                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                  GUTIERREZ V. LUNA-FUNES


  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).


                              EDUARDO E. GUTIERREZ, APPELLEE,
                                               V.

                             CLAUDIA N. LUNA-FUNES, APPELLANT.


                             Filed July 24, 2018.   No. A-17-1177.


       Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge. Affirmed.
       Benjamin Maxell, of Katskee, Suing & Maxell, P.C., L.L.O., for appellant.
        Kenneth Jacobs, of Jacobs Alexander Law, and Stephanie Weber Milone, of Milone Law
Office, for appellee.


       PIRTLE, RIEDMANN, and WELCH, Judges.
       RIEDMANN, Judge.


                                       INTRODUCTION
       Claudia N. Luna-Funes appeals from the order of the district court for Douglas County
which dissolved her marriage to Eduardo E. Gutierrez and determined custody of their minor child.
On appeal, Luna-Funes argues that the court erred in denying her request to remove the child to
Texas and in awarding custody of the child to Gutierrez once the child reaches school age.
Luna-Funes has not presented any assignments of error as required by Neb. Ct. R. App. P.
§ 2-109(D)(1)(e) (rev. 2014); therefore, we review only for plain error. Finding none, we affirm.




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                                         BACKGROUND
         Gutierrez and Luna-Funes were married in November 2013. Their minor child was born in
2015, and Gutierrez filed an initial complaint for legal separation on March 31, 2016. He filed an
amended complaint for dissolution of the marriage on December 1, 2016. Trial on the issues of
custody, removing the child to Texas, and child support was held in October 2017.
         The evidence revealed that the parties moved from California to Omaha, Nebraska, in
2014. In March 2016, Luna-Funes, with the help of her now-fiance, moved out of the home she
shared with Gutierrez and moved to Texas, taking the minor child with her and without informing
Gutierrez that they were leaving. In November 2016, the district court granted Gutierrez temporary
sole legal and physical custody, so he picked the child up from Luna-Funes in Texas. In February
2017, Gutierrez agreed to a temporary order so that Luna-Funes had parenting time in Texas for 3
weeks and then he would have the child for 5 weeks in Omaha. At the time of trial, Gutierrez was
living with his 18-year-old son and was self-employed as an auto electrician.
         Luna-Funes has lived in Texas since moving there in March 2016. She had no plans to
move back to Nebraska, even if custody of the minor child was awarded to Gutierrez. She currently
lives with her fiance, and they have a child together. He works as a construction subcontractor,
and Luna-Funes does not work. Since moving to Texas, Luna-Funes and her fiance have lived in
four different residences; the lease on their current apartment was set to expire the month following
trial, and they were not planning to renew it. Luna-Funes testified that she fled to Texas because
Gutierrez would threaten her and was abusive to her. She admitted, however, that she was
convicted of domestic assault against Gutierrez in 2014, although she claimed that Gutierrez
punched her and she defended herself by biting him.
         After trial, the district court entered a decree dissolving the parties’ marriage. The court
awarded the parties joint legal and physical custody of the child until August 2020, when the child
will begin school. At that point, sole legal and physical custody is awarded to Gutierrez subject to
Luna-Funes’ parenting time. Luna-Funes appeals.
                                  ASSIGNMENTS OF ERROR
          As noted above, Luna-Funes has not presented any assignments of error in her brief on
appeal.
                                            ANALYSIS
        Parties who wish to secure appellate review of their claims must abide by the rules of the
Nebraska Supreme Court. Wilson v. Wilson, 23 Neb. App. 63, 867 N.W.2d 651 (2015). Any party
who fails to properly identify and present its claim does so at its own peril. Id.
        Section 2-109(D)(1)(d), (e), and (f) of the Rules for Appellate Practice requires a separate
section for assignments of error, designated as such by a heading, and also requires that the section
be located after a statement of the case and before a list of controlling propositions of law. Wilson
v. Wilson, supra. The rule requires that the assignments of error section include a separate and
concise statement of each error the party contends was made by the trial court. Id. Each assignment
of error shall be separately numbered and paragraphed, bearing in mind that consideration of the
case will be limited to errors assigned and discussed. Id.



