Child Custody: Visitation: Child Support: Appeal and
Error. Child custody, visitation, and child support
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.
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.
Contempt: Appeal and Error. In a civil
contempt proceeding where a party seeks remedial relief for
an alleged violation of a court order, an appellate court
employs a three-part standard of review in which the trial
court's (1) resolution of issues of law is reviewed de
novo, (2) factual findings are reviewed for clear error, and
(3) determinations of whether a party is in contempt and of
the sanction to be imposed are reviewed for abuse of
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.
Both the desire to form a new family unit through remarriage
and the career advancement of the parent have been found to
constitute legitimate reasons for leaving the state.
Child Custody: Visitation.
The court examines three broad considerations in determining
whether removal to another jurisdiction is in a [26 Neb.App.
967] child's best interests: (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
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 a removal in an effort to frustrate or
manipulate the other party.
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 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.
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.
Child Custody: Visitation. Consideration of
the impact of removal of children to another jurisdiction on
the contact between the children and the noncustodial parent,
when viewed in light of reasonable visitation arrangements,
focuses on the ability of the court to fashion a reasonable
visitation schedule that will allow the noncustodial parent
to maintain a meaningful parent-child relationship.
Generally, a reasonable visitation schedule is one that
provides a satisfactory basis for preserving and fostering a
child's relationship with the noncustodial parent.
Modification of Decree: Child Custody:
Notice. A trial court has no authority to modify a
prior custody order without notice to the parties and an
opportunity to be heard.
Modification of Decree: Child Support. Among
the factors to be considered when contemplating a
modification of child support are the changes in the
financial position of the parent obligated to pay support,
[26 Neb.App. 968] the needs of the children for whom support
is paid, the good or bad faith motive of the obligated parent
in sustaining a reduction in income, and whether the change
is temporary or permanent.
Jurisdiction: Appeal and Error.
Notwithstanding whether the parties raise the issue of
jurisdiction, an appellate court has a duty to raise and
determine the issue of jurisdiction sua sponte.
Jurisdiction: Final Orders: Appeal and
Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken.
Final Orders. Final orders must be signed by
the judge as well as file stamped and dated by the clerk.
Jurisdiction: Judgments: Appeal and Error.
Neb. Rev. Stat. § 25-1912(2) (Reissue 2016) creates what
the appellate courts have called potential jurisdiction or
springing jurisdiction, wherein an announced decision creates
a situation where the appellate court potentially has
jurisdiction that will spring into existence when the
announced decision is properly rendered and entered.
Pleadings: Judgments. If a postjudgment
motion seeks a substantive alteration of the judgment-as
opposed to the correction of clerical errors or relief wholly
collateral to the judgment-a court may treat the motion as
one to alter or amend the judgment.
from the District Court for Lancaster County: Lori A. Maret,
Judge. Affirmed in part, affirmed in part as modified,
reversed in part, and in part dismissed.
R. Little, of Ballew Hazen, PC, L.L.O., for appellant.
appearance for appellee.
Pirtle, Bishop, and Arterburn, Judges. Arterburn, Judge.
Peery (Preston) appeals from an order of the district court
for Lancaster County which granted the request of Ashley
Welch (Ashley) to remove the parties' minor child, Payton
P., from Nebraska to Florida. On appeal, Preston challenges
the district court's decision to allow Ashley to move
Payton to Florida. In addition, he challenges the court's
decisions to [26 Neb.App. 969] grant Ashley sole legal
custody of Payton, to not modify the prior child support
order, and to not find Ashley in contempt of a court order.
For the reasons set forth herein, we affirm the decision of
the district court with regard to removal of Payton to
Florida and child support. However, we reverse the
court's decision regarding legal custody of Payton and we
modify the amount of parenting time awarded to Preston in the
parenting plan. We do not have jurisdiction to consider
Preston's contempt action against Ashley.
and Ashley are the biological parents of Payton, a daughter
born out of wedlock in May 2008. In April 2014, when Payton
was almost 6 years old, a hearing was held where the district
court approved a stipulated paternity order and parenting
plan. Pursuant to the parties' joint stipulation and
parenting plan, they shared joint legal custody of Payton.
Ashley was awarded sole physical custody of Payton, and
Preston was awarded liberal parenting time. Such parenting
time included every other weekend from 5 p.m. on Thursday to
Monday morning and every Tuesday from 5 p.m. to Wednesday
morning. In addition, the parties divided up Payton's
summer vacation from school such that Payton resided with
Preston every other week for the first 10 weeks of the
vacation. As a part of the parenting plan, Preston agreed to
pay child support to Ashley in the amount of $150 per month.
