Opinion
No. A-11-517.
03-13-2012
KELLY L. TIRADO, NOW KNOWN AS KELLY L. EYER, APPELLEE, v. NELSON E. TIRADO, APPELLANT.
Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for appellant. Christopher A. Vacanti, of Vacanti Shattuck, for appellee.
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 of dissolution 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 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. 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 been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. Id.
The party seeking modification of child custody bears the burden of showing a change in circumstances. Id. Accordingly, in the instant case, the burden was on Nelson to prove a material change of circumstances.
Yet, Nelson argued neither that Kelly was unfit nor provided any specific reasons why Savyon's best interests required a change in custody. Rather, he argued that there had been a material change of circumstances because Kelly interfered with his court-ordered parenting time.
The fact that one parent might interfere with the other's relationship with the child is a factor that the trial court may consider in granting custody, but it is not a determinative factor. Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009). It is also appropriate for the trial court to consider "which parent would better promote visitation and a positive relationship between the children and the other parent." Coffey v. Coffey, 11 Neb. App. 788, 798, 661 N.W.2d 327, 340 (2003).
However, even if we read Nelson's cross-complaint as implicitly arguing that Savyon's best interests required a change in custody because Kelly interfered with Nelson's relationship with Savyon, the district court did not abuse its discretion in concluding that he failed to meet his burden of proof.
The evidence Nelson presented at trial simply was not sufficient to prove that Kelly's supposed interference rose to the level of a material change of circumstances. First, Nelson presented no evidence at trial to prove that Kelly had interfered with his court-ordered parenting time. Indeed, during cross-examination he conceded that Kelly had never actually prevented him from exercising the parenting time he was guaranteed by the decree and admitted that his complaint really was that she had refused to grant him additional parenting time. Second, with respect to additional parenting time, we note that the decree did not mandate that the custodial parent grant any extra parenting time, but merely allowed "[a]ny other visitation that the parties can mutually agree upon." (Emphasis supplied.) Obviously, this is a case in which mutual agreement was a challenge. Third, the evidence did not show that Kelly was as inflexible with extra parenting time as Nelson argued. Rather, testimony revealed that Kelly granted many of his requests for extra parenting time above and beyond that ordered in the decree--simply not all of them. Fourth, per our standard of review, we give weight to the district court's findings that Kelly's imposition of a rigid schedule--her reason for denying some requests for extra parenting time--was "not intended to interfere with the parenting time of [Nelson]" and that her interactions with Nelson were "not inappropriate."
While we recognize that the parties are in a difficult and frustrating situation, we do not find Kelly's actions in refusing some of Nelson's requests for extra parenting time to be sufficient proof of a change of circumstances. Rather, we find her decisions to enforce a routine and to maintain a set schedule to be well within the province of a custodial parent. On this evidence, the district court did not abuse its discretion in finding that Kelly's actions did not constitute sufficient proof of a change of circumstances.
Neither did the district court abuse its discretion in ruling that the evidence did not support a finding that Savyon's best interests required a change in custody. In determining the best interests of the child in a custody determination, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (2) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (3) the general health, welfare, and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family or household member. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006).
While the potential move to Ohio or Florida (depending on which parent retains custody of Savyon) necessarily has an impact on several of these factors, our case law demands that "the issue of a change in custody must be considered separately and apart from the custodial parent's request to remove the child to another state." Wild v. Wild, 15 Neb. App. 717, 754, 737 N.W.2d 882, 909 (2007). Therefore, our analysis here focuses on the best interests of Savyon in being in the custody of his mother versus his father generally and not on his best interests in being in the custody of his mother or father in any particular place.
When viewed in light of the four factors listed above, the evidence adduced at trial did not prove that Savyon's best interests required a change in custody. There was no evidence of abuse, and both parties agreed that Savyon was too young to express a preference as to his custody. As for the relationship of Savyon to each of his parents, the evidence at trial indicated that Nelson and Kelly were both good parents and that Savyon flourished in both of their households. Both parents provided quality housing, were involved with his education, looked after his medical needs, and enrolled him in extracurricular activities. It is important to note, however, that Kelly has been Savyon's primary caregiver since his birth. Given this fact, in the complete absence of evidence to suggest that Kelly was an unfit parent or that her household was unsafe, the district court did not abuse its discretion in determining that Savyon's best interests did not require a change in custody from Kelly to Nelson.
Because the evidence did not prove that there had been a material change of circumstances or that Savyon's best interests required a change in custody, the district court did not abuse its discretion in finding that Nelson failed to meet his burden of proof on his cross-complaint to modify.
