Steffy v. Steffy , 20 Neb. Ct. App. 757 ( 2013 )

Decisions of the Nebraska Court of Appeals
STEFFY v. STEFFY 757
Cite as 20 Neb. Ct. App. 757
Brian David Steffy, appellant, v.
Randi Jo Steffy, now known as
Randi Jo Stenson, appellee.
___ N.W.2d ___
Filed May 14, 2013. No. A-12-082.
1. Appeal and Error. An appellate court may, at its option, notice plain error.
2. Child Custody: Visitation: Appeal and Error. Child custody determinations,
and visitation determinations, are matters initially entrusted to the discretion of
the trial court, and although reviewed de novo on the record, the trial court’s
determination will normally be affirmed absent an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion requires that the rea-
sons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant
of a substantial right and a just result.
4. Rules of the Supreme Court: Appeal and Error. Parties who wish to secure
appellate review of their claims for relief must be aware of, and abide by, the
rules of the Nebraska Supreme Court and the Nebraska Court of Appeals in pre-
senting such claims.
5. ____: ____. Any party who fails to properly identify and present its claim in
accordance with the Supreme Court rules does so at its peril and risks the appel-
late court’s declining to address the claim.
6. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
7. Rules of the Supreme Court: Appeal and Error. Assignments of error consist-
ing of headings or subparts of argument do not comply with the mandate of Neb.
Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2008).
8. ____: ____. In situations where assignments of error do not comply with the
mandate of Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2008), the court may con-
sider the case as one in which no brief was filed, or, alternatively, the court may
examine the proceedings for plain error.
9. Appeal and Error. Plain error is error plainly evident from the record and of
such a nature that to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.
10. Child Custody. In order to prevail on a motion to remove a minor child to
another jurisdiction, the custodial parent must first satisfy the court that he or
she has a legitimate reason for leaving the state. After clearing that threshold, the
custodial parent must next demonstrate that it is in the child’s best interests to
continue living with him or her.
11. ____. The threshold question in removal cases is whether the parent wishing to
remove the child from the state has a legitimate reason for leaving.
12. ____. Legitimate employment opportunities for a custodial parent may constitute
a legitimate reason for leaving the state.
13. ____. Legitimate employment opportunities for a custodial parent may constitute
a legitimate reason for leaving the state when there is a reasonable expectation of
improvement in the career or occupation of the custodial parent.
Decisions of the Nebraska Court of Appeals
758 20 NEBRASKA APPELLATE REPORTS
14. ____. After clearing the threshold of showing a legitimate reason for leaving
the state, the custodial parent must next demonstrate that it is in the child’s best
interests to continue living with him or her.
15. ____. In considering a motion to remove a minor child to another jurisdiction,
whether the proposed move is in the best interests of the child is the para-
mount consideration.
16. Child Custody: Visitation. In determining whether removal to another jurisdic-
tion is in a child’s best interests, the court considers (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 child and the custodial parent; and (3) the impact such
move will have on contact between the child and the noncustodial parent, when
viewed in the light of reasonable visitation.
17. Child Custody. The ultimate question in evaluating the parties’ motives in seek-
ing removal of a child to another jurisdiction is whether either party has elected
or resisted a removal in an effort to frustrate or manipulate the other party.
18. ____. The second factor that must be considered regarding a motion to remove
a child to another jurisdiction is the potential that the move holds for enhancing
the quality of life for the child and the custodial parent. This factor requires an
analysis of other considerations which bear upon the potential enhancement of
the child’s quality of life.
19. ____. In determining the potential that the removal to another jurisdiction holds
for enhancing the quality of life of the child and the custodial parent, a court
evaluates the following considerations: the emotional, physical, and developmen-
tal needs of the child; the child’s opinion or preference as to where to live; the
extent to which the relocating parent’s income or employment will be enhanced;
the degree to which housing or living conditions would be improved; the exis-
tence of educational advantages; the quality of the relationship between the child
and each parent; the strength of the child’s ties to the present community and
extended family there; and the likelihood that allowing or denying the removal
would antagonize hostilities between the two parties. This list should not be
misconstrued as setting out a hierarchy of considerations, and depending on the
circumstances of a particular case, any one consideration or combination of con-
siderations may be variously weighted.
20. Courts: Appeal and Error. An appellate court will not consider an issue that
was not passed upon by the trial court.
21. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is not appropriate for consideration on appeal.
Appeal from the District Court for Cass County: Randall L.
R ehmeier, Judge. Affirmed in part, and in part reversed.
