Korth v. Korth

• Decision Date: 29 April 2021
• Docket Number: No. S-20-637.,S-20-637.
• Citation: 958 N.W.2d 683,309 Neb. 115
• Parties: Cammy L. KORTH, appellant, v. Joel R. KORTH, appellee.
• Court: Nebraska Supreme Court

309 Neb. 115

958 N.W.2d 683

Cammy L. KORTH, appellant,

v.Joel R. KORTH, appellee.

No. S-20-637.

Supreme Court of Nebraska.

Filed April 29, 2021

Loralea L. Frank and Nathan P. Husak, of Bruner, Frank & Schumacher, L.L.C., for appellant.

Nicole J. Luhm and Elizabeth J. Klingelhoefer, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., Kearney, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

This appeal concerns the "where" and "with whom" of three siblings’ living situation. C.K., T.K., and I.K. were born while their parents, Cammy L. Korth and Joel R. Korth, were married. The couple then divorced, and Cammy was awarded sole physical custody over the children, subject to parenting time with Joel. Cammy and Joel agreed to live within 20 minutes of each other near Kearney, Nebraska.

When Cammy remarried, she requested to move the children with her out of state to live with her new husband. But after a trial, the trial court found that such a move, although proposed for a legitimate reason, was not in the children's best interests. The court thus denied Cammy's removal request and instead awarded sole physical custody over the children to Joel, subject to parenting time with Cammy.

Because the trial court did not abuse its discretion in denying removal and modifying custody, we affirm.

II. BACKGROUND

1. DIVORCE

Cammy and Joel married in 2001. Between 2005 and 2013, Cammy gave birth to three children: C.K., T.K., and I.K. The family lived together in Kearney until October 2018, when Cammy filed a complaint for dissolution of the marriage. Joel entered a voluntary appearance in the dissolution action, and in early 2019, Cammy and Joel agreed to terms for their divorce.

Accepting those terms, on April 3, 2019, the district court adopted a parenting plan to provide for the children's care and custody. Cammy and Joel were awarded joint legal custody over the children, and Cammy was awarded sole physical custody, subject to parenting time with Joel every other weekend, during summers, and on rotating holidays. Both parents were allowed "liberal telephone contact with the minor children during reasonable hours" and were encouraged to provide "a maximum opportunity" for each other to attend the children's events.

In the parenting plan, Cammy and Joel agreed their "[c]hildren shall attend Amherst Public Schools from Kindergarten through 12th grade [and] unless [Cammy] and [Joel] agree to a change, the parents will live within 20 minutes of one another and [of] Amherst Public Schools." Another provision in the parenting plan reiterated, "[Cammy] and [Joel] will live within 20 minutes of each other to assist in all aspects of co-parenting, children's activities and involvement."

2. REQUEST TO MODIFY

Cammy remarried on February 14, 2020. On February 24, she filed a complaint in the district court for Buffalo County to modify the parenting plan. Cammy sought leave to move the children with her to Westfield, Indiana, a city in the Indianapolis, Indiana, metropolitan area where she planned to live with her new husband.

Cammy claimed that the move would be in the children's best interests because it would improve their housing and living situation, allow them greater opportunities, and enhance her own "income or employment." She claimed that her remarriage and intent to relocate constituted a material change in circumstances that warranted a change in the parenting plan. She denied that her request to move was an attempt to frustrate Joel's parenting time or to prevent him from participating meaningfully in the children's lives.

Joel filed an answer in which he contested Cammy's basis for moving the children out of state and raised an affirmative defense to Cammy's proposed modified parenting plan. He alleged there had been no material change in circumstances because "[Cammy had] already [been] in communications with her now husband at the time the [dissolution] [d]ecree was entered ... and that during the entirety of those communications and ensuing relationship [her now] husband resided in the State of Indiana."

3. TRIAL

Cammy testified at trial about the advantages she and the children would enjoy while living in Westfield. Cammy claimed that because she would be able to live in her husband's house and rely on his income, she would reduce her workload and thus have more time at home with the children. She claimed that her husband's house, although still being remodeled, would soon have ample space for her children and, during his parenting time, for her husband's two daughters. Cammy emphasized that she desired for the children to be raised in "a two-parent household," but that she was "not trying to replace [Joel]" in their lives.

