Opinion
No. A-11-466
03-06-2012
CARRIE M. CADA, FORMERLY KNOWN AS CARRIE M. CADA-LOVE, APPELLANT, v. KENNETH L. LOVE, APPELLEE.
John W. Ballew, Jr., and Natalie S. Hazen, of Ballew, Covalt & Hazen, P.C., L.L.O., for appellant. Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
CADA V. LOVE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: JODI NELSON, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
John W. Ballew, Jr., and Natalie S. Hazen, of Ballew, Covalt & Hazen, P.C., L.L.O., for appellant.
Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Carrie M. Cada (Carrie) appeals an order of the district court for Lancaster County, Nebraska, denying her request to remove the parties' minor child, Aidan Love, from Nebraska to Michigan and denying the parties' request for a new parenting plan. We agree with the district court's finding that although Carrie had a legitimate reason to request removal, she failed to sufficiently demonstrate that removal would be in Aidan's best interests, and we affirm the denial of her request for removal. We agree with the parties, however, that there has been a sufficient material change of circumstances to warrant a new parenting plan, and we reverse the denial of the request for a new parenting plan. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
II. BACKGROUND
There is very little dispute about any of the evidence introduced in this case. The issues resolved at trial really amounted to determinations of whether the evidence was sufficient to warrant allowing Carrie to remove the child to Michigan and, after the court denied that request, whether the evidence was sufficient to warrant the entry of a new parenting plan.
The marriage of Carrie and Kenneth L. Love (Kenneth) was dissolved in a dissolution of marriage decree entered June 12, 2007. The decree specifically incorporated a joint stipulation of the parties. In the stipulation, Carrie was awarded full legal and physical custody of the parties' minor child, Aidan, subject to reasonable parenting time with Kenneth. Aidan was born in September 2003. Since entry of the decree, Carrie and Aidan have resided in Omaha, Nebraska, while Kenneth has resided in Lincoln, Nebraska.
In June 2008, Carrie filed an application to modify the dissolution decree and requested the district court's permission to remove Aidan from Nebraska to Michigan. Carrie alleged that she was then engaged to be married "to a gentleman from the Grand Rapids, Michigan, area" and that removal was necessary because that was where her fiance was located and was employed. Carrie also alleged that removal was in the best interests of Aidan and would enhance the quality of life for Carrie and Aidan. She also alleged that "some adjustment in parenting time might be necessary to accommodate air travel time and flight availability" for Kenneth. Kenneth opposed the move.
In January 2009, the district court denied Carrie's application for removal. The court noted that both Carrie and Kenneth were from Lincoln; that both parties' parents and extended families resided in the area; that Aidan had positive relationships with the extended family members; and that neither Carrie nor Kenneth had any family in or near Michigan. The court also noted that Kenneth was an involved noncustodial parent who exercised all of his allotted parenting time with Aidan, that Kenneth frequently attended activities that Aidan was involved in outside of court-ordered parenting time, and that Kenneth made time to travel from Lincoln to Omaha to do so, making his involvement in Aidan's life a priority. The court recognized that a move to Michigan would "put approximately 650 miles between Aidan, his dad, and the rest of his family." During the hearing on Carrie's request for removal, she testified that if the request for removal was denied she would not proceed with the marriage. The court found that Carrie's desire to move to Michigan to reside with her fiance was not a legitimate reason for removal and that she had failed to sufficiently demonstrate that removal was in Aidan's best interests.
In March 2010, Carrie filed a second application to modify the dissolution decree and requested the district court's permission to remove Aidan from Nebraska to Michigan. Carrie again alleged that she was engaged to be married to a man residing in Michigan and alleged that the marriage was scheduled for June 2010. She also alleged that she had secured an employment opportunity in Michigan. Carrie again alleged that her marriage was a legitimate reason for seeking removal and alleged that it was in Aidan's best interests to be removed to Michigan because the move would "enhance the quality of life for the child as well as for [Carrie]." Carrie also requested a new parenting plan. Kenneth filed a cross-application requesting a change of custody.
The court bifurcated the issue of removal and the issue of implementing a new parenting plan. In August 2010, the court held a hearing on the removal issue. Carrie presented testimony from both her new husband (as the wedding had already taken place) and herself concerning his job in Michigan, the proposed housing and educational opportunities in Michigan, the outdoor recreational opportunities in Michigan, and her potential employment opportunity in Michigan. Kenneth presented testimony from one of Aidan's teachers, from Kenneth's parents, from a clinical psychologist, and from himself concerning his relationship with Aidan and involvement in Aidan's daily life, and the impact that Aidan's removal to approximately 650 miles away would have on his relationship. More details concerning the testimony and evidence presented by each party will be set forth in the analysis section below.
