Carraher v. Carraher

607 N.W.2d 547, 9 Neb. Ct. App. 23, 2000 Neb. App. LEXIS 67
CourtNebraska Court of Appeals
DecidedMarch 14, 2000
DocketA-98-1176
StatusPublished
Cited by7 cases

This text of 607 N.W.2d 547 (Carraher v. Carraher) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carraher v. Carraher, 607 N.W.2d 547, 9 Neb. Ct. App. 23, 2000 Neb. App. LEXIS 67 (Neb. Ct. App. 2000).

Opinions

Sievers, Judge.

This appeal involves the removal of a child from Nebraska to Colorado by his mother, Karla J. Carraher, the custodial parent. The father, Dennis M. Carraher, appeals the decision of the district court for Saunders County, which denied his application for modification of the parties’ divorce decree to grant him sole custody of the child, as well as the court’s order granting Karla’s application to remove their child from Nebraska to Colorado.

I. BACKGROUND

Dennis and Karla were married in May 1989. One child, Thomas, was bom to the couple on November 1,1989. The parties were divorced pursuant to a decree filed July 31, 1992. The parties had joint legal custody, with Karla having physical custody of Thomas. Dennis was granted visitation every other weekend, one evening during the week, 2 weeks each summer, and various holidays. The decree incorporates the parties’ property settlement agreement, which includes a provision regarding the removal of Thomas from Nebraska, which said that “if in the future the wife, as parent having physical possession of the minor child, decides to move from Nebraska, the wife shall make application to the Saunders County District Court prior to the time of such move.”

Karla and Thomas resided in an apartment in Wahoo, Nebraska, for the first 6 months after the parties’ divorce, until she bought a house in Weston, Nebraska. They lived in the house for 5 years and then moved to Wahoo where they lived with her boyfriend, Manual Brazil, for 3 months before moving to Colorado in September 1997.

Karla worked at several part-time jobs over the years. Prior to moving to Colorado, she worked at M.E. Collins Contracting, earning approximately $100 per week. She also received $500 a month from renting out the house she owned in Weston. In addition, Karla received approximately $250 per month in child support from Dennis. Karla testified that she was able to live adequately on her sources of income while in Nebraska.

[26]*26Thomas attended school in Weston and briefly in Wahoo at the start of the 1997 school year, and he was involved in other activities, including swimming and baseball. Karla is not abusive toward Thomas, and for punishment, she deprives him of something or sends him to his room. Dennis testified that Karla was very capable with Thomas and keeps him clean and healthy. It appears that Karla and Thomas have a loving, stable relationship.

Karla had a son, John, in 1985 from a prior marriage. John lived with Karla and Thomas until 1996, when John wanted to move to his father’s farm near Spalding, Nebraska. Karla and Thomas see John about once a month.

Dennis lives near Wahoo on a farm and is employed by the State of Nebraska as an electrical inspector. Dennis often takes Thomas to see relatives in Spalding during his visits. Other activities that Dennis and Thomas do include hunting, riding motorcycles, camping, fishing, swimming, going to car races, and playing games. The evidence shows that Dennis and Thomas have a very good relationship. Dennis is not abusive toward Thomas.

Over Labor Day weekend in 1997, Karla, John, and Thomas went to the Estes Park area to visit Karla’s sister. They returned on Monday, and on Tuesday, Karla made the decision to move to Colorado. She testified that she had been considering moving there for some time, but did not think that the move would actually occur. On September 4, 1997, Karla moved to Estes Park and took Thomas with her without the court’s or Dennis’ approval. Although Karla testified that she tried to contact Dennis to let him know where she and Thomas were going, she was unable to locate him, as he was on vacation in Colorado. Therefore, she wrote him a letter. On September 6, Dennis returned from his vacation and attempted to contact Thomas at Brazil’s house. The next day, he became concerned and began making telephone calls. He found out on September 8 that Karla had taken Thomas to Colorado.

Dennis filed an application to modify the decree on September 8, 1997, and requested that he be awarded sole custody of Thomas. Also on September 8, Dennis filed a motion for ex parte temporary custody to allow him to obtain custody dur[27]*27ing the pendency of the application to determine Thomas’ custody. On September 9, the court awarded Dennis temporary custody. On September 10, Karla filed a motion to quash the temporary custody order together with an application for leave to remove Thomas from Nebraska. The court granted Karla’s motion to quash, vacated the temporary ex parte custody order it had entered the day before in favor of Dennis, and allowed Karla to remove Thomas to Colorado pending the final determination of the case. A trial was not held on Dennis’ application to modify and Karla’s application to remove until April 16, 1998, and the trial court did not decide the case until October 9, 1998, over 1 year after Karla had taken Thomas and moved to Colorado.

Karla testified that she moved to Colorado in order to end her relationship with Brazil. She stated that Brazil was not abusive toward her or Thomas, but their arguments had grown more frequent and intense. Karla said that she feared the situation would worsen and violence would develop and that she did not want Thomas exposed to this situation. Both she and Brazil testified that if Karla had stayed in Nebraska, Brazil would have followed her. Therefore, Karla decided that in order to permanently end their relationship, she and Thomas should move to Colorado.

Karla began working as a waitress at Ed’s Cantina in Estes Park on September 16,1997, and currently earns about $350 per week. This is approximately twice the amount she made waitressing in Wahoo at previous jobs. However, she no longer receives the $500 a month rental income from the house she owned in Weston. She and Thomas rent a two-bedroom house for $600 per month in Estes Park. Karla stated that living in Estes Park is better than living in Nebraska because the area is more beautiful, there are more job opportunities, and there are more activities for children. In addition, she considers the schools to be better, and Thomas has been performing very well in school in Colorado. Karla has a sister who lives in Allenspark, Colorado, which is about 20 miles from Estes Park.

Dennis stated that since Karla’s move to Colorado, visitations with Thomas have deteriorated due to the long drive involved in order to see Thomas. He has been able to see him approximately [28]*28once a month, and the travel impacts on the time and quality of their visits. Dennis and Karla have been meeting halfway between Wahoo and Estes Park near North Platte, Nebraska. Each parent drives approximately 4 hours each way, and the trips cost Dennis about $60 round trip for gas and food. Dennis is worried about the driving time, road conditions, and traffic on the interstate and the impact of these things on Thomas.

Dennis testified that he has concerns regarding Karla’s parenting of Thomas, although they are not related to her actual care giving to Thomas. Karla has moved several times and has held various jobs since the parties divorced. Dennis asserts that this is evidence of Karla’s instability and impulsive decision-making. Aside from an attempted reconciliation with Dennis, Karla has had only the one relationship with Brazil since the parties’ divorce. Dennis admitted that his application for modification had nothing to do with Karla’s relationship with Brazil.

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Carraher v. Carraher
607 N.W.2d 547 (Nebraska Court of Appeals, 2000)

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Bluebook (online)
607 N.W.2d 547, 9 Neb. Ct. App. 23, 2000 Neb. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carraher-v-carraher-nebctapp-2000.