Hollomon v. Taylor , 303 Neb. 121 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/05/2019 01:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
HOLLOMON v. TAYLOR
Cite as 303 Neb. 121
Jami Hollomon, appellant, v.
A lex Taylor, appellee.
___ N.W.2d ___
Filed May 10, 2019. No. S-18-959.
1. Child Custody: States: Judgments. Whether a child custody determi-
nation issued by a court of another state may be registered in Nebraska
presents a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
3. Child Custody: Jurisdiction: Judgments. When the registration pro-
cedure of Neb. Rev. Stat. § 43-1252 (Reissue 2016) has been followed
and the registration is either not contested or, after a hearing none of the
grounds under § 43-1252(d) have been established, the registering court
shall confirm the registered order.
4. Child Custody: Jurisdiction. Proceedings to register a child custody
determination from a foreign jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act, with or without a simulta-
neous request for enforcement, are generally ministerial, and concerns
about whether the registering court may properly exercise jurisdiction
over a subsequent child custody proceeding are not yet implicated.
Appeal from the District Court for Seward County: James C.
Stecker, Judge. Reversed and remanded with directions.
Nicholas R. Glasz for appellant.
Michael S. Kennedy, of Kennedy Law Firm, P.C., L.L.O.,
for appellee.
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HOLLOMON v. TAYLOR
Cite as 303 Neb. 121
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Jami Hollomon and Alex Taylor are the unmarried par-
ents of a minor child. After the State of Texas entered an
order adjudicating parentage and establishing a parenting plan,
Hollomon attempted to register the Texas order in Nebraska.
The district court for Seward County denied the request
after concluding it “should decline jurisdiction” under the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA).1 Hollomon appeals, and we reverse the order and
remand the cause with directions to register and confirm the
Texas order.
FACTS
Hollomon and Taylor had a child together in 2016. On
June 11, 2018, the district court for Van Zandt County,
Texas, entered an “Order Adjudicating Parentage” in case
No. FM16-00080. In addition to establishing paternity of the
minor child, the order approved the parties’ mediated parent-
ing plan and addressed issues of custody, support, and parent-
ing time.
The Texas order identified a “Seward, NE” address for
Hollomon and identified a Texas address for Taylor. The order
gave Holloman the “exclusive right to designate the primary
residence of [the child] without regard to geographic location
of [Taylor].” Taylor was ordered to maintain health insurance
for the child and to pay monthly child support. The order
also set out a “Possession Order” which designated the par-
ties’ parenting time. As relevant to the issues on appeal, the
order established two different possession schedules for the
1
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp.
2018).
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HOLLOMON v. TAYLOR
Cite as 303 Neb. 121
child: one schedule for “Parents Who Reside 100 Miles or
Less Apart,” and another for “Parents Who Reside More Than
100 Miles Apart.” Under the provisions applicable to parents
residing more than 100 miles apart, Hollomon was given “a
superior right of possession” of the child. It does not appear
that any provision of the Texas order expressly required either
Hollomon or Taylor to reside in Texas.
On August 15, 2018, about 2 months after the Texas order
was issued, Hollomon sought to register the order in the
district court for Seward County pursuant to § 43-1252. She
filed a certified copy of the Texas order, accompanied by her
affidavit requesting registration of the order in Nebraska. She
did not simultaneously request to enforce or modify the Texas
order. Hollomon’s affidavit averred, among other things, that
(1) she had been awarded custody of the minor child by the
Texas order; (2) to the best of her knowledge and belief, the
Texas order had not been modified; (3) she moved to Seward
in November 2017 and intended to make Nebraska her per-
manent home; and (4) she was currently living with the child
at an “undisclosed residence in Seward County, Nebraska.”
Although the affidavit did not explain why, Hollomon averred
that the health, safety, or liberty of Hollomon or the child
would be jeopardized by disclosure of her identifying infor-
mation, and she asked that the information be sealed pursuant
to § 43-1246(e).
The next day, pursuant to § 43-1252(c), the clerk of the
district court for Seward County sent notice to both Taylor
and the Texas court that a “child custody determination issued
by the court of Van Zandt County, Texas” in “Cause Number
FM: 16-00080” had been filed in the district court for Seward
County on August 15. The notice further stated:
(a) a registered determination is enforceable as of the
date of the registration in the same manner as a determi-
nation issued by a court of this state;
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HOLLOMON v. TAYLOR
Cite as 303 Neb. 121
(b) a hearing to contest the validity of the registered
determination shall be requested within twenty days after
service of notice; and
(c) failure to contest the registration will result in con-
firmation of the child custody determination and preclude
further contest of that determination with respect to any
matter that could have been asserted.
The notice was personally served on Taylor August 23,
2018. Thereafter, Taylor entered a voluntary appearance and
requested a hearing on registration of the Texas order. His
motion stated he was resisting registration, because the Texas
order “fails to comply with the registration requirements of
Nebraska” and because “Texas still has jurisdiction.”
After conducting an evidentiary hearing, the district court
made the following journal entry on October 1, 2018, which
was signed and file stamped:
The matter comes on for hearing to Register Foreign
Judgment. Nicholas Glasz, attorney, appears with
[Hollomon]. Mike Kennedy, attorney, appears with
[Taylor]. Statements of counsel are made. Evidence is
adduced. The court finds that pursuant to §43-1245, this
court should decline jurisdiction due to the conduct of
the mother, . . . Hollomon. The mother removed the child
from the geographic limits of the Texas order without
permission. The mother is currently subject to a contempt
order in Texas which is currently being monitored by the
Texas court that issued the order seeking to be registered.
The Texas court has continuing jurisdiction over the mat-
ter. The request for registration is denied.
Hollomon timely appealed, and we moved the case to our
docket on our own motion.
ASSIGNMENT OF ERROR
Hollomon assigns, restated and consolidated, that the dis-
trict court erred in denying registration of a foreign child
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HOLLOMON v. TAYLOR
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custody determination based on an unrelated foreign con-
tempt order and an erroneous finding that Hollomon removed
the minor child from the geographic limits of Texas with-
out permission.
STANDARD OF REVIEW
[1,2] Whether a child custody determination issued by a
court of another state may be registered in Nebraska presents
a question of law.2 On a question of law, an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below.3
ANALYSIS
Both parties’ briefing, and the order of the district court
denying registration, generally frame the issue as whether
Nebraska has jurisdiction over a “child custody proceeding”
involving the parties’ child under the UCCJEA. But on this
record, the only question presented is whether the Texas order
may be registered in Nebraska.
The statute governing registration of child custody determi-
nations from another state is § 43-1252, which provides:
(a) A child custody determination issued by a court of
another state may be registered in this state, with or with-
out a simultaneous request for enforcement, by sending to
the district court in this state:
(1) a letter or other document requesting registration;
(2) two copies, including one certified copy, of the
determination sought to be registered, and a statement
under penalty of perjury that to the best of the knowledge
and belief of the person seeking registration the order has
not been modified; and
2
See In re Sophia G.L., 229 Ill. 2d 143, 890 N.E.2d 470, 321 Ill. Dec. 748
(2008).
3
Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015).
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(3) except as otherwise provided in section 43-1246,
the name and address of the person seeking registration
and any parent or person acting as a parent who has been
awarded custody or visitation in the child custody deter-
mination sought to be registered.
(b) On receipt of the documents required by subsection
(a) of this section, the registering court shall:
(1) cause the determination to be filed as a foreign
judgment, together with one copy of any accompanying
documents and information, regardless of their form;
and
(2) serve notice upon the persons named pursuant to
subdivision (a)(3) of this section and provide them with
an opportunity to contest the registration in accordance
with this section.
(c) The notice required by subdivision (b)(2) of this
section shall state that:
(1) a registered determination is enforceable as of the
date of the registration in the same manner as a determi-
nation issued by a court of this state;
(2) a hearing to contest the validity of the registered
determination shall be requested within twenty days after
service of notice; and
(3) failure to contest the registration will result in con-
firmation of the child custody determination and preclude
further contest of that determination with respect to any
matter that could have been asserted.
(d) A person seeking to contest the validity of a reg-
istered order shall request a hearing within twenty days
after service of the notice. At that hearing, the court shall
confirm the registered order unless the person contesting
registration establishes that:
(1) the issuing court did not have jurisdiction under
sections 43-1238 to 43-1247;
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(2) the child custody determination sought to be reg-
istered has been vacated, stayed, or modified by a court
having jurisdiction to do so under such sections; or
(3) the person contesting registration was entitled to
notice, but notice was not given in accordance with the
standards of section 43-1233, in the proceedings before
the court that issued the order for which registration is
sought.
(e) If a timely request for a hearing to contest the
validity of the registration is not made, the registration is
confirmed as a matter of law and the person requesting
registration and all persons served shall be notified of
the confirmation.
(f) Confirmation of a registered order, whether by
operation of law or after notice and hearing, precludes
further contest of the order with respect to any matter that
could have been asserted at the time of registration.
[3] Taylor does not contend that Hollomon failed to comply
with the procedural requirements of the registration statute, nor
has he contested the registration on any of the grounds set out
in § 43-1252(d). When the registration procedure of § 43-1252
has been followed and the registration is either not contested
or, after a hearing none of the grounds under § 43-1252(d)
have been established, the registering court shall confirm the
registered order.4 Thus, because Taylor requested a hearing but
did not establish any of the grounds that would preclude confir-
mation of the registered order under § 43-1252(d), the district
court for Seward County was required, as a matter of law, to
confirm the registered order.
[4] To the extent the parties and the district court went
beyond the ministerial issue of registration and analyzed
whether the district court for Seward County has jurisdiction
4
§ 43-1252.
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HOLLOMON v. TAYLOR
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to make or modify a child custody determination under
§§ 43-1238 to 43-1245, their analysis was premature.
Proceedings to register a child custody determination from
a foreign jurisdiction under the UCCJEA, with or without a
simultaneous request for enforcement, are generally ministe-
rial, and concerns about whether the registering court may
properly exercise jurisdiction over a subsequent child custody
proceeding are not yet implicated.
Here, no Nebraska court has yet been asked to make, or to
modify, a child custody determination. Hollomon’s reason for
seeking to register the Texas order in Nebraska was not articu-
lated in her affidavit, and the record contains no simultaneous
request for enforcement or modification. But even assuming
Hollomon seeks to register the Texas order so she can subse-
quently seek to enforce it, a proceeding seeking only to enforce
a previously entered custody order is not a child custody
proceeding as defined under the UCCJEA.5 As such, on this
record, concerns about whether the district court for Seward
County may exercise jurisdiction over a child custody proceed-
ing are not yet implicated.6
CONCLUSION
For the foregoing reasons, the order of the district court is
reversed, and the cause is remanded with directions to confirm
the registered order.
R eversed and remanded with directions.
5
See § 43-1227(4) (“[c]hild custody proceeding . . . does not include
a proceeding involving . . . enforcement under sections 43-1248 to
43-1264”).
6
See, e.g., Harter v. Szykowny, 2014 Ark. App. 701, 451 S.W.3d 215
(2014); Berwick v. Wagner, 336 S.W.3d 805 (Tex. App. 2011); In re Sophia
G.L., supra note 2; Jamil v. Jahan, 280 Mich. App. 92, 760 N.W.2d 266
(2008); Prickett v. Prickett, 167 P.3d 661 (Wyo. 2007).