Opinion
No. A–11–945.
2012-08-14
Robin L. COLLING, now known as Robin L. Lund, appellant, v. Mark D. COLLING, appellee.
Angelica W. McClure, of Kotik & McClure Law, for appellant. Wayne E. Janssen, for appellee.
Syllabus by the Court
1. Child Custody: Visitation: Appeal and Error. Child custody and visitation 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 discretion.
2. 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.
3. Child Custody. In order to prevail on a motion to remove a minor child to another jurisdiction, the custodial parent must first satisfy the court that he or she has a legitimate reason for leaving the state. After clearing that threshold, the custodial parent must next demonstrate that it is in the child's best interests to continue living with him or her.
4. Child Custody. A move to reside with a custodial parent's new spouse who is employed and resides in another state may constitute a legitimate reason for removal.
5. Child Custody. In seeking removal of a child to another jurisdiction, remarriage will not always constitute a legitimate reason for relocation.
6. Child Custody: Visitation: Appeal and Error. In determining whether removal to another jurisdiction is in the child's best interests, an appellate court will consider (1) each parent's motives for seeking or opposing the move; (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation.
7. Child Custody. The ultimate question in evaluating the parties' motives in seeking removal of a child to another jurisdiction is whether either party has elected or resisted a removal in an effort to frustrate or manipulate the other party.
8. Child Custody. In determining the potential that the removal to another jurisdiction holds for enhancing the quality of life of the parent seeking removal and of the children, a court should consider the following factors: (1) the emotional, physical, and developmental needs of the children; (2) the children's opinion or preference as to where to live; (3) the extent to which the relocating 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 children and each parent; (7) the strength of the children'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 parties; and (9) the living conditions and employment opportunities for the relocating parent because the best interests of the children are interwoven with the well-being of the custodial parent.
9. Child Custody. It is important in contemplating removal of children to another jurisdiction to give due consideration to whether such move indeed will improve the children's lives, or merely maintain the status quo, only in a new location.
10. Child Custody. 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, his or her preference is entitled to consideration.
11. Child Custody. A custodial parent's income can be enhanced because of a new spouse's career opportunities, for purposes of determining the potential that removal of children to another jurisdiction holds for enhancing the quality of life of the parent seeking removal and of the children.
12. Child Custody. In considering removal of a child to another jurisdiction, the existence of educational advantages receives little or no weight when the custodial parent fails to prove that the new schools are superior.
13. Child Custody: Visitation. Consideration of the impact of removal of children to another jurisdiction on the noncustodial parent's visitation focuses on the ability of the court to fashion a reasonable visitation schedule that will allow the noncustodial parent to maintain a meaningful parent-child relationship.
14. Child Custody: Visitation. Generally, a reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent.
Angelica W. McClure, of Kotik & McClure Law, for appellant. Wayne E. Janssen, for appellee.
MOORE and PIRTLE, Judges, and CHEUVRONT, District Judge, Retired.
CHEUVRONT, District Judge, Retired.
I. INTRODUCTION
Robin L. Colling, now known as Robin L. Lund, appeals from the denial of her request to remove the parties' minor children from Nebraska to Georgia in order to live with her new husband. Although we reject the district court's finding that Robin did not have a legitimate reason to request removal, we find upon our de novo review that Robin failed to sufficiently demonstrate that removal would be in the children's best interests. Accordingly, we affirm the denial of Robin's complaint to modify the decree.
II. BACKGROUND
Robin and Mark D. Colling are the parents of three minor children: Nathan Colling, born in 1999; Andrew Colling, born in 2001; and Hannah Colling, born in 2003. On May 12, 2010, the district court dissolved the parties' marriage, granted them joint legal custody of the children, and awarded Robin physical custody of the children, subject to Mark's parenting time. The parties and the children have remained in Lincoln, Nebraska.
