Taylor-Couchman v. DeWitt-Couchman
29 Neb. Ct. App. 950
| Neb. Ct. App. | 2021Background
- Ross (Air Force) and Jessica married; daughter Penelope born 2015; family moved among military stations; by dissolution proceedings Ross lived in California and Jessica lived in Nebraska with the child.
- Marital breakdown involved incidents (arguing, alcohol use by Jessica, protection-order proceedings later converted to a harassment order) and disputed credibility between the parents.
- Temporary orders provided joint legal custody and alternating physical parenting time; Ross later sought primary physical custody and to have the child live with him in California.
- At trial the district court found Ross credible, Jessica not credible, and awarded joint legal custody but primary physical custody to Ross in California; it ordered Jessica to pay child support (modified start date and expense shares later).
- Jessica appealed, challenging (inter alia) the court’s findings permitting removal, the court’s reliance on her moral lapses, the court’s treatment of Ross’s alleged abuse, and the child support order.
Issues
| Issue | Plaintiff's Argument (Jessica) | Defendant's Argument (Ross) | Held |
|---|---|---|---|
| Whether Ross had a "legitimate reason" to leave Nebraska | Court erred in finding Ross proved a legitimate reason to move to CA | Ross’s military orders required relocation | Court: no separate legitimacy inquiry required here because Ross never resided in Nebraska; factor not germane to the custody decision. |
| Whether court erred in permitting removal of child to CA | Removal was improper and improperly weighed | Move served child’s best interests (income, housing, schools, daycare) | Court: no abuse of discretion; best‑interests factors weighed for Ross and CA placement. |
| Whether court improperly considered Jessica’s moral character | Court should not have factored extracurricular moral lapses absent direct harm to child | Jessica’s decisions (alcohol use while driving, leaving child with unknown third parties, deceit) impacted child’s welfare | Court: consideration of moral lapses was appropriate; evidence showed concerning conduct affecting child’s well‑being. |
| Whether court failed to consider Ross’s alleged history of abuse | Court ignored credible abuse evidence in analysis | Air Force investigation and record showed no credible evidence of abuse; trial court credited Ross | Court: trial court considered abuse allegations, found no credible evidence, and its credibility choice is given weight on appeal. |
| Whether ordering Jessica to pay child support was erroneous | Child support order flowed from improper removal/custody decision | Support flows from award of physical custody to Ross | Court: because custody/removal affirmed, child support order upheld. |
Key Cases Cited
- Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999) (establishes two‑step removal framework: legitimate reason to move and whether move is in child’s best interests, and lists quality‑of‑life factors)
- State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409, 838 N.W.2d 351 (2013) (when noncustodial parent seeks custody and removal, court must find material change and best interests before analyzing removal)
- State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (Farnsworth analysis not required for initial custody determination where parents already live in different states)
- Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000) (applies full Farnsworth analysis in dissolution when custodial parent requests to move children)
- Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014) (initial custody award followed by remand for full removal analysis where parent moved child out of state before seeking custody)
- Olson v. Olson, 27 Neb. App. 869, 937 N.W.2d 260 (2019) (consideration of Farnsworth factors appropriate even where awarded parent never resided in Nebraska; court conducted full analysis)
- Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018) (applies full Farnsworth analysis when awarding custody to out‑of‑state parent in dissolution)
- Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009) (Nebraska removal jurisprudence does not apply to initial custody awards in paternity cases absent prior custody order)
- Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020) (standard of review: de novo on the record for family law matters; abuse‑of‑discretion standard described)
- Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015) (appellate courts may give weight to trial judge’s credibility determinations in custody disputes)