Rosloniec v. Rosloniec

cases determined
in the
nebraska court of appeals
()
Sharon K. roSloniec , appellee , v.
richard c. roSloniec , appellant.
773 n.W.2d 74
filed september 5, 2009. 	no. a-08-986.
. 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: Appeal and Error. the grant of temporary permission to remove
children to another jurisdiction complicates matters, makes more problematic the
subsequent ruling on permanent removal, and encumbers appellate evaluation of
the ultimate decision on permanent removal.
4. Child Custody. trial courts are discouraged from granting temporary permis-
sion to remove children to another jurisdiction prior to a ruling on permanent
removal and instead are encouraged to promptly conduct a full hearing on perma-
nent removal.
5. ____. in order to prevail on a motion to remove a minor child to another jurisdic-
tion, 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.
6. Child Custody: Proof. 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 leav-
ing the state and to demonstrate that it is in the child’s best interests to continue
living with him or her.
7. 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.
8. ____. legitimate employment opportunities for a custodial parent may constitute
a legitimate reason for leaving the state.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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9. ____. legitimate employment opportunities may constitute a legitimate reason
for leaving the state when there is a reasonable expectation of improvement in the
career or occupation of the custodial parent.
0. ____. after clearing the threshold of demonstrating a legitimate reason for leav-
ing the state and removing a minor child to another state, a custodial parent must
demonstrate that it is in the child’s best interests to continue living with him
or her.
. Child Custody: Visitation. in determining whether removal to another jurisdic-
tion is in the child’s best interests, the trial court considers () 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.
2. Child Custody. ordinarily, a request for change of custody will not be granted
unless there has been a material change in circumstances showing that the custo-
dial parent is unfit or that the best interests of the child require such action.
appeal from the district court for douglas county: G erald
e. Moran, Judge. affirmed in part, and in part reversed.
christopher a. pfanstiel, of lewis & pfanstiel, p.c., l.l.o.,
for appellant.
John W. Wilke for appellee.
irwin, carlSon, and Moore, Judges.
carlSon, Judge.
introduction
richard c. rosloniec appeals from an order of the district
court for douglas county, which granted sharon k. rosloniec’s
motion for permission to remove the parties’ child from omaha,
nebraska, to nevada and denied richard’s motion for a change
of custody. because sharon has failed to show that she had a
legitimate reason to move, we reverse the district court’s ruling
granting removal. We affirm the ruling concerning richard’s
request for a change of custody.
backGround
the parties were married on september 28, 2002, and their
marriage was dissolved by a decree entered on october 26,
2005. sharon was awarded custody of the parties’ minor child,
hannah, born in June 2004, subject to richard’s reasonable
rights of visitation. on december 2, 2006, richard filed an
2 	8 nebraska appellate reports

application to modify custody. on march 20, 2007, sharon
filed a motion for permission to remove hannah from nebraska.
sharon wanted to move with hannah to las Vegas, nevada,
which is where her fiance, morgan livingston (morgan), lived.
at a hearing held on october 30, the court allowed sharon to
make an oral motion for permission to temporarily remove
hannah from nebraska.
on november 6, 2007, a hearing was held on sharon’s
motion to temporarily remove hannah from nebraska. both
parties presented affidavits. following the hearing, the trial
court granted sharon’s motion.
on June 2, 2008, a hearing was held on sharon’s motion
for permanent removal of hannah from nebraska and on
richard’s motion to modify custody. at the time of the hear-
ing, sharon and hannah had been living in las Vegas for 7
months. sharon was pregnant with morgan’s baby, and the
baby was due to be born in september. sharon testified that
she and morgan planned to get married before the baby was
born. she testified that she and morgan had been engaged
since June 2006.
sharon testified that she did not have a job in las Vegas
when the court granted her request for temporary removal of
hannah. sharon began working in las Vegas a month later.
sharon testified that she was teaching preschool in a child-
care center. she testified that she was earning $ an hour,
which was more money than she made in nebraska. sharon
did not indicate how much she had been earning at her job in
nebraska. however, her affidavit from the temporary removal
hearing indicated that she had been making $7.95 an hour as a
preschool teacher in nebraska.
sharon testified that she would like to complete her college
education through a program offered by the state of nevada
for individuals employed at a daycare or school system who
want to become teachers. she testified that through the pro-
gram, nevada would pay 80 percent of the cost of schooling,
the employer would pay 0 percent, and the individual would
pay 0 percent. she testified that she must be employed at her
current job for a year before she would be eligible to enroll in
the program.
rosloniec v. rosloniec 	3
cite as 8 neb. app. 