2. RELOCATION TO OHIO
We begin our consideration of the next assignment of error by recalling the circumstances under which a court may give a custodial parent permission to remove a minor child from Nebraska. 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. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002). 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. Whether a proposed move is in the best interests of the child is the paramount consideration. Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).
Because Kelly presented a legitimate reason for leaving the state and because the evidence supported a finding that it was in Savyon's best interests to move to Ohio with his mother, the district court did not abuse its discretion in granting Kelly permission to remove Savyon from Nebraska to Ohio.
(a) Legitimate Reason
The district court found that Kelly provided a legitimate reason for leaving Nebraska in that she wanted to move to Ohio to be with her husband, who had relocated there for work. Nelson disputes this finding because "there was no evidence brought before the court that the assignment to the base in Ohio was a career enhancement for [Kelly's husband]." Brief for appellant at 11.
However, Nelson's argument ignores a fine distinction in our case law between a custodial parent's moving out of state for his or her own career and a custodial parent's moving out of state to be with a spouse who has moved for job-related purposes. In the former situation, the custodial parent must indeed show that his or her employment in the new state is a career enhancement. See, e.g., Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999); Rosloniec v. Rosloniec, 18 Neb. App. 1, 773 N.W.2d 174 (2009); Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007); Wild v. Wild, 13 Neb. App. 495, 696 N.W.2d 886 (2005); Gartner v. Hume, 12 Neb. App. 741, 686 N.W.2d 58 (2004); Carraher v. Carraher, 9 Neb. App. 23, 607 N.W.2d 547 (2000). But the Nebraska Supreme Court has held that moving out of state to be with a spouse is a legitimate reason to remove a minor child from Nebraska in and of itself. See, Vogel v. Vogel, 262 Neb. 1030, 1042, 637 N.W.2d 611, 622 (2002) (holding that "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"); Harder v. Harder, 246 Neb. 945, 952, 524 N.W.2d 325, 329 (1994) (holding that mother's "remarriage and her new husband's move to Arizona . . . create legitimate reasons for [her] to move"); Gerber v. Gerber, 225 Neb. 611, 619, 407 N.W.2d 497, 503 (1987) (requiring a custodial parent to "demonstrate that departure from the jurisdiction is the reasonably necessary result of the custodial parent's occupation, a factually supported and reasonable expectation of improvement in the career or occupation of the custodial parent, or required by the custodial parent's remarriage"). In both Vogel v. Vogel, supra, and Harder v. Harder, supra, the spouse had relocated for job-related reasons. We note that in both cases, the parties neither adduced evidence that the spouse's new job was a career enhancement nor did the court require such evidence.
Moreover, Nelson's argument ignores the reality of career "enhancement" in the context of a member of the military service on active-duty assignment. As Nelson's own career move attests, Kelly's spouse did not have a realistic choice of declining a change in assignment. He must go where he is ordered; such is the nature of military service. We decline to adopt the narrow view of career enhancement that Nelson urges.
In light of the case law and the situation faced by a spouse who serves in the military, the district court did not abuse its discretion in ruling that Kelly showed a legitimate reason for leaving Nebraska in wanting to move to Ohio because her husband was ordered to relocate there for work.
(b) Best Interests
The district court found that it was in Savyon's best interests to allow Kelly to remove him from the state. In reaching that decision, the court followed the three-pronged analysis required by our jurisprudence.
In determining whether removal to another jurisdiction is in the child's best interests, the trial court considers (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. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
Upon our de novo review of the evidence in the instant case, we conclude that these three considerations, when taken together, indicate that it is in Savyon's best interests to move to Ohio with his mother. The district court did not abuse its discretion in so concluding.
(i) Parents' Motives
Because there was no evidence to suggest that either Kelly or Nelson was seeking or opposing removal in bad faith, the district court concluded that the parties' motives were balanced and that this factor neither supported nor opposed removal. We agree.
Kelly testified that she wished to move to Ohio because her husband was ordered to relocate there as a result of his job with the Air Force. And Nelson testified that he opposed the removal because he believed his relationship with Savyon would suffer as a result of a move to Ohio. There was no evidence adduced that either of these motives was insincere.
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. Id. Because neither Nelson nor Kelly was motivated by a desire to frustrate the other's parenting time, this factor weighs neither in favor of nor against removal.
(ii) Quality of Life
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; and (8) the likelihood that allowing or denying the move would antagonize hostilities between the two parties. Id. This list of factors should not be misconstrued as setting out a hierarchy of factors. Id. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted. Id.
After analyzing these eight factors, the district court concluded that together they weighed in favor of removal. It found that three of the factors supported removal: the emotional, physical, and developmental needs of the child; the extent to which the relocating parent's income or employment will be enhanced; and the quality of the relationship between the child and each parent. And it determined that the remaining five factors were neutral as to the move to Ohio.