On March 28, 2011, Robin filed a complaint to modify the decree. She requested permission to remove the children to Georgia and alleged the following change of circumstances: (1) She was engaged to be married in June; (2) her fiance was “established” in Georgia, and she wanted to relocate there with the children; (3) Mark had not provided any money to support the children's activities; and (4) Mark had not established a residence for the children to live with him during his parenting time. Mark filed a responsive pleading, asking that Robin's complaint be dismissed. In Mark's counterclaim, he asked that his visitation and child support obligation be modified if Robin were allowed to permanently remove the children; he did not request a change in custody.
The district court conducted a trial in August 2011. At that time, Nathan was 12 years old, Andrew was 10, and Hannah was 8. The evidence established that Robin married Brian Johnson on June 4 and that she wished to reside with him in Covington, Georgia. Covington is approximately 45 miles east of Atlanta, Georgia, and Johnson had lived in the area his whole life. However, Johnson testified that he would plan to move to Nebraska if Robin were not allowed to move to Georgia. Mark did not want the children removed to Georgia, because he believed that the move would greatly diminish his visitation time.
Robin is a certified teacher, and her teaching certificate is valid until 2016. She had been employed by Lincoln Public Schools, but she had taken a leave of absence and was not employed at the time of trial because she did not know whether she would be allowed to move. Robin explained that “it's unprofessional to leave the school teaching job in the middle of the school year” and that she could lose her teaching license if she did so. According to Robin's 2010 federal income tax return, her adjusted gross income was $45,262. If she were teaching in the Lincoln Public Schools during the 2011–12 school year, she would be paid $51,241. Robin anticipated beginning to substitute teach the following week, where she would earn a little over $90 a day, and hoped to work an average of 15 days a month. If not allowed to move with the children, Robin hoped to return to Lincoln Public Schools the following year.
Robin planned to pursue a teaching job if allowed to move to Georgia. Her Nebraska teaching certificate would be valid in Georgia for up to 3 years, within which time she would have to complete standardized testing to obtain a certificate in Georgia. Robin had applied in 11 different school districts in Georgia—all within a 30–minute drive—and applied for over 60 jobs. Only one school was ready to interview Robin, but she canceled the interview because she “knew that [she] was not able to start when they needed [her] to.” She would be able to substitute teach. Robin testified that most of the school districts paid wages comparable to Lincoln Public Schools, but that the Atlanta school district paid about $10,000 more a year. None paid less than what Robin would receive in Lincoln.
Johnson is a licensed real estate agent in Georgia, and he also works for a roofing contractor as a sales representative. Johnson testified that if he moved to Nebraska, he would have to become licensed as a real estate agent and “to start all over.” He explained that in a given market, the real estate agent needs to know the market values in the area, what the schools are like, and whether the neighborhood is on an incline or a decline. Johnson felt that “it would probably take quite a few years” before he would be successful in practicing real estate in Nebraska. His income as a real estate agent was greatly affected beginning in 2007 by a drop in market prices. He generally earned a 3– to 3.5–percent commission based on the price of the home. His income taxes show his adjusted gross income to be $19,937 in 2009 and $20,165 in 2010. At the time of the August 2011 trial, Johnson thought that he had probably earned $30,000 to $35,000 so far that year and he hoped to earn around $40,000 to $45,000. However, it was unclear from the testimony whether these figures represented gross income or whether they took his costs into account, including payments to subcontractors.
Johnson felt that he had a very close relationship with the children. He did not have children of his own. Johnson testified that it was important for him to help foster the children's relationship with Mark. Johnson testified that there are sports activities, neighborhood parks, a state park, and amusement parks in the vicinity.
Mark did not have his own place to live. He testified that he was living at two different addresses because he could not afford rent and was trying to get out of debt. According to Mark, the cost of transportation to go to Georgia or to pay to bring the children back would be financially devastating and he would “have to figure out a different way to pay bills.” He asked the court for a downward deviation of $200 from his current child support obligation with the hope that he would then be able to afford to pay for at least two visits per year.
