Glover v. Glover
| Decision Date | 15 November 2022 |
| Docket Number | A-21-958 |
| Parties | Sarah K. Glover, appellant, v. Paul G. Glover, appellee. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Sarpy County: Stefanie A Martinez, Judge. Reversed and remanded with instructions.
Brent M. Kuhn and Haley L. Cannon, of Brent Kuhn Law, for appellant.
Caitlin R. Lovell, of Johnson & Mock, P.C., L.L.O., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Sarah K. Glover and Paul G. Glover were divorced in 2020, and Sarah was awarded sole legal and physical custody of the parties' minor child. Sarah subsequently filed a request in the district court for Sarpy County, seeking to remove the child from Nebraska. Sarah appeals from the court's denial of her request. In our de novo review of the record, we find that the district court abused its discretion in denying the request. We reverse the order of the district court and remand with instructions to grant Sarah's complaint for removal.
The parties were married in May 2015. They have one child, Julietta, born in November 2017. Paul is not Julietta's biological father. The parties used a sperm donor, and Paul signed all the paperwork to be Julietta's legal father.
In June 2020, Sarah filed an amended complaint for dissolution of marriage. Sarah's pleading included a request for removal of Julietta to Oregon.
Prior to dissolution of the parties' marriage, Paul was charged with and pled guilty to a federal crime involving child pornography. Paul received a sentence of 42 months' incarceration, and he began his incarceration at a federal facility in Minnesota on January 20, 2021.
The divorce trial was held before the district court on November 13, 2020. Although Sarah attempted to introduce evidence at trial regarding removing Julietta from Nebraska, as a discovery sanction, the court refused to hear such evidence.
On November 25, 2020, the district court entered a decree of dissolution, awarding Sarah sole legal and physical custody of Julietta. The court awarded Paul certain supervised parenting time with Julietta, as well as certain phone contact, prior to the start of his incarceration. While incarcerated, Paul was to have up to three video communication visits with Julietta per week (or three telephone calls of up to 15 minutes each if video communication was not available). Paul was also allowed to send letters and cards to Julietta, and Sarah was to keep Paul informed of her address to facilitate such communication. The court specified that Paul's release from incarceration would be considered a material change in circumstances, and it denied without prejudice Sarah's request to remove Julietta to Oregon, stating that Sarah shall continue to reside with Julietta in Nebraska until further order of the court. The court ordered Paul to pay child support of $50 per month beginning January 1, 2021, and specified Sarah's responsibility for work-related childcare, preschool, and school expenses for Julietta; and it set forth Sarah's responsibility to maintain health insurance for Julietta and pay for her nonreimbursed health care costs (although Paul was to pay a certain portion of these costs prior to January 20, 2021).
On December 3, 2020, Sarah filed a motion to alter or amend the decree, alleging, among other things, that having up to three video visits per week with Paul while he was incarcerated was contrary to Julietta's best interests and that phone calls of 5 to 10 minutes, rather than 15 minutes, was reasonable and in Julietta's best interests, considering her age and the evidence offered at trial.
On February 1, 2021, the district court entered an amended decree of dissolution, partially amending the decree in several regards. As relevant to the present appeal, it amended the start date for Paul's child support obligation and Sarah's sole responsibility for work-related childcare and preschool and school expenses to February 1, but it did not amend any of the above-referenced parenting time provisions set forth in the original decree. The court entered an order nunc pro tunc on February 5 in order to correct a scrivener's error in the amended decree.
On March 22, 2021, Sarah filed a complaint for removal, seeking to remove Julietta from Nebraska to "the Vancouver area of Washington State and Oregon." She alleged that she had a legitimate reason for her request and that removal to the Washington and Oregon area was in Julietta's best interests. She also stated that she sought a modification of the decree to provide for Julietta's removal.
