Wolter v. Fortuna , 27 Neb. Ct. App. 166 ( 2019 )

Nebraska Supreme Court Online Library
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Heath Wolter, appellee, v.
Christina Fortuna, appellant.
___ N.W.2d ___
Filed April 30, 2019. No. A-18-267.
1. Domicile: Intent: Words and Phrases. Domicile is obtained only
through a person’s physical presence accompanied by the present inten-
tion to remain indefinitely at a location or site or by the present intention
to make a location or site the person’s permanent or fixed home.
2. Child Custody: Jurisdiction. Jurisdiction over a child custody proceed-
ing is governed exclusively by the Uniform Child Custody Jurisdiction
and Enforcement Act.
3. Child Custody: Words and Phrases. “Child custody proceeding” is
defined under Neb. Rev. Stat. § 43-1227(4) (Reissue 2016) of the
Uniform Child Custody Jurisdiction and Enforcement Act as a proceed-
ing in which legal custody, physical custody, or visitation with respect to
a child is an issue and includes a proceeding for paternity in which the
issue of custody or visitation may appear.
4. Child Custody: Jurisdiction: Appeal and Error. In considering
whether jurisdiction exists under the Uniform Child Custody Jurisdiction
and Enforcement Act, 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 conclusion independent
from the trial court.
5. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
6. Child Custody: Jurisdiction: States. For a state to exercise jurisdiction
over a child custody dispute, it must either be the home state as defined
by the Uniform Child Custody Jurisdiction and Enforcement Act or fall
under limited exceptions to the home state requirement specified by
the act.
7. Child Custody: Jurisdiction. A Nebraska court has “last resort” juris-
diction to make an initial child custody determination under Neb. Rev.
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Stat. § 43-1238(a)(4) (Reissue 2016) of the Uniform Child Custody
Jurisdiction and Enforcement Act if no court of any other state would
have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2),
or (a)(3) of § 43-1238.
8. ____: ____. A decision to decline to exercise jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act for the reason
of an inconvenient forum is entrusted to the discretion of the trial court.
9. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question which does not rest upon existing facts or rights,
in which the issues presented are no longer alive.
10. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
11. Actions: Moot Question. An action becomes moot when the issues
initially presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action.
12. Child Custody: Visitation: Appeal and Error. Child custody determi-
nations, and parenting time 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.
13. Visitation. The trial court has discretion to set a reasonable parenting
time schedule.
14. ____. The determination of reasonableness of a parenting plan is to be
made on a case-by-case basis.
15. ____. Parenting time relates to continuing and fostering the normal
parental relationship of the noncustodial parent.
16. ____. The best interests of the children are the primary and paramount
considerations in determining and modifying visitation rights.
17. Evidence: Appeal and Error. Where 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 court heard and observed the witnesses
and accepted one version of the facts rather than another.
18. Paternity: Attorney Fees: Appeal and Error. An award of attorney
fees in a paternity action is reviewed de novo on the record to determine
whether there has been an abuse of discretion by the trial judge. Absent
such an abuse, the award will be affirmed.
19. Attorney Fees. As a general rule, attorney fees and expenses may be
recovered in a civil action only where provided for by statute or when a
recognized and accepted uniform course of procedure has been to allow
recovery of attorney fees.
20. Paternity: Child Support: Attorney Fees: Costs. Attorney fees and
costs are statutorily allowed in paternity and child support cases.
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21. Child Custody: Jurisdiction: Attorney Fees. Under the Uniform
Child Custody Jurisdiction and Enforcement Act, the court shall award
the prevailing party attorney fees unless the party from whom fees
or expenses are sought establishes that the award would be clearly
inappropriate.
22. Attorney Fees. Customarily, attorney fees and costs are awarded only to
the prevailing party or assessed against those who file frivolous suits.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Heath Wolter, pro se.
