Peterson v. Peterson

REGINE M. PETERSON, NOW KNOWN AS REGINE M. EFFINGER, APPELLEE, v. JAMES C. PETERSON, APPELLANT.

No. A-14-156.

NEBRASKA COURT OF APPEALS

November 25, 2014

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 Douglas County: PETER C. BATAILLON, Judge. Affirmed.

John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellant.

Virginia A. Albers and Kathryn D. Putnam, of Slowiaczek, Albers & Astley, P.C., L.L.O., for appellee.

IRWIN, INBODY, and PIRTLE, Judges.

IRWIN, Judge.

I. INTRODUCTION

James C. Peterson appeals an order of the district court for Douglas County, Nebraska, denying his application for modification of custody and removal of minor children from the jurisdiction. On appeal, James asserts that the court was biased against him, argues that the court erred in failing to allow him to remove the parties' minor children from the jurisdiction, and challenges the parenting plan implemented by the court. We find no merit to these assertions, and we affirm.

II. BACKGROUND

This is an action in which James sought modification of the decree dissolving his marriage to Regine M. Peterson. Specifically, James sought to modify custody and remove from the jurisdiction the parties' minor children, Maxwell (Max) Peterson and Lillian Peterson.

James and Regine were married in 1992, in Nebraska. Max was born in 1997, and Lillian was born in 2000.

In 2000, the parties moved from Nebraska to Wisconsin, as a result of Regine's employment. The parties remained in Wisconsin for approximately 5 years. During that time, Regine was employed full time and James stayed home with the children.

In 2005, the parties moved to Colorado, again as a result of Regine's employment. The parties remained in Colorado for approximately 2½ years. During that time, both parties were employed outside the home.

In 2007, the parties moved to Nebraska, again as a result of Regine's employment. Once the parties moved to Nebraska, James again did not work outside the home.

In 2007, Regine filed for dissolution of the parties' marriage. A decree dissolving the marriage was entered in 2009. In the decree, James and Regine were awarded joint physical and legal custody of the children. James lived in Lincoln, Nebraska, at the time, and Regine lived in Omaha, Nebraska, at the time. James testified that he was the primary caregiver for the children at this time, that they attended school in Lincoln, and that Regine had parenting time with the children two evenings per week and alternating weekends.

In 2011, an order modifying the decree was entered by the district court. In the modification order, the court found that James had failed to comply with the parenting plan and that his failure to comply had materially affected the children and Regine's time with the children. As a result, the court modified the custody order and awarded Regine sole legal and physical custody, subject to James' rights to reasonable parenting time. The parenting plan required Regine to deliver the children to James in Lincoln for his parenting time and required James to return the children to Regine in Omaha at the conclusion of his parenting time.

The record indicates that after the modification, James failed to exercise all of his parenting time with the children. James testified that he struggled financially and that difficulties in affording gas for his vehicle prevented him from consistently exercising his parenting time. The record suggests that at one point, 2 months to 10 weeks may have elapsed without James' exercising parenting time and seeing the children. In response to questioning from the court, James indicated that he was earning $20 per hour and working approximately 40 hours per week during this time.

Subsequent to the dissolution, Regine remarried. Commencing in approximately 2010, James began a romantic relationship with the ex-wife of Regine's new husband, who lives in Wisconsin. In spring 2012, James began to reside in Wisconsin with his significant other on a part-time basis, spending slightly less than 2 weeks out of each month in Wisconsin. In January 2013, James sold his home in Lincoln and permanently relocated to Wisconsin. In June 2013, the two were married.

James testified he understood that in permanently relocating to Wisconsin, he risked not being able to take the children with him. At the time, the existing custody order had granted sole custody to Regine.

The record indicates that between January and August 2013, James exercised parenting time with the children for 1 week during their school spring breaks, for 1 week around the Memorial Day holiday, and for approximately 3 weeks from late-June to mid-July.

In May 2013, James filed an application seeking to modify the existing custody order to award him custody of the children and to permit him to relocate the children from Nebraska to Wisconsin. Regine answered, requested the court deny James' requests, and sought a modification of the parenting plan in light of James' previous relocation to Wisconsin.

At trial, the parties presented evidence concerning their communications with each other, their ability to work together to facilitate parenting time, the children's reactions to the various changes in circumstances since the time of the dissolution of marriage, and the children's preferences concerning living in Wisconsin or Nebraska. The district court ultimately entered an order in February 2013 in which it denied James' request for modification of custody and found that modification of custody would not be in the best interests of the children. The court found that there had been a material change of circumstances necessitating a modification of the parenting plan, in light of James' permanent relocation to Wisconsin. As a result, the court entered a new parenting plan.

This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, James assigns five errors. First, James asserts that the district court "erred . . . in revealing its bias against James and cross-examining James inappropriately and failing to recuse itself." Second, James asserts that the district court "erred . . . in failing to address whether James maintained a legitimate basis to move to . . . Wisconsin." Third, James asserts that the district court "erred . . . by failing to apply the 'Farnsworth factors' to the evidence presented at trial." Fourth, James asserts that the district court "erred . . . in determining that removal of the minor children to Wisconsin was not in the best interests of the minor children." Finally, James asserts that the district court "erred . . . in adopting the Parenting Plan proposed by the Regine [sic]."

IV. ANALYSIS

1. MODIFICATION OF CUSTODY AND REMOVAL

We first address Regine's assertion, in response to James' brief on appeal, that James has not raised as an issue on appeal that the district court committed any error with respect to its denial of James' request for modification of custody. Regine argues that James "has not argued or assigned that issue in this appeal." Brief for appellee at 18. She argues that, as a result, this court cannot consider whether the district court erred in not modifying custody from the existing order's award of sole custody to her and that there is therefore no basis for a consideration of jurisprudence concerning removal--it is axiomatic that a noncustodial parent cannot be granted permission to permanently remove minor children from the jurisdiction.

Our review of James' brief on appeal indicates that, as Regine asserts, James did not specifically assign or argue that the district court committed any error with respect to the denial of a modification of custody. Above, we have largely quoted the exact language used by James in assigning his errors, and a review of those assignments makes it clear that none of them indicates any challenge to the court's failure to modify custody. Indeed, with respect to removal itself, James' assignments of error are focused on the court's failure to actually apply a removalanalysis to this case, and each assignment related to removal very specifically is focused on removal and not custody.

Additionally, a review of James' argument section in his brief on appeal reveals not a single mention related to custody. Rather, James' argument is focused primarily on the fact that the district court failed to address whether he had demonstrated a legitimate basis for his move to Wisconsin, as the first component of demonstrating that removal of the children is appropriate, and on the fact that the district court failed to apply the various factors for demonstrating that removal is in the children's best interests under Farnsworth v. Farnsworth, 257 Neb. 252, 597 N.W.2d 592 (1999). Indeed, James specifically points out in argument that "[t]he trial court completely ignored the . . . factors . . . for analyzing the potential a removal to Wisconsin would hold for enhancing the quality of life of James and the parties' children." Brief for appellant at 26. In referencing the trial court's analysis of the best interests of the children, James did not make any assertion even mentioning custody, but, rather, emphasized that the court's best interests analysis and findings "are completely void of any reference to [the Farnsworth] factors." Brief for appellant at 28.

James' entire argument on appeal is presented in terms of the court's failure to grant him permission to remove the children from the jurisdiction as if his request was a typical request of a custodial parent for permission to remove the children. It does not contain any recognition that the trial court first denied his request for a change of custody or that this court would necessarily have to find that decision to be error to even consider the appropriateness of allowing removal.

In his reply brief, James asserts that "...