Opinion
No. A-12-180
10-23-2012
MICHAEL D. ELTON, APPELLEE, v. SARAH C. ELTON, APPELLANT.
Dennis R. Ringgenberg, of Crary, Huff, Ringgenberg, Hartnett & Storm, P.C., for appellant. Ronald E. Temple, of Fitzgerald, Vetter & Temple, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Dixon County: DOUGLAS L. LUEBE, County Judge. Affirmed.
Dennis R. Ringgenberg, of Crary, Huff, Ringgenberg, Hartnett & Storm, P.C., for appellant.
Ronald E. Temple, of Fitzgerald, Vetter & Temple, for appellee.
IRWIN, PIRTLE, and RIEDMANN, Judges.
IRWIN, Judge.
I. INTRODUCTION
Sarah C. Elton appeals an order of the district court for Dixon County, Nebraska, denying her application to remove the parties' minor child from Nebraska to Texas and not modifying child support. We find no merit to Sarah's assertions on appeal, and we affirm.
II. BACKGROUND
Sarah's marriage to Michael D. Elton was dissolved pursuant to a dissolution decree entered on March 30, 2010; that decree awarded the parties joint custody of their child, who was born in July 2004. Sarah was awarded primary physical custody in the joint custody arrangement, and the decree included a parenting time schedule for Michael. The decree also obligated Michael to pay child support.
On June 20, 2011, Sarah filed an application seeking permission to relocate and remove the parties' minor child to Texas. Her application for removal indicated that she wanted to be closer to her extended family, that she could experience a higher earning capacity, and that beneficial climate conditions would be advantageous for some health issues Sarah experiences. Sarah also alleged that Michael's exercise of visitation has not been consistent. Finally, Sarah alleged that she had investigated housing, schools, and churches in Texas and felt it would be in the best interests of the child to relocate. Sarah's application makes no mention of requesting an adjustment of child support, but does request "such other and further relief as the Court deems just and equitable under the circumstances." On July 15, 2011, Michael filed a responsive pleading, in which he asserted that Sarah did not have legitimate reasons to remove the child and that removal was not in the child's best interests.
On September 30, 2011, Sarah filed a request for an emergency hearing on her application for removal. She asserted that she had an employment offer, asserted that the employer would not hold the offer until the scheduled trial date, and requested that an emergency hearing be scheduled. On October 4, Michael filed an objection and asserted a need for discovery before the hearing could be held. The court denied the request for an emergency hearing.
Hearing on Sarah's application for removal was held in December 2011. On January 31, 2012, the district court entered an order denying her request for removal. The court entered a lengthy and detailed order that includes a review of the testimony of the various witnesses and a lengthy analysis of the legal requirements for removal and the court's findings with respect to each legal consideration. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Sarah has assigned two errors. First, she asserts that the district court erred in denying her request for removal. Second, she asserts that the court erred in not modifying Michael's child support obligation.
IV. ANALYSIS
1. REMOVAL
Sarah first asserts that the district court erred in denying her application for removal. She asserts that she established a legitimate reason for removal and that removal was in the best interests of the child. Upon our de novo review of the entire record in this case, we do not find that the trial court abused its discretion in denying removal.
Child custody determinations 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. Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007). 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.
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. Id. After clearing that threshold, the parent seeking removal must next demonstrate that it is in the child's best interests to continue living with him or her. See id. Under Nebraska law, the burden is on the party requesting removal to satisfy this test. Id.
(a) Legitimate Reason to Leave State
Sarah's initial application for removal included assertions that she had legitimate reasons for leaving Nebraska and moving to Texas, including a desire to be closer to her extended family, improved employment and earning opportunities, and considerations of improved climate. Subsequent to her application for removal, Sarah secured an employment offer, and by the time of the hearing on her application for removal, that employment offer remained pending.
Legitimate employment opportunities for the custodial parent may constitute a legitimate reason for leaving the state. Wild v. Wild, supra. See, Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999); Carraher v. Carraher, 9 Neb. App. 23, 607 N.W.2d 547 (2000). Such legitimate employment opportunities may constitute a legitimate reason where there is a reasonable expection of improvement in the career or occupation of the custodial parent. Farnsworth v. Farnsworth, supra; Wild v. Wild, supra. Such legitimate employment opportunities may constitute a legitimate reason where the custodial parent's new job includes increased potential for salary advancement. Id.
In the present case, the district court specifically found that the employment opportunity was a legitimate reason for leaving the state. As such, the district court found that Sarah had met her burden to make this threshold showing of a legitimate reason.
