Taylor-Couchman v. DeWitt-Couchman
29 Neb. Ct. App. 950
| Neb. Ct. App. | 2021Background:
- Parties married; child (Penny) born in Maryland in 2015; Ross (father) is active-duty Air Force and was stationed in California at time of trial; Jessica (mother) resided in Nebraska.
- After separation, temporary orders provided joint legal custody and alternating physical custody; Ross sought dissolution, sole physical custody, and permission for the child to live with him in California.
- Trial evidence included allegations of marital disputes, a harassment protection order (not domestic abuse), episodes suggesting poor judgment by Jessica (affair, leaving child with third parties, inconsistent disclosures), and Ross’s proof of stable housing, nearby schools, daycare, and continued Air Force employment.
- District court found Ross credible and Jessica not; awarded joint legal custody, primary physical custody to Ross allowing the child to reside in California, and ordered Jessica to pay child support (modified start date/expense percentages postdecree).
- Jessica appealed, arguing (inter alia) that the court erred in permitting removal, improperly considered her moral fitness, failed to account for Ross’s alleged abuse, and incorrectly ordered child support.
Issues:
| Issue | Plaintiff's Argument (Jessica) | Defendant's Argument (Ross) | Held |
|---|---|---|---|
| Whether Ross had a legitimate reason to leave Nebraska | Only military PCS form was presented; not enough to show legitimacy | Military orders required move; increased income and job stability support move | Court did not require separate legitimacy showing because Ross never lived in NE; factor not decisive here |
| Whether court erred in permitting removal to California | District court misweighed Farnsworth-type factors and wrongly allowed removal | Court properly weighed child best-interest factors (housing, schools, income, parenting) | Affirmed: district court considered relevant factors and did not abuse discretion |
| Whether court improperly factored Jessica’s moral character | Jessica argued extramarital affair alone is insufficient absent harm to child | Ross pointed to multiple instances of poor judgment affecting child’s well-being | Court permissibly considered Jessica’s "moral lapses" (deceit, leaving child with third parties, safety episodes) as relevant to best interests |
| Whether court failed to account for Ross’s alleged history of abuse | Jessica contended abuse allegations required negative weight against Ross | Ross argued investigations found no credible evidence; court heard witnesses and found him credible | Court considered abuse allegations and concluded Air Force investigation and record provided no credible evidence; trial court credibility finding entitled to deference |
| Whether ordering Jessica to pay child support was error | Contended support order flowed from improper removal ruling | Ross maintained support appropriate given custody award | Because custody award affirmed, child support order affirmed (with district court’s postdecree modifications) |
Key Cases Cited
- Farnsworth v. Farnsworth, 257 Neb. 242 (Neb. 1999) (articulates two-step removal test: legitimate reason to leave state, then best-interests factors for removal)
- State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1 (Neb. 2004) (Farnsworth not required for initial custody determinations when no prior custody order and parents live in different states)
- Kalkowski v. Kalkowski, 258 Neb. 1035 (Neb. 2000) (applies Farnsworth analysis in dissolution when custodial parent seeks to move child)
- State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409 (Neb. Ct. App. 2013) (when noncustodial parent seeks custody and removal, court must find material change then address removal)
- Olson v. Olson, 27 Neb. App. 869 (Neb. Ct. App. 2019) (Court of Appeals applied Farnsworth factors in a dissolution awarding custody to out-of-state parent; discussed necessity of removal analysis)