sharon testified that she and hannah were living with
morgan in “one of the most upscale areas in las Vegas.” no
further details were provided, and no evidence was adduced
in regard to where sharon and hannah had lived in nebraska.
sharon testified that the school hannah would attend in las
Vegas when she starts school “is about the best elementary
school you can find that’s not private” and that it is “higher
than the average of the omaha school systems.” sharon testi-
fied that she had no family in las Vegas.
sharon testified that when she filed the motion to remove
hannah from nebraska, her reason for wanting to move to
las Vegas was that was where morgan lived. she testified that
morgan lived in las Vegas when they started dating in 2005,
he later moved to california, and then he moved back to las
Vegas sometime in 2007.
the trial court entered an order on august 2, 2008, grant-
ing sharon’s motion to permanently remove hannah from
nebraska. the trial court denied richard’s application to mod-
ify custody. the trial court gave no explanation for its decision
in regard to either ruling.
assiGnments of error
richard assigns, restated, that the trial court erred in ()
granting sharon’s request for temporary removal of hannah
to nevada pending trial on sharon’s request for permanent
removal, (2) granting sharon’s motion to permanently remove
hannah from nebraska, and (3) denying richard’s motion to
modify custody.
standard of reVieW
[,2] child custody determinations, and visitation determi-
nations, 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, 5 neb. app. 77, 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
4 	8 nebraska appellate reports

litigant of a substantial right or a just result in matters submit-
ted for disposition through a judicial system. Id.
analYsis
Temporary Removal of Hannah From Nebraska.
richard first assigns that the trial court erred in grant-
ing sharon’s motion for temporary removal of hannah from
nebraska. We agree that the court should not have granted
sharon’s motion for temporary removal, but unfortunately, no
relief can be provided for this error.
[3,4] in Jack v. Clinton, 259 neb. 98, 609 n.W.2d 328
(2000), the nebraska supreme court specifically addressed
the unnecessary and unfortunate complications that arise when
a trial court grants a motion for temporary removal of a minor
pending resolution of an application for permanent removal.
the court noted that in addition to necessarily causing the
record to include facts pertaining to the periods prior to and
after relocation, an ultimate denial of the application for per-
manent removal will necessitate ordering the minor, who may
have already recently adjusted to one move, to move again
and return to the original jurisdiction. see id. the supreme
court held, “the grant of temporary permission to remove
children to another jurisdiction complicates matters and makes
more problematic the subsequent ruling on permanent removal
and encumbers appellate evaluation of the ultimate deci-
sion on permanent removal.” Id. at 20, 609 n.W.2d at 337.
as such, the supreme court specifically “discourage[d] trial
courts from granting temporary permission to remove children
to another jurisdiction prior to a ruling on permanent removal
and instead encourage[d] them to promptly conduct a full
hearing on permanent removal.” Id. at 20-, 609 n.W.2d
at 337.
Granting sharon’s request for temporary removal of hannah
from nebraska was directly contrary to the supreme court’s
discouragement on this very issue in Jack v. Clinton, supra.
nonetheless, because the order was a temporary order, no relief
can now be afforded to richard for this improper ruling by the
trial court.
rosloniec v. rosloniec 	5
cite as 8 neb. app. 

Permanent Removal of Hannah From Nebraska.
[5,6] richard next assigns that the trial court erred in grant-
ing sharon’s request to permanently remove hannah 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, 5 neb. app.
77, 737 n.W.2d 882 (2007). under nebraska law, the burden
has been placed on the custodial parent to satisfy this test. Id.
[7] the threshold question in removal cases is whether
the parent wishing to remove the child from the state has a
legitimate reason for leaving. see Farnsworth v. Farnsworth,
257 neb. 242, 597 n.W.2d 592 (999). richard argues that
sharon failed to demonstrate that she had a legitimate reason
for leaving nebraska. the trial court made no finding concern-
ing whether sharon had demonstrated a legitimate reason for
leaving nebraska, and sharon did not specifically assert in her
motion to permanently remove hannah from nebraska that
there existed a legitimate reason to leave nebraska. her motion
asserted that the request for removal “is to increase the family’s
standard of living.”
it is apparent from the record that sharon’s sole reason for
wanting to move to and continue living in las Vegas is that
was where her fiance, morgan, lived. she testified at trial
that her reason for filing the motion to permanently remove
hannah 	from 	nebraska 	to 	nevada 	was 	because 	morgan
lived there.
the present case is similar to Curtis v. Curtis, 7 neb. app.
230, 759 n.W.2d 269 (2008). in Curtis, a custodial mother had
been living in nebraska with her boyfriend in a house owned
by the boyfriend. the boyfriend decided to sell his house and
build a new one in a different state, causing the custodial
mother to file an application to remove the parties’ child from
nebraska so that she could continue living with her boyfriend.
the trial court granted the custodial mother’s request for
removal, and we reversed the trial court’s decision, holding that
a custodial parent’s desire to continue living with a boyfriend
6 	8 nebraska appellate reports