Karen S. Nelson and Liam K. Meehan, of Schirber &
Wagner, L.L.P., for appellant.
Steven M. Delaney and Darin L. Whitmer, of Reagan,
Melton & Delaney, L.L.P., for appellee.
Decisions of the Nebraska Court of Appeals
STEFFY v. STEFFY 759
Cite as 20 Neb. Ct. App. 757
Irwin, Pirtle, and Riedmann, Judges.
Pirtle, Judge.
I. INTRODUCTION
Brian David Steffy appeals a decision reached by the district
court for Cass County following Brian’s attempt to modify
the parties’ previous divorce decree. In Brian’s complaint, he
alleged that a material change of circumstances had occurred
and sought an increase in child support, and he also sought the
court’s permission to move with the parties’ minor child from
Nebraska to Texas. The district court found a material change
of circumstances had occurred due to a change in the income
of Randi Jo Steffy, now known as Randi Jo Stenson, and the
court increased the child support order accordingly. In addition,
the court concluded that Brian had failed to prove a legitimate
reason for leaving the state, and it thus denied his request for
permission to move to Texas. For the reasons that follow, we
affirm in part and in part reverse.
II. BACKGROUND
Brian and Randi moved to Plattsmouth, Nebraska, with their
son, Jakob Steffy, in 2003. Jakob, born in August 2001, had
been diagnosed with autism spectrum disorder. From 2003
to 2007, Randi was stationed near Omaha, Nebraska, in her
capacity as a lieutenant colonel in the U.S. Army. In July 2007,
the Army transferred Randi to Fort Leavenworth, Kansas.
On April 15, 2008, a decree of dissolution of marriage had
been entered in this matter. At the time of the divorce, Brian
and Jakob resided in Plattsmouth and Randi resided in Fort
Leavenworth. The parties agreed to joint legal custody with
Brian being the primary custodial parent. Randi had parenting
time with Jakob every other weekend and for extended periods
of time over the summer.
In August 2010, Randi was promoted to colonel and was
transferred to Fort Knox, Kentucky. After being restationed,
Randi continued to exercise parenting time with Jakob once
a month and for extended periods over the summer. The par-
ties exchanged Jakob in Rock Port, Missouri, and Randi took
Jakob to her sister’s home in Platte City, Missouri, during her
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760 20 NEBRASKA APPELLATE REPORTS
parenting time. Randi made sure that Jakob was involved in
educational activities and “applied behavioral analysis” (ABA)
therapy during the summer visitation periods.
In December 2010, Brian filed a complaint for modification
seeking permanent removal of Jakob from Nebraska and seek-
ing sole legal and physical custody subject to Randi’s parenting
time. Brian also alleged a material change of circumstances
because Randi earned a promotion and a change of income,
which necessitated a change in the child support order.
Brian met his current wife, Sheri Steffy, during December
2010, and they married in April 2011. Brian and Sheri reside
in Plattsmouth with Jakob and Sheri’s children from a previ-
ous marriage. Brian graduated with a degree in elementary
education in May 2011. At the time of trial, he was a substitute
teacher in Bellevue, Nebraska, where he was paid between
$125 and $140 per day. Brian also received $1,800 per month
from a military pension and, at the time of trial, received
approximately $1,146 per month in child support from Randi.
Sheri was under an employment contract with the Bellevue
school system, where she earned approximately $54,000 per
year as a teacher.
At trial, Brian testified that a teacher with his experience in
the greater Omaha area would earn an annual salary between
$30,000 and $31,000. Brian obtained salary information for
a number of school districts near Dallas-Fort Worth, Texas.
A teacher with the same credentials in the Dallas-Fort Worth
metropolitan area could earn a salary ranging from $47,000 to
$50,000. Brian stated that he would like to move to a school
district offering higher pay and was attracted to Texas because
it does not have a state income tax.
Brian testified he would also like to live in Texas because
it would be closer to some of his extended family, includ-
ing his mother, his brothers, his sister-in-law, a nephew, and
some stepsiblings, all of whom live within the state. Brian
said he considered how the move would affect Randi, and
he determined the trip from Dallas-Fort Worth to Louisville,
Kentucky, is equal to the distance from Louisville to Omaha.
Brian stated he would be willing to accommodate monthly vis-
itation by meeting Randi halfway between Dallas-Fort Worth
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STEFFY v. STEFFY 761
Cite as 20 Neb. Ct. App. 757
and Louisville, or Dallas-Fort Worth and either Kansas City,
Missouri, or Kansas City, Kansas. This distance is approx-
imately the same as their arrangement to meet between
Louisville and Plattsmouth.
