Colling v. Colling

20 Neb.App. 98

818 N.W.2d 637

Robin L. COLLING, now known as Robin L. Lund, appellant,

v.Mark D. COLLING, appellee.

No. A–11–945.

Court of Appeals of Nebraska.

Aug. 14, 2012.

Syllabus by the Court

[20 Neb.App. 98]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.

[20 Neb.App. 99]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...