*1 of either party.” entirely part not smooth hearing shows at 870. record 622 N.W.2d 261 Neb. at Riggs, which the the manner in dissatisfied were both parties Furthermore, district exchanged. being were photographs on James’ at the hearing the parties and observed heard court record, the district motion, this we based on say, and cannot fees to attorney awarding in not its discretion abused court See id. James. of error remaining assignments also reviewed James’
We have of a to find the existence court’s failure the district regarding to amend of his motion its denial and arrangement joint custody record, our de novo review exceptions. Upon the bill of error are without merit. that these assignments we determine resulting fees on attorney appeal James Additionally, requests deter- Having amend the bill of exceptions. his motion to from the bill of of error assignment regarding James’ mined that merit, we find that James is not without likewise is exceptions fees. to attorney entitled
VI. CONCLUSION reasons, court mod- the order the district For the foregoing is affirmed in and part, part the decree of dissolution ifying reversed, consistent with and remanded for further proceedings addition, fees attorney filed a motion Cynthia this opinion. (rev. R. of to Neb. Ct. Prac. 9F incurred in this pursuant appeal motion and award fees 2001). Cynthia attorney this We grant $3,000 $463. sum of with costs in the together the amount of part part, reversed
Affirmed FOR PROCEEDINGS. REMANDED FURTHER J., on briefs. participating McCormack, appellant Vogel, cross-appellee, appellee cross-appellant. Vogel, N.W.2d 611 January Filed 2002. No. S-01-234. *2 P.C., for appellant. Colombo & Heavey,
Michael W. Heavey, Blount, Bertolini, Schroeder, & Schroeder Van A. appellee. Connolly, Gerrard, Stephan,
Hendry, C.J., Wright, McCormack, Miller-Lerman, JJ.
Miller-Lerman, J.
I. NATURE OF CASE cross-appeals, and Kimberly Vogel Bradley Vogel appeals, of for which mod- County from the order the district court Sarpy the custodial Kimberly, ified decree of dissolution. parties’ to remove granted par- parent, permission permanently children from to she could accom- Virginia ties’ Nebraska so that husband, her new Offutt Air who was transferred from Force pany Base in to court Nebraska D.C. The district denied Washington, order, In its for Bradley’s cross-petition change custody. children; district court also took legal custody pro- parties’ vided for annual transfer of of the children physical custody husband, between the in the event who is in parties Kimberly’s Force, overseas; the U.S. Air is transferred awarded visitation to to all travel Bradley; Kimberly rights pay expenses visitations; such for an alternate and visitation provided to take in the event and estab- Kimberly Bradley schedule effect miles of one at time in the lish residences within 50 another any remand, reverse and in part future. We affirm and part part, court. certain of the decision the district vacate portions II. STATEMENT OF FACTS and were married in Kimberly 1988 and were 25, divorced to a decree pursuant of dissolution entered July Brandon, 1997. Two children were bom during marriage, 30, 1989, Chelsea, bom 28, and April bom 1991. September Prior to the modification which rise proceedings give to this appeal, legal custody of the two chil- physical possession dren were to given to reasonable and liberal Kimberly, subject visitation by Bradley. to the dissolution of
Subsequent the parties’ marriage, Butler, a Kimberly began with Kent a master relationship sergeant in the U.S. Air Force. When their they began Butler relationship, was stationed at Offutt Air Force Base. Fourteen months into the D.C., Butler was transferred to relationship, a trans- Washington, fer which Butler resisted. Butler’s trans- unsuccessfully Despite fer, continued, and he and relationship were married Kimberly 21, 2000. April 22, 2000,
On March filed an to application modify dissolution, the decree of requesting permission permanently remove the children from Nebraska so that she and the children could move to Virginia to reside with Butler. On May Bradley answered, that removal was in denying the best interests of the children. Bradley for a cross-petitioned change him and an order directing child pay support. district court a ad chil- appointed guardian litem on behalf of the dren on 16. May trial,
Trial was held 2000. At both August evidence which their presented assert supported on removal respective positions testified custody. Kimberly that the children with her were got well along happy living with her. She testified to facts which illustrated her caregiving. and, She testified that she and Butler could a home good provide incomes, their could standard of by combining good provide for the children in living also testified that in Virginia. Kimberly visitation, addition court-ordered she and Butler expected *4 return to Nebraska to visit extended periodically that she that the children would see anticipated these Bradley occasions. testified that he had exercised Bradley visita- frequent tion with the children since the divorce and that he was actively testified that with such visitation. during
involved them brothers, children, their including his two his extended family, the children had in the Omaha area that and his lived parents testified family. Bradley with such extended close relationships Kimberly’s illustrated incidents which he asserts to certain this testimony. Kimberly caregiving. disputed improper into was also entered evi- The ad litem report guardian that The ad litem concluded her guardian report dence. have a reason for requesting Kimberly appeared legitimate does to be evi- any strong removal and that not appear “[t]here from the children should be removed their suggest dence to why into father’s care at this time.” The mother’s care and their placed ad noted in her that while Kimberly litem also guardian report had not voiced to her regarding Bradley, complaints Kimberly’s to the complaints regard quality multiple trial, ad testified at and in litem caregiving. guardian to a such complaints, guardian response question regarding litem that have objections might ad acknowledged Bradley’s struck me as angry.” been motivated and that by hostility “[h]e The district entered order October 2000. dis- court its Bradley’s trict court denied and dismissed for application and sustained change Kimberly’s application leave to children Nebraska to certain remove the from subject conditions, listed as under including following, paragraph of the court’s order:
A. The court over and continuing jurisdiction district retained children, assumed while legal custody ordering retain Kimberly possession subject Bradley’s right primary reasonable visitation. children
B. leave to remove the granted but could not remove the children to Virginia, permanently state other than or Nebraska or to a location outside Virginia United States without further order of the district court.
