   Decisions of the Nebraska Court of Appeals
856	21 NEBRASKA APPELLATE REPORTS



            Clinton M.,       appellee, v.   Paula        M.,   appellant.
                                    ___ N.W.2d ___

                         Filed April 1, 2014.    No. A-12-920.

 1.	 Child Custody: Appeal and Error. Child custody determinations are matters ini-
      tially 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.
 2.	 Judgments: Words and Phrases. An abuse of discretion occurs when a trial
      court bases its decision upon reasons that are untenable or unreasonable or if its
      action is clearly against justice or conscience, reason, and evidence.
 3.	 Child Custody. 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. 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.
 4.	 Child Custody: Proof: Intent. In circumstances where parents share joint legal
      and physical custody and one parent seeks to remove a child from the state, the
      parent seeking modification must first prove a material change in circumstances
      affecting the best interests of the child by evidence of a legitimate reason to
      leave the state, together with an expressed intention to do so; once the party
      seeking modification has met this threshold burden, the separate analyses of
      whether custody should be modified and whether removal should be permitted
      become intertwined.
 5.	 Child Custody. In cases where a noncustodial parent is seeking sole custody of a
      minor child while simultaneously seeking to remove the child from the jurisdic-
      tion, a court should first consider whether a material change in circumstances has
      occurred and, if so, whether a change in custody is in the child’s best interests. If
      this burden is met, then the court must make a determination of whether removal
      from the jurisdiction is appropriate.
  6.	 ____. 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.
 7.	 Child Custody: Proof. The party seeking modification of child custody bears the
      burden of showing a material change in circumstances.

   Appeal from the District Court for Sarpy County: Max
K elch, Judge. Affirmed.
   Justin A. Quinn and Casey J. Quinn for appellant.
  Gerald D. Johnson and Maxwell Crawford, Senior Certified
Law Student, of Johnson & Pekny, L.L.C., for appellee.
   Inbody, Chief Judge, and Moore and Riedmann, Judges.
        Decisions   of the Nebraska Court of Appeals
	                    CLINTON M. v. PAULA M.	857
	                     Cite as 21 Neb. App. 856

   Inbody, Chief Judge.
                      INTRODUCTION
   Paula M. appeals the decision of the Sarpy County District
Court denying her request to modify the parties’ dissolution
decree to grant her sole legal and physical custody of the par-
ties’ minor child and denying her request to remove the child
from Nebraska to California.
                    STATEMENT OF FACTS
   Clinton M. and Paula were married on March 21, 1998.
They had one child, Alexis M., who was born earlier that year
in February. The parties’ marriage was dissolved by a decree
entered on August 8, 2002, by the 26th Judicial District Court,
Bossier Parish, Louisiana. The decree granted the parties joint
legal and physical custody of Alexis. The decree was modi-
fied in December 2006 by the Circuit Court of Pulaski County,
Arkansas, to award sole custody of Alexis to Clinton, with
Paula’s visitation restricted to Arkansas. Another modification
occurred in July 2008, wherein the Arkansas court granted
Paula specific parenting time with Alexis.
   On April 2, 2009, Clinton filed a complaint to register
these foreign judgments in the Sarpy County District Court.
He contemporaneously filed a complaint to modify the par-
ties’ dissolution decree, requesting that Paula’s parenting time
be restricted to the State of Nebraska and that Paula be
ordered to provide support in accordance with the Nebraska
Child Support Guidelines. Paula filed a countercomplaint to
modify, requesting sole legal and physical custody of Alexis
and requesting that she be allowed to remove Alexis from
Nebraska to California, where Paula resides. Trial on both
Clinton’s complaint and Paula’s countercomplaint was held
on August 30, 2012. The parties stipulated prior to the start of
trial that due to the significant travel involved with parenting
time, regardless of who had custody of Alexis, a deviation from
the child support guidelines down to a support amount of zero
was appropriate.
   The evidence at trial established that Alexis suffers from
serious mental health issues. Due to these issues, in January
2008, Clinton, a member of the U.S Air Force, was reassigned
   Decisions of the Nebraska Court of Appeals
858	21 NEBRASKA APPELLATE REPORTS