Keery Wolf, of Wolf Behavioral Consulting, testified that
Jakob has restricted interests, stereotypic or repetitive behav-
iors (such as putting things in a specific place or hitting his
leg over and over), lack of verbal communication, and social
skills deficits. Wolf is one of Jakob’s therapists and is a certi-
fied behavior analyst in ABA. ABA is the science of behavior
change; either increasing appropriate behaviors, decreasing
inappropriate behaviors, or both.
Wolf said that ABA therapists are at Jakob’s school to
work one-on-one with Jakob and that paraprofessionals from
the school also learned what the ABA therapists do so the
techniques could be used with Jakob during the rest of the
day. Wolf spent at least 1 hour per week or 2 hours every
other week with Jakob to verify that he was progressing, and
she said that between October 2010 and the end of the 2011
school year, Jakob “progressed wonderfully.” Wolf stressed
that Jakob will need to continue ABA services because he
has autistic characteristics and because he responded well to
ABA therapy.
Brian testified that Jakob’s ABA services are at risk. Brian
offered evidence that Wolf’s business is one of very few pro-
viding ABA services in Nebraska, but indicated that there are
opportunities for the same type of therapy in Texas. Brian
stated concern that Jakob’s treatment would become unavail-
able in Nebraska if Wolf’s business did not continue providing
the same services. Wolf testified that although she could not
provide the names of any ABA services in Dallas-Fort Worth,
she knew there were a “good number” available, noting there
were more providers in Texas than in Nebraska.
Brian also testified that his primary concern was making
sure the ABA services, speech therapy, and occupational serv­
ices for Jakob in Texas would be as good as or better than the
services provided in Nebraska. He stated he believed moving
would be in Jakob’s best interests because of the plethora of
ABA-related businesses in Texas. He personally visited one
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762 20 NEBRASKA APPELLATE REPORTS
business and took Jakob there to visit and be observed. He also
stated that Texas would be more favorable because insurance
mandates require coverage of Jakob’s treatment in the state and
that the same type of mandates are not in place in Nebraska.
He also testified that he believed he would be able to earn
more money to support Jakob’s care.
The district court sent a letter to the parties on October
19, 2011, following the modification proceedings on August
25. The court increased the child support owed from Randi
to Brian from $1,046 to $1,365.71 per month. The court also
found Brian did not meet the tests for showing a legitimate rea-
son to leave the state, and it denied Brian’s request to remove
Jakob from the state. The court’s order was filed in the district
court for Cass County on January 26, 2012. Brian appealed the
order of the district court on February 1.
III. ASSIGNMENTS OF ERROR
[1] Brian does not specifically assign errors in accordance
with Nebraska’s rules of appellate procedure. However, an
appellate court may, at its option, notice plain error. United
States Cold Storage v. City of La Vista, 285 Neb. 579, ___
N.W.2d ___ (2013). We elect to do so in this case.
IV. STANDARD OF REVIEW
[2,3] Child custody determinations, and visitation deter-
minations, 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. Wild v. Wild, 15 Neb. Ct. App.
717, 737 N.W.2d 882 (2007). A judicial abuse of discretion
requires that the reasons or rulings of a trial judge be clearly
untenable, unfairly depriving a litigant of a substantial right
and a just result. Robb v. Robb, 268 Neb. 694, 687 N.W.2d
195 (2004).
V. ANALYSIS
[4,5] The Supreme Court has cautioned that parties who
wish to secure appellate review of their claims for relief must
be aware of, and abide by, the rules of the Nebraska Supreme
Court and the Nebraska Court of Appeals in presenting such
Decisions of the Nebraska Court of Appeals
STEFFY v. STEFFY 763
Cite as 20 Neb. Ct. App. 757
claims. In re Guardianship & Conservatorship of Larson, 270
Neb. 837, 708 N.W.2d 262 (2006). Any party who fails to
properly identify and present its claim in accordance with the
Supreme Court rules does so at its peril and risks the appellate
court’s declining to address the claim. See id.
We note at the outset that Brian’s brief does not comply with
Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2008), which sets forth
with specificity the nine sections required in an appellant’s
brief and the order in which they must appear. In relevant part,
§ 2-109(D)(1)(e) required:
[a] separate, concise statement of each error a party
contends was made by the trial court, together with
the issues pertaining to the assignments of error. Each
assignment of error shall be separately numbered and
paragraphed, bearing in mind that consideration of the
case will be limited to errors assigned and discussed.
The court may, at its option, notice a plain error not
assigned.
