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conviction for use of a weapon to commit a felony. We therefore reverse the conviction and, for reasons based on Double 

Jeopardy explained above, remand the cause with directions 

to vacate the conviction and dismiss the charge of use of a 

weapon to commit a felony. We further conclude that there was 

sufficient evidence to support the $7,500 amount of restitution 

ordered with respect to the felony criminal mischief conviction. We therefore affirm the $7,500 amount of restitution in 

the sentence for felony criminal mischief but we remand the 

cause for resentencing with respect to the manner of payment 

of restitution.

 Affirmed in part, and in part rev

and remanded with directio

Ember M. Schrag, appellant,

Andrew S. Spear, appel

___ N.W.2d ___

Filed February 13, 2015. No. S-13-258.

1. Child Custody: Appeal and Error. Child custody 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. Judgments: Words and Phrases. An abuse of discretion occurs when a trial 

court bases its decision upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.

3. ____: ____. A judicial abuse of discretion requires that the reasons or rulings of 

the trial court be clearly untenable insofar as they unfairly deprive a litigant of a 

substantial right and a just result.

4. Child Custody: Appeal and Error. In child custody cases, where the credible 

evidence is in conflict on a material issue of fact, the appellate court considers, 

and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

5. Child Custody. Before a custodial parent can remove a child from the state, permission of the court is required, whether or not there is a travel restriction placed 

on the custodial parent.

6. ____. 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 
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must also demonstrate that it is in the child’s best interests to continue living 

with him or her in the new location. The paramount consideration is whether the 

proposed move is in the best interests of the child.

7. ____. Ordinarily, custody of a minor child will not be modified 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.

8. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to 

decree differently.

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

of child custody bears the burden of showing a change in circumstances.

10. Modification of Decree: Child Custody: Evidence: Time. In determining 

whether the custody of a minor child should be changed, the evidence of the 

custodial parent’s behavior during the year or so before the hearing on the motion 

to modify is of more significance than the behavior prior to that time.

11. Modification of Decree: Child Custody. Removal of a child from the state, 

without more, does not amount to a change of circumstances warranting a change 

of custody. Nevertheless, when considered in conjunction with other evidence, 

such a move may well be a change of circumstances that would warrant a modification of the decree.

12. Modification of Decree: Child Custody: Proof. Before custody may be modified based upon a material change in circumstances, it must be shown that the 

modification is in the best interests of the child.

13. Child Custody. In addition to the “best interests” factors listed in Neb. Rev. Stat. 

§ 43-2923 (Cum. Supp. 2014), a court making a child custody determination 

may consider matters such as the moral fitness of the child’s parents, including 

the parents’ sexual conduct; respective environments offered by each parent; the 

emotional relationship between child and parents; the age, sex, and health of the 

child and parents; the effect on the child as the result of continuing or disrupting 

an existing relationship; the attitude and stability of each parent’s character; and 

the parental capacity to provide physical care and satisfy the educational needs of 

the child.

14. Child Custody: Appeal and Error. In contested custody cases, where material 

issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are 

often dispositive of whether the trial court’s determination is affirmed or reversed 

on appeal.

Petition for further review from the Court of Appeals, 

Irwin, Moore, and Bishop, Judges, on appeal thereto from 

District Court for Lancaster County, Steven D. Burns, Ju

Judgment of Court of Appeals reversed, and cause remanded 

with directions.
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Stephanie R. Hupp and Zachary L. Blackman, of McHenry, 

Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., 

for appellant.

Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellee.

Wright, Connolly, Stephan, McCormack, Mill

and Cassel, JJ

Stephan, 

The Nebraska Court of Appeals reversed an order of the 

district court for Lancaster County which denied Ember M. 

Schrag’s application to move her minor daughter to New 

York and modified a prior custody determination by awarding custody of the child to her father, Andrew S. Spear.1

 On 

further review, we conclude the district court did not abuse 

its discretion and therefore reverse the judgment of the Court 

of Appeals.

