Andrew J. Olson, appellee.
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.
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.
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.
__:__. 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
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
Child Custody. When both parents are found
to be fit, the inquiry for the court is the best interests of
Neb.App. 870] 7. __ . The paramount consideration in
determining child custody is the best interests of the
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.
. 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.
.In child custody cases where the minor child's
preference was given significant consideration, the child was
usually over 10 years of age.
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.
.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
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
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.
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.
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.
. 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.
from the District Court for Polk County: Rachel A. Daugherty,
M. Rodell for appellant.
Steffanie J. Garner Kotik for appellee.
Chief Judge, and Pirtle and Welch, Judges.
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.
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.
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.
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.
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.
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."
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."
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.
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."
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.
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 ...