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Dragon v. Dragon

Court of Appeals of Nebraska

September 3, 2013

Melanie L. Dragon, now known as Melanie L. Tuamoheloa, appellant,
v.
Christopher P. Dragon, appellee.

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[Copyrighted Material Omitted]

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Appeal from the District Court for Sarpy County: MAX KELCH, Judge. Reversed and remanded for further proceedings.

Tracy L. Hightower-Henne, of Hightower Reff Law, L.L.C., for appellant.

Hugh I. Abrahamson, of Abrahamson Law Office, for appellee.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

Syllabus by the Court

1. Child Custody: Visitation: Appeal and Error. Child custody 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.

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 decision which is untenable and [21 Neb.App. 229] unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

3. 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.

4. Child Custody. Legitimate employment opportunities for a custodial parent may constitute a legitimate reason for leaving the state.

5. Child Custody. Legitimate employment opportunities for a custodial parent may constitute a legitimate reason for leaving the state where there is a reasonable expectation of improvement in the career or occupation of the custodial parent, or where the custodial parent's new job includes increased potential for salary advancement.

6. Child Custody. A custodial parent is not required to exhaust all possible job leads locally before securing a better position in another state.

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7. Child Custody. In determining whether removal to another jurisdiction is in a child's best interests, the court considers (1) each parent's motives for seeking or opposing the move; (2) the potential the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation.

8. 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 manipulate the other party.

9. Child Custody. In determining the potential that removal to another jurisdiction holds for enhancing the quality of life of the child and the custodial parent, a court should evaluate the following considerations: (1) the emotional, physical, and developmental needs of the child; (2) the child'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 child and each parent; (7) the strength of the child's ties to the present community and extended family there; and (8) the likelihood that allowing or denying the removal would antagonize hostilities between the two parties.

10. Child Custody. The list of factors to be considered in determining the potential that removal to another jurisdiction holds for enhancing the quality of life of the parent seeking removal and of the children 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.

11. Child Custody. Where the evidence does not establish any significant improvement in housing or living conditions, that factor does not weigh in favor of or against a child's removal to another jurisdiction.

12. Child Custody. In considering removal of a child to another jurisdiction, the existence of educational advantages receives little or no weight when the custodial parent fails to prove that the new schools are superior.

[21 Neb.App. 230] 13. Child Custody. The effect of the removal of a child to another jurisdiction must be evaluated in light of the child's relationship with each parent.

14. Child Custody: Visitation. A noncustodial parent's visitation rights are important, but a reduction in visitation time does not necessarily preclude a custodial parent from relocating for a legitimate reason.

15. Child Custody. In considering removal of a child to another jurisdiction, a court focuses on the ability of the noncustodial parent to maintain a meaningful parent-child relationship.

Pirtle, Judge.

I. INTRODUCTION

Melanie L. Dragon, now known as Melanie L. Tuamoheloa, appeals the order of the district court for Sarpy County which denied her request to remove her minor

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child from the State of Nebraska and awarded sole custody of the child to Christopher P. Dragon. We find that Melanie had a legitimate reason to request removal and find upon our de novo review that Melanie sufficiently demonstrated removal would be in the child's best interests. We also find the trial court erred in determining that sole custody should be awarded to Christopher. Accordingly, we reverse the denial of Melanie's complaint to modify the decree.

II. BACKGROUND

The parties divorced in 2005 and are the parents of Kendra Dragon, born in 2002. Pursuant to the decree of dissolution, the parties shared joint legal custody of the minor child and Melanie was awarded physical custody of Kendra. The parenting plan provided parenting time for Christopher with Kendra two evenings per week and every other weekend.

[21 Neb.App. 231] On April 23, 2012, Christopher filed a complaint for a temporary restraining order, preliminary injunction, and injunction, asking the court to prevent Melanie from removing Kendra from the State of Nebraska. Christopher also filed a motion for ex parte order requesting that the court prevent Melanie from permanently removing Kendra from the State of Nebraska. Melanie filed an answer and cross-complaint to modify the decree and gain permission to remove the minor child from the State of Nebraska to New Mexico. The parties stipulated that the child would not be removed without consent of the court.