I. BACKGROUND

1. Fact

The underlying facts are set forth in greater detail in the 

published opinion of the Court of Appeals. We summarize 

them here.

Lillian Schrag was born in November 2007 and resided 

with Ember in Lincoln, Nebraska. Ember initiated a paternity 

action in the district court for Lancaster County in which she 

alleged that Andrew was Lillian’s biological father. Ember 

and Andrew were never married and never lived together after 

Lillian’s birth. In a decree entered January 21, 2009, the court 

determined Andrew was Lillian’s father. The court awarded 

custody of Lillian to Ember, subject to Andrew’s rights of 

visitation as set forth in a parenting plan. Andrew was ordered 

to pay child support for Lillian and one-half of the childcare 

expenses incurred by Ember. At the time of the decree and 

at all subsequent times, Andrew has resided near Kansas 

City, Missouri.

1 See Schrag v. Spear, 22 Neb. App. 139, 849 N.W.2d 551 (2014).
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Cindy Chesley is Ember’s mother and Lillian’s grandmother. She and her husband reside in North Platte, Nebraska. 

From late 2008 through 2010, Chesley and her husband cared 

for Lillian for extended periods of time while Ember worked 

as a touring folk singer. Chesley and Ember had a falling out 

in early 2011 when Chesley told Ember she would be unable 

to care for Lillian for another extended period due to other 

family obligations. Ember testified she had no ongoing relationship with Chesley and that they had been “estranged for 

two years.”

In early 2011, Ember moved with Lillian to Decorah, Iowa, 

where they resided with Ember’s boyfriend and his parents. 

Ember married this man in April 2011. She did not obtain 

approval of the court before relocating Lillian from Nebraska 

to Iowa. Andrew, believing the move was temporary, did not 

oppose it until Ember presented him with documents indicating the move was permanent. Andrew obtained emergency 

custody of Lillian for a brief time before she was returned 

to Ember’s custody. Andrew thereafter sought modification 

of custody, and Ember sought court approval to move Lillian 

to Iowa, which had already occurred. The parties eventually 

resolved this dispute by entering into a stipulation and parenting plan which were approved by the court in an order entered 

on February 22, 2012. This order left Lillian in Ember’s physical custody and granted Ember permission to move to Iowa 

with the child.

The parenting plan provided that the parties would have 

joint legal custody of Lillian and specified Andrew’s rights of 

visitation. The plan also provided that the parties would “reside 

in the states of Nebraska, Missouri (including the Kansas City 

metro), and Iowa unless otherwise agreed to by the parties.” 

Further, the parenting plan provided that Lillian was to have 

no unsupervised contact with Chesley. The final paragraph of 

the parenting plan provides: “The parties intend for Nebraska 

to maintain jurisdiction of this matter as the home state for 

the child.”

While Ember and Lillian resided in Iowa, Ember worked 

two part-time jobs, which she did not consider to be related to 

her music career. In June 2012, while Lillian was with Andrew 
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for her summer visitation, Ember separated from her husband. 

A September 6 decree dissolving the marriage was entered by 

an Iowa court.

On the same day that she separated from her husband, 

Ember traveled to the home of Robert Bannister in Brooklyn, 

New York. She had met Bannister in March 2011, and became 

romantically involved with him when she arrived at his home 

in June 2012. Bannister, who is approximately 24 years older 

than Ember, is employed in the software industry. He is separated but not divorced from his second wife.

Ember spent most of the summer of 2012 on the East Coast, 

primarily in New York and Philadelphia, Pennsylvania, where 

she had a housesitting job. She testified that while there, she 

was “looking for a living arrangement that would be in the best 

interest” and eventually decided to move to New York.

On approximately August 27, 2012, Andrew returned Lillian 

to Ember at their agreed-upon meeting place in Des Moines, 

Iowa. They exchanged pleasantries, but Ember made no mention of any change in her living arrangements. Ember then 

almost immediately took Lillian to New York and moved into 

Bannister’s apartment, where they have subsequently resided.

