Curtis v. Curtis

Ryonee S. C uRtiS, appellee , v.
Ryan M. C uRtiS, appellant.
759 N.W.2d 269
Filed November 18, 2008. 	No. A-08-126.
1. 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.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrains
from acting, and the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through a judicial system.
3. 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.
4. Child Custody: Proof. Under Nebraska law, the burden to satisfy the test applied
when a custodial parent seeks to remove a child out of state has been placed on
the custodial parent to satisfy this test.
5. 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.
6. ____. Career advancement and remarriage are commonly found legitimate rea-
sons for a move in removal cases, but they do not compose the exclusive list of
legitimate reasons.
7. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Richardson County:
C uRtiS l. M aSChMan, County Judge. Affirmed in part, and in
part reversed.
Angelo M. Ligouri, of Ligouri Law Office, for appellant.
Michael R. Dunn, Richard L. Halbert, and Christopher C.
Halbert, of Halbert, Dunn & Halbert, L.L.C., for appellee.
iRwin, SieveRS, and CaRlSon, Judges.
CaRlSon, Judge.
INTRODUCTION
Ryan M. Curtis appeals from an order of the district court
for 	Richardson 	County, 	which 	granted 	Ryonee 	S. 	Curtis’
230 	17 NebRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

application to remove their child from Nebraska to Missouri.
because Ryonee has failed to show that she has a legitimate
reason to move, we reverse the district court’s order grant-
ing removal.
bACkGROUND
On December 20, 2006, the district court entered a decree
dissolving the parties’ marriage. The parties were granted joint
legal custody of their minor child, Jordyn Ashley Curtis, born
June 22, 2001, with Ryonee being granted primary physical
custody of Jordyn, subject to Ryan’s reasonable visitation
rights. At the time of the divorce, Ryonee and Jordyn were liv-
ing in the marital home in Falls City, Nebraska. The home was
awarded to Ryan in the decree. Consequently, in January 2007,
Ryonee and Jordyn moved in with Ryonee’s boyfriend, Scott
McCann (Scott). Scott owned the house, located in Falls City,
and lived there with his three children.
On October 4, 2007, Ryonee filed an application to remove
Jordyn from the State of Nebraska, alleging that her “pres-
ent partner” has sold the home where he and Ryonee and
Jordyn have been residing since the entry of the decree and
has purchased property at big Lake, Missouri, where he and
Ryonee intend to build a home and reside permanently. Ryan
filed a response and cross-complaint, in which he opposed
Ryonee’s application to remove and sought sole physical cus-
tody of Jordyn.
A hearing on Ryonee’s application to remove and Ryan’s
cross-complaint was held on December 14, 2007, before a
county court judge acting as a district court judge. Ryonee
testified that big Lake is 17.6 miles from Falls City. She testi-
fied that Scott owns property at big Lake and that he plans
to build a house on that property. She testified that she wants
the court to allow her to relocate with Jordyn to big Lake so
they can continue to live with Scott and his children. She tes-
tified that Scott’s current house has three bedrooms and one
bathroom and that the house he plans to build will have three
bedrooms and two bathrooms. Ryonee admitted that she will
have no legal interest in Scott’s new house. She stated that
CURTIS v. CURTIS 	231
Cite as 17 Neb. App. 230

Scott’s present house was in the process of being sold and that
the sale closing was to take place soon after the hearing. She
testified that she and Scott have made arrangements to rent a
home in Missouri for $400 per month until the new house is
built. Ryonee testified that if she is allowed to move, she will
continue in her same employment, Jordyn will continue to go
to the same school, and Ryan’s visitation schedule will not
change. Ryonee also indicated that she would provide trans-
portation for Ryan’s visitation so Ryan would not have to drive
to Missouri.
Ryonee testified that Ryan was awarded the marital home in
the divorce and was ordered to hold her harmless against the
mortgage on the home. She testified that the home has since
been foreclosed and that as a result, she has been unable to
obtain credit. Ryonee testified that given her current financial
situation, she believed it would be difficult for her to obtain
housing in Falls City similar to the house Scott is going to
build. She estimated that she could only afford $200 for rent.
Ryonee testified that she works full time at a grocery store, but
there was no evidence of Ryonee’s income. Ryonee testified
that she receives $1,500 a year from Ryan, presumably as part
of the division of the marital estate. She also testified that Ryan
pays $460 per month in child support and pays 60 percent of
daycare expenses for Jordyn.
Ryan testified that he rents a house in Falls City for $200
per month. Ryan testified that his family, as well as Ryonee’s
family, lives in Falls City and that Jordyn has always lived in
Falls City. He testified that Jordyn has been involved in sports
in Falls City and that she has developed a group of friends
by playing sports, as well as having a group of friends in
school. Ryan testified that he does not want Jordyn to move to
Missouri because all her family and friends are in Falls City,
as well as her school, and because Falls City is where she was
born and has always lived.
Following the hearing, the trial court entered an order grant-
ing Ryonee’s application to remove Jordyn from the State of
Nebraska to Missouri and denied Ryan’s cross-complaint for
change of physical custody to him.
232 	17 NebRASkA AppeLLATe RepORTS

