Brown v. Brown

• Decision Date: 22 December 2000
• Docket Number: No. S-99-1444.,S-99-1444.
• Citation: 621 N.W.2d 70,260 Neb. 954
• Parties: Cynthia M. BROWN, now known as Cynthia M. Morales, Appellant, v. Dwight E. BROWN, Jr., Appellee.
• Court: Nebraska Supreme Court

621 N.W.2d 70

260 Neb. 954

Cynthia M. BROWN, now known as Cynthia M. Morales, Appellant, v. Dwight E. BROWN, Jr., Appellee.

No. S-99-1444.

Supreme Court of Nebraska.

December 22, 2000.

James M. Kelley, of Berry, Kelley, Hansen & Reiman, Lincoln, for appellant.

Terrance A. Poppe and Joseph E. Dalton, of Morrow, Poppe, Otte, Watermeier & Phillips, P.C., Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

I. NATURE OF CASE

Cynthia M. Brown, now known as Cynthia M. Morales, appeals the district court's denial of her request to be granted sole custody of her minor children and for leave of the court to relocate with the children from Lincoln, Nebraska, to Suffolk County, New York. The primary question presented in this appeal is whether the procedures and criteria articulated by this court in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), apply to a situation in which the parties share joint legal and physical custody of the children.

II. PROCEDURAL BACKGROUND

Two children were born of the marriage of Cynthia and her former husband, Dwight E. Brown, Jr. (Dwight): Dwight III, born May 27, 1993, and Jasmine, born February 3, 1995. The parties were divorced in 1997, and the divorce decree entered by the district court on February 19, 1997, provided that the parties would share joint legal and physical custody of the children. The decree required Dwight to pay child support in the amount of $120 per month.

On September 14, 1998, Dwight filed a petition to modify the decree, seeking a reduction of his child support obligation. On October 6, Cynthia filed a cross-petition to modify the decree. Cynthia alleged that a material change in circumstances had occurred in the following particular respects: (1) Cynthia had graduated from nursing school, (2) Cynthia had secured employment in New York, (3) Dwight had remarried, and (4) Cynthia's income would increase when she began her employment at her new job in New York. Cynthia sought to have sole legal and physical custody of the children placed with her and asked the district court to grant leave for her to relocate with the children to New York.

Dwight filed an amended petition to modify the decree on November 4, 1998. In addition to seeking a reduction of his child support obligation, Dwight alleged that Cynthia's lifestyle and living arrangements were inappropriate for the children and that Cynthia did not provide for the daily needs of the children. Dwight alleged that it would not be in the best interests of the children to be separated from Dwight. Dwight prayed that custody of the children be granted to him and that the district court order child support to be paid by Cynthia.

Trial was had on September 7, 1999, and on November 22, the district court entered an order modifying the decree such that Cynthia would be required to pay child support in the amount of $155 per month and Dwight's obligation to pay child support would be terminated. Neither party has appealed the child support modification. The district court determined that it was not in the best interests of the children to set aside the arrangement of joint custody. The district court found that Dwight was the physical custodian of the children no less than 50 percent of the time and that in some areas, such as health care and school, Dwight had been the primary custodian. The district court found that under the standards set forth in Farnsworth v. Farnsworth, supra,

the quality of life would not be improved for the children in New York and that the best interests of the children did not favor such a move. The district court dismissed Cynthia's cross-petition to modify and dismissed Dwight's request to modify custody. Cynthia timely appeals. Dwight has not cross-appealed.

III. FACTUAL BACKGROUND

Cynthia testified at the hearing in the district court that she had graduated from nursing school in May 1998 and had been working since graduation as a registered nurse. She testified that she was earning $17 per hour and working approximately 72 hours during each 2-week pay period at Madonna Rehabilitation Hospital in Lincoln.

Cynthia testified that at the time of hearing, she had been offered employment at the New York University Medical Center (NYU) in New York City. She would be working full time as a registered nurse on the evening shift, from 3 to 11 p.m., and would earn a base salary of $25 to $30 per hour, plus approximately $7,000 annually in shift and experience differentials. Cynthia further testified that her pay would increase with advanced experience and education. Cynthia stated that the NYU job would be a professional advancement because NYU is a teaching hospital.

