Burton v. Schlegel, 011921 NECA, A-19-1208

Docket NºA-19-1208
Opinion JudgeBISHOP, JUDGE
Party NameDwayne Burton, appellee, v. Alexandra Schlegel, appellant.
AttorneyAdam R. Little, of Ballew Hazen, PC, L.L.O., for appellant. Eddy M. Rodell for appellee.
Judge PanelBishop, Arterburn, and Welch, Judges.
Case DateJanuary 19, 2021
CourtCourt of Appeals of Nebraska

29 Neb.App. 393

Dwayne Burton, appellee,


Alexandra Schlegel, appellant.

No. A-19-1208

Court of Appeals of Nebraska

January 19, 2021


Child Custody: Appeal and Error. 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 determination will normally be affirmed absent an abuse of discretion.

2. 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 jurisdiction, 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.

3. Modification of Decree: Child Custody: Words and Phrases. In cases involving the modification of child custody, a material change of circumstances constituting grounds for modification means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

4. Child Custody. In determining the best interests of a child in a custody determination, a court must consider pertinent factors, such as the moral fitness of the child's parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and parental capacity to provide physical care and satisfy educational needs of the child.

[29 Neb.App. 394] 5. ___. Although not a completely determinative factor, the promotion and facilitation of a relationship by one parent with the other parent is a factor that may be considered when awarding custody.


Child Custody: Intent. A parent's intentional refusal to promote and facilitate the other parent's involvement in a child's important educational, religious, and medical needs constitutes a significant factor to consider when making custody decisions.

7. Child Custody. The best interests considerations for determining custody and the best interests considerations for determining removal become intertwined when a change in custody necessarily includes the relocation of the child's primary residence to another state.

8. ___. In relocation cases, a parent must first satisfy the court that he or she has a legitimate reason for leaving the state.


Child Custody: Proof: Visitation. Once the threshold burden of showing a legitimate reason for leaving the state has been met, the court then determines whether removal to another jurisdiction is in a child's best interests, which in turn depends on (1) each parent's motives for seeking or opposing the move, (2) the potential the move holds for enhancing the quality of life for the child and the custodial parent, and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation arrangements.

Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

Adam R. Little, of Ballew Hazen, PC, L.L.O., for appellant.

Eddy M. Rodell for appellee.

Bishop, Arterburn, and Welch, Judges.



Alexandra Schlegel (Alexandra) appeals from the order of the Lancaster County District Court which modified a prior custody determination by awarding custody of the parties' son to his father, Dwayne Burton, who lives in Utah. We affirm.

[29 Neb.App. 395] II. BACKGROUND

1. Original Paternity Action and Appeal

This case was previously before us on an appeal from an original paternity action. See Burton v. Schlegel, No. A-15-761, 2016 WL 3083232 (Neb.App. May 24, 2016) (selected for posting to court website). As established in that case, Alexandra and Dwayne are the parents of E.B., born in 2013.

At an unspecified time prior to E.B.'s birth, Alexandra and Dwayne began a relationship while Dwayne was living in Utah and Alexandra was living in Wyoming. Alexandra became pregnant with E.B., and the parties decided that Alexandra, and her three children from previous relationships, would move to Utah to live with Dwayne. During Alexandra's pregnancy, either Dwayne accepted a job offer in New Mexico, or his job was transferred there, and Alexandra and her children moved with him. Alexandra gave birth to E.B. in New Mexico at the end of 2013. Shortly thereafter, Alexandra and Dwayne's relationship ended. In February 2014, Alexandra moved with E.B. and her other children to Lincoln, Nebraska, to live with her sister. Also in February, Dwayne returned to Utah, where he subsequently married another woman, with whom he had previously had a daughter out of wedlock.

In June 2014, Dwayne filed a complaint in the Lancaster County District Court to establish paternity and custody of E.B. A bench trial was held in May 2015. In July, the court entered a written order in which it determined that Dwayne was E.B.'s biological father and granted Alexandra and Dwayne joint legal custody, but Alexandra had the final say in the event of an impasse. The court granted Alexandra physical custody, but concluded it was necessary to "set a firm schedule for the parties to rely upon" given the "history between the parties." Specifically, the court stated it was "not confident that [Alexandra] would be accommodating, [29 Neb.App. 396] flexible and liberal in allowing [Dwayne] parenting time," but that it hoped her attitude "will moderate after the parties can settle into a routine with the child. There is a significant distance between them and their communication has not been desirable as far as the minor child goes." The court awarded Dwayne parenting time for the months of February, May, and August each year, plus November in even-numbered years and December in odd-numbered years. The court adopted a parenting plan, consistent with its order, which further provided that "[t]he parties shall be flexible in coordinating the commencement and conclusion of [Dwayne's] parenting time due to [his] work schedule, and the travel requirements," and "[b]oth parents acknowledge the responsibility to exercise and provide visitation and that time is of the essence in exercising and providing visitation." Each parent was directed to "provide the other parent with information and cooperation related to educational achievements and deficiencies of the child." The names of both parents were to appear on all medical and school records, and each parent was required to assist the other parent in obtaining access to such records if requested.

The district court also noted that the parenting time schedule "may not work once the child is of school-age." The court indicated: "When the child reaches the age of five, he becomes school-age which the Court deems a change in circumstances. At that time the parties may consider a change to the parenting plan adopted by this order." Dwayne was ordered to pay child support of $400 per month, a deviation of $235 below the guideline amount of support, based on Dwayne's travel expenses associated with parenting time. Each party was responsible for his or her own work-related childcare expenses.

Both parties raised issues on appeal, including Alexandra's claim that the district court erred in holding that "[E.B.'s] turning five years old would constitute a material change of circumstances not within the parties' anticipation." In May [29 Neb.App. 397] 2016, this court affirmed the judgment of the district court, and our mandate issued on June 28, 2016. See Burton v. Schlegel, No. A-15-761, 2016 WL 3083232 (Neb.App. May 24, 2016) (selected for posting to court website).

2. Modification Action

(a) Pleadings

On January 9, 2019, Dwayne filed a complaint for modification. He alleged that since the entry of the order establishing paternity and custody in July 2015, there had been a material change in circumstances, including, but not limited to the following: The order only contemplated a parenting time schedule up until the time E.B. started kindergarten, and he was scheduled to start kindergarten in 2019. Alexandra failed to provide appropriate medical and/or dental care for E.B. Alexandra denied any reasonable request by Dwayne to accommodate minor changes to the parenting time schedule to travel. Alexandra refused to pay her share of E.B.'s medical bills. Alexandra's oldest daughter had been removed from Alexandra's home and was deemed uncontrollable. Alexandra did not notify Dwayne of medical appointments or medical emergencies regarding E.B. Despite being awarded joint legal custody, Alexandra unilaterally made decisions on behalf of E.B. without consulting Dwayne. Alexandra refused to speak to Dwayne about E.B. and told Dwayne that he needed to have his attorney contact her attorney. In his complaint, Dwayne sought full custody of E.B., subject to Alexandra's rights of parenting time. Dwayne also sought permission to remove E.B. from Nebraska to Utah, where Dwayne lived, and he sought an award of child support.

In her answer and "[c]ounter-[c]omplaint," Alexandra denied there had been a material change in circumstances as alleged by Dwayne. However, she alleged there had been a material change in circumstances requiring that the parenting plan be modified, as E.B. was to begin kindergarten in the fall of 2019. She asked the district court to modify the [29 Neb.App. 398] parenting plan and child support order and to award her attorney fees and costs.

(b) Modification Hearing

The modification...

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