Subsequently, Paul filed a motion to dismiss, which the district court denied. The court noted its dismissal of Sarah's prior request for removal at the time of the dissolution proceedings, but it observed that such a decision based on a discovery sanction should not prevent Sarah from filing a separate action for removal. The court also noted its intent at the time of the dissolution proceedings to allow such a future pleading by Sarah. However, the court found that Sarah's pleading was clearly a complaint to modify, and it stated, "[a]s such, [Sarah] must follow standard procedure and identify what the change in circumstances are in order to provide [Paul] with proper notice in which to defend himself." The court gave Sarah 5 days to file an amended pleading.
On May 11, 2021, Sarah filed an "Amended Complaint to Modify Decree for Removal." She again sought removal of Julietta from Nebraska to the Vancouver area. Additionally, she alleged that since entry of the decree there had been a material change of circumstances warranting modification of the decree; that her legitimate reasons for removal included opportunities for her career and financial advancement, the emotional and financial support of local family not available in Nebraska, and removal to a new jurisdiction to avoid stigmatizing Julietta as a result of Paul's wrongful conduct in Nebraska; and that removal was in Julietta's best interests. In connection with her best interests allegations, Sarah noted the factors to be considered by the court and alleged that these factors weighed in favor of removal. Beyond requesting permission to remove Julietta to the Vancouver area of Washington and Oregon, Sarah did not request any other modification to the decree.
Paul filed an answer to Sarah's amended complaint, denying the allegations, and affirmatively alleging that the allegations were known to Sarah at the time of the dissolution trial, that there was no material change in circumstances justifying removal, and that removal of Julietta from Nebraska would frustrate his parenting time.
In June 2021, Sarah filed a motion seeking an expedited trial, alleging that she had a job offer as a registered nurse in the neonatal intensive care unit (NICU) at a particular hospital in Washington. She stated that she wanted to accept the job offer and relocate to the Vancouver area of Washington and Oregon in a reasonable time for her career and financial advancement, which was in Julietta's best interests. The district court granted her motion and trial was scheduled for September 29. On September 16, Paul filed a motion to continue trial for additional time to conduct discovery, which the district court denied. However, at the hearing on Paul's motion to continue, his attorney informed the court of her scheduled test due to symptoms of COVID-19, and the relocation trial was subsequently rescheduled for October 6.
The removal trial was held before the district court on October 6 and 7, 2021. The court heard testimony from the parties, as well as Paul's mother, and received various documentary exhibits into evidence.
Sarah was born in the Vancouver area and lived there until 2011 (excluding a period of a couple of years when she lived in Minnesota as a young child). At the time of the parties' divorce, Sarah was employed as a registered nurse working at a children's hospital in Omaha. She worked 40 hours per week, Monday through Friday from 8 a.m. to 4:30 p.m., and earned approximately $30 per hour. By the time of the relocation trial, she was earning around $35 per hour. Her benefits included health and life insurance. An exhibit detailing the compensation and benefits for her present job was received into evidence.
Sarah testified about her search for job opportunities in both Vancouver, Washington, and Portland, Oregon, where she would have "additional family support" for longer work shifts. In particular, she was interested in NICU nursing positions. Around June 4, 2021, Sarah received a job offer for a NICU position at a hospital in Vancouver. According to Sarah, the offered job would require her to work approximately 60 hours every 2 weeks (alternating between two and three 12-hour shifts weekly) and she would earn approximately $59 per hour. The work shifts would be from 6:30 p.m. to 7 a.m. The offered job also included health insurance, and she thought the cost for her contribution toward health insurance would be about $50 less per paycheck than what she was required to pay in Nebraska. An exhibit with details about Sarah's job offer and its benefits was received into evidence. The initial anticipated start date for the offered job was August 2, but due to the "situation in this case," the offer had been extended to October 25. Sarah intended to accept the job if allowed to move.
Sarah had not looked for different employment in Nebraska since the dissolution trial, and she had not received any offers of employment that were comparable to the offered job in...
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