In this case, Brian does not set forth a separate section con-
taining his assignments of error between the statement of the
case and the propositions of law. Rather, a secondary table of
contents refers to the page numbers on which his assignments
of error are argued.
[6,7] The Nebraska Supreme Court has addressed briefing
inconsistencies similar to the circumstances of this case and
stated that it has long been the policy that to be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error. City of Gordon v. Montana Feeders, Corp.,
273 Neb. 402, 730 N.W.2d 387 (2007). Recently, the Supreme
Court considered a case in which the appellant’s brief did not
contain a separate “assignments of error” section stating the
assigned errors apart from the arguments in the brief. The
court held that “[a]ssignments of error consisting of headings
or subparts of argument do not comply with the mandate of
§ 2-109(D)(1)(e).” In re Interest of Jamyia M., 281 Neb. 964,
977, 800 N.W.2d 259, 269 (2011).
[8,9] In such situations, the court may consider the case as
one in which no brief was filed, or, alternatively, the court may
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764 20 NEBRASKA APPELLATE REPORTS
examine the proceedings for plain error. Id. “Plain error” is
error plainly evident from the record and of such a nature that
to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. Id.
We review the record for plain error, and, upon review, we
find plain error is present for the reasons set forth below.
1. Application of Threshold Test R equiring
Legitimate R eason to R emove
Child From Nebraska
[10] In Nebraska, the standards set forth in Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), and
Wild v. Wild, 13 Neb. Ct. App. 495, 696 N.W.2d 886 (2005),
are commonly used to test whether a parent has met the
burden to remove a minor child from the state. In Wild, this
court stated:
The relevant test to be applied in cases where a
custodial parent seeks court permission to remove a
minor child from the state has been set forth by the
Nebraska Supreme Court on numerous occasions. See,
Tremain v. Tremain[, 264 Neb. 328, 646 N.W.2d 661
(2002)]; McLaughlin v. McLaughlin[, 264 Neb. 232, 647
N.W.2d 577 (2002)]; Vogel v. Vogel[, 262 Neb. 1030,
637 N.W.2d 611 (2002)]; Brown v. Brown[, 260 Neb.
954, 621 N.W.2d 70 (2000)]; Jack v. Clinton[, 259 Neb.
198, 609 N.W.2d 328 (2000)]; . . . Farnsworth, supra.
In order to prevail on a motion to remove a minor child
to another jurisdiction, the custodial parent must first
satisfy the court that he or she has a legitimate reason
for leaving the state. After clearing that threshold, the
custodial parent must next demonstrate that it is in the
child’s best interests to continue living with him or her.
Id. Under Nebraska law, the burden has been placed
on the custodial parent to satisfy this test. See . . .
Brown, supra.
13 Neb. App. at 503, 696 N.W.2d at 895.
Brian argues the district court abused its discretion in apply-
ing the tests to this case because the noncustodial parent, Randi,
no longer lives in Nebraska and she should not be allowed to
Decisions of the Nebraska Court of Appeals
STEFFY v. STEFFY 765
Cite as 20 Neb. Ct. App. 757
tether him to the state. He argues that Randi has not resided in
Nebraska since the inception of the divorce action and that she
does not exercise her visitation within the state. He argues that
she no longer has sufficient contacts within the state and that
she should not be given the same remedies as parents within
the state, because her “career choices have isolated her from”
the state. Brief for appellant at 17.
This court has consistently applied the above test to situa­
tions where parents request removal of a child, whether or
not the noncustodial parent lives in Nebraska. See Colling v.
Colling, ante p. 98, 818 N.W.2d 637 (2012), where both par-
ties resided in Nebraska. See, also, Maranville v. Dworak, 17
Neb. Ct. App. 245, 758 N.W.2d 70 (2008) (custodial parent, who
relocated after being granted permission to remove children,
sought subsequent move to yet another state); Tirado v. Tirado,
No. A-11-517, 2012 WL 882509 (Neb. App. Mar. 13, 2012)
(selected for posting to court Web site) (noncustodial parent
lived outside of Nebraska and sought to prevent custodial par-
ent in Nebraska from moving to another state).
The lower court recognized that the facts of this case pre-
sented a somewhat unusual issue due to Randi’s living outside
of Nebraska, but the court ultimately determined it should
not “deviate from the Nebraska jurisprudence as set forth in”
Farnsworth, supra, “and the cases following Farnsworth.”
