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State on behalf of Savannah E. v. Kyle E.

Court of Appeals of Nebraska

October 15, 2013

State of Nebraska on behalf of Savannah E. and Catilyn E., Minor Children, Appellee,
v.
Kyle E., Appellee, and Amanda W., Appellant.

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[Copyrighted Material Omitted]

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Appeal from the District Court for Kimball County: DEREK C. WEIMER, Judge. Affirmed.

Audrey M. Elliott, of Kovarik, Ellison & Mathis, P.C., for appellant.

Leonard G. Tabor, for appellee Kyle E.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

2. Modification of Decree: Child Support: Appeal and Error. Modification of child support payments is entrusted to the trial court's discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

4. Evidence: Appeal and Error. When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

5. Child Custody. In cases where a noncustodial parent is seeking sole custody of a minor child while simultaneously seeking

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to remove the child from the jurisdiction, a court should first consider whether a material change in circumstances has occurred and, if so, whether a change in custody is in the child's best interests. If this burden is met, then the court must make a determination of whether removal from the jurisdiction is appropriate.

6. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

7. Child Custody: Proof. The party seeking modification of child custody bears the burden of showing a material change in circumstances.

8. Modification of Decree: Child Custody: Evidence: Time. In determining whether the custody of a minor child should be changed, the evidence of the custodial parent's behavior during the year or so before the hearing on the motion to modify is of more significance than the behavior prior to that time.

9. Child Custody. In determining a child's best interests, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient [21 Neb.App. 410] age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child.

10. Child Custody. In relocation cases, a parent must first satisfy the court that he or she has a legitimate reason for leaving the state.

11. Child Custody: Proof: Visitation. Once the threshold burden of showing a legitimate reason for leaving the state has been met, the court then determines whether removal to another jurisdiction is in a child's best interests, which in turn depends on (1) each parent's motives for seeking or opposing the move, (2) the potential the move holds for enhancing the quality of life for the child and the custodial parent, and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation arrangements.

Moore, Judge.

I. INTRODUCTION

Kyle E. and Amanda W. are the biological parents of two minor children, Savannah E. and Catilyn E. In 2005, Kyle and Amanda agreed that Amanda would have primary physical custody of Savannah and Catilyn and that Kyle would have liberal visitation time. This custodial arrangement remained intact until January 2011, when Kyle filed a motion to modify custody of the children. In the motion, he asked that he be awarded primary physical custody. After a hearing, the district court granted Kyle's request. Amanda appeals from the court's decision here.

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On appeal, Amanda alleges that the district court erred in granting Kyle's motion to modify custody, because Kyle failed to prove that a material change of circumstances had occurred since 2005 when the parties agreed that Amanda would have primary physical custody of the children and because Kyle failed to demonstrate that a change in custody was in the [21 Neb.App. 411] girls' best interests. Upon our de novo review of the record, we affirm.

II. BACKGROUND

These proceedings involve Savannah, born in March 2003, and Catilyn, born in December 2004. Amanda is the children's biological mother, and Kyle is their biological father. Amanda and Kyle have never been married to each other.

1. PROCEDURAL HISTORY

In July 2005, Amanda and Kyle entered into a stipulation concerning custody of Savannah and Catilyn. As a part of the stipulation, they agreed that Amanda would maintain physical custody of the girls and that Kyle would be awarded liberal visitation time. On July 19, the district court entered an order reflecting the terms of the parties' stipulation.

On January 20, 2011, more than 5 years after the parties agreed that Amanda would maintain physical custody of the girls, Kyle filed a motion to modify that custody arrangement. In the motion, he alleged that a material change of circumstances had occurred since he entered into the custody agreement with Amanda. Specifically, he alleged that both parties had married, that Amanda had a baby with her new husband, that Savannah occasionally takes care of Catilyn and Amanda's new baby, that Amanda spends a lot of time in the bars, that the girls and their clothing are usually dirty when they come to visit Kyle, that the girls are occasionally late for school, and that Amanda has been neglecting the children and is no longer a fit and proper parent to have permanent custody of the children. In addition, he alleged that in December 2010, Amanda was arrested for domestic assault. Kyle requested that he be awarded physical custody of the girls, that Amanda be ordered to pay child support, that the court establish a visitation schedule, and that he be granted permission to move the children to the State of Wyoming.

On February 17, 2011, Amanda filed an answer and a cross-complaint to modify. Amanda denied that there had been any material change of circumstances warranting a modification of the original custody arrangement. However, she alleged that [21 Neb.App. 412] there had been a material change of circumstances warranting a modification of Kyle's child support obligation.

While the modification action was pending in the district court, Amanda informed Kyle that she was planning on moving from Nebraska to Colorado in order to assist an ailing relative. Prior to informing Kyle about her plans, Amanda had removed the children from their school and was preparing for the move. Kyle immediately filed an ex parte motion requesting temporary custody of the girls so that Amanda could not remove them from Nebraska. The district court granted Kyle's request on February 13, 2012, and awarded him immediate, temporary custody of Savannah and Catilyn. Kyle moved the children to his home in Pine Bluffs, Wyoming, and enrolled them in school.

One week later, on February 21, 2012, a hearing was held to determine whether Kyle should maintain temporary custody of the girls pending the modification hearing. The evidence presented at the hearing revealed that although Amanda had planned on moving to Colorado, she had since decided to remain in Nebraska. In addition, there was evidence that Amanda

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did not know that she could not move with the children outside of Nebraska and that she did not intend the move to affect Kyle's visitation in any way. The evidence revealed that if Amanda moved to Colorado, she would still live only approximately 1 1/ 2 hours away from Kyle's home in Wyoming.

Because Amanda had decided not to move out of the state, the court returned the girls to her custody pending the modification hearing. The court ordered Kyle to return the girls to Amanda and ordered Amanda to enroll them again in school.

In September 2012, a hearing was held on Kyle's request to modify custody and on Amanda's request to modify Kyle's child support obligation. At the hearing, Amanda and Kyle both presented evidence about their relationships with Savannah and Catilyn and about their current circumstances.

2. AMANDA'S EVIDENCE

Amanda testified that at the time of the modification hearing, she was living in a home in Dix, Nebraska, with Savannah [21 Neb.App. 413] and Catilyn and her youngest daughter, who was approximately 3 years old. Amanda was working part time as a nurse's aide for a disabled individual, and she was enrolled at a community college. However, she had not yet started attending any classes, because she was waiting for funding.

Amanda had married Robert G. in March 2009. They were still married at the time of the modification hearing, but Amanda testified that they were separated and planned to get a divorce.

Amanda and Robert's marriage has been tumultuous. Both Amanda and Robert have requested protection orders against each other. Robert filed for protection orders against Amanda in January and April 2011. Robert alleged that Amanda was physically violent with him and threatened to cause him harm. Amanda was arrested for domestic assault in April 2011 as a result of Robert's assertions. Amanda filed for a protection order against Robert in November 2010 or 2011. During her testimony at the modification hearing, she indicated that she requested the protection order because she was " physically scared." She testified that even though Robert has never caused her to suffer any physical injuries, she has felt threatened by him because he is bigger and stronger and sometimes things get " out of ... control."

Robert testified that none of the incidents between him and Amanda occurred " in front of the kids." He testified that he could not specifically remember if the girls were present in the house during the incidents or if they were with Amanda's mother, but he did testify that if the children were at home, they would have been upstairs in their bedrooms. There was no other evidence to indicate that the girls were ever physically present during ...


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