ASSIGNMeNTS OF eRROR
Ryan assigns that the trial court erred in (1) determining
that Ryonee’s desire to continue to live with her boyfriend
was a legitimate reason to remove Jordyn from Nebraska, (2)
applying the best interests factors for removal to determine
if there was a legitimate reason for removing Jordyn from
Nebraska, (3) determining that the factors weighing against
removing Jordyn from Nebraska were not applicable in the
court’s best interests analysis, (4) granting Ryonee’s request
to remove Jordyn from Nebraska without making a determi-
nation that it was in the best interests of the minor child to
continue living with Ryonee, and (5) entering a decision and
order contrary to the evidence and the law, constituting an
abuse of discretion.
STANDARD OF ReVIeW
[1,2] Child custody determinations, and visitation deter-
minations, 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. Wild v. Wild, 15 Neb. App.
717, 737 N.W.2d 882 (2007). A judicial abuse of discretion
exists when a judge, within the effective limits of authorized
judicial power, elects to act or refrains from acting, and the
selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through a judicial
system. Id.
ANALYSIS
[3,4] Ryan first assigns that the trial court erred in deter-
mining that Ryonee’s desire to continue to live with her
boyfriend was a legitimate reason to remove Jordyn from
Nebraska. 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 leav-
ing 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. Wild v. Wild, supra. Under
CURTIS v. CURTIS 	233
Cite as 17 Neb. App. 230

Nebraska law, the burden has been placed on the custodial par-
ent to satisfy this test. Id.
[5] The threshold question in removal cases is whether the
parent wishing to remove the child from the state has a legiti-
mate reason for leaving. See Farnsworth v. Farnsworth, 257
Neb. 242, 597 N.W.2d 592 (1999). Ryonee’s sole reason for
moving is to allow her to continue living with her current boy-
friend, Scott. The trial court found that this was a legitimate
reason for removal, and in doing so, it focused on the fact that
the move to Missouri is less than 20 miles from Falls City. The
short distance does present a unique removal case in that most
removal cases involve the custodial parent asking to move hun-
dreds or thousands of miles away from his or her current loca-
tion. However, no matter the distance involved, we still must
apply the well-established case law and determine if Ryonee
met her burden to demonstrate a legitimate reason for removing
Jordyn from Nebraska.
[6] Under the circumstances revealed by the evidence in
this case, we conclude that Ryonee’s desire to continue liv-
ing with her current boyfriend is not a legitimate reason
to remove Jordyn from Nebraska. Career advancement and
remarriage are commonly found legitimate reasons for a move
in removal cases, but they do not compose the exclusive list
of legitimate reasons. See Jack v. Clinton, 259 Neb. 198, 609
N.W.2d 328 (2000). Clearly, Ryonee’s desire to move from
Nebraska is not based on an employment opportunity for her
or Scott and is not based on remarriage. Ryonee’s sole reason
for wanting to move is her desire to continue living with Scott
as she has been doing since moving out of the marital home.
because Scott is selling his house in Falls City where Ryonee
and Jordyn have been living, Ryonee and Jordan have to find
someplace else to live. However, Ryonee has not demonstrated
a legitimate reason as to why their new home has to be with
Scott in Missouri.
Ryonee testified that given her financial situation, it would
be difficult for her to obtain housing in Falls City similar to
the house Scott is going to build in Missouri. While it could
be true that Scott’s new house might provide newer or more
spacious housing for Ryonee and Jordyn than Ryonee would
234 	17 NebRASkA AppeLLATe RepORTS

be able to afford on her own, there is no evidence that Ryonee
cannot find or cannot afford suitable housing in Falls City.
Ryonee testified that she could only afford $200 a month in
rent. There is no evidence in the record regarding her income
or her expenses. We do know, however, that she receives
$1,500 a year from Ryan, as well as $460 per month in child
support. We also know that Ryan is renting a house in Falls
City for $200 per month. She does not allege that she is unable
to find suitable housing for $200 per month in Falls City or
that she even looked into whether housing for $200 per month
was available, and if so, whether such housing was suitable for
her and Jordyn. Thus, she has not shown that she cannot afford
housing on her own or that living with Scott in Missouri is her
only available housing option.
[7] because Ryonee has failed to satisfy the initial threshold
of showing a legitimate reason to move, it is not necessary
for this court to determine if it is in Jordyn’s best interests to
move to Missouri with Ryonee, nor is it necessary to address
Ryan’s remaining assignments of error. An appellate court is
not obligated to engage in an analysis which is not necessary
to adjudicate the case and controversy before it. Templeton v.
Templeton, 9 Neb. App. 937, 622 N.W.2d 424 (2001).
CONCLUSION
We find that the district court abused its discretion in grant-
ing Ryonee’s request to remove Jordyn from Nebraska because
Ryonee failed to meet her burden of proof to demonstrate that
her reason for leaving Nebraska constituted a legitimate reason
for removal. Accordingly, we reverse the district court’s order
granting Ryonee’s application for removal. The district court’s
ruling with respect to Ryan’s request for a change of custody
is affirmed.
affiRMed in paRt, and in paRt ReveRSed.
CURTIS v. CURTIS 	235
Cite as 17 Neb. App. 230