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Olson v. Olson

Court of Appeals of Nebraska

December 10, 2019

Andrew J. Olson, appellee.
v.
Kirsti M. Olson. APPELLANT.

          1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that 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: 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.

         4. __:__. Child custody 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.

         5. Divorce: Child Custody. When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child's parents, child custody is determined by parental fitness and the child's best interests.

         6. Child Custody. When both parents are found to be fit, the inquiry for the court is the best interests of the children.

          [27 Neb.App. 870] 7. __ . The paramount consideration in determining child custody is the best interests of the children.

         8. __. Neb. Rev. Stat. § 43-2923 (Reissue 2016) of Nebraska's Parenting Act sets forth a nonexhaustive list of factors to be considered in determining the best interests of a child in regard to custody.

         9. __ . The best interests factors of Neb. Rev. Stat. § 43-2923 (Reissue 2016) include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; credible evidence of abuse inflicted on any family or household member; and credible evidence of child abuse or neglect or domestic intimate partner abuse.

         10. __ . While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration.

         11. __ .In child custody cases where the minor child's preference was given significant consideration, the child was usually over 10 years of age.

         12.__. In addition to the "best interests" factors listed in Neb. Rev. Stat. § 43-2923 (Reissue 2016), a court making a child custody determination may consider matters such as the moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and the parental capacity to provide physical care and satisfy the educational needs of the child.

         13. __ .In child custody cases, the preference of a mature, responsible, intelligent minor child regarding his or her custody should be given consideration, but should not be controlling.

         14. Evidence: Appeal and Error. When evidence is in conflict, 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.

         15. Child Custody: Proof. Generally, before a court will permit the removal of a minor child from the jurisdiction, the custodial parent must satisfy the court that there is a legitimate reason for leaving the state and that it is in the minor child's best interests to continue to live with that parent.

         16. Child Custody: Visitation. In determining whether removal to another jurisdiction is in the children's best interests, the trial court evaluates three considerations: (1) each parent's motives for seeking or opposing [27 Neb.App. 871] the move, (2) the potential that the move holds for enhancing the quality of life for the children and the custodial parent, and (3) the impact such a move will have on contact between the children and the noncustodial parent.

         17. Child Custody. Removal jurisprudence has been applied most frequently when a custodial parent requests permission to remove a child from the state and custody has already been established.

         18. __ . In determining the potential that removal to another jurisdiction holds for enhancing the quality of life of the children and the custodial parent, a court should evaluate 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 custodial 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 parents; 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.

          Appeal from the District Court for Polk County: Rachel A. Daugherty, Judge.

          Eddy M. Rodell for appellant.

          Steffanie J. Garner Kotik for appellee.

          Moore, Chief Judge, and Pirtle and Welch, Judges.

          PIRTLE, JUDGE.

         I. INTRODUCTION

         Kirsti M. Olson appeals from the order of the district court for Polk County entered on November 26, 2018. The order dissolved her marriage to Andrew J. Olson and awarded the parties joint legal custody of their minor child, Lukas Olson. The court awarded Andrew physical custody of Lukas and granted him permission to remove Lukas from Nebraska to Minnesota.[27 Neb.App. 872] For the reasons that follow, we affirm in part, and in part reverse and vacate.

         II. BACKGROUND

         Kirsti and Andrew married in April 2003 in Minneapolis, Minnesota, and later separated in 2007 or 2008 (we note there was inconsistent testimony as to the precise year). The parties had one child by marriage, Lukas, who was born in 2004. Soon after the parties separated, Kirsti moved back to Nebraska with Lukas, who was then almost 4 years old. Throughout the separation, Lukas resided with Kirsti in Nebraska, with her and Andrew attempting to work out summer and holiday visits for Lukas in Minnesota with Andrew.

         Andrew filed a complaint for dissolution of the parties' marriage in the district court for Polk County in August 2017. The complaint requested dissolution of marriage, division of property, and custody of Lukas. At the time of the complaint, Andrew had continued to reside in Minnesota and no prior custody determination had been made. While the complaint did not specifically state such, Andrew also sought to remove Lukas from the State of Nebraska. In September 2017, Kirsti filed an answer and counterclaim seeking both temporary and permanent custody of Lukas, child support, and alimony. The matter was tried before the district court on November 20, 2018.

