Hiller v. Hiller ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:09 PM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
HILLER v. HILLER
Cite as 23 Neb. Ct. App. 768
A ngela M. Hiller, appellee, v.
Corey A. Hiller, appellant.
___ N.W.2d ___
Filed March 15, 2016. No. A-15-140.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of
marriage, an appellate court reviews de novo on the record the trial
court’s determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be affirmed
absent an abuse of that discretion.
2. 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 deci-
sion which is untenable and unfairly deprives a litigant of a substantial
right or a just result in matters entrusted for disposition through a judi-
cial system.
3. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late 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: Proof. There is a two-step process before a custodial
parent is allowed to remove a child from the State of Nebraska. The
custodial parent must satisfy the court that there is a legitimate reason
for leaving the state and that it is in the minor child’s best interests to
continue to live with that parent.
5. Child Custody. Removal jurisprudence has been applied most fre-
quently when a custodial parent requests permission to remove a child
from the state and custody has already been established. However, the
Nebraska Supreme Court has used the factors considered in Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), when determin-
ing whether removal is appropriate in an initial custody determination.
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Decisions of the Nebraska Court of A ppeals
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HILLER v. HILLER
Cite as 23 Neb. Ct. App. 768
6. Child Custody: Proof. To prevail on a motion to remove a minor child,
the custodial parent must first satisfy the court that he or she has a legiti-
mate reason for leaving the state.
7. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late 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.
8. Child Custody: Visitation. In determining whether removal to another
jurisdiction is in the children’s best interests, the trial court evaluates
three considerations: (1) each parent’s motives for seeking or opposing
the move, (2) the potential that the move holds for enhancing the quality
of life for the children and the custodial parent, and (3) the impact such
a move will have on contact between the children and the noncusto-
dial parent.
9. Child Custody. The ultimate question in evaluating the parties’ motives
in seeking removal of a child to another jurisdiction is whether either
party has elected or resisted removal in an effort to frustrate or manipu-
late the other party.
10. ____. In determining the potential that 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 children; (2) the children’s
opinion or preference as to where to live; (3) the extent to which the
relocating 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 children and each parent; (7) the strength of the children’s
ties to the present community and extended family there; (8) the likeli-
hood that allowing or denying the removal would antagonize hostili-
ties between the parties; and (9) the living conditions and employment
opportunities for the custodial parent.
11. Child Custody: Visitation. A reduction in visitation time does not
necessarily preclude a custodial parent from relocating for a legiti-
mate reason.
Appeal from the District Court for Otoe County: Jeffrey J.
Funke, Judge. Affirmed.
Terrance A. Poppe and Andrew K. Joyce, of Morrow, Poppe,
Watermeier & Lonowski, P.C., L.L.O., for appellant.
Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt,
L.L.P., for appellee.
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Decisions of the Nebraska Court of A ppeals
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HILLER v. HILLER
Cite as 23 Neb. Ct. App. 768
Pirtle, R iedmann, and Bishop, Judges.
Pirtle, Judge.
I. INTRODUCTION
Corey A. Hiller appeals from the order of the district court
for Otoe County entered on January 15, 2015. The order dis-
solved his marriage to Angela M. Hiller and awarded the
parties joint legal custody of their two minor children. The
court awarded Angela physical custody of the children and
granted her permission to remove the children from Nebraska
to Virginia. For the reasons that follow, we affirm.
II. BACKGROUND
Corey and Angela married in August 1997 and separated in
June 2014. The parties have twin daughters, Brooke Hiller and
Hannah Hiller, who were born in 2001. Shortly after the parties
separated, they began alternating time in the family home with
the children, with each party spending certain days and nights
in the home.
Angela filed a complaint for dissolution of the parties’ mar-
riage in the district court for Otoe County in August 2014. The
complaint requested dissolution, custody of the children, and
permission to remove the children from the State of Nebraska.
Angela had an offer of employment at the Department of
Veterans Affairs (VA) in Washington, D.C., and planned to
move to Sterling, Virginia, with the children. She stated the
move was in the children’s best interests and was “being made
for legitimate purposes regarding [Angela’s] employment.”
In November, Corey filed a response, as well as a “cross
complaint,” in which he also requested custody of the par-
ties’ children.
The matter was tried before the district court on November
12 and 21 and December 19, 2014. Angela testified that she
was the primary caretaker, seeing to the children’s daily needs,
including cooking, cleaning, laundry, grocery shopping, assist-
ing with homework, and purchasing clothing, school supplies,
and personal care items. She also testified that she took care
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HILLER v. HILLER
Cite as 23 Neb. Ct. App. 768
of the children’s medical and dental needs, maintained their
schedule of extracurricular activities, and attended their sport-
ing events.