(b) Best Interests of Child
After clearing the threshold of demonstrating a legitimate reason for leaving the state and removing the minor child to another state, the party seeking removal must demonstrate that it is in the best interests of the child to continue living with him or her. Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002); McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, supra; Jack v. Clinton, supra; Farnsworth v. Farnsworth, supra; Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007). In determining whether removal to another jurisdiction is in the best interests of the child, the trial court considers (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 light of reasonable visitation. Id.
(i) Each Parent's Motives
The first factor that must be considered is each parent's motives for seeking or opposing the removal of the minor child from the jurisdiction. We conclude that at most, the evidence demonstrates that the parties' motives are balanced; this factor does not weigh in favor of a finding that removal is in the child's best interests.
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 removal in an effort to frustrate or manipulate the other party. McLaughlin v. McLaughlin, supra; Wild v. Wild, supra. See, also, Vogel v. Vogel, supra; Brown v. Brown, supra; Jack v. Clinton, supra; Farnsworth v. Farnsworth, supra.
In the present case, the district court concluded that the parents' motives for seeking or opposing removal are balanced and that this factor does not weigh in favor of a finding that removal is in the best interests of the child. On appeal, Sarah concedes that "[t]he motives of each party are . . . balanced." Brief for appellant at 23. We agree. We find nothing to suggest that either party was acting in bad faith or with ill motives, and we thus agree with the district court that this factor does not weigh in favor of a finding that removal would be in the best interests of the child.
(ii) Quality of Life
The second factor that must be considered is the potential that the move holds for enhancing the quality of life for the child and the custodial parent. This factor requires an analysis of a number of other considerations which bear upon the potential enhancement of the child's quality of life. Upon our review of the record, we cannot say that the trial court erred in concluding that the evidence adduced failed to demonstrate that the proposed removal would significantly enhance the minor child's quality of life and that Sarah failed to adduce sufficient evidence to demonstrate that this factor should weigh in favor of removal.
In determining the potential that the removal to another jurisdiction holds for enhancing the quality of life of the child and the custodial parent, a court should evaluate the following considerations: (1) the emotional, physical, and developmental needs of the child; (2) the child'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 child and each parent; (7) the strength of the child's ties to the present community and extended family there; and (8) the likelihood that allowing or denying the removal would antagonize hostilities between the two parties. Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007). See, McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). This list should not be misconstrued as setting out a hierarchy of considerations, and depending on the circumstances of a particular case, any one consideration or combination of considerations may be variously weighted. Id.
a. Emotional, Physical, and Developmental Needs
Sarah argues on appeal that the primary catalyst for her decision to seek permission to relocate to Texas was a recent cancer scare that Sarah suffered. She argues that her "cancer scare" prompted her desire to be closer to her extended family for "her and [the minor child] for personal emotional support." Brief for appellant at 24. She argues that her mother, stepfather, sister and her husband and two children, brother, and sister and her husband and four children all reside in Texas. She argues that "[t]he emotional support of family is extremely important to Sarah." Id. She argues that it would have been "incredibly helpful to have her mother and sisters to support her and go with her to appointments" during her "cancer scare." Id. She also argues that she "craves the emotional support and daily contact with her family" and that she "misses the daily emotional support that her family would bring to her and [the minor child]." Id. Finally, she notes that her family could assist with daycare for the child and assist in transportation needs for the child's activities.
The district court found that there was no evidence to demonstrate that the child's emotional, physical, and developmental needs were not being satisfied in Nebraska. We agree. The focus in this consideration is on the emotional, physical, and developmental needs of the child. Sarah's argument on appeal, consistent with the primary motivation for her desire to relocate to Texas, is almost exclusively centered on assertions about her own emotional needs and provides no meaningful basis for finding that the district court erred in concluding that this factor does not weigh in favor of removal. We agree with the district court that Sarah failed to demonstrate that the emotional, physical, and developmental needs of the minor child would be sufficiently enhanced by allowing removal and that this consideration does not weigh in favor of removal.
b. Minor Child's Opinion or Preference
At the time of trial in the present case, the minor child was 7 years of age. She did not testify or provide to the court her opinion or preference. Indeed, Sarah acknowledges on appeal that "[the minor child] has not expressed an opinion regarding her residential preference," brief for appellant at 24, and the record indicates that Sarah requested that nobody talk to the minor child about the potential move. Thus, although Sarah notes that the minor child made a volunteer statement about wanting to live in Texas, there was not sufficient evidence adduced to demonstrate that the minor child has an opinion or preference on removal from Nebraska to Texas or that the minor child's opinion on the subject would have demonstrated any intelligent preference. See Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007). As such, we agree with the district court's implied conclusion that this consideration does not weigh in favor of removal.
c. Enhancement of Income or Employment
Sarah presented evidence demonstrating that she has an employment offer that would provide her substantially more income than her current employment in Nebraska. Sarah presented evidence that her current income is approximately $25,716 per year and that the position she was offered in Texas would provide a salary of $83,200 per year. However, merely increasing one's income does not necessarily mean this consideration weighs in favor of removal.
