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846 22 NEBRASKA APPELLATE REPORTS

Evan L. Bohnet, appellee, v. Katherine A. Bo

now known as Katherine A. Balerud, appell

___ N.W.2d ___

Filed April 14, 2015. No. A-14-492.

1. Child Custody: Visitation: Appeal and Error. Child custody determinations, 

and visitation determinations, are matters initially entrusted to the discretion of 

the trial judge, and although reviewed de novo on the record, the trial judge’s 

determination will normally be affirmed absent an abuse of discretion.

2. Judgments: Words and Phrases. A judicial abuse of discretion requires that the 

reasons or rulings of a trial judge be clearly untenable insofar as they unfairly 

deprive a litigant of a substantial right and a just result.

3. Modification of Decree: Appeal and Error. Modification of a dissolution 

decree is a matter entrusted to the discretion of the trial court, whose order is 

reviewed de novo on the record, and which will be affirmed absent an abuse 

of discretion.

4. Child Custody. Ordinarily, custody of a minor child will not be modified unless 

there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

5. Modification of Decree: Child Custody: Proof. The party seeking modification 

of a decree of dissolution bears the burden of showing a material change of circumstances affecting the best interests of a child.

6. Modification of Decree: Child Custody. Whether considering a modification of 

custody or a proposed removal from the state, the best interests of the children 

are the paramount considerations.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirm

Terrance A. Poppe and Andrew K. Joyce, Senior Certified 

Law Student, of Morrow, Poppe, Watermeier & Lonowski, 

P.C., L.L.O., for appellant.

Peter C. Wegman and Jesse S. Krause, of Rembolt Ludtke, 

L.L.P., for appellee.

Irwin, Riedmann, and Bishop, Jud

Bishop, Judge

The only issue raised in this modification of custody appeal 

is whether the analysis required when a parent seeks to relocate with a minor child from Nebraska to another state also 

applies to intrastate moves. Specifically, does Farnsworth v. 

Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), apply 
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BOHNET v. BOHNET 847

Cite as 22 Neb. App. 846

when a move within Nebraska creates a distance of 148 miles 

between parental households and therefore requires modification to an existing parenting plan. We conclude that while 

some of the longer distance moves within the state might 

benefit from a more thorough removal analysis as set forth 

in Farnsworth, we decline to require it until such time as the 

Legislature or our Supreme Court directs us to do so. Further, 

finding no abuse of discretion in the district court’s modification order, we affirm.

BACKGROUND

Katherine A. Bohnet, now known as Katherine A. Balerud 

(Katie), and Evan L. Bohnet are the parents of Madelynn Bohnet 

(Maddie), born in 2008. Katie became pregnant with Maddie 

at age 16 while a junior in high school in Columbus, Nebraska. 

After graduating from high school in 2009, Katie commenced 

her college education at the University of Nebraska-Lincoln. 

Evan had graduated from Columbus High School in 2008, and 

he also attended the University of Nebraska-Lincoln. Katie and 

Evan were married on July 24, 2010; Evan filed for divorce 

in June 2011. The parties both signed a property settlement 

agreement and parenting plan, and on September 15, the 

Lancaster County District Court entered an order dissolving 

their marriage. Legal custody of Maddie was awarded jointly 

to the parties, and physical custody was awarded to Evan subject to Katie’s reasonable parenting time. The parenting plan 

agreed upon at that time provided for a “9/5 parenting time” 

schedule, which gave Katie parenting time with Maddie every 

other Thursday afternoon to the following Monday morning, 

and during the “off” weeks, parenting time from Thursday 

afternoon until Friday morning. The parties also agreed to 

alternate weeks during the summer.

Upon Evan’s graduation in May 2013 with a degree in 

“[s]econdary math” (grades 7 through 12), he accepted a 

teaching position in South Sioux City, Nebraska, about 148 

miles away from Lincoln, Nebraska, where Katie still resided. 

