                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     ALICIA K. V. GARRETT S.


  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).


                                       ALICIA K., APPELLEE,
                                                 V.

           GARRETT S., APPELLANT, AND STATE OF NEBRASKA, INTERVENOR-APPELLEE.


            STATE OF NEBRASKA ON BEHALF OF BRYCE S., A MINOR CHILD, APPELLEE,
                                                 V.

                      GARRETT S., THIRD-PARTY PLAINTIFF, APPELLANT, AND
                        ALICIA K., THIRD-PARTY DEFENDANT, APPELLEE.


                       Filed October 24, 2017.    Nos. A-16-630, A-16-635.


       Appeals from the District Court for Lincoln County: JODI NELSON, Judge. Affirmed.
       W. Randall Paragas, of Paragas Law Offices, for appellant.
       Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, for
appellee Alicia K.



       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                         INTRODUCTION
        Garrett S. appeals from orders entered by the district court for Lancaster County
determining custody of the parties’ minor children on May 26, 2016. On appeal, Garrett argues
that the district court erred in awarding Alicia K., the children’s biological mother, permanent legal
and physical custody of the minor children, allowing Alicia to relocate the children to Missouri,



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and erred in the amount of parenting time awarded to Garrett. For the reasons set forth below, we
affirm.
                                         BACKGROUND
         The first action between the parties was a paternity action brought by Alicia to obtain a
judicial determination of paternity, as well as orders relating to custody, support, and parenting
time. On January 23, 2013, the district court entered an order establishing Garrett as the father of
the parties’ minor child Brayden, born in 2012. The district court entered no orders involving
custody or parenting time as Alicia dismissed those causes of action. On March 12, 2014, the State
filed a petition in intervention seeking an order of support which led to an order entered by the
district court on July 2, 2014, ordering Garrett to pay $133.00 per month in child support for
Brayden. On March 5, 2015, Garrett filed a complaint to modify the prior order entered by the
district court as to Brayden. Alicia filed an answer and counterclaim for custody of Brayden on
April 17, 2015.
         On January 23, 2015, the State filed a complaint to establish support as to the parties’
youngest child Bryce, born in 2014. Thereafter, Garrett filed an answer and counterclaim for
custody. Alicia filed an answer and counterclaim for custody of Bryce on April 17, 2015. On May
5, 2015, the district court entered temporary orders in both cases, awarding Alicia sole legal and
physical custody of the children and ordered Garrett to pay child support.
         The cases were consolidated by the district court and proceeded to trial as to permanent
custody on January 28, 2016. The parties testified at trial, as well as Brayden’s therapist, Ann
Gray, and Alicia’s friend, Carolyn Miller. Documentary evidence was also received.
         Garrett and Alicia were never married. They have two minor children together, Brayden
and Bryce. The parties began their relationship in 2010. Alicia was attending college at the
University of Nebraska-Omaha when the parties first met. In the fall of 2010, Alicia attended the
University of Central Missouri (UCM) in Warrensburg, Missouri. Alicia became pregnant with
Brayden while she was living in Missouri. Alicia moved to Bellevue, Nebraska to live with her
mother after she became pregnant. The parties then moved into an apartment together in June 2012
in Lincoln, Nebraska. The parties lived together until August 2013. After August 2013, the parties
lived together intermittently until January 2015. Alicia lived in a few different places after January
2015. At the time of trial she had been residing in Plattsmouth, Nebraska since April 2015.
         Garrett and Alicia have had a turbulent relationship, to say the least. There have been over
40 calls made to police involving altercations between them. Alicia filed for a protection order
against Garrett in the spring of 2013. Following a domestic incident between the parties, the police
arrested Garrett for violation of the protection order. At that time, Garrett was on probation for a
felony level drug charge. Due to the violation of the protection order, Garrett’s probation was
revoked, resulting in his incarceration for a period of time in 2013 and 2014.
         The parties have engaged in verbal and physical altercations in front of the children. Due
to issues arising during their exchanges of the children, the parties do the exchanges in public in
order to alleviate any potential issue between them. Garrett admitted to sending abusive text
messages and emails to Alicia during their relationship. Alicia testified that Brayden has developed