In September 2010, the district court entered an order denying Carrie's request for permission to remove Aidan from Nebraska to Michigan. The court issued a thorough, 10-page order containing extensive analysis of the various legal factors involved in removal cases and the facts of the present case, and concluded that although Carrie had demonstrated a legitimate reason for removal because of her marriage, she had failed to demonstrate that allowing removal would be in Aidan's best interests. The court emphasized that Kenneth is a highly involved noncustodial parent who makes spending time with Aidan a priority, that Kenneth presented evidence that extended family in Nebraska are involved in Aidan's daily life and have important and beneficial relationships with Aidan, and that Kenneth presented expert evidence that the move would have a detrimental impact on his relationship and bond with Aidan. The court also noted that Carrie testified, as she did in the previous removal case, that she would not be willing to live as far away from Aidan as granting her request would take Aidan from Kenneth, and her reasons for being opposed to such a situation were almost identical to the reasons presented by Kenneth.
In March 2011, the court conducted a hearing on the parties' request for a new parenting plan. During that hearing, the parties both presented testimony that they had disagreements and difficulties concerning provisions of the previously stipulated parenting plan, including some transportation and communication issues and some dispute relating to notice about medical and dental matters concerning Aidan. In May 2011, the court entered an order denying the parties' request for a new parenting plan. The court found that there had not been a material change of circumstances. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Carrie has assigned two errors. First, she asserts that the district court erred in denying her request for permission to remove Aidan from Nebraska to Michigan. Second, she asserts that the court erred in denying the parties' request for a new parenting plan. We note that Kenneth has also included in his brief an argument that the district court erred in denying the parties' request for a new parenting plan.
IV. ANALYSIS
Carrie's assignments of error in this case concern issues related to custody and parenting time. Such 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 ordinarily be affirmed in the absence of an abuse of discretion. See Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007).
1. REMOVAL OF MINOR CHILD FROM JURISDICTION
Carrie first challenges the district court's denial of her request for permission to remove Aidan from Nebraska to Michigan after her marriage to a man who resides and is employed in Michigan. She asserts the evidence was sufficient to demonstrate both that a legitimate reason existed for removal and that removal would be in Aidan's best interests. We agree with the district court that the evidence was insufficient to demonstrate that removal of Aidan 650 miles from Kenneth would be in his best interests. Carrie failed to carry her burden to demonstrate that removal of Aidan to Michigan would provide benefits to Aidan under the various factors considered in the best interests analysis. As a result, we find no merit to Carrie's first assignment of error.
The relevant test to be applied in cases where a custodial parent seeks court permission to remove a minor child from the state has been set forth by the Nebraska Supreme Court on numerous occasions. See, Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002); McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). 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. Id. Under Nebraska law, the burden has been placed on the custodial parent to satisfy this test. Wild v. Wild, supra.
(a) Legitimate Reason to Leave State
In this case, Carrie asserted, and the district court agreed, that her marriage to a man living and employed in Michigan constituted a legitimate reason to seek permission to remove Aidan from Nebraska to Michigan. Kenneth has not cross-appealed, and there is no issue raised on appeal concerning whether her marriage constituted a legitimate reason for removal.
(b) Aidan's Best Interests
Carrie asserts that the district court erred in finding that she failed to sufficiently demonstrate that removal of Aidan from Nebraska to Michigan was in Aidan's best interests. As noted, the district court thoroughly considered the various factors established in prior cases concerning this issue, thoroughly considered and recounted the key evidence with respect to each issue, and ultimately concluded that the potential harm to the relationship between Kenneth and Aidan was substantial and that Carrie had presented insufficient evidence to demonstrate that the factors weighed in favor of allowing removal. We agree with the district court.
After clearing the threshold of demonstrating a legitimate reason for leaving the state and removing the minor child to another state, the custodial parent must demonstrate that it is in the child's best interests to continue living with him or her. Tremain v. Tremain, supra; McLaughlin v. McLaughlin, supra; Vogel v. Vogel, supra; Brown v. Brown, supra; Jack v. Clinton, supra; Farnsworth v. Farnsworth, supra; Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007). In determining whether removal to another jurisdiction is in the child's best interests, the trial 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 a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation. Id.