C. In the event Butler is ever transferred to a location outside location, the United States and elects to him at such join district then following court ordered would apply: would remain in the United States the children enrolled their then current keep school; schools were from until released *5 (2) of the children would then be transferred possession to a Bradley for of period year;
(3) of the children would then be possession transferred to for a of 1 Kimberly period year;
(4) of the children would possession then be transferred to for a Bradley of 1 period year;
(5) the of children would then returned possession be to Kimberly.
D. While the children were a residing visitation Virginia, included, alia, for schedule set Bradley was which inter “[t]he break, summer school for the first and last five except days thereof, each and year,” the chil- Kimberly pay dren’s travel expenses associated visitation.
E. In the event Bradley and establish Kimberly residences future, within 50 miles of one another at any time the then the 2, 2000, visitation schedule set forth in the October order would become ineffective and the visitation schedule set forth in the 23, 1998, district court’s prior order November would again become effective. 11, 2000,
On October moved for a new Kimberly trial chal- (1) the district lenging court’s assumption legal custody children, (2) the of the order which provision becomes effective on the condition that Butler is transferred overseas and she him, (3) elects to join of the portion visitation schedule which Bradley gives visitation for almost the entire summer break, (4) school and the provision all requiring Kimberly pay alternative, visitation-related travel In the expenses. Kimberly moved to enter judgment (1) the verdict notwithstanding delet- under ing which the district provision court assumes legal children, (2) custody which deleting provision becomes effective if Butler only is transferred and overseas she him, (3) elects to join modifying visitation schedule such would have visitation Bradley during the first half of the summer school break in even-numbered years during second half of the summer school break in odd-numbered years, (4) modifying provision relating visitation travel be for expenses provide travel responsible from Virginia Nebraska and that expenses for travel from Nebraska to responsible expenses Virginia. appealed motion. Kimberly’s overruled court district order, cross-appealed. OF ERROR III. ASSIGNMENTS erred district court that the her asserts in appeal from her placing the children custody (1) taking legal neither when the district court of the children legal unfit, an providing to be had been shown nor Bradley she in the take effect which would transfer of possession annual *6 to elects Kimberly and overseas Butler is transferred event that entire for almost the him, visitation (3) awarding Bradley join travel break, to all Kimberly (4) pay requiring school summer visitation, an (5) and establishing associated expenses Kimberly Bradley in the event schedule visitation alternate time another at any miles of one within 50 establish residences in the future. court that the district asserts
In his cross-appeal, him, to from (1) to failing change custody erred in from Nebraska children to remove the (2) permitting child to reasonable (3) support to failing compute to Virginia, him, denying Bradley right to be by Kimberly paid regarding witness stand to testify call the children to the their preferences. REVIEW
IV. STANDARD OF determinations, and visitation determina custody Child tions, the trial entrusted to the discretion of are matters initially record, court, the trial reviewed de novo on and although determination absent an abuse will be affirmed normally court’s Clinton, N.W.2d 328 discretion. Jack v. of that the reasons or (2000). A abuse of discretion requires judicial un untenable insofar as clearly of the trial court rulings and a result. Id. just a of a substantial right fairly deprive litigant
V. ANALYSIS
Appeal
1.
Children
(a) District Court
of
Assuming Legal Custody
discretion
claims that the district court abused its
the children without a
showing
of
by taking legal custody
she
unfit. Prior to these modification
proceed-
the district court had awarded
ings,
legal custody Kimberly.
2,2000, order,
In its October
the district court did not explain
its reasons for
of the
A review
legal custody
children.
assuming
trial,
of
of
the bill
shows that at
exceptions
district court
commented that
it was
take
of the chil-
going
legal custody
dren so that “the Uniform Child
Act
Custody [Jurisdiction]
(Reissue 1998)]
Rev. Stat.
43-1201 et
will not
seq.
[Neb.
§
and that “all further
children
apply”
involving these
proceedings
will take
in this court.”
place
Ensrud,
Ensrud
230 Neb.
(1988), this court found that to Neb. Rev. Stat. 42-364 pursuant § (Reissue 1998), a district court in certain may circumstances child, obtain and retain of legal a minor custody proceedings to dissolve a marriage, of the grant parent physical We child. stated in Ensrud that children, the best interests to cus- regard
“[w]hen clear, should, is not tody, the court may, place custody in the court....
“It is evident that when a court it finds necessary court, custody minor children in the place it does so because it is it doubtful that is full cognizant story relating the best interests of the children and of the pro- to one priety awarding custody an Such parties. *7 order is ordinarily temporary nature probationary and reserves in the the court to make further power sum- of mary disposition minor children when it becomes appar-
ent that their best interests it. require There has not been a final of determination fitness in regard to either That party. remains question open subject to determination after further notice and hearing.” 725, 433 Bartlett,
230
at
Neb.
N.W.2d at 196
Bartlett v.
(quoting
76,
(1975)).
