State on behalf of Ryley G. v. Ryan G. , 306 Neb. 63 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/19/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
State of Nebraska on behalf of Ryley G., a minor
child, appellee, v. Ryan G., defendant and
third-party plaintiff, appellant,
and Rashell K., third-party
defendant, appellee.
___ N.W.2d ___
Filed June 5, 2020. No. S-19-892.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. In a de novo review, when the evidence
is in conflict, the appellate court considers, and may give weight to, the
fact that the trial court heard and observed the witnesses and accepted
one version of the facts rather than another.
4. 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.
5. Child Custody: Visitation. The purpose of requiring a legitimate rea-
son for leaving the state in a motion to remove a minor child to another
jurisdiction is to prevent the custodial parent from relocating the child
because of an ulterior motive, such as frustrating the noncustodial par-
ent’s visitation rights.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
6. Child Custody. In considering a motion to remove a minor child to
another jurisdiction, the paramount consideration is whether the pro-
posed move is in the best interests of the child.
7. Child Custody: Visitation. In determining whether removal to another
jurisdiction is in the child’s best interests, the trial court considers (1)
each parent’s motives for seeking or opposing the move; (2) the poten-
tial that the move holds for enhancing the quality of life for the child
and the custodial parent; and (3) the impact such a move will have on
contact between the child and the noncustodial parent, when viewed in
the light of reasonable visitation.
8. Parental Rights: Child Custody. The custodial parent has the right to
travel between states and the right to migrate, resettle, find a new job,
and start a new life.
9. Child Custody. An award of custody to a parent should not be inter-
preted as a sentence to immobility.
10. ____. Career advancement of a new spouse is a legitimate reason to
remove a child to another jurisdiction.
11. ____. The desire to form a new family unit through remarriage is a
legitimate reason to remove a child to another jurisdiction.
12. Judgments: Final Orders. If a judgment looks to the future in an
attempt to judge the unknown, it is a conditional judgment. A condi-
tional judgment is wholly void because it does not “perform in prae-
senti” and leaves to speculation and conjecture what its final effect
may be.
13. Child Custody. The standard for approval of a motion to remove a
child to another jurisdiction applies both when a custodial parent seeks
to move a child from Nebraska to a different state and in considering a
subsequent move to yet another state.
14. Courts: Child Custody: Visitation. The authority to determine custody
and visitation cannot be delegated, because it is a judicial function.
15. Modification of Decree: Child Custody. A court cannot delegate to
a custodial parent, who has obtained permission only for removal of a
child from Nebraska to one state, the authority to move the child to yet
another state without permission.
16. ____: ____. Removal of a child from the state, without more, does not
amount to a change of circumstances warranting a change of custody.
Nevertheless, such a move, when considered in conjunction with other
evidence, may result in a change of circumstances that would warrant a
modification of the decree.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed as modified.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
David V. Chipman, of Monzón, Guerra & Associates, for
appellant.
Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp,
Burkholder & Blomenberg, P.C., L.L.O., for appellee
Rashell K.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
A noncustodial parent appeals from a modification of a fili-
ation judgment granting the custodial parent “leave to remove
the minor child from the State of Nebraska and to determine
his primary place of residence” without specifying where the
child could be moved or placing any limitation on further
moves. Two questions predominate.
First, did a deployment of the custodial parent’s new mili-
tary spouse for 1 year to a base near Washington, D.C., coupled
with a change in employment conditions after the deployment
ended, constitute a legitimate reason for leaving the state? It
did. Second, did the district court’s open-ended permission vio-
late the standard for approval and, thus, amount to an improper
delegation of judicial authority? It did.
Because the court did not otherwise abuse its discretion, we
affirm the order below as modified to limit the permission to
move the child only to the military base near Washington, D.C.
BACKGROUND
Prior Proceedings
Rashell K. and Ryan G. are the natural parents of Ryley
G., born in 2007. In 2009, the State initiated a filiation pro-
ceeding, which resulted in a support judgment against Ryan.