On August 30, 2012, after she had relocated to New York, 

Ember sent an e-mail message to Andrew informing him that 

she had separated from her husband and had spent the summer 

“working on the east coast and developing a new support system in Philadelphia and New York City.” She informed him for 

the first time of Lillian’s relocation, stating: “Although this is 

the first you’re hearing of it, this is not sudden, and it will be 

the best for Lillian.” Andrew responded, “I do not agree moving Lillian to New York is what’s best for her.” Ember did not 

seek or obtain approval of the district court prior to relocating 

Lillian to New York.

Ember and Lillian have continued to reside with Bannister 

in his two-bedroom apartment in Brooklyn. Other than occasional musical performances, Ember is not employed, and she 

takes care of Lillian when Lillian is not in school. When Ember 

is performing outside New York, Bannister cares for Lillian. 

Ember and Lillian are entirely dependent on Bannister for 

housing. Ember’s income was approximately $8,000 in 2012, 
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and her only regular income during 2013 was from Andrew’s 

monthly child support payments.

Andrew was married in 2010 and resides with his wife and 

children in Liberty, Missouri, near Kansas City. He is employed 

as a restaurant manager, and his wife is also employed outside 

the home. They have a good relationship with Lillian and 

believe she is comfortable in their home. Andrew has extended 

family in the Kansas City area and enjoys a good relationship 

with Chesley, whom he invites for a visit whenever Lillian is 

visiting his home.

2. Procedural Backgro

(a) District Court

Upon learning that Ember had relocated with Lillian to 

New York, Andrew filed a complaint in the district court for 

Lancaster County seeking an award of legal and physical custody of Lillian. Ember filed an answer and a counterclaim in 

which she sought permission of the court to move Lillian from 

Iowa to New York.

After a trial at which Ember, Andrew, Chesley, Bannister, 

and other witnesses testified, the district court entered an order 

denying Ember’s request to move Lillian to New York. The 

court examined Ember’s motives for the relocation, its potential for enhancement of Lillian’s quality of life, and its impact 

on Andrew’s parenting time.2 Based on this analysis, it concluded Ember had not carried her burden of establishing that 

the move to New York was in Lillian’s best interests. And it 

made a further finding that under the circumstances of the case, 

the move was not in Lillian’s best interests.

The court concluded Andrew had met his burden of proving 

a material change in circumstances which warranted modification of custody. The court awarded primary physical custody of 

Lillian to Andrew, subject to Ember’s reasonable rights of visitation. The court also calculated Ember’s child support obligation and vacated that portion of its prior order which placed 

restrictions on Chesley’s contact with Lillian.

2 See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
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(b) Court of Appeals

Ember perfected a timely appeal, asserting that the district 

court erred in modifying custody, denying her application to 

remove Lillian to New York, removing the restrictions on 

Chesley’s visitation with Lillian, and calculating her support 

obligation. A divided panel of the Court of Appeals affirmed 

in part, and in part reversed, and remanded with directions.3

The majority concluded that the district court abused its discretion when it denied Ember permission to move Lillian to 

New York and when it awarded physical custody of Lillian to 

Andrew. But the majority concluded that the district court did 

not err when it removed the restrictions on Chesley’s visitation 

with Lillian and calculated Ember’s child support obligation. 

The dissent concluded that the district court had not abused its 

discretion with respect to any of its rulings.

We granted Andrew’s petition for further review.

II. ASSIGNMENTS OF ERROR

Andrew assigns, restated, that the Court of Appeals erred 

in concluding that the district court abused its discretion in 

(1) denying Ember permission to relocate Lillian to New 

York and (2) modifying its orders to award physical custody of Lillian to Andrew. Neither party sought further 

review of the Court of Appeals’ decision with respect to 

visitation by Chesley or the calculation of Ember’s child support obligation.

III. STANDARD OF REVIEW

[1] Child custody 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.4

[2,3] An abuse of discretion occurs when a trial court bases 

its decision upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

3 Schrag, supra note 1.

4 Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013); Maska v. 