193 Neb.
properly at 300. N.W.2d Neb. at was fit.” 244 either parent case, both neither found par- the district court the present either it unsure whether that was to be unfit nor indicated ents trial, “it’s stated that clear the district court was fit. At parent extent, some good both of these are parents parents that the bit desired about way leave a little to be extent they some do not read this com- with each other.” We interacting they’re as a or fitness ment to be of unfitness finding questionable ex The district court further under State rel. Reitz. required the effect of trial it had concerns regarding stated at that some children, the new may the fact that spouse removal “plus somewhere else where be or have an assignment transferred again.” back in here we’re going [be] court abused its discretion by We conclude that district of the children in the case. Our de custody present assuming legal not that either is unfit novo review of the record does reveal parent Instead, the record shows that the dis- of fitness. questionable of court assumed the children because it legal custody trict of further about the effect of removal or the possibility concerned moves which Butler’s by may employment. that that the court was concerned if any record indicates district further modifications should be modifications were such required, made it rather than a court in another Such con- by by jurisdiction. about not court’s cerns issues do district potential justify pres- of ent the children. See State ex rel. assumption legal custody We Ringer, portion therefore reverse of the dis- supra. Reitz trict court’s it order which assumed chil- legal custody and, dren reasons infra, remand with directions explained return the children to legal Kimberly.
(b) Conditional Orders Regarding Physical
Possession and Visitation district Kimberly claims court abused its discretion orders which would become effective by entering upon occurrence certain conditions. district Specifically, court (1) ordered new schedule for physical chil- possession dren in the Butler event is transferred overseas and Kimberly elects him and ordered a new join visitation schedule *8 establish residences within 50 the event Kimberly miles of one another. if looks to the future in an
We have stated that
a judgment
unknown,
it is a conditional judgment.
attempt
judge
Simons,
570,
(2001). A
Simons v.
261 Neb.
The contained in 2C the district provision paragraph 2, 2000, court’s October order concerns matters in the event Butler is transferred overseas and elects to join him, and the contained in 2É concerns vis- provision paragraph itation matters the event establish res- idences within 50 miles of one another. We conclude that such orders are conditional in that do not “perform praesenti” and become effective only upon certain future happening events which not occur. Whether such may may orders will ever become effective is speculative. of such impact poten- tial events on the children’s best interests and the properjudicial to the response events identified in the potential orders com- of are better plained assessed at the time of their occurrence. of in provisions complained 2C 2E paragraphs of the 2, 2000, district court’s order of October are void and severable from the valid Perreten, of the portion order. See Cross v. 776, (1999). N.W.2d 780 We therefore order such por- tions of the district court’s order vacated.
(c) Visitation Schedule and Travel Expenses claims that the Finally, Kimberly district court abused its dis- cretion entering certain orders visitation. regarding she Specifically, those objects portions October 2000, order visitation for giving Bradley almost the entire sum- mer school break and her to all costs of travel requiring pay associated visitation. visitation,
In her
summer
arguments regarding
cites
Farnsworth,
to Farnsworth v.
257 Neb.
a visitation visitation. asserts that “[a]nything weeks’ summer of discretion.” Brief for at appellant more constitutes an abuse However, Bondi, N.W.2d 11. in Bondi v. (1998), we affirmed a visitation schedule which non- gave 1 week after custodial a summer visitation parent commencing summer 1 week terminating of the break beginning before the conclusion of the summer break. neither nor did we state a Farnsworth Bondi certain mathemat- only reasonable, ical of could be amount visitation considered and we Instead, decline to do so now. the determination of reasonable- ness is be made on a basis. case-by-case
haveWe said that a reasonable visitation sched generally, ule is one that a basis for satisfactory provides preserving a child’s with the fostering noncustodial relationship parent. Farnsworth, case, Farnsworth v. Given the facts this supra. we conclude that the visitation schedule is reasonable and that the district court did not abuse discretion in setting its sum mer We visitation schedule. therefore affirm that portion district court’s order. 2, 2000,
Regarding challenged the October provisions order travel all associated requiring pay expenses visitation, with Kimberly again cites Farnsworth which the parties were ordered to travel split expenses for certain visita- tions and the noncustodial parent pay remaining associated with expenses visitations. Kimberly situation, argues that a removal the reduced visitation given with the noncustodial the custodial parent, parent bears typically economic greater burden supporting children and that it is unfair to further the entire economic burden of impose visita- tion on the parent. custodial Kimberly claims that the order travel on her was meant to imposing expenses the cus- “punish todial the one has parent being ‘who chosen to move these ” children’ and that the district court abused its discretion in such Brief for making order. at 13. appellant determinations, As with other visitation the matter of travel associated with visitation is expenses entrusted initially to the court, discretion the trial and although reviewed de novo on record, the trial court’s determination will normally affirmed absent an abuse of discretion. As the summer vis- schedule, itation neither Farnsworth nor other case sets an any immutable standard for the allocation of travel expenses, instead the determination of reasonableness is made on a case- basis. by-case
We have reviewed the note record and that there was evidence incomes of the and the district regarding respective parties, court could have concluded could reasonably more bear the of travel occasioned readily her expenses by removal of the children. Such a determination is not a punish- ment but an which is within arrangement the district court’s dis- cretion based on the facts the case. We conclude that the dis- trict court did not abuse its discretion in ordering Kimberly all travel associated with visitation. pay expenses *10 Cross-Appeal
2. Removal, (a) Modification of and Child Custody, Support and error to the of cross-appeals assigns portions 2, 2000, district court’s October order granting Kimberly per- mission to remove the children from Nebraska to Virginia, deny- his motion to ing modify to order custody, failing to child pay him. Because these three support issues are related, will be discussed together. of
Ordinarily,
a minor child will
custody
not be modified
unless there has been a material
of
change
circumstances show
that the
ing
custodial
is unfit or
parent
that the best interests of
Brown,
the child
such
954,
action. Brown v.
require
260 Neb.
(2000).