At that time, neither Rashell nor Ryan sought any orders
regarding child custody. In 2015, Ryan sought a modification,
which in June 2016 resulted in an order and formal parenting
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
plan awarding Rashell legal and physical care, custody, and
control of Ryley, subject to Ryan’s parenting time. It con-
sisted of every other Friday from 7:30 p.m. to 7:30 p.m. on
Sunday and all but 3 weeks of each summer vacation from
school.
Modification Sought
In November 2018, Rashell sought a modification of the
judgment, asserting that she had married and had a newborn
child; that her husband was active in the National Guard and
was scheduled to be deployed to the District of Columbia
in mid-2019; that he would likely be stationed outside of
Nebraska following the deployment; and that it was in Ryley’s
best interests to permit removal from Nebraska. She specifi-
cally requested permission “to move with the minor child to
the District of Columbia, and thereafter to where her husband
is stationed” and sought other related relief.
Ryan filed an answer opposing the removal and a “counter-
complaint” seeking a change of custody and other associated
relief. The matter proceeded to trial.
Evidence at Trial
At trial, the parties avoided Ryley’s participation by stipulat-
ing that Ryley would testify he had a good relationship with his
father, he had a stronger bond with his mother, and he wanted
to remain living with his mother. The district court heard
testimony from three witnesses: Ryan, Rashell, and Rashell’s
husband, Joshua Chubb.
Chubb testified that he was a Blackhawk helicopter instruc-
tor pilot for the Missouri National Guard. He had been working
40 to 42 hours per week, compressed into 3 days each week,
and had been commuting from Lincoln, Nebraska, to Whiteman
Air Force Base in Missouri for his employment.
Chubb stated that he had been called to active duty and
ordered to report for processing in North Carolina, where he
expected to be ordered to report to Fort Belvoir in Washington,
D.C., for 1 year. Although the parties at times characterized
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
Fort Belvoir as being located in the District of Columbia, they
also described it as situated in Virginia, near Washington, D.C.
Chubb testified that while at Fort Belvoir, his family would
have on-base housing. The house would have three bedrooms
and would be located in a low-crime area within one-half mile
from the school that Ryley could attend. Chubb would receive
a housing allowance, and Rashell would not need to work out-
side of the home.
After completion of this deployment, Chubb testified, he
would be ordered to return to Missouri for demobilization.
Thereafter, he explained, there were only two places in the
country where he would be able to work as a Blackhawk heli-
copter instructor pilot: Missouri or Alabama. He anticipated
moving to Alabama for an instructor position in a nondeploy-
able unit. If he received that position, he would work shorter
days and be paid more.
Chubb did not expect to return to Lincoln. He testified that
if he returned to Missouri, the chances were “slim to none” that
he could resume the same schedule he had while commuting
from Lincoln. Instead, he would not be allowed to have Fridays
off. He would have to work Tuesday through Friday, with only
Saturday, Sunday, and Monday off. He explained that he would
not have the same flexibility and schedule as before, because
he would become a “legitimate full-time employee working
there.” So at that point, his family would reside with him in
Missouri as opposed to his living in Lincoln and commuting.
Moreover, there was no opportunity as a Blackhawk instructor
closer to Lincoln than Whiteman Air Force Base.
Rashell stated that her intention was to move to Fort Belvoir
for 1 year and then move to wherever Chubb found a job. She
did not have an address for their home in Fort Belvoir. She was
a registered nurse, and she explained that in order to receive
a nursing license in Virginia, she would need a specific home
address. She stated that if she could find a flexible, part-time
nursing job, she would work; otherwise, she would stay at
home with her children.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
Rashell explained that at Fort Belvoir, the elementary school
consists of “K” to sixth grade. Ryley would be entering sixth
grade. By the end of the trial, she testified regarding the base’s
recreational amenities and sports programs.
Ryley’s community and extended family were in Lincoln.
Rashell’s and Ryan’s families were also there. And so were
Ryley’s friends and school classmates. Ryley had participated
in several sports teams in Lincoln.
