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Kashyap v. Kashyap

Court of Appeals of Nebraska

November 6, 2018

Samantha L. Kashyap, appellant.
v.
Shaan S. Kashyap, appellee.

         1. Divorce: Appeal and Error.

         In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.

         2. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error.

         In actions for dissolution of marriage, an appellate court reviews the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees de novo on the record to determine whether there has been an abuse of discretion.

         3. Judgments: Words and Phrases.

         An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         4. Child Custody: Appeal and Error.

         In child custody cases, where the credible evidence is in conflict on a material issue of fact, the 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.

         When deciding custody issues, the court's paramount concern is the child's best interests.

         6. __ . In determining the best interests of a child in a custody determinion, a court must consider pertinent factors, such as the moral fitness of the child's parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and parental capacity to provide physical care and satisfy educational needs of the child.

         [26 Neb.App. 512] 7. __. The fact that one parent might interfere with the other's relationship with the child is a factor the trial court may consider in granting custody, but it is not a determinative factor.

         8. __ .A court must determine that joint custody (legal or physical) is in a minor child's best interests regardless of any parental agreement or consent.

         9. __. 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.

         10. 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 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 reasonable visitation.

         11. Child Custody.

         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 child, a court should consider the following factors: (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 move 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.

         12. __ . 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 factors. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted.

         13. Child Custody: Visitation.

         Consideration of the impact of removal of children to another jurisdiction on the noncustodial parent's visitation focuses on the ability of the noncustodial parent to maintain a meaningful parent-child relationship.

          [26 Neb.App. 513] Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for appellant.

          Kelly T. Shattuck, of Vacanti Shattuck, for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          BISHOP, JUDGE.

         I. INTRODUCTION

         The Douglas County District Court dissolved the marriage between Samantha L. Kashyap and Shaan S. Kashyap. Although Samantha was initially granted the temporary care, custody, and control of the parties' minor child, and the parties subsequently agreed to joint legal custody in a mediated partial parenting plan, the district court ultimately awarded the legal and physical custody of the child to Shaan. In doing so, the district court expressed concern about Samantha's interference with Shaan's parenting time, along with other issues. The district court also granted Shaan's request to remove the child from Nebraska to Arizona, where Shaan was stationed in the military. Samantha was ordered to pay child support. Samantha appeals, challenging the district court's decision on custody, removal, and child support. We affirm.

         II. BACKGROUND

         The parties were married on February 8, 2012, in Omaha, Nebraska, and their daughter, Liliana Kashyap (Lily), was born in August 2013. (We note that the parties' testimony suggests the marriage was in 2013, but documents in the transcript indicate otherwise. Also, the parties' testimony conflicts with documents in the transcript regarding Lily's birth year being 2012 or 2013. Therefore, we have relied on the dates provided in the decree dissolving the parties' marriage.) In August 2015, Shaan, a staff sergeant in the U.S. Air Force, was stationed in England when Samantha decided to leave England [26 Neb.App. 514] and return to Omaha, taking Lily with her. Samantha then moved from Omaha to an apartment in Ashland, Nebraska, in February or March 2016. Samantha filed a complaint for dissolution of marriage on June 23 in the Saunders County District Court; Shaan filed an answer and counterclaim shortly thereafter, and it indicated he was still stationed in England. He requested "large blocks" of parenting time, since Lily was not yet of school age.

         An order filed on August 8, 2016, placed temporary custody with Samantha and granted Shaan "FaceTime" with Lily three times per week. Any other parenting time was to be by agreement when Shaan was in the United States. Shaan was ordered to pay $521 per month in temporary child support commencing August 1, and the parties were ordered to equally share daycare costs. The divorce action was transferred to the Douglas County District Court in December, because Samantha moved from Ashland back to Omaha in September.

         On February 17, 2017, Shaan filed a motion for further temporary orders. He claimed that Samantha had two other children with different fathers and had lost custody "due to her instability and inability to cooperate." He stated that he had not been allowed to exercise parenting time with Lily, that Samantha refused to communicate in any meaningful way, and that she had denied him "all access" to Lily.

         A hearing took place on March 8, 2017, although the order setting forth the court's orally pronounced decision was not formally filed until July 10. The court awarded Shaan parenting time with Lily while he was in Omaha from March 8 to 14. The March 8 parenting time was to take place from noon until 8 p.m., and the parties were to meet at the "Omaha Zoo"; Samantha was permitted to be present for this parenting time. The parties were ordered to mediate a parenting plan, including a parenting schedule for the upcoming summer, since Shaan would be at a military base in Arizona by May. The parties were ordered to exchange and keep current their addresses and contact information.

         [26 Neb.App. 515] The next day, March 9, 2017, Shaan filed a "Motion to Compel Parental Visits." It indicated that based on the parenting schedule set out by the court at the hearing on March 8, the parties were to have met at the zoo for Shaan's parenting time with Lily. However, Samantha sent a text message claiming an emergency and altered the meeting time and place to 4:30 p.m. at a shopping mall. The motion alleged that Samantha showed up with a boyfriend (and his child) and that they stayed until only 7:15 p.m., despite the court's order that parenting time was to last until 8 p.m. Shaan alleged he had been in town nearly a week and was refused parenting time until the court-ordered March 8 time, which Samantha altered. Shaan requested an order compelling Samantha to abide by the court's terms as set out at the March 8 hearing. A hearing took place on March 10. When the court asked Samantha why she had not complied with its order, Samantha replied she had to get her medication and "needed the forms filled out on base . . . because our ID's expired" and so she had to get that done. She also claimed to have "female issues" that necessitated her returning home. After confirming what the parenting time arrangements were going to be, the court advised the parties, "When I issue an order, I expect the order to be complied with," and "[i]f there's a problem, then the parties all need to know what the problem is and they have to resolve it mutually." The court further cautioned that it would "look and see how the parties act during this period of time" because it helps the court "make a good decision as to what's in the best interest of the child long term."

         A mediated partial parenting plan was filed May 15, 2017. The parties agreed to joint legal custody and holiday parenting time, but could not agree on physical custody or regular parenting time.

         Trial took place on July 18, 2017, and the district court orally pronounced its decision the next day. A decree dissolving the marriage was entered July 26; it awarded legal and physical custody of Lily to Shaan, granted Shaan's request to remove Lily to Arizona, and ordered Samantha to pay child [26 Neb.App. 516] support. The evidence from trial and the court's findings will be set forth as relevant below.

         III. ASSIGNMENTS OF ERROR

         Samantha assigns that the district court abused its discretion by (1) granting Shaan sole legal and physical custody of the parties' minor child, (2) granting Shaan permission to remove the child from Nebraska to Arizona, and (3) ordering Samantha to pay child support.

         IV. STANDARD OF REVIEW

         In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id.

         An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

         In child custody cases, where the credible evidence is in conflict on a material issue of fact, the 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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

         V ANALYSIS

         1. ...


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