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behavioral issues as a result of the parties’ interactions. Alicia began taking Brayden to a therapist
to address these issues.
        Since Alicia moved to Plattsmouth, the parties have not been involved in a romantic
relationship. At the time of trial, Alicia worked at a Sprint store. Alicia was earning $12.90 per
hour plus commission. Garrett owns his own painting business, focusing mainly on exterior house
painting. At the time of trial, Garrett was paying a minimal amount of child support to Alicia.
        The trial centered on Alicia’s request to move the children with her to Missouri in order
for her to attend nursing school. After trial, the district court awarded custody of the children to
Alicia and permitted her to move to Missouri. We will discuss the facts regarding the removal
issue in more detail later in this opinion as they relate to the analytical framework applied.
                                   ASSIGNMENTS OF ERROR
       Garrett argues that the district court erred in (1) awarding Alicia permanent legal and
physical custody of the minor children; (2) finding Alicia had a legitimate reason to relocate the
children to Missouri and allowing her to relocate there; and (3) awarding him insufficient parenting
time.
                                    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
        First, we note that appellants are required to point out the factual and legal bases that
support their assignments of error. Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281
(2015). We address only assignments of error both assigned and argued. Id. In Garrett’s brief, he
assigned the three errors stated above, but only argued that the district court’s determination that
Alicia had a legitimate reason to move the children to Missouri and that removal was in the best
interests of the children was error. Therefore, we will only address the district court’s decision to
permit Alicia to remove the children to Missouri.
        The district court found that a strict application of Nebraska’s removal jurisprudence as set
out in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), was not required since
no prior adjudication existed as to the custody of the minor children. The court, however, did
utilize the analytical framework described in Farnsworth in reaching its conclusion as to the
children’s best interests. The court considered (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 children
and the custodial parent; and (3) the impact such a move will have on contact between the children
and the noncustodial parent, when viewed in the light of reasonable parenting time. Imbedded in




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its analysis of the parent’s motives, the district court made a determination of whether Alicia had
a legitimate reason to remove the children to Missouri.
        We find no error in the analytical framework applied by the district court. 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. We determined, however, that since removal of a child to another
jurisdiction is determined by the children’s best interests we could conceive of no good reason
why the factors set out in Farnsworth could not be properly included in the analytical framework
to determine the children’s best interests. In Derby v. Martinez, 24 Neb. App. 17, 879 N.W.2d 58
(2016), we extended our analysis a step further by addressing the issue of whether an unmarried
parent in an initial custody determination had a legitimate reason to remove a child from the state.
Accordingly, although the Farnsworth factors do not constitute a strict test as applied to the present
case, we will give them consideration in reviewing the district court’s determination regarding
custody and removal of the children from the state.
        Under Farnsworth, the trial court evaluates three considerations in determining whether
removal to another jurisdiction is in the child’s best interests: (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. See Bird v. Bird, 22 Neb. App. 334, 853 N.W.2d 16 (2014).
        In determining the potential that the removal to another jurisdiction holds for enhancing
the quality of life of the child and the parent seeking removal, a court should consider the following
factors: (1) the emotional, physical, and developmental needs of the child; (2) the child’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 child and each parent; (7) the strength of the child’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
custodial parent, because the best interests of the child are interwoven with the well-being of the
custodial parent. See Farnsworth, supra.
                             LEGITIMATE REASON FOR SEEKING MOVE
        Alicia’s stated reason for seeking to move the children to Missouri is to attend the
accelerated nursing program at the University of Central Missouri. Garrett argues that the move is
masking the fact that Alicia wants to prevent regular access to his children. We find Alicia’s
motivations to move the children are legitimate.
        While living in Nebraska, Alicia earns approximately $32,000.00 per year working at
Sprint. Alicia testified that her hours were not always flexible and that she was struggling to make
ends meet. She testified that she was on state-assistance for a period of time. At the time of trial,
she lived in a condominium style home that was owned by a family friend.
        Alicia testified that she wanted to move to Missouri to complete an accelerated nursing
program at UCM. Alicia testified that she would be able to earn her bachelor’s of science in nursing