Riedmann, Bishop, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Christina Fortuna appeals the order of the district court for
Lancaster County, which established paternity and determined
custody and parenting time for the parties’ minor child. Finding
no merit to the arguments raised on appeal, we affirm.
BACKGROUND
Fortuna gave birth to a child in December 2015. In March
2016, Fortuna and the child moved from Nebraska to Florida
in order to live with Fortuna’s mother. In June, the Nebraska
Department of Health and Human Services determined that
Heath Wolter was the father of the child and sent notice to
Fortuna and Wolter. Thus, on July 1, Wolter filed a complaint
in the district court for Cass County asking the court to enter
an order for custody, parenting time, and child support.
At the same time, Wolter filed a motion for ex parte tem-
porary custody. The court declined to enter an ex parte order
but set the matter for hearing on July 18, 2016. Fortuna,
pro se, requested a continuance on July 15, and the court
rescheduled the hearing for August 15. Thereafter, Fortuna
obtained counsel who filed a motion to dismiss the action,
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arguing that despite its caption, Wolter’s complaint was a
complaint to establish paternity, and that the court lacked
jurisdiction because the child was neither domiciled nor found
in Nebraska.
After holding a hearing, the district court denied the motion
to dismiss, finding that it had jurisdiction over the matter,
and ordered Fortuna to return the child to Nebraska within
30 days. On September 22, 2016, Wolter filed a motion for
temporary custody in which he alleged that Fortuna had not
returned to Nebraska as previously ordered. In an order dated
September 26, the court awarded temporary custody of the
child to Fortuna, who had returned to Nebraska, and granted
Wolter parenting time with the child a minimum of every other
Saturday from 9 a.m. until 6 p.m.
In October 2016, Fortuna filed several motions, includ-
ing a motion to decline jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), motion
for temporary child support, motion for temporary removal of
the child, motion to transfer the action from Cass County to
Lancaster County, and motion to excuse some of the require-
ments of Nebraska’s Parenting Act. The district court for Cass
County granted the motion to transfer and awarded temporary
child support, to be paid by Wolter, in the amount of $389 per
month. The court reserved ruling on the remaining motions
pending transfer of the action. Thereafter, the district court
for Lancaster County considered the outstanding motions and
denied each of them.
Trial on the issues of paternity, custody, parenting time, and
child support was held on November 1, 2017. At the outset,
the parties stipulated as to Wolter’s paternity of the child.
Fortuna testified that she moved to Florida in March 2016,
and that at the time, her mother had lived there for approxi-
mately 1 year. Fortuna did not work while living in Florida
and planned to stay home with the child for the first year of
his life while living with her mother. She did receive govern-
ment assistance in the form of “SNAP” and Medicaid while
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in Florida. At the time of trial, Fortuna had moved back to
Nebraska. She was again living with her mother, who had
also returned to Nebraska and intended to remain here.
Fortuna proposed a parenting plan in which Wolter would
receive parenting time every other Saturday for 8 hours per
day. In her opinion, the child was too young for overnight vis-
its. She also explained that Wolter does not listen to her when
she tries to provide him with information regarding the child
and has missed several of his scheduled visits. She acknowl-
edged that there have been times that Wolter has asked for
additional time with the child, but she refused to give him that
time because it was not his designated parenting time.
Fortuna expressed additional concerns that “[a]bout half the
time” when the child would return from Wolter, he would be
“a little dehydrated and hungry,” and that Wolter did not pay
enough attention to the child during his parenting time. She
was also concerned about the condition of Wolter’s residence
because it has “a bunch of holes in the walls,” “it leaks,”
and it has “moldy” walls in the laundry room. Ultimately,
she believed that her proposed parenting plan was in the best
interests of the child. Because of the child’s young age and
the fact that Wolter did not exercise his time with the child
regularly, she believed it was in the child’s best interests “to
stay mostly with [her].”
Wolter also testified and admitted that he missed some of
his scheduled visits. He explained that at that time, he was
working as the general manager of a chain of gas stations,
and that at times, he would unexpectedly have to cover shifts
for employees who did not show up for work, causing him to
miss some of his Saturday visits. He testified that he has since
left that employment, in part because it was interfering with
his time with his child.