In contrast, Nelson argues that none of the factors weigh in favor of removal and that three of the factors actually weigh against removal: the emotional, physical, and developmental needs of the child; the degree to which housing or living conditions would be improved; and the existence of educational advantages.
While we are persuaded by Nelson's argument that the district court erred in its conclusion as to the community ties factor, we nevertheless find that the evidence pertaining to the eight factors, when balanced, indicates that the move to Ohio would improve Savyon's and Kelly's quality of life.
a. Child's Emotional, Physical,
and Developmental Needs
Nelson contends that this factor weighs against removal because a move to Ohio would disrupt Savyon's schedule and routine. He argues that because Savyon is "an over anxious young man [who] exhibits stress, it would be to his detriment to move to Ohio, and leave an environment that is very familiar to him." Brief for appellant at 14-15.
But this argument fails to account for the crucial fact that there would be significant changes to Savyon's life in Nebraska if removal is denied. Kelly testified that she would remain in Nebraska if the court denied her petition for removal. However, her husband's move was not conditional on gaining permission to move with Savyon. As an officer in the Air Force, he was ordered to relocate or leave the military. He had already moved to Ohio by the time of trial. The resulting separation has forced Kelly and her husband to maintain two households in two states throughout these proceedings. Until this separation, Kelly's husband's salary enabled Kelly to live in a house and to work only 17 hours per week so that she could stay home with Savyon when he was not in school. Savyon has never attended daycare. But Kelly testified that if she is not allowed to move with Savyon, it would be a financial hardship for them to continue to maintain two households. She said she would be compelled to find a full-time job and more affordable housing. Thus, if removal is denied, Savyon would no longer be in a familiar environment, but would have to move to a new home, perhaps attend a new school, and go to daycare for the first time. Undoubtedly, his life also would be affected as a result of the financial and emotional hardship placed upon Kelly by virtue of maintaining two households and being separated from her husband. Indeed, because of the inevitable changes that will result whether removal is granted or not, Dr. Peterson testified that any result would be stressful for Savyon.
Given the options, we agree with the district court that Savyon's emotional, physical, and developmental needs would be best served by staying with his mother, who has been his sole caregiver since birth. We also find that Kelly would be better able to meet Savyon's needs if allowed to reside with her husband in Ohio, where she can continue to work only part time and focus her attention on Savyon's care and upbringing. This factor weighs in favor of removal.
b. Child's Preference
The parties and the district court agreed that Savyon was too young--5 years old at the start of trial--to express a preference as to where he would live. We agree that this factor should not be considered.
c. Custodial Parent's Enhanced
Income or Employment
Nelson points out that there was no evidence at trial that Kelly's husband's new job was actually a career enhancement. This is unrealistic in the context of active military service. Kelly and her husband's income and employment must be considered in light of the alternatives. If Kelly's husband did not move, he would have forfeited his job with the Air Force. And now that he has moved, if Kelly is prevented from joining him in Ohio, they would be forced to maintain two separate households. As mentioned above, Kelly testified that this would cause significant financial hardship. Therefore, even if Kelly's husband's new job does not objectively provide a higher salary or increased benefits, their family's financial situation would be the least negatively impacted by allowing Kelly to move to Ohio with Savyon. This factor weighs in favor of removal.
d. Improved Housing or Living Conditions
Nelson argues that this factor weighs against removal because "[t]he unknowns are extensive in Ohio, whereas [Kelly] currently has a home here in Nebraska that provides a stable certain environment for Savyon." Brief for appellant at 16. Kelly and her husband both admitted that they had neither made an offer to purchase a home nor signed a lease for housing in Ohio at the time of trial. But we again highlight that Kelly testified that she would be forced to move out of her house in Nebraska and find more affordable housing if she is not allowed to move to Ohio with Savyon. On this evidence, Savyon's housing and living conditions are "unknown" whether removal is granted or denied. This factor neither supports nor opposes removal.
e. Educational Advantages
Evidence regarding the educational opportunities available to Savyon in Ohio is virtually nonexistent. Kelly's online research led her to believe that Ohio schools would be equal in quality to the schools available in Nebraska, but she had not contacted any of the potential schools or visited them in person at the time of trial. And no evidence was adduced regarding the schools she had researched other than a yearly schedule. There was evidence that Savyon was doing well at his school in Nebraska, but otherwise there was no evidence about the quality of his current school or the educational opportunities available to him here. Given the lack of objective evidence, we cannot effectually compare the educational opportunities available in Ohio to those in Nebraska. This factor is neutral in the best interests analysis.
f. Relationship Between Child and Each Parent
The evidence clearly indicates that Savyon has a strong attachment to both of his parents. This factor must therefore focus on the effect that a move to Ohio would have on these relationships.