On October 14, 2011, the district court entered an order denying Robin's complaint to modify. The court observed that Robin had taken a leave of absence from a guaranteed teaching position that was paying her $51,241 per year and that she had applied for over 60 vacancies in Georgia but had not secured employment. The court also discussed Johnson's employment and financial situation. The district court stated, “Although the court has not found a Nebraska case defining the adjective ‘legitimate’, its definition from various sources includes words or phrases like ‘logical reasoning’, ‘reasonable’, ‘rationale’ [sic] and ‘in accordance with established or accepted patterns'.” The court concluded that “[i]t is clearly more reasonable and rationale [sic], notwithstanding the additional initial financial and other stress it may cause, that ... Johnson move to Nebraska, where more income is readily available to the family.” Because the court found that Robin failed to meet her burden of establishing a legitimate reason to remove the children, it did not address whether removal would be in the best interests of the children.
Robin timely appeals.
III. ASSIGNMENTS OF ERROR
Robin assigns two errors. First, she alleges that the district court erred in concluding that she did not have a legitimate reason to remove the children to Georgia. Second, she claims that the court erred in failing to address whether removal to Georgia was in the best interests of the children.
IV. STANDARD OF REVIEW
Child custody and visitation 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 discretion. See Rosloniec v. Rosloniec, 18 Neb.App. 1, 773 N.W.2d 174 (2009). 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. Id.
V. ANALYSIS
In order to prevail on a motion to remove a minor child to another jurisdiction, the custodial parent must first satisfy the court that he or she has a legitimate reason for leaving the state. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002). After clearing that threshold, the custodial parent must next demonstrate that it is in the child's best interests to continue living with him or her. Id.
1. Legitimate Reason To Leave State
Robin argues that the district court erred in finding that she did not have a legitimate reason for leaving Nebraska. It appears that the district court focused on which location would be financially the most rational or logical for Robin. Here, Robin wished to move in order to reside with Johnson, who has lived and worked in Georgia his whole life. Remarriage is commonly found to be a legitimate reason for a move in removal cases. See Curtis v. Curtis, 17 Neb.App. 230, 759 N.W.2d 269 (2008). And the Nebraska Supreme Court has determined that a move to reside with a custodial parent's new spouse who is employed and resides in another state may constitute a legitimate reason for removal. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). In addressing this issue, the district court concluded:
The mere fact that [Robin] has remarried someone living in Georgia, in and of itself, does not establish a legitimate reason to remove the children to Georgia. The facts in this case do not support a finding that leaving a job paying an annual salary of over $51,000 to move to a location where [Robin] has not been able [to] secure employment to live with her husband, whose income has declined substantially over at least the past two years, is reasonable, rationale [sic] or is in accordance with any type of acceptablepattern. In fact, just the opposite is true. It is clearly more reasonable and rationale [sic], notwithstanding the additional initial financial and other stress it may cause, that ... Johnson move to Nebraska, where more income is readily available to the family.
In making this finding, the district court was applying a factor relating to the best interests analysis to the issue of legitimacy. While one easily could conclude that Robin's proposed move to Georgia was imprudent, it cannot be said to be illegitimate. This is not to say that remarriage will always constitute a legitimate reason for relocation. Under the circumstances of this case, we conclude that Robin's desire to relocate to Georgia in order to live with her new spouse, although perhaps not the most economically sound decision, is a legitimate reason to leave Nebraska. Accordingly, the district court erred in its contrary determination.
2. Children's Best Interests
Because the district court concluded that Robin did not have a legitimate reason to remove the children, it did not reach the best interests analysis. See Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000) (if party seeking removal fails to establish legitimate reason, trial court's inquiry is concluded). However, because we have found that Robin did meet the threshold requirement, we will consider upon our de novo review whether she demonstrated that removing the children to Georgia is in their best interests.