Wolter’s live-in girlfriend testified at trial that she has been
present during his parenting time and has no concerns about
his ability to parent. She explained that the child is close
with Wolter and is happy while at Wolter’s house. She has
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observed Wolter tend to the child’s needs, such as making him
food and changing his diapers.
Wolter proposed a parenting plan in which he would ini-
tially receive parenting time every other week from Thursday
evening through Monday morning, and beginning January 1,
2018, the parties would begin a “one week on, one week off”
arrangement. He opined that this plan was in the child’s best
interests, because it would allow him to be part of his child’s
life and because the parenting time he received under the
temporary order, which amounted to 18 hours per month, was
insufficient to allow him to be a father to his child.
On February 14, 2018, the court entered an order finding
that venue was proper and that it had jurisdiction over the par-
ties and the subject matter of the proceeding. The court deter-
mined that Wolter was the father of the minor child. Legal and
physical custody of the child was awarded to Fortuna subject
to Wolter’s parenting time set out in an attached parenting
plan. The parenting plan awarded Wolter parenting time for
every other week from Thursday evening through Monday
morning, certain holidays, and two 2-week periods in the sum-
mer. Wolter was ordered to pay child support in the amount of
$533 per month, and each party was ordered to pay his or her
own attorney fees.
The following month, the court entered an order which
reads, “The Court finds that the Parenting Plan filed February
14, 2018 and the Order filed February 14, 2018 are filed as
separate filings in this matter. The Parenting Plan should be
filed as an attachment to the Order.” Fortuna timely appeals to
this court.
ASSIGNMENTS OF ERROR
Fortuna assigns, renumbered and restated, that the district
court (1) erred in finding that it had jurisdiction to make
an initial custody determination; (2) abused its discretion in
denying her motion to decline jurisdiction, because Florida
was a more appropriate forum; (3) lacked authority to set a
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temporary hearing to be held on July 18, 2016; (4) lacked
authority to order her to move herself and the child back to
Nebraska and to thereafter reside in Nebraska as a condition of
her having custody of the child and lacked authority to award
visitation to Wolter; (5) abused its discretion in not excusing
Fortuna’s compliance with the Parenting Act requirements; (6)
abused its discretion in not adopting her proposed parenting
plan; and (7) abused its discretion in failing to order Wolter to
pay her attorney fees.
ANALYSIS
Subject Matter Jurisdiction.
Fortuna argues that the district court erred in concluding it
had jurisdiction to make an initial child custody determination
and that as a result, its custody order is void. We disagree.
[1] Fortuna claims that despite the fact that Wolter’s ini-
tial pleading was captioned as a complaint for custody, the
pleading was in reality a complaint to establish paternity of
the child. She correctly notes that a proceeding to establish
the paternity of a child may be instituted in the court of the
district where the child is domiciled or found, subject to an
exception not present here. See Neb. Rev. Stat. § 43-1411
(Reissue 2016). Domicile is obtained only through a person’s
physical presence accompanied by the present intention to
remain indefinitely at a location or site or by the present inten-
tion to make a location or site the person’s permanent or fixed
home. Metzler v. Metzler, 25 Neb. Ct. App. 757, 913 N.W.2d 733
(2018). It is undisputed that at the time the complaint was
filed, the child was domiciled in Florida.
[2] On the other hand, jurisdiction over a child custody
proceeding is governed exclusively by the UCCJEA. In re
Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018).
The question then becomes whether the instant matter con-
stitutes a proceeding to establish the paternity of a child or a
child custody proceeding.
An action for paternity or parental support under Neb. Rev.
Stat. §§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp.
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2018) may be initiated by filing a complaint with the clerk
of the district court as provided in Neb. Rev. Stat. § 25-2740
(Cum. Supp. 2018). § 43-1411.01(1). Section 25-2740(1)(b)
provides that “[p]aternity or custody determinations means
proceedings to establish the paternity of a child under sec-
tions 43-1411 to 43-1418 or proceedings to determine custody
of a child under section 42-364.” Thus, the law distinguishes
paternity actions from custody actions.
[3] Similarly, “[c]hild custody proceeding” is defined under
Neb. Rev. Stat. § 43-1227(4) (Reissue 2016) of the UCCJEA
as “a proceeding in which legal custody, physical custody, or
visitation with respect to a child is an issue.” The term “[c]hild
custody proceeding” includes a proceeding for paternity in
which the issue of custody or visitation may appear. Id.
From the foregoing, we deduce that if the proceeding is
solely to establish the paternity of a child or seeks paren-
tal support, § 43-1411 applies, and the proceeding is to be
instituted in the court of the district where the child is domi-
ciled or found. But when the custody and/or visitation of a
child is also at issue, even if the action is a paternity action,
jurisdiction over the proceeding is governed exclusively by
the UCCJEA.
Accordingly, the present case is governed by the UCCJEA,
not § 43-1411, even though Wolter sought to establish his
paternity, because he was also seeking an order regarding cus-
tody and visitation. We observe that there have been two pre-
vious cases in which this court has determined that Nebraska
has jurisdiction under the UCCJEA over actions where a puta-
tive father filed a complaint seeking to establish paternity and
custody of a child located outside of Nebraska at the time the
complaint was filed. See, Shandera v. Schultz, 23 Neb. Ct. App.
521, 876 N.W.2d 667 (2016); Zimmerman v. Biggs, 22 Neb.
App. 119, 848 N.W.2d 653 (2014).
[4,5] Having decided that the UCCJEA applies, we must
now determine whether the district court properly found that
it had jurisdiction over the proceeding. In considering whether
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jurisdiction exists under the UCCJEA, a jurisdictional ques-
tion that does not involve a factual dispute is determined by
an appellate court as a matter of law, which requires an appel-
late court to reach a conclusion independent from the trial
court. In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d
262 (2018). Statutory interpretation is a question of law,
which an appellate court resolves independently of the trial
court. Id.
Jurisdiction to make an initial child custody determination
is governed by Neb. Rev. Stat. § 43-1238 (Reissue 2016) of
the UCCJEA, which provides in part:
(a) Except as otherwise provided in section 43-1241
[regarding temporary emergency jurisdiction], a court of
this state has jurisdiction to make an initial child custody
determination only if:
(1) this state is the home state of the child on the date
of the commencement of the proceeding or was the home
state of the child within six months before the commence-
ment of the proceeding and the child is absent from this
state but a parent or person acting as a parent continues to
live in this state;
(2) a court of another state does not have jurisdiction
under subdivision (a)(1) of this section, or a court of the
home state of the child has declined to exercise jurisdic-
tion on the ground that this state is the more appropriate
forum under section 43-1244 or 43-1245, and:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
a significant connection with this state other than mere
physical presence; and
(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and personal
relationships;
(3) all courts having jurisdiction under subdivision
(a)(1) or (a)(2) of this section have declined to exercise
jurisdiction on the ground that a court of this state is the
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more appropriate forum to determine the custody of the
child under section 43-1244 or 43-1245; or
(4) no court of any other state would have jurisdiction
under the criteria specified in subdivision (a)(1), (a)(2), or
(a)(3) of this section.
(b) Subsection (a) of this section is the exclusive juris-
dictional basis for making a child custody determination
by a court of this state.
[6] For a state to exercise jurisdiction over a child custody
dispute, it must either be the home state as defined by the
UCCJEA or fall under limited exceptions to the home state
requirement specified by the UCCJEA. In re Guardianship
of S.T., supra. Generally speaking, § 43-1238(a)(1) grants
jurisdiction to the home state of the child and § 43-1238(a)(2)
through (4) sets out the exceptions under which a court will
have jurisdiction, even if it is not in the child’s home state. In
re Guardianship of S.T., supra.