We recognize that in Farnsworth, the court’s primary concern
was to avoid disturbing the relationship between the child and
the noncustodial parent, who has a consistent physical pres-
ence in the child’s life. When the noncustodial parent is geo-
graphically removed from the child, however, it is uncertain
whether the custodial parent must prove a legitimate reason
for leaving the state as Farnsworth requires. Nonetheless, in
the present case, Brian established a legitimate reason for his
proposed move.
2. Legitimate R eason for R emoval
From Nebraska
[11] The threshold question in removal cases is whether the
parent wishing to remove the child from the state has a legiti-
mate reason for leaving. See Farnsworth v. Farnsworth, 257
Decisions of the Nebraska Court of Appeals
766 20 NEBRASKA APPELLATE REPORTS
Neb. 242, 597 N.W.2d 592 (1999). In this appeal, Brian argues
that this standard does not apply to his situation. We determine
that even if this standard applies, the trial court erred in finding
that Brian had not met his burden of proving he had a legiti-
mate reason for leaving the state.
[12,13] Legitimate employment opportunities for a custo-
dial parent may constitute a legitimate reason for leaving the
state. Wild v. Wild, 15 Neb. Ct. App. 717, 737 N.W.2d 882 (2007).
Such legitimate employment opportunities may constitute a
legitimate reason when there is a reasonable expectation of
improvement in the career or occupation of the custodial par-
ent. Id.
Brian provided evidence of his current income as a substi-
tute teacher in Bellevue and evidence that a full-time teacher
with his experience in the greater Omaha area would receive an
annual salary between $30,000 and $31,000. He also testified
he has had difficulty finding full-time employment in school
districts in Nebraska.
Brian obtained salary information for a number of school
districts near Dallas-Fort Worth. He provided evidence that
a teacher with the same credentials in the Dallas-Fort Worth
metropolitan area could earn a salary ranging from $47,000
to $50,000. Brian’s employment-related reasons for moving to
Texas included finding full-time employment in a school dis-
trict offering higher pay and the lack of a state income tax in
Texas. Brian testified that although there were many teaching
positions available in Texas, he did not apply for any positions,
because he had not yet received permission to leave Nebraska
and thus would not have been able to accept a contract if one
were offered. He also stated he waited to apply because he did
not want to pay the certification costs for Texas until he was
given permission to move. Sheri also researched teaching cer-
tification and jobs available in Texas, but decided not to apply
until she and Brian were granted permission to move. She said,
“[I]t would be premature to apply for something if we don’t
have permission to leave.”
Brian wishes to pursue employment in Texas, where he
could possibly earn nearly $20,000 more per year than with
a full-time salary for a comparable job in Nebraska. The
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Cite as 20 Neb. Ct. App. 757
Farnsworth court stated that “job-related changes are legiti-
mate reasons for moving where there is a ‘reasonable expecta-
tion of improvement in the career or occupation of the custo-
dial parent,’” and that “where the custodial parent’s new job
included a small increase in salary and increased potential for
salary advancement.” 257 Neb. at 252, 597 N.W.2d at 600.
The information Brian provided shows he has considered his
choices carefully, and he set forth a reasoned discussion of
why he should be allowed to move to Texas to pursue greater
employment opportunities.
In previous Nebraska cases, courts have granted permission
to remove a child in situations where parents showed they were
actively pursuing employment; that they have applied for jobs,
have interviews scheduled, or have received offers of employ-
ment. See Farnsworth v. Farnsworth, 257 Neb. 242, 597
N.W.2d 592 (1999). See, also, Jafari v. Jafari, 204 Neb. 622,
284 N.W.2d 554 (1979). However, this case offers a unique
set of facts and is distinguishable from other Nebraska cases
in that the custodial parent, Brian, is tethered to Nebraska,
while the noncustodial parent, Randi, is not. Currently, Brian is
required to remain a resident of Nebraska, even though Randi
does not live, work, or exercise her parenting time within
the state.
Jakob’s education and treatment for autism spectrum dis-
order are further reasons Brian sought permission to move
to Texas. Brian testified his primary concern when consider-
ing relocation was the continuation of ABA services, speech
therapy, and occupational services for Jakob. Brian noted there
are a plethora of service providers in Texas while, in contrast,
Nebraska has very few.
Wolf testified that though there are other ABA service pro-
viders in eastern Nebraska, she is the only ABA-board-certified
behavior analyst that provides services in schools and homes.
Wolf stated that her company, Wolf Behavioral Consulting, is
currently Jakob’s service provider and that he receives approxi-
mately 12 to 15 hours of ABA services in school per week. She
said it is important for children with autism spectrum disorder
to have the same quality of services throughout the year. She
also testified that Jakob qualifies for extended school year
Decisions of the Nebraska Court of Appeals
768 20 NEBRASKA APPELLATE REPORTS
services, which are provided during the summer with the goal
of helping children maintain the progress made throughout
the year.