Maska, 274 Neb. 629, 742 N.W.2d 492 (2007).
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and evidence.5 A judicial abuse of discretion requires that the 

reasons or rulings of the trial court be clearly untenable insofar 

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

just result.6

[4] In child custody cases, where the credible evidence is in 

conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard 

and observed the witnesses and accepted one version of the 

facts rather than another.7

IV. ANALYSIS

1. Relocati

We have previously observed that parental relocation cases 

are “among the most complicated and troubling” cases that 

courts must resolve.8 This is so because of the competing and 

often legitimate interests of the parents in proposing or resisting the move, and because courts ultimately have the difficult 

task of weighing the bests interests of the child at issue “which 

may or may not be consistent with the personal interests of 

either or both parents.”9 In these cases, courts are required to 

balance the noncustodial parent’s desire to maintain their current involvement in the child’s life with the custodial parent’s 

chance to embark on a new or better life.10 It is for this reason 

that such determinations are matters initially entrusted to the 

discretion of the trial judge, and the trial judge’s determination 

is to be given deference.11

This case also has two other areas of potential complexity. First, the record shows that neither parent nor the child 

resided in Nebraska at the time the district court was asked 

to approve the relocation to New York. The parenting plan 

5 Watkins, supra note 4.

6 Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).

7 Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).

8 Farnsworth, supra note 2, 257 Neb. at 248, 597 N.W.2d at 597.

9 Id. at 249, 597 N.W.2d at 597.

10 Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).

11 Id.
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approved in the 2012 order specifically provided that “[t]he 

parties intend for Nebraska to maintain jurisdiction of this 

matter as the home state for the child.” We note there has 

been no determination by a court of this state or any other 

state that we lack jurisdiction.12 Second, the record shows that 

the child in question was born out of wedlock. In Coleman v. 

Kahler,

13 the Court of Appeals held that Nebraska’s removal 

jurisprudence does not apply to a child born out of wedlock 

where there has been no prior adjudication addressing child 

custody or parenting time. But in this case, there were two 

prior custody determinations—the initial paternity decree in 

2009 and the 2012 order which permitted Ember to relocate 

with Lillian to Iowa. Accordingly, we conclude that the district court had jurisdiction to decide Ember’s request to relocate Lillian from Iowa to New York. We conclude that legal 

principles governing requests by custodial parents to relocate 

children from Nebraska to another state are applicable in 

this action.

[5,6] Before a custodial parent can remove a child from the 

state, permission of the court is required, whether or not there 

is a travel restriction placed on the custodial parent.14 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.15

After clearing that threshold, the custodial parent must also 

demonstrate that it is in the child’s best interests to continue 

living with him or her in the new location.16 The paramount 

consideration is whether the proposed move is in the best 

interests of the child.17 We have discouraged trial courts from 

12 See Neb. Rev. Stat. § 43-1239 (Reissue 2008).

13 Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009).

14 State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), 

overruled on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 

780 (1999); Coleman, supra note 13.

15 See, Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d 79 (2014); 

Steffy, supra note 10.

16 See id.

17 Id.
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granting temporary permission to remove children to another 

jurisdiction prior to a ruling on permanent removal, because 

such temporary permission “complicates matters and makes 

more problematic the subsequent ruling on permanent removal 

and encumbers appellate evaluation of the ultimate decision 

on permanent removal.”18 In this case, Ember’s removal of 

Lillian from Iowa to New York without seeking any prior 

approval of the district court has created a similar problematic scenario.

As noted, the threshold issue with respect to removal is 

whether the custodial parent had a legitimate reason for the 

proposed relocation.19 Although the district court did not make 

a specific finding as to whether Ember had a legitimate “reason” to move to New York, it examined the legitimacy of 

her motives for relocating. As we noted in Farnsworth v. 

Farnsworth,

20 the legitimacy of the custodial parent’s motive 

for a proposed relocation is part of the “threshold question” of 

whether the parent has a legitimate reason for moving, and also 

plays a “further role in ascertaining a child’s best interests” if 

the threshold showing is made. Thus, we consider the district 

court’s findings with respect to the legitimacy of Ember’s 

motives as pertinent to whether she established a legitimate 

reason for the move.