who was moving out of nebraska was not a legitimate reason
for leaving the state.
similarly, based on the specific facts of this case, we conclude
that sharon’s desire to move to nevada because her fiance lived
there is not a legitimate reason for leaving nebraska. although
sharon and morgan were engaged, they had been engaged
since June 2006, and at the hearing on permanent removal, they
had no definite plans to get married. sharon testified that they
planned to get married before their baby was due to be born,
but no date had been set and no arrangements had been made.
the hearing was in June 2008, and the baby was due to be born
in september. it is well established in nebraska case law that
remarriage is a commonly found legitimate reason for a move
in removal cases, but sharon’s desire to move from nebraska
is not based on remarriage. see Jack v. Clinton, 259 neb. 98,
609 n.W.2d 328 (2000).
as previously stated, sharon’s motion for permanent removal
of hannah from nebraska alleges that the request for removal
is based on her desire to increase the family’s standard of
living. however, the record fails to demonstrate how the tem-
porary removal had done so. there was no evidence of what
sharon and hannah’s “standard of living” was in nebraska
or how it was better in nevada. sharon did not have a job in
las Vegas when she filed the motion to remove hannah from
nebraska, so a job opportunity was not a basis for her request
to remove hannah. at the time of the hearing on permanent
removal, sharon had a job in las Vegas as a preschool teacher
at a daycare. she testified that she was earning $ an hour.
We know from sharon’s affidavit presented at the temporary
removal hearing that she earned $7.95 an hour at her job as
a preschool teacher in nebraska. thus, sharon was earning a
higher hourly rate of pay in las Vegas than she had earned in
nebraska. however, she was doing the same type of work that
she had done in nebraska and she failed to present evidence
that there were no childcare jobs available in nebraska that
would pay $ an hour. she also failed to present evidence of
the cost-of-living difference between omaha and las Vegas. in
addition, there is no evidence that her current las Vegas job
improved her career opportunities.
rosloniec v. rosloniec 	7
cite as 8 neb. app. 

sharon testified that her job at the daycare gives her the
opportunity to finish her college degree in teaching through a
program where the state of nevada would pay 80 percent of
her college expenses. sharon and hannah’s standard of living
could potentially increase if sharon obtains a college degree.
however, sharon was not eligible to enroll in the program until
she had been with her employer for  year, and she presented
no evidence if she would then be automatically admitted into
the program or if there were other qualifications that must be
met. further, she failed to show that there were not similar
programs or financial aid available in nebraska, such that she
could not afford to complete her degree in nebraska.
[8,9] legitimate employment opportunities for a custodial
parent may constitute a legitimate reason for leaving the state.
Wild v. Wild, 5 neb. app. 77, 737 n.W.2d 882 (2007).
such legitimate employment opportunities may constitute a
legitimate reason when there is a reasonable expectation of
improvement in the career or occupation of the custodial par-
ent. Id. sharon has not shown that her job in las Vegas was
a legitimate employment opportunity or that the move to las
Vegas had increased her and hannah’s standard of living. We
conclude that sharon has not demonstrated a legitimate reason
for removing hannah from nebraska.
[0,] because sharon has failed to satisfy the initial
threshold of showing a legitimate reason to move, our analy-
sis could end there. however, we further conclude that even
if sharon had proved a legitimate reason for removal, she has
failed to carry her burden to demonstrate that allowing removal
is in hannah’s best interests. after clearing the threshold of
demonstrating a legitimate reason for leaving the state and
removing a minor child to another state, a custodial parent
must demonstrate that it is in the child’s best interests to con-
tinue living with him or her. Wild v. Wild, supra. in determining
whether removal to another jurisdiction is in the child’s best
interests, the trial court considers () 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
8 	8 nebraska appellate reports