Wolf testified that her company is going to start “going in
a different direction” and that unless another board-certified
behavior analyst is found to pick up her services, there could
be a gap in services for Jakob. Wolf said that there are more
board-certified providers in Texas than in Nebraska and that
she was personally familiar with one provider in Texas. Brian
also testified that he was familiar with one provider in Texas.
Brian said Jakob had already visited and been observed by that
provider. Brian noted there is an insurance mandate in Texas
which would ensure that Jakob would receive the treatment
necessary for his diagnosis. Also, a larger pool of service pro-
viders would make it more likely that Jakob would receive the
continuity of services he requires. Brian stated his belief that
Texas would be a better place for Jakob academically, behav-
iorally, and therapeutically.
We find that Brian has provided enough information, under
these specific circumstances, to show that the pursuit of full-
time employment in Texas and the increased educational and
therapeutic opportunities for Jakob are legitimate reasons to
remove Jakob from Nebraska.
A judicial abuse of discretion requires that the reasons or
rulings of a trial judge be clearly untenable, unfairly depriving
a litigant of a substantial right and a just result. Robb v. Robb,
268 Neb. 694, 687 N.W.2d 195 (2004).
While operating under the assumption that Farnsworth
applies, the trial court found that Brian failed to meet his
burden of showing a legitimate reason for removal. Without
determining whether Farnsworth applies in this case, we find
that the trial court abused its discretion, as Brian showed that
the employment opportunities for him and for his current wife,
Sheri, as well as the educational advantages for Jakob in Texas,
are legitimate reasons for leaving Nebraska.
3. Best Interests of Minor Child
[14,15] After clearing the threshold of showing a legitimate
reason for leaving the state, the custodial parent must next
Decisions of the Nebraska Court of Appeals
STEFFY v. STEFFY 769
Cite as 20 Neb. Ct. App. 757
demonstrate that it is in the child’s best interests to continue
living with him or her. Farnsworth v. Farnsworth, 257 Neb.
242, 597 N.W.2d 592 (1999). Whether the proposed move is in
the best interests of the child is the paramount consideration.
Id. See, also, Evenson v. Evenson, 248 Neb. 719, 538 N.W.2d
746 (1995).
[16] In determining whether removal to another jurisdic-
tion is in the child’s best interests, the court considers (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 child and the custodial parent; and (3) the impact such
move will have on contact between the child and the noncusto-
dial parent, when viewed in the light of reasonable visitation.
Farnsworth, supra.
(a) Each Parent’s Motives
[17] The first factor that must be considered is each par-
ent’s motives for seeking or opposing the removal of the
minor child from the jurisdiction. 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 a removal in an effort to frustrate or manipulate
the other party. Wild v. Wild, 15 Neb. Ct. App. 717, 737 N.W.2d
882 (2007).
The evidence shows that Brian sought removal for a variety
of reasons, including greater access to ABA services for Jakob,
the potential for a better job, and to be closer to his extended
family. We do not find any evidence that Brian sought removal
in an effort to manipulate Randi or interfere with the estab-
lished parenting time schedule.
We find that Randi opposed removal because it could
potentially affect her parenting time. However, there is no
evidence she would not be able to maintain the same schedule
of monthly visits and extended time with Jakob during the
summer. Randi also expressed concern that the move would
make it difficult to continue exercising her parenting time at
her sister’s home and could require hotel rental. However,
Brian has demonstrated his willingness to continue a similar
transportation arrangement for Randi’s parenting time, and
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770 20 NEBRASKA APPELLATE REPORTS
he has chosen a location that would require roughly the same
travel distance and time, so Randi could continue her time
with Jakob in her sister’s home. This factor does not weigh
against removal.
(b) Quality of Life
[18] The second factor that must be considered is the poten-
tial that the move holds for enhancing the quality of life for the
child and the custodial parent. This factor requires an analysis
of other considerations which bear upon the potential enhance-
ment of the child’s quality of life. Wild, supra.
[19] In determining the potential that the removal to another
jurisdiction holds for enhancing the quality of life of the child
and the custodial parent, a court evaluates the following con-
siderations: the emotional, physical, and developmental needs
of the child; the child’s opinion or preference as to where to
live; the extent to which the relocating parent’s income or
employment will be enhanced; the degree to which housing or
living conditions would be improved; the existence of educa-
tional advantages; the quality of the relationship between the
child and each parent; the strength of the child’s ties to the
present community and extended family there; and the likeli-
hood that allowing or denying the removal would antagonize
hostilities between the two parties. See id. This list should not
be misconstrued as setting out a hierarchy of considerations,
and depending on the circumstances of a particular case, any
one consideration or combination of considerations may be
variously weighted. Id.