Angela testified that in the time that Corey resided in the
home with the children, he failed to keep the house clean,
failed to shop for or provide nutritious food for the children,
and could not assist with the children’s homework at the level
that was required. She testified that he lacked organizational
skills, he did not maintain the children’s schedules, and he
did not assist them in getting ready for activities. She testified
that after they began alternating time in the family home, she
routinely returned to the home after Corey stayed there to find
dirty and clean laundry commingled and covered in pet hair,
dried dog urine on the floor, dirty dishes in the sink, dirty pots
sitting on the stove, and unclean bathrooms. Angela and her
mother, Judy Moritz, testified that they spent hours cleaning
the home after Corey spent time there. Angela testified that she
began stocking the refrigerator with fresh fruits and vegetables
for the children to eat during the days when Corey stayed with
them because he did not always make healthy food purchases
for the children.
Angela testified that Corey displayed carelessness with fire-
arm safety in the home. She presented evidence that firearms
and ammunition were left unsecured in the home despite her
requests that they be placed in a gun safe. She said that in
September 2014, Brooke retrieved an unsecured gun from a
closet in the home and took it outside to shoot. Corey testified
that he did leave firearms outside of the parties’ gun safes and
acknowledged that it was possible that the children’s friends,
some of whom may not be well trained in firearm safety, could
be in the home.
Angela testified that she holds a bachelor’s degree in
English and had worked for the VA in Lincoln, Nebraska,
for 14 years. Her job title at the VA in Lincoln was “Rating
Quality Review Specialist.” Her duties included performing
quality review of other employees’ work and giving feedback
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Cite as 23 Neb. Ct. App. 768
to management, who made personnel decisions based on error
rates. She also was responsible for mentoring those individ­
uals she reviewed and for conducting training related to the
federal regulations governing disability benefits to veterans
for injuries incurred during service. She testified that she had
looked for positions outside of the VA at times, but found that
the skills she uses and the knowledge she has gained at the
VA do not transfer well to other positions. She did not apply
for any jobs outside of the VA because she was not aware of
any positions that she would be qualified for that would have
a similar salary.
She testified that prior to the parties’ separation, it was
her intention to stay in Syracuse, Nebraska, until the children
finished school. However, for reasons that will be discussed
in further detail in our analysis, she felt her reputation had
been damaged because Corey had caused her personal life to
become an issue at work. She believed this called her integrity
into question, which, in turn, adversely affected her ability to
do her job.
Angela accepted a position at the VA in Washington, D.C.,
on August 29, 2014, which is at the same pay grade as her posi-
tion in Lincoln, so it is considered a lateral move. She testified
that the position in Washington, D.C., paid $101,000, com-
pared to the $93,000 she earned in Lincoln, and that some of
the difference in pay is attributable to cost of living expenses.
She testified that the position she vacated in Lincoln had been
filled by another person and would no longer be available to
her. She was aware of only three positions in Lincoln that she
could be potentially promoted to, and none were likely to be
vacant in the near future. She testified that there is enhanced
opportunity for advancement in the Washington, D.C., office
and that the next promotion would include a base salary
of $108,000.
Angela testified that she had secured a residence in a town-
house in Virginia. She testified that the townhouse is near
the school the children would attend and had square footage
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HILLER v. HILLER
Cite as 23 Neb. Ct. App. 768
similar to that of the marital home. The townhouse has three
bedrooms, 31⁄2 bathrooms, a yard, and a basement which would
allow Moritz to live with them. Angela testified that she had
not yet signed the lease, but she intended to sign it on the day
of trial.
Moritz testified that she lived with the parties for about
a year shortly after the children were born and continued to
be present in the home throughout their lives. She said she
observed Angela maintaining the children’s schedules, helping
with homework, and seeing to their daily needs. She said she
did not observe Corey helping with schedules or homework
and described him as a “slob” who lacked organizational
skills. Moritz testified that if Angela were given permission
to remove the children, she would move with them to Virginia
and would help with transportation and general care of the
children. If Angela were not given permission to remove the
children, Moritz did not intend to stay in Syracuse. She stated
she would not stay because she believed Corey “would never
let [her] see the children, and if [she] did get to see the chil-
dren, [Corey] would want [her] to raise them from sunup to
sundown.” She testified that Corey lacked some parenting
skills. She said, “He can’t talk to the girls about certain things
without getting angry with them,” and stated her belief that
he was “always barking orders” instead of trying to reason
with them.
Corey testified that he is employed by the Nebraska Army
National Guard as an “Initial Active Duty Training Manager.”