to Nebraska from Germany because Alexis’ mental health
providers at the Air Force base did not feel that they could
properly care for her there. The record reflects that Alexis, now
16 years old, has been diagnosed with bipolar mood disorder,
posttraumatic stress disorder, attention deficit hyperactivity
disorder, reactive attachment disorder, oppositional defiant dis-
order, and cerebral dysrhythmia, which is abnormal electrical
activity in the brain which could contribute to a mood disorder
and anger outbursts. Alexis has also suffered from depression,
explosive anger outbursts, and a mood disorder.
   Alexis’ conditions have required professional assistance,
which she has received from various providers, including Dr.
Jamie Ryder, a psychologist who provided individual therapy
every other week for Alexis from September 2009 until June
2012; Bridgette Maas, who provided weekly family therapy
from December 2010 until January 2012; and Amy Jackson,
Alexis’ primary therapist from April 13 through July 11, 2012.
Each of these providers testified at trial.
   As a result of her mental health issues, Alexis has exhibited
symptoms of racing thoughts, mood swings, and low moti-
vation, and she has major difficulties with impulse control
and emotional regulation. Her behaviors have included lying,
manipulation, refusing to follow rules, hoarding food, steal-
ing, wetting and defecating herself, destroying property, mak-
ing self-harm statements, and exhibiting aggressive behavior
toward others, including Clinton’s wife and Alexis’ younger
half sister, and generally displaying out-of-control, noncompli-
ant, and defiant behaviors. Clinton testified that throughout
the majority of her life, Alexis’ behaviors have been “up and
down”; she has some “good” days, while on other days, she is
angry, disobedient, and difficult to manage.
   Alexis’ behaviors reached a critical point in the spring
of 2011, when the following event occurred: Alexis and
Clinton’s wife were arguing when Alexis allegedly pushed
her down a flight of stairs, rendering her unconscious, and
then Alexis proceeded to leave the home without notifying
anyone of Clinton’s wife’s condition. This event resulted in
Alexis’ being admitted into an acute treatment facility and the
recommendation that Alexis receive treatment at a residential
         Decisions   of the Nebraska Court of Appeals
	                     CLINTON M. v. PAULA M.	859
	                      Cite as 21 Neb. App. 856

facility due to her increasing violent tendencies. Pursuant to
this recommendation, in mid-March, Alexis began residential
treatment at a children’s treatment center in Kansas City,
Missouri, which provides intensive inpatient behavioral treat-
ment. Alexis was discharged from the treatment center in
September 2011.
   After being discharged from the treatment center, Alexis
did very well, initially: She went back to school and started
running in cross-country and swimming. However, Alexis then
became depressed and started getting angry, isolating herself,
not listening, and having problems at school. In October 2011,
after a disagreement with Clinton and his wife, Alexis went
into her room, cut her hair with a box cutter, and crawled onto
the roof of the home, with the end result of police searching
for her. After this episode, Alexis was admitted into an acute
treatment facility. Throughout the fall of 2011, Alexis’ behav-
iors continued.
   Despite Alexis’ behaviors, Ryder felt that a trial visit allow-
ing Alexis to visit Paula in California would be beneficial, so
it was arranged for Alexis to visit Paula over Christmas break.
Although Alexis ended up attending the visit as scheduled,
there were two significant incidents prior to her leaving for
the visit. The first incident occurred in a family therapy ses-
sion with Maas in which Alexis stated that she was not sure
whether she could stay safe at Paula’s home and that she was
worried she might kill Paula’s 21⁄2-year-old disabled son. Maas
and Alexis came up with a safety plan, which Alexis took with
her to California, and Maas spoke with Paula about how to
make sure Alexis was safe at Paula’s home. The second inci-
dent occurred the day before Alexis was supposed to leave for
California. Alexis got a kitchen knife and attempted to stab her
way into her 4-year-old half sister’s room, carved scratches
into the door, and left the knife stuck in the door. Alexis told
Maas that she was very angry, that she was mad at her younger
half sister because she got a lot of attention, that Alexis herself
wanted attention, and that she wanted to hurt her half sister.
She also said that she was scared to go to Paula’s home and
that if she had been able to get her half sister’s locked door
open, she would have hurt her.
   Decisions of the Nebraska Court of Appeals
860	21 NEBRASKA APPELLATE REPORTS



