Boyer v. Boyer

24 Neb.App. 434

889 N.W.2d 832

Jason BOYER, appellant,

v.Lauren BOYER, appellee.

No. A–16–150.

Court of Appeals of Nebraska.

Filed January 17, 2017

Aimee S. Melton and A. Bree Robbins, of Reagan, Melton & Delaney, L.L.P., for appellant.

Robin L. Binning, of Binning & Plambeck, Bellevue, for appellee.

Moore, Chief Judge, and Pirtle, Judge, and McCormack, Retired Justice.

Pirtle, Judge.

I. INTRODUCTION

Jason Boyer appeals from an order of the district court for Sarpy County which granted Lauren Boyer's request to remove the parties' minor child from Nebraska to Alaska. We find that Lauren had a legitimate reason to request removal and find, upon our de novo review, that she sufficiently demonstrated removal would be in the child's best interests. Accordingly, we affirm the district court's order.

II. BACKGROUND

The parties met in Montana in 2004. Jason was a member of the U.S. Air Force at the time. The parties married in November 2006 in Nebraska, and they had one child together, Micah Boyer, who was born in 2010. During their relationship, they moved frequently due to Jason's military service. The parties separated around February 2011. At that time, they were living in California. Following the separation, Lauren and Micah moved to Bellevue, Nebraska, where Lauren's parents were living due to her father's military service.

Jason filed for divorce in California, and a divorce decree was entered on April 25, 2013. Lauren was awarded physical custody of Micah, and the parties were awarded joint legal custody. Lauren was allowed to stay in Nebraska with Micah. Jason continued to live in California due to his military service until he was honorably discharged in August 2014. He moved to Nebraska in September 2014 to be closer to Micah.

Between February 2011 and September 2014, Jason made multiple trips to Nebraska to visit Micah. Jason also maintained contact with Micah through telephone and "Skype" conversations. Upon moving to Nebraska, Jason began spending time with Micah on a frequent basis.

After moving to Nebraska, Jason enrolled in a bachelor's degree program, which he completed, and he also worked part time. At the time of trial in January 2016, he had been accepted into a master's degree program in security management that was set to start the month after trial.

When Lauren first moved to Nebraska with Micah, they lived with Lauren's parents for about 6 months and then moved into a two-bedroom apartment. At the time of trial, they were living with Lauren's parents again, because Lauren had given up her apartment in anticipation of her move out of state.

After moving to Nebraska, Lauren went to nursing school, and in August 2014, she became a licensed practical nurse (LPN). She was employed as a nursing supervisor at a long-term care facility, where she had worked various shifts.

In the summer of 2014, Lauren met her current husband, Collin Stone, on a dating Web site. They began communicating with each other by telephone and e-mail, and she learned early on that Collin lived in Alaska. After about a year of communicating with him, Collin came to Nebraska in June 2015, and she met him in person for the first time. Micah met Collin as well. Lauren and Collin next saw each other in July, when they met each other in Montana. Micah was not present on this trip. During this visit, Lauren and Collin became engaged. They were married in August, after Jason filed this action. Lauren had never been to Alaska until August or September, after her marriage to Collin. The first time Micah went to Alaska was for Christmas. At trial, Lauren testified that three home pregnancy tests had indicated she was pregnant, although she had not yet been to a doctor.

On August 5, 2015, Jason filed an application to register the parties' California dissolution order in Nebraska. He also filed a complaint for modification alleging that material changes in circumstances had occurred that warranted a modification to the decree. The alleged changes were that Jason had moved to Nebraska to be closer to Micah; that the parties mediated a parenting plan, and Jason had been actively involved in Micah's life; that Lauren told Jason that she was getting married, moving to Alaska, and taking Micah with her; that such move would substantially impact Jason's relationship with Micah; and that the move to Alaska is contrary to Micah's best interests. He requested that the decree be modified to order Lauren to stay in Nebraska with Micah or, in the alternative, to order that Micah stay in Nebraska. If Lauren chooses to leave Nebraska, Jason asked that custody be awarded to him. Jason also requested an increase in the amount of his visitations previously ordered.