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in four semesters, or two years. She had credits from prior courses completed at UCM that would
be applicable to her nursing degree. Alicia testified that many of these credits would not transfer
to any university or institution in Nebraska. Alicia testified that she would only be required to pay
$1,000.00 per semester for in-state tuition at UCM, compared to $4,000.00 per semester for tuition
in Nebraska nursing schools. Alicia testified that she was receiving some form of scholarship at
UCM. She testified that she had researched the cost and time associated with at least seven
universities in Nebraska, and that it would take at least three years to complete any of those
programs. Additionally, she testified that she would not be able to afford the cost of out-of-state
or private tuition for an additional year of schooling. Alicia testified that after receiving her degrees
in nursing and Spanish, her earning capacity would increase to $75,000.00 per year. She testified
that she reached this figure by speaking with nurses in the field and by researching salaries on the
internet.
        We have never required a custodial parent to exhaust all possible job leads locally before
securing a better position in another state. Absent some aggravating circumstance, such as an
ulterior motive to frustrate the noncustodial parent’s visitation rights, significant career enrichment
is a legitimate motive in and of itself. See Farnsworth, supra. Upon our de novo review, we find
the district court did not abuse its discretion in finding that Alicia had a legitimate motivation to
move the children to Missouri.
                                    CHILDREN’S BEST INTERESTS
         Garrett assigns the district court’s awarding of custody to Alicia as error. It appears to us
that the best interests argument made by Garrett in his brief primarily address the removal issue.
As previously stated, we need not address the issue of Alicia being granted custody in this case.
However, even if Garrett’s argument were considered an argument for custody, the district court
did not abuse its discretion in awarding custody to Alicia. There was ample evidence to support
the district court’s conclusion that the best interests of the children were served by placing sole
custody with Alicia, the primary caregiver to the children for their entire lives. Our de novo review
of the record further leads us to conclude that the district court did not abuse its discretion in
finding that the children’s move to Missouri with Alicia was in their best interests.
         The ultimate question in evaluating the parties’ motives is whether either party has elected
or resisted a removal in an effort to frustrate or manipulate the other party. McLaughlin v.
McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002). In this case, there was no evidence
demonstrating that either party had an improper motive with regard to the removal action. The
record is clear that Alicia wanted to move the children with her to Missouri in order to obtain her
nursing degree in the shortest possible period of time and at the least cost. With that degree would
come a higher salary. Garrett obviously has the motivation to spend as much time with his children
as possible. However, based upon the district court’s division of parenting time on an annual basis,
Garrett receives just as much parenting time with the children whether they had been residing in
Nebraska or Missouri. We are cognizant of the fact that just because Garrett has designated
parenting time, he would still miss out on day to day functions of the children once they are
enrolled in school, however, we do not believe that consideration outweighs the countervailing
factors.



