State ex rel. Ryley G. v. Ryan G.

• Decision Date: 05 June 2020
• Docket Number: No. S-19-892.,S-19-892.
• Citation: 943 N.W.2d 709,306 Neb. 63
• Parties: STATE of Nebraska ON BEHALF OF RYLEY G., a minor child, appellee, v. RYAN G., defendant and third-party plaintiff, appellant, and Rashell K., third-party defendant, appellee.
• Court: Nebraska Supreme Court

306 Neb. 63

943 N.W.2d 709

STATE of Nebraska ON BEHALF OF RYLEY G., a minor child, appellee,

v. RYAN G., defendant and third-party plaintiff, appellant,andRashell K., third-party defendant, appellee.

No. S-19-892.

Supreme Court of Nebraska.

Filed June 5, 2020

David V. Chipman, of Monzón, Guerra & Associates, Lincoln, for appellant.

Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., Lincoln, for appellee Rashell K.

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

Cassel, J.

INTRODUCTION

A noncustodial parent appeals from a modification of a filiation judgment granting the custodial parent "leave to remove the minor child from the State of Nebraska and to determine his primary place of residence" without specifying where the child could be moved or placing any limitation on further moves. Two questions predominate.

First, did a deployment of the custodial parent’s new military spouse for 1 year to a base near Washington, D.C., coupled with a change in employment conditions after the deployment ended, constitute a legitimate reason for leaving the state? It did. Second, did the district court’s open-ended permission violate the standard for approval and, thus, amount to an improper delegation of judicial authority? It did.

Because the court did not otherwise abuse its discretion, we affirm the order below as modified to limit the permission to move the child only to the military base near Washington, D.C.

BACKGROUND

PRIOR PROCEEDINGS

Rashell K. and Ryan G. are the natural parents of Ryley G., born in 2007. In 2009, the State initiated a filiation proceeding, which resulted in a support judgment against Ryan. At that time, neither Rashell nor Ryan sought any orders regarding child custody. In 2015, Ryan sought a modification, which in June 2016 resulted in an order and formal parenting plan awarding Rashell legal and physical care, custody, and control of Ryley, subject to Ryan’s parenting time. It consisted of every other Friday from 7:30 p.m. to 7:30 p.m. on Sunday and all but 3 weeks of each summer vacation from school.

MODIFICATION SOUGHT

In November 2018, Rashell sought a modification of the judgment, asserting that she had married and had a newborn child; that her husband was active in the National Guard and was scheduled to be deployed to the District of Columbia in mid-2019; that he would likely be stationed outside of Nebraska following the deployment; and that it was in Ryley’s best interests to permit removal from Nebraska. She specifically requested permission "to move with the minor child to the District of Columbia, and thereafter to where her husband is stationed" and sought other related relief.

Ryan filed an answer opposing the removal and a "countercomplaint" seeking a change of custody and other associated relief. The matter proceeded to trial.

EVIDENCE AT TRIAL

At trial, the parties avoided Ryley’s participation by stipulating that Ryley would testify he had a good relationship with his father, he had a stronger bond with his mother, and he wanted to remain living with his mother. The district court heard testimony from three witnesses: Ryan, Rashell, and Rashell’s husband, Joshua Chubb.

Chubb testified that he was a Blackhawk helicopter instructor pilot for the Missouri National Guard. He had been working 40 to 42 hours per week, compressed into 3 days each week, and had been commuting from Lincoln, Nebraska, to Whiteman Air Force Base in Missouri for his employment.

Chubb stated that he had been called to active duty and ordered to report for processing in North Carolina, where he expected to be ordered to report to Fort Belvoir in Washington, D.C., for 1 year. Although the parties at times characterized Fort Belvoir as being located in the District of Columbia, they also described it as situated in Virginia, near Washington, D.C.

Chubb testified that while at Fort Belvoir, his family would have on-base housing. The house would have three bedrooms and would be located in a low-crime area within one-half mile from the school that Ryley could attend. Chubb would receive a housing allowance, and Rashell would not need to work outside of the home.

After completion of this deployment, Chubb testified, he would be ordered to return to Missouri for demobilization. Thereafter, he explained, there were only two places in the country where he would be able to work as a Blackhawk helicopter instructor pilot: Missouri or Alabama. He anticipated moving to Alabama for an instructor position in a nondeployable unit. If he received that position, he would work shorter days and be paid more.

Chubb did not expect to return to Lincoln. He testified that if he returned to Missouri, the chances were "slim to none" that he could resume the same schedule he had while commuting from Lincoln. Instead, he would not be allowed to have Fridays off. He would have to work Tuesday through Friday, with only Saturday, Sunday, and Monday off. He explained that he would not have the same flexibility and schedule as before, because he would become a "legitimate full-time employee working there." So at that point, his family would reside with him in Missouri as opposed to his living in Lincoln and commuting. Moreover, there was no opportunity as a Blackhawk instructor closer to Lincoln than Whiteman Air Force Base.

Rashell stated that her intention was to move to Fort Belvoir for 1 year and then move to wherever Chubb found a job. She did not have an address for their home in Fort Belvoir. She was a registered nurse, and she explained that in order to receive a nursing license in Virginia, she would need a specific home address. She stated that if she could find a flexible, part-time nursing job, she would work; otherwise, she would stay at home with her children.

Rashell explained that at Fort Belvoir, the elementary school consists of "K" to sixth grade. Ryley would be entering sixth grade. By the end of the trial, she testified regarding the base’s recreational amenities and sports programs.

Ryley’s community and extended family were in Lincoln. Rashell’s and Ryan’s families were also there. And so were Ryley’s friends and school classmates. Ryley had participated in several sports teams in Lincoln.

Ryan actively participated in Ryley’s life. Ryan exercised all of his parenting time. Rashell allowed Ryan to take Ryley to and from school on snowy or rainy days. Ryan attended the majority of Ryley’s sports games. Ryan had made plans that if he was awarded physical custody, family members would care for Ryley when Ryan had to work late or on weekends.

Rashell had made all of Ryley’s doctor appointments and taken care of his medical needs. Ryley takes asthma

shots every other week, and in a previous summer, Ryan had forgotten to take Ryley to receive his shots. Ryan had never met Ryley’s primary care doctor or his dentist.

Rashell explained that she did not yet have any information regarding who would be Ryley’s primary care physician or dentist or where he would receive his asthma

shots at Fort Belvoir. This, she said, was because their "insurance [was] through Tri-Care, [which was] divided into an east and a west and [they were] currently in the west." This meant, she testified, that they could not "move it to the east until [they] actually move there."

According to Rashell, if Ryley was not allowed to move with her, it would have a negative effect on Ryley. She based this upon her observations of Ryley after he returned from Ryan’s house. On such occasions, she testified, Ryley was withdrawn and worried as to how she would react to small things. Rashell calculated that if Ryley moved with her, Ryan would lose 40 days of overnight parenting time. However, according to Rashell, if Ryley stayed with Ryan, she would lose 180 days of overnight parenting time.

DISTRICT COURT’S ORDERS

The district court first entered an interlocutory order addressing the custody and removal issues and reserving the support and related matters. The court later entered a final order, incorporating a copy of the first order and disposing of the remaining issues.

In the first order, the court found that Rashell met the threshold requirement of proving a legitimate reason for moving. It explained that she had a desire to establish a family unit with her new husband, her new child, and Ryley. It stated that Chubb would see an income increase and "secure his position with a solid upside." This, the court found, was a legitimate reason for the move.

After clearing the threshold requirement, the court then considered the best interests factors, addressing (1) the parents’ motives for seeking or opposing the move, (2) the potential the move holds for enhancing the quality of life for the child and custodial parent, and (3) the impact the move will have on contact between the child and the noncustodial parent.

Regarding the parents’ motives, the court determined that both parents had valid reasons for and against removal and that this factor did not weigh for or against removal.

The court then considered nine elements of the quality-of-life factor. The court’s order discussed each element.

First, it assessed Ryley’s emotional, physical, and developmental needs. Concluding that this factor disfavored the move, the court explained:

The ... minor child is thriving in Nebraska and his needs are being met. He spends a lot of time with his father and ... they have a good relationship.... A move would take Ryley away from extended family and friends at a time that is significant in his development.

Rashell has a substantial number of her family members in Lincoln. Ryan also has family members in Lincoln. A move would take Ryley away from these family members.

Ryley has a number of interests including music, lacrosse, baseball, basketball, and flag football. Ryan attends Ryley’s activities. Rashell had done little at the time of trial, if anything, to investigate any of those activities if the move were allowed. There

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