The district court found no merit to Ember’s contention that 

the relocation was necessary in order to establish a new living 

arrangement and support system, because both of those factors 

were entirely dependent upon the continuation of her relationship with Bannister, a married man whom she had known for 

approximately 1 year and whom Lillian had never met prior 

to the relocation. The district court also made a specific finding that Ember “has not carried the burden of establishing that 

career enrichment was a legitimate motive for the move,” noting that there was “no evidence to support that moving to New 

York would or has advanced [her] music career or the income 

associated with her music career.”

18 Jack v. Clinton, 259 Neb. 198, 210, 609 N.W.2d 328, 337 (2000).

19 Daniels, supra note 15; Steffy, supra note 10.

20 Farnsworth, supra note 2, 257 Neb. at 250, 597 N.W.2d at 598.
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These findings are fully supported by the record. We cannot agree with the Court of Appeals’ conclusion that “Ember’s 

reasonable expectation of improvement in her music career” 

in New York was a legitimate reason for the move.21 It is 

true that absent some aggravating circumstance, such as an 

ulterior motive to frustrate the noncustodial parent’s visitation 

rights, significant career enrichment is a legitimate reason for 

relocation.22 For example, job-related changes are legitimate 

reasons for moving where there is a reasonable expectation of 

improvement in the career or occupation of the custodial parent 

and the custodial parent’s new job included increased potential 

for salary advancement.23 We have held that a firm offer of 

employment in another state with a flexible schedule in close 

proximity to the custodial parent’s extended family constitutes 

a legitimate reason for relocation.24 Likewise, we have held 

that a career enhancement for a custodial parent’s spouse is a 

legitimate reason for removal when the career change occurred 

after a marriage.25

But unlike the other cases in which we have applied these 

principles, Ember did not relocate in order to accept a firm 

offer of employment or any other definite income-generating 

activity, in the music industry or otherwise. She had only 

a vague notion that her music career would somehow be 

enhanced by living in New York. But she has been unemployed since the relocation, and her musical performances have 

not generated any appreciable income or demonstrable career 

enhancement. At the time of the relocation and since, she and 

Lillian have been almost entirely dependent for their housing 

upon Bannister, who has no legal obligation to shelter or otherwise support either of them.

21 Schrag, supra note 1, 22 Neb. App. at 163, 849 N.W.2d at 570.

22 Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000); 

Farnsworth, supra note 2.

23 Jack, supra note 18; Farnsworth, supra note 2.

24 See, Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000); Jack, supra

note 18.

25 See McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
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And we agree with the conclusion of the district court that 

Ember had an ulterior motive for the relocation. The record 

fully supports the district court’s determination that

one of Ember’s unstated motives was to avoid Andrew’s 

and this Court’s involvement in the decision to move . . 

. . This is not the first time Ember has moved Lillian from 

one state to another without seeking Lillian’s father’s 

input on the decision. It is not the first time Ember has 

moved without seeking court permission. It is not the 

first time she has move[d] surreptitiously. Ember cannot 

claim ignorance of the requirement of court approval. Nor 

can she claim ignorance of the importance of involving 

Andrew in such decisions.

The record reflects quite clearly that Ember moved to New 

York with no firm or even likely prospects for employment or 

career enhancement, that she did so with the intent of entering into a living arrangement which offered no assurance 

of stability or permanency for herself or her child, and that 

she orchestrated the move in a manner designed to impair 

Andrew’s parental rights and evade the jurisdiction of the district court. Based upon our de novo review, and the deference 

which we give to the factual determinations of the district 

court, we conclude that Ember did not have a legitimate reason for the relocation. Because she did not meet this threshold 

burden, we need not engage in a best interests analysis on 

this issue.

