Hogan v. Hogan ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/09/2021 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397Brooke B. Hogan, appellant, v.
Nicholas T. Hogan, appellee.
___ N.W.2d ___
Filed February 12, 2021. No. S-20-254.
1. Child Custody: Jurisdiction: Appeal and Error. The question whether
jurisdiction should be exercised under the Uniform Child Custody
Jurisdiction and Enforcement Act is entrusted to the discretion of the
trial court and is reviewed by an appellate court de novo on the record
for abuse of discretion.
2. ____: ____: ____. In considering whether jurisdiction exists under the
Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdic-
tional question that does not involve a factual dispute is determined by
an appellate court as a matter of law, which requires an appellate court
to reach a conclusion independent from the trial court.
3. Divorce: Judgments: Appeal and Error. The meaning of a divorce
decree presents a question of law, in connection with which an appellate
court reaches a conclusion independent of the determination reached by
the court below.
4. Child Custody: Jurisdiction. Jurisdiction over a child custody proceed-
ing with interstate implications, including one seeking to modify a child
custody decision, is governed exclusively by the Uniform Child Custody
Jurisdiction and Enforcement Act.
5. ____: ____. Under the Uniform Child Custody Jurisdiction and
Enforcement Act, Neb. Rev. Stat. § 43-1239 (Reissue 2016), a state’s
exclusive and continuing jurisdiction is relinquished when both parties
and the children no longer reside in the state.
6. Jurisdiction: Service of Process. A voluntary appearance of a party is
equivalent to service of process for purposes of personal jurisdiction.
7. 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.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 3978. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
9. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
10. ____: ____. A court action taken without subject matter jurisdiction
is void.
Appeal from the District Court for Douglas County: Gary
B. Randall, Judge. Affirmed.
Andrea L. McChesney, of McChesney Family Law Office,
for appellant.
Dennis G. Whelan, of Slowiaczek Albers, P.C., L.L.O.,
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Brooke B. Hogan, appellant, and Nicholas T. Hogan, appel-
lee, were divorced in February 2019, in Douglas County,
Nebraska. Several months after the decree and parenting plan
were entered, Brooke and Nicholas jointly sought permis-
sion to move from Nebraska to Arizona, and the district court
entered an order modifying the parties’ parenting plan accord-
ingly. The parties and the children moved to Arizona. Later
the same year, Brooke initiated the present matter when she
filed a complaint in the Douglas County District Court to
modify the decree and parenting plan, with the ultimate objec-
tive of allowing her to move, with the parties’ children, back
to Nebraska. Nicholas moved to dismiss Brooke’s complaint
to modify the decree, claiming that under Neb. Rev. Stat.
§ 43-1239(a)(2) (Reissue 2016), of Nebraska’s Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), the
district court lacked subject matter jurisdiction because the
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397parties and children no longer resided in Nebraska. The district
court determined that the parties and children did not reside in
Nebraska, that it lacked continuing exclusive jurisdiction over
the child custody determination, and that proper jurisdiction of
the current issue is with Arizona. The district court dismissed
Brooke’s complaint to modify. Brooke appeals. We conclude
that the district court’s jurisdictional ruling was proper and, in
so doing, make no comment on the merits of Brooke’s com-
plaint to modify. We affirm.
STATEMENT OF FACTS
On February 4, 2019, the district court entered a decree of
dissolution of marriage and a parenting plan, which awarded
the parties joint legal and physical custody of their minor chil-
dren, subject to parenting time set forth in the parenting plan.
In April 2019, the parties filed a joint complaint to modify
the decree and parenting plan to allow them to move with the
children from Nebraska to Arizona. The district court entered
the stipulated order. Each party subsequently purchased a home
in the Phoenix area, and they moved to Arizona. By the time
the children started the school year on August 15, Brooke,
Nicholas, and the children were residing in Arizona.
On October 22, 2019, Brooke filed a complaint to modify
in the Douglas County District Court, seeking a modification
of the parenting plan with the ultimate objective of gaining
permission to return with the children to Nebraska. In support
of her motion, Brooke stated that she and the children had
encountered problems transitioning to living in Arizona. She
asserted that she and the children have no friends or family
in Arizona and struggled to find safe housing and appropri-
ate schools.