The custodial parent has the burden to demonstrate that it is in the children's best interests to continue living with him or her. See Wild v. Wild, 15 Neb.App. 717, 737 N.W.2d 882 (2007). Mark has not requested a change in custody, and Robin and Johnson will plan to live in Nebraska if not allowed to remove the children to Georgia. In determining whether removal to another jurisdiction is in the child's best interests, we will consider (1) each parent's motives for seeking or opposing the move; (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation. See McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
(a) Each Parent's Motives
The ultimate question in evaluating the parties' motives is whether either party has elected or resisted a removal in an effort to frustrate or manipulate the other party. Id. Robin sought removal because she married a resident of Georgia and wished to live with him there. On the other hand, Mark opposed the move because he wished to continue having frequent visitations with the children. There is no evidence that either party has acted in bad faith. The district court specifically found that “there is absolutely no evidence that [Robin's] request to remove the children to Georgia is based upon some ulterior motive to frustrate [Mark's] parenting time with the children.” We agree. Rather, Robin had a compelling motive to seek the move and Mark had an equally compelling motive to resist the move. We conclude that the parties' motives are balanced and that this factor does not weigh in favor of or against the move.
(b) Quality of Life
In determining the potential that the removal to another jurisdiction holds for enhancing the quality of life of the parent seeking removal and of the children, a court should consider the following factors: (1) the emotional, physical, and developmental needs of the children; (2) the children's opinion or preference as to where to live; (3) the extent to which the relocating 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 children and each parent; (7) the strength of the children'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 parties; and (9) the living conditions and employment opportunities for the relocating parent because the best interests of the children are interwoven with the wellbeing of the custodial parent. See Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000). We will consider each factor in turn. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted. McLaughlin v. McLaughlin, supra. And while custody is not to be interpreted as a sentence to immobility, it is important in contemplating a move such as this one to give due consideration to whether such move indeed will improve the children's lives, or merely maintain the status quo, only in a new location. See Maranville v. Dworak, 17 Neb.App. 245, 758 N.W.2d 70 (2008).
(i) Children's Emotional, Physical, and Developmental Needs
We first consider the impact on the children's emotional, physical, and developmental needs in assessing the extent to which the move could enhance the children's lives. Mark testified that Andrew, the second child, became “stressed” by new things. For example, Andrew cried the first time he played soccer and cried another time when there were tryouts for a mixed team of 11–and 12–year–olds and none of Andrew's friends were present. John Odell, a therapist, met with Nathan and Hannah one time and Andrew three times. He opined that the children had “the emotional strength to go through the move” to Georgia. According to Odell, “[w]hether the move will be successful will be the plans that [are] set up and the parents' attitudes after the move.” Odell diagnosed Andrew with an adjustment disorder, meaning that a change had occurred and that Andrew had not yet adjusted to it. Odell met with Andrew more often than the other children to work on skills to cope with anxiety. According to Odell, a move could be permanently traumatic to Andrew but research showed that there were normally very few long-term effects when children move.
The children were involved in various activities in Nebraska. They all take piano lessons, Nathan takes guitar lessons, and Andrew takes violin lessons. Hannah has played soccer and volleyball. Nathan enjoys theater, specifically acting. In Lincoln, he had been involved in four performances over 3 years. Robin explained that there had not been opportunities for Nathan to try out for other plays. In Georgia, there were several nearby playhouses and filming for television shows and movies had occurred in close vicinity to Johnson's home. Andrew plays soccer; however, Robin learned in June 2011 that there would not be a “select team” for Andrew's level that year. Andrew had tried out for a select team in Georgia and made the team.
Although there was some evidence that the move could potentially have an adverse effect on Nathan or Andrew, any ill effects are unlikely to last for long. Similar musical, theatrical, and athletic opportunities for the children could most likely be found in Georgia, and Georgia may present better opportunities for Nathan's acting and Andrew's soccer playing. It appears that the emotional, physical, and developmental needs of the children could be met in either Nebraska or Georgia. Thus, the factor does not weigh either for or against the move.
(ii) Children's Preference
The court conducted an in camera interview with Nathan, and his testimony is confidential. 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, his or her preference is entitled to consideration. Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989). Although we do not discuss the content of Nathan's testimony, we have considered his preference and reasoning. We do not know what preference Andrew or Hannah may have. We accord no weight to this factor.
