Tirado v. Tirado

KELLY L. TIRADO, NOW KNOWN AS KELLY L. EYER, APPELLEE,

v.NELSON E. TIRADO, APPELLANT.

No. A-11-517.

NEBRASKA COURT OF APPEALS

Filed March 13, 2012.

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 Sarpy County: MAX KELCH, Judge. Affirmed.

Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for appellant.

Christopher A. Vacanti, of Vacanti Shattuck, for appellee.

IRWIN, SIEVERS, and CASSEL, Judges.

CASSEL, Judge.

I. INTRODUCTION

Nelson E. Tirado appeals the decision of the district court granting the motion of Kelly L. Tirado, now known as Kelly L. Eyer, to remove the parties' minor child to Ohio and denying his own cross-complaint to modify and motion to remove to Florida. Contrary to Nelson's allegations on appeal, our de novo review of the evidence confirms that Kelly provided a legitimate reason for leaving the state, that it is in the minor child's best interests to grant removal to Ohio, and that Nelson did not adduce sufficient evidence to meet his burden of proving a material change of circumstances requiring a change in custody. Thus, finding no abuse of discretion in the district court's decision, we affirm.

II. BACKGROUND

The district court for Sarpy County, Nebraska, dissolved the marriage of Nelson and Kelly in 2006 and awarded sole custody of their son, Savyon Tirado, born in 2005, to Kelly. The court granted Nelson reasonable visitation with Savyon that included every other weekend, one evening per week, certain holidays, and two summer vacations up to 15 days each. The decree ofdissolution also granted each party "reasonable telephone contact" with Savyon and "[a]ny other visitation that the parties can mutually agree upon." At the time of the divorce, both Nelson and Kelly resided in Nebraska.

In the years following their divorce, both Nelson and Kelly remarried. Savyon is very familiar with both of his stepparents.

In 2010, Nelson, who is an officer in the U.S. Air Force, received orders to relocate to Texas and then to Florida. Upon his request, the district court modified the original decree by granting him extended summer and holiday vacation parenting time.

Then, in August 2010, Kelly's husband, also an officer in the Air Force, received orders to relocate to Ohio. So as to allow Kelly to move with her husband to Ohio, she filed a complaint asking the district court for leave to remove Savyon from Nebraska. In response, Nelson filed a cross-complaint asking for custody of Savyon and for leave to move Savyon to Florida. He argued that a material change of circumstances warranting modification existed because Kelly "has continually and willfully interfered with [his] exercise of court-ordered parenting time."

The district court heard evidence on the complaint and cross-complaint during 2 trial days in March and May 2011. Nelson and Kelly both testified at length about their experiences working together to arrange parenting time and their strained relations generally. Nelson's main complaints were that Kelly has limited or interfered with his telephone contact with Savyon, has not facilitated frequent "Skype" conversations with Savyon, has failed to respond to many of his questions about Savyon's welfare, and has repeatedly refused his requests for additional parenting time and overnight visits when he is back in Nebraska. He particularly expressed frustration with Kelly's refusal to be flexible in Savyon's routine, particularly her insistence that he can only talk with Savyon on the telephone between 8 and 8:30 p.m. Kelly admitted that she has denied some of Nelson's requests for extra overnight visits, but she also testified to accommodations she has made at Nelson's request, including switching weekends with him and allowing him to pick up Savyon early or drop him off late. She agreed that she has imposed a strict schedule and routine upon Savyon, but that this routine has included daily telephone calls with Nelson and "Skype" conversations when feasible. And she testified that she has kept Nelson well informed about Savyon via e-mail and has solicited input from him about important decisions, but that she has felt as if his communications with her were critical of her parenting style and often posed questions that "are meant for other purposes . . . than to gain information about Savyon, possibly for argument sake."

Through Nelson's and Kelly's own testimony and the testimony of their spouses, both parties adduced evidence about Savyon's life in Nebraska. At the time of trial, Savyon was a kindergartener in the Bellevue Public Schools and was involved with various extracurricular activities, including an "AWANA" program at his church, swimming lessons, soccer, and basketball. Neither Kelly nor Nelson has extended family in Nebraska, but Nelson and his wife testified that Savyon occasionally spent time with Nelson's wife's family in Lincoln, Nebraska. In fact, Nelson usually stayed with his in-laws when exercising his parenting time.

Nelson, Kelly, and their spouses also testified about the communities in Florida and Ohio to which they each hoped to move Savyon, including housing, schools, churches, and extracurricular activities. Because Nelson moved to Florida in 2010, by the time of trial, he had purchased a house in "a really nice neighborhood" in Pensacola and had located a church,school, and extracurricular activities for Savyon. At the time of trial, Kelly had not secured housing in Ohio, but she had visited Beaver Creek, the community nearest her husband's job, and was comfortable that it would be a suitable place to live. She had also researched churches and schools in the area.

Kelly specifically testified that she believed it was in Savyon's best interests to remain in her custody and to move to Ohio, but that if she did not get permission to move, she would stay in Nebraska with Savyon. Nelson testified that he believed it was in his son's best interests to be in his custody and to move to Florida, but that if he did not get custody, it would be in Savyon's best interests to remain in Nebraska. He did not support the potential move to Ohio.

At the conclusion of the first day of trial, the court ordered a full custody evaluation. Dr. Stephanie Peterson, a licensed clinical psychologist, presented the results of her evaluation during the second day of trial. She testified that Nelson and Kelly each exhibited good parenting skills, but that both had difficulty coparenting. She also observed that Savyon had "a secure attachment to both of his parents." Dr. Peterson specifically noted in her written report that a change in custody "would add stress to Savyon's life in the short term, simply because it would be another change requiring adaptation." But during her testimony, she clarified that this added stress would not cause irreparable harm to Savyon if he was supported and well-parented through the transition. She was confident that Nelson could provide that support. Ultimately, Dr. Peterson expressed no opinion as to which parent should have custody of Savyon, but concluded that any of the options would be stressful for him.

On May 27, 2011, the district court issued its decision on Kelly's application to modify and Nelson's cross-complaint to modify. Finding that Nelson had not met his burden of proof in requesting a change in custody, the court dismissed his cross-complaint and denied him custody of Savyon. And finding that Kelly had proved a legitimate reason for leaving the state, that it was in Savyon's best interests to move to Ohio, and that there had been a material change of circumstances, the court granted her leave to remove Savyon from Nebraska to reside in Ohio. In reaching this decision, the court made specific findings as to each of the factors listed in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). We recite the district court's specific findings on these factors as necessary in our analysis.

Nelson timely appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

III. ASSIGNMENTS OF ERROR

Nelson alleges, restated and reordered, that the district court erred (1) in not awarding him custody of Savyon, (2) in granting Kelly permission to relocate Savyon from Nebraska to Ohio, and (3) in not granting him permission to relocate Savyon to Florida.

IV. STANDARD OF REVIEW

Child custody determinations, 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. Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains fromacting, 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. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).

In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).

V. ANALYSIS

1. CHANGE IN CUSTODY

Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004). A material change in circumstances means the occurrence of something which, had it...