March 30, 2017, when Payton was almost 9 years old, Ashley
filed a complaint to modify the paternity order and parenting
plan. In her complaint, Ashley requested that she be
permitted to move to Florida with Payton. Ashley asserted
that she had a legitimate reason for wanting to move and that
the move would be in Payton's best interests. On April
28, Preston filed an answer to Ashley's complaint to
modify. He opposed Ashley's request to move to Florida
to the hearing on Ashley's complaint to modify, Preston
filed a motion asking the court to find Ashley in [26
Neb.App. 970] contempt. Preston alleged that Ashley had
already moved to Florida with Payton in violation of the
original paternity order and parenting plan. Preston
indicated that he had evidence that Ashley had registered
Payton for school in Florida. The district court entered an
ex parte order requiring Ashley to return with Payton to
Nebraska. A hearing was scheduled to address Preston's
motion for contempt for August 7, 2017.
hearing on the motion for contempt, Ashley testified that she
had returned to Nebraska from Florida the week before so that
Payton could start school on August 14, 2017. She explained
that she and Payton had not yet moved to Florida, but that
they had spent the summer there, visiting Ashley's father
and spending time with Ashley's fiance, Justin Abbott
(Justin), who had already moved to Florida to accept a job.
Ashley testified that she always intended for Payton to
return to Nebraska to start school in August. At the time of
the contempt hearing, Ashley and Payton were residing with
Ashley's sister, because Ashley's previous home in
Nebraska was being sold by Ashley's parents, who owned
explained that her decision to spend the summer in Florida
with Payton did not affect Preston's parenting time
because Preston was otherwise unable to be present for visits
as he had been incarcerated since January 4, 2017. Ashley
testified that Preston was aware they were spending time in
the hearing, the district court found, "Based on the
evidence presented here today, I do not find by clear and
convincing evidence that [Ashley] is in willful contempt of
the Court . . . ." The court dismissed Preston's
hearing was held on Ashley's complaint to modify on
November 1, 2017. At the hearing, both Ashley and Preston
testified. In addition, Ashley's father testified on her
behalf and Preston's father testified on his behalf.
modification hearing, Ashley testified that she had moved to
Florida in order to accept an employment opportunity which
began on September 5, 2017. Payton was currently [26 Neb.App.
971] residing in Nebraska with Ashley's sister and
attending a "good" school nearby. Ashley indicated
that Payton is excelling at her current school. However,
Ashley testified that the school Payton would attend in
Florida is also a good school with experienced teachers, many
extracurricular activities, and relatively new facilities.
Ashley testified she has returned to Nebraska to see Payton
one time per month since she moved to Florida.
Florida, Ashley is living at her father's home with her
father, her stepmother, and Justin. Also living in the home
are the two children Ashley and Justin share. At the time of
the hearing, the oldest of these children was 4 years old and
the youngest of the children was less than 1 month old.
Ashley testified that she and Justin had been in a
relationship "off and on" for nearly 6 years. They
planned to get married sometime in 2018. Ashley admitted that
she and Justin had been involved in an incident of domestic
violence in 2013. She explained that both she and Justin had
been drinking alcohol and had argued. Justin became angry and
hit her with an open hand across her face. Ashley testified
that Payton was not present at the time. Since that incident,
Justin has gone through counseling. Ashley testified that
"he doesn't have a temper anymore." She
described Justin as a good provider who enjoys spending time
with his family. In addition, Ashley testified that Payton
and Justin have a good relationship.
also testified that the house in Florida was appropriate for
Payton. The home was newly remodeled and was nicer than the
home where she and Payton had lived in Nebraska. The home
also included a great deal of outdoor space and had a number
of activities to engage in nearby. Ashley and Justin had an
arrangement with Ashley's father that they would not have
to pay rent, but would assist financially with some of the
utility payments. Ashley testified that eventually, she and
Justin planned to acquire their own house in Florida.
testified that she has been employed as a licensed practical
nurse for the past 10 years. Prior to moving to [26 Neb.App.
972] Florida, Ashley was employed at Madonna Rehabilitation
Hospital (Madonna) in Lincoln, Nebraska. As a part of her
job, Ashley typically worked night shifts and sometimes had
to work on weekends and on holidays. Her schedule changed
often, which made it difficult to parent her young children.
Ashley left her job at Madonna in May 2017, because she was
pregnant, Justin was making enough money to support the
family for a while, and she wanted to spend the summer in
Florida. She testified that she did look for other nursing
jobs in Nebraska, but did not find anything workable or
better than her job at Madonna.
accepted a new job in September 2017. She became the care
coordinator for a medical clinic in Florida. At the new job,
she works Monday through Friday and has "[f]lex-ible
hours." She does not have to work nights, weekends, or
holidays. In addition, she earns a slightly higher salary
(from $18.90 per hour at Madonna to $22 per hour at the
clinic in Florida). Ashley testified that the total economic
benefit for her and Justin to move to Florida is $16, 640 per