Schrag v. Spear
| Decision Date | 13 February 2015 |
| Docket Number | No. S-13-258,S-13-258 |
| Citation | 858 N.W.2d 865 |
| Parties | Ember M. Schrag, appellant, v. Andrew S. Spear, appellee. |
| Court | Nebraska Supreme Court |
Stephanie R. Hupp and Zachary L. Blackman, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., Lincoln, for appellant.
Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., L.L.O., Lincoln, for appellee.
Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
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. Judgments: Words and Phrases.A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.
4. Child Custody: Appeal and Error.In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
5. Child Custody.Before a custodial parent can remove a child from the state, permission of the court is required, whether or not there is a travel restriction placed on the custodial parent.
6. 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 also demonstrate that it is in the child's best interests to continue living with him or her in the new location. The paramount consideration is whether the proposed move is in the best interests of the child.
7. 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.
8. Modification of Decree: Words and Phrases.A material change in circumstances 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.
9. Modification of Decree: Child Custody: Proof.The party seeking modification of child custody bears the burden of showing a change in circumstances.
10. Modification of Decree: Child Custody: Evidence: Time.In determining whether the custody of a minor child should be changed, the evidence of the custodial parent's behavior during the year or so before the hearing on the motion to modify is of more significance than the behavior prior to that time.
11. Modification of Decree: Child Custody.Removal of a child from the state, without more, does not amount to a change of circumstances warranting a change of custody. Nevertheless, when considered in conjunction with other evidence, such a move may well be a change of circumstances that would warrant a modification of the decree.
12. Modification of Decree: Child Custody: Proof.Before custody may be modified based upon a material change in circumstances, it must be shown that the modification is in the best interests of the child.
13. Child Custody.In addition to the “best interests” factors listed in Neb.Rev.Stat. § 43–2923 (Cum.Supp.2014), a court making a child custody determination may consider matters such as the moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and the parental capacity to provide physical care and satisfy the educational needs of the child.
14. Child Custody: Appeal and Error.In contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court's determination is affirmed or reversed on appeal.
The Nebraska Court of Appeals reversed an order of the district court for Lancaster County which denied Ember M. Schrag's application to move her minor daughter to New York and modified a prior custody determination by awarding custody of the child to her father, Andrew S. Spear.1 On further review, we conclude the district court did not abuse its discretion and therefore reverse the judgment of the Court of Appeals.
The underlying facts are set forth in greater detail in the published opinion of the Court of Appeals. We summarize them here.
Lillian Schrag was born in November 2007 and resided with Ember in Lincoln, Nebraska. Ember initiated a paternity action in the district court for Lancaster County in which she alleged that Andrew was Lillian's biological father. Ember and Andrew were never married and never lived together after Lillian's birth. In a decree entered January 21, 2009, the court determined Andrew was Lillian's father. The court awarded custody of Lillian to Ember, subject to Andrew's rights of visitation as set forth in a parenting plan. Andrew was ordered to pay child support for Lillian and one-half of the childcare expenses incurred by Ember. At the time of the decree and at all subsequent times, Andrew has resided near Kansas City, Missouri.
Cindy Chesley is Ember's mother and Lillian's grandmother. She and her husband reside in North Platte, Nebraska. From late 2008 through 2010, Chesley and her husband cared for Lillian for extended periods of time while Ember worked as a touring folk singer. Chesley and Ember had a falling out in early 2011 when Chesley told Ember she would be unable to care for Lillian for another extended period due to other family obligations. Ember testified she had no ongoing relationship with Chesley and that they had been “estranged for two years.”
In early 2011, Ember moved with Lillian to Decorah, Iowa, where they resided with Ember's boyfriend and his parents. Ember married this man in April 2011. She did not obtain approval of the court before relocating Lillian from Nebraska to Iowa. Andrew, believing the move was temporary, did not oppose it until Ember presented him with documents indicating the move was permanent. Andrew obtained emergency custody of Lillian for a brief time before she was returned to Ember's custody. Andrew thereafter sought modification of custody, and Ember sought court approval to move Lillian to Iowa, which had already occurred. The parties eventually resolved this dispute by entering into a stipulation and parenting plan which were approved by the court in an order entered on February 22, 2012. This order left Lillian in Ember's physical custody and granted Ember permission to move to Iowa with the child.
The parenting plan provided that the parties would have joint legal custody of Lillian and specified Andrew's rights of visitation. The plan also provided that the parties would “reside in the states of Nebraska, Missouri (including the Kansas City metro), and Iowa unless otherwise agreed to by the parties.” Further, the parenting plan provided that Lillian was to have no unsupervised contact with Chesley. The final paragraph of the parenting plan provides: “The parties intend for Nebraska to maintain jurisdiction of this matter as the home state for the child.”
While Ember and Lillian resided in Iowa, Ember worked two part-time jobs, which she did not consider to be related to her music career. In June 2012, while Lillian was with Andrew
for her summer visitation, Ember separated from her husband. A September 6 decree dissolving the marriage was entered by an Iowa court.
On the same day that she separated from her husband, Ember traveled to the home of Robert Bannister in Brooklyn, New York. She had met Bannister in March 2011, and became romantically involved with him when she arrived at his home in June 2012. Bannister, who is approximately 24 years older than Ember, is employed in the software industry. He is separated but not divorced from his second wife.
Ember spent most of the summer of 2012 on the East Coast, primarily in New York and Philadelphia, Pennsylvania, where she had a housesitting job. She testified that while there, she was “looking for a living arrangement that would be in the best interest” and eventually decided to move to New York.
On approximately August 27, 2012, Andrew returned Lillian to Ember at their agreed-upon meeting place in Des Moines, Iowa. They exchanged pleasantries, but Ember made no mention of any change in her living arrangements. Ember then almost immediately took Lillian to New York and moved into Bannister's apartment, where they have subsequently resided.
On August 30, 2012, after she had relocated to New York, Ember sent an e-mail message to Andrew informing him that she had separated from her husband and had spent the summer “working on the east coast and developing a new support system in Philadelphia and New York City.” She informed him for the first time of Lillian's relocation, stating: “Although this is the first you're hearing of it, this is not sudden, and it will be the best for Lillian.” Andrew responded, “I do not agree moving Lillian to New York is what's best for her.” Ember did not seek or obtain approval of the district court prior to relocating Lillian to New York.
Ember and Lillian have continued to...
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