Ryan actively participated in Ryley’s life. Ryan exercised
all of his parenting time. Rashell allowed Ryan to take Ryley
to and from school on snowy or rainy days. Ryan attended the
majority of Ryley’s sports games. Ryan had made plans that if
he was awarded physical custody, family members would care
for Ryley when Ryan had to work late or on weekends.
Rashell had made all of Ryley’s doctor appointments and
taken care of his medical needs. Ryley takes asthma shots
every other week, and in a previous summer, Ryan had for-
gotten to take Ryley to receive his shots. Ryan had never met
Ryley’s primary care doctor or his dentist.
Rashell explained that she did not yet have any informa-
tion regarding who would be Ryley’s primary care physician
or dentist or where he would receive his asthma shots at Fort
Belvoir. This, she said, was because their “insurance [was]
through Tri-Care, [which was] divided into an east and a west
and [they were] currently in the west.” This meant, she testi-
fied, that they could not “move it to the east until [they] actu-
ally move there.”
According to Rashell, if Ryley was not allowed to move with
her, it would have a negative effect on Ryley. She based this
upon her observations of Ryley after he returned from Ryan’s
house. On such occasions, she testified, Ryley was withdrawn
and worried as to how she would react to small things. Rashell
calculated that if Ryley moved with her, Ryan would lose
40 days of overnight parenting time. However, according to
Rashell, if Ryley stayed with Ryan, she would lose 180 days of
overnight parenting time.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
District Court’s Orders
The district court first entered an interlocutory order address-
ing the custody and removal issues and reserving the support
and related matters. The court later entered a final order, incor-
porating a copy of the first order and disposing of the remain-
ing issues.
In the first order, the court found that Rashell met the
threshold requirement of proving a legitimate reason for mov-
ing. It explained that she had a desire to establish a family unit
with her new husband, her new child, and Ryley. It stated that
Chubb would see an income increase and “secure his position
with a solid upside.” This, the court found, was a legitimate
reason for the move.
After clearing the threshold requirement, the court then con-
sidered the best interests factors, addressing (1) the parents’
motives for seeking or opposing the move, (2) the potential
the move holds for enhancing the quality of life for the child
and custodial parent, and (3) the impact the move will have on
contact between the child and the noncustodial parent.
Regarding the parents’ motives, the court determined that
both parents had valid reasons for and against removal and that
this factor did not weigh for or against removal.
The court then considered nine elements of the quality-of-
life factor. The court’s order discussed each element.
First, it assessed Ryley’s emotional, physical, and develop-
mental needs. Concluding that this factor disfavored the move,
the court explained:
The . . . minor child is thriving in Nebraska and his
needs are being met. He spends a lot of time with his
father and . . . they have a good relationship. . . . A move
would take Ryley away from extended family and friends
at a time that is significant in his development.
Rashell has a substantial number of her family mem-
bers in Lincoln. Ryan also has family members in
Lincoln. A move would take Ryley away from these fam-
ily members.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
Ryley has a number of interests including music,
lacrosse, baseball, basketball, and flag football. Ryan
attends Ryley’s activities. Rashell had done little at the
time of trial, if anything, to investigate any of those activ-
ities if the move were allowed. There is little doubt Ryan
is actively involved in Ryley’s life and willing to take on
the custodial role here.
Second, it stated that Ryley’s preference to stay with Rashell
favored the move. The court noted that “[w]hile Ryan suggests
this factor should be neutral, he should not be surprised that the
court finds [Ryley’s preference] is important to the determina-
tion here.”
Third, the court considered the extent to which the custodial
parent’s income or employment would be enhanced. It observed
that although the move was not based on Rashell’s career,
the family considerations were no less important. Because of
Chubb’s career, Rashell would be allowed to stay home and
care for the children. Although her future prospects were not
clear and it did not appear that her employment opportunities
were enhanced, Chubb was “on a career path that overall will
be favorable in the long-run to the family.” It concluded that
this was a neutral factor.
Fourth, addressing housing or living conditions, the court
reasoned that because Rashell eventually presented evidence
that the housing options on the military base would be suitable
and that Ryley’s education needs could be met, the factor was
generally neutral or slightly negative.