We have stated that removal of a child from the
more,
without
does not amount to a
of
change
circumstances
Nevertheless,
warranting a
change
Id.
custody.
such a move
when considered in
with other
conjunction
evidence
result
may
in a
change
circumstances that would warrant a modification
of the decree. Id. In
a motion to
considering
remove a minor
child to another
jurisdiction,
consideration is
paramount
whether the
move is in the best
proposed
interests of the child.
Clinton,
Jack v.
259 Neb.
(2000).
In his motion to modify custody modification because not assert that such is required unfit, but, rather, that the is because is modification move to has indicated her intention to Virginia, prox- it D.C. contends that Essentially, Bradley imate Washington, would children to be in the best interests of the remain of both motion to remove Kimberly’s Nebraska. resolution children motion for a Bradley’s change custody on a consideration of whether best interests of depends are them to remain in by Kimberly’s children served allowing with her to their and move Virginia by transferring them Nebraska. custody Bradley allowing stay
In order to
on a motion to remove a
child
minor
prevail
to another
the custodial
must
jurisdiction,
first
satisfy
parent
he
has
court that
or she
a
reason for
state.
legitimate
leaving
threshold,
After
the custodial
next
clearing
parent must
demonstrate
in the
that it is
child’s best interests to continue liv
Clinton,
with him
Jack
ing
or her.
v.
supra; Farnsworth
Farnsworth,
(1999).
Kimberly’s
the state was to
leaving
reside with Butler who serves in the Air Force and
resta
tioned to
D.C. We have
Washington,
held that a move
previously
to reside with a custodial
new
parent’s
spouse who is employed
*11
and resides in
state
another
constitute a
may
reason
legitimate
See,
Harder,
945,
for removal.
Harder v.
246 Neb.
524 N.W.2d
Maack,
(1994);
342,
325
v.
Maack
223 Neb.
decision
the
to leave
the
jurisdiction,
minor child will be
allowed to
the custodial
accompany
if the court
parent
finds it to be in the best interests of the child to continue to
live with that
. . .
is not to
parent.
Custody
be interpreted
”
as a sentence to immobility.’
Harder,
949,
In
whether
determining
removal to another jurisdic
interests,
tion is in the child’s best
the trial court
(1)
considers
each
move;
motives for
parent’s
or
the
seeking
opposing
(2) the
potential that the move holds for
the
enhancing
of life for
quality
the child and the custodial
(3)
and
the
parent;
such a
impact
move will have on contact between the child and the noncusto
dial
when
parent,
viewed in the
of reasonable
light
visitation
Clinton,
Jack v.
arrangements.
With to the first consideration respect the motive of involving move, each parent seeking from our de opposing novo review, we see no conclusive evidence that either party to frustrate the seeking custodial of the other or was rights party otherwise in bad faith. acting
With to the consideration the regarding qual- second respect and the of life for the children custodial ity parent, the to the evidence to the effect that move generally presented D.C., she reside with Butler area where could Washington, of life for the children by would result in a good quality provid- educational, cultural, The and recreational activities. ing prime motive was to enable the custo- asserted removal Kimberly, did claim that dial to reside with Butler. not parent, her the of life were the force behind factors quality driving removal, desire for nor was she to that the prove qual- to in Bradley life elsewhere was that Nebraska. ity superior their evidence which focused on the children’s ties to presented Nebraska, in fact that their extended community, concerns moving. the children had about expressed the district court was whether it consideration before would be in the best to move with Kimberly, children’s interests who is or to in order to their custodial parent, modify to in this allow the children in Nebraska. From record stay case, we reasons conclude that there were although legitimate Nebraska, for the in not com- children remain were court could have found reasonably district pelling, that the move with custodial the children’s parent best interests.
The third factor to be considered is the such removal impact will have on contact between children and noncustodial viewed reasonable visitation light when parent, case, In the it is clear that the distance arrangements. present will con- between diminish the amount of Nebraska Virginia tact available between the children and their noncustodial par- court liberal ent. district awarded visitation almost the entire summer school break. The visitations are to travel asso- facilitated all by requiring Kimberly pay expenses that the district court attempted ciated with visitation. It appears would have on contact negative to minimize the removal impact between and the children. sum, record indicates that our de novo review the Kimberly, did not abuse its discretion granting
district court from the children move the custodial parent, permission custody. to modify motion denying Bradley’s Nebraska and Because we affirm the district court’s order denying Bradley’s motion to modify we do not consider custody, Bradley’s assign- ment of error which claimed that the district court erred when it failed to order child pay support Bradley.
