Steffy v. Steffy, S–12–082
| Decision Date | 28 February 2014 |
| Docket Number | No. S–12–082,S–12–082 |
| Citation | 287 Neb. 529,843 N.W.2d 655 |
| Parties | Brian David Steffy, appellant, v. Randi Jo Steffy, now known as Randi Jo Stenson, appellee. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Petition for further review from the Court of Appeals, Irwin, Pirtle, and Riedmann, Judges, on appeal thereto from the District Court for Cass County, Randall L. Rehmeier, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.
Karen S. Nelson and Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellant.
Steven M. Delaney, Darin L. Whitmer, and A. Bree Swoboda, Senior Certified Law Student, of Reagan, Melton & Delaney, L.L.P., for appellee.
1. Rules of the Supreme Court: Appeal and Error. Parties who wish to secure appellate review of their claims must abide by the rules of the Nebraska Supreme Court. Any party who fails to properly identify and present its claim does so at its own peril.
2. Rules of the Supreme Court: Appeal and Error. Neb. Ct. R.App. P. § 2109(D)(1)(d), (e), and (f) (rev.2008) 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.
3. Rules of the Supreme Court: Appeal and Error. Assignments of error consisting of headings or subparts of the argument section do not comply with the mandate of Neb. Ct. R.App. P. § 2109(D)(1)(e) (rev.2008).
4. Rules of the Supreme Court: Appeal and Error. When a party fails to follow the rules of the Nebraska Supreme Court, an appellate court may proceed as though the party had failed to file a brief or, alternatively, may examine the proceedings for plain error.
5. Appeal and Error. The decision to proceed on plain error is at the discretion of the appellate court.
6. Appeal and Error. 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.
7. Evidence: Appeal and Error. Where 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 court heard and observed the witnesses and accepted one version of the facts rather than another.
8. Child Custody. Child removal determinations are matters initially entrusted to the discretion of the trial judge, and the trial judge's determination is to be given deference.
9. 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.
10. Child Custody: Visitation. The purpose of requiring a legitimate reason for leaving the state in a motion to remove a minor child to another jurisdiction is to prevent the custodial parent from relocating the child because of an ulterior motive, such as frustrating the noncustodial parent's visitation rights.
11. Child Custody. In considering a motion to remove a minor child to another jurisdiction, the paramount consideration is whether the proposed move is in the best interests of the child.
12. Child Custody. 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. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted.
13. Child Custody: Visitation. The impact the move will have on contact between the child and the noncustodial parent must be viewed in light of the court's ability to devise reasonable visitation arrangements. A reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent.
This case is before us on further review of the decision of the Nebraska Court of Appeals.1 Brian David Steffy has primary custody of his son, Jakob Steffy, pursuant to a divorce decree entered in the Cass County District Court. Brian requested permission from the district court to remove Jakob from the State of Nebraska and move to the State of Texas. Jakob's mother, Randi Jo Steffy, now known as Randi Jo Stenson, resisted. After a bench trial, the district court denied the request, finding that Brian had failed to meet his burden to show that he had a legitimate reason to relocate and that the relocation was in the best interests of Jakob. Brian appealed. His appellate brief failed to properly set forth assignments of error, but the Court of Appeals found plain error and reversed the district court's decision on removal.2 We granted Randi's petition for further review, and we reverse the decision of the Court of Appeals.
Brian and Randi were married, and Jakob was born in August 2001. In 2003, Brian, Randi, and Jakob relocated to Plattsmouth, Nebraska, when Randi, who is on active duty military status in the U.S. Army, was assigned to Offutt Air Force Base in Bellevue, Nebraska. Neither Randi nor Brian had immediate family in Nebraska.
In April 2008, the district court entered a decree of dissolution for Brian and Randi's marriage. The district court granted legal custody of Jakob to Brian with reasonable rights of visitation for Randi. Randi was ordered to pay child support.
Jakob lives in Brian's house in Plattsmouth. Brian also served in the military, and after retiring, Brian received a degree from Creighton University in elementary education and has his teaching certification for the State of Nebraska. Brian works as a substitute teacher for Bellevue Public Schools, earning between $125 and $140 per day. Brian has applied but has been unable to gain employment as a full-time teacher.
In April 2011, Brian married Sheri Steffy. Sheri and her children moved in with Brian and Jakob. Sheri is a certified teacher in the State of Nebraska and is a full-time first grade teacher for Bellevue Public Schools. Sheri is originally from Oklahoma.
Every other weekend and during the summer and holidays, Randi is granted visitation time with Jakob. At the time of the divorce, Randi was stationed in Fort Leavenworth, Kansas. Randi was then transferred to Fort Knox, Kentucky, when she voluntarily took a position as a colonel in the U.S. Army. When Randi exercises her rights of weekend visitation with Jakob, she flies by plane into Kansas City, Missouri, and picks Jakob up from Brian in Rock Port, Missouri. Randi and Jakob then stay with Randi's sister in Missouri. During extended breaks, Jakob will travel to Fort Knox to stay with Randi.
Jakob has an autism spectrum disorder. The disorder is a spectrum of related disabilities that are marked by communication difficulties, stereotypic behavior, and social difficulties.
To overcome his learning difficulties, Jakob receives an individualized education plan (IEP) at school. As part of this plan, Jakob receives a combination of general education, special education, and therapeutic work. This includes 12 to 15 hours a week of Applied Behavior Analysis (ABA) therapy. The purpose of ABA therapy is to change Jakob's behaviors by increasing appropriate behaviors and by decreasing the inappropriate behaviors. By all accounts, Jakob has progressed “wonderfully” under the Plattsmouth School District's IEP for him. In order to maintain progress, similar services and therapies need to continue throughout his schooling.
In December 2010, Brian filed a complaint to modify the decree of dissolution of marriage and the parenting plan. In the complaint, Brian requested sole legal care, custody, and control of Jakob; an increase in child support; and to be allowed to remove Jakob from the State of Nebraska to the State of Texas. Randi resisted the move.
On August 25, 2011, a bench trial was held. Brian's first witness was Keery Wolf. Wolf is a board-certified behavioral analyst with a master's degree in early childhood special education. Her company, Wolf Behavioral Consulting, provided services to children with autism and other related disabilities. Wolf was the supervisor for Jakob's applied behavior analysis program at school.
At the time of trial, Wolf had contracted Jakob's services out to another company started by a former employee. Wolf is the only board-certified behavioral analyst that works with autistic children in schools in the eastern Nebraska area, and Wolf Behavioral Consulting was moving in a direction that would end those services. However, she testified that her former employee was working toward her board certification to take over those services.
Wolf testified that based on her research, there are more ABA services available to Jakob in Texas than in Nebraska. She testified that the ABA services do not need to be through the same provider but that the quality of services needs to be maintained. Wolf testified that Jakob's ABA needs could be met by the services provided in Texas.
Sheri testified that she and Brian wanted to move the...
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