Clinton M. v. Paula M., A–12–920

• Decision Date: 01 April 2014
• Docket Number: No. A–12–920,A–12–920
• Citation: 21 Neb.App. 856,844 N.W.2d 814
• Parties: Clinton M., appellee, v. Paula M., appellant.
• Court: Nebraska Court of Appeals

21 Neb.App. 856

844 N.W.2d 814

Clinton M., appellee,

v.Paula M., appellant.

No. A–12–920

Court of Appeals of Nebraska.

Filed April 1, 2014

Appeal from the District Court for Sarpy County: Max Kelch, 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.

Syllabus by the Court

1. 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. 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 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.

6. Child Custody. 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.

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 parties' 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 modified 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 parties' 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 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 disorder, 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 motivation, and she has major difficulties with impulse control and emotional regulation. Her behaviors have included lying, manipulation, refusing to follow rules, hoarding food, stealing, wetting and defecating herself, destroying property, making self-harm statements, and exhibiting aggressive behavior toward others, including Clinton's wife and Alexis' younger half sister, and generally displaying out-of-control, noncompliant, 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 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 treatment. 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' behaviors continued.

Despite Alexis' behaviors, Ryder felt that a trial visit allowing 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 session 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 2 1/ 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 incident 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.

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 psychiatrist 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...