(b) Testimony Children In his error cross-appeal, Bradley to the district assigns court’s refusal to allow him to call the children as witnesses to as to testify their in preferences to regard and removal. custody both Bradley subpoenaed children to on his appear testify behalf at trial. moved to on the quash subpoenas basis that it was not the children’s best interests to be required to in a appear case their testify own involving for the further reason that the children were not identified by as Bradley witnesses potential during discovery. trial,
At the district court determined that it would not allow witnesses, to call the children as Bradley but allowed Bradley make an offer of proof. Bradley sought that the chil- stipulate dren would would want testify they to continue living Nebraska with him rather than moving Virginia but Kimberly, declined to so stipulate. Ultimately, did that if parties stipulate called to the children would testify, would testify to continue prefer Nebraska. living district court’s decision objected not to allow the children’s and the district testimony, court overruled his objec- tion. made an offer of proof. case,
In the
the children’s
present
were rele
preferences
vant because “the children’s
as
opinion
to where
preference
to live” is one of the factors to be considered in determining
954,
Brown,
whether to allow removal. See Brown v.
260 Neb.
967,
70,
(2000). Furthermore,
621
42-364(2)(b)
N.W.2d
81
§
that in
provides
determining
one
custody arrangements,
factors the court shall consider is
desires and wishes of
“[t]he
the minor child if of an
age
comprehension regardless
when
chronological age,
such desires and wishes are based on
sound
We have held
reasoning.”
that while the wishes of a child
are not
in the determination of
if
controlling
a child is
custody,
of sufficient
and has
an
age
expressed
intelligent preference,
Miles,
child’s
is entitled to consideration.
preference
Miles v.
1046
also,
See,
Grace v.
782,
(1989).
231 Neb.
695,
(1986);
Grace,
Boroff,
221 Neb.
380 N.W.2d
Boroff
641,
that in those
(1977). We observe
Children of the parties
as wit
rendered incompetent
that fact alone
are not
ceeding
by
nesses,
error to hear their testimony
it is reversible
but whether
Beran, 234
case. Beran v.
the circumstances of the
depends upon
Murdoch,
296,
(1990); Murdoch v.
Neb.
In Murdoch v. husband, her final witnesses 13 and as ages of the daughters con- hear their We testimony. trial court declined to and the the court error because such refusal was not reversible cluded of coun- two children in the presence had the already questioned in the was testimony and such unsworn sel for both parties of the children additional testimony record. We concluded that instead determinations and affected the court’s would not have effect emotional had a traumatic disrupting could have custodial the ultimate have harmed children and could the children. best interests of and therefore the arrangement 15- Beran, called parties’ the mother supra, In Beran v. not allow court did the trial as a witness and daughter year-old had trial court that the in Beran We concluded her to testify. erred in its The mother had made an offer of as ruling. proof the daughter’s and the was not testimony, daughter called being her custodial testify regarding but to corroborate preference her mother’s that the mother took testimony care of the family and household duties as best she could when she was home. Such was intended testimony to counteract of various testimony witnesses the father to the presented by effect that the mother was no care of the longer taking that her family Beran, no a to her. In longer priority we noted that although courts are rightly wary minor children of a placing divorce in the traumatic proceeding position trial court testifying, should have allowed the daughter’s that case. In testimony Beran, the was 15 old at daughter the time of trial years a appeared have clear of the understanding Her proceedings. testimony value in potential probative light testimony presented by father. Although ad litem had guardian expressed that the opinion should daughter not we testify, found that such opinion was a broad recommendation and that there was no statement as to how specific daughter might affected detrimentally We by testifying. therefore concluded the trial court had committed reversible error in not allowing daughter for the testify limited stated. purposes matter, As a general it has been observed that child who is a [a] competent witness under the general rules relating children as witnesses is a wit- competent ness an action for divorce....
Although calling children to testify against one of their in a parents divorce case is distasteful and should be dis- a couraged, court not may prohibit witness from testify- in a divorce ing case because solely the proposed witness is child of the parties. however, [a] Strictly speaking, if a child of the parties to a divorce action is called as a wit- ness, the court is not warranted in its excluding testimony for reasons other than those its exclusion warranting gen- *15 The rule erally. applies particular force where the need for the child calling to is testify imperative; public views of policy private do not propriety justify refusal to listen to competent testimony children young where there is a need for such A divorce testimony. court’s
unwarranted minor children to refusal permit parties’ constitute reversible error. testify may (1998). 24 Am. Jur. 2d Divorce and at Separation § case, In the decided district court it would not present per- mit the children’s because it found that such testimony testi- would cumulative and mony be that it was not in the children’s best interests to be testify. parties stipulated to the children’s and the children’s ad preferences, guardian litem had testified. move,
With to the ad litem respect guardian testified that the children “had indicated if moved would they miss they — their father a deal as well as great they’re age appropriately nervous about idea of to a new school and going leaving friends.” She further testified that Brandon was “worried” about and that prospect moving “he’s indicated that he doesn’t friends, want to lose his his contacts. He’d miss his dad.” ad guardian litem’s states that report children indi- “[b]oth that, D.C., cated if moved to they would miss their father also greatly. some They expressed concerns regarding leaving friends and new starting schools.” In her testimony, guardian concluded, nevertheless, ad litem that “the children to be appear pretty well-adjusted could handle a move.” With respect the children’s testifying, guardian ad litem recommended in her report to these children’s young “[d]ue and their ages bonds to both loyalty parents, would strongly object any [she] effort to have these children in court.” testify
We conclude that the district court’s decision not to permit the children to in the testify present case was not reversible error. The because, would testimony have been cumulative inter alia, the parties stipulated that the children would prefer stay in Nebraska. the district Accordingly, court was able to consider the factor of the children’s preferences in whether determining removal should permitted, thus we cannot that the say district court failed to consider their preferences. light record and the valid concerns connected with these requiring children young to testify their regarding in a dispute between the parents, district court did not commit reversible error in their disallowing testimony.