Cynthia testified that the NYU job would also include other benefits, such as insurance for herself and the children. Cynthia stated that NYU would pay for her to complete her master's degree and that the children would be able to obtain a free college education at NYU. Cynthia admitted that the children would be able to receive the free education at NYU regardless of whether or not the children lived in New York. Cynthia testified that she would not be able to take this particular job with NYU if she did not report for work on September 21, 1999, but that she would be able to take another available position with NYU after that date. Cynthia stated that she would not move to New York if she was not allowed to take the children with her.

Cynthia testified that she had arranged for temporary housing with her cousin in Suffolk County, on Long Island. Cynthia stated that she had located affordable housing for herself and the children in Suffolk County and that the schools in Suffolk County would be adequate for the children. Cynthia admitted that housing in Suffolk County would be more expensive than comparable housing in Lincoln. Cynthia stated that her cousin would be able to care for the children while Cynthia was at work.

Cynthia also testified that her extended family, including her parents, lived on the east coast and that Dwight's extended family also lived on the east coast. Dwight testified that some of his extended family, including his mother and some of his siblings, lived on the east coast, but that Dwight's remaining extended family, including his father and other siblings, lived in Nebraska.

Both parties testified that Cynthia and Dwight had divided their time with the children on a 50-50 basis. Dwight testified that the usual division of time was such that Dwight picked up the children from Cynthia at 3:30 p.m. every Sunday, and kept them until 3:30 p.m. on Wednesday or Thursday of alternate weeks, such that each party would have the children 4 days one week and then 3 days during the next week. Cynthia testified that if granted full custody and leave to relocate, she was willing to give Dwight visitation during summers, holidays, and spring breaks, and would be willing to pay for air travel so that Dwight could have visitation. Dwight testified that it would be financially difficult for him to travel to New York for visitation.

Cynthia testified that the New York area had many family activities that the children would enjoy, "from baseball games to art museums to beaches." Cynthia testified that both children were bright and adaptable. Cynthia admitted that she had not taken the children to museums or art galleries available in Lincoln. Dwight testified that he was aware of cultural opportunities in New York and in Lincoln, but that "[a]ny time you spend with a child is beneficial, it doesn't matter where you take them." Dwight testified that he had taken the children to the "Elephant Hall" museum, and Dwight's wife, Shelley Brown, testified that they participated in many family activities, including visiting the zoo and parks, going for ice cream, visiting Elephant Hall and the children's museum, and going to children's movies.

Cynthia also testified regarding her belief that the children, as members of a racial minority, would be better off in New York because the area is more racially diverse. Cynthia stated that her children had not been taunted or discriminated against in Lincoln, but did mention that they were "stared at" on the street. Dwight testified that Dwight III's school in Lincoln was racially diverse.

Dwight testified that he had remarried, that he and Shelley had one additional child, and that Shelley was pregnant at the time of the hearing. Dwight testified that he was working 15 to 20 hours a week at the Lighthouse's youth recreation center and part time as a licensed minister. Dwight testified regarding his plans to attend seminary and become an ordained minister. Dwight also testified that he had recently accepted a promotion that would result in his working more hours. Dwight testified that he had opportunities to move from Lincoln but that he had decided to stay because he believed Lincoln was the best environment for the children.

Dwight testified that Cynthia's proposed move to New York was the "driving force" behind his request for a change in custody. Dwight stated that he believed that the joint custody arrangement was best for the children but that he believed that it would be best for the children to remain with him if Cynthia moved to New York. Dwight stated that he always put his children first but that Cynthia often put herself first, ahead of the children. Dwight testified that he had concerns that Cynthia did not feed the children properly. Dwight admitted that he had a child support arrearage of $1,577.

Dwight III's kindergarten teacher testified that she saw Dwight at school frequently; Dwight was a volunteer crossing guard and often had lunch at school with Dwight III and his classmates. The kindergarten teacher stated that Dwight was an active and attentive parent to both children. The teacher testified that Cynthia also frequently came to the school for lunch and to help...