2. Modification of Cust

[7,8] The legal principles governing modification of child 

custody are well settled. Ordinarily, custody of a minor child 

will not be modified 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.26

A material change in circumstances means the occurrence of 

something which, had it been known to the dissolution court at 

26 Watkins, supra note 4; Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 

541 (2004); Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002).
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the time of the initial decree, would have persuaded the court 

to decree differently.27

(a) Material Change 

in Circumstances

Here, the district court found that Andrew had met his burden of establishing a material change in circumstances. The 

Court of Appeals acknowledged that “Ember’s decision to 

move to New York to live with Bannister after her divorce . . . 

might constitute a change in circumstances,” but it concluded 

that there was no evidence that the move had any adverse 

effect on Lillian.28

[9,10] The party seeking modification of child custody 

bears the burden of showing a change in circumstances.29 In 

determining whether the custody of a minor child should be 

changed, the evidence of the custodial parent’s behavior during 

the year or so before the hearing on the motion to modify is of 

more significance than the behavior prior to that time.30

[11] Removal of a child from the state, without more, does 

not amount to a change of circumstances warranting a change 

of custody.31 Nevertheless, when considered in conjunction 

with other evidence, such a move may well be a change of circumstances that would warrant a modification of the decree.32

Here, Ember moved Lillian from Iowa to New York without 

Andrew’s knowledge just months after she signed and asked 

a court to approve a parenting plan in which she agreed to 

notify Andrew of any plan to change her residence, and further 

agreed to reside in Nebraska, Iowa, or Missouri unless otherwise agreed to by Andrew. Further, Ember conducted the move 

without prior approval of the court just months after resolving 

a dispute involving her move from Nebraska to Iowa without 

court approval.

27 Tremain, supra note 26.

28 Schrag, supra note 1, 22 Neb. App. at 156, 849 N.W.2d at 566.

29 Tremain, supra note 26.

30 Heistand, supra note 26.

31 Brown, supra note 24.

32 Id.
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In State ex rel. Reitz v. Ringer,

33 we held that a trial court did 

not err in finding a material change in circumstances warranting modification of custody where a custodial parent removed 

a child from Nebraska without obtaining permission of the 

court which had adjudicated paternity and granted custody 

and visitation rights. We reasoned that such action denied the 

noncustodial parent his court-ordered visitation rights. Here, 

Ember’s intentional and unilateral conduct had the effect of 

negating provisions of the existing parenting plan regarding 

the parties’ place of residence, and thus affected the manner in 

which Andrew was able to exercise his visitation rights. As the 

district court correctly determined, the relocation to New York 

“has a substantial adverse impact on the relationship between 

Lillian and Andrew.”

We agree with the dissenting member of the Court of 

Appeals that such conduct on Ember’s part “clearly constitutes a material change in circumstances.”34 And we therefore 

conclude that the district court did not abuse its discretion in 

reaching the same conclusion.

(b) Best Interests

[12] Before custody may be modified based upon a material change in circumstances, it must be shown that the 

modification is in the best interests of the child.35 Neb. Rev. 

Stat. § 43-2923 (Cum. Supp. 2014), requires a court, in determining custody and parenting arrangements, to consider certain factors relevant to the best interests of the minor child, 

including:

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of 

an age of comprehension but regardless of chronological 

33 State ex rel. Reitz, supra note 14.

34 Schrag, supra note 1, 22 Neb. App. at 177, 849 N.W.2d at 578 (Moore, 

Judge, concurring in part, and in part dissenting).