(i) Each Parent's Motives
The first factor that must be considered is each parent's motives for seeking or opposing the removal of the minor child from the jurisdiction. We conclude that, at most, the evidence demonstrates that the parties' motives are balanced; this factor does not weigh in favor of a finding that removal is in Aidan's best interests.
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. Wild v. Wild, supra. See, also, McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
The evidence in this case demonstrates that Carrie sought removal because she was engaged to, and subsequently married, a man who lives and is employed in Michigan. In addition, she secured an employment opportunity in Michigan, pending court approval for her request for removal. Although Carrie had previously sought, and been denied, removal because of her engagement to the same man in Michigan and had testified then that she did not intend to get married if that request was denied, Carrie's subsequent marriage and job opportunity represent a basis for requesting removal that does not appear to have been motivated by an effort to frustrate or manipulate Kenneth. There does not appear to be any bad faith or ill motives in Carrie's request.
The evidence in this case demonstrates that Kenneth is a very involved noncustodial father who has regularly exercised all of his court-ordered parenting time and has also taken other opportunities to spend additional time with Aidan. There was evidence from both parties concerning Kenneth's attendance at Aidan's school and extracurricular activities, even outside of his scheduled parenting time. Kenneth testified that he is at all of Aidan's soccer games, for example. There was also testimony that Kenneth's parents and siblings similarly attend Aidan's activities. It was the desire to continue his consistent contact and presence in Aidan's life and the recognition that such a relationship with his 7-year-old son would be dramatically changed if Aidan was removed 650 miles that motivated Kenneth's resistance to the request for removal. There does not appear to be any bad faith or ill motives in Kenneth's resistance; indeed, Carrie testified that she, too, would have resisted such a request if the roles were reversed.
As is true of other cases decided by the appellate courts of Nebraska concerning this factor, we do not find that either party was acting in bad faith or with ill motives. Id. We conclude that, at most, the motives of the parties are balanced. As such, this factor does not weigh in favor of a finding that it is in Aidan's best interests to be removed from Nebraska.
(ii) Quality of Life
The second factor that must be considered is the potential that the move holds for enhancing the quality of life for the child and the custodial parent. This factor requires consideration of a number of other considerations which bear upon the potential enhancement of the child's quality of life. Wild v. Wild, 15 Neb. App. 717, 737 N.W.2d 882 (2007). The evidence adduced by Carrie in this case fails to demonstrate that the proposed removal to Michigan would significantly enhance Aidan's quality of life. Carrie failed to demonstrate that this factor weighs in favor of removal.
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 should evaluate the following considerations: (1) the emotional, physical, and developmental needs of the child; (2) the child'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 child and each parent; (7) the strength of the child's ties to the present community and extended family there; and (8) the likelihood that allowing or denying the removal would antagonize hostilities between the two parties. Wild v. Wild, supra. See, McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). 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. Id.
a. Emotional, Physical, and Developmental Needs
The district court specifically found that there was no evidence that the move would enhance satisfaction in any way of Aidan's emotional, physical, and developmental needs. Our review of the record confirms this conclusion. The record demonstrates that both parents are capable and committed to providing for Aidan's needs, and there was no evidence presented to demonstrate that either party was deficient in any way or that a move to Michigan would be beneficial to Aidan's needs. As such, this consideration does not weigh in favor of granting removal to Michigan.
b. Aidan's Opinion or Preference
As the district court noted, Aidan was only 5 years of age. Accordingly, there was no evidence concerning his opinion or preference. This consideration does not weigh in favor of granting removal to Michigan.
c. Enhancement of Income or Employment
The district court recognized that Carrie had asserted that she had secured an employment opportunity in Michigan that was dependent upon the court granting her request for removal. The record demonstrates that Carrie had generally been unable to secure employment in the Omaha area following the divorce, aside from selling skin-care products out of her home. She testified at the removal hearing that she had attempted to secure employment in a variety of fields, including various retail positions. She also testified that the salary she would receive in Michigan, approximately $30,000 per year, would be the highest salary she would have earned since graduating from college.
The district court also noted that when Carrie sought removal in 2008, she had testified that she did not intend to work outside of the home, either in Michigan or in Nebraska. However, after she elected to proceed with the marriage despite the court's denial of her first request for permission to remove Aidan to Michigan, Kenneth was no longer obligated to continue paying alimony.