VI. CONCLUSION We the abused its discretion when conclude that district court it of and when it entered con- assumed the children legal custody We ditional orders. conclude that Kimberly’s remaining assign- ments of error and of error on Bradley’s cross-appeal assignments are without merit.
The order it assumed district court’s in which of legal custody reversed, the children is and we remand the cause the district court with directions enter an order returning legal custody children to 2C and 2E the district Kimberly. Paragraphs 2, 2000, order, in court’s October which it made conditional orders, void, and are we vacate those portions order. We affirm the all district court’s order in other respects. part,
Affirmed in reversed remanded IN PART AND IN PART, VACATED. J., on briefs. McCormack, participating J., dissenting. Connolly,
The concludes that the district court majority opinion implic- found that itly removal was in the best interests of the children because it remove granted Vogel permission to children from the state. This is a Rather generous interpretation. than that the relocation was in the determining children’s best interests, the court trial found that removal was an insufficient for a ground and denied change custody Bradley Vogel’s application for a modification decree. It then summarily granted Kimberly’s for removal. Neither in its order request nor in comments from bench did court make any findings the children’s regarding best interests. courts, cases,
Trial and relocation appellate deal parental with the tension created a mobile by society problems associated with from uprooting children stable environments. As Farnsworth, 242, 248, we stated in Farnsworth v. 257 Neb. (1999), N.W.2d are these cases the most com- “among plicated troubling” that courts are asked to disputes resolve. of multifactor tests is courts that must purpose help strug- with these difficult issues out relevant con- gle by pointing siderations. Because the nature of the no test can be problem, But a trial perfect. unless court undertakes these con- analyze siderations, in a its is rendered vacuum. judgment
Because the trial court failed to follow the law as applicable Farnsworth, set out in I conclude that it was an abuse of discre- tion allow to relocate the children to Virginia.
Whether a custodial should be allowed to remove his parent or her child from the state is a from whether a question separate is warranted. There is no favor- change presumption 42-364(1) relocation. See Neb. Rev. Stat. ing disfavoring §§ Rather, (Reissue 1998). and. when 43-2902 a custodial move, has a reason to parent legitimate issue must decided on the children’s best interests. Id. trial court’s *17 order, whether apparently a premised upon change failed to whether the relocation justified, properly analyze inwas the children’s best interests. the record de Reviewing novo, I conclude that it was not. I dissent. Accordingly,
I. RELOCATION ANALYSIS
There are three broad considerations for
whether
determining
removal to another
is in a
jurisdiction
(1)
child’s best interests:
move;
each parent’s motives for
or
seeking
(2)
the
the
opposing
that the move holds for
potential
the
enhancing
of life for
quality
the child and the custodial
(3)
and
the
parent;
such a move
impact
will have on contact between the child and the noncustodial par-
ent, when viewed in the
light
reasonable visitation arrange-
Brown,
954,
ments. Brown v.
260 Neb.
621
(2000).
N.W.2d 70
1. Parents’ Motives
I
agree
has not
sought
frustrate Bradley’s
custodial
or
rights
otherwise acted in bad faith or frivolously.
But
husband,
her desire to reside in
Virginia
her
Kent
Butler, is
balanced
equally
by Bradley’s legitimate concerns
1,000
about the effects a relocation of over
miles will have on
his
Kalkowski,
with his
relationship
children. See Kalkowski v.
1035,
258 Neb.
(2000).
In
we set out a number of factors to “assist trial
courts
the second
assessing
consideration
the
regarding
poten-
tial for enhancing the
of life
quality
for the child and the custo-
250,
dial
parent.”
Neb. at
parent following factors are the pertinent: emotional, children; needs of physical, the developmental (2) live; the children’s or (3) as to where to opinion preference the extent which the income or relocating parent’s employ- enhanced; (4) ment bewill the or degree which liv- housing ing (5) conditions would educa- the existence of improved; (6) tional the advantages; between the quality relationship children (7) and each children’s ties parent; strength there; to the and extended present community likelihood that would allowing move denying antagonize Brown, between the two hostilities parties. supra.