The UCCJEA defines “[h]ome state” as “the state in which
a child lived with a parent or a person acting as a parent for
at least six consecutive months immediately before the com-
mencement of a child custody proceeding.” § 43-1227(7).
As used in the UCCJEA, “[c]ommencement” of a proceed-
ing means “the filing of the first pleading in a proceeding.”
§ 43-1227(5).
In the present case, Nebraska was not the child’s home state
because the child had not lived in Nebraska for 6 consecu-
tive months. Therefore, Nebraska did not have subject matter
jurisdiction over the proceeding under § 43-1238(a)(1).
[7] However, a Nebraska court has jurisdiction to make an
initial child custody determination under § 43-1238(a)(4) of
the UCCJEA if “no court of any other state would have juris-
diction under the criteria specified in subdivision (a)(1), (a)(2),
or (a)(3) of [§ 43-1238].” See DeLima v. Tsevi, 301 Neb. 933,
921 N.W.2d 89 (2018). This has been referred to as “last
resort” jurisdiction. See id.
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Jurisdiction under § 43-1238(a)(4) here depends on whether
a Florida court would have had jurisdiction to make an ini-
tial child custody determination under the criteria set forth in
either subsection (a)(1), (a)(2), or (a)(3). See DeLima v. Tsevi,
supra. As with Nebraska, Florida would not qualify as the
child’s home state under § 43-1238(a)(1) because the child had
not lived in Florida for at least 6 consecutive months before
the action was commenced.
With respect to § 43-1238(a)(2), Florida would have juris-
diction under this subsection if no court has jurisdiction as the
child’s home state and the following are true:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
a significant connection with this state other than mere
physical presence; and
(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and personal
relationships.
This basis for jurisdiction under the UCCJEA is commonly
referred to as “significant connection” jurisdiction. DeLima v.
Tsevi, supra.
When tasked with deciding whether an individual has a
significant connection to a state for purposes of this section
of the UCCJEA, courts consider a wide variety of ties to the
state. DeLima v. Tsevi, supra. Relying upon cases from other
jurisdictions, the Nebraska Supreme Court in DeLima iterated
that some factors that have been weighed in these cases are
the child’s relationship with extended or blended family mem-
bers; enrollment in school or day care; participation in social
activities; access to medical, dental, or psychological care; the
availability of government assistance; or the parent’s employ-
ment or family ties.
In DeLima v. Tsevi, supra, the Supreme Court concluded
that the child and his mother had a significant connection
to the nation of Togo because the child resided with family
members in the country continuously for 6 years and attended
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school and received medical attention there. In addition, the
mother was married in Togo, had family living there, and vol-
untarily sent the child to live in Togo with his maternal grand-
mother while the mother remained in Nebraska.
To the contrary here, Fortuna and the child had lived in
Florida for fewer than 4 months at the time this proceeding was
commenced. Fortuna was not working in Florida or looking
for employment, but she did receive government assistance in
the form of “SNAP” and Medicaid. Fortuna testified that she
found a pediatrician in Florida for the child, but it is unclear
whether the child received any medical care there, and the
child did not attend daycare. Fortuna and the child lived with
Fortuna’s mother, but at the time Fortuna moved to Florida,
her mother had lived in the state for only 1 year. There was
no evidence that Fortuna had any other family members living
in Florida. On the other hand, Fortuna has siblings that live in
Nebraska, and her mother moved back to Nebraska in October
2017. Based on the foregoing, we conclude that Fortuna and
the child did not have a significant connection with Florida
at the time the action was commenced, and therefore, Florida
would not have had jurisdiction to make an initial child cus-
tody determination under § 43-1238(a)(2).
Finally, § 43-1238(a)(3) provides for jurisdiction when all
courts having jurisdiction under subsection (a)(1) or (a)(2)
have declined to exercise jurisdiction on the ground that a
court of this state is the more appropriate forum. There is no
evidence that any courts in the present case have declined to
exercise jurisdiction on the ground that Florida is the more
appropriate forum. Accordingly, a court in Florida could not
have exercised jurisdiction under § 43-1238(a)(3). Because
Florida would not have jurisdiction over this matter under
the criteria specified in subsections (a)(1), (a)(2), or (a)(3),
Nebraska has “last resort” jurisdiction under § 43-1238(a)(4).
As a result, the district court did not err in concluding that it
had jurisdiction over the proceedings and entering a custody
order after trial.
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Inconvenient Forum.
Fortuna next asserts that even if the district court had juris-
diction to make an initial child custody determination, the court
should have declined jurisdiction because Florida was a more
appropriate forum. We find no merit to this argument.
[8] A court of this state which has jurisdiction under Neb.
Rev. Stat. § 43-1244(a) (Reissue 2016) of the UCCJEA to
make a child custody determination may decline to exercise
its jurisdiction at any time if it determines that it is an incon-
venient forum under the circumstances and that a court of
another state is a more appropriate forum. As a general rule, a
decision to decline to exercise jurisdiction under the UCCJEA
for the reason of an inconvenient forum is entrusted to the
discretion of the trial court. Watson v. Watson, 272 Neb. 647,
724 N.W.2d 24 (2006).
Before determining whether it is an inconvenient forum, a
court of this state shall consider whether it is appropriate for
a court of another state to exercise jurisdiction. § 43-1244(b).
For this purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including:
(1) whether domestic violence has occurred and is
likely to continue in the future and which state could best
protect the parties and the child;
(2) the length of time the child has resided outside
this state;
(3) the distance between the court in this state and the
court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state
should assume jurisdiction;
(6) the nature and location of the evidence required
to resolve the pending litigation, including testimony of
the child;
(7) the ability of the court of each state to decide the
issue expeditiously and the procedures necessary to pre­
sent the evidence; and
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(8) the familiarity of the court of each state with the
facts and issues in the pending litigation.
§ 43-1244(b).
The evidence in the present case reveals that at the time
the action was commenced, the child had resided outside
of Nebraska for fewer than 4 months. The court that would
assume jurisdiction is located in Florida, but there was no evi-
dence presented as to the exact distance between the courts.
There is a disparity in the financial circumstances of the
parties: Wolter was working full time, and Fortuna was unem-
ployed. At the time the hearing on this motion was held, how-
ever, Fortuna had moved back to Nebraska, and was looking
for employment, and Wolter had been ordered to pay tempo-
rary child support.
The child is too young to testify, and otherwise, the evi-
dence required to resolve the pending litigation would be pre-
sented in the form of testimony from Wolter and Fortuna, both
of whom were residing in Nebraska. There was no specific
evidence as to the ability of the court of each state to decide
the issue expeditiously and the procedures necessary to present
the evidence or the familiarity of the court of each state with
the facts and issues in the pending litigation.
Before determining whether Nebraska was an inconvenient
forum, the court was required to consider whether it would
be appropriate for a court in Florida to exercise jurisdiction.
Pursuant to § 43-1244(b), the court held an evidentiary hearing
on the issue. Based on the foregoing evidence that was pre-
sented at that hearing, we conclude that the district court did
not abuse its discretion in concluding that Florida would not
be an appropriate forum and accordingly denying Fortuna’s
motion to decline jurisdiction.
Authority to Schedule Temporary Hearing.