Lauren filed an answer and counterclaim on August 13, 2015. In her counterclaim, she alleged that material changes in circumstances had occurred to warrant modification of the decree, in that joint legal custody was no longer in Micah's best interests, that Lauren is remarried and plans to relocate to Alaska, that it was in Micah's best interests to grant Lauren permission to remove Micah from Nebraska, and that Lauren has been responsible for providing the daily care and the financial support for Micah since the decree was entered. Lauren requested that the court award her legal and physical custody of Micah, subject to reasonable parenting time by Jason, and grant her permission to remove Micah from Nebraska to Alaska.

Following trial on Jason's complaint for modification and Lauren's counterclaim for modification, the trial court found that Lauren had met her burden of proof as to removal and granted her permission to remove Micah from Nebraska to Alaska.

III. ASSIGNMENTS OF ERROR

Jason assigns that the trial court erred in (1) finding that Lauren had a legitimate reason to remove Micah from Nebraska to Alaska, (2) finding that removal was in Micah's best interests, (3) receiving exhibit 39 into evidence, and (4) finding that the parties shall share joint legal custody of Micah effective January 1, 2018.

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. Dragon v. Dragon , 21 Neb.App. 228, 838 N.W.2d 56 (2013). 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

Jason's first two assignments of error relate to the trial court's granting Lauren permission to remove Micah from Nebraska to Alaska. 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. Dragon v. Dragon, supra.

1. LEGITIMATE REASON FOR LEAVING STATE

The trial court found that Lauren's remarriage and subsequent pregnancy constituted legitimate reasons to leave the state. It is well established in Nebraska case law that remarriage is a commonly found legitimate reason for removal of a child from the state. See, Vogel v. Vogel , 262 Neb. 1030, 637 N.W.2d 611 (2002) ; Jack v. Clinton , 259 Neb. 198, 609 N.W.2d 328 (2000) ; Harder v. Harder , 246 Neb. 945, 524 N.W.2d 325 (1994) ; Curtis v. Curtis , 17 Neb.App. 230, 759 N.W.2d 269 (2008). Our precedent has recognized that absent evidence of an ulterior motive, a custodial parent's desire to live with his or her current spouse, who is located outside of the custodial jurisdiction, is a legitimate reason to remove the minor child. Daniels v. Maldonado–Morin , 288 Neb. 240, 847 N.W.2d 79 (2014).

Jason argues that the facts in this case are distinguishable from the facts in prior cases where marriage has been found to be a legitimate reason for removal.

He contends that in cases such as Vogel v. Vogel, supra , and McLaughlin v. McLaughlin , 264 Neb. 232, 647 N.W.2d 577 (2002), the parties met their spouses in Nebraska and sought removal after the new spouse needed to relocate for career reasons, which is not the situation here. Lauren and Collin did not meet in Nebraska, and removal is not being sought for a career reason of Collin's. Jason also argues that because Lauren met her current husband online and did not meet him in person until a few months before their marriage, her marriage is somehow less credible than that of a couple meeting by other means. As the trial court found, there is no basis in the case law to treat this marriage differently than those found in other cases. We conclude that Lauren's marriage to Collin was a legitimate reason for removal.

Having concluded that Lauren's remarriage was a legitimate reason for removal, we need not determine whether her pregnancy was also a legitimate reason. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Doty v. West Gate Bank , 292 Neb. 787, 874 N.W.2d 839 (2016).

2. BEST INTERESTS

Having determined Lauren met the threshold requirement, we will consider upon our de novo review whether she demonstrated that removing Micah from Nebraska is in his best interests. See Dragon v. Dragon , 21 Neb.App. 228, 838 N.W.2d 56 (2013).

In determining whether removal to another jurisdiction is in the child's best interests, the court considers (1) each parent's motives for seeking or opposing the move; (2) the potential the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such move will have on contact between the child...