Steffy v. Steffy

• Decision Date: 14 May 2013
• Docket Number: No. A–12–082.,A–12–082.
• Citation: 832 N.W.2d 895,20 Neb.App. 757
• Parties: Brian David STEFFY, appellant, v. Randi Jo STEFFY, now known as Randi Jo Stenson, appellee.
• Court: Nebraska Court of Appeals

20 Neb.App. 757

832 N.W.2d 895

Brian David STEFFY, appellant,

v.Randi Jo STEFFY, now known as Randi Jo Stenson, appellee.

No. A–12–082.

Court of Appeals of Nebraska.

May 14, 2013.

Syllabus by the Court

[20 Neb.App. 757]1. Appeal and Error. An appellate court may, at its option, notice plain error.

2. Child Custody: Visitation: Appeal and Error. Child custody determinations, and visitation 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.

3. Judges: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result.

4. Rules of the Supreme Court: Appeal and Error. Parties who wish to secure appellate review of their claims for relief must be aware of, and abide by, the rules of the Nebraska Supreme Court and the Nebraska Court of Appeals in presenting such claims.

5. Rules of the Supreme Court: Appeal and Error. Any party who fails to properly identify and present its claim in accordance with the Supreme Court rules does so at its peril and risks the appellate court's declining to address the claim.

6. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

7. Rules of the Supreme Court: Appeal and Error. Assignments of error consisting of headings or subparts of argument do not comply with the mandate of Neb. Ct. R.App. P. § 2–109(D)(1)(e) (rev.2008).

8. Rules of the Supreme Court: Appeal and Error. In situations where assignments of error do not comply with the mandate of Neb. Ct. R.App. P. § 2–109(D)(1)(e) (rev.2008), the court may consider the case as one in which no brief was filed, or, alternatively, the court may examine the proceedings for plain error.

9. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

10. 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.

11. Child Custody. The threshold question in removal cases is whether the parent wishing to remove the child from the state has a legitimate reason for leaving.

12. Child Custody. Legitimate employment opportunities for a custodial parent may constitute a legitimate reason for leaving the state.

13. Child Custody. Legitimate employment opportunities for a custodial parent may constitute a legitimate reason for leaving the state when there is a reasonable expectation of improvement in the career or occupation of the custodial parent.

[20 Neb.App. 758]14. Child Custody. After clearing the threshold of showing a legitimate reason for leaving the state, the custodial parent must next demonstrate that it is in the child's best interests to continue living with him or her.

15. Child Custody. In considering a motion to remove a minor child to another jurisdiction, whether the proposed move is in the best interests of the child is the paramount consideration.

16. Child Custody: Visitation. In determining whether removal to another jurisdiction is in a child's best interests, the court considers (1) each parent's motives for seeking or opposing the move; (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation.

17. Child Custody. The ultimate question in evaluating the parties' motives in seeking removal of a child to another jurisdiction is whether either party has elected or resisted a removal in an effort to frustrate or manipulate the other party.

18. Child Custody. The second factor that must be considered regarding a motion to remove a child to another jurisdiction is the potential that the move holds for enhancing the quality of life for the child and the custodial parent. This factor requires an analysis of other considerations which bear upon the potential enhancement of the child's quality of life.

19. Child Custody. In determining the potential that the removal to another jurisdiction holds for enhancing the quality of life of the child and the custodial parent, a court evaluates the following considerations: the emotional, physical, and developmental needs of the child; the child's opinion or preference as to where to live; the extent to which the relocating parent's income or employment will be enhanced; the degree to which housing or living conditions would be improved; the existence of educational advantages; the quality of the relationship between the child and each parent; the strength of the child's ties to the present community and extended family there; and the likelihood that allowing or denying the removal would antagonize hostilities between the two parties. This list should not be misconstrued as setting out a hierarchy of considerations, and depending on the circumstances of a particular case, any one consideration or combination of considerations may be variously weighted.

20. Courts: Appeal and Error. An appellate court will not consider an issue that was not passed upon by the trial court.

21. Constitutional Law: Appeal and Error. A constitutional issue not presented to or passed upon by the trial court is not appropriate for consideration on appeal.Karen S. Nelson and Liam K. Meehan, of Schirber & Wagner, L.L.P., Papillion, for appellant.

Steven M. Delaney and Darin L. Whitmer, of Reagan, Melton & Delaney, L.L.P., Sarpy County, for appellee.

IRWIN, PIRTLE, and RIEDMANN, Judges.

PIRTLE, Judge.

I. INTRODUCTION

Brian David Steffy appeals a decision reached by the district court for Cass County following Brian's attempt to modify the parties' previous divorce decree. In Brian's complaint, he alleged that a material change of circumstances had occurred and sought an increase in child support, and he also sought the court's permission to move with the parties' minor child from Nebraska to Texas. The district court found a material change of circumstances had occurred due to a change in the income of Randi Jo Steffy, now known as Randi Jo Stenson, and the court increased the child support order accordingly. In addition, the court concluded that Brian had failed to prove a legitimate reason for leaving the state, and it thus denied his request for permission to move to Texas. For the reasons that follow, we affirm in part and in part reverse.

II. BACKGROUND

Brian and Randi moved to Plattsmouth, Nebraska, with their son, Jakob Steffy, in 2003. Jakob, born in August 2001, had been diagnosed with autism spectrum disorder. From 2003 to 2007, Randi was stationed near Omaha, Nebraska, in her capacity as a lieutenant colonel in the U.S. Army. In July 2007, the Army transferred Randi to Fort Leavenworth, Kansas.

On April 15, 2008, a decree of dissolution of marriage had been entered in this matter. At the time of the divorce, Brian and Jakob resided in Plattsmouth and Randi resided in Fort Leavenworth. The parties agreed to joint legal custody with Brian being the primary custodial parent. Randi had parenting time with Jakob every other weekend and for extended periods of time over the summer.

In August 2010, Randi was promoted to colonel and was transferred to Fort Knox, Kentucky. After being restationed, Randi continued to exercise parenting time with Jakob once a month and for extended periods over the summer. The parties exchanged Jakob in Rock Port, Missouri, and Randi took Jakob to her sister's home in Platte City, Missouri, during her parenting time. Randi made sure that Jakob was involved in educational activities and “applied behavioral analysis” (ABA) therapy during the summer visitation periods.

In December 2010, Brian filed a complaint for modification seeking permanent removal of Jakob from Nebraska and seeking sole legal and physical custody subject to Randi's parenting time. Brian also alleged a material change of circumstances because Randi earned a promotion and a change of income, which necessitated a change in the child support order.

Brian met his current wife, Sheri Steffy, during December 2010, and they married in April 2011. Brian and Sheri reside in Plattsmouth with Jakob and Sheri's children from a previous marriage. Brian graduated with a degree in elementary education in May 2011. At the time of trial, he was a substitute teacher in Bellevue, Nebraska, where he was paid between $125 and $140 per day. Brian also received $1,800 per month from a military pension and, at the time of trial, received approximately $1,146 per month in child support from Randi. Sheri was under an employment contract with the Bellevue school system, where she earned approximately $54,000 per year as a teacher.

At trial, Brian testified that a teacher with his experience in the greater Omaha area would earn an annual salary between $30,000 and $31,000. Brian obtained salary information for a number of school districts near Dallas–Fort Worth, Texas. A teacher with the same credentials in the Dallas–Fort Worth metropolitan area could earn a salary ranging from $47,000 to $50,000. Brian stated that he would like to move to a school district offering higher pay and was attracted to Texas because it does not have a state income tax.

Brian testified he would also like to live in Texas because it would be closer to some of his extended family, including his...