Fortuna asserts that the district court erred in entering an
order setting the matter for a temporary hearing on July 18,
2016, because this was a paternity action and paternity had
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Cite as 27 Neb. Ct. App. 166
not yet been established. Even assuming without deciding
that the court’s order was an abuse of discretion, we cannot
afford relief to Fortuna from the temporary order. See, State
ex rel. Pathammavong v. Pathammavong, 268 Neb. 1, 679
N.W.2d 749 (2004); Coleman v. Kahler, 17 Neb. Ct. App. 518,
766 N.W.2d 142 (2009).
[9] A moot case is one which seeks to determine a question
which does not rest upon existing facts or rights, in which
the issues presented are no longer alive. Coleman v. Kahler,
supra. The issue of whether the district court erred in schedul-
ing a temporary hearing and thereafter entering a temporary
order was relevant only from the time the order was entered
until it was replaced by the final order after trial. Therefore,
any issue relating to the temporary order is moot and need not
be resolved in this appeal. See id.
Authority to Order Return to Nebraska
and Award Visitation.
Fortuna challenges the court’s authority to order her to
return the child to Nebraska in the August 22, 2016, order
and to award Wolter visitation with the child in the September
26 order. We note, however, that Fortuna did not raise these
issues before the district court.
[10] An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880
N.W.2d 906 (2016). After reviewing the transcript in the
instant case, we observe that Fortuna referenced her belief that
the district court lacked the authority to order her to return to
Nebraska, but she never placed the issue before the district
court in the form of a motion for the court’s consideration and
ruling. To the extent Fortuna relies upon her belief that the
district court lacked jurisdiction to enter either order, we have
resolved that issue. Because the arguments Fortuna asserts on
appeal were not presented to the district court, we do not con-
sider them on appeal.
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Compliance With Parenting
Act Requirements.
Fortuna contends that the district court abused its discretion
in not excusing her compliance with the Parenting Act require-
ments of mediation and a parenting education course. We find
these issues to be moot.
Fortuna filed a motion asking the district court to waive the
parties’ participation in mediation pursuant to Neb. Rev. Stat.
§ 43-2937(4) (Reissue 2016). The court denied the motion, and
at trial, Wolter testified that the parties had attempted media-
tion but were unsuccessful.
[11] An action becomes moot when the issues initially pre-
sented in the proceedings no longer exist or the parties lack a
legally cognizable interest in the outcome of the action. Nesbitt
v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018). Because the
parties attended mediation and ultimately a trial on the issues
was held, the issue of whether the court should have waived
the mediation requirement is moot.
Likewise, Fortuna requested that the court, under Neb. Rev.
Stat. § 43-2928(1) (Reissue 2016), excuse her participation
in the required parenting education course. The motion was
denied, and as noted above, trial was held. Rules of Dist. Ct. of
Third Jud. Dist. 3-9(B) (rev. 1995) provides that the court may
not schedule a hearing on a motion to set the case for trial until
the parties have completed the statutorily required parenting
classes. Because the court declined to excuse participation in
the parenting classes and trial was held, we infer that Fortuna
completed the required course prior to trial. As a result, this
issue is also moot.
Parenting Plan.
Fortuna claims that the court should have adopted the par-
enting plan she proposed because it was in the child’s best
interests. We find no abuse of discretion in the parenting plan
adopted by the district court.
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[12] Child custody determinations, and parenting time deter-
minations, 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. Aguilar v. Schulte, 22 Neb. Ct. App. 80,
848 N.W.2d 644 (2014).
[13-16] The trial court has discretion to set a reasonable
parenting time schedule. Thompson v. Thompson, 24 Neb. Ct. App.
349, 887 N.W.2d 52 (2016). The determination of reason-
ableness of a parenting plan is to be made on a case-by-case
basis. Id. Parenting time relates to continuing and fostering
the normal parental relationship of the noncustodial parent.
Id. The best interests of the children are the primary and para-
mount considerations in determining and modifying visitation
rights. Id.
In determining custody and parenting arrangements, the
court shall consider the best interests of the minor child,
which shall include, but not be limited to, consideration of
the following:
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if
of an age of comprehension but regardless of chrono-
logical 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 . . . ; and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
Neb. Rev. Stat. § 43-2923(6) (Reissue 2016). See, also, State
on behalf of Slingsby v. Slingsby, 25 Neb. Ct. App. 239, 903
N.W.2d 491 (2017).