(iii) Enhancement of Income or Employment
Another factor to consider is whether Robin's income or employment will be enhanced. As the district court emphasized, Robin took a leave of absence from her employment in Lincoln which would have paid her $51,241. She was not employed at the time of trial but anticipated being able to earn income as a substitute teacher. Robin hoped to teach in Georgia if allowed to move, but she had not secured employment despite applying for over 60 positions in various school districts. She testified that she could also substitute teach in Georgia. According to Robin, most of the school districts in Georgia paid wages comparable to Lincoln Public Schools, none paid less than what she would receive in Lincoln, and the Atlanta school district paid about $10,000 more a year. The district court found that Robin had “not established a reasonable expectation of an improvement in her career opportunities, if she is permitted to remove the children to Georgia.” We agree.
A custodial parent's income can be enhanced because of a new spouse's career opportunities, for purposes of determining the potential that removal of children to another jurisdiction holds for enhancing the quality of life of the parent seeking removal and of the children. Maranville v. Dworak, 17 Neb.App. 245, 758 N.W.2d 70 (2008). Johnson testified about the decline in his income as a real estate agent, but he hoped to earn more money in the future. He testified that if he moved to Nebraska, he would have to become licensed as a real estate agent in Nebraska and essentially start over. By moving to Georgia, Robin and Johnson could consolidate households. But the same could be said if Johnson moved to Nebraska.
Mark employed an expert to compare the opportunities for teaching and real estate professionals in Lincoln and Covington. According to the expert,
the data do not suggest that a move to Covington ... would clearly improve incomes or professional opportunities. To the contrary, the evidence on wages, economic growth, housing values, etc. that I have been able to gather from a variety of government sources suggests that the Lincoln area offers at least as attractive a professional future for teachers and real estate professionals. While the lack of full data and the inherent impossibility of predicting the future prevent me from making definitive predictions of future incomes and professional success, there clearly is not a strong case for moving too [sic] Covington for professional reasons.
Because Robin took a leave of absence from her job in Lincoln, she did not have full-time employment as a teacher in either Nebraska or Georgia for the 2011–12 school year. Johnson, however, continued to earn modest income in Georgia as a real estate agent and as a sales representative. This factor does not weigh in favor of removal.
(iv) Improvement of Housing or Living Conditions
At the time of trial, Robin was renting a house in Lincoln for $850 a month. She testified that the rent would increase by $200 if an additional adult moved in and that there would be a $35 pet fee if Johnson brought his small dog. Nathan and Andrew shared a room, which was not a legal bedroom. The children were able to walk home from school. But Robin testified that she had to purchase a city bus pass for Nathan to get to school.
Johnson owns a home in Covington, and his mortgage payment is $517 a month. He testified that he is “upside down” on his house, owing more than it is worth. Johnson's house has three bedrooms and two bathrooms, so Nathan and Andrew would need to continue sharing a bedroom. However, Johnson planned to build an addition to the back of the property to give him an additional bedroom and an office. His house is approximately 4 to 5 miles from where Nathan would attend school and approximately 3 miles from the elementary schools.
We recognize that housing costs would be reduced if Robin lived with Johnson in Georgia; however, the evidence does not establish any significant improvement in housing or living conditions. This factor does not weigh in favor of or against removal.
(v) Existence of Educational Advantages
Another factor to consider is whether Georgia offers educational advantages. This factor receives little or no weight when the custodial parent fails to prove that the new schools are superior. Maranville v. Dworak, 17 Neb.App. 245, 758 N.W.2d 70 (2008). Robin researched schools in Georgia. She looked to see whether the schools made progress under the “ ‘No Child Left Behind’ ” program, looked at their extracurricular activities, and spoke with parents to get their thoughts on the teachers and the quality of the education. Mark offered into evidence articles from the Covington newspaper which addressed the failure of some area schools to meet the adequate yearly progress under the “No Child Left Behind” program. But Robin testified the schools that the children would attend had made “annual yearly progress.” Also, according to Robin, the afterschool activities in Georgia are free, while she has to pay a fee in Lincoln.