On May 13, Katie filed a “Complaint for Modification of 

Decree and Praecipe,” wherein she alleged a material and substantial change of circumstances had occurred since the entry 
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848 22 NEBRASKA APPELLATE REPORTS

of the decree in that Evan had accepted a job in South Sioux 

City, that he was planning to move there, and that this would 

make it impossible for her to exercise her parenting time as 

set forth in the decree. Katie requested custody of Maddie, 

and she asked for orders pertaining to parenting time, child 

support, and attorney fees. Trial was held September 16, 17, 

and 20.

At trial, Evan testified that he looked for work in Lincoln 

but that nothing was available, so he gradually expanded his 

search radius and received the job offer from South Sioux City 

Community Schools. Evan claimed that he was offered the job 

in mid-April 2013 and that he talked with Katie about it the 

first week of May before signing a contract. At the time of 

trial, he was an “8th grade math teacher” earning $33,500 per 

year. Evan purchased a home in South Sioux City with help 

from his parents on the downpayment, and Maddie started kindergarten at Cardinal Elementary School (Cardinal) in South 

Sioux City, which school is located four to six blocks from 

Evan’s home. Katie testified that Maddie’s teacher at Cardinal 

is “wonderful” and that she did not have “any major concerns 

about the school in particular.”

Katie testified that she hoped to graduate in December 2013 

with a major in “special education mild/moderate secondary[, 

grades] 7 through 12.” At the time of trial in September 2013, 

she was working as a paraeducator with students “who have 

severe and profound disabilities” at a Lincoln high school. Her 

hours were 8 a.m. to 3 p.m., Monday through Friday, and she 

was earning $12.95 per hour. Her hope was to secure a teaching position at the same high school in the next school year 

following the completion of her degree. Katie also worked 

part time at a golf course in North Bend, Nebraska, managed by her father. Her regular hours there were Thursdays 

from 4:30 to 8:30 p.m. and then occasionally on weekends. 

Maddie would accompany her to Columbus where Katie’s 

mother would watch Maddie until Katie was done with work 

in North Bend.

Both parties and the witnesses who testified about their 

observations of Maddie all agreed in various complimentary 

words that Maddie is “[a]ctive, fun, funny, a ball of energy,” 
Decisions of the Nebraska Court of Appe

BOHNET v. BOHNET 849

Cite as 22 Neb. App. 846

“athletic,” “bright,” “easy to get along with,” “popular,” “outgoing,” and “you can’t help but love her” (Evan’s testimony); 

is an “excited, happy, five-and-a-half-year-old [who] loves to 

be a helper,” “loves to spend time outside,” and is “very well 

behaved” (Katie’s testimony); is “very happy” and loves Katie 

“[v]ery much” (testimony of a friend of Katie’s family since 

1990); “loves to spend time with [Katie,] depends on [Katie],” 

and is “healthy,” “happy,” and “well adjusted” (testimony of 

a friend of Katie’s family for 16 years); is “very happy” and 

has a “[v]ery loving, very positive” relationship with Katie 

(testimony of a relative of Katie’s by a former marriage who 

is a fourth grade teacher at Pyrtle Elementary School (Pyrtle) 

in Lincoln); is “happy, healthy and well adjusted most of the 

time” (testimony of Katie’s mother); and is “a happy, healthy, 

well-adjusted girl,” and that Maddie and Evan have a “very 

loving relationship,” and that “Maddie loves [Evan]” (testimony of Evan’s sister). The sum of the testimony reflects a 

happy, well-adjusted child with a healthy relationship with 

both parents.

A witness from the Nebraska Department of Education, 

Dean Folkers, was called by Katie to testify about data collected from Nebraska’s public schools and to engage in comparisons between Pyrtle in Lincoln (where Katie wished to 

enroll Maddie due to proximity to her home) and Cardinal 

in South Sioux City. In one example, Folkers explained that 

86.49 percent of the students who took the Nebraska State 

Accountability third grade mathematics test at Pyrtle met or 

exceeded the expectation as compared to 60.34 percent at 

Cardinal. The poverty percentage at Cardinal was 67.60 percent, and at Pyrtle it was 23.68 percent. Folkers explained that 

the poverty percentage is based upon a student’s eligibility for 

free or reduced lunch. Folkers also discussed “adequate yearly 

progress,” which he explained is a designation stemming from 

the “No Child Left Behind” requirements. As part of those 

requirements, schools must meet certain criteria to receive 

funds for extra support in reading and other learning areas. 