His work location is Camp Ashland, which is located 38 miles
from Syracuse. At the time of trial, he had been a full-time
employee of the National Guard for 16 years and his rank
was “Sergeant First Class.” As part of the National Guard, he
was deployed twice, once in 2003 to Fort Riley, Kansas, for
67 days and once in 2010-11 to Afghanistan for a period of
101⁄2 months.
He testified that his average workday is from 7:30 a.m. to
4 p.m. and that he has one “drill weekend” per month. He
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HILLER v. HILLER
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testified that he had at least 4 more years before he was eligible
to retire and that he had not decided whether he would retire at
that time. He investigated transferring his job to a guard in the
Washington, D.C., area, but because he was nearing 17 years
of active service, he was unsure whether he would be able to
secure a position. If he were to transfer, he would need to go
through an application process, and a position in his job skill
would need to be available. Corey testified that he liked his job
and his position at Camp Ashland.
Corey testified that he attends the majority of the children’s
extracurricular events, attends the majority of parent-teacher
conferences at school, helps with transportation to medical
appointments, and has coached a few of the children’s softball
and soccer teams. He testified that he enjoys spending leisure
time with the children, including hunting, rafting, attending
football games, fishing, and riding four-wheelers.
Corey testified that he has a support network in Syracuse,
including his mother, church members, and several family
friends upon whom he could rely if he needed help, or if there
was an emergency. He testified that at the time, he was living
with his mother, but that he planned to purchase a new home
in Syracuse after the divorce.
Corey and Angela both testified that they believed their
daughters exercise “good judgment for their age” or are “fairly
responsible for their age,” and both said they believed the chil-
dren’s wishes should be considered by the trial court.
Brooke and Hannah testified that there are activities they
enjoy doing with both parents, but both stated that Angela
helped more with the day-to-day parenting functions and that
they felt more comfortable talking with her about personal
issues, including boyfriends, makeup, puberty, and shopping
for undergarments. They testified that they would miss their
friends and Corey in Syracuse, but that they would prefer
to move to Sterling and to live with Angela. Hannah testi-
fied that she had a closer emotional bond with Angela and
felt more comfortable talking with her about problems. She
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HILLER v. HILLER
Cite as 23 Neb. Ct. App. 768
expressed concerns about Corey’s ability to take care of daily
tasks, such as laundry, and said Angela cooks healthier, does
her laundry, and helps with homework. Brooke testified that
Angela listens to her, helps make her day better, and “takes
better care of us.”
Both Brooke and Hannah expressed concerns about how
Corey handles stressful situations, including yelling and break-
ing things. They testified that when they told Corey they would
prefer to live with Angela, he refused to speak with them for
the rest of the night, and Hannah testified that the next morning
he said, “‘I guess I’m not part of your life anymore.’” Brooke
testified that on occasion, Corey says things that make her feel
bad about herself. They also expressed a belief that if they
lived with Corey in Syracuse, they would not be able to see
Angela very often.
The district court’s order sets out a detailed discussion of
the various elements used to determine the custodial issues
based on the best interests of the minor children before ana-
lyzing the elements used for removal. The court noted that
according to Angela, she has been the primary caregiver and
has tended to the children’s needs, including cooking, launder-
ing clothes, cleaning the home, scheduling, transporting the
children to activities and medical appointments, helping with
homework, and planning for birthdays and holidays. Angela
still performed these duties and prepared schedules and meals
ahead of any travel so the children were prepared for school
and extracurricular activities and had healthy meals to eat in
her absence. The court also noted that the children are age 13
and that Angela suggested the children would need her assist­
ance in dealing with puberty, issues related to their health, and
making right choices. Corey testified that he has been active
in the children’s lives and cared for the children independently
while Angela traveled for work and during the parties’ rotating
parenting time schedule after their separation.
The court also considered testimony regarding Corey’s
poor housekeeping skills, Angela’s alleged extramarital
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relationships, and the interaction and assistance the maternal
and paternal grandmothers have with and provide to the fam-
ily. The court found the evidence indicated that both parties
were fit and proper parents who have been active in the chil-
dren’s lives and that the children’s needs are being met. The
court considered the testimony of both children, because they
were of sufficient age and maturity to understand the need to
tell the truth and were able to articulate their desires based on
sound reasoning. The children testified that their preference
would be to reside with Angela.
Based on the totality of the facts presented, the court found
it was in the best interests of the minor children that their
physical custody be placed with Angela, subject to rights of
reasonable visitation with Corey.
In reaching a determination on the issue of removal, the
court presumed that it was not required to consider the factors
ordinarily considered in removal cases, as there was no perma-
nent custody order previously entered. However, the court still
discussed and considered each of the factors traditionally used
to determine whether removal is appropriate, and it granted
Angela’s request for removal.
Corey timely appealed.