In Nebraska, Nathan and Andrew were put into differentiated classes due to their status as gifted students. Nathan was put into such classes because he was a good student and had received high scores on achievement tests. His gifted status in the Lincoln Public Schools will last until he graduates from high school. Andrew had been labeled as highly gifted. Andrew had worked with a mentor on the subject of math, but he did not yet have a mentor for the 2011–12 school year. In Georgia, there is also a program for gifted students. According to Robin, Andrew would be accepted into Georgia's gifted program. Robin testified that students graduating from a school district in Georgia with a grade point average of 3.0 or higher are eligible for the “HOPE Scholarship” program, which provides free tuition to any in-state Georgia college or university. Mark researched the HOPE Scholarship program and opined that it would not necessarily provide a free education, because the scholarship was based upon the cost of attendance at certain schools and there was a limit on the per-hour rate at particular institutions. For instance, the estimated cost of attendance per year at the Georgia Institute of Technology was approximately $20,000 per year, which included tuition, books, fees, room, and board. It appeared to Mark that the scholarship would cover up to 15 credit hours of tuition, which would be about $6,000 to $9,000 of that total cost.
We accord no weight to this factor, because Robin failed to prove that the schools in Georgia would be superior to the children's schools in Lincoln. Although the HOPE Scholarship program could provide an educational advantage in the future, there is no guarantee that any of the children would ultimately attend a college or university in Georgia or that they would be unable to obtain comparable scholarship assistance in other ways.
(vi) Quality of Relationship Between Children and Parents
It appears that the children have a good relationship with both parties. Robin, as the custodial parent, is the primary caregiver. But Mark testified that he has maintained a close relationship with his children and that he spends the majority of his time with them during visitations. However, Mark testified that he has a limited amount of vacation time and has sometimes had to arrange for other family members to watch the children while he was at work. He testified that he takes care of errands on the weekends on occasion and that he takes the children along. He attended Nathan's soccer games on the weekends and attended night games when he could. From speaking with the children, Odell ascertained that “they did a lot of fun things” with Robin. He did not see a problem with the children doing errands with their parents “if it's part of a balance.... It's good for parents to ... take kids on errands, but it's also important to do things that the children enjoy ....” We conclude that this factor does not weigh in favor of or against the move.
(vii) Ties to Community and Extended Family
The children's ties to Lincoln as well as their ties to Covington are another factor. Robin's parents, a brother, and a sister live in Nebraska. The children see them about once a month for 2 or 3 hours when they get together for dinner. Her family vacations together in Minnesota for a week approximately every other year. Robin has two nieces, and Nathan is close to one of them. Robin thought that if she moved to Georgia with the children, they would see her family about six times a year. Mark's three sisters live in Lincoln. Mark has visitation with the children at the house of one of his sisters. Mark testified that Andrew “gets along great” with Mark's family. Mark's parents live in McCook, Nebraska, but they were in the process of relocating to Lincoln so that they would be closer to their grandchildren. Mark's mother testified that she sees the children 6 to 10 times a year.
Robin's brother and sister-in-law live approximately 4 hours away from Johnson's home. Johnson's mother lives in the Covington area, as does his brother and his three sisters and their children.
The bulk of Robin's and Mark's families live in Nebraska. The children see many of these family members approximately once a month. Further, the children have grown up in Lincoln and have undoubtedly made friends there. We conclude that this factor weighs against removal.
(viii) Likelihood of Antagonizing Hostilities
Robin testified that she and Mark had been able to communicate regarding visitation time with the children and that they had a good communication system. The evidence did not establish the likelihood that allowing or denying the move would antagonize hostilities between the parties. Thus, we conclude that this factor does not weigh either in favor of or against the move.
(ix) Conclusion Regarding Quality of Life
After considering all of the quality-of-life factors, we conclude upon our de novo review that Robin did not establish removal would enhance the quality of life for her children or herself.