Schools must meet a benchmark established by the state, and 

Folkers testified that both schools met this benchmark, except 

that Cardinal’s special education students did not meet the 
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benchmark established for such students. Folkers stated that 

with regard to reading and mathematics improvement scores, 

Cardinal had improved in every category from 2010-11 to 

2011-12; whereas, Pyrtle had declined in 5 of the 10 categories 

in that same year.

A licensed psychologist employed by the university began 

counseling Katie in February 2011. She largely discussed 

Katie’s need to develop “her internal sense of who she is 

. . . raising her self-confidence . . . and her self-esteem.” The 

psychologist testified that Katie’s “trajectory has been upward 

and strong . . . [h]er self-reflection and growth . . . has been 

very solid and I feel good about her progress and maturity.” 

She did not have any concerns about Katie having custody 

of Maddie.

Dr. Lisa Blankenau, a licensed psychologist with a specialty in families, couples, and court evaluations for families, 

testified about the impact of moves on a parent’s relationship 

with a child. Dr. Blankenau met with Katie only twice in 

July 2013 and once in August; she never met either Evan or 

Maddie. She was not asked to render an expert opinion with 

respect to custody in the pending case; rather, Katie’s counsel elicited testimony about parenting schedules generally 

and the impact of decreased parenting time. Dr. Blankenau 

stated that she advocates for 10 days with one parent and 4 

days with the other parent (10/4 schedule) or 9 days with one 

parent and 5 days with the other parent (9/5 schedule). She 

explained that it takes an adjustment period of 2 days before 

“real parenting occurs.” Dr. Blankenau testified that if a parent had

four or five days in a row, you’d have the first couple 

days of just adjustment and then after that, you’d be able 

to do real parenting: getting them on a schedule, doing 

some caretaking activities, doing other things besides just 

entertainment and fun things. And so that would make 

the parenting bond with both parents stronger and a less 

disruption to a child’s life.

Dr. Blankenau testified that time with the child is important 

to develop a close bond and that if the distance “gets too far 

away,” then it is hard to find that needed time. She did not 
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BOHNET v. BOHNET 851

Cite as 22 Neb. App. 846

consider “Skype . . . an appropriate substitute for one-on-one 

parenting time,” in particular with children of Maddie’s age, 

because they do not have “the attention span to spend . . . much 

time on Skype.” Also, “[Skype is] not a physical presence,” 

and “[p]art of being a parent is being able to kiss and hug and 

love them and hold hands and just that physical touch that parents have . . . .” And based on studies, “without a strong bond 

with both parents, children . . . go one of two ways. They can 

be more aggressive and [act] out, or they can be more passive 

and develop more depressive like symptoms.” Further, “[c]hildren with a strong bond with both parents tend to be more successful in their life overall. They . . . do better in school . . . 

have more educational goals . . . are more stable . . . are less 

likely to break . . . important rules like the law[, and are] less 

likely to have mental health issues.” Dr. Blankenau stated that 

“[t]here is a definite difference between the two populations.” 

Dr. Blankenau also testified generally about “alienation of 

affections,” but did not address anything specific to the case at 

hand. On cross-examination, Dr. Blankenau was asked whether 

she had any other recommendations on how to make weekend 

parenting work besides Friday evening to Sunday evening, 

given that Evan lived in South Sioux City and Katie lived in 

Lincoln. Her response was, “Not with that distance. I don’t 

know how else it would work.”

Katie and Evan both testified about their relationship with 

Maddie, their activities, and why one location was better 

than the other. The evidence reveals two good parents, each 

with good intentions for themselves and for Maddie. Evan 

agreed in several instances that he could improve on his communication with Katie and expressed his intention to do so. 

And understandably, Katie was concerned about the reduced 

parenting time having a negative impact on her relationship 

with Maddie.