contact between the child and the noncustodial parent, when
viewed in the light of reasonable visitation. Id.
the trial court did not discuss any of the best interests fac-
tors in its order, nor did it make a specific finding in regard to
hannah’s best interests. based on our de novo review of the
record, we find that sharon failed to present evidence to show
that las Vegas provides benefits to hannah under the factors
considered in the best interests analysis.
in conclusion, we determine that sharon has failed to
adduce sufficient evidence to support her motion to perma-
nently remove hannah from nebraska. sharon failed to dem-
onstrate a legitimate reason for removal, and even if she had
met this initial threshold, she also failed to demonstrate that
it was in hannah’s best interests to continue living with her.
accordingly, the trial court abused its discretion in granting
sharon’s motion. We reverse the trial court’s order grant-
ing sharon’s motion for permission to permanently remove
hannah from nebraska.
Change in Custody.
[2] finally, richard assigns that the trial court erred in
denying his motion for a change in custody. ordinarily, a
request for change of custody will not be granted unless there
has been a material change in circumstances showing that
the custodial parent is unfit or that the best interests of the
child require such action. Wild v. Wild, 5 neb. app. 77, 737
n.W.2d 882 (2007). We conclude that richard has not proved
a material change in circumstances showing that sharon is
unfit or that the best interests of hannah require such action.
therefore, richard’s assignment of error is without merit.
conclusion
We find that the district court abused its discretion in grant-
ing sharon’s motion to permanently remove hannah from
nebraska, because sharon failed to meet her burden to dem-
onstrate a legitimate reason for such removal. accordingly, we
reverse the district court’s order granting sharon’s application
for permanent removal of hannah from nebraska. the district
rosloniec v. rosloniec 	9
cite as 8 neb. app. 

court’s ruling denying richard’s request for a change of cus-
tody is affirmed.
affirMed in part, and in part reverSed.
irwin, Judge, concurring.
While i concur with the ultimate result reached by the major-
ity, i write separately because i do not agree with the majori-
ty’s suggestion that there was no legitimate reason for removal
because sharon was only engaged, and not yet married, to her
fiance. i do not believe that there should be a bright-line test
where marriage is the primary determining factor in establish-
ing a legitimate reason for removal. the record presented in
this case supports a conclusion that there was a legitimate
reason for allowing permanent removal—if not prior to the
temporary removal order, then certainly after the temporary
removal and prior to the trial in this case. nebraska supreme
court precedent requires that when determining whether per-
manent removal is appropriate, trial courts shall consider evi-
dence of the parties’ circumstances both prior to the time of the
temporary removal and during the temporary removal period.
inasmuch as everyone agrees that sharon failed to demonstrate
that removal would be in hannah’s best interests, i believe the
case is more properly resolved on that basis.
1. leGitiMate reaSon for reMoval
the district court granted sharon’s motion for permission to
remove the parties’ minor child, hannah, from nebraska to las
Vegas, nevada. as a part of its decision, the court found that
sharon had a legitimate reason for the removal. in reversing the
district court’s order, the majority relies primarily on a conclu-
sion that this finding of the district court was erroneous. i dis-
agree with that basis for reversing the district court’s order.
at the time sharon filed her motion to remove hannah from
nebraska, her stated reason for wanting to move to las Vegas
was that is where her fiance, morgan, lived. after sharon filed
her motion, the district court granted her request to temporar-
ily move to las Vegas with hannah pending the hearing on the
permanent removal. sharon and hannah moved to las Vegas in
approximately november 2007. the hearing on her request for
permanent removal was held in June 2008.
0 	8 nebraska appellate reports

during the temporary removal period, sharon obtained a
job teaching preschool in a childcare center and became inter-
ested in an educational opportunity available to nevada resi-
dents. sharon would be able to complete her college educa-
tion through a program offered by the state of nevada for
individuals employed at a daycare or school system who want
to become teachers. nevada would pay 80 percent of the cost
of the schooling, her employer would pay 0 percent, and she
would pay 0 percent. sharon could enroll in the program after
working at her current place of employment for  year.
also during the temporary removal period, sharon became
pregnant with morgan’s child. sharon was due to give birth in
september 2008. she testified at the June 2008 hearing that she
and morgan planned to marry prior to the baby’s birth.
arguably, 	sharon’s 	initial 	reason 	for 	requesting 	the
removal—to be closer to her fiance—may not have constituted
a legitimate reason for removal. however, because the district
court granted sharon’s request for the temporary removal, the
evidence at the June 2008 hearing was necessarily composed
of facts pertaining to the period prior to the temporary reloca-
tion to las Vegas as well as the results of sharon and hannah’s
experience during their time in las Vegas. in Jack v. Clinton,
259 neb. 98, 609 n.W.2d 328 (2000), the nebraska supreme
court indicated that when a temporary removal is granted,
courts must consider both the evidence prior to the move and
after the move. there, the court stated: “as a result of the grant
of temporary removal, consideration of [the temporary removal
period] with respect to the legitimacy of the permanent move
and the best interests of the children was unavoidable.” Id. at
20, 609 n.W.2d at 336.
that said, we must consider sharon’s time in las Vegas
as part of our discussion of whether she proved a legitimate
reason for the relocation. at the time of the hearing, sharon
was gainfully employed as a preschool teacher at a daycare
center. there is some evidence that sharon’s job in las Vegas
paid her more than her previous job in nebraska. in addition,
there was evidence that sharon’s new job could provide her
with an opportunity to obtain her teaching degree. such an
rosloniec v. rosloniec 	
cite as 8 neb. app. 