(c) Emotional, Physical, and
Developmental Needs
Jakob is a child with special needs, and currently those
needs are being met in Plattsmouth. He receives occupational
therapy, speech therapy, and ABA services at his school. Jakob
has been in the same school system since he began school, and
he is surrounded by familiar faculty, staff, and students. The
evidence shows this stability is beneficial for Jakob, and we do
not diminish its importance in his education.
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However, there is evidence that the same services may not
be available in the future. Wolf, a provider of Jakob’s ABA
services, testified that her business is changing, and there is
the potential that she will stop providing such services or that
another service provider will take the place of her business.
There is also evidence that similar businesses are more preva-
lent in Texas, and Jakob has had contact with at least one such
business in the past. Whether Jakob moves to Texas or remains
in Nebraska, there is a potential for change in the ABA services
he receives. The likelihood of a change in Wolf’s business,
resulting in a loss of ABA services for Jakob, weighs in favor
of removal.
(d) Jakob’s Opinion or Preference
Jakob did not testify at trial, and there is no evidence
to reflect his preference. This factor does not weigh for or
against removal.
(e) Enhancement of Income
or Employment
As addressed more fully above, Brian requested to move
to Texas to pursue full-time employment as a teacher. He cur-
rently is a substitute teacher and has had difficulty obtaining
full-time employment in Nebraska. If he were to obtain a full-
time job in Texas, he could potentially earn more, as the base
salary for teachers in Texas is higher than that in Omaha. He
would also be able to retain more of his income, as there is no
state income tax in Texas.
He also testified that in Texas, there is an insurance mandate
requiring insurance companies to cover treatment for services
to people with special needs. This mandate would include
coverage for Jakob’s ABA services and could potentially take
some of the financial burden off of Brian. This same mandate
is not in effect in Nebraska, and if Brian’s insurance decided
to stop paying for Jakob’s services, Brian would be respon-
sible for paying for the services. This factor weighs in favor
of removal, as the move could enhance Brian’s income and
employment, as well as ensure insurance coverage so Jakob
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772 20 NEBRASKA APPELLATE REPORTS
would continue to receive the treatment he needs without an
additional financial burden on Brian.
(f) Housing or Living Conditions
The evidence does not reflect housing or living conditions
either in Nebraska or in Texas, so these factors do not weigh
for or against removal.
(g) Quality of Relationship Between
Child and Parents
The record in the present case indicates that Jakob has a
good relationship with both parties, and there is no evidence
that removal will adversely affect those relationships. Jakob
would continue to live with Brian, and Randi would continue
to have parenting time according to the established schedule.
This factor weighs in favor of removal.
(h) Ties to Community and
Extended Family
The evidence shows that Jakob has lived in the same com-
munity since the age of two and that he is familiar with its
people and surroundings. The trial court accurately stated,
“Jakob’s ties to the present community . . . are clear.” However,
he has no extended family in that community or anywhere in
Nebraska. Randi’s parents live in South Dakota, and Randi’s
sister, as previously stated, lives in Missouri. Jakob has a rela-
tionship with these family members, but he would still be able
to see them and spend time with them during Randi’s parenting
time if she continued to exercise it in Missouri.
A move to Texas would provide Jakob with greater access
to Brian’s extended family. Brian testified that several of his
family members live in Texas. This includes Brian’s older
brother and his wife in Grand Prairie, Brian’s nephew in
Farmer’s Branch, Brian’s sister in Richardson, Brian’s younger
brother in Rio Grande Valley, and Brian’s mother and several
stepsiblings in other parts of the state. Additionally, Sheri has
extended family in Oklahoma.
There are benefits both to living in Nebraska and to living in
Texas with regard to this factor, but, overall, the benefits weigh
in favor of removal.
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Cite as 20 Neb. Ct. App. 757
(i) Hostilities Between Parties
Another element to consider when determining whether
removal will enhance the quality of life for a child is the likeli-
hood that allowing or denying the removal would antagonize
hostilities between the two parties. Wild v. Wild, 13 Neb. Ct. App.
495, 696 N.W.2d 886 (2005).
The trial court’s letter indicates a finding that though Brian
and Randi have worked together in the past, this removal will
create hostilities between the parties.