The district court entered its “Findings” on February 24, 

2014, concluding that “a material and substantial change 

in circumstances requiring the modification of the previous decree” existed and that legal custody shall be awarded 

jointly, with physical custody awarded to Evan. Parenting 

time for Katie was modified to every other weekend from 
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Friday at 6 p.m. until Sunday at 6 p.m. Katie was to pick 

Maddie up in South Sioux City at the commencement of her 

parenting time; Evan was to pick her up in Lincoln at the 

conclusion of that parenting time. Katie was ordered to pay 

child support of $145 per month; this reflected a downward 

deviation from the $189 per month child support calculation 

in consideration of transportation expenses necessary for 

Katie to exercise her parenting time. Health insurance and 

medical costs were also addressed. An “Order” was entered 

the same day, and following a motion for new trial filed 

February 25, an amended order was filed April 30, which 

changed the transportation requirement to the parties meeting 

at a mutually agreed-upon location in Blair, Nebraska, at the 

commencement of Katie’s parenting time, with Evan picking 

Maddie up from Katie’s home at the conclusion of that parenting time. Katie timely appealed.

ASSIGNMENT OF ERROR

Katie’s sole assignment of error is that the district court 

abused its discretion by awarding physical custody to Evan 

without applying the factors set forth in Farnsworth v. 

Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), to determine if the move was in Maddie’s best interests.

STANDARD OF REVIEW

[1,2] Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the 

trial judge, and although reviewed de novo on the record, the 

trial judge’s determination will normally be affirmed absent an 

abuse of discretion. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 

328 (2000). A judicial abuse of discretion requires that the 

reasons or rulings of a trial judge be clearly untenable insofar 

as they unfairly deprive a litigant of a substantial right and a 

just result. Id.

[3] Modification of a dissolution decree is a matter entrusted 

to the discretion of the trial court, whose order is reviewed 

de novo on the record, and which will be affirmed absent an 

abuse of discretion. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 

626 (2014).
Decisions of the Nebraska Court of Appe

BOHNET v. BOHNET 853

Cite as 22 Neb. App. 846

ANALYSIS

The parties’ September 15, 2011, divorce decree provided 

for joint legal custody, with physical custody of Maddie 

awarded to Evan. Katie’s parenting time was based on the 

9/5 schedule described earlier. Following the modification 

trial, the district court’s February 24, 2014, order found that a 

material and substantial change in circumstances existed that 

required modification of the original decree. Although the 

district court did not change the legal and physical custody 

as previously ordered, it did modify Katie’s parenting time 

from the 9/5 schedule to every other weekend from Friday 

at 6 p.m. until Sunday at 6 p.m. As a result, Katie’s parenting time went from five overnights to two overnights in each 

14-day period.

Referring to Farnsworth, supra, Katie argues that “Nebraska 

Courts have applied the Farnsworth removal factors in several 

cases where the distance moved by the removing parent was 

comparable or significantly less than [Evan’s] 148 mile move 

currently before this Court.” Brief for appellant at 17. Katie 

directs us to the following:

Keiser v. Hohenthaner, A-11-590, 2012 WL 1869269 

(Neb. Ct. App. May 22, 2012) ([r]emoval analysis applied 

to 5-10 mile move from Crofton[, Nebraska,] to Yankton, 

South Dakota); Curtis v. Curtis, 17 Neb. App. 230, 759 

N.W.2d 269 (2008) ([r]emoval applied to 17.6 mile move 

from Falls City[, Nebraska,] to Big Lake, Missouri); 

Ginter v. Ginter, A-07-752, 2008 WL 373165 (Neb. Ct. 

App. Feb. 12, 2008) ([r]emoval analysis applied to 142 

mile move from Nebraska to Iowa); and State ex rel. Bach 

v. Keiper, A-04-439, 2005 WL 41547 (Neb. Ct. App. Jan. 

11, 2005) ([r]emoval analysis applied to 280 mile move 

from Chadron[, Nebraska,] to Denver[, Colorado]).

Brief for appellant at 17.