In the present case, there was very little evidence adduced concerning how the cost of living would compare between the proposed location in Texas and the present location in Nebraska. There was evidence that some aspects of Sarah's life would be more expensive and costly in Texas, including housing.
In addition, although Sarah adduced evidence that she had a job offer that would increase her income substantially compared to her present employment, she adduced very little evidence concerning whether she had sought similar opportunities for higher paying employment in Nebraska. The district court specifically recognized this, and Sarah did not contradict it on appeal. Indeed, Sarah argues on appeal only that custodial parents have never been required to exhaust all possible job leads locally before securing a better position in another state. See Kalowski v. Kalowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).
While it is certainly true that Sarah was not obligated to demonstrate that she had exhausted all opportunities, the lack of evidence concerning whether comparable opportunities might be available in Nebraska, coupled with the lack of evidence concerning differences in the cost of living, make it more difficult to assess how significantly her income and employment is being enhanced. We can determine that she will be paid more in her new position, but it is difficult to determine how much this consideration suggests that quality of life for the minor child will be improved. She also adduced evidence that the new position would provide her more flexibility with her schedule.
The district court did not make a specific finding on whether this consideration favored removal, but we conclude that it does weigh in favor of allowing removal. Nonetheless, as noted, it is difficult to determine how heavily this consideration should be weighed because Sarah did not adduce sufficient evidence.
d. Housing Conditions
With respect to housing conditions, Sarah testified that she currently resides with the minor child in a three-bedroom apartment. She testified that the apartment building is dingy, that common areas are not cleaned well, and that she is required to walk to a different building in the complex to do laundry. She also acknowledged, however, that she had not sought improved housing in neighboring towns, including one that is approximately 10 miles away and in which she acknowledged there were newer buildings available. She did not adduce any evidence to suggest that existing housing options in Nebraska failed to meet the minor child's needs.
Sarah adduced evidence concerning an apartment complex in Texas that she had looked into. The evidence demonstrates that the apartment complex is more upscale, includes a pool, and would be a nicer facility than where Sarah and the minor child currently reside. The district court acknowledged that the apartment in Texas was "more affluent" and "structurally newer" than Sarah's existing housing in Nebraska, but also found that Sarah had failed to demonstrate that the minor child's best interests would be better served in the Texas housing.
After reviewing the record, we agree with the district court that the evidence demonstrates that this consideration should weigh slightly in favor of removal. Nonetheless, we also agree with the district court that the evidence adduced demonstrated that the location in Nebraska provides a variety of social and recreational opportunities and that there was little evidence to demonstrate how the opportunities in Texas would impact the minor child's quality of life. As such, we conclude that this consideration weighs slightly in favor of removal.
e. Educational Advantages
Sarah acknowledges on appeal that there was no evidence adduced to suggest that there were any deficiencies in educational opportunities in Nebraska, and she does not argue that there would be better educational opportunities in Texas. Sarah asserts only that the minor child's cousins would attend the same school system in Texas. This consideration does not weigh in favor of removal.
f. Quality of Relationship Between Child and Parents
In the present case, the evidence did not demonstrate that the minor child has a negative relationship with either parent. Sarah acknowledged in her brief that the record demonstrates that the minor child obviously loves both parents.
Sarah argues, and presented evidence, that Michael has not maximized his visitation with the minor child or his attendance at the minor child's school and church activities. Sarah acknowledged at trial that Michael has exercised his visitation, but testified that he was not as actively involved in her activities as possible. Michael acknowledged that he had room for improvement in this area.
The record demonstrates, however, that at least some of Michael's lack of extended visitations and lack of attendance at activities are related to his employment. Michael is a deputy sheriff, and he testified that his schedule and inability to leave work or alter his schedule sometimes impacted his ability to attend activities or exercise extended visitations.
The district court concluded that there had been no evidence adduced to demonstrate that the minor child had a stronger bond with one parent or that removal was in the child's best interests because of the relationship with each party. The bulk of Sarah's testimony concerning issues with Michael's involvement in the minor child's life concerned his failures to consistently attend the minor child's activities; by necessity, removing the child to Texas will essentially eliminate any opportunity for him to improve in this area. Removal will also, by necessity, result in significantly less frequent contact with Michael. We do not find error in the district court's conclusion that this consideration does not weigh in favor of removal.
g. Ties to Community and Extended Family
The evidence in this case demonstrated that Michael's mother and Michael's grandparents have had consistent contact with the minor child here in Nebraska. Indeed, Michael's mother provides daycare for the minor child and is involved with the child on an almost daily basis. There was no evidence adduced to demonstrate that this frequent and consistent contact with Michael's extended family in Nebraska was contrary to the minor child's best interests.
