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Boyer v. Boyer

Court of Appeals of Nebraska

January 17, 2017

Jason Boyer, appellant,
v.
Lauren Boyer, appellee.

         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 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. ___ . Remarriage is a commonly found legitimate reason for removal of a child from the state.

         5. ___ . Absent evidence of an ulterior motive, a custodial parent's desire to live with his or her current spouse, who is located outside of the custodial jurisdiction, is a legitimate reason to remove the minor child.

         6. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         7. Child Custody: Visitation. In determining whether removal to another jurisdiction is in the 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 [24 Neb.App. 435] 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. ___ . 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 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; (8) the likelihood that allowing or denying the removal would antagonize hostilities between the two parties; and (9) the living conditions and employment opportunities for the custodial parent because the best interests of the child are interwoven with the well-being of the custodial parent.

         10. ___ . The list of factors to be considered in determining the potential that the 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. ___ . The existence of educational advantages factor receives little or no weight when the custodial parent fails to prove that the new schools are superior.

         12. 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.

         13. 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.

         Appeal from the District Court for Sarpy County: David K. Arterburn, Judge. Affirmed.

          Aimee S. Melton and A. Bree Robbins, of Reagan, Melton & Delaney, L.L.R, for appellant.

          Robin L. Binning, of Binning & Plambeck, for appellee.

         [24 Neb.App. 436] Moore, Chief Judge, and Pirtle, Judge, and McCormack, Retired Justice.

          Pirtle, Judge.

         I. INTRODUCTION

         Jason Boyer appeals from an order of the district court for Sarpy County which granted Lauren Boyer's request to remove the parties' minor child from Nebraska to Alaska. We find that Lauren had a legitimate reason to request removal and find, upon our de novo review, that she sufficiently demonstrated removal would be in the child's best interests. Accordingly, we affirm the district court's order.

         II. BACKGROUND

         The parties met in Montana in 2004. Jason was a member of the U.S. Air Force at the time. The parties married in November 2006 in Nebraska, and they had one child together, Micah Boyer, who was born in 2010. During their relationship, they moved frequently due to Jason's military service. The parties separated around February 2011. At that time, they were living in California. Following the separation, Lauren and Micah moved to Bellevue, Nebraska, where Lauren's parents were living due to her father's military service.

         Jason filed for divorce in California, and a divorce decree was entered on April 25, 2013. Lauren was awarded physical custody of Micah, and the parties were awarded joint legal custody. Lauren was allowed to stay in Nebraska with Micah. Jason continued to live in California due to his military service until he was honorably discharged in August 2014. He moved to Nebraska in September 2014 to be closer to Micah.

         Between February 2011 and September 2014, Jason made multiple trips to Nebraska to visit Micah. Jason also maintained contact with Micah through telephone and "Skype" conversations. Upon moving to Nebraska, Jason began spending time with Micah on a frequent basis.

         After moving to Nebraska, Jason enrolled in a bachelor's degree program, which he completed, and he also worked [24 Neb.App. 437] part time. At the time of trial in January 2016, he had been accepted into a master's degree program in security management that was set to start the month after trial.

         When Lauren first moved to Nebraska with Micah, they lived with Lauren's parents for about 6 months and then moved into a two-bedroom apartment. At the time of trial, they were living with Lauren's parents again, because Lauren had given up her apartment in anticipation of her move out of state.

         After moving to Nebraska, Lauren went to nursing school, and in August 2014, she became a licensed practical nurse (LPN). She was employed as a nursing supervisor at a long-term care facility, where she had worked various shifts.

         In the summer of 2014, Lauren met her current husband, Collin Stone, on a dating Web site. They began communicating with each other by telephone and e-mail, and she learned early on that Collin lived in Alaska. After about a year of communicating with him, Collin came to Nebraska in June 2015, and she met him in person for the first time. Micah met Collin as well. Lauren and Collin next saw each other in July, when they met each other in Montana. Micah was not present on this trip. During this visit, Lauren and Collin became engaged. They were married in August, after Jason filed this action. Lauren had never been to Alaska until August or September, after her marriage to Collin. The first time Micah went to Alaska was for Christmas. At trial, Lauren testified that three home pregnancy tests had indicated she was pregnant, although she had not yet been to a doctor.

         On August 5, 2015, Jason filed an application to register the parties' California dissolution order in Nebraska. He also filed a complaint for modification alleging that material changes in circumstances had occurred that warranted a modification to the decree. The alleged changes were that Jason had moved to Nebraska to be closer to Micah; that the parties mediated a parenting plan, and Jason had been actively involved in Micah's life; that Lauren told Jason that she was getting married, moving to Alaska, and taking Micah with her; that such move would substantially impact Jason's relationship with Micah; and that the move to Alaska is contrary to Micah's best interests. He requested that the decree be modified to order Lauren to stay in Nebraska with Micah or, in the alternative, to order that Micah stay in Nebraska. If Lauren chooses to leave Nebraska, Jason asked that custody be awarded to him. Jason also requested an increase in the amount of his visitations previously ordered.

         Lauren filed an answer and counterclaim on August 13, 2015. In her counterclaim, she alleged that material changes in circumstances had occurred to warrant modification of the decree, in that joint legal custody was no longer in Micah's best interests, that Lauren is remarried and plans to relocate to Alaska, that it was in Micah's best interests to grant Lauren permission to remove Micah from Nebraska, and that Lauren has been responsible for providing the daily care and the financial support for Micah since the decree was entered. Lauren requested that the court award her legal and physical custody of Micah, subject to reasonable parenting time by Jason, and grant her permission to remove Micah from Nebraska to Alaska.

         Following trial on Jason's complaint for modification and Lauren's counterclaim for modification, the trial court found that Lauren had met her burden of proof as to removal and ...


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