         At trial, because Kirsti was self-represented, the minor child, Lukas, then 14 years old, testified in chambers with only the judge and the court-appointed guardian ad litem present. Lukas testified that he had been attending middle school in Lincoln, Nebraska, since the second half of the previous school year and was previously involved in cross country, track, and soccer until he stopped due to foot injuries. Lukas further testified that he usually earned grades of A's and B's in school. Prior to attending middle school in Lincoln, Lukas attended elementary school in Osceola, Nebraska; was temporarily homeschooled by Kirsti until near the end of his fifth [27 Neb.App. 873] grade year; and then remained in public school while living in Osceola.

         Lukas previously lived with his mother and grandparents but later moved with Kirsti to his uncle's home in Columbus. Nebraska, when he was 13 years old, where he briefly attended seventh grade. He testified that his mother had been unemployed and staying home because she was "sick most of the time" before she saved up enough money for an apartment and found a job. At that point, Kirsti and Lukas moved to Lincoln where they remained up until trial.

         Lukas testified that he lived with his younger half brother (who is not Andrew's biological son) and that the two would "fight a lot," but he would often let him into his room "so that he [could] watch videos on YouTube using [Lukas'] hot spot." Lukas noted that while living with his mother, he did not have internet, which made it difficult for him to do his homework. Lukas said that he would often call his father, Andrew, in order to get help with his homework and that Andrew provided him with a cell phone and "hot spot." Lukas had his own room at his mother's home, and he said that he would likewise have his own bedroom at his father's house and that there would "probably be more space there."

         Lukas testified that when he stayed at his father's house, it was the two of them and his father's fiance, Carla Perdew (Carlie); occasionally, one of Carlie's children from a previous marriage would also be there. At his father's house, Lukas played games, ate out often, and visited his grandparents and cousins whom he did not see often. Lukas testified that he had several family members in Nebraska, including two uncles, cousins, and his maternal grandparents, whom he "[got] along with . . . great."

         Lukas further testified that both his parents had spoken negatively about each other, but he more frequently heard negative comments from his mother. He noted that this made him "feel really bad for [his] dad and just [made him] feel really uncomfortable." He also testified that he frequently [27 Neb.App. 874] called his father on his cell phone and that sometimes when he got mad at his mother, she would take his cell phone away to prevent him from talking poorly about her to his father. On one occasion, Lukas overheard a discussion about a previous conversation where his mother threatened his father that she would not bring Lukas to visit without receiving money from him for travel expenses for her, Lukas, and Lukas' younger half brother.

         When specifically asked if he had an opinion on where he wished to live, Lukas testified that he would like to live with his father during the school year and visit his mother on holidays and during the summer. He noted that he thought his father could "support [him] just a little bit better than Mom can," had a more stable income, and did not yell at him. Lukas then stated that he thought living with his mother was "hazardous" because she was a "hoarder" and the home was dirty with clutter and animal waste. He testified that the cats had urinated on his mattress, on his clothes, and in his closet, and that he often could still smell it. On one occasion, Lukas went to school and when another student mentioned a smell, Lukas smelled his coat and discovered there was cat urine on it. Lukas testified that the environment at his father's house was "[v]ery clean" and that he was not nervous about switching schools because he had "already done it like two times."

         Andrew testified that he had resided in Minnesota since he was 17 and that he remained there throughout his entire marriage to Kirsti. Andrew testified that during his marriage to Kirsti, she gave birth to two children, but that only Lukas was his biological son. Around 2008, Kirsti and Andrew separated but remained legally married. Andrew testified that he was employed by the Federal Reserve Bank of Minneapolis where he had worked in technical support for the last 7 years. He worked overnights Thursday through Sunday, and most of his work was done from home with one required office visit approximately every 3 weeks. Andrew testified that despite his work schedule, he would nevertheless be available [27 Neb.App. 875] to Lukas in the evenings if granted custody. Andrew's pay was between $23 and $24 per hour, and he worked 40 hours per week.

         Andrew testified that he provided health insurance for Lukas, that he voluntarily provided financial support to Kirsti for Lukas, that he and his parents had paid for most of Lukas:involvement in extracurricular activities, and that he and ...


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