849 N.W.2d 551
Neb. Ct. App.2014Background
- Ember Schrag (mother) and Andrew Spear (father) are unmarried parents of Lillian (b. 2007); initial paternity order (2009) awarded primary physical custody to Ember with structured parenting time for Andrew and child support obligations.
- Ember moved from Nebraska to Iowa in 2011 with prior court permission (2012 parenting plan) and later, after separating/divorcing, moved unilaterally with Lillian to New York City in August 2012 and lived with Robert Bannister.
- Andrew filed to modify custody shortly after learning of the New York move; trial occurred February 11, 2013. District court (Feb. 27, 2013) denied Ember’s removal request, awarded primary physical custody to Andrew, lifted supervised-visitation restriction on Ember’s adoptive mother (Chesley), and recalculated child support using 2009 earning figures.
- On appeal, the Nebraska Court of Appeals reviewed custody modification, denial of relocation, lifting of Chesley’s supervised visitation, and child support calculations.
- The appellate court reversed the custody modification and the denial of removal, affirmed lifting the visitation restriction, and affirmed the child support calculation for the period Lillian was with Andrew, then remanded with directions (including restoring custody to Ember and authorizing the New York move while directing parenting-time/transportation arrangements).
Issues
| Issue | Plaintiff's Argument (Ember) | Defendant's Argument (Andrew) | Held |
|---|---|---|---|
| Whether trial court abused discretion by modifying primary physical custody | No material change in circumstances since prior order; change not in child’s best interests | Ember’s unilateral move and recent instability justify change; Andrew offers more stable environment | Reversed — custody modification was an abuse of discretion; custody restored to Ember |
| Whether district court properly denied Ember’s application to remove child to New York | Move was for legitimate reasons (music career, better schooling, no housing in Iowa); move benefits child; Ember offered to pay transport | Move not legitimate or in child’s best interests; move impairs noncustodial parent’s relationship | Reversed — removal permitted; court of appeals finds legitimate reason and that removal is in child’s best interests; remanded to revise parenting plan and require Ember pay transport costs |
| Whether supervised-visitation restriction for Chesley should be continued | Restriction necessary due to past estrangement/concerns | Andrew argued Chesley has been supervised and evidence supports lifting restriction | Affirmed — trial court did not abuse discretion in vacating supervised-contact restriction |
| Whether child support may be calculated using Ember’s 2009 earnings (earning capacity) while she had no present income | 2009 earnings do not reflect current income; court erred in attributing prior earning capacity | Earning capacity may be imputed where parent can realize it by reasonable efforts; Ember voluntarily chose to stay home | Affirmed as to period child was with Andrew — imputation to 2009 earning capacity was not an abuse; remand to terminate Ember’s support obligation once custody restored and reinstate Andrew’s obligation going forward |
Key Cases Cited
- Watkins v. Watkins, 285 Neb. 693 (discussing de novo review and abuse-of-discretion standard for custody)
- Pearson v. Pearson, 285 Neb. 686 (standard for modification of child support)
- Heistand v. Heistand, 267 Neb. 300 (definition of material change in custody context)
- Hoschar v. Hoschar, 220 Neb. 913 (custody should not be changed without showing custodial parent unfit or best interests require it)
- Kennedy v. Kennedy, 221 Neb. 724 (cohabitation or parental sexual conduct not dispositive absent harm to child)
- Smith-Helstrom v. Yonker, 249 Neb. 449 (moral fitness/cohabitation considered but given limited weight absent adverse effect)
- McLaughlin v. McLaughlin, 264 Neb. 232 (two-step removal test: legitimate reason to leave state and best interests analysis)
- Jack v. Clinton, 259 Neb. 198 (employment opportunity/advancement can be legitimate reason to relocate)
- Incontro v. Jacobs, 277 Neb. 275 (parent’s voluntary dissipation of assets not grounds to reduce child support if it would impair child’s needs)
- Daniels v. Maldonado-Morin, 288 Neb. 240 (parental mobility and custody; custody not an immobilizing sentence)