III. ASSIGNMENTS OF ERROR
Corey asserts the district court erred by finding that Angela
had a legitimate reason to move and by finding that it is
in the children’s best interests to remove the children from
Nebraska.
IV. STANDARD OF REVIEW
[1] In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court’s determi-
nations of custody, child support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion. Mamot v. Mamot,
283 Neb. 659, 813 N.W.2d 440 (2012).
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[2] 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 deci-
sion which is untenable and unfairly deprives a litigant of a
substantial right or a just result in matters entrusted for dispo-
sition through a judicial system. Geiss v. Geiss, 20 Neb. Ct. App.
861, 835 N.W.2d 774 (2013).
[3] When evidence is in conflict, an appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013).
V. ANALYSIS
In this case, Angela requested permission to remove the
children from Nebraska as part of the original complaint for
dissolution of her marriage to Corey.
The district court considered the totality of the facts pre-
sented and found that it was in the best interests of the parties’
minor children to place physical custody with Angela, subject
to rights of reasonable visitation with Corey. The court found
that Angela was the parent who provided the children with the
daily care they required and that they were more bonded with
her. Then the court considered the issue of removal of the chil-
dren from the State of Nebraska, before ultimately concluding
that Angela had met her burden of showing that it is in the
children’s best interests to relocate to the State of Virginia, and
the court authorized her to relocate with the children.
On appeal, Corey asserts only that the district court erred
by finding that Angela had a legitimate reason to move and by
finding that it was in the children’s best interests to remove
the children from Nebraska. He does not argue that the trial
court’s determination of custody was in error. Therefore, we
need not address the trial court’s decision to place physi-
cal custody with Angela, and we will address only the issue
of removal.
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[4] There is a two-step process before a custodial parent is
allowed to remove a child from the State of Nebraska. The
custodial parent must satisfy the court that there is a legitimate
reason for leaving the state and that it is in the minor child’s
best interests to continue to live with that parent. Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
In this case, the district court determined that the factors
considered in Farnsworth, supra, and later in Vogel v. Vogel,
262 Neb. 1030, 637 N.W.2d 611 (2002), “presumably” do not
apply where a permanent custody order had not been previ-
ously entered. Nonetheless, the district court set forth the fac-
tors considered when determining whether removal is appropri-
ate and determined that they were relevant to the present case;
therefore, they would be considered by the court. Ultimately,
the district court determined that Angela had shown a legiti-
mate reason for leaving the State of Nebraska and that the
move was in the children’s best interests.
[5] Removal jurisprudence has been applied most frequently
when a custodial parent requests permission to remove a child
from the state and custody has already been established.
However, the Nebraska Supreme Court has used the fac-
tors considered in Farnsworth when determining whether
removal is appropriate in an initial custody determination.
See Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d
517 (2000). In December 2014, this court considered whether
removal jurisprudence applied to a situation where the mother
removed the child from the State of Nebraska prior to fil-
ing for dissolution or a request for removal; thus, there was
no prior custody determination. See Rommers v. Rommers,
22 Neb. Ct. App. 606, 858 N.W.2d 607 (2014). In Rommers,
the district court dissolved the parties’ marriage and found
that because there was no prior custody determination, the
court was not required to engage in a removal analysis,
although the court still considered the relevant factors in
determining custody based upon the child’s best interests.
On appeal, we found that the trial court should have made a
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determination of custody first, then conducted a proper
Farnsworth removal analysis.
Although the district court’s presumption that Farnsworth
did not apply in this case was in error, see Kalkowski, supra,
and Rommers, supra, it still engaged in a thorough analysis of
the Farnsworth factors before reaching its ultimate conclusion
authorizing removal. In an action for the dissolution of mar-
riage, we review the record de novo on appeal. See Mamot v.
Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
1. Legitimate R eason to R elocate
[6] 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. Farnsworth v.
Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
Corey asserts that the district court erroneously relied on
this court’s decision in Schrag v. Spear, 22 Neb. Ct. App. 139,
849 N.W.2d 551 (2014), which was subsequently reversed by
the Nebraska Supreme Court in Schrag v. Spear, 290 Neb.
98, 858 N.W.2d 865 (2015). The district court’s order herein
was entered prior to the release of the Supreme Court’s deci-
sion in that case; however, the district court’s reference to the
Court of Appeals’ underlying decision was solely to provide
one example of a factual basis supporting a legitimate reason
for removal. The Supreme Court’s subsequent determinations
that the mother had ulterior motives for the move and that
the decision to move was made with no firm or likely pros-
pects for career enhancement had no bearing on the instant
matter, because the facts are distinguishable. See id. In this
case, Angela was offered, and accepted, a new position in the
Washington, D.C., division of the VA. Although the position
was considered a lateral move, it included an increased salary
and presented a greater likelihood of advancement within the
VA than the position in Lincoln did.