This case is different from many removal cases in that removal would not cause a separation between the child and the noncustodial parent when they would otherwise live in close proximity. Rather, the child and noncustodial parent in the instant case already have been separated by distance for some time. Nelson has not lived in the same state as Savyon since 2010, when he moved to Texas and then to Florida. And the divorce decree already has been modified to accommodate Nelson's geographic separation from Savyon by granting him extended summer and holiday vacation parenting time, which can be exercised in Florida. Consequently, the sole practical effect of removal would be that Nelson would have to travel to Ohio instead of Nebraska if he wants to exercise his weekend or weeknight parenting time.
Nelson argues that his relationship with Savyon would suffer from removal to Ohio because "Ohio does not have the familiar accommodations that Lincoln, Nebraska[,] has with the in-laws' residence." Brief for appellant at 17-18. While we acknowledge the advantages of having a convenient and free place to stay when traveling to Nebraska to visit Savyon, absent other evidence as to how the move would alter the relationship between Nelson and Savyon, we conclude that the negative effects of having to exercise the occasional weekend visitation in Ohio as opposed to Nebraska would be minimal.
Additionally, we find that consideration of Savyon's relationship with his mother, Kelly, weighs in favor of removal. If Kelly is allowed to move Savyon to Ohio, the relationship between them likely would continue to be a close one. In Nebraska, Kelly coordinated her work schedule so that she was available for Savyon whenever he was not in school. She testified that she intended to be similarly available for Savyon in Ohio. On the other hand, Kelly testified that if she is forced to remain in Nebraska, she would have to begin working full time. Although Kelly will continue to be Savyon's primary caregiver in either Ohio or Nebraska, Savyon's relationship with her would undoubtedly suffer in having a mother who works full time as compared to a stay-at-home mother. On balance, Savyon's relationship with Kelly would be best served by granting removal.
In balancing the effect of the move on Savyon's relationship to each of his parents, we conclude that this factor supports removal.
g. Community Ties and Extended Family
The district court determined that this factor was neutral because Savyon had no extended family in either Nebraska or Ohio.
However, Savyon's ties to Nebraska are not insignificant and the district court should have considered them. As Nelson indicates in his brief, Savyon is highly involved with his church and with extracurricular activities in Nebraska. Additionally, Savyon has a close relationship with Nelson's wife's family, who has lived within an hour of Kelly's house until now.
In the alternative, Savyon's ties to Ohio consist solely of his relationship with Kelly's husband, who now resides there.
In balance, this factor weighs somewhat against removal.
h. Hostilities Between Parties
Given the parties' already strained relations and their difficulty arranging parenting time with one parent living out of state, it is likely that the hostilities between them will continue in any circumstance--although we prefer to hope otherwise. And because the situation will involve a long-distance noncustodial parent no matter whether Savyon lives in Ohio or Nebraska, no action taken by the district court would have alleviated the hostilities. As such, this factor neither supports nor opposes removal.
i. Conclusion as to Quality of Life
Upon our de novo review of the evidence pertaining to each of the eight quality of life factors, we find that three factors weigh in favor of removal, four factors are neutral, and one factor weighs somewhat against removal to Ohio. Thus, despite our differing analyses under the community ties factor, we agree with the district court that the evidence, when balanced, indicates that both Kelly's and Savyon's quality of life would be enhanced by the move to Ohio.
(iii) Contact With Noncustodial Parent
The final prong in our best interests analysis is the impact removal would have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation. This consideration 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. Maranville v. Dworak, 17 Neb. App. 245, 758 N.W.2d 70 (2008). Generally, a reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent. Id. Of course, the frequency and the total number of days of visitation and the distance traveled and expense incurred go into the calculus of determining reasonableness. Id.
Because Nelson is already exercising the majority of his parenting time from a distance and has been able to maintain a meaningful relationship with Savyon despite his move to Florida, the district court concluded that "there will be a minimal impact, if any, on the relationship between [Nelson] and [Savyon] by relocating [Savyon] to Ohio, and [Nelson] will have the opportunity to maintain a similar meaningful relationship with [Savyon] even if [Savyon] resides in Ohio." We reach the same conclusion upon our de novo review of the evidence.
As the district court noted, it is significant that Nelson is already exercising his parenting time from a different state. This fact means that there is already a reasonable visitation schedule in place, one that has allowed Nelson to maintain a strong relationship with Savyon despite geographic separation. That visitation schedule will remain the same whether Savyon resides in Nebraska or Ohio.
