Farnsworth v. Farnsworth

576 N.W.2d 476, 6 Neb. Ct. App. 597, 1998 Neb. App. LEXIS 39
CourtNebraska Court of Appeals
DecidedMarch 3, 1998
DocketA-97-159
StatusPublished
Cited by3 cases

This text of 576 N.W.2d 476 (Farnsworth v. Farnsworth) 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
Farnsworth v. Farnsworth, 576 N.W.2d 476, 6 Neb. Ct. App. 597, 1998 Neb. App. LEXIS 39 (Neb. Ct. App. 1998).

Opinions

Irwin, Judge.

I. INTRODUCTION

Jeffrey D. Farnsworth (Jeff) appeals a January 13, 1997, order of the district court for Douglas County modifying a decree that dissolved his marriage to Kristy Lee Farnsworth. In the January 13 order, the district court allowed Kristy to relocate to Denver, Colorado, with the parties’ only child, Casey Jay, bom August 21, 1991. The district court also increased Jeff’s child support obligation to $525 per month in accordance with the current Nebraska Child Support Guidelines and ordered increased visitation rights for Jeff. Regarding travel expenses, the parties were ordered to split them for the extended summer, Christmas, and Easter break or spring vacation visits and Jeff was ordered to pay the expenses for all other visitations.

The overriding issue in this appeal is whether a divorced mother who has custody of her son, now 6 years of age, has shown that she has a legitimate reason that is in the son’s best interests to move him more than 500 miles from his father, who, by everyone’s account, spends approximately one-half of the [599]*599year exercising visitation with his son. On the record presented in this case, we conclude that the mother has not proved a legitimate reason for leaving the state and that the trial court abused its discretion in allowing her to do so.

II. FACTUAL BACKGROUND

Pursuant to the original divorce decree entered May 31, 1995, Kristy was awarded custody of Casey subject to Jeff’s visitation rights, which included visitation of 1 week commencing on Monday of the second full week of each month, visitation every other weekend from Friday at 6 p.m. through Sunday at 6 p.m., and 6 weeks’ extended summer visitation. At the time of the decree, both Kristy and Jeff resided in Nebraska. Jeff was ordered to pay child support of $250 per month. Jeff’s support was cut in half for the extended summer vacation.

On July 11, 1996, Kristy filed an application to modify the decree to increase the amount of Jeff’s child support in conformity with the current Nebraska Child Support Guidelines. Jeff filed an answer opposing Kristy’s application. Jeff also filed a cross-application for modification, seeking an order awarding him and Kristy joint custody of Casey or, in the alternative, specific, increased, and extended visitation with Casey. He also requested that the court prohibit Kristy from leaving the local area with Casey. Thereafter, on October 16, Kristy filed a motion to remove Casey from Nebraska to Denver. Pursuant to the parties’ stipulation, Jeff had “extended visitation” with Casey during the pendency of Kristy’s removal motion, from November 1 through 25.

A hearing was held on the pending matters on December 13, 1996. The parties stipulated that Kristy is a fit and proper person to have custody of Casey. Jeff withdrew the portion of his cross-application requesting joint custody of Casey. Both Kristy and Jeff testified at the hearing.

During presentation of her case, Kristy testified that she made $24,500 per year at Cari Rental in Omaha. Her job dealt with corporate furniture leasing. She stated that because her career advancement possibilities with Cari Rental were limited due to the size of the company, she began to look for another job. She restricted her search to other corporate furniture-[600]*600leasing jobs, refusing to consider office furniture-leasing jobs because she enjoyed corporate leasing. (The precise distinction between these two types of job is unclear from the record.) Kristy testified about her search for a job in Omaha and said, “I think I looked in the want ads every Sunday; kept my ears open, kept my eyes open. Just looked. I didn’t submit a resume or anything like that but I was always aware.” On cross-examination, she testified that she never contacted any employment agencies and never sent out any letters of inquiry to prospective employers in Omaha.

Kristy testified that she “put some feelers out” in the Denver area and obtained employment with Cort Furniture Rental, a corporate furniture-rental company. The trial testimony reveals that she accepted a position with Cort prior to the modification hearing. Her starting salary was $24,000 a year “plus commission.” She testified that Cort offers better career opportunities. She had also rented a two-bedroom condominium in a Denver suburb prior to the modification hearing. In a candid response during cross-examination, she responded yes to a question eliciting that she was “basically banking on being allowed [by the court] to move to Denver.”

Kristy testified that she had begun looking for a job in Denver because she has both family and friends in Denver, including her best friend, her boyfriend of 9 months, and three first cousins. Kristy testified that in comparison, she has few friends in Omaha, and that her family does not live in Omaha, although her parents live approximately 2lk hours away from Omaha. Kristy acknowledged that Casey does have family in Omaha, including his grandparents, one uncle, one aunt, and two cousins. Kristy further testified that she “always wanted to live [in Denver].” This was contradicted by Jeff’s testimony. He testified that he had job offers, prior to the parties’ estrangement, from businesses in Denver and Dallas; however, Kristy desired to stay in Omaha to “be close to her parents.” The parties did not move.

Kristy also testified that there are several parks in the area near the condominium as well as lots of outdoor activities, which Casey enjoys, including skiing, hiking, canoeing, and kayaking, and an amusement park.

[601]*601Jeff testified that he was opposed to Kristy’s application to remove Casey to Colorado because his visitation with his son would be inhibited. He testified that he had never missed any scheduled visitation and corroborated that he spent time with his son throughout the year equal to approximately one-half of all the days in the year. Jeff does not want his son to leave. He stated at the modification hearing, “I want to be a part of my son’s life. I want him to be a part of my family’s life. I hate to miss out on him starting little league, him starting school, being at the parent-teacher conferences; basically, seeing my son grow up.” Jeff’s past visitation history bears witness to this statement.

Jeff also testified that Kristy had told him that he had “no rights” and “no say” and that she “gave [him] all the rights [he] had regarding [his son].” Kristy had been asked about this earlier in cross-examination. She had responded, “I don’t recall. I — in what — I don’t believe I did. I don’t think I did.” A follow-up question was asked: “Could that be something that you would have said, you have no rights, you have what you’re going to get, something to that effect?” Her answer was “No, I don’t — please —.” A recess was then taken. A tape recording was produced that showed that in fact this disturbing remark was made by Kristy in a phone conversation with Jeff.

Jeff also offered the testimony of Gerry Phaneuf, the director of career services at Creighton University. Phaneuf testified that his experience in the career services field included employment at Creighton University, the University of Nebraska-Lincoln, and Texas Tech University in Lubbock, Texas. His responsibilities have included organizing workshops specifically for women searching for employment. His contacts are not limited to employers searching for persons with college educations.

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Related

Farnsworth v. Farnsworth
597 N.W.2d 592 (Nebraska Supreme Court, 1999)
Belitz v. Belitz
587 N.W.2d 709 (Nebraska Court of Appeals, 1999)
Farnsworth v. Farnsworth
576 N.W.2d 476 (Nebraska Court of Appeals, 1998)

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Bluebook (online)
576 N.W.2d 476, 6 Neb. Ct. App. 597, 1998 Neb. App. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farnsworth-v-farnsworth-nebctapp-1998.