Corey also asserts Angela had ulterior motives in deciding
to move, namely his belief that Angela’s desire to move is not
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work related, but, rather, to be closer to a male friend. Although
there is evidence that Angela began a relationship with that
friend shortly after the parties separated, there is also evidence
that the relationship was not romantically serious at the time
and was not the motivating factor for her decision to relocate.
Angela testified that she does not “love” the friend and that
although she enjoys spending time with him, she is not ready to
make a commitment or introduce him to her daughters. When
Angela was asked whether his presence nearby had “anything
to do with the move to [Washington,] D.C.,” she replied, “No.”
The friend stated in his deposition that he cares for Angela and
loves her as a friend, but that they have no definite plans for a
serious romantic relationship.
In addition to the potential for advancement opportuni-
ties in Washington, D.C., Angela testified that she felt it was
necessary for her to leave the Lincoln VA offices because her
professional reputation was damaged by Corey’s interference
with her work and by speculation regarding her personal life.
Corey also believed that Angela was having an affair with a
male coworker in Lincoln. Corey confronted the coworker
about the alleged affair and spoke numerous times with the
coworker’s wife about the issue. The male coworker and
Angela both denied any affair, and there is no evidence to
substantiate this allegation. However, Angela testified that
she overheard other coworkers discussing the alleged affair
at work and that she felt it adversely affected her ability to
do her job. She testified that her position at the VA requires
a high level of integrity, and she felt it was impugned by
these rumors.
Angela also testified that after she was denied the oppor-
tunity to participate in a special work project, Corey went to
see Angela’s supervisor at her home after work hours. The
supervisor testified that she did not feel frightened by the visit,
but that she did ask her husband to join her and Corey for the
conversation. She testified that Corey’s visit did not impact
her opinion of Angela. Nonetheless, Angela testified that she
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no longer felt that she could perform her duties in the Lincoln
office because she had intentionally kept her personal life
separate from her employment and these incidents adversely
affected her professional role. One of Angela’s coworkers testi-
fied that she observed a change in Angela’s demeanor at work,
in that she was more emotional, was less confident, and no
longer assumed leadership roles in meetings.
In reaching the conclusion that Angela had a legitimate
reason to relocate, the court expressed concern about the
“timing of the employment decision and the commencement
of [Angela’s] relationship” with the aforementioned male
friend, but found that relationship was not the main reason for
Angela’s decision to relocate. The court found the evidence
showed that Angela had additional opportunities for advance-
ment of her career which were not available in Lincoln and
that Corey’s actions related to Angela’s workplace created a
“charged environment” which adversely affected her ability to
do her job.
[7] When evidence is in conflict, an appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013). Upon our review of the evidence, we
find the trial court did not err in finding Angela’s new position
and potential for career advancement, and her desire to obtain
and maintain a professional work environment, were legitimate
reasons to relocate.
2. Best Interests
Corey asserts that if the second step of the analysis in
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592
(1999), is applied, the court would find that it is not in
the children’s best interests to leave the State of Nebraska.
Specifically, he asserts the move would be detrimental to his
relationship with the children and would have a negative effect
on their emotional, physical, and developmental needs.
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The record shows that the court engaged in a detailed
analysis of the Farnsworth factors and found that it was in
the children’s best interests to allow them to move to Virginia
with Angela.
[8] In determining whether removal to another jurisdiction
is in the children’s best interests, the trial court evaluates three
considerations: (1) each parent’s motives for seeking or oppos-
ing the move, (2) the potential that the move holds for enhanc-
ing the quality of life for the children and the custodial parent,
and (3) the impact such a move will have on contact between
the children and the noncustodial parent. See Bird v. Bird, 22
Neb. Ct. App. 334, 853 N.W.2d 16 (2014).
(a) Each Parent’s Motives
[9] The ultimate question in evaluating the parties’ motives
in seeking removal of a child to another jurisdiction is whether
either party has elected or resisted removal in an effort to frus-
trate or manipulate the other party. Dragon v. Dragon, 21 Neb.
App. 228, 838 N.W.2d 56 (2013), citing Wild v. Wild, 15 Neb.
App. 717, 737 N.W.2d 882 (2007).
The court determined that Angela’s motive for the move
appeared to be based on her desire to end her marriage, her
desire to advance her employment opportunities, her limited
contacts within the State of Nebraska, and her desire to fur-
ther her relationship with a male friend. The court found that
none of the motives appeared to be centered upon denying
Corey the opportunity to have a relationship with Brooke and
Hannah. The court found Corey’s motive for opposing the
move was based upon his genuine desire to maintain a strong
relationship with the children. The court noted that it did not
appear that Corey wanted the divorce to occur, but his oppo-
sition to the move did not seem to be based upon animosity
toward or manipulation of Angela.