As compared to Kearney, Cammy testified that Westfield would allow the children to attend larger, higher-ranked schools with more class offerings and activities. For example, C.K., who played on a regional ice hockey team in Kearney, would be eligible to play in Westfield High School's highly competitive hockey program. T.K., another hockey player, and I.K., a dancer and gymnast, could also continue their activities at private clubs in Westfield. To show the children's breadth of opportunities after moving, Cammy offered into evidence the Westfield High School activity book which, she noted, "was over 15 pages long." Asked whether the children would have to give up any activities by moving, Cammy replied, "I can't think of any."

Cammy denied that she would ever stop Joel from having parenting time with the children, particularly if he traveled the 750 miles from his home near Kearney to Westfield. Cammy acknowledged that Joel "has a very loving relationship" with the children, "loves and cares for those children," and "is a good dad." She also acknowledged that she would move to Westfield even if her children were not allowed to move with her.

The oldest child, C.K., who was 14 years old at the time of trial, testified in support of the move. Speaking in camera with only the court, he expressed optimism that the move would allow him to play in a more competitive hockey program, to attend a larger school with more class offerings, and to live near many college options as he proceeded through high school. When pressed, C.K. acknowledged that his knowledge about how his life might look in Westfield derived "only [from] what my mom's told me, really." Still, the record indicates he stated an intelligent preference, supported by sound reasoning.

Cammy next called her husband to testify. He described the healthy relationships he had attempted to foster with the children. He also claimed that his job in Westfield was nontransferable and that it therefore made more financial sense for Cammy to move to where he lived rather than for him to move closer to where she lived.

Joel testified that throughout the children's lives he had been "daily" present and involved in their activities. When, from an early age, C.K. and T.K. expressed interest in ice hockey, Joel learned to ice skate and began coaching their teams. He also coached I.K.’s softball team, taught the children's 4-H classes, and served as a councilman for the church in which the children were being catechized. Joel claimed that whereas he had only ever missed two of the children's activities, including those occurring on days outside of his parenting time, "Cammy ha[d] missed quite a few," especially since she had begun traveling frequently to visit her now husband in Indiana.

Although Joel acknowledged that Westfield is in a more urban setting than Kearney, he cited the benefits to the children in remaining near Kearney. He and Cammy had chosen to raise the children there. Indeed, they had opted to send the children to Amherst Public Schools precisely for its size, despite the availability nearby of larger schools, more comparable in size to Westfield's schools. In Amherst Public Schools and around Kearney, the children had always been surrounded by supportive friends and neighbors, as well as family on both their maternal and paternal sides. By contrast, Joel noted, no biological relatives resided near Westfield.

Moving to Westfield would upend the stability in the children's lives, Joel claimed. Since Cammy had filed the request to modify, Joel had already noticed tension in their coparenting relationship. Recently, Joel had likewise observed hostility between Cammy and her parents, who lived near Kearney. Joel expressed concern that the children's relationships with him and with the rest of their family would suffer if the children moved out of state.

Rather, Joel requested that the children remain in Kearney and live with him. He had recently been promoted to a supervisory role at his work and would thus have the flexibility necessary to ready the children every morning for school and be present for them after work and on his days off. To the extent he would need to work outside of school hours, Joel said that C.K. and neighbors could help to supervise the children.

Four witnesses also testified against removal. The witnesses generally voiced concern that uprooting the children from the Kearney community would harm the children's social and emotional well-being. One witness also conveyed her willingness to help supervise the children and transport them to and from activities if they lived with Joel and he were temporarily unavailable.

4. DISTRICT COURT JUDGMENT

Based on the evidence adduced at trial, the district court denied Cammy's request to remove the children to Indiana. The court's order observed that "removal cases are very difficult cases for a trial court to decide." While "[Cammy's] decision to pursue a relationship and eventually marry a person living at a distant location was a matter of her own choosing[,] [s]uch a relationship has consequences for all parties involved."

Then, despite finding that "[a] desire to reside with a new spouse is a legitimate reason for...