educational opportunity would eventually improve sharon’s
earning capacity.
a reasonable expectation of improvement in the career or
occupation of the custodial parent is a legitimate reason to
relocate. Gartner v. Hume, 2 neb. app. 74, 686 n.W.2d 58
(2004). the nebraska supreme court has also recognized the
pursuit of educational opportunities as a legitimate reason to
move to another state. Id. see, also, Kalkowski v. Kalkowski,
258 neb. 035, 607 n.W.2d 57 (2000).
in addition to sharon’s employment and educational oppor-
tunities in las Vegas, the evidence revealed that at the time of
the hearing, sharon was pregnant with morgan’s child. sharon
testified that she and morgan were planning on marrying prior
to the baby’s birth in september 2008.
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, supra. neither should there be some kind of bright-line
test where being engaged to be married is automatically insuf-
ficient but actually having gone through a marriage ceremony
is sufficient. sharon will soon share a child with morgan, who
resides in las Vegas. certainly, this changes the nature of their
relationship, even if they are not yet married. it must also be
considered in our analysis. now, we must consider the interests
of both hannah and the new baby.
in light of all of the evidence about sharon and hannah’s life
in las Vegas during the temporary removal period, sharon has
met her burden of showing a legitimate reason for the removal.
sharon’s employment and educational opportunities, coupled
with the impending birth of her and morgan’s child, consti-
tute a legitimate reason for sharon and hannah to continue to
reside in las Vegas. as such, i disagree with that portion of the
majority opinion which relies on a conclusion that there was
no legitimate reason for removal as the basis for reversing the
district court’s order.
2. BeSt intereStS
although i disagree with that portion of the majority opin-
ion which concludes that sharon failed to demonstrate that
2 	8 nebraska appellate reports

she had a legitimate reason for the removal, i agree with the
portion of the majority opinion which concludes that sharon
failed to demonstrate that it was in hannah’s best interests to
continue to reside with her. as such, i agree with the major-
ity’s ultimate conclusion to reverse the district court’s ruling
granting sharon’s request to permanently reside in las Vegas
with hannah.
ron livinGSton, Jr ., appellant, v. pacific realty
coMMercial , l.l.c., doinG BuSineSS aS G ruBB
& elliS/pacific realty, et al ., appelleeS.
773 n.W.2d 69
filed september 5, 2009. 	no. a-08-058.
. Summary Judgment: Notice. a party is entitled to notice of a motion for sum-
mary judgment and an opportunity to be heard and to offer evidence in opposition
to the motion.
2. ____: ____. When an issue is not presented in a summary judgment motion, the
opposing party does not have notice to defend against the issue.
appeal 	from 	the 	district 	court 	for 	lancaster 	county:
Jodi 	nelSon, 	Judge. 	reversed 	and 	remanded 	for 	further
proceedings.
staci hartman-nelson for appellant.
randall l. Goyette and andrea d. snowden, of baylor,
evnen, curtiss, Grimit & Witt, l.l.p., for appellees.
irwin, SieverS, and caSSel, Judges.
irwin, Judge.
i. introduction
ron livingston, Jr., appeals from an order of the district
court granting the motion of mcGill restoration, inc., for sum-
mary judgment and dismissing livingston’s claims as to both
mcGill restoration and pacific realty commercial, l.l.c.
(pacific realty). on appeal, livingston argues that the district
court erred in granting summary judgment to pacific realty.
because pacific realty did not file a motion for summary
liVinGston v. pacific realtY commercial 	3
cite as 8 neb. app. 3