Fifth, regarding educational advantages, the court deter-
mined that Ryley’s educational needs were being met and that
Rashell had provided “only scant” evidence of any advantages
from the move. This factor, the court concluded, “slightly
disfavor[ed]” the move.
Sixth, the court discussed the quality of the relationships
between the child and each parent, which, the court found,
favored the move. Although the relationships with each par-
ent were strong and Ryan had been very active in Ryley’s
life, Rashell had “provided most of the support for education,
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
medical needs, and for extracurricular activities . . . , and ha[d]
been the parent most focused on [Ryley’s] essential well-being
and care.” The court concluded that Rashell’s “parenting time
pretty substantially outweigh[ed] that of Ryan and her day-to-
day life show[ed] the overall attentiveness to [Ryley’s] needs
emotionally, spiritually, educationally, and socially.”
Seventh, it discussed the strength of the child’s ties to the
community and extended family. It explained that Ryley was
“fully ingrained” in Lincoln and had significant ties that would
be diminished or lost with the move. This factor, the court
determined, disfavored the move.
Eighth, in discussing the likelihood that allowing or deny-
ing the move would antagonize hostilities between the par-
ents, the court noted that the parties refrained from being
“deeply critical” and showed a level of maturity and under-
standing. It explained that Rashell offered several concessions
to Ryan’s parenting time that would be “difficult to execute,
but not so impossible as to prevent the move.” It found that
the parties were “very focused” on Ryley’s best interests
and that Rashell’s commitment to Ryan’s parenting time was
credible. According to the court, this factor slightly favored
the move.
Addressing the last element of the quality-of-life factor, the
court determined that the living conditions and employment
opportunities of the custodial parent slightly favored the move.
Here, the court found that the best interests were “interwoven
with the well-being of the custodial parent.” Rashell had, the
court observed, provided most of Ryley’s care and support.
Chubb would “support Rashell being a stay-at-home mother”
and would make a sufficient income. It reasoned that “[t]he
fact that Rashell would be home parenting is at least as posi-
tive as having her base the move on improving employment
opportunities in a new environment.”
Turning to the third best interests factor, the court reasoned
that it “must make some pretty aggressive assumptions to
believe that moving the minor child would not have a signifi-
cant negative impact on the parenting time of Ryan. Rashell,
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
to her credit, has offered substantial parenting time.” But the
court also recognized that “a reduction in visitation time does
not necessarily preclude a custodial parent from relocating for
a legitimate reason.”
Ultimately, the court found that “the reasons for Rashell’s
move, the weight of Ryley’s preference, and the opportunities
that are provided for Rashell and Ryley in the long-run, satisfy
the burdens placed on Rashell to establish a good reason for
the move and that the move is in the best interests of Ryley.”
Accordingly, the court stated, Rashell’s “request to move Ryley
is approved. Ryan’s Cross-Petition is dismissed.” The first
order, the court stated, was not final, because there were unre-
solved issues of parenting time and child support. It specified
procedures for adjudicating the remaining issues.
One month later, the court entered a final order. This order
“granted [Rashell] leave to remove the minor child from the
State of Nebraska and to determine his primary place of resi-
dence.” It did not specify the location of the move or place any
restriction on further moves.
Ryan filed a timely appeal, which we moved to our docket. 1
ASSIGNMENTS OF ERROR
Ryan assigns that the district court erred in (1) finding that
Rashell demonstrated a legitimate reason for leaving Nebraska
with Ryley; (2) finding that it was in Ryley’s best interests to
relocate to Washington, D.C.; (3) granting Rashell the “open-
ended right” to relocate outside of Nebraska to Washington,
D.C., and then to Chubb’s next job regardless of where it is
located; and (4) “not finding a material change of circumstance
that the best interests of [Ryley] required custody to be placed
with [Ryan].”