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         Where a party fails to comply with the court rules requiring a separate section setting forth
the assignments of error, an appellate court may proceed as though the party failed to file a brief
entirely or, alternatively, may examine the proceedings for plain error. Id. The decision to proceed
on plain error is at the discretion of the appellate court. Id. Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. Id.
         Because Luna-Funes failed to properly assign errors in her brief, we review the record for
plain error. The premise of Luna-Funes’ argument on appeal is that the district court erred in failing
to (1) award her sole custody of their minor child and (2) allow the child to reside in Texas with
her.
         Generally, in parental relocation cases, courts must follow the analysis set forth in
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). There is a two-step process
before a custodial parent is allowed to remove a child from the State of Nebraska. The custodial
parent must satisfy the court that there is a legitimate reason for leaving the state and that it is in
the minor child’s best interests to continue to live with that parent. See id.
         In Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014), this court considered
whether the removal jurisprudence applied to a situation where the mother removed the child from
Nebraska prior to the commencement of dissolution proceedings or a request for removal. There,
the trial court dissolved the parties’ marriage and found that because there was no prior custody
determination, it was not required to engage in a removal analysis, although the court still
considered the relevant factors in determining custody based upon the child’s best interests. On
appeal, we concluded that the trial court should have made a determination of custody first, then
conducted a proper Farnsworth removal analysis.
         Because Luna-Funes had already moved out of state when the instant proceedings began,
the district court followed the procedure set forth in Rommers v. Rommers, supra, first determining
that joint legal and physical custody was appropriate until the child reached school age. It then
determined that at that time, Gutierrez would have sole legal and physical custody. The court
further found that Luna-Funes had no legitimate reason for leaving the state, and even if she had,
an application of the Farnsworth factors would still result in a denial of removal. We find no plain
error in the district court’s decision awarding custody of the minor child to Gutierrez.
         The best interests of the child require a parenting arrangement and parenting plan which
provides for a child’s safety, emotional growth, health, stability, and physical care and regular and
continuous school attendance and progress for school-age children. Neb. Rev. Stat. § 43-2923(1)
(Reissue 2016). Section 43-2923(6) requires a court, in determining custody and parenting
arrangements, to consider certain factors relevant to the best interests of the minor child, including:
                 (a) The relationship of the minor child to each parent prior to the commencement
         of the action or any subsequent hearing;
                 (b) The desires and wishes of the minor child, if of an age of comprehension but
         regardless of chronological age, when such desires and wishes are based on sound
         reasoning;
                 (c) The general health, welfare, and social behavior of the minor child;




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              (d) Credible evidence of abuse inflicted on any family or household member. For
       purposes of this subdivision, abuse and family or household member shall have the
       meanings prescribed in section 42-903; and
              (e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.

See also, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). In addition to these statutory
“best interests” factors, a court making a child custody determination may consider matters such
as the moral fitness of the child’s parents, including the parents’ sexual conduct; respective
environments offered by each parent; the emotional relationship between child and parents; the
age, sex, and health of the child and parents; the effect on the child as the result of continuing or
disrupting an existing relationship; the attitude and stability of each parent’s character; and the
parental capacity to provide physical care and satisfy the educational needs of the child. Id.
        We first note that neither party challenges the award of joint custody, and we therefore
address only the award of sole custody to Gutierrez. Upon our review of the record, we find no
plain error in the district court’s conclusion that awarding sole custody of the child to Gutierrez
beginning in August 2020 was in the child’s best interests. In reaching this decision, the court
found that Gutierrez has demonstrated that he is a good parent by raising his older child and has
demonstrated that he is more stable than Luna-Funes. It further observed that Luna-Funes took the
child and left the state without notifying Gutierrez, she has moved numerous times since leaving
Omaha, and she has given birth to a new child. The court also noted that the evidence as to any
domestic abuse was unclear, but it recognized that Luna-Funes was convicted of domestic assault
several years ago.
         It is not our role as an appellate court under a plain error standard of review to substitute
our opinion for an opinion of a district court that is reasonably supported by the record. Steffy v.
Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014). Furthermore, we cannot conclude from the record
that the factual findings of the district court were so unsubstantiated that any purported errors were
injurious to the integrity, reputation, or fairness of the judicial process as to justify reversal on
appeal under the plain error doctrine. See id. Because we affirm placing custody with Gutierrez,
we need not engage in the removal analysis.
                                          CONCLUSION
       The district court did not plainly err in concluding that the child’s best interests are served
by placing his custody with Gutierrez once he begins school. The district court’s order is therefore
affirmed.
                                                                                           AFFIRMED.




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