Alicia K. v. Garrett S.

ALICIA K., APPELLEE, v. GARRETT S., APPELLANT, AND STATE OF NEBRASKA, INTERVENOR-APPELLEE.

STATE OF NEBRASKA ON BEHALF OF BRYCE S., A MINOR CHILD, APPELLEE, v. GARRETT S., THIRD-PARTY PLAINTIFF, APPELLANT, AND ALICIA K.,

THIRD-PARTY DEFENDANT, APPELLEE.

No. A-16-630

No. A-16-635.

NEBRASKA COURT OF APPEALS

October 24, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeals from the District Court for Lincoln County: JODI NELSON, Judge. Affirmed.

W. Randall Paragas, of Paragas Law Offices, for appellant.

Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, for appellee Alicia K.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

ARTERBURN, Judge.

INTRODUCTION

Garrett S. appeals from orders entered by the district court for Lancaster County determining custody of the parties' minor children on May 26, 2016. On appeal, Garrett argues that the district court erred in awarding Alicia K., the children's biological mother, permanent legal and physical custody of the minor children, allowing Alicia to relocate the children to Missouri, and erred in the amount of parenting time awarded to Garrett. For the reasons set forth below, we affirm.

BACKGROUND

The first action between the parties was a paternity action brought by Alicia to obtain a judicial determination of paternity, as well as orders relating to custody, support, and parenting time. On January 23, 2013, the district court entered an order establishing Garrett as the father of the parties' minor child Brayden, born in 2012. The district court entered no orders involving custody or parenting time as Alicia dismissed those causes of action. On March 12, 2014, the State filed a petition in intervention seeking an order of support which led to an order entered by the district court on July 2, 2014, ordering Garrett to pay $133.00 per month in child support for Brayden. On March 5, 2015, Garrett filed a complaint to modify the prior order entered by the district court as to Brayden. Alicia filed an answer and counterclaim for custody of Brayden on April 17, 2015.

On January 23, 2015, the State filed a complaint to establish support as to the parties' youngest child Bryce, born in 2014. Thereafter, Garrett filed an answer and counterclaim for custody. Alicia filed an answer and counterclaim for custody of Bryce on April 17, 2015. On May 5, 2015, the district court entered temporary orders in both cases, awarding Alicia sole legal and physical custody of the children and ordered Garrett to pay child support.

The cases were consolidated by the district court and proceeded to trial as to permanent custody on January 28, 2016. The parties testified at trial, as well as Brayden's therapist, Ann Gray, and Alicia's friend, Carolyn Miller. Documentary evidence was also received.

Garrett and Alicia were never married. They have two minor children together, Brayden and Bryce. The parties began their relationship in 2010. Alicia was attending college at the University of Nebraska-Omaha when the parties first met. In the fall of 2010, Alicia attended the University of Central Missouri (UCM) in Warrensburg, Missouri. Alicia became pregnant with Brayden while she was living in Missouri. Alicia moved to Bellevue, Nebraska to live with her mother after she became pregnant. The parties then moved into an apartment together in June 2012 in Lincoln, Nebraska. The parties lived together until August 2013. After August 2013, the parties lived together intermittently until January 2015. Alicia lived in a few different places after January 2015. At the time of trial she had been residing in Plattsmouth, Nebraska since April 2015.

Garrett and Alicia have had a turbulent relationship, to say the least. There have been over 40 calls made to police involving altercations between them. Alicia filed for a protection order against Garrett in the spring of 2013. Following a domestic incident between the parties, the police arrested Garrett for violation of the protection order. At that time, Garrett was on probation for a felony level drug charge. Due to the violation of the protection order, Garrett's probation was revoked, resulting in his incarceration for a period of time in 2013 and 2014.

The parties have engaged in verbal and physical altercations in front of the children. Due to issues arising during their exchanges of the children, the parties do the exchanges in public in order to alleviate any potential issue between them. Garrett admitted to sending abusive text messages and emails to Alicia during their relationship. Alicia testified that Brayden has developedbehavioral issues as a result of the parties' interactions. Alicia began taking Brayden to a therapist to address these issues.

Since Alicia moved to Plattsmouth, the parties have not been involved in a romantic relationship. At the time of trial, Alicia worked at a Sprint store. Alicia was earning $12.90 per hour plus commission. Garrett owns his own painting business, focusing mainly on exterior house painting. At the time of trial, Garrett was paying a minimal amount of child support to Alicia.

The trial centered on Alicia's request to move the children with her to Missouri in order for her to attend nursing school. After trial, the district court awarded custody of the children to Alicia and permitted her to move to Missouri. We will discuss the facts regarding the removal issue in more detail later in this opinion as they relate to the analytical framework applied.

ASSIGNMENTS OF ERROR

Garrett argues that the district court erred in (1) awarding Alicia permanent legal and physical custody of the minor children; (2) finding Alicia had a legitimate reason to relocate the children to Missouri and allowing her to relocate there; and (3) awarding him insufficient parenting time.

STANDARD OF REVIEW

In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012).

ANALYSIS

First, we note that appellants are required to point out the factual and legal bases that support their assignments of error. Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). We address only assignments of error both assigned and argued. Id. In Garrett's brief, he assigned the three errors stated above, but only argued that the district court's determination that Alicia had a legitimate reason to move the children to Missouri and that removal was in the best interests of the children was error. Therefore, we will only address the district court's decision to permit Alicia to remove the children to Missouri.

The district court found that a strict application of Nebraska's removal jurisprudence as set out in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), was not required since no prior adjudication existed as to the custody of the minor children. The court, however, did utilize the analytical framework described in Farnsworth in reaching its conclusion as to the children's best interests. The court considered (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 children and the custodial parent; and (3) the impact such a move will have on contact between the children and the noncustodial parent, when viewed in the light of reasonable parenting time. Imbedded inits analysis of the parent's motives, the district court made a determination of whether Alicia had a legitimate reason to remove the children to Missouri.

We find no error in the analytical framework applied by the district court. In Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009), we held that Nebraska's removal jurisprudence does not apply to a child born out of wedlock where there has been no prior adjudication addressing child custody or parenting time. We determined, however, that since removal of a child to another jurisdiction is determined by the children's best interests we could conceive of no good reason why the factors set out in Farnsworth could not be properly included in the analytical framework to determine the children's best interests. In Derby v. Martinez, 24 Neb. App. 17, 879 N.W.2d 58 (2016), we extended our analysis a step further by addressing the issue of whether an unmarried parent in an initial custody determination had a legitimate reason to remove a child from the state. Accordingly, although the Farnsworth factors do not constitute a strict test as applied to the present case, we will give them consideration in reviewing the district court's determination regarding custody and removal of the children from the state.

Under Farnsworth, the trial court evaluates three considerations in determining whether removal to another jurisdiction is in the child's best interests: (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. See Bird v. Bird, 22 Neb. App. 334, 853 N.W.2d 16 (2014).

In determining the potential that the removal to another jurisdiction holds for enhancing the quality of life of the child and the parent seeking removal, a court should consider the following factors: (1) the emotional, physical, and developmental needs of the child; (2) the child's opinion or...