanda’s child support obligation.
V. CONCLUSION
Upon our de novo review of the record, we find that the dis-
trict court did not abuse its discretion in finding that a material
change of circumstances had occurred since the parties’ 2005
custody agreement, which warranted a change in the custody
of the minor children, and in granting Kyle permission to move
the children to Wyoming. Accordingly, we affirm the order of
the district court granting custody of the children to Kyle. We
also affirm the court’s order requiring Amanda to pay $50 per
month in child support to Kyle.
Affirmed.
Irwin, Judge, dissenting.
I respectfully disagree with the conclusion of the majority
that a material change in circumstances has occurred since the
parties’ 2005 custody agreement which affects the best inter-
ests of the children and which warrants a change in custody.
Contrary to the conclusion of the majority, there is no evidence
in the record to establish that the recent changes in the parties’
circumstances have affected the children in any way. Instead,
the evidence presented by both parties reveals that the children
are happy and healthy and thriving in Amanda’s care. For this
reason, I would reverse the decision of the district court which
modified the original custody agreement and awarded Kyle
primary physical custody of the children.
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 427
Cite as 21 Neb. App. 409The majority concentrates its analysis of whether there has
been a material change of circumstances exclusively on the
changes that have occurred in the parties’ circumstances since
the original custody agreement was filed. The majority con-
cludes that the evidence demonstrates that in the 7 years since
the original custody agreement, “Kyle has obtained steady
employment and housing and he has demonstrated stability in
his marriage,” while during this same time period, “Amanda
has changed residences and employment frequently, is in the
midst of a divorce, and has been convicted of multiple criminal
offenses.” Based solely on these changes in the parties’ lives,
the majority finds that there has been a material change in cir-
cumstances warranting a change in custody.
I agree that the evidence presented at the modification hear-
ing establishes that there have been changes in both Amanda’s
and Kyle’s circumstances since the original custody agreement.
However, I do not agree that an analysis of whether there has
been a material change in circumstances warranting a change in
custody should end with a finding that the parties have experi-
enced changes in their lives since the original custody order. It
is clear from our case law that not every change in the parties’
circumstances justifies a change in custody. See Youngberg v.
Youngberg, 193 Neb. 394, 227 N.W.2d 396 (1975). Instead,
in order to find that a material change in circumstances has
occurred, the changes in the parties’ circumstances must be
significant enough to have affected the best interests of the
children involved. See id.Because a material change in circumstances means a change
in circumstances which has affected the best interests of the
children, a complete analysis of whether such a change in
circumstances has occurred in this case requires a discus-
sion of both the changes that have occurred in Amanda’s and
Kyle’s lives and whether the children have been affected by
those changes. Here, the evidence presented at the modifica-
tion hearing revealed that despite the changes in Amanda’s
and Kyle’s lives, the children are flourishing under the current
custody arrangement.
Decisions of the Nebraska Court of Appeals
428 21 NEBRASKA APPELLATE REPORTS
Under the current custody arrangement, Amanda has been
the children’s primary caregiver for the last 7 years. During
that time, the children have thrived. Both Amanda and Kyle
agree that Savannah and Catilyn are happy and healthy chil-
dren who do well in school and who have an active life. At the
modification hearing, Kyle testified that Savannah and Catilyn
are basically “happy young girls.” Similarly, the district court
found that the evidence revealed that both Amanda and Kyle
“enjoy a positive and healthy relationship with the minor chil-
dren” and that the children are “typical, healthy, well-adjusted
children.” The majority does not dispute any of these fac-
tual findings.
There was no evidence presented at the modification hear-
ing to establish that Amanda’s current lifestyle has affected
the girls in any way. There was no evidence that the girls
have been negatively affected by moving frequently or by
Amanda’s marital problems. There was no evidence that the
girls witnessed any of the instances of domestic strife between
Amanda and her current husband or that they were aware of
Amanda’s criminal convictions. In fact, the only evidence
presented to demonstrate that the girls knew anything about
Amanda’s recent struggles was Kyle’s testimony that he had
informed the girls that Amanda was “on drugs.” And, Kyle
admitted that he had no actual information about Amanda’s
drug use.
While I can understand the majority’s concerns with regard
to the evidence of Amanda’s struggles and life choices, I can-
not disregard the very clear definition of a material change in
circumstances which has been stated time and time again in
our case law. A material change in circumstances is a change
which has affected the best interests of the children involved.
Despite the changes in the lives of the parties, Savannah and
Catilyn have thrived in Amanda’s custody. Kyle did not pre­
sent any evidence to demonstrate otherwise. Accordingly, I
must conclude that Kyle failed to establish that there has been
a material change in circumstances since 2005 which would
warrant a change in custody. Although Kyle established that
the parties’ circumstances have changed, he did not estab-
lish that those changes have affected Savannah and Catilyn.
Decisions of the Nebraska Court of Appeals
STATE ON BEHALF OF SAVANNAH E. & CATILYN E. v. KYLE E. 429
Cite as 21 Neb. App. 409Accordingly, I would reverse the decision of the district court
which modified custody by awarding Kyle primary physical
custody of the children.