Another consequence of Nelson's living in Florida is that the majority of his parenting time comes from extended summer and holiday vacation parenting time, during which time Savyon visits Florida. Consequently, where Savyon lives will not have an impact on this facet of their relationship.
Finally, we note that for the majority of the year, Savyon lives with his mother and Nelson and Savyon interact mainly by telephone or "Skype." Because Nelson resides outside of Nebraska, this aspect of their relationship would be unchanged by removal.
Nelson's main reason for resisting removal "is that he believes the relocation will adversely affect his relationship with Savyon, as he currently has access to a residence in Lincoln, Nebraska, which provides for a stable and supportive environment with extended family members to exercise his parenting time." Brief for appellant at 13. As already indicated, we are not persuaded by this argument. We acknowledge that Savyon's move from Nebraska to Ohio would require Nelson to expend a certain amount of money on hotels and food that he would not pay if he were exercising his parenting time at his in-laws' house. But we do not find that being deprived of the use of his in-laws' house when exercising his parenting time would significantly affect the quality of his relationship with Savyon.
Neither is the increased financial burden to Nelson alone a reason to deny removal. In Maranville v. Dworak, 17 Neb. App. 245, 262, 758 N.W.2d 70, 83 (2008), we upheld removal of a father's three children to Ohio even after finding that there "certainly would be increased traveltime, expense, and inconvenience to [the father] in traveling to Ohio" because we found that the lower court's order allowed the father to maintain reasonable visitation with the children. The visitation schedule in question gave the father one long weekend per month during the school year and holiday visits and summers in Nebraska, where he resided. See id.
In the instant case, Nelson has a reasonable visitation schedule allowing him not only extended summer and holiday vacation parenting time in Florida, but also alternating weekends and one weeknight per week if he chooses to travel to where Savyon lives. Because he is allowed reasonable visitation, under Maranville v. Dworak, supra, we are not precluded from granting removal despite the added financial burden and inconvenience to Nelson in exercising some of his parenting time in Ohio.
Aside from the increased financial burden, Nelson provided no other evidence that removal would negatively affect his relationship with Savyon. In the absence of any such evidence, we conclude that Nelson would be able to maintain a quality relationship with Savyon if removal is granted.
(iv) Conclusion as to Best Interests
Having reviewed the evidence as it pertains to each parent's motives for seeking or opposing the move, the potential that removal holds for enhancing quality of life, and the impact a move would have on contact between the child and the noncustodial parent, we conclude that it is in Savyon's best interests to move with his mother to Ohio. We find that there would be a significant negative impact on Savyon's relationship with Kelly if removal is denied because of the financial and emotional strain that would be placed upon her due to the separation from her husband. As a result, Savyon's needs would be best met if Kelly is allowed to join her husband in Ohio, where she can continue to work part time and care for Savyon when he is not in school.
The district court did not abuse its discretion in concluding that it is in Savyon's best interests to allow his removal to Ohio.
(c) Conclusion as to Relocation to Ohio
Because Kelly wants to move to Ohio to join her husband, who was ordered to relocate there for work, the district court did not abuse its discretion in concluding that she presented a legitimate reason for leaving the state. Neither did the court commit an abuse of discretion in determining that it is in Savyon's best interests to move to Ohio. Therefore, because Kelly satisfied both requirements to prevail on a motion to remove, the district court did not abuse its discretion in granting Kelly permission to remove Savyon from Nebraska to Ohio.
3. RELOCATION TO FLORIDA
Finally, Nelson assigns error to the district court's denial of his motion to remove Savyon to Florida. Removal to Florida depends upon Nelson's having custody of Savyon. And we have already decided that the court did not abuse its discretion in denying the change in custody. Therefore, the court did not abuse its discretion in refusing to allow Nelson to move Savyon to Florida.
VI. CONCLUSION
Upon our de novo review of the evidence, we conclude that Nelson did not prove that Kelly's supposed interference constituted a material change of circumstances requiring a change in custody and that the district court did not abuse its discretion in denying his cross-complaint to modify. And because the district court did not abuse its discretion in denying the change in custody, neither did it abuse its discretion in refusing to grant Nelson's motion to remove Savyon to Florida. We also find that Kelly's desire to join her husband in his new state of residence provided a legitimate reason for leaving the state and that it is in Savyon's best interests to move to Ohio with Kelly. Consequently, the district court did not abuse its discretion in granting Kelly's motion to remove. We find that none of Nelson's assignments of error have merit, and we affirm.
AFFIRMED.