(c) Impact on Noncustodial Parent's Visitation
The third factor for our consideration in the best interests analysis is the impact the move will have on Mark's parenting time. In the divorce decree, the district court granted Mark parenting time which included every other weekend from 7 p.m. Friday to 9 a.m. Monday, every Wednesday from 5 to 8 p.m., and 4 weeks during the summer school vacation. Obviously, Mark could not exercise the weekend and Wednesday evening visitation if the children lived some 1,000 miles away in Georgia. Thus, this consideration focuses on the ability of the court to fashion a reasonable visitation schedule that will allow the noncustodial parent to maintain a meaningful parent-child relationship. See Maranville v. Dworak, 17 Neb.App. 245, 758 N.W.2d 70 (2008). Generally, a reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent. Id. The frequency and the total number of days of visitation and the distance traveled and expense incurred go into the calculus of determining reasonableness. Id. Indications of the custodial parent's willingness to comply with a modified visitation schedule also have a place in this analysis. Id.
The district court did not attempt to create a visitation schedule. However, the parties each submitted proposed parenting plans. We will discuss each party's plan.
Under Robin's parenting plan, the parties generally would have alternating holidays with the children. Mark would have the children for every Memorial Day and Thanksgiving, Robin would have parenting time with the children every Easter and Labor Day weekend. Because the drive takes approximately 1 1/2 days, Robin's parenting plan took into consideration the travel time. Christmas parenting time would begin within 48 hours after the children were released from school and end at noon on December 27. New Year's Day would begin at noon on December 27 and end 48 hours before the children return to school. She provided for 4 consecutive weeks of summer visitation for Mark. He would also have parenting time during the children's week-long school breaks, which would begin at 8 a.m. on Monday and end at 8 p.m. on Friday. Robin's parenting plan provided for telephone parenting time each week on any day between 5 and 9 p.m. for not less than 30 minutes per week and for cybervisitation each week on any day between 5 and 9 p.m. for not less than 60 minutes per week. Mark testified that Robin had mentioned buying him a small camera so that he could see the children over the Internet. Although Mark agreed that seeing the children would “be better than nothing,” he would miss out on physical interactions and hugs. Robin agreed to pay for any expenses in getting the children to Nebraska.
Under Mark's parenting plan, he would have summer visitation every year beginning 12 days after the last day of school and continuing until 5 days before the first day of school. During that time, Robin would be entitled to parenting time in Nebraska on alternating weekends from 7 p.m. Friday until 9 a.m. Monday. Christmas would begin at 6 p.m. on the day the children were released from school and conclude at 7 p.m. on the day before school was to begin. Mark would pay the costs of transportation for the summer visitation and Christmas visitation. Mark could also exercise visitation in Georgia on every other weekend and on Wednesday evenings.
Mark testified that he researched the cost of transportation for visits both by automobile and by airplane, which he testified was roughly 2,000 miles round trip. Using a standard mileage rate of $.50 a mile, Mark calculated the cost by automobile to be nearly $1,000. Further, if he made the trip, he would incur expenses for a motel room on the way there and on the way back. Mark testified that the cost of flying all the children would be over $1,400, which included a fee for an unaccompanied minor but did not include baggage fees. Robin believed the round-trip tickets would cost $1,200.
Robin sought to remove the children a considerable distance away from Mark. She offered to pay for the transportation costs and truly seemed willing to work with Mark to provide him with parenting time. However, Mark would no longer be able to attend the children's activities without considerable cost and planning. His visits with the children every Wednesday evening would be reduced to telephone calls or communicating via the Internet. Under either proposed parenting plan, Mark simply would not be able to enjoy similar parenting time with the children. We cannot say that this factor weighs in favor of removal.
VI. CONCLUSION
We conclude that the district court abused its discretion in determining that Robin's desire to live with her new husband in Georgia did not constitute a legitimate reason to leave the state. However, upon our de novo review and after consideration of all the factors involved in the best interests analysis, we cannot say that removing the children to Georgia is in their best interests. Accordingly, we affirm the court's order denying Robin's complaint to modify the decree.
Affirmed.