The states that evidence majority Kimberly presented D.C., move to the area would result Washington, good qual- educational, cultural, of life for the ity children by providing recreational activities. further states that majority opinion was not that the of life else- prove quality where was to that in I factors superior disagree. Nebraska. 250, Farnsworth, we set out Farnsworth 257 Neb. (1999), N.W.2d were intended to “assist specifically trial courts in assessing ... potential enhancing qual- *18 of life.” To is to to a ity “enhance” “raise (Emphasis supplied.) higher degree; Webster’s intensify.” Encyclopedic [or] (1989). 474 Unabridged Dictionary English Language Therefore, in order have the of life consideration quality favor, her that the had to show relocation weighed Kimberly would for and of life the children herself improve quality when all factors are considered as a whole. edu- eight Although cational, cultural, activities not the fac- only and recreational are consider, tors that a court has failed to demon- may Kimberly strate their that life would be enhanced the move. quality by
(a) Existence of Educational Advantages stated that she and Butler wished to find a home in Kimberly Fairfax, has a Virginia, good because she believed that the city curricula for the that she had seen the
school She stated system. schools, to show that the she not evidence any but did present current school. In to the children’s Fairfax were superior schools Farnsworth, research is not com- we stated that generalized is superior whether one school determining system pelling for neither nor This factor weighs a Nebraska school system. Brown, See, also, supra. relocation. See id. against or Conditions (b) Living Improvement Housing (i) Conditions Living children had enjoyed testified that she and the while together Papillion. recreational activities many dance, children were also involved organized sports, move, that, if children allowed to other activities. She stated sites, ocean, museums. But would be close to the historical did were to those superior she not claim that these opportunities Rather, the were made to available in Nebraska. statements sup- her and cultural contention the recreational opportuni- port available in Nebraska. ties were not inferior those We “the is have stated that specifically dispositive question fun, where the not where the children will have more but living the con- put, conditions will further their best interests. Simply a vacation destination choosing siderations one includes when not as included when deciding are same those necessarily Brown, 954, 969-70, where to raise a child.” Brown record, (2000). 621 N.W.2d Based on cultural do that the Washington, entertainment not show opportunities D.C., is a to live. See id. area preferable place
Furthermore, because had not obtained employ- she was unable to housing hearing, say ment at the time of would be before what the children’s schedule or childcare needs able to or after She stated that Butler would be pick school. that he worked until days p.m., children from school on the up he worked until 6 and that p.m. but she sometimes admitted time would be for either was what the commute she uncertain contrast, school the children’s neighborhood herself or Butler. In daycare, before-and-after-school in Papillion provided care parents on Bradley’s able rely were children when sick.
1053 (ii) Housing testified that was available but comparable housing would $500 $600 cost more month than in approximately per facts, Nebraska. similar Under we have held the fourth that fac- tor did not for or relocation not weigh against and did factor into our de novo review. See id. Children’s
(c) Strength Ties to Present and Extended Community Family The states that majority opinion evidence Bradley presented which focused children’s ties to their their community, Nebraska, in extended and the fact that the children family had about expressed concerns moving. concludes that majority while there were legitimate reasons for the children remain in Nebraska, were not I they compelling. disagree. testified that the children are to his close very parents
and extended He family. to visit his usually stopped parents with the children he had when and the were children with his custody, extended every mother testified family holiday. Bradley’s she saw the once children or twice a week and on every holiday occasion and special that the children called her at least once a week. Two other also witnesses testified to the children’s close relationship Brandon’s cousin parents. Bradley’s Brandon, also his best friend. Chelsea and who were in Finally, the fourth and sixth grades, at the time of this hear- respectively, ing, attended same school in all their lives. Papillion contrast, the children do not have extended in family or the from Virginia stability that comes the long-established social relationships their school and Given the community. Nebraska, strength ties in this fac- community tor weighs relocation. against
(d) Children’s or Preferences as to to Live Opinions Where stipulated that if the children were allowed to tes- parties tify, they say would to continue they preferred living are Papillion. Although controlling, child’s wishes not are relevant weigh removal this case. See against Marez Marez, N.W.2d district (affirming court’s denial of motion for in which removal Colorado court considered children’s made strongly during statements camera *20 children, 11, 10, 9, interview; wished to remain with ages Nebraska). and friends in family the court by should be consideration given A child’s preference (1) when of a motion for modification acting upon be from the community whether the child will moved issue is life; (2) her an lived most of his or excel- where the child has for to have the who remains in that wishes community lent parent child, reasons, her, valid him or for child reside with in the In re community. has a to remain expressed preference 1094, Rosson, 224 Cal. 250 Rptr. 178 Cal. 3d Marriage App. of on In re (1986), Marriage Burgess, other disapproved grounds, of 473, 25, (1996). 2d 13 4th P.2d 51 Cal. 444 Cal. 913 Rptr. family to remain close The children’s desires valid known all their lives were reasons pre- friends had Marez, with See to remain in Nebraska Bradley. supra. ferring Further, both had interactions with par- children extensive with the for 3 at custody arrangement years ents and lived Their should preferences time this modification hearing. the court. have been consideration given by and the family strength I find the this extended support near this rea- children’s desires remain compelling Moreover, I in Nebraska. cannot sons for children remain factors in favor of relocation. weigh conclude the remaining Emotional,
(e) Physical, Developmental
Needs Children the children ad interviews indicated that litem’s guardian would to both and she believed it loyal parents, were very with on an their best interests to have contact both “good parents intended to immediate and basis.” Given that Kimberly frequent move, however, that it would be in the children’s she believed and Butler. best interests to remain with Kimberly A court consider that custodial parent’s remarriage should a postdivorce family can and stabilize strengthen sometimes 642 N.Y.2d N.E.2d Tropea, unit. See Tropea however, litem, admitted (1996). ad N.Y.S.2d guardian Butler, no evi- met and Kimberly presented that she had never him. addi- with relationship dence the children’s concerning tion, at the Pentagon that Butler’s assignment testified would last a little over a and that only year he had no control over where he would be after that assigned period.