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Fortuna testified at trial as to her concerns regarding
Wolter’s ability to parent the child, including the fact that
he canceled several visits, the condition of his residence, and
her perception that he was unable to care for a young child.
She believed that the child was too young for overnight visits
with Wolter.
Wolter admitted to canceling some of his parenting time,
but explained that he had to do so because of employment
issues and that he has since left that job in part because it
was interfering with his parenting time. He opined that his
proposed parenting plan was in the best interests of the child
because it would allow him to be part of the child’s life.
[17] Essentially, Fortuna did not believe that overnight vis-
its were in the child’s best interests, but Wolter did. In fact,
the parenting plan proposed by Fortuna afforded Wolter less
parenting time than he was receiving under the temporary
order. She proposed that he receive parenting time for every
other Saturday from 10 a.m. until 6 p.m. and certain holidays,
but no overnight visits. Where 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 court heard and
observed the witnesses and accepted one version of the facts
rather than another. Schmeidler v. Schmeidler, 25 Neb. Ct. App.
802, 912 N.W.2d 278 (2018).
Here, in adopting a parenting plan almost identical to
Wolter’s proposed plan and affording him overnight visits, the
district court apparently found Wolter’s testimony more cred-
ible. We give weight to the district court’s assessment of the
evidence presented.
We understand Fortuna’s position given the young age of
the child and the relatively little amount of time Wolter has
spent with the child during his lifetime. However, parenting
time relates to continuing and fostering the normal paren-
tal relationship of the noncustodial parent. See Thompson
v. Thompson, 24 Neb. Ct. App. 349, 887 N.W.2d 52 (2016).
Fortuna’s proposed plan granting Wolter just 16 hours of
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parenting time per month with the child does little to continue
and foster Wolter’s relationship with the child. We therefore
cannot find that the court abused its discretion in declining to
adopt Fortuna’s proposed parenting plan.
Attorney Fees.
Fortuna argues that the district court erred in denying her
request for attorney fees. We find no merit to this argument.
[18] An award of attorney fees in a paternity action is
reviewed de novo on the record to determine whether there has
been an abuse of discretion by the trial judge. Absent such an
abuse, the award will be affirmed. Jessen v. Line, 16 Neb. Ct. App.
197, 742 N.W.2d 30 (2007).
[19,20] As a general rule, attorney fees and expenses may
be recovered in a civil action only where provided for by
statute or when a recognized and accepted uniform course
of procedure has been to allow recovery of attorney fees.
Coleman v. Kahler, 17 Neb. Ct. App. 518, 766 N.W.2d 142 (2009).
Attorney fees and costs are statutorily allowed in paternity
and child support cases. Id. See Neb. Rev. Stat. § 43-1412(3)
(Reissue 2016).
[21,22] Further, under Neb. Rev. Stat. § 43-1259(a) (Reissue
2016) of the UCCJEA, the court shall award the prevail-
ing party attorney fees unless the party from whom fees
or expenses are sought establishes that the award would be
clearly inappropriate. Coleman v. Kahler, supra. Customarily,
attorney fees and costs are awarded only to the prevailing party
or assessed against those who file frivolous suits. Id.
Here, Fortuna sought an award of attorney fees from Wolter,
but it was Wolter who was the prevailing party. His paternity
of the child was established, and despite Fortuna’s objection to
overnight visits, the court granted Wolter parenting time every
other weekend from Thursday evening until Monday morn-
ing, as Wolter requested, and awarded him parenting time for
certain holidays and two 2-week periods in the summer. The
court also adopted his proposed child support calculations. In
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addition, despite Fortuna’s repeated attempts, the court prop-
erly found that it had jurisdiction over the matter under the
UCCJEA. Accordingly, the court did not abuse its discretion in
declining to award attorney fees to Fortuna.
CONCLUSION
We find no merit to the arguments raised on appeal and
therefore affirm the order of the district court.
A ffirmed.