Sarah's primary motivation for relocating to Texas was to be closer to her own extended family. She provided evidence that the minor child would have the opportunity to spend substantially more time with Sarah's extended family. There was not, however, any evidence adduced to demonstrate that essentially trading a substantial relationship with Michael's extended family for a substantial relationship with Sarah's extended family would be in the minor child's best interests. Indeed, Sarah presented evidence that the minor child currently has frequent contact with her extended family in Texas through technology like videoconferencing. We agree with the district court that this consideration does not weigh in favor of removal.
h. Hostilities Between Parties
Sarah acknowledges on appeal that "[t]here has been no hostility between Sarah and Michael . . . ." Brief for appellant at 30. There is similarly no evidence that hostilities between the parties would develop if relocation was allowed. This factor does not weigh in favor of removal.
i. Conclusion on Quality of Life
Our de novo review of the record leads us to conclude that the quality of life considerations do not weigh significantly in favor of allowing Sarah to permanently remove the minor child from Nebraska. In the present case, the various considerations almost uniformly fail to weigh in favor of removal. Other than evidence that Sarah would make substantially more income in Texas and be closer to her extended family, there was very little evidence adduced to demonstrate how the minor child's quality of life would be improved. Because Sarah failed to adduce sufficient evidence, our de novo review does not lead us to conclude that this factor weighs significantly in favor of removal.
(iii) Impact of Move on Contact Between
Child and Noncustodial Parent
In this case, as is usually the case with a requested removal of this distance, there can be no doubt that removal will impact the amount of contact that Michael can have with the minor child. Although Sarah proposed various alternatives to minimize the negative impact, the record fails to demonstrate that the move will not have a negative impact on Michael's contact with the minor child. As such, we agree with the district court that this factor does not weigh in favor of removal.
(iv) Conclusion on Best Interests
On our de novo review, we do not find that the district court abused its discretion in concluding that the minor child's best interests would not be served by allowing removal to Texas. The vast majority of the factors and considerations in this case fail to weigh in favor of removal, with the exception of Sarah's potential for increased income and a more affluent housing situation. As noted above, however, the weight to be given to those considerations is reduced in this case because Sarah did not adduce evidence concerning the cost-of-living differences or to demonstrate that opportunities for more income were not available in Nebraska. Because the district court did not abuse its discretion, we conclude that it did not err in finding that the best interests of the minor child would not be served by allowing removal.
(c) Conclusion on Removal
Removal cases are always difficult, especially when it is not apparent that there are bad motives on the part of either parent. We find no abuse of discretion in the district court's conclusion that Sarah, despite presenting a legitimate reason to seek relocation, failed to demonstrate that it would be in the best interests of the minor child to be removed to Texas. We find no merit to this assignment of error.
2. CHILD SUPPORT
Sarah also asserts that the district court erred in failing to modify Michael's child support obligation. Sarah asserts that the evidence adduced at trial demonstrated that Michael began receiving rental income after the divorce, that such income constituted a material change of circumstances, and that it merited modification of the child support obligation. We find no abuse of discretion by the district court.
Modification of child support payments is an issue entrusted to the discretion of the trial court, and although on appeal the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Welch v. Welch, 246 Neb. 436, 519 N.W.2d 262 (1994). A party seeking to modify child support must show that a material change of circumstances has occurred since the entry of the decree or a previous modification which was not contemplated when the decree was entered. Knaub v. Knaub, 245 Neb. 172, 512 N.W.2d 124 (1994).
In the present case, Sarah did not actually request a modification of child support in her application for relocation. Indeed, her application for relocation never mentions child support. She did request "such other and further relief as the Court deems just and equitable under the circumstances." At trial, she indicated that she was seeking an increase in Michael's child support obligation.
At trial, Michael testified that his income has stayed essentially the same since the entry of the divorce decree. He testified that he does own land from which rental income is generated, but testified that the money generated was paid directly to the bank as payment on a promissory note. The district court heard the testimony of the witnesses and considered the pay and tax documents submitted. The district court concluded that Sarah had failed to demonstrate that she was entitled to a modification of child support. We do not find this to be an abuse of discretion.
V. CONCLUSION
We find no merit to Sarah's assertions on appeal. We affirm.
AFFIRMED.