Katie argues that the underlying concern should be “the 

impact that the relocation has on the child, not whether arbitrary state lines are crossed,” brief for appellant at 20-21, and 

that applying Farnsworth v. Farnsworth, 257 Neb. 242, 597 

N.W.2d 592 (1999), to a 17-mile move as in Curtis v. Curtis, 

17 Neb. App. 230, 759 N.W.2d 269 (2008), but not to a 
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220-mile move as in McLean v. McLean, No. A-08-879, 2009 

WL 1270492 (Neb. App. May 5, 2009) (selected for posting to court Web site) (move from Ponca, Nebraska, to rural 

Brewster, Nebraska), produces “arbitrary and illogical results,” 

brief for appellant at 21. We do not disagree that it may seem 

illogical to require the more extensive Farnsworth removal 

analysis in situations involving some of the short distances 

noted above simply because a state line has been crossed, 

but not require such an analysis when a greater intrastate 

distance is involved, such as in the present case. However, as 

Katie acknowledges, this court, in unpublished opinions, has 

declined to apply the Farnsworth removal analysis to significant moves within this state’s border. Katie cites to Houchin v. 

Houchin, No. A-11-483, 2012 WL 882450 (Neb. App. Mar. 13, 

2012) (selected for posting to court Web site), and McLean, 

supra. Katie nevertheless argues that the removal analysis in 

Farnsworth, supra, was “borrowed” from other states, such 

as New York, Massachusetts, and New Jersey, and that since 

“the Nebraska Supreme Court has not indicated whether its 

removal analysis should be applied to in-state moves, this 

Court should look to those states from which” Farnsworth was 

modeled. Brief for appellant at 18,19. As indicated previously, 

while some long-distance intrastate moves might benefit from 

a thorough Farnsworth analysis when considering custody and 

parenting time issues within the state, neither our Supreme 

Court nor the Legislature has made that the current state of 

the law, and therefore, we continue to decline to require the 

application of the Farnsworth analysis to intrastate moves and 

cannot say that the district court abused its discretion in failing 

to do so.

We would also note that in McLaughlin v. McLaughlin, 

264 Neb. 232, 248-49, 647 N.W.2d 577, 592 (2002), the dissent touched on this issue of intrastate moves being handled 

differently than interstate moves, stating, “It is also true that 

the distance between Omaha and Huron, South Dakota, is not 

so great that it would absolutely preclude regular visitation; 

as the majority correctly notes, this distance is no greater 

than some intrastate relocations which would not require 

court approval.”
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BOHNET v. BOHNET 855

Cite as 22 Neb. App. 846

[4-6] Until directed otherwise, the current law applicable 

to requests for modification of custody and/or parenting time 

that arise due to an intrastate move of a custodial parent would 

fall under the propositions of law generally found in custody 

modification cases, that being that ordinarily, custody of a 

minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such 

action. Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000). 

Further, the party seeking modification of a decree of dissolution bears the burden of showing a material change of circumstances affecting the best interests of a child. Id. Whether considering a modification of custody or a proposed removal from 

the state, the best interests of the children are the paramount 

considerations in our determination. Id.

When considering Maddie’s best interests, based upon the 

record before us as discussed in relevant part earlier, we cannot 

say that the district court abused its discretion in leaving custody as previously ordered and in modifying the parenting plan 

to accommodate the distance created by Evan’s new teaching 

job in South Sioux City. Certainly, the decreased weekly parenting time for Katie is unfortunate given what appears to be 

a very healthy mother-child relationship. We are also mindful 

of Dr. Blankenau’s compelling testimony regarding the impact 

of decreased parenting time on a parent’s relationship with a 

child. However, even Dr. Blankenau had to admit that given 

the distance between the residences, other than the Friday to 

Sunday night parenting schedule, “I don’t know how else it 

would work.” Accordingly, the district court did not abuse its 

discretion in modifying the parenting plan to accommodate the 

distance between the parties’ households.

CONCLUSION

The district court’s February 24, 2014, modification order, 

as amended April 30, is affirmed.

Affirme