The evidence supports the court’s analysis of the situation,
and we do not find either party acted in bad faith. Thus, this
factor does not weigh for or against removal.
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(b) Quality of Life
[10] In determining the potential that removal to another
jurisdiction holds for enhancing the quality of life of the chil-
dren and the custodial parent, a court should evaluate the fol-
lowing factors: (1) the emotional, physical, and developmental
needs of the children; (2) the children’s opinion or preference
as to where to live; (3) the extent to which the relocating par-
ent’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 children and each parent; (7)
the strength of the children’s ties to the present community
and extended family there; (8) the likelihood that allowing or
denying the removal would antagonize hostilities between the
parties; and (9) the living conditions and employment opportu-
nities for the custodial parent. See Farnsworth v. Farnsworth,
257 Neb. 242, 597 N.W.2d 592 (1999).
(i) Emotional, Physical, and
Developmental Needs
We first consider the impact on the children’s emotional,
physical, and developmental needs in assessing the extent to
which the move could enhance their lives.
The district court found that the evidence did not show the
move would improve these areas of the children’s lives, but
that requiring the children to remain in Nebraska with Corey
would be detrimental to their emotional and developmental
needs because they are not as emotionally bonded to him
as they are to Angela. The court considered the children’s
testimony that they prefer to talk about personal issues with
Angela. The court also noted that Corey did not handle emo-
tionally charged situations very well; when he was told that
the children wanted to move, he initially refused to speak with
them and the next morning told them: “‘I guess I’m not part of
your life anymore.’”
Upon our de novo review, we find the evidence shows
Angela was the children’s primary caregiver from birth, and
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even when the children were not in Angela’s physical presence,
she made every effort to ensure their needs were tended to. She
was responsible for the children’s daily needs, including prepa-
ration of food, laundry, school supplies, taking them to appoint-
ments and activities, helping with homework, and helping them
through their personal issues. The evidence shows Corey is
capable of caring for the children, but that his interactions
with them were more limited to leisure activities. Although it
appears the emotional, physical, and developmental needs may
be met at a baseline level with either parent, the evidence indi-
cates Angela is able to meet these needs more effectively. This
factor weighs in favor of removal.
(ii) Children’s Opinion
or Preference
The children each stated that they preferred to move with
Angela. Their testimony focused on their emotional bond with
Angela and Moritz, their maternal grandmother, who testified
that she planned to move with them if Angela were given per-
mission to remove the children from Nebraska.
The record indicates that the children are old enough to
evaluate the benefits of living in Nebraska versus Virginia.
In their testimony, they articulated the reasons for their deci-
sion, including the level of care they receive in Angela’s home
and the bond that they share with her. They testified that they
would miss Corey and the fun things they do together, but they
stated their preference to live with Angela in Virginia. The par-
ties agree that this factor weighs in favor of removal.
(iii) Enhancement of Relocating Parent’s
Income or Employment
As previously discussed, the evidence shows Angela’s relo-
cation to Virginia includes a nominal increase in income, but
will offer greater opportunities for advancement and additional
income within her field. The evidence shows Angela’s exper-
tise in her position at the VA is best suited for advancement
within the VA system, and there are limited opportunities for
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advancement in the Lincoln office. This factor weighs slightly
in favor of removal.
(iv) Degree to Which Housing or
Living Conditions Would
Be Improved
At the time of trial, both parties were residing with their
mothers, as the marital home had been recently sold. The par-
ties also owned a smaller home which was being rented by
Angela’s mother, Moritz. Moritz testified that she did not plan
to stay in Syracuse after the parties divorced. Corey testified
that he would move into the smaller home until he could find
another home in Syracuse. The district court noted the evi-
dence indicated that the smaller home in Syracuse would not
be suitable as a long-term residence for Corey if the children
were to live with him full time.
Angela testified that she had secured a residence in a town-
house in Virginia. She testified that the townhouse is near
the school the children would attend and had square footage
similar to that of the marital home. The townhouse has three
bedrooms, 31⁄2 bathrooms, a yard, and a basement which would
allow Moritz to live with them. Angela testified that she had
not yet signed the lease, but she intended to sign it on the day
of trial.
In previous cases, where the evidence does not establish
any significant improvement in housing or living conditions,
we have determined that the factor does not weigh in favor of
or against removal. See Dragon v. Dragon, 21 Neb. Ct. App. 228,
838 N.W.2d 56 (2013), citing Colling v. Colling, 20 Neb. Ct. App.
98, 818 N.W.2d 637 (2012). The townhouse Angela planned
to lease is potentially more suitable than the smaller home
Corey would reside in. However, because Angela had not yet
committed to the lease and Corey stated his intention to find
a more suitable home in Syracuse, the housing conditions are
relatively fluid and this factor does not weigh in favor of or
against removal.
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(v) Existence of Educational Advantages
Another factor to consider is whether the school in Virginia
offers educational advantages. The evidence shows the school
the children would attend was held out as an “up-and-coming”
school in the state and was labeled by the “Virginia Middle
School Association” as a “school to watch.” The middle school
and high school the children would attend in Virginia were
ranked highly within the state and were recognized nation-
ally. The schools in Syracuse were recently renovated and
offered an excellent education. The children were doing well
in school, and neither had special needs. Angela testified that
she believed the schools in Syracuse and in Virginia were good
schools and that she did not believe one was better than the
other. It appears that schools in both locations are capable of
serving the children’s educational needs and that neither school
has an advantage over the other. We find this factor does not
weigh in favor of or against removal.
(vi) Quality of Relationship Between
Children and Each Parent
The district court stated the move to Virginia would signifi-
cantly reduce Corey’s parenting time and negatively impact
the children’s relationship with him, as their school and
extracurricular activities would be at a greater distance from
his home. The district court also noted that the children have
a stronger bond with Angela, as indicated by their desire to
reside with her. The district court did not make a specific
finding with regard to whether this factor weighed in favor
of removal.
At trial, the children testified that they share a good relation-
ship with both Corey and Angela. The children have certain
activities that they enjoy doing with each parent, and both par-
ents attend the majority of the children’s parent-teacher confer-
ences and extracurricular events.
A psychologist who did not work directly with either party
testified that time and distance impact children’s relationship
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with their parents. She opined that a distance over 75 miles
affects the relationship, because it is more difficult for them
and their parents to see each other on a regular basis. She
further testified that a weakened paternal relationship leads to
risk factors, including drugs and alcohol, premarital sex, early
pregnancy, and dropping out of school. Corey asserts that if the
children were to move, it would weaken their relationship with
him, and he implies that the children will be at a greater risk
for the negative outcomes the psychologist discussed. Thus,
he asserts, “it is in the children’s best interests to maintain the
bond with [Corey].” Brief for appellant at 28.
There is no question that it is in the children’s best interests
to maintain a bond with Corey, but that is not the question we
are asked to consider. Rather, we must determine the impact on
the quality of the relationship between the children and each
parent. The evidence shows the children have a good relation-
ship with both parents. The children enjoy golfing and hunting
with Corey and shopping, getting their nails done, and playing
games with Angela. Both parents have unique and beneficial
relationships with the children, and it appears that both parties
are willing to cooperate to ensure that those relationships are
maintained. However, the children testified that Angela listens
better to their problems, they believed their relationship with
her would suffer if they were not allowed to move, and both
stated their desire to reside with her. One child also testified
that she believed Angela would be more proactive than Corey
in ensuring that the children would have more frequent oppor-
tunities to see the noncustodial parent.
Angela testified that she would be willing to videotape the
children’s extracurricular activities so Corey would be able to
see them, would keep him informed regarding the children’s
academic performance, and would help them to have regular
telephone or “Skype” contact with Corey. She testified that
she would make sure that Corey was able to maintain his
relationship with the children if they were allowed to move
with her.
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We find that the children’s strong bond with Angela, coupled
with Angela’s willingness to help the children maintain a
strong bond with Corey, weighs in favor of allowing removal.
(vii) Strength of Children’s Ties to Present
Community and Extended Family
The district court considered the evidence that the chil-
dren appeared to have strong ties to the Syracuse community
through their school, extracurricular activities, and friends.
They testified that they enjoy their school and activities, but
believed that they would be able to participate in similar
activities in Virginia and that they would be able to make new
friends in their new school. The court noted that Corey did not
work in Syracuse, but, rather, worked in Ashland, Nebraska,
and that with the exception of the children’s grandmothers, nei-
ther party had extended family in Nebraska. One grandmother,
Moritz, testified that she intended to move from Syracuse after
the divorce was final, no matter what finding the court made
with regard to removal. Moritz said that if the children were to
move to Virginia, she would move there too, and that if they
did not, she would move to Colorado.
The evidence shows that the children do not have signifi-
cant extended family in either Syracuse or Virginia and that
no matter where they live, they would have one parent and
at least one grandparent nearby. However, the children have
lived in Syracuse for their entire lives, so their ties to their
community through school, church, and extracurricular activi-
ties are strong, and although they are willing to create those
types of community relationships in Virginia, they did not
exist in Virginia at the time of trial. This factor weighs slightly
against removal.
(viii) Likelihood That Allowing or Denying
Move Would Antagonize Hostilities
Between Parties
The court found that any relocation would likely antago-
nize hostilities between the parties. The court noted that the
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parties appeared to be communicating well and cooperating
with each other to meet the children’s needs. However, if the
children were to move, the court found, it was obvious that
Corey would be “emotionally harmed and that [the] strain may
antagonize the parties’ relationship.”
We find that either granting or denying removal has the
potential to antagonize hostilities between the parties, so we do
not find this factor weighs in favor of or against removal. See
Dragon v. Dragon, 21 Neb. Ct. App. 228, 838 N.W.2d 56 (2013).
(ix) Well-Being of Custodial Parent
The final “quality of life” factor listed in Farnsworth v.
Farnsworth, 257 Neb. 242, 250, 251, 597 N.W.2d 592, 598,
599 (1999), is consideration of the “living conditions and
employment opportunities for the custodial parent because the
best interests of the child are interwoven with the well-being
of the custodial parent.” A comparison of the physical resi-
dences is considered under a separate factor, as is the custodial
parent’s income or employment enhancements; therefore, we
view this factor to focus more on how the proposed new liv-
ing conditions and employment impact the well-being of the
custodial parent.
We have already established that the move to Virginia
allows Angela the opportunity for advancement of her career
and a “fresh start” at her place of employment. Additionally, at
the time of trial, Angela resided with Moritz because the fam-
ily home had been sold. In Virginia, Angela planned to move
into a townhouse with three bedrooms, a yard, and ample space
for the children and Moritz to live with her. Angela expressed
her desire to move for personal and professional reasons. We
find the move to Virginia has the potential to enhance Angela’s
well-being, and we find this factor weighs in favor of removal.
(x) Conclusion Regarding
Quality of Life
After considering all of the quality-of-life factors, we
conclude upon our de novo review that Angela established
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removal would enhance the quality of life for the children and
for herself.
(c) Impact on Noncustodial
Parent’s Visitation
Relocating to Virginia will undoubtedly have an effect on
the time Brooke and Hannah spend with Corey. Corey would
not have the opportunity to exercise weekly parenting time,
and it would undoubtedly affect his relationship with the chil-
dren. Angela recognized the impact this change would have,
and she stated that she believed Corey should have as much
parenting time with the children as reasonably possible. She
proposed a visitation schedule which would be used no matter
what the court determined with regard to removal. The pro-
posed plan allowed the noncustodial parent to take advantage
of long weekends and breaks in the children’s school schedule.
The plan set forth a proposal for the parents to share time on
the major holidays and allow the noncustodial parent to have
the children for an extended period during the summer breaks.
She testified that parenting time was a high priority and pro-
posed offsetting child support costs to pay for transportation.
Angela testified that she was willing to fly or drive with the
children for visitation with Corey and that she had researched
programs to allow the children to fly as unaccompanied minors
to and from Nebraska.
The district court considered the impact the move would
have on Corey’s relationship with the children and ultimately
concluded that Angela’s role as the day-to-day caregiver was
more important than Corey’s role as “the ‘fun’ parent.” The
court found that the extended parenting time during summer
and school breaks would allow the children to participate in the
activities they enjoy sharing with Corey.
[11] Nebraska courts have recognized that a noncustodial
parent’s visitation rights are important, but a reduction in
visitation time does not necessarily preclude a custodial par-
ent from relocating for a legitimate reason. See Hicks v. Hicks,
223 Neb. 189, 388 N.W.2d 510 (1986). Rather, we focus on
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the ability of the noncustodial parent to maintain a meaning-
ful parent-child relationship, and such relationship is possible
even if Brooke and Hannah move to Virginia. See Maranville
v. Dworak, 17 Neb. Ct. App. 245, 758 N.W.2d 70 (2008). This
factor weighs slightly against removal, because it will reduce
the amount of in-person weekly contact the children have with
Corey, but removal would still allow them to maintain a mean-
ingful relationship.
(d) Conclusion on Best Interests
A de novo review of the evidence shows that the parents
were not motivated by an effort on the part of either parent
to frustrate the relationship of their children with the other
and that the move would enhance the children’s quality of
life. Though the move has the potential to impact the relation-
ship between Corey and the children, we find they will still
be able to see one another frequently and continue sharing
in the activities they enjoy; thus, Corey and the children will
be able to maintain a meaningful relationship despite the dis-
tance. The record demonstrates sufficient evidence that it is in
Brooke’s and Hannah’s best interests to move from Nebraska
to Virginia.
VI. CONCLUSION
Upon our de novo review, we find the district court did not
err in finding that Angela had a legitimate reason to remove
the children from the State of Nebraska and that the move was
in the children’s best interests.
A ffirmed.