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        We must also consider the impact on the children’s emotional, physical, and developmental
needs in assessing the extent to which the move could enhance their lives. Hiller v. Hiller, 23 Neb.
App. 768, 876 N.W.2d 685 (2016). Upon our de novo review, we find the evidence demonstrates
that Alicia has been the primary caregiver for both children’s entire lives. Alicia has made all
medical, dental, and therapy appointments for the children. Garrett argues that Alicia has denied
him the opportunity to provide for his share of the children’s needs. We find this argument lacks
support in the evidence.
        As discussed above, Alicia has the opportunity to enhance her station in life through a
career in nursing. Alicia testified that this would not be possible unless she was allowed to attend
the University of Central Missouri. Garrett, on the other hand, has owned his business for over
five years and has not made more than minimum wage, after taxes. Additionally, Garrett has not
provided any support for his assertion that Alicia could just as easily complete a nursing program
in Nebraska.
        Alicia testified that she had obtained a townhome in Missouri. This townhome was larger
than her residence in Plattsmouth. At the time of trial, Garrett lived with his parents in Lincoln.
Garrett testified that when he had overnight parenting time with the children, Bryce slept in a crib
in Garrett’s bedroom and Brayden slept in a separate bedroom.
        At the time of trial, the children had not yet reached school age. Alicia testified that the
school district where the children would attend school in Missouri is rated significantly higher than
the district in which they live in Nebraska. Additionally, Alicia testified that the children would
qualify for a Head Start program in Missouri. Alicia testified that currently, the child care options
in Missouri were significantly less expensive than in Nebraska. Garrett did not adduce any
evidence to dispute Alicia’s testimony regarding the children’s educational advantages.
        As stated above, Alicia has been the primary caregiver for both children since their birth.
The children have lived with Alicia their entire lives. Meanwhile, Garrett has not lived with the
children consistently. Whether it was involuntary incarceration, or the parties’ inability to
co-parent, Garrett has not been a full participant in the more burdensome aspects of parenting. We
do note that Garrett has rarely missed his parenting time, and that there is every indication that he
loves his children. However, there has not been a demonstration that their move to Missouri would
negatively affect their relationship given the significant parenting time he will enjoy.
        The district court noted, and Alicia concedes, that she does not have much familial support
in either Nebraska or Missouri. Alicia testified that she would have support with her children from
members of her church in Missouri. At the time of trial, Alicia’s only relatives who participated in
taking care of the children were her grandparents. Garrett testified that two of his sisters live near
his parent’s home, and have children nearly the same age as his children.
        As stated above, the parties have had a turbulent relationship. We find that the record
demonstrates that distance between the parties would be beneficial for the parties themselves, and
may well be beneficial for the children, in part due to the decrease in frequency of contact between
the parties.
        Nebraska courts have recognized that a noncustodial parent’s visitation rights are
important, but a reduction in visitation time does not necessarily preclude a custodial parent from
relocating for a legitimate reason. Hiller, supra. Rather, we focus on the ability of the noncustodial



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parent to maintain a meaningful parent-child relationship, and such a relationship is possible even
if Brayden and Bryce move to Missouri. See Maranville v. Dworak, 17 Neb. App. 245, 758 N.W.2d
70 (2008).
         In this case, the total amount of parenting time Garrett was awarded annually by the district
court is nearly the same as it had been during the temporary custody order while the children were
living in Nebraska. While it is true that Garrett will not have the ability to participate in the day to
day activities of his children during Alicia’s parenting time, it is clear from the record that the
district court was equitable in its award of parenting time to Garrett. While this factor weighs
slightly against removal, because it will reduce the amount of in-person weekly contact the
children have with Garrett, removal will still allow them to maintain a meaningful relationship.
         A de novo review of the evidence shows that the parents were not motivated by an effort
on the part of either parent to frustrate the relationship of their children with the other and that the
move would enhance the children’s quality of life. Though the move has the potential to impact
the relationship between Garrett and the children, we find they will still be able to see one another
frequently. Garrett and the children will be able to maintain a meaningful relationship despite the
distance. The record demonstrates sufficient evidence to support the district court’s conclusion
that the children’s interests are best served by allowing their removal from Nebraska to Missouri.
                                           CONCLUSION
       Upon our de novo review, we find the district court did not err in finding that Alicia had a
legitimate reason to remove the children from the State of Nebraska and that the move was in the
children’s best interests.
                                                                                        AFFIRMED.




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