We note that at the time of the later hearing on the parties' request for a new parenting plan, Carrie testified that she was then employed at a law firm in Lincoln. She testified that she did not intend to continue that employment. Nonetheless, the record also demonstrates that despite her lack of a meaningful income from employment, Carrie has been able to enjoy a suitable lifestyle, including travel around the United States and to tropical locations, through the assistance of her family and her new husband. Additionally, she testified that she lives in a house that she rents from her parents, and the record indicates that she does not always pay rent but that there is not a difficulty with her housing as a result.
Certainly the record supports the conclusion that Carrie had a better employment opportunity secured in Michigan than her employment situation in Nebraska at the time. This consideration would weigh in favor of allowing removal to Michigan to enhance Carrie's income and employment opportunities.
d. Housing or Living Conditions
The district court concluded that there was not sufficient evidence to demonstrate that removing Aidan to Michigan would enhance their housing or living conditions. The district court's conclusion was ultimately that the evidence demonstrated that the housing and living conditions in both Nebraska and Michigan were adequate and appropriate.
The record demonstrates that Carrie and Aidan live in an adequate and appropriate home in Omaha. There was no evidence presented to suggest any deficiencies in their housing situation in Nebraska. As the district court noted, and as noted above, the house Carrie and Aidan live in is owned by her parents, and although she is to pay them rent, she admittedly is not always required to do so and there are no consequences if she does not.
The record demonstrates that Carrie's new husband also lives in a house that he does not own and that is provided by someone else. Carrie's husband's home, where Carrie and Aidan would live with him in Michigan, is provided by Carrie's husband's employer. Carrie presented evidence and testimony that it would be an adequate and appropriate house in a rural setting.
The most that can be said on the record presented is that both Nebraska and Michigan afford Carrie and Aidan adequate and appropriate living conditions. There was no evidence adduced to demonstrate that any inadequacies or deficiencies existed in Nebraska or that the available housing in Michigan would somehow enhance Aidan's living conditions. As such, this consideration does not weigh in favor of granting removal to Michigan.
e. Educational Advantages
Again, the district court concluded that there was not sufficient evidence to demonstrate that removal of Aidan to Michigan would provide educational advantages weighing in favor of allowing removal. The district court's conclusion on this consideration also was ultimately that the evidence demonstrated that the educational opportunities in both Nebraska and Michigan were adequate and comparable.
The evidence demonstrated that Aidan attends a parochial school in Omaha that has received a "Blue Ribbon" award, that he enjoys attending school, and that he has done very well so far in his very short educational career. The evidence demonstrated that Carrie had explored the school she proposed to send Aidan to in Michigan, that it had a slightly higher teacher to student ratio, and that it appeared to have comparable academic programming available.
Like other considerations already discussed, the most that can be said on the record presented is that both Nebraska and Michigan appear to provide Aidan with comparable and adequate educational opportunities. Aidan was only 5 years of age, and there was no evidence adduced of any significant educational advantage that moving to Michigan would provide. As such, this consideration also does not weigh in favor of granting removal to Michigan.
f. Quality of Relationship Between Child and Parents
With regard to this consideration, the record demonstrates that Aidan has a good relationship with both parties and that by necessity, removal will impact his relationship with Kenneth and the amount of time he is able to spend with Kenneth. Carrie presented no expert evidence concerning her bond with Aidan, and although Kenneth presented expert evidence concerning the strength of the bond between himself and Aidan, there was no evidence to suggest that Aidan has a stronger bond with either parent. There was no expert evidence adduced indicating that removal should be allowed because of a stronger bond with Carrie. Compare McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002) (expert recommended granting removal because of bond with custodial parent). As even Carrie acknowledged, it is clear that Aidan's relationship with Kenneth would be impacted, at least to the extent of a reduction in the frequency and ease of Aidan's and Kenneth's contact with each other. This consideration, then, also does not weigh in favor of granting removal to Michigan.
g. Ties to Community and Extended Family
The record reflects that both Carrie and Kenneth are originally from Nebraska and have extended family in Nebraska. Aidan was only 5 years of age and had lived his entire life in Nebraska. There was evidence demonstrating that Aidan has a good relationship with his extended family members in Nebraska and that his grandparents, aunts, and uncles all take steps to spend time with Aidan and attend his activities. The record also reflects that neither Carrie nor Kenneth have any family in Michigan. As such, this consideration does not weigh in favor of granting removal to Michigan.