STANDARD OF REVIEW
[1,2] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on the
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
record to determine whether there has been an abuse of discre-
tion by the trial court, whose judgment will be upheld in the
absence of an abuse of discretion. 2 A judicial abuse of discre-
tion exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition. 3
[3] In a de novo review, when the evidence is in conflict, the
appellate court considers, and may give weight to, the fact that
the trial court heard and observed the witnesses and accepted
one version of the facts rather than another. 4
ANALYSIS
We have said that parental relocation issues are among the
most difficult that courts face. 5 That is true here. For this rea-
son, such determinations are matters initially entrusted to the
discretion of the trial judge, and the trial judge’s determination
is to be given deference. 6
Framework for Removal Decisions
[4,5] Before we address Ryan’s specific arguments, we first
recall the legal framework governing the removal of a minor
child to another jurisdiction. 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 legiti-
mate reason for leaving the state. 7 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. 8 The
2
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692
(2019).
3
Id.
4
Id.
5
See, e.g., Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014);
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
6
Steffy v. Steffy, supra note 5.
7
Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d 79 (2014).
8
Id.
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306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
purpose of requiring a legitimate reason for leaving the state in
a motion to remove a minor child to another jurisdiction is to
prevent the custodial parent from relocating the child because
of an ulterior motive, such as frustrating the noncustodial par-
ent’s visitation rights. 9
[6,7] In considering a motion to remove a minor child to
another jurisdiction, the paramount consideration is whether
the proposed move is in the best interests of the child. 10 In
determining whether removal to another jurisdiction is in
the child’s best interests, the trial 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 a move will have on contact between the child and the
noncustodial parent, when viewed in the light of reason-
able visitation. 11
[8] Fundamental constitutional rights underlie this frame-
work. The custodial parent has the right to travel between
states and the right to migrate, resettle, find a new job, and
start a new life. 12 Both parents, custodial and noncustodial,
have the constitutional right to the care, custody, and control
of their children. 13
Ryan does not assert that the district court employed the
wrong framework. Instead, he quarrels with its application to
the facts of this case.
Legitimate Reason for Removal
Ryan first argues that the district court erred in finding
that Rashell had a legitimate reason for moving to another
9
Steffy v. Steffy, supra note 5.
10
Id.
11
McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
12
Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600
(1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651, 94
S. Ct. 1347, 39 L. Ed. 2d 662 (1974).
13
Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
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STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
jurisdiction. He contends that we have never “found that a par-
ent’s desire to relocate to a spouse’s temporary job relocation is
a legitimate reason to relocate with the minor child.” 14
[9-11] We have long held that an award of custody to a
parent should not be interpreted as a sentence to immobility. 15
Thus, we have held that career advancement of a new spouse is
a legitimate reason to remove a child to another jurisdiction. 16
Another legitimate reason is the desire to form a new family
unit through remarriage. 17 Both reasons factor into the situa-
tion here.
We disagree with Ryan’s characterization of Rashell’s reason
for moving as a temporary job relocation. Chubb, a member of
the Missouri National Guard, was called to active service in the
U.S. Army and deployed to a base near Washington, D.C. This
activation and deployment is mandatory and not in any sense
voluntary. It is true that this aspect of his job will end after
1 year. But many job opportunities involve a risk of transfer
after only a short period. And at the end of the 1-year deploy-
ment, he clearly intends to continue his military career as a
Blackhawk helicopter pilot.
14
Brief for appellant at 18 (emphasis omitted).
15
See, Daniels v. Maldonado-Morin, supra note 7; Vogel v. Vogel, 262
Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954,
621 N.W.2d 70 (2000); Harder v. Harder, 246 Neb. 945, 524 N.W.2d
325 (1994); Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994);
Demerath v. Demerath, 233 Neb. 222, 444 N.W.2d 325 (1989); Hicks v.
Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986); Vanderzee v. Vanderzee,
221 Neb. 738, 380 N.W.2d 310 (1986); Boll v. Boll, 219 Neb. 486, 363
N.W.2d 542 (1985); Gotschall v. Gotschall, 210 Neb. 679, 316 N.W.2d
610 (1982).
16
See, McLaughlin v. McLaughlin, supra note 11; Vogel v. Vogel, supra
note 15; Harder v. Harder, supra note 15; Demerath v. Demerath, supra
note 15.
