Brown v. McDonald, 082719 NECA, A-18-1115

Docket Nº:A-18-1115
Opinion Judge:RIEDMANN, JUDGE.
Party Name:Hannah E. Brown, appellant, v. Mike D. McDonald, appellee.
Attorney:Jessica D. Meyer, of Nester & Mercure Attorneys at Law, and Kathy P. Knickrehm for appellant. Diane L. Merwin, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O., for appellee.
Judge Panel:Riedmann, Bishop, and Arterburn, Judges.
Case Date:August 27, 2019
Court:Court of Appeals of Nebraska
 
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Hannah E. Brown, appellant,

v.

Mike D. McDonald, appellee.

No. A-18-1115

Court of Appeals of Nebraska

August 27, 2019

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).

Appeal from the District Court for Richardson County: Julie D. Smith, Judge.

Jessica D. Meyer, of Nester & Mercure Attorneys at Law, and Kathy P. Knickrehm for appellant.

Diane L. Merwin, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, JUDGE.

I. INTRODUCTION

Pursuant to a modified parenting plan, Hannah E. Brown and Mike D. McDonald shared joint legal and physical custody of their minor child. Hannah subsequently sought to modify the parenting plan and remove the minor child from Nebraska to South Carolina. The district court for Richardson County denied her request for removal. Hannah appealed. For the reasons set forth herein, we affirm.

II. BACKGROUND

Hannah and Mike are the biological parents of River, born in 2013. The parties agreed to a parenting plan in 2014 in which they would share joint legal and physical custody of River. The parenting plan was flexible and allowed Mike to have at least 10 days of parenting time per month, as well as 2 weeks of uninterrupted visitation with River in the summer. The district court adopted the agreed upon parenting plan in May 2014.

In December 2017, the parties voluntarily modified the parenting plan and adopted a week-on/week-off parenting schedule, where each parent had custody of River for a week at a time. The district court adopted the parties' parenting plan in an order for modification. In August 2018, Hannah filed a complaint to modify the parenting plan, and sought sole legal and physical custody of River and permission to remove River to South Carolina. She alleged that a material change of circumstances had occurred in that she was engaged to be married to Brian Voss and would be relocating to South Carolina for purposes of better employment. Hannah further alleged that Mike did not adequately provide for River's daily needs and necessities, and his living arrangements were not appropriate for her. Hannah asserted that it would be in River's best interest to relocate to South Carolina.

Hannah simultaneously filed a motion for temporary custody of River and authority to remove her from Nebraska. In response to Hannah's complaint to modify, Mike filed a "cross complaint" seeking sole legal and physical custody of River. He alleged that a material change in circumstances had occurred because Hannah planned to move herself and River to South Carolina, she did not provide for River's daily needs and left her in the care of third parties the majority of her parenting time, she did not maintain stable and suitable employment, she acted erratic and unreasonable in front of River, she did not follow the court's orders regarding notification of changes in residence, and did not communicate with Mike in an effort to coparent River. He also asserted that River had been diagnosed with autism, thus requiring more consistency and stability.

In August 2018 the district court denied Hannah's motion for temporary custody of River and request to remove River from Nebraska. The court found that although Hannah had a legitimate reason for wanting to move to South Carolina, it was not in River's best interests to relocate. The court set trial for October.

At trial, Hannah presented testimony regarding her relationship with River and her move to South Carolina. Hannah testified that she married Brian in August 2018. Brian, her new husband, lived and worked in South Carolina and she moved there to be with him. She left River in Nebraska and her mother cared for her during the weeks in which Hannah had scheduled parenting time. In September, Hannah began working in South Carolina as a "support tech," and made $18 per hour. She stated there would be opportunities for advancement with her job, and she was unable to obtain a similar job in Nebraska. Prior to moving to South Carolina, Hannah was a licensed welder, and had worked as a welder in Nebraska making $14 per hour. On cross-examination, Hannah stated that she had previously worked at a job in Nebraska, at which she made $47, 000 in 2015, but she quit because her work schedule made it difficult to care for River.

The town Hannah moved to in South Carolina was larger than Falls City, Nebraska, where River lived at the time of trial. Hannah asserted that the town offered many opportunities for sports and activities for River. The school that River would attend in South Carolina was a good school, according to Hannah and Brian. Additionally, Hannah's home in South Carolina would allow for River to have her own bedroom.

Hannah testified that she was involved in River's life since her birth, and took her to appointments, applied for school, signed her up for various activities, and began taking her to counseling. Hannah also asserted that River had a close relationship with Hannah's son, and that he would move to South Carolina with her as well. Hannah and Brian both indicated that they would make it a priority that Mike maintained contact and a relationship with River, and would allow him to video chat or call River daily. Hannah's proposed parenting plan allowed Mike one weekend a month of parenting time, and the entire summer with River.

While Hannah was in South Carolina, her mother was caring for River during her parenting time. Hannah's son was also in her mother's care while they waited for a daycare position to open up for him in South Carolina. Hannah's mother stated that she was looking into making retirement plans in the next 4 years, and may move closer to Hannah in South Carolina. Hannah admitted that she does not have any extended family in South Carolina.

There was conflicting testimony at trial regarding the necessity of autism treatment for River. River was diagnosed with level one autism in May 2018 by a psychologist who met with her twice, once for an initial diagnostic interview and once for a diagnostic assessment. The psychologist spent a total of less than 2 hours with River. She testified that in making her diagnosis she relied, in part, upon information from Hannah and from River's school, although the school did not note any impairment or concern.

After being diagnosed with autism, River began meeting with a therapist. Before she moved to South Carolina, Hannah attended most of the therapy sessions, whereas Mike brought River to only a few sessions. After Mike failed to bring River for three sessions, the therapist scheduled sessions only during Hannah's parenting time. The...

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