h. Hostilities Between Parties
As the district court noted, there was no evidence adduced to suggest that granting removal would result in any change in the hostilities between the parties. The record suggests that despite some disagreements and communication issues, there is not substantial hostility between these parties and both parties are primarily motivated by a desire for what is best for Aidan. There is nothing to suggest this consideration should weigh in favor of granting removal to Michigan.
i. Conclusion on Quality of Life
Our de novo review of the record leads us to conclude that the quality of life considerations do not weigh in favor of allowing Carrie to permanently remove Aidan 650 miles away from Kenneth. The record in this case demonstrates that Kenneth is a very involved noncustodial parent, there was expert testimony that the frequency of a parent's contact with a child is important and bears a correlation to the child's future success, and that Aidan's relationship with his father would necessarily be impacted as a result of less frequent contact from living 650 miles away from Kenneth.
The considerations concerning enhancement of Carrie's and Aidan's quality of life almost uniformly fail to weigh in favor of granting removal to Michigan. This record essentially demonstrates that Aidan would have many wonderful opportunities and activities in Michigan, but that almost all of them are also available here, where Kenneth is able to see him several times a week and where all of his extended family lives. Carrie simply failed to carry her burden of demonstrating that these considerations weigh in favor of granting removal to Michigan.
(iii) Impact of Move on Contact Between
Child and Noncustodial Parent
In this case, there can be no doubt that granting removal would impact the amount of contact between Aidan and Kenneth. Prior to the commencement of these proceedings, Kenneth enjoyed parenting time every Tuesday evening, every other Thursday evening, and every other weekend. In addition, Kenneth attended activities at Aidan's school and extracurricular activities of Aidan. The record demonstrates without contradiction that Kenneth consistently exercises his parenting time and has frequent, positive contact with Aidan. The district court found that Aidan is Kenneth's "number one priority" and that Kenneth "arranges his work schedule and personal life so that he can spend time with Aidan as often as possible." As the district court found, there is no possibility that Kenneth could enjoy as frequent and consistent contact with Aidan if Aidan was living 650 miles away in Michigan.
The district court rejected Carrie's assertion that Kenneth could still enjoy sufficient parenting time by having parenting time one weekend per month, 6 weeks in the summer, and during some of the other holiday breaks. Carrie acknowledged when asked that such an arrangement would not be adequate parenting time if she was on the receiving end of such a schedule, and she acknowledged that she would not be agreeable to living so far away from Aidan. The district court noted that Carrie admitted that Aidan's relationship with Kenneth would be affected by the move.
As noted above, Kenneth also presented evidence from a clinical psychologist who had performed an evaluation of the relationship between Aidan and Kenneth. The psychologist testified that the frequency of contact, more than the sum total of contact, was the important consideration when assessing contact between a parent and child, and especially so with a young child. He testified that frequency of contact and distance impact the bond between a child and parent, testified to a correlation between frequency of contact and future success for the child, and testified about risks of infrequent contact. He opined that removal would likely adversely impact the relationship between Aidan and Kenneth, and also noted that long distance travel between Michigan and Nebraska would be hard on a child Aidan's age.
The record does not contain any evidence to suggest that this factor could weigh in favor of granting removal to Michigan. Although Carrie attempted to argue that a parenting schedule could be worked out whereby Kenneth would actually receive a greater total number of days of parenting time with Aidan per year than he currently enjoys, she also acknowledged that such an argument did not take into account Kenneth's presence at school and other activities, and it did not take into account the frequency of contact. This factor weighs against granting removal to Michigan.
(iv) Conclusion on Best Interests
As noted, the district court in this case considered all of the relevant factors set forth in prior cases in determining whether Carrie had met her burden to demonstrate that granting permission to remove Aidan to Michigan would be in his best interests. Almost without exception, the factors and considerations that must be considered consistently fail to weigh in favor of granting removal to Michigan. The record does not demonstrate sufficient support for Carrie's assertion that it is in Aidan's best interests to be removed from Nebraska to Michigan.
(c) Conclusion on Removal
This case is a difficult one primarily because Carrie married a man who resides and is employed in Michigan, approximately 650 miles away. She did this after previously requesting, but being denied, permission to remove Aidan to Michigan, and she did it prior to any hearing on her second request for permission to remove Aidan from Nebraska to Michigan. The case is also difficult because it involves two parents who both appear to be very involved, very committed, and very invested in Aidan's life. Nonetheless, our de novo review of the record does not reveal any abuse of discretion by the district court in finding that Carrie failed to demonstrate that removal would be in Aidan's best interests. We find no merit to Carrie's first assignment of error.