17
See, Daniels v. Maldonado-Morin, supra note 7; Jack v. Clinton, 259 Neb.
198, 609 N.W.2d 328 (2000); Harder v. Harder, supra note 15; Gerber v.
Gerber, 225 Neb. 611, 407 N.W.2d 497 (1987); Maack v. Maack, 223 Neb.
342, 389 N.W.2d 318 (1986).
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STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
While Chubb’s immediate job placement is time limited, the
job- and matrimonial-related reasons for removal are perma-
nent. He has a career plan based upon military service. Rashell
desires to join him in this military life. He knows that he will
return to Missouri for demobilization. But there, the chances
are “slim to none” that he could return to the schedule which
made commuting from Lincoln possible. We cannot say that
the desire to live a normal life with his family near the location
of his job is illegitimate. Likewise, Rashell’s desire to live with
her new spouse at that job location is a legitimate reason for
removal of the child from Nebraska.
Best Interests
Under the framework set forth above, Rashell had the bur-
den to show that it was in the child’s best interests to continue
living with her. 18 As we have already noted, Ryan quarrels only
with the weight accorded by the court to the evidence bearing
on the factors prescribed by that framework.
Ryan emphasizes the “temporary nature of the relocation.” 19
But as we have already explained, the relocation is permanent
in the sense that the family will not be returning to Lincoln.
Above, we set forth the district court’s analysis in consid-
erable detail. Here, the deference we accord to the court’s
factual findings becomes important. We find no abuse of dis-
cretion in the court’s best interests analysis.
Removal Beyond Washington, D.C.
Ryan argues that the district court erred in granting an “open-
ended” right to relocate the minor child first to Washington,
D.C., and then to Chubb’s next job location. 20 To support this
argument, he tenders two rationales. One lacks merit but the
other is valid.
18
Daniels v. Maldonado-Morin, supra note 7.
19
Brief for appellant at 24.
20
Brief for appellant at 26.
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In one rationale, Ryan challenges the district court’s order
as a void conditional order, “to the extent” the court “granted
Rashell permission to relocate to wherever [Chubb] finds
another job.” 21 In making this argument, he relies upon our
decision in Vogel v. Vogel. 22
[12] There, we relied on two related propositions. If a judg-
ment looks to the future in an attempt to judge the unknown,
it is a conditional judgment. A conditional judgment is wholly
void because it does not “perform in praesenti” and leaves
to speculation and conjecture what its final effect may be. 23
Applying those principles, we vacated provisions of a removal
order which (1) imposed a new schedule for physical pos-
session of the children “in the event [the mother’s spouse] is
transferred overseas and [the mother] elects to join him” and
(2) dictated a new visitation schedule “in the event [the mother
and the father] establish residences within 50 miles of one
another.” 24 In both instances, the Vogel orders were to become
effective only upon the happening of certain future events
which might or might not occur. Whether the orders would
ever have become effective was speculative.
Here, however, the district court’s final order did not include
similar language. Instead, this order simply stated that Rashell
was “granted leave to remove the minor child from the State of
Nebraska and to determine his primary place of residence.” It
did not, as Ryan contends, state any location to which such per-
mission extended. To the extent that the court’s first order can
be read to incorporate Rashell’s prayer into its relief, the final
order expressly states that it “shall supersede and control.” The
final order may have been carefully crafted to avoid the use of
conditional language. But in avoiding that pitfall, it ran afoul
of another principle.
21
Id. at 27.
22
Vogel v. Vogel, supra note 15.
23
Id.
24
Id. at 1038-39, 637 N.W.2d at 619.
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[13] In the other rationale, Ryan argues that the district
court’s order violated a standard articulated by the Nebraska
Court of Appeals in Maranville v. Dworak. 25 There, after
obtaining the trial court’s permission to move the children to
Illinois, followed by an unsuccessful appeal by the noncus-
todial parent, the custodial parent sought further permission
to move the children to Ohio, based upon her spouse’s job
change. The trial court granted that permission. On appeal, the
Court of Appeals determined that the standard for approval of
a motion to remove a child to another jurisdiction applies both
when a custodial parent seeks to move a child from Nebraska
to a different state and in considering a subsequent move to yet
another state. 26
[14,15] Although the Court of Appeals did not say so, we
believe that this standard derives from a more fundamental
principle: The authority to determine custody and visitation
cannot be delegated, because it is a judicial function. 27 And we
restate that principle in the specific context of a parental relo-
cation: A court cannot delegate to a custodial parent, who has
obtained permission only for removal of a child from Nebraska
to one state, the authority to move the child to yet another state
without permission. Here, because the authority to determine
custody and visitation is a judicial function, it cannot be del-
egated to Rashell.
Rashell responds that the district court’s order expressly
gave her permission to “relocate with Ryley to Fort Belvoir,
and also subsequently to relocate in accordance with known
25
Maranville v. Dworak, 17 Neb. Ct. App. 245, 758 N.W.2d 70 (2008).
26
Id.
27
See, VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019);
Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988), disapproved on
other grounds, State on behalf of Kaaden S. v. Jeffery T., supra note 2;
Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980), disapproved
on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898
(2002); Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40
(1978).
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employment opportunities to either Whiteman Air Force Base,
Missouri, or Fort Rucker, Alabama.” 28 But one has only to read
the order to see that this is not so.
The order below does not undertake comparisons to Missouri
or Alabama or make any findings regarding those locations’
advantages or disadvantages in the best interests framework.
Of course, we recognize that a court cannot make bricks with-
out straw. Rashell failed to present evidence regarding those
locations. Her evidence focused on Fort Belvoir. That limited
the information available to the district court.
Even if she had furnished detailed information on both loca-
tions in Missouri and Alabama, her strategy would have failed.
The court below could not have crafted an order permitting a
move to the location of Rashell’s or Chubb’s choice without
either employing a void conditional order or improperly del-
egating judicial authority.
The court’s order supported the move to Fort Belvoir, but
nothing more. We modify the order to make it clear that
the permission granted to remove Ryley from the State of
Nebraska extends only to move him to Fort Belvoir, in the
State of Virginia, near Washington, D.C.
Denial of Ryan’s Request for Custody
Finally, Ryan argues that the district court erred in not find-
ing a material change of circumstance such that Ryley’s best
interests required custody to be placed with him. This assign-
ment lacks merit.
As Ryan’s argument makes clear, it is founded upon his con-
tention that the court erred in granting permission for Rashell
to relocate Ryley to Fort Belvoir. He relies upon our decision
in Tremain v. Tremain. 29 There, the trial court denied permis-
sion to move the child, but changed custody without determin-
ing whether the custodial parent would relocate to Nebraska
28
Brief for appellee at 26.
29
Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002).
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in order to retain custody of the children. On appeal, we
reversed the order changing custody and remanded the cause
for further proceedings to ascertain whether the custodial par-
ent would relocate.
[16] But here, we have determined that the district court
properly granted Rashell permission to move with Ryley to
Fort Belvoir. Thus, the premise underlying Ryan’s argument
failed. Removal of a child from the state, without more, does
not amount to a change of circumstances warranting a change
of custody. Nevertheless, such a move, when considered in
conjunction with other evidence, may result in a change of cir-
cumstances that would warrant a modification of the decree. 30
Here, there is no other evidence that would warrant a modifica-
tion of the judgment.
CONCLUSION
Rashell established a legitimate reason for leaving Nebraska
and moving with Ryley to Fort Belvoir. The district court did
not abuse its discretion in determining that it was in Ryley’s
best interests to continue living with her. Similarly, the court
did not abuse its discretion in declining to change custody of
Ryley from Rashell to Ryan. To the extent that the court’s order
can be read to authorize Rashell to move later with Ryley to
either Missouri or Alabama, we modify the order to eliminate
that authority. Permission for any further move must be sought
in a new proceeding. The permission granted in the proceed-
ing before us permits Rashell to move with Ryley only to Fort
Belvoir, in the State of Virginia, near Washington, D.C. As so
modified, we affirm the order of the district court.
Affirmed as modified.
30
Vogel v. Vogel, supra note 15.