On October 25, 2019, Nicholas entered a voluntary appear-
ance and, on October 30, filed a motion to dismiss the com-
plaint to modify on the basis that the Nebraska court lacked
subject matter jurisdiction under § 43-1239(a)(2). Section
43-1239 provides, in relevant part:
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397[A] court of this state which has made a child custody
determination consistent with section 43-1238 or 43-1240
has exclusive, continuing jurisdiction over the determina-
tion until . . . (2) a court of this state or a court of another
state determines that the child, the child’s parents, and
any person acting as a parent do not presently reside in
this state.
Brooke claimed that Nebraska retained continuing exclusive
jurisdiction because it continued to be the residence, place of
domicile, and home state of the children within 6 months before
the commencement of the complaint to modify. In support of
her claim, she asserted that during the 6 months prior to her
complaint, the parties continued to own homes in Nebraska,
they had driver’s licenses and registered vehicles in Nebraska,
they maintained voter’s rights in Nebraska, and the children
were seen by doctors and dentists in Nebraska. However, she
admitted that by August 2019, the parties resided in Arizona.
Nicholas noted that under § 43-1239(a)(2), because nei-
ther the parties nor the children resided in Nebraska when
Brooke filed her complaint to modify, jurisdiction was proper
in Arizona.
Following a hearing, the district court determined that
because the parties and the children resided in Arizona when
Brooke filed her complaint, Nebraska should relinquish exclu-
sive continuing jurisdiction over modifications to the child cus-
tody determination. The court specifically noted that Brooke
had stipulated to an order approximately 5 months before,
showing the parties’ intention to move to Arizona and remain
there with the minor children, which order was not appealed.
The district court noted that it had conferred with the Maricopa
County Superior Court of Arizona to review factors of the
UCCJEA and determined that jurisdiction was appropriate
in Arizona. On January 9, 2020, the district court granted
Nicholas’ motion to dismiss for lack of continuing exclusive
jurisdiction under § 43-1239(a)(2) and dismissed Brooke’s
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397complaint to modify. Brooke unsuccessfully filed a motion
to reconsider.
Brooke appeals.
ASSIGNMENTS OF ERROR
Brooke assigns, summarized and restated, that the district
court erred when it dismissed her complaint to modify the
decree. She specifically claimed that Nebraska had exclusive
continuing jurisdiction (1) under § 43-1239(a)(1) and, fur-
ther, (2) because Nicholas conferred jurisdiction on the dis-
trict court.
STANDARDS OF REVIEW
[1] The question whether jurisdiction should be exercised
under the UCCJEA is entrusted to the discretion of the trial
court and is reviewed by an appellate court de novo on the
record for abuse of discretion. In re Guardianship of S.T., 300
Neb. 72, 912 N.W.2d 262 (2018).
[2] In considering whether jurisdiction exists under the
UCCJEA, a jurisdictional question that does not involve a
factual dispute is determined by an appellate court as a matter
of law, which requires an appellate court to reach a conclu-
sion independent from the trial court. In re Guardianship of
S.T., supra.[3] The meaning of a divorce decree presents a question
of law, in connection with which an appellate court reaches
a conclusion independent of the determination reached by
the court below. Braun v. Braun, 306 Neb. 890, 947 N.W.2d
694 (2020).
ANALYSIS
Brooke contends that the district court retained continu-
ing exclusive jurisdiction to make child custody determina-
tions and that it erred when it granted Nicholas’ motion to
dismiss and dismissed her complaint to modify the parenting
plan. She specifically claimed that (1) due to connections
to Nebraska, § 43-1239(a)(1) vested the district court with
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397continuing exclusive jurisdiction, and (2) Nicholas conferred
jurisdiction on the district court by making a voluntary appear-
ance and by agreeing to application of Nebraska law. We reject
these arguments.
§ 43-1239 Analysis.
[4] Jurisdiction over a child custody proceeding with inter-
state implications, including one seeking to modify a child cus-
tody decision, is governed exclusively by the UCCJEA. See In
re Guardianship of S.T., supra. The purposes of the UCCJEA
are to avoid interstate jurisdictional competition and conflict in
child custody matters, to promote cooperation between courts
of other states so that a custody determination can be rendered
in a state best suited to decide the case in the interest of the
child, to discourage the use of the interstate system for continu-
ing custody controversies, to deter child abductions, to avoid
relitigation of custody issues, and to facilitate enforcement of
custody orders. Watson v. Watson, 272 Neb. 647, 724 N.W.2d
24 (2006).