2. NEW PARENTING PLAN
Both parties requested that the district court enter a new parenting plan, and both parties assert on appeal that the court erred in refusing to do so. The court bifurcated the issues of removal and whether to implement a new parenting plan, and after denying the request for removal, the court found that there had been no material change of circumstances and denied the requests for a new parenting plan. We find that there was a material change of circumstances and reverse the court's denial of a new parenting plan and remand the matter for a new hearing.
Parenting time established by a marital dissolution decree may be modified upon a showing of a material change of circumstances affecting the best interests of the child. See Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585 (2004). Such modification is initially entrusted to the discretion of the district court, whose decision is reviewed de novo on the record and will normally be affirmed in the absence of an abuse of discretion. Id. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
Parenting time relates to continuing and fostering the normal parental relationship of the noncustodial parent with the minor child of a marriage which has been legally dissolved. Id. The best interests of the child are the primary and paramount consideration in determining and modifying parenting time. Id. The best interests inquiry has its foundation in both statutory and case law. Id.
Neb. Rev. Stat. § 42-364(1) and (2) (Cum. Supp. 2010) directs courts to consider the best interests of the minor child in determining custody arrangements and parenting time. Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2010) sets forth a nonexhaustive list of factors to be considered in determining the best interests of a child in this regard, including:
The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
. . . The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;
. . . The general health, welfare, and social behavior of the minor child; [and]
. . . Credible evidence of abuse inflicted on any family or household member.
In addition to the statutory factors, the Nebraska Supreme Court has explained that a court determines the nature and extent of parenting time on a case-by-case basis and may consider many factors and circumstances in each individual case, such as the age and health of the child, the character of the noncustodial parent, the place where parenting time will be exercised, the frequency and duration of parenting time, the emotional relationship between the noncustodial parent and the child, the likely effect of parenting time on the child, the availability of the child for parenting time, the likelihood of disrupting an established lifestyle otherwise beneficial to the child, and, when appropriate, the wishes of the child. See, Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001); Walters v. Walters, supra.
Although whether there is a material change in circumstances is one factor courts examine when modifying parenting time, it is not the only factor; nor is it the most important factor. See Walters v. Walters, supra. It is the child's best interests which are paramount to a decision to modify. Id.
In the present case, the initial custody and parenting time arrangement was governed by a joint stipulation of the parties during the dissolution proceedings. Pursuant to that stipulation, the court incorporated an agreed-upon parenting time schedule into the terms of the dissolution decree. Since that time, the parties have experienced some difficulties and disagreements concerning the terms of parenting time and its impact on Aidan, who has since begun school in Omaha. Carrie and Aidan now live in Omaha, while Kenneth lives in Lincoln; this physical distance between the parties has resulted in the need for some travel and transportation for Kenneth to exercise his parenting time during the week, while Aidan now has school.
Both parties testified at trial concerning some communication issues and disagreements about the exercise of parenting time since the dissolution decree. While there has not been substantial conflict between the parties, the testimony reflects that the parties no longer agree to the specific terms of Kenneth's parenting time.
In addition to changes in the parties' agreement concerning parenting time, in 2007 the Nebraska Unicameral enacted the Parenting Act. See Neb. Rev. Stat. § 43-2921 et seq. (Reissue 2008, Cum. Supp. 2010 & Supp. 2011). Both parties urge us to conclude that the mere enactment of the Parenting Act constitutes a material change in circumstances sufficient to warrant the district court's revisiting of the parenting plan and Aidan's best interests. While we find no need to reach such a broad conclusion, we do conclude that the parties' agreement that their stipulated parenting plan did not address a number of specific provisions required by § 43-2929, combined with the parties' agreement that they no longer agree on a number of provisions of their stipulated parenting plan and its requirements, constitutes a sufficient material change in circumstances to warrant the district court's revisiting of the parenting plan.
We reverse the district court's denial of the parties' request for a new parenting plan. We remand the matter to the district court to conduct a new hearing and to enter an appropriate parenting plan that complies with the Parenting Act and that reflects Aidan's best interests.
V. CONCLUSION
We find no merit to Carrie's assertion that the district court erred in denying her request to remove Aidan to Michigan. We affirm the court's denial of the request for removal. We do find merit to the parties' assertions on appeal that the court erred in refusing to implement a new parenting plan. We reverse the court's denial of the request for a new parenting plan and remand the matter for a new hearing and entry of a new parenting plan.
AFFIRMED IN PART, AND IN PART REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS.