Vogel v. Vogel

Connolly, J.,

dissenting.

The majority opinion concludes that the district court implicitly found that removal was in the best interests of the children because it granted Kimberly Vogel permission to remove the children from the state. This is a generous interpretation. Rather than determining that the relocation was in the children’s best interests, the trial court found that removal was an insufficient ground for a change in custody and denied Bradley Vogel’s application for a modification of the decree. It then summarily granted Kimberly’s request for removal. Neither in its order nor in comments from the bench did the court make any findings regarding the children’s best interests.

Trial and appellate courts, in parental relocation cases, deal with the tension created by a mobile society and the problems associated with uprooting children from stable environments. As we stated in Farnsworth v. Farnsworth, 257 Neb. 242, 248, 597 N.W.2d 592, 597 (1999), these cases are “among the most complicated and troubling” disputes that courts are asked to resolve. The purpose of multifactor tests is to help courts that must struggle with these difficult issues by pointing out the relevant considerations. Because of the nature of the problem, no test can be perfect. But unless a trial court undertakes to analyze these considerations, its judgment is rendered in a vacuum.

*1050Because the trial court failed to follow the applicable law as set out in Farnsworth, I conclude that it was an abuse of discretion to allow Kimberly to relocate the children to Virginia.

Whether a custodial parent should be allowed to remove his or her child from the state is a separate question from whether a change in custody is warranted. There is no presumption favoring or disfavoring relocation. See Neb. Rev. Stat. §§ 42-364(1) and. (2) and 43-2902 (Reissue 1998). Rather, when a custodial parent has a legitimate reason to move, the issue must be decided on the children’s best interests. Id. The trial court’s order, apparently premised upon whether a change in custody was justified, failed to properly analyze whether the relocation was in the children’s best interests. Reviewing the record de novo, I conclude that it was not. Accordingly, I dissent.

I. RELOCATION ANALYSIS

There are three broad considerations for determining whether removal to another jurisdiction is in a child’s best interests: (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 a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation arrangements. Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000).

1. Parents’ Motives

I agree that Kimberly has not sought to frustrate Bradley’s custodial rights or otherwise acted in bad faith or frivolously. But her desire to reside in Virginia with her husband, Kent Butler, is equally balanced by Bradley’s legitimate concerns about the effects a relocation of over 1,000 miles will have on his relationship with his children. See Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000). It is the second and third considerations in the best interests analysis which weigh against relocation.

2. Quality of Life Factors

In Farnsworth, we set out a number of factors to “assist trial courts in assessing the second consideration regarding the potential for enhancing the quality of life for the child and the custodial parent.” 257 Neb. at 250, 597 N.W.2d at 598. We further *1051stated that courts were not required to give one factor more weight than any other factor in a given case. Id. But that statement should not be construed as authorizing courts to disregard any factor.

In determining the quality of life potential for the relocating parent and children, the following factors are pertinent: (1) the emotional, physical, and developmental needs of the children; (2) the children’s opinion or preference as to where to live; (3) the extent to which the relocating parent’s income or employment will be enhanced; (4) the degree to which housing or living conditions would be improved; (5) the existence of educational advantages; (6) the quality of the relationship between the children and each parent; (7) the strength of the children’s ties to the present community and extended family there; and (8) the likelihood that allowing or denying the move would antagonize hostilities between the two parties. Brown, supra.

The majority states that Kimberly presented evidence that the move to the Washington, D.C., area would result in a good quality of life for the children by providing educational, cultural, and recreational activities. The majority opinion further states that Kimberly was not required to prove that the quality of life elsewhere was superior to that in Nebraska. I disagree. The factors we set out in Farnsworth v. Farnsworth, 257 Neb. 242, 250, 597 N.W.2d 592, 598 (1999), were specifically intended to “assist trial courts in assessing ... the potential for enhancing the quality of life.” (Emphasis supplied.) To “enhance” is to “raise to a higher degree; [or] intensify.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 474 (1989). Therefore, in order to have the quality of life consideration weighed in her favor, Kimberly had to show that the relocation would improve the quality of life for the children and herself when all eight factors are considered as a whole. Although educational, cultural, and recreational activities are not the only factors that a court may consider, Kimberly has failed to demonstrate that their quality of life would be enhanced by the move.

(a) Existence of Educational Advantages

Kimberly stated that she and Butler wished to find a home in Fairfax, Virginia, because she believed that the city has a good *1052school system. She stated that she had seen the curricula for the schools, but she did not present any evidence to show that the Fairfax schools were superior to the children’s current school. In Farnsworth, we stated that generalized research is not compelling in determining whether one school system is superior to a Nebraska school system. This factor weighs neither for nor against the relocation. See id. See, also, Brown, supra.

(b) Improvement of Housing or Living Conditions

(i) Living Conditions

Kimberly testified that she and the children had enjoyed many recreational activities together while in Papillion. The children were also involved in organized sports, dance, and other activities. She stated that, if allowed to move, the children would be close to the ocean, historical sites, and museums. But she did not claim that these opportunities were superior to those available in Nebraska. Rather, the statements were made to support her contention that the recreational and cultural opportunities were not inferior to those available in Nebraska.

We have specifically stated that “the dispositive question is not where the children will have more fun, but where the living conditions will further their best interests. Simply put, the considerations one includes when choosing a vacation destination are not necessarily the same as those included when deciding where to raise a child.” Brown v. Brown, 260 Neb. 954, 969-70, 621 N.W.2d 70, 82 (2000). Based on the record, cultural and entertainment opportunities do not show that the Washington, D.C., area is a preferable place to live. See id.

Furthermore, because Kimberly had not obtained employment or housing at the time of the hearing, she was unable to say what the children’s schedule or childcare needs would be before or after school. She stated that Butler would be able to pick the children up from school on the days that he worked until 2 p.m., but she admitted that he sometimes worked until 6 p.m. and that she was uncertain what the commute time would be for either herself or Butler. In contrast, the children’s neighborhood school in Papillion provided before-and-after-school daycare, and Kimberly was able to rely on Bradley’s parents to care for the children when they were sick.

*1053 (ii) Housing

Kimberly testified that comparable housing was available but would cost approximately $500 to $600 per month more than in Nebraska. Under similar facts, we have held that the fourth factor did not weigh for or against relocation and did not factor into our de novo review. See id.

(c) Strength of Children’s Ties to Present Community and Extended Family

The majority opinion states that Bradley presented evidence which focused on the children’s ties to their community, their extended family in Nebraska, and the fact that the children had expressed concerns about moving. The majority concludes that while there were legitimate reasons for the children to remain in Nebraska, they were not compelling. I disagree.

Bradley testified that the children are very close to his parents and extended family. He usually stopped to visit his parents with the children when he had custody, and the children were with his extended family every holiday. Bradley’s mother testified that she saw the children once or twice a week and on every holiday and special occasion and that the children called her at least once a week. Two other witnesses also testified to the children’s close relationship with Bradley’s parents. Brandon’s cousin was also his best friend. Finally, Chelsea and Brandon, who were in the fourth and sixth grades, respectively, at the time of this hearing, had attended the same school in Papillion all of their lives.

In contrast, the children do not have extended family in Virginia or the stability that comes from the long-established social relationships in their school and community. Given the strength of the family and community ties in Nebraska, this factor weighs against relocation.

(d) Children’s Opinions or Preferences as to Where to Live

The parties stipulated that if the children were allowed to testify, they would say that they preferred to continue living in Papillion. Although a child’s wishes are not controlling, they are relevant and weigh against removal in this case. See Marez v. Marez, 217 Neb. 615, 350 N.W.2d 531 (1984) (affirming district court’s denial of motion for removal to Colorado in which court strongly considered children’s statements made during in camera *1054interview; children, ages 11, 10, and 9, wished to remain with family and friends in Nebraska).

A child’s preference should be given consideration by the court in acting upon a motion for modification of custody when (1) the issue is whether the child will be moved from the community where the child has lived for most of his or her life; (2) an excellent parent who remains in that community wishes to have the child reside with him or her, and (3) the child, for valid reasons, has expressed a preference to remain in the community. In re Marriage of Rosson, 178 Cal. App. 3d 1094, 224 Cal. Rptr. 250 (1986), disapproved on other grounds, In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 2d 444 (1996).

The children’s desires to remain close to the family and friends they had known all their lives were valid reasons for preferring to remain in Nebraska with Bradley. See Marez, supra. Further, the children had extensive interactions with both parents and had lived with the custody arrangement for 3 years at the time of this modification hearing. Their preferences should have been given consideration by the court.

I find the support of this extended family and the strength of the children’s desires to remain near this family compelling reasons for the children to remain in Nebraska. Moreover, I cannot conclude that the remaining factors weigh in favor of relocation.

(e) Emotional, Physical, and Developmental Needs of Children

The guardian ad litem’s interviews indicated that the children were very loyal to both parents, and she believed it would be in their best interests to have “good contact with both parents on an immediate and frequent basis.” Given that Kimberly intended to move, however, she believed that it would be in the children’s best interests to remain with Kimberly and Butler.

A court should consider that a custodial parent’s remarriage can sometimes strengthen and stabilize a postdivorce family unit. See Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). The guardian ad litem, however, admitted that she had never met Butler, and Kimberly presented no evidence concerning the children’s relationship with him. In addition, Kimberly testified that Butler’s assignment at the Pentagon *1055would last only a little over a year and that he had no control over where he would be assigned after that period.

There was also a question as to the emotional effect the move would have on Brandon. Bradley testified that Brandon had told his cousin he would kill himself if he were forced to move. The guardian ad litem did not believe Brandon would act in a harmful manner if he moved, based on Brandon’s counselor’s reports. She admitted, however, that she had not followed up on Bradley’s concerns about Brandon and that she had only briefly interviewed Brandon. She also testified that Brandon’s counselor had reported that Brandon was mildly depressed. She believed that the move — especially to a location over 1,000 miles away — could exacerbate Brandon’s depression whether he moved with Kimberly or stayed with Bradley because the move would make close contact with both parents impossible.

At best, the guardian ad litem was able to say that the children were well-adjusted enough to “handle” a move. But given the guardian ad litem’s concerns that the children should have close contact with both parents and that the move could heighten Brandon’s depression and the possibility of future transfers for Butler, the evidence failed to show that the relocation would enhance the children’s emotional, physical, and developmental needs.

(f) Enhancement of Custodial Parent’s Income or Employment

Kimberly testified that she had received no replies to her job applications to manage apartment rental property. Although she believed her income would be approximately $8,000 more annually than what she earned in Nebraska, she admitted that her estimate might not be accurate. She stated that she believed the standard of living for herself and her children would be improved by combining her household with Butler’s household, but the record does not show Butler’s income. Further, the evidence showed that any assumed increase in her income would be at least partially offset by increases in housing costs of approximately $500 to $600 per month. On this record, Kimberly did not show that her income or employment would be enhanced. Compare Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000) (Stephan, J., concurring in result).

*1056(g) Quality of Relationship Between Children and Each Parent

The record shows that both Bradley and Kimberly have a close, nurturing relationship with their children. The guardian ad litem’s report and testimony indicated that the children are bonded to both parents and experience positive interactions with each. Kimberly admitted that Bradley had custody of the children more than the time ordered in the decree of dissolution. Although Kimberly testified that Bradley had not taken full advantage of his extended summer visitation, she also stated that she had asked him to pick the children up from daycare when she had scheduling conflicts or needed him to babysit for her.

Bradley submitted a calendar on which he had kept track of the dates he had custody for evenings or overnight visitations. Some of the evenings he had custody were only from 5 p.m., after daycare, until between 8 and 9 p.m., but the evidence showed that he had overnight visitation with his children an average of seven nights per month and had some type of visitation with his children an average of 3lk days out of every week. He also frequently called his children on the days he did not have visitation. In addition, the children attended regular, extended family gatherings at his parents’ home. While the children’s move to Virginia sustains Kimberly’s relationship with the children, its effect on their relationship with Bradley is devastating because the distance involved will make frequent contact impossible.

(h) Summary — Quality of Life

“Under Nebraska law, the burden has been placed on the custodial parent to satisfy the court that he or she has a legitimate reason for leaving the state and to demonstrate that it is in the child’s best interests to continue living with him or her.” Brown v. Brown, 260 Neb. 954, 965, 621 N.W.2d 70, 80 (2000). In affirming this relocation, the majority opinion has relied on Kimberly’s evidence that the move to the Washington, D.C., area would enhance the quality of life for the children by providing educational, cultural, and recreational activities. But, in other cases, we have found that similar evidence failed to demonstrate that a relocation would enhance the child’s quality *1057of life. See, id.; Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).

Conversely, the majority has ignored the children’s desires to remain in Nebraska where they have a close relationship with Bradley and strong ties to their extended family and community. As to the remaining factors, the evidence was inconclusive at best and required this court to speculate that the children’s quality of life would be enhanced. Preserving the custodial relationship should not always come at the cost of a child’s bond with a dedicated noncustodial parent. Because Kimberly has failed to carry her burden of proof that the relocation will enhance the quality of life for the children and herself, the issue should turn on the impact of the move on the contact between Bradley and the children. See Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).

3. Impact of Move on Contact Between Bradley and Children

The final consideration is the impact of the relocation on Bradley’s ability to maintain a meaningful relationship with his children. See Brown, supra. The relocation to the Washington, D.C., area is over 1,000 miles from Bradley’s home. It will dramatically affect Bradley’s contact with his children and make it impossible for him to maintain the relationship that he had enjoyed. The distance, expense, and time involved in such travel are appropriately considered in evaluating the degree to which the move would affect Bradley’s contact and relationship with his children. See id. Although Kimberly has been ordered to pay for the children to visit Bradley in the summer and specified school holidays, the evidence showed that Bradley had extensive physical custody of the children and contacted them by telephone on the days he did not see them. Summer and holiday vacations will not compensate him or the children for this daily interaction.

In addition, Bradley petitioned for custody in this case. A noncustodial parent’s interest in securing custody as well as the feasibility of a change in custody are factors to be considered in assessing the impact of a move on the noncustodial parent relationship. See Farnsworth, supra. The evidence showed that the children’s relationship with Bradley was very close, that they in *1058fact wished to remain with Bradley, and that their ties to the extended family and community were strong. Both Bradley and the children would have considerable support from his parents and stability from their existing relationships within their community. Bradley’s mother stated that she and Bradley’s father had provided childcare in the past and could continue to do so whenever needed. Thus, transferring custody to Bradley was a realistic alternative to relocating the children to Virginia.

4. Best Interests of Children

As noted, the district court failed to make any findings to indicate that the relocation would be in the children’s best interests. But the court did state that based on evidence from the guardian ad litem, it had concerns about the effect the move would have on the children as well as the effects of Butler’s future assignments and transfers. Nevertheless, the trial court ignored these concerns and permitted the relocation.

II. CONCLUSION

Reviewing the record de novo, I conclude that the evidence failed to show that the quality of life for these children would be enhanced by the relocation and that any speculation on this issue was significantly outweighed by the detrimental effects the move would have on the children’s relationship with Bradley. I would reverse the decision of the district court allowing the removal of the children.

McCormack, J., joins in this dissent.