There was also a as to question the emotional effect the move would have on Brandon. testified that Brandon had told his cousin he would kill himself if he were forced to move. The ad guardian litem did not believe Brandon would act in a harm- moved, ful manner if he based on Brandon’s counselor’s reports. admitted, however, She that she had not followed up concerns about Brandon and Bradley’s that she had only briefly interviewed Brandon. She also testified that Brandon’s coun- selor had that Brandon reported She mildly depressed. 1,000 believed that the to a location over especially move— miles exacerbate away Brandon’s whether he depression —could moved with because the move stayed would make close contact with both parents impossible. *21 best,
At ad litem was able to guardian that chil- say dren were well-adjusted “handle” a move. But enough given ad guardian litem’s concerns that the children should have close contact with both and that move could parents Brandon’s and the heighten of future depression possibility Butler, transfers for the evidence failed to show that the reloca- emotional, tion would enhance the children’s physical, needs. developmental
(f) Enhancement of Custodial Parent’s
Income or Employment testified that she had received Kimberly no to her replies job applications manage rental apartment property. Although she $8,000 believed her income would be more annu- approximately Nebraska, than what earned in she she admitted that her ally estimate not be accurate. She stated that she believed the might standard for herself and her children would be living household, her with household Butler’s improved by combining Further, but the record does not show Butler’s income. the evi- dence showed that assumed increase in her be any income would at least offset increases in costs of partially by housing approx- record, $500 $600 imately month. On this did per not show that her income or would enhanced. employment Clinton, Jack v. 609 N.W.2d Compare J., result). (Stephan, concurring Between Relationship
(g) Quality and Each Parent Children have both Bradley The record shows that close, The guardian with their children. nurturing relationship the children are indicated that and testimony ad litem’s report interactions with to both and experience positive bonded parents chil- custody that Bradley each. admitted decree of dissolution. time ordered in the dren more than the taken full had not testified Bradley Although Kimberly visitation, she also stated of his extended summer advantage from when the children daycare she had asked him to pick up for her. conflicts or needed him to babysit she had scheduling which he had track kept a calendar on submitted visitations. overnight he had evenings the dates were from 5 only p.m., he had custody Some of the evenings but the evidence until between 8 and 9 p.m., after daycare, with children an he had visitation his showed that overnight had some of visita- of seven month and average nights per type week. of 3lk out of every tion with his children an average days he did not He also called his children on the days frequently addition, the children attended regular, have visitation. In chil- extended his home. While the at family gatherings parents’ dren’s move to Kimberly’s relationship sustains Virginia children, is dev- effect on their with its relationship involved will make con- frequent because distance astating tact impossible.
(h) of Life Summary Quality— law, the cus- “Under Nebraska the burden has been placed todial the court that he or she has a parent satisfy legitimate *22 reason for the state and to demonstrate that it is in the leaving child’s best interests to continue with him or her.” Brown living Brown, 954, 965, 70, (2000). In 260 Neb. 621 N.W.2d relocation, this has relied on affirming majority opinion D.C., evidence that the move Kimberly’s Washington, area would enhance the of life for the children by quality pro- educational, cultural, But, in and recreational activities. viding cases, similar failed to other we have found that evidence would enhance the child’s quality demonstrate that a relocation See, id.; Farnsworth, of life. Farnsworth v. 257 Neb. (1999). N.W.2d 592 has the children’s desires to
Conversely, majority ignored remain in Nebraska where have a close with they relationship ties to their extended Bradley strong community. factors, As to the the evidence was inconclusive at remaining best and this court to that the children’s speculate qual- of life would be enhanced. the custodial relation- ity Preserving should not come at the cost of a child’s bond with a ship always dedicated noncustodial Because has failed to parent. her burden of that the relocation will enhance the carry proof herself, of life for the children and turn the issue should quality on the of the move on the contact between impact Bradley Kalkowski, See children. Kalkowski v. 258 Neb. (2000). N.W.2d 517 Impact 3. of Move on Contact Between Bradley and Children final consideration is the of the relocation impact with his to maintain a
Bradley’s ability meaningful relationship Brown, children. See The relocation to the supra. Washington, D.C., 1,000 It will dra- area is over miles from home. Bradley’s affect contact with his children and make it matically Bradley’s for him to maintain the that he had impossible relationship distance, travel and time involved in such enjoyed. expense, are considered in which appropriately evaluating degree the move would affect contact and with Bradley’s relationship See his children. id. has been ordered to Although Kimberly pay for the children to visit in the summer and Bradley specified school the evidence showed that holidays, extensive of the children and contacted them by physical custody telephone on the he did not see them. Summer and vacations days holiday will not him the children for this interaction. daily compensate addition, in this case. A Bradley petitioned custody as well as the noncustodial interest parent’s securing custody of a are factors to be considered feasibility change of a move on the rela- parent noncustodial assessing impact Farnsworth, See The evidence showed that supra. tionship. close, children’s very relationship *23 their ties to the and that Bradley, to remain with fact wished were Both and community strong. extended from his parents would have considerable support the children within their com- relationships from their existing and stability father Bradley’s that she and mother stated Bradley’s munity. continue to do so in the and could childcare past provided Thus, was a custody Bradley needed. transferring whenever the children to Virginia. realistic alternative to relocating of Children 4. Best Interests noted, any findings the district court failed to make As inter- would be in the children’s best indicate that the relocation evidence from the court did state that based on ests. But the litem, the effect the move ad it had concerns about guardian of Butler’s as well as the effects would have on the children Nevertheless, the trial court future and transfers. assignments relocation. these concerns ignored permitted
II. CONCLUSION novo, I conclude that the evidence the record de Reviewing children would be failed to show that the of life for these quality on this issue enhanced the relocation and that by any speculation the detrimental effects the outweighed significantly by I move would have on the children’s relationship Bradley. would reverse the decision of the district court allowing removal of the children. J.,
McCormack,
in this dissent.
joins
Cole, appellant,
Frankie Levi
Kathy
appellees.
al.,
Blum et