Christopher's reply and answer to Melanie's cross-complaint alleged that " it is in the best interests of the parties' minor child that should [Melanie] leave the State of Nebraska that the care, custody and control of the minor child be with [Christopher]." Melanie's " Amended Motion for Expedited Trial or in the Alternative Motion for Temporary Allowances" requested the earliest possible trial date, permission for temporary removal, or permission from the court for Kendra to continue residing with Steven Tuamoheloa (Steven), her current husband and Kendra's stepfather, in Omaha, Nebraska, until trial.

Christopher objected to Melanie's motion and opposed temporary removal. Christopher's motion for temporary custody filed on July 27, 2012, stated it was not in Kendra's best interests to be placed in the custody of Steven. Christopher also stated it was in Kendra's best interests that when Melanie relocated from the State of Nebraska, he should retain the care, custody, and control of her. Although he mentions custody, he did not file a counterclaim requesting a change of custody.

Trial regarding removal took place on September 25 and 27 and October 23, 2012.

Melanie requested permission to remove Kendra from the State of Nebraska because she was moving to New Mexico to accept a job offer after completing her nursing degree. Melanie testified she was a stay-at-home mother with no employment income until she earned her degree from Creighton University in May 2012. Melanie is an enrolled member of the Omaha Tribe of Nebraska. She received a scholarship through Indian [21 Neb.App. 232] Health Service, which paid for 2 years of nursing school. She also received a stipend in the amount of $18,000 for living expenses.

The scholarship required Melanie to be enrolled full time in nursing school and maintain a 3.0 grade point average. The scholarship also required Melanie to secure employment within 90 days of graduation, specifically at an Indian health care facility, and she was required to work for a year for each year the scholarship funded

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her education. Thus, Melanie was obliged to work for 2 years for an Indian health care facility. Should Melanie fail to meet the postgraduation requirement, she would be required to pay back the scholarship, totaling $80,000.

Melanie searched for employment with an Indian health care facility upon graduation, using the Indian Health Service Web site. She testified that there are two facilities in Omaha which would have fulfilled the requirement, but that there were no job opportunities available within 90 days at either facility. She expanded her search nationwide. She was unable to secure a job at a facility in Rapid City, South Dakota, because she did not have enough experience. She was offered positions at two facilities: one in Gallup, New Mexico, and one in Anchorage, Alaska. She accepted a job as a registered nurse with the Gallup Indian Medical Center and moved to New Mexico in August 2012. Because Melanie did not have permission to remove Kendra from Nebraska at that time, Kendra remained in Nebraska with Christopher.

Melanie immediately received benefits through her employer, including health insurance, a retirement plan, life insurance, vision and dental insurance, and long-term advancement training opportunities. She testified that if she maintains her job at this facility beyond 2 years, she will receive loan repayments totaling approximately $115,000.

Melanie married her current husband, Steven, 7 years ago, and they have three children together. Melanie testified that Kendra has two men that she calls " dad," Christopher and Steven. Melanie said Kendra has a loving relationship with Steven; they play together, and she is treated in the same way as the other children. Steven testified that he is active in [21 Neb.App. 233] parenting Kendra and has been a part of her life since she was 2 years old. He said that " she's basically my first kid." Kendra is also bonded with her half siblings and takes a leading role as the oldest sibling. She enjoys playing with them and reading to them and likes to " play Barbies" and " dress up" with her half sister.

Melanie sought permission to remove Kendra from Nebraska so that she could live with Melanie and the family in New Mexico. Melanie was Kendra's primary caregiver from birth, and has remained in that role since the parties divorced, approximately 9 years ago. Melanie has been very involved in Kendra's schooling and activities and enjoys a loving relationship with her. Melanie testified that she takes Kendra to all of Kendra's medical appointments and talks to her about issues with school, friends, and concerns relating to puberty. Christopher has not provided health insurance for Kendra, despite being ordered to do so in the original decree, and did not know the names of Kendra's doctors or dentist.

Melanie testified that she helps Kendra with her homework and reviews incorrect answers to make sure she understands the work. Melanie expressed concern about the decline in Kendra's schoolwork since she began living with Christopher. Melanie received an e-mail from Kendra's teacher saying that she noticed a decline in Kendra's work and work habits and that her grades were in decline.

Melanie testified that if Kendra were allowed to move to New Mexico, she would live with the family in a leased three-bedroom home and would continue to share a room with her half sister. The home is one block away from the school Kendra would attend, and this is much closer than the distance between her home and school in Omaha. She said that there are no concerns about the size or safety of the home and that the neighborhood is

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comparable to their neighborhood ...


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