A Nebraska court which made an initial custody determina-
tion applies § 43-1239 to determine whether it has continuing
exclusive jurisdiction to modify child custody. Section 43-1239
provides as follows:
(a) Except as otherwise provided in section 43-1241,
a court of this state which has made a child custody
determination consistent with section 43-1238 or 43-1240
has exclusive, continuing jurisdiction over the determina-
tion until:
(1) a court of this state determines that neither the
child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection
with this state and that substantial evidence is no longer
available in this state concerning the child’s care, protec-
tion, training, and personal relationships; or
(2) a court of this state or a court of another state deter-
mines that the child, the child’s parents, and any person
acting as a parent do not presently reside in this state.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397(b) A court of this state which has made a child custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that determina-
tion only if it has jurisdiction to make an initial determi-
nation under section 43-1238.
[5] Here, because neither the parties nor the children resided
in Nebraska at the time of Brooke’s filing, the district court
did not err when it found that under § 43-1239(a)(2), Nebraska
no longer possessed exclusive, continuing jurisdiction. This is
because when the children and the parents have moved away
from the issuing state, the issuing state no longer meets the juris-
dictional prerequisites of § 43-1239(a). Such was the case here.
Nebraska’s exclusive and continuing ­jurisdiction was relin-
quished because both parties and the children no longer reside
in the state. See, Watson v. Watson, supra; § 43-1239(a)(2). The
record was undisputed that Brooke, Nicholas, and the children
resided in Arizona by August 2019.
Brooke made several arguments that their move was so
recent that the parties retained a “significant connection”
to Nebraska and that, hence, Nebraska retained jurisdiction
under § 43-1239(a)(1). In contrast, relying on § 43-1239(a)(2),
Nicholas argued that because the parties and children had moved
to Arizona, the Nebraska court was no longer the exclusive
forum. We agree with Nicholas, as did the district court. The
statute is constructed such that jurisdiction may be relinquished
based on either § 43-1239(a)(1) or § 43-1239(a)(2). Even
assuming that Nebraska could maintain continuing jurisdiction
over the child custody determination under § 43-1239(a)(1),
the court did not err when it determined it had lost exclusiv-
ity under § 43-1239(a)(2). This assignment of error is with-
out merit.
Subject Matter Jurisdiction.
Brooke next contends that Nicholas conferred subject matter
jurisdiction on the district court by filing a voluntary appear-
ance and, in addition, that he acquiesced to proceedings in
Nebraska when he agreed to application of Nebraska law in
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
HOGAN v. HOGAN
Cite as 308 Neb. 397the parties’ modified stipulated decree and parenting plan. It
is axiomatic that parties cannot confer subject matter jurisdic-
tion upon a judicial tribunal by consent, and we find no merit
to this argument.
[6-10] A voluntary appearance of a party is equivalent to
service of process for purposes of personal jurisdiction. See
Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011).
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. J.S. v. Grand Island Public Schools,
297 Neb. 347, 899 N.W.2d 893 (2017). Parties cannot confer
subject matter jurisdiction upon a judicial tribunal by either
acquiescence or consent, nor may subject matter jurisdiction be
created by waiver, estoppel, consent, or conduct of the parties.
Id. Lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte. Id. A court action
taken without subject matter jurisdiction is void. Id.As we understand Brooke’s argument, she asks this court to
ignore the UCCJEA and instead conclude that Nicholas’ vol-
untary appearance created exclusive subject matter jurisdiction
in the district court for Douglas County. Based on the proposi-
tions outlined above, this argument fails.
Brooke also claims that Nebraska must retain continuing
exclusive jurisdiction because of a provision in the parties’
order of modification and attached parenting plan providing
that a move to another state would not “in any way alter exist-
ing Nebraska law.” This argument is also unpersuasive. By
applying Nebraska’s UCCJEA, the Nebraska court did in fact
employ “existing Nebraska law” as anticipated by previous
orders. See § 43-1239(a)(2). This argument has no merit.
CONCLUSION
For the reasons set forth above, Brooke’s assignments of
error are without merit, and accordingly, we affirm.
Affirmed.