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Welch v. Peery

Court of Appeals of Nebraska

March 5, 2019

Ashley Welch, appellee,
Preston Peery, appellant.

         1. 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.

         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. 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 discretion.

         4. 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.

         5.__. 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.

         6. 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 visitation arrangements.

         7. 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.

         8.__. 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.

         9.__. 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.

         10. 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.

         11.__:__. Generally, a reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent.

         12. 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.

         13. 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.

         14. 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.

         15. 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.

         16. Final Orders. Final orders must be signed by the judge as well as file stamped and dated by the clerk.

         17. 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.

         18. 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.

          Appeal 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.

          Adam R. Little, of Ballew Hazen, PC, L.L.O., for appellant.

          No appearance for appellee.

          Pirtle, Bishop, and Arterburn, Judges. Arterburn, Judge.


         Preston 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.


         Preston 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.

         On 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 with Payton.

         Prior 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.

         At the 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 the home.

         Ashley 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 Florida.

         After 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 contempt action.

         A 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.

         At the 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.

         In 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.

         Ashley 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.

         Ashley 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.

         Ashley 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 year ...

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