However, a review of the record indicates removal would
not necessarily antagonize hostilities between the parties. Brian
testified at trial that he and Randi have a history of working
together for Jakob’s benefit. The record indicates Brian and
Randi have adjusted Randi’s parenting time to accommodate
her schedule, and Brian and Randi routinely met between
Plattsmouth and Platte City to minimize the amount of parent-
ing time Randi spent driving. There is no evidence that this
arrangement could not continue, as Brian has demonstrated his
willingness to meet her halfway from Texas.
We find this factor does not weigh in favor of or against
removal.
(j) Conclusion on Quality of Life
Our de novo review of the record leads us to a conclu-
sion that the quality of life considerations weigh in favor of
allowing Brian to permanently remove Jakob from Nebraska.
In the present case, the various considerations either weighed
in favor of removal or were roughly equal. Overall, the evi-
dence in the record demonstrates that the proposed removal
from Nebraska will enhance Jakob’s quality of life without
jeopardizing his treatment, his education, or the time spent
with Randi.
(k) Impact on Relationship With
Noncustodial Parent
Currently, Randi exercises her parenting time with Jakob on
weekends and for extended periods over the summer months.
Randi testified that the nature of her position with the Army
makes it difficult for her to take time off and that she has
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774 20 NEBRASKA APPELLATE REPORTS
to request a “pass” or be on ordinary vacation leave anytime
she needs to leave Louisville to see Jakob. Typically, she
travels from Louisville to Missouri and meets Brian halfway
between her sister’s home and Brian’s home. Then Randi and
Jakob return to her sister’s home for the remaining period of
her parenting time. Brian testified that the distances between
Louisville and Plattsmouth and between Louisville and Irving,
Texas, are roughly the same and that he would be willing
to continue with the same type of arrangement for meeting
and transferring Jakob to Randi’s care for parenting time.
Regardless of whether Jakob lives in Nebraska or Texas, Randi
will still have to travel for parenting time, and she will still be
able to exercise her parenting time in Missouri. Additionally,
removal will not affect Randi’s ability to exercise parenting
time with Jakob during the summer in Louisville.
Randi and Brian do not live or work in the same commu-
nity, so Brian’s move with Jakob to a place that is roughly
equidistant from Randi’s home will not jeopardize Randi’s
time with Jakob. Under the circumstances, there is no evidence
the move from Plattsmouth to Texas will greatly affect the
relationship between Randi and Jakob, and this factor weighs
in favor of removal.
(l) Conclusion on Best Interests
A de novo review of the evidence shows that the parents
were not motivated by an effort to frustrate or manipulate each
other, that the move would enhance Jakob’s quality of life,
and that the move would not greatly impact the relationship
between Randi and Jakob. The record demonstrates sufficient
evidence that it is in Jakob’s best interests to allow Jakob to be
removed from Nebraska to Texas.
(m) Conclusion on Removal
We conclude that Brian has adduced sufficient evidence to
show a legitimate reason to leave Nebraska and that the move
would be in Jakob’s best interests. We find it was an abuse
of discretion for the trial court to require Brian to remain in
Nebraska with Jakob, because under the unique circumstances
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of this case, the trial court’s decision deprives Brian of a
just result.
(n) Unconstitutional Burden
on Travel
[20,21] Brian argues that the federal Constitution provides a
fundamental right to interstate travel, which should permit him
to relocate from Nebraska to Texas. An appellate court will not
consider an issue that was not passed upon by the trial court.
See Capital City Telephone v. Nebraska Dept. of Rev., 264 Neb.
515, 650 N.W.2d 467 (2002). Further, the Nebraska Supreme
Court has held that a constitutional issue not presented to or
passed upon by the trial court is not appropriate for consider-
ation on appeal. Id. See In re Adoption of Luke, 263 Neb. 365,
640 N.W.2d 374 (2002). This issue was not presented or passed
upon during trial before the lower court and, thus, cannot be
raised for the first time on appeal. Therefore, we decline to
consider this issue.
VI. CONCLUSION
Assuming without deciding whether a custodial parent must
meet the requirements of Farnsworth v. Farnsworth, 257 Neb.
242, 597 N.W.2d 592 (1999), when the noncustodial parent
resides outside of the state, the evidence supports the conclu-
sion that Brian proved both a legitimate reason for removal and
that removal from Nebraska to Texas is in Jakob’s best inter-
ests. We find plain error and reverse the decision of the district
court, which denied Brian’s request for removal.
The portions of the district court’s order unrelated to removal
are affirmed.
Affirmed in part, and in part reversed.