35 See, Brown, supra note 24; Parker v. Parker, 234 Neb. 167, 449 N.W.2d 

553 (1989).
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age, when such desires and wishes are based on sound 

reasoning;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member. For purposes of this subdivision, 

abuse and family or household member shall have the 

meanings prescribed in section 42-903; and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

[13] In addition to these statutory “best interests” factors, a 

court making a child custody determination may consider matters such as the moral fitness of the child’s parents, including 

the parents’ sexual conduct; respective environments offered 

by each parent; the emotional relationship between child and 

parents; the age, sex, and health of the child and parents; the 

effect on the child as the result of continuing or disrupting an 

existing relationship; the attitude and stability of each parent’s 

character; and the parental capacity to provide physical care 

and satisfy the educational needs of the child.36

In concluding that the change of custody was in Lillian’s 

best interests, the district court reasoned that Ember’s conduct 

had brought about abrupt endings of very important relationships for Lillian and that such conduct “has made it abundantly 

clear that she does not care what Andrew thinks about raising 

Lillian.” The court determined that Ember’s abrupt and unilateral decision to move to New York with Lillian “demonstrates 

an inability to abide [by] agreements she makes with Andrew 

and does not bode well for any expectation by Andrew or this 

Court that continuing custody with Ember would have any 

likelihood of her involving Andrew in Lillian’s life in any 

meaningful way.” The court further found that “Andrew has 

impressed the Court with his willingness to involve Ember.” It 

found that the parenting plan submitted by Andrew was reasonable and in Lillian’s best interests.

36 See Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996).
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The Court of Appeals reasoned modification of custody was 

not shown to be in Lillian’s best interests, because the evidence 

showed that she was “‘calm and secure and happy’” in her 

new surroundings and Andrew had not presented “any specific 

evidence that the changes in Ember’s life have had a negative 

impact on Lillian.”37 It further reasoned that stability “should 

not be based solely upon a parent’s relocation” and that it 

would be “particularly unfair in this case to remove Lillian 

from Ember’s primary care when Ember has now found a way 

to be at home with Lillian more while still having opportunities 

to advance her music career.”38

We agree with the dissent that Ember’s evidence that Lillian 

is “‘flourishing’” in New York should be discounted, because 

such evidence was “only developed as a result of Ember’s 

unilateral decision to move Lillian there before obtaining 

either Andrew’s consent or prior court approval.”39 The dissent 

further reasoned that a showing of actual harm to a child as 

a result of a material change in circumstances is not required 

and that “by evaluating the relevant best interests factors and 

choosing to modify custody, a trial court can essentially find 

by implication that the change in circumstances has an adverse 

impact upon the child.”40 The dissent reasoned that Ember’s 

conduct with respect to her relocation to New York “speaks 

to [her] judgment, which, albeit indirectly, speaks to her 

suitability as a custodial parent.”41 As examples of Ember’s 

judgmental deficiencies detrimental to Lillian’s best interests, 

the dissent noted that she moved into Bannister’s home with 

Lillian only within 2 or 3 months after beginning a romantic 

relationship with him and without Lillian’s previously having met him. The dissent further noted that Ember is entirely 

37 Schrag, supra note 1, 22 Neb. App. at 158, 849 N.W.2d at 567.

38 Id. at 159, 849 N.W.2d at 567.

39 Id. at 178, 849 N.W.2d at 578-79 (Moore, Judge, concurring in part, and in 

part dissenting).

40 Id. at 179-80, 849 N.W.2d at 579.

41 Id. at 182, 849 N.W.2d at 581.
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dependent upon Bannister for housing and support and that 

she and Lillian would have no place to go if that relationship 

ended. The dissent viewed the evidence as tending to show 

that “Ember is making decisions, changes in relationships, 

and far-reaching moves that serve her desires and musical 

interests rather than a consideration of how these changes 

affect Lillian.”42

We agree with the dissent that a noncustodial parent need 

not show that actual harm has befallen a child in order to 

establish that a modification of custody due to a material 

change in circumstances would be in the child’s best interests. 

And we also agree that the record reflects significant flaws in 

Ember’s judgment which could adversely impact Lillian’s life 

and well-being. Ember precipitously decided to move Lillian 

to a city where Ember has no job or other apparent means of 

support and into the home of a man with whom she had only 

recently begun a romantic relationship and whom Lillian had 

not previously met. Ember admitted that she has no family in 

New York, and as noted by the dissent, she readily acknowledged that she would have “nowhere to live” if the relationship 

with Bannister ended.43 In contrast, the evidence reflects that 

Andrew can provide Lillian with a stable home and financial 

security with a nearby network of extended family. The district court rejected Ember’s criticism of Andrew’s parenting 

skills, finding such criticism to be “disingenuous” and without significance.

