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Bird v. Bird

Court of Appeals of Nebraska

September 2, 2014


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[Copyrighted Material Omitted]

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Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.

Brandie M. Fowler and Matthew Stuart Higgins, of Higgins Law, for appellant.

Troy Bird, of Bird Law Firm, Pro se.



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[22 Neb.App. 336] Riedmann, Judge.


Brekk Bird appeals the decision of the district court for Lancaster County which denied her request to modify the parties' dissolution decree to award her sole legal and physical custody of their minor children, denied her request to remove the children from Nebraska to Utah, and granted Troy Bird's request to decide where the children would attend school. For the reasons set forth below, we affirm.


Troy and Brekk were married in Salt Lake City, Utah, in 2003. They moved to Nebraska in 2009 and were divorced in September 2011. Two minor children were born of the marriage: a son, Cohen Bird, born in 2008, and a daughter, born in 2010. In its divorce decree, the district court for Lancaster County denied Brekk's request to remove the children from Nebraska to Utah and instead awarded the parties joint legal and physical custody, with each parent having physical custody of the children on alternating weeks. The court noted that Brekk's request to remove

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the children to Utah was " premature," because the parties had agreed to remain in Nebraska for the duration of Troy's law school education, of which he had 1 year remaining at that time.

In May 2012, Brekk filed a complaint for modification of the decree requesting sole legal and physical custody of the children and permission to remove the children to Utah. She alleged there had been a material change of circumstances since the entry of the decree because Troy had completed law school and she had been offered enhanced employment in St. George, Utah. Troy filed a countercomplaint seeking permanent legal custody of the minor children, as Cohen was scheduled to begin kindergarten in the fall and the parties could not agree on where he would attend school. Troy also sought primary legal and physical custody of the children, in the event that Brekk relocated to Utah.

[22 Neb.App. 337] Troy and Brekk moved to Lincoln, Nebraska, in 2009 so Troy could attend law school at the University of Nebraska. Prior to moving to Nebraska, they resided in Troy's hometown of Orem, Utah. Brekk testified that Troy wanted to attend a law school in Utah but was not able to gain admission. They made a joint decision to move to Nebraska, but planned to move back to Utah to be close to their families after Troy finished law school.

Both parties have extended family in Utah, albeit in different cities. Neither party has any relatives in Nebraska. Troy did not dispute that the parties had discussed moving back to Utah after law school; however, he testified that they had never agreed to move to St. George. Orem, where the parties resided before moving to Nebraska, is approximately 400 miles from St. George.

Brekk testified that she wanted to relocate with the children to St. George, because the majority of her family lived there, including her parents, with whom she had a very close relationship. In addition, Brekk had obtained an offer of employment to work as a substitute teacher at a crisis center and school for troubled youth in St. George. The center is a family-owned business, owned in part by Brekk's father.

According to the terms of the job offer, Brekk would work 30 to 35 hours per week at a rate of $25 per hour and receive health care, dental, and retirement benefits. She would also have the opportunity to obtain the necessary credentials to become a permanent teacher in Utah by working under the supervision of another teacher at the school. Brekk's mother would provide care for the children while Brekk was working, including transportation to and from school if necessary. In the event that Brekk's mother was not available, other relatives and close friends would be available to help care for the children.

Brekk believed that the offer of employment in St. George was far better than anything she could hope to obtain in Nebraska. After Troy and Brekk separated, Brekk moved from Lincoln to Gretna, Nebraska. She was currently employed as a substitute teacher at a school near Gretna, where she worked 10 hours every other week and earned approximately $400 per [22 Neb.App. 338] month. However, she would not be able to continue teaching certain classes at that school the following year unless she became a certified teacher, which would require her to complete at least 1 to 2 years of additional schooling. Brekk testified that she had applied for various other positions in Omaha, Nebraska, and Lincoln, but was unable to find suitable employment that would allow her to stay home with her children every other week.

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If permitted to move to St. George, Brekk and the children would live rent free in a home owned by her father that was currently for sale. Brekk would be responsible for paying the utilities, keeping the house clean, and showing the house to potential buyers. If and when that house sold, Brekk and the children could live in other homes owned by her father under the same arrangement. Brekk testified that the home had a fenced backyard in which the children could play and would be a significant improvement from her apartment in Nebraska. She believed it would improve the quality of life for herself and her children.

Brekk researched and submitted applications for three possible schools for Cohen to attend in St. George, including a charter school that emphasized technology and performing arts. Brekk testified that it was the top-rated charter school in St. George and that she believed it offered a much better education than public schools. Brekk wanted Cohen to attend school there, but stated that she would be willing to discuss all three schools with Troy.

Brekk offered a calendar from the charter school with all of the school holidays and surrounding weekends highlighted. She explained that those were all of the days that Cohen would be available to have visitation with Troy. According to this calendar, Cohen would have approximately 45 days during the school year that he could spend with Troy, not including travel time, plus 12 weeks during the summer. Brekk testified that she would be willing to split Troy's travel expenses and accommodate his visitations with the children in Utah.

Brekk believed her financial circumstances would be greatly improved if she were permitted to relocate to St. George. Currently, Brekk was reliant on financial support from her [22 Neb.App. 339] father in the amount of $25,000 to $30,000 per year, as well as public assistance for food and medical care for herself and the children. Relocating to St. George would allow her to earn a substantially higher wage while having access to rent-free housing and free daycare for the children.

Troy admitted that he had not made any attempts to obtain employment in St. George or the surrounding areas. He testified that he did not want to live in St. George, because it is a " small town" in which Brekk's father is " well known," and that he believed his career opportunities would be limited there. Additionally, Troy was not eligible to practice law in ...

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