Derby v. Martinez

24 Neb.App. 17

879 N.W.2d 58

Weston D. Derby, appellee and cross-appellant,

v.Stephanie R. Martinez, appellant and cross-appellee.

No. A–15–336.

Court of Appeals of Nebraska.

Filed May 10, 2016.

Jeff T. Courtney, P.C., L.L.O., Omaha, for appellant.

Carol Pinard Cronin for appellee.

Irwin, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

INTRODUCTION

Stephanie R. Martinez (Stephanie) appeals from an order of the district court for Douglas County finding that Weston D. Derby is the biological father of Harrison Jude Derby and awarding Stephanie custody of Harrison but denying her request to remove him from Nebraska to Texas.

Based on the reasons that follow, we reverse, and remand with directions.

BACKGROUND

Stephanie and Weston started dating in 2011, but were never married. Stephanie gave birth to Harrison in July 2013. The parties' relationship ended in January 2014. On April 3, 2014, Weston filed an amended complaint to establish paternity, custody, parenting time, and related issues. Weston sought sole custody of Harrison or, in the alternative, joint physical custody. Stephanie filed an amended answer and amended countercomplaint in which she sought sole custody of Harrison and permission to “leave the jurisdiction with” Harrison.

Trial was held in March 2015. Weston testified that he is self-employed as a stonemason, which involves building and restoring items such as outdoor fireplaces, patios, building entrances, pillars, and chimneys. He testified that he does not have a set work schedule and works as much as he can.

Weston testified that he was raised in Omaha, Nebraska. His mother lives in Omaha, as well as two of his siblings and their children. Weston has another son, who was 7 years old at the time of trial. He testified that he has parenting time with his older son on a regular basis and has a good relationship with that son's mother. There was also evidence that Weston's older son and Harrison get along well with each other.

Weston testified that he was present for Harrison's birth and that although the parties kept separate residences, he has helped out with Harrison since his birth. He testified that in January 2014, Stephanie cut off his contact with Harrison, which led him to file his amended complaint. After a temporary order was entered giving him set parenting time, he had regular contact with Harrison. He testified that after the temporary order was entered, he and Stephanie were getting along with each other. He would bring food over to her house, purchase clothing and diapers for Harrison, and help Stephanie out around her house. Between April and November 2014, he did various repair and improvement work on her house. He also did work on Stephanie's parents' house.

At the time of trial, Weston was living in a two-bedroom, two-bathroom house owned by a friend. Weston had been fixing up and renovating the home in lieu of rent. Weston planned to eventually buy the home.

Weston testified that in November 2014, Stephanie's father told him that he and his wife, Stephanie's mother, were thinking about buying a dog kennel business in Colorado and wanted Stephanie and Harrison to move with them. Weston told him that he did not want Harrison to move. The matter was brought up a short time later, and Weston again indicated he would not agree to Harrison's moving out of state. Stephanie subsequently cut off Weston's contact with Harrison. She also obtained an ex parte harassment protection order against Weston on November 25 which was subsequently ordered to remain in effect for 1 year and, thus, was still in effect at the time of trial. At the end of December 2014, Stephanie began allowing Weston his court-ordered parenting time again, which continued up to the time of trial. Weston testified that sometime between December 2014 and March 2015, he learned that Stephanie's parents planned to move to Weatherford, Texas, and that Stephanie wanted to move with them and take Harrison with her.

Stephanie's father testified that he had worked for an electric utility company for over 24 years and was going to retire in April 2015. He testified that he wanted to own a dog kennel business and had located one in Weatherford that he intended to purchase. Weatherford is located about 40 miles west of Fort Worth, Texas, and has a population of 25,000. The distance between Omaha and Weatherford is 664 miles, which is about a 10–hour drive.

Stephanie's father explained that the business he intended to buy was not only a boarding business, but also a grooming and breeding business, with a residence located on the property. At the time of trial, he had signed contracts to purchase the business and the residence on the same property for $450,000, but the contracts were contingent on Harrison's being able to move to Weatherford. He testified that he wants the dog kennel business to be a family business run by himself, Stephanie's mother, Stephanie, and her brother. He testified Stephanie would be the office manager for the business. He planned to pay her a salary of $40,000 per year, provide retirement benefits, and make health insurance available. He testified that Stephanie and Harrison would initially live in the home located on the property with him and Stephanie's mother. The home had three bedrooms and two bathrooms. He planned to eventually build a separate home on the property for Stephanie and Harrison.

Stephanie's father admitted that neither he nor Stephanie's mother has any experience operating a kennel and that his wife has no experience running any type of business. He has some experience with dogs, in that he has owned and raised a specific breed of dog for 18 years. He also testified that Stephanie does not have any experience operating a business, or any office experience.

Stephanie testified that she lived in a house in La Vista, Nebraska, that she purchased on her own. She testified that she had a state cosmetology license and was working full time cutting hair, making $10 per hour plus tips. She was also working every other Friday at a restaurant/bar, making $5 per hour plus tips. Her W–2 wage and tax statement from 2014 showed that her gross earnings for the year were $30,222.19. She stated that she does not have a retirement plan with her current employer and that health insurance is available through that employer but she cannot afford it.

She explained that the reason she did not let Weston see Harrison in January 2014 was because Weston was using steroids and she was concerned about Harrison's being around him. Weston admitted that he used steroids in the past, but has not used any since January 2014.

Stephanie testified that she wants to move to Weatherford to better her life for herself and Harrison. She testified that she is not asking to move with Harrison to Weatherford to prevent Harrison from spending time with Weston.

Stephanie testified that in April 2014, she began keeping track of the times Weston exercised his parenting time. Under the temporary order, he had parenting time every other weekend and every Wednesday evening. She testified that between April 2014 and March 9, 2015, he had been late for parenting time at least 9 times and either was a “no-show” or did not keep Harrison overnight about 32 times. She further explained that since January 2015, he had regularly exercised his parenting time as set forth in the temporary order, with the exception of being late at times.

On March 31, 2015, the court entered a decree of paternity finding that Weston was the biological father of Harrison and awarding Stephanie sole legal and sole physical custody of Harrison, subject to Weston's rights of reasonable parenting time. The court denied Stephanie's request to remove Harrison from Nebraska to Texas, finding that she did not prove a legitimate reason to move.

ASSIGNMENT OF ERROR

Stephanie assigns that the trial court erred in finding that she did not prove she had a legitimate reason to relocate to Texas and asserts that had the court found she had a legitimate reason to relocate, the evidence supported a finding that the removal to Texas would be in Harrison's best interests.

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

Removal.

Stephanie assigns that the trial court erred in finding that she did not prove she had a legitimate reason to relocate to Texas. The court's “legitimate reason” finding comes from Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), which provides that to prevail on a motion to remove a minor child, 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. Id. However, 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. However, we noted that in a case where the children's coguardians filed a motion to remove the children to Texas, we had stated, “ ‘[I]f the instant case is determined by the children's best interests, then we can conceive of no good reason why Farnsworth ... would not be properly included in the analytical framework to determine the children's best interests.’ ” Coleman v. Kahler, 17 Neb.App. at 529, 766 N.W.2d at 150, quoting In...