   As a result of Alexis’ threatening behavior toward her
younger half sister, Clinton sought to have Alexis admitted to
an acute treatment facility; however, Alexis’ treating psychia-
trist felt that Alexis was attempting to sabotage her visit with
Paula and recommended that Alexis visit Paula in California
as planned. Following this recommendation, Alexis was not
admitted to the facility and went to California for the visit as
planned. At the conclusion of the visit, it was reported by both
Paula and Alexis that the visit went well and that there were
no problems. Despite telling her family therapist that she had
fun and was excited about the visit, after returning, Alexis
became angry and ripped up pictures of Paula, Paula’s older
daughter, and Paula’s son. Alexis told Maas that she was angry
at Paula’s son because he was “cute” and “got so much atten-
tion” and that she did not get the same attention when she was
a child.
   Although the California visit went well, due to Alexis’
behaviors, Clinton pursued another residential placement for
Alexis. The residential placement recommended by Clinton’s
insurance was Meridell Achievement Center (Meridell) in
Liberty Hill, Texas. Alexis was admitted to Meridell, a 24-hour
nursing psychiatric facility/residential program, on January 23,
2012. Therapists at Meridell initiated the idea of Clinton’s
requesting the Air Force for a transfer to Texas in order to
more fully participate in Alexis’ therapy. Clinton requested a
transfer in March 2012, due to medical necessity. His request
was approved in mid-June, and later that month, he relocated
to Texas, arriving on June 30. Paula testified that although
Clinton had decided to place Alexis in residential treatment
in Texas, she was not consulted prior to Alexis’ admission
at Meridell, that Paula was initially informed about Alexis’
admission from Ryder, and that Clinton informed her only after
Alexis had already been admitted to Meridell.
   While at Meridell, Alexis received individual, family, rec-
reational, and group therapy, as well as medication manage-
ment. Jackson, Alexis’ primary therapist at Meridell, saw
Alexis for therapeutic treatment, providing individual therapy
at least once per week, family therapy twice per week,
and group therapy four times per week from April through
        Decisions   of the Nebraska Court of Appeals
	                    CLINTON M. v. PAULA M.	861
	                     Cite as 21 Neb. App. 856

July 2012. Jackson testified that during Alexis’ treatment at
Meridell, Alexis made progress in terms of mood manage-
ment, developing better coping skills to deal with depression
and anger, developing better peer relationships, and develop-
ing a better working relationship with her family. However,
Jackson felt that even after Alexis was released, she would
probably need to go back into residential treatment, which
Jackson testified was not unusual for children when they
have had long-term difficulties and reach different stages
of development.
   In fact, after being discharged from Meridell on July 11,
2012, Alexis spent approximately 6 days at home and began
a partial program where she would spend the day in therapy
and then return home in the evening. However, on July 17,
Alexis was admitted into an acute treatment facility due to
homicidal threats and her unwillingness to agree to a safety
plan. Alexis was released from the facility on July 23, and
returned to the partial program the following day. On August
6, after returning home after spending the day at the partial
program, Alexis was readmitted to the acute treatment facil-
ity after she told Clinton that she was feeling very depressed
and that she thought she might hurt herself and requested that
Clinton take her to the facility to be evaluated. Alexis was
transferred from the acute treatment facility to the residen-
tial treatment program, where she remained up until the time
of trial.
   Ryder testified that throughout Alexis’ therapy, she had
patterns and mood swings where she would alternate between
idolizing one parent and vilifying the other and, depend-
ing on her mood, would alternate between wanting to live
with Paula and not wanting to live with her. Alexis’ mood
swings could change from hour to hour, she would sabotage
situations in her life, and when things were going well or
her mood changed or something upset her, she was likely to
react very negatively. Alexis admitted to sabotaging when
she was uneasy or nervous or unsure of herself. Additionally,
Ryder acknowledged that Alexis could be extremely violent
when she is angry. Alexis’ anger was described by Maas as a
rage: When angry, Alexis becomes impulsive and irrational,
   Decisions of the Nebraska Court of Appeals
862	21 NEBRASKA APPELLATE REPORTS



and has mood swings ranging from crying to anger to being
very violent.
   An example of Alexis’ mood swings was a spring 2010
in-person visit to Ryder’s office by Paula and her older daugh-
ter and son. Ryder testified that prior to the visit, Alexis
seemed to be very happy and excited; then, the day prior to
the visit, she became resistant, running away from school the
day of the visit, and then refusing to see Paula’s other children.
Ryder reported that despite this, once Alexis was convinced to
come into the office for the visit, the visit went very well from
all outward appearances: Alexis seemed happy, she was very
engaged, and she was “[v]ery loving” with both Paula and her
other children. However, the morning after the visit, Alexis left
Ryder a voicemail in which she stated that she was scared and
worried that Paula was going to try to “kidnap” her again and
in which she refused to come to another visit that had been
scheduled. When Ryder called to speak to Clinton, he reported
that almost immediately after Alexis got home from the visit,
she became very upset and distraught and “broke down,” say-
ing that she had been uncomfortable and anxious and that the
visit “went horribly.” Ryder testified that there was no actual
danger to Alexis posed by Paula, but that the problem was
caused by Alexis’ perception of the events and her fluctuat-
ing moods.
   Ryder testified that stability and consistency in the home
and cooperation with the therapist are essential in the treatment
of a child like Alexis, and both Ryder and Jackson agreed that
Clinton and Paula actively participated in Alexis’ therapy. Paula
participated in family therapy telephonically, and she traveled
for in-person family therapy, often at her own expense. Ryder
testified that Clinton tried very hard to cooperate and provide
stability and consistency in Alexis’ treatment, that Alexis was
always at her appointments and always on time, that Clinton
provided updates and participated in Alexis’ treatment, and
that he worked very hard to look at different ways of parent-
ing and different ways of dealing with the situation to try to
help Alexis. Additionally, Ryder testified that she believes that
Clinton loves Alexis very much, has her best interests at heart,
and, to the best of his ability, has tried a lot of the things that
        Decisions   of the Nebraska Court of Appeals
	                    CLINTON M. v. PAULA M.	863
	                     Cite as 21 Neb. App. 856

have been recommended as far as parenting Alexis. Ryder tes-
tified that Clinton expressed he wanted Alexis to have a good
relationship with Paula and to have contact with her and that
he never did anything to suggest he was trying to keep Alexis
from having a relationship with Paula. Similarly, Maas testified
that she was never concerned about Clinton’s “shutting out”
Paula or keeping her from participating in Alexis’ therapy and
that he has always been positive about Alexis’ treatment and
“staying on top of the goals.”
    Ryder noted that Alexis has exhibited behaviors in multiple
settings, both in Clinton’s home and in residential treatment,
although the behaviors exhibited at home were more severe.
Ryder explained that this would not be unusual, because resi-
dential treatment environments are significantly more struc-
tured environments than a home setting and, additionally, there
is peer pressure to behave because if a child misbehaves, not
only is the child punished, but all of the child’s peers are pun-
ished. There can also be a “honeymoon period” which can last
for several months when children go into residential treatment;
this “honeymoon period” can also be exhibited on a visit with
a noncustodial parent.
    Jackson testified that when transitioning a child from resi-
dential treatment back into the home, the most important sup-
port is for the parent to provide the child a home environment
that is consistent and safe, to make sure there are opportunities
for ongoing therapy to assist in the transition, to be mindful of
the child’s psychiatric difficulties and understand the possible
impact on parenting, and to be mindful of the parent’s frus-
trations and feelings and evaluate whether he or she is doing
what is best for the child. However, Maas testified that based
upon Alexis’ history, Alexis will probably continue to struggle
more with her custodial family members than her noncustodial
family, because she resides with them and they can see her
moods fluctuate, they deal with her behaviors, and they are
working with her school and physicians and are implement-
ing rules.
    Both Clinton and Paula testified that they thought it was
in Alexis’ best interests to be with their respective families.
Paula testified that she believed that it is in Alexis’ best
   Decisions of the Nebraska Court of Appeals
864	21 NEBRASKA APPELLATE REPORTS



interests to be with her, because although Alexis has been in
Clinton’s home for the past 31⁄2 years, her behaviors have con-
tinued to get worse and there continue to be safety concerns
regarding people in the home. Therefore, Paula believes that
Alexis should be given the opportunity to live with her to see
whether Alexis can do better. Paula testified that if the court
were to grant her custody, she would want Alexis to remain at
the inpatient treatment center until her doctors determine that
she could return home. Paula testified that she has investigated
the possibility of Alexis’ receiving treatment in California and
has found that similar programs such as day programs, inpa-
tient programs, acute treatment hospitals, residential facilities,
and therapists are available. Paula conceded that it was pos-
sible that Alexis would act out in her home, but she stated that
“[n]obody knows.” She further stated that Alexis, who was 14
years old at the time of trial, is very close with Paula’s older
daughter, who was 17 years old and a senior in high school
at the time, and that her older daughter is a positive influence
on Alexis.
   Clinton testified that he and his wife are best suited to care
for Alexis, stating:
      We’ve gone through every therapy session with [Alexis].
      We’ve talked to all the providers. We do exactly what
      they tell us to do. I mean we’re best suited. We do our
      best to always be consistent with her. And we love her.
      And all we want is her to just have a more normal life.
Further, upon being asked about the ongoing behaviors and
violence that Alexis has displayed in his home and why he
wants Alexis to remain in his home, Clinton testified:
      I love [Alexis], and we’ve been trying to help her through
      this very tough situation. And we’ve grown to be able to
      — the way I look at it is we’re handling it. We’re taking
      care of her. We’re doing our best for her. We’re trying
      to give her the kind of home that she needs, the stability
      and consistency.
   On September 5, 2012, the district court entered an order
noting that in April 2009, Clinton registered the aforemen-
tioned foreign orders from Louisiana and Arkansas in the
Sarpy County District Court. The order denied both Clinton’s
         Decisions   of the Nebraska Court of Appeals
	                     CLINTON M. v. PAULA M.	865
	                      Cite as 21 Neb. App. 856

complaint to modify and Paula’s countercomplaint to modify,
which had requested sole custody of Alexis and removal of
Alexis to California. Regarding Paula’s countercomplaint, the
court specifically found that the evidence reflected Clinton was
a fit parent and that the evidence was insufficient to find that a
change in custody would be in Alexis’ best interests. The dis-
trict court’s order also stated:
      [T]he State of Nebraska has not issued any permanent
      order in regard to custody. . . . As a result . . . this
      matter is controlled by State ex rel. Pathammavong v.
      Pathammavong, 268 Neb. 1 (2004), where the Supreme
      Court held that removal is an issue only when there has
      been a previous order of custody entered in this State.
Paula has timely appealed to this court.
                ASSIGNMENT OF ERROR
  Paula contends that the district court erred in denying her
countercomplaint to modify custody and to allow removal of
Alexis from Nebraska.
                   STANDARD OF REVIEW
   [1,2] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
An abuse of discretion occurs when a trial court bases its
decision upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
                           ANALYSIS
   We note that the instant case presents an unusual factual
situation wherein the noncustodial parent is seeking sole cus-
tody of a minor child while simultaneously seeking to remove
the child from the jurisdiction.
   [3,4] In most cases in which a parent is seeking to remove
a child from the jurisdiction, the parent is the custodial parent.
Our removal jurisprudence provides that in order to prevail on
a motion to remove a minor child to another jurisdiction, the
   Decisions of the Nebraska Court of Appeals
866	21 NEBRASKA APPELLATE REPORTS



custodial parent must first satisfy the court that he or she has
a legitimate reason for leaving the state. 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. Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d
592 (1999). The standard is modified where parents share joint
legal and physical custody and one parent seeks sole custody
and simultaneously seeks removal of the child from the juris-
diction. See Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70
(2000). In circumstances where parents share joint legal and
physical custody, the parent seeking modification must first
prove a material change in circumstances affecting the best
interests of the child by evidence of a legitimate reason to
leave the state, together with an expressed intention to do so;
once the party seeking modification has met this threshold
burden, the separate analyses of whether custody should be
modified and whether removal should be permitted become
intertwined. See id.
   However, another approach was suggested in a concurrence
in Brown, authored by Justice Wright and joined by Justice
Connolly. Justice Wright noted that relocation of a child would
obviously result in a modification of custody by transferring
physical custody to the parent who desired to relocate. Thus,
Justice Wright expressed that where parties have joint legal
and physical custody, custody is the first issue which should
be decided, with the burden of proof on the party seeking
to relocate to first show there had been a material change
in circumstances that would justify a change in the custody
arrangement. Brown v. Brown, supra (Wright, J., concurring;
Connolly, J., joins).
   [5] Additionally, we recently considered a case which pre-
sented a factual situation similar to that presented in the instant
case. In State on behalf of Savannah E. & Catilyn E. v. Kyle
E., 21 Neb. App. 409, 838 N.W.2d 351 (2013), the noncusto-
dial parent filed a motion requesting to be awarded primary
physical custody of the parties’ two minor children and simul-
taneously requesting to remove the minor children from the
jurisdiction. We held that in cases where a noncustodial parent
is seeking sole custody of a minor child while simultaneously
         Decisions   of the Nebraska Court of Appeals
	                     CLINTON M. v. PAULA M.	867
	                      Cite as 21 Neb. App. 856

seeking to remove the child from the jurisdiction, a court
should first consider whether a material change in circum-
stances has occurred and, if so, whether a change in custody
is in the child’s best interests. If this burden is met, then the
court must make a determination of whether removal from the
jurisdiction is appropriate. Id. We affirmed the decision of the
district court modifying custody and granting permission to
remove the minor children from the jurisdiction.
   In the instant case, since Paula has requested both to modify
custody and to remove Alexis from the jurisdiction, we first
consider whether custody should be modified, prior to a deter-
mination of the removal issue.

Denial of Countercomplaint
to Modify Custody.
   Paula contends that the district court erred in denying her
countercomplaint to modify custody.
   [6,7] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best inter-
ests of the child require such action. Watkins v. Watkins, 285
Neb. 693, 829 N.W.2d 643 (2013); Heistand v. Heistand, 267
Neb. 300, 673 N.W.2d 541 (2004). The party seeking modifi-
cation of child custody bears the burden of showing a mate-
rial change in circumstances. Vogel v. Vogel, 262 Neb. 1030,
637 N.W.2d 611 (2002); Wild v. Wild, 13 Neb. App. 495, 696
N.W.2d 886 (2005).
   The evidence at trial established that Clinton is a parent who
has been actively engaged in seeking out, and participating in,
the appropriate mental health treatment for Alexis. He has pro-
vided, to the best of his ability, a stable and consistent home
environment for Alexis and implemented suggestions from
therapists for parenting Alexis. Further, although there is room
for improvement in the communication between Clinton and
Paula, there is no evidence that Clinton has either interfered
with Paula’s parenting time with Alexis or prevented or oth-
erwise interfered with Paula’s participation in Alexis’ mental
health treatment. Thus, Paula failed to show that Clinton was
an unfit parent.
   Decisions of the Nebraska Court of Appeals
868	21 NEBRASKA APPELLATE REPORTS



   Further, the evidence presented established that Alexis suf-
fers from severe mental health conditions which have been
ongoing for an extended period of time; these issues do not
appear to be specifically related to her environment. Alexis
has exhibited behaviors both at home and at residential treat-
ment, and, although her behaviors at home are more severe,
Ryder pointed out that residential treatment, by its nature, is
a significantly more structured environment than a home set-
ting and that there is also peer pressure to behave because if
a child misbehaves, the child and all of the child’s peers are
punished. Ryder also referenced a “honeymoon period” which
can take place when a child enters a new environment such
as residential treatment or a visit with a noncustodial parent.
Further, the evidence establishes that concern for the safety of
Alexis’ family cannot be limited to Clinton’s family; although
the record does not show that Alexis has physically assaulted
anyone in Paula’s home, the record did reflect that Alexis
expressed an ideation of killing Paula’s son. Although Paula
points to evidence that Alexis wants to reside with her, the
evidence is clear that Alexis has mood swings and routinely
changes her position on Clinton and Paula, alternating between
idolizing one parent and vilifying the other. Alexis, while in
Clinton’s custody, has been provided a stable and consistent
home and has been provided mental health care consistently.
The difficulties faced by Alexis are not a product of a lack
of effort by Clinton; they are a product of the disease from
which she suffers. Paula has failed to establish that it would
be in Alexis’ best interests for custody to be modified. Having
concluded Paula failed to prove a material change in circum-
stances showing that Clinton is unfit or that Alexis’ best inter-
ests require such action, we find that this assignment of error
is without merit.
Denial of Motion to Remove
Alexis From Jurisdiction.
  Because we have determined that the district court properly
denied Paula’s motion to modify custody, it follows that we
must also find that her motion to remove was properly denied
because Paula does not have custody of Alexis.
            Decisions     of the    Nebraska Court of Appeals
	                              STATE v. MATTHEWS	869
	                              Cite as 21 Neb. App. 869

                      CONCLUSION
  Based upon our de novo review of the record,                           the district
court properly denied Paula’s countercomplaint                           to modify,
which had requested sole custody of Alexis and                           removal of
Alexis to California. Therefore, the decision of                         the district
court is affirmed.
                                                                         Affirmed.



                     State of Nebraska, appellee, v.
                    William W. Matthews, appellant.
                                    ___ N.W.2d ___

                        Filed April 1, 2014.    No. A-12-1052.

 1.	 Constitutional Law: Statutes: Judgments: Appeal and Error. In proceedings
      where the Nebraska Evidence Rules apply, the admissibility of evidence is con-
      trolled by the Nebraska Evidence Rules; judicial discretion is involved only when
      the rules make such discretion a factor in determining admissibility.
 2.	 Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
      commit the evidentiary question at issue to the discretion of the trial court, the
      admissibility of evidence is reviewed for an abuse of discretion.
 3.	 Judges: Words and Phrases. A judicial abuse of discretion exists only when
      the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
      a litigant of a substantial right and denying a just result in matters submitted
      for disposition.
 4.	 Jury Instructions. Whether jury instructions given by a trial court are correct is
      a question of law.
 5.	 Judgments: Appeal and Error. When dispositive issues on appeal present ques-
      tions of law, an appellate court has an obligation to reach an independent conclu-
      sion irrespective of the decision of the court below.
 6.	 Self-Defense. To successfully assert a claim of self-defense as justification for
      the use of force, the defendant must have a reasonable and good faith belief in
      the necessity of such force and the force used must be immediately necessary and
      must be justified under the circumstances.
  7.	 ____. A determination of whether the victim was the first aggressor is an essential
      element of a self-defense claim.
 8.	 Self-Defense: Evidence: Proof. Evidence of a victim’s violent character is pro-
      bative of the victim’s violent propensities and is relevant to the proof of a self-
      defense claim.
 9.	 Rules of Evidence. Neb. Rev. Stat. § 27-404 (Reissue 2008) provides that a
      defendant may present evidence of a pertinent trait of a victim’s character to
      show that the victim acted in conformity therewith on a particular occasion.