This case differs from Tremain v. Tremain,

44 in which we 

affirmed a trial court’s determination that a custodial father 

had not established grounds to remove his children to another 

state, but reversed the trial court’s modification of the decree 

to award permanent custody to the mother. The father had 

removed the children from Nebraska to Oregon, where he had 

obtained new employment, without first obtaining approval 

of the court. In response to a contempt order, the children 

42 Id. at 183, 849 N.W.2d at 582.

43 Id. at 183, 849 N.W.2d at 581.

44 Tremain, supra note 26.
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were returned to the temporary custody of their mother in 

Nebraska pending resolution of the removal issue, while the 

father remained in Oregon. There was no evidence beyond the 

move to Oregon to support a finding of a material change in 

circumstances. In reversing the modification order, we determined that because both parents were fit to have custody, 

the trial court should have ascertained whether the father 

would relocate back to Nebraska in order to retain custody of 

the children.

In this case, as in Tremain, both parents are fit to have custody. But when Ember was asked where she would live if the 

court granted custody of Lillian to Andrew, she replied: “Well, 

New York City is the place that I currently have a workable 

solution.” Although given an opportunity to do so, she gave 

no indication that she would relocate in order to retain custody. Further, this is not the first time Ember has uprooted 

Lillian without permission. Here, the relocation is not the 

only evidence that supports a finding of a material change in 

circumstances.

We conclude that the district court did not err in determining that there had been a material change in circumstances 

which warranted a modification of custody.

V. CONCLUSION

[14] In contested custody cases, where material issues of 

fact are in great dispute, the standard of review and the amount 

of deference granted to the trial judge, who heard and observed 

the witnesses testify, are often dispositive of whether the trial 

court’s determination is affirmed or reversed on appeal.45 The 

resolution of key issues in this case were dependent on the 

trial judge’s assessment of Ember’s credibility and her motives 

in moving Lillian to New York without prior approval of the 

court, and of Andrew’s motives and credibility in resisting the 

move and seeking modification of custody.

Based on our de novo review of the record, we agree with 

the dissenting member of the Court of Appeals that the trial 

45 Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
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court did not abuse its discretion in its resolution of these issues 

in favor of Andrew. We reverse the judgment of the Court of 

Appeals with respect to the issues of removal and modification of custody. Because further review was not requested, we 

do not disturb that portion of the Court of Appeals’ judgment 

pertaining to visitation by Chesley and Ember’s child support obligation. We remand the cause to the Court of Appeals 

with directions to affirm the judgment of the district court in 

all respects.

Reversed and remanded with directi

Heavican, C.J., participating on brief

Dwight E. Whitesides, appellee, 

Linda M. Whitesides, appel

___ N.W.2d ___

Filed February 13, 2015. No. S-13-493.

1. Pleadings: Judgments. A postjudgment motion must be reviewed based on the 

relief sought by the motion, not based on the title of the motion.

2. Motions to Vacate: Proof: Appeal and Error. An appellate court will reverse a 

decision on a motion to vacate or modify a judgment only if the litigant shows 

that the district court abused its discretion.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a 

tribunal to hear and determine a case in the general class or category to which 

the proceedings in question belong and to deal with the general subject matter involved.

5. Courts: Jurisdiction: Divorce. Pursuant to Neb. Rev. Stat. § 42-351 (Reissue 

2008), full and complete general jurisdiction over the entire marital relationship 

and all related matters is vested in the district court in which a petition for dissolution of marriage is properly filed.

6. Courts: Jurisdiction: Divorce: Property Settlement Agreements. A district 

court, in the exercise of its broad jurisdiction over marriage dissolutions, retains 

jurisdiction to enforce all terms of approved property settlement agreements.

7. Courts: Jurisdiction. A court that has jurisdiction to make a decision also has 

the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect.