Floerchinger v. Floerchinger ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2016 09:09 AM CDT
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Decisions of the Nebraska Court of A ppeals
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FLOERCHINGER v. FLOERCHINGER
Cite as 24 Neb. Ct. App. 120
M ark G. Floerchinger, appellee, v.
Stacey Leigh Floerchinger, appellant.
___ N.W.2d ___
Filed June 21, 2016. No. A-15-833.
1. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
2. 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 de novo on the record for abuse of discretion
by the appellate court.
3. ____: ____: ____. The question as to whether jurisdiction existing under
the Nebraska Child Custody Jurisdiction Act should be exercised is
entrusted to the discretion of the trial court and is reviewed de novo on
the record for abuse of discretion by the appellate court. As in other mat-
ters entrusted to a trial judge’s discretion, absent an abuse of discretion,
the decision will be upheld on appeal.
4. 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.
5. Judgments: Evidence: Appeal and Error. In a review de novo on the
record, an appellate court reappraises the evidence as presented by the
record and reaches its own independent conclusions on the matters at
issue. When evidence is in conflict, 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.
6. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
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7. ____: ____. 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.
8. Child Custody: Visitation: Jurisdiction. A district court has exclu-
sive and continuing jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act over custody and visitation issues if
the court made the initial child custody determination in accordance
with Neb. Rev. Stat. § 43-1238 (Reissue 2008).
9. Child Custody: States: Jurisdiction. In order for a state to exer-
cise jurisdiction over a child custody dispute, that state must 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.
10. Child Custody: Jurisdiction. Exclusive and continuing jurisdic-
tion remains with the district court under the Uniform Child Custody
Jurisdiction and Enforcement Act either until jurisdiction is lost under
Neb. Rev. Stat. § 43-1239(a) (Reissue 2008) or until the court declines
to exercise jurisdiction under Neb. Rev. Stat. § 43-1244 (Reissue 2008)
on the basis of being an inconvenient forum.
11. ____: ____. Jurisdiction is lost under Neb. Rev. Stat. § 43-1239(a)
(Reissue 2008) if neither the child nor the child and one parent have a
significant connection with Nebraska and substantial evidence pertain-
ing to custody is no longer available in the state, or if a court determines
that the child and parents no longer reside in Nebraska.
12. Child Custody: Evidence: Jurisdiction. The Uniform Child Custody
Jurisdiction and Enforcement Act lists evidence concerning the child’s
care, protection, training, and personal relationships as relevant evidence
regarding custody.
13. Statutes: Appeal and Error. In construing a statute, an appellate court
will, if possible, try to avoid a construction which would lead to absurd,
unconscionable, or unjust results.
14. Child Custody: Final Orders. The grant of temporary custody is not a
final, appealable order, as it does not affect a substantial right.
15. Child Custody: Proof. In a child custody modification case, first, the
party seeking modification must show a material change in circum-
stances, occurring after the entry of the previous custody order and
affecting the best interests of the child. Next, the party seeking modi-
fication must prove that changing the child’s custody is in the child’s
best interests.
16. Modification of Decree: Words and Phrases. A material change in
circumstances means the occurrence of something which, had it been
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FLOERCHINGER v. FLOERCHINGER
Cite as 24 Neb. Ct. App. 120
known to the dissolution court at the time of the initial decree, would
have persuaded the court to decree differently.
17. Child Custody. While the wishes of a child are not controlling in
the determination of custody, if a child is of sufficient age and has
expressed an intelligent preference, the child’s preference is entitled
to consideration.
18. 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.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Affirmed.
Liam K. Meehan, of Schirber & Wagner, L.L.P., for
appellant.
Angela M. Minahan, of Reinsch, Slattery, Bear & Minahan,
P.C., L.L.O., for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Moore, Chief Judge.
I. INTRODUCTION
Stacey Leigh Floerchinger appeals from a modification
order entered by the district court for Sarpy County, in which
the court found that a material change in circumstances had
occurred since the original dissolution of marriage decree
and awarded joint legal custody of the parties’ minor child to
Stacey and her former husband, Mark G. Floerchinger, with
“primary possession” of the child awarded to Mark. On appeal,
Stacey challenges the court’s exercise of jurisdiction under
the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), the entry of a temporary order, and the modifica-
tion of custody. Because the district court properly exercised
jurisdiction and we find no abuse of discretion in the custody
determination, we affirm.
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Decisions of the Nebraska Court of A ppeals
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FLOERCHINGER v. FLOERCHINGER
Cite as 24 Neb. Ct. App. 120
II. BACKGROUND
1. Procedural Background
Mark and Stacey were married in 1993 in the State of
Maine and are the biological parents of Brayden Floerchinger
(age 15) and his older sister (age 21). The parties moved
from Maine to Papillion, Nebraska, soon after their marriage.
The parties separated in August 2002, at which time Stacey
returned to Maine with Brayden and his sister while Mark
remained in Papillion.
On April 28, 2003, Mark filed a “Petition for Dissolution
of Marriage” in the district court for Sarpy County, in which
Mark alleged, in part, that while both he and Stacey were fit
parents, it was in the best interests of the minor children that
their custody be awarded to Stacey, subject to Mark’s reason-
able rights to share time with the minor children.
On September 12, 2003, a “Decree of Dissolution of
Marriage” was entered. Pursuant to the parties’ agreed-upon
parenting plan, the legal custody of the children was awarded
to Stacey, subject to Mark’s visitation rights set forth in the
parenting plan. The decree is silent as to Stacey and the chil-
dren’s place of residence, although the parenting plan refer-
ences Mark’s visitation with the children in Maine. Mark’s
visitation included a split holiday parenting schedule along
with 2 months of summer visitation in Nebraska each year.
Mark maintained his residence in Nebraska from the entry
of the decree through the present case, residing in Plattsmouth,
Nebraska, at the time of trial. Stacey and the children remained
in Maine from August 2002 until the current proceedings.
Mark testified that the decree was never registered in Maine
although he thought there was an attempt to do so.
On July 17, 2013, Mark filed a complaint to modify just
Brayden’s custody (Brayden’s sister having already reached
the age of majority). Mark alleged that a material change in
circumstances had occurred, namely that Brayden expressed
a desire to reside with Mark in Nebraska. Mark requested
that the parties be awarded joint legal custody with primary
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possession of Brayden being placed with him. Mark also
sought termination of his child support obligation, although he
did not seek child support from Stacey.
On August 27 and 29, 2013, Stacey filed objections to the
district court’s exercise of jurisdiction over the complaint to
modify, asserting that pursuant to the UCCJEA, the proper
jurisdiction is the State of Maine. In addition, Stacey alleged
that Nebraska lacks the requisite minimum contacts to justify
the case’s being heard in Nebraska.
Mark filed a motion for temporary allowances on August 29,
2013, requesting that the court order that custody of Brayden
be placed temporarily with Mark and that it temporarily sus-
pend his child support payments. On September 3, Stacey filed
a motion to enforce the decree, seeking the return of Brayden
to Maine.
On September 18, 2013, the district court entered a tempo-
rary order denying Stacey’s motion to enforce the decree and
granting Mark’s motion. Specifically, the court placed tempo-
rary legal custody of Brayden with the court and primary pos-
session with Mark, suspended child support payments, estab-
lished telephonic visitation between Brayden and Stacey, and
granted Stacey visitation with Brayden in Maine for the first
half of his upcoming Christmas holiday.
On September 26, 2013, Stacey filed a request for clarifi-
cation, asking the court to provide the parties with findings
regarding the court’s denial of Stacey’s motion to enforce the
decree, for its reasons in granting temporary custody to Mark,
and for a ruling on Stacey’s objections to the court’s exercise
of jurisdiction. The court denied this motion.
On January 13, 2014, Stacey’s attorney filed a motion to
withdraw, which was granted. On March 12, Stacey’s new
attorney entered his appearance and filed a motion to vacate
the temporary order, once again challenging jurisdiction under
the UCCJEA and disputing the appropriateness of ordering a
temporary custody change on a nonemergency basis. On April
11, the court denied this motion.
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FLOERCHINGER v. FLOERCHINGER
Cite as 24 Neb. Ct. App. 120
2. Trial
On May 20, 2014, trial was held. Stacey’s counsel pre-
served the objections to the court’s exercise of jurisdiction
under the UCCJEA and to the temporary modification of
custody.
Both parties testified in their own behalf. Mark also called
two witnesses, Mark Smith, the principal of Plattsmouth
Middle School, and Brayden. Stacey did not present any
witness testimony beyond her own. Mark introduced into
evidence Brayden’s Plattsmouth Middle School individu-
alized education plan and student Spring progress report
for the 2013-14 school year and an affidavit completed
by Brayden with attached text message communications
between Brayden and Stacey. Stacey introduced the results
of a Maine standardized test taken by Brayden, Brayden’s
Plattsmouth Middle School semester report cards for the
2013-14 school year, and Brayden’s report cards from Maine
for 2011 through 2013.
(a) History of Custody
and Parenting Time
Stacey and the children moved to Maine in August 2002,
prior to the initiation of the divorce. Brayden and Stacey
have resided in Maine since that time. Mark has continu-
ously resided in Nebraska, and he was living in Plattsmouth
at the time of trial. Mark has always exercised his 2 months
of summer parenting time as awarded by the divorce decree.
Mark has exercised his winter or Christmas holiday visitation
on some years, but not every year. Stacey testified that Mark
exercised winter or Christmas visitation only three or four
times during the 11-year period. Mark testified that he was
occasionally limited in his ability to exercise winter visitation
due to travel costs and his work schedule. Mark has main-
tained regular contact with Brayden through telephone calls
and text messages; has called Brayden on holidays, birthdays,
and special occasions; and has sent Brayden presents.
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FLOERCHINGER v. FLOERCHINGER
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(b) Brayden’s Desire to
Live With Mark
Mark does not challenge Stacey’s fitness as a parent. Rather,
he maintains that Brayden’s desire to reside with Mark sup-
ports the modification of custody and that granting such modi-
fication is in Brayden’s best interests.
Mark testified that Brayden began expressing his desire
to live with Mark permanently in Nebraska during the sum-
mer of 2012. Mark had responded that the matter would need
to be discussed with Stacey. Mark contacted Stacey, and
they discussed Brayden’s desire to move. Mark claims that
this upset Stacey and that she responded by requesting that
Brayden return to Maine following the summer 2012 visita-
tion for 1 more year after which Brayden could live with Mark
in Nebraska. When Brayden returned to Mark’s home for the
summer 2013 visitation, Brayden continued to express to Mark
a desire to reside with him. Mark testified that Brayden told
him that he felt more comfortable in Nebraska and enjoyed
living with Mark.
Mark responded by filing the modification complaint. After
the complaint was filed, conversations between Mark and
Stacey regarding a change in Brayden’s residence continued,
resulting in Mark’s belief that the parties had reached an agree-
ment. Specifically, Mark claimed that during a telephone call
in July or August 2013, Stacey gave consent for Brayden to
move to Nebraska. Mark similarly testified that Stacey coop-
erated in providing Brayden’s medical records necessary to
enroll him in school in Nebraska. Nevertheless, Stacey refused
to sign a stipulation which would have modified the divorce
decree and given Mark custody.
Mark introduced Brayden’s affidavit into evidence along
with an attached text message conversation between Brayden
and Stacey. Brayden expressed in the affidavit his longstand-
ing and continuous desire to reside with Mark and claimed
that Stacey had agreed to this arrangement. The text mes-
sages attached to the affidavit included a message from Stacey
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wishing Brayden a great first day at school and later another
asking how his first day went.
Brayden testified at trial regarding his desire to reside with
Mark in Nebraska. Brayden stated that during the summer of
2012, he had asked to live with Mark and Stacey had agreed,
during a telephone conversation, to allow a change in residency
under the condition that Brayden reside with her in Maine for
1 more year. In July 2013, Brayden again told Mark that he
wanted to live with him, but he did not speak to Stacey about
it at this time. Brayden did discuss the matter with Stacey after
she was served with the modification complaint, expressing his
desire to live in Nebraska.
Brayden testified that he preferred living in Nebraska due to
the comfortable and relaxed environment at Mark’s house and
because he enjoyed the interaction he had with Mark. Brayden
also expressed that his living situation in Nebraska was better
because in Maine, he was pestered by his stepsiblings. Brayden
stated that his home in Maine is a “single wide” trailer being
shared by his biological sister, Stacey, a stepfather (Stacey’s
fiance), and the stepfather’s two young daughters.
Stacey admitted Mark called her in August 2012 and told
her that Brayden wanted to live in Nebraska and that Stacey
should let him move. Stacey responded by saying no and that
Brayden needed to come back to Maine. Stacey questioned
Brayden about where he wanted to live. She testified that at
no point during the 2012-13 school year while Brayden was
residing with her in Maine did he express a desire to live with
Mark. Brayden told her that Mark was making him feel guilty,
that he felt bad for Mark, and that he did not really want to live
in Nebraska. Stacey also testified that Brayden had expressed
a desire to move back to Maine, even in the summer of 2013,
and that he tended to want to stay wherever he was currently
located. After Stacey was served with the modification papers
in late July 2013, she tried to call Brayden but had difficulty
reaching him despite trying from several different telephones.
She received a call from Brayden the following day wherein
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he expressed a desire to live in Nebraska. Stacey claims that
Brayden did not give a clear reason why he wanted to live in
Nebraska, other than that he just wanted to try it. Mark then
joined in on the telephone call, stating that Brayden wanted
to live in Nebraska and that Stacey should let him. Stacey
became upset and cried, telling Mark that she was going to
seek an attorney. Mark allegedly responded by stating that
because Brayden was 12 years old, he gets to decide where
to live. Stacey stated that Mark enrolled Brayden in school in
Plattsmouth without her consent. Stacey denied sending any
medical records or other information necessary for Brayden’s
enrollment and stated she had believed Brayden would return
to her when she wished him luck on the first day of school.
(c) Brayden’s Current Situation
Mark testified that Brayden has adapted well to Plattsmouth.
Brayden is involved in extracurricular activities in Plattsmouth,
including sports; has developed a network of friends in the
community; and is relaxed and comfortable in Mark’s home.
During cross-examination, Mark admitted that Brayden
enjoyed some similar benefits in Maine. Overall, Mark claims
that Brayden has adjusted well to his new home in Nebraska
and has shown signs of academic progress, success, and
increased maturity.
During the school enrollment process, Mark discovered
that Brayden suffered from learning disabilities, struggling
in particular with the subjects of reading, math, and sci-
ence. He further claims that Brayden was in extreme need of
special education assistance. Upon Brayden’s enrollment at
Plattsmouth Middle School, it was determined that his aca-
demic ability was below average for his age based on school
records obtained from Brayden’s school in Maine along with
new test results gathered by the Plattsmouth school system.
Mark also learned during a school meeting that Brayden had
been diagnosed with attention deficit hyperactivity disorder
while in Maine.
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Smith, the principal of Plattsmouth Middle School, pro-
vided additional testimony regarding Brayden’s academic per-
formance at that middle school. Smith testified that when
Brayden was enrolled there, he was reading below grade level.
In response, Brayden was enrolled in a specialized reading
course. An individualized education plan was also created
for Brayden. The reading course resulted in an improvement
in Brayden’s reading level scores. Smith also testified that
Brayden’s academic performance was slightly deficient in the
subjects of language arts, math, and science. Brayden was
enrolled in a study hall and provided with a resource teacher
to improve his academic performance. Smith claims that since
Brayden’s enrollment at the school, he has made great educa-
tional progress as documented through his test results.
Since the discovery of Brayden’s academic deficiencies,
Mark has worked with Brayden, assisting him with home-
work, and they read together every night. Brayden’s testimony
confirmed that Mark assists him with homework and reading.
Mark attends all parent-teacher conferences and individual-
ized education plan meetings on behalf of Brayden. Mark
feels that Brayden has been successful at school since moving
to Plattsmouth.
On cross-examination, Smith admitted that Brayden’s aca-
demic improvements could have possibly occurred at any
school rather than as a result of a unique benefit provided
by Plattsmouth Middle School. However, Smith stated that
Brayden’s growth may be attributable to the excellent teach-
ers, support staff, and specialized reading course available at
Plattsmouth Middle School. Smith observed that Brayden also
had above-typical academic growth while attending school in
Maine. Brayden’s seventh grade report card showed that he
received five C’s and one D while enrolled in Plattsmouth,
whereas he received only two grades that were in the C
range while enrolled in the fifth and sixth grades in Maine.
However, due to the lack of a grading scale on the Maine
report cards and the possibility that Maine uses a different
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approach to scoring, Smith was unable to reliably compare
grades between the two schools, which is in part why he
focused more on standardized scores than individual grades in
assessing growth.
Stacey also testified regarding Brayden’s grades, claiming
that the academic growth Brayden experienced during the
school year in Nebraska was similar to that which occurred
while he was in Maine. Stacey expressed her concerns regard-
ing Brayden’s five C’s and one D since enrolling at Plattsmouth
Middle School.
Brayden testified that he learns more at his new school, that
he has “made way more friends” in Nebraska, that there is no
fighting and arguing at Mark’s house such as occurs at Stacey’s
house between Stacey and Brayden’s stepfather, and that over-
all, Mark’s house is a better place to live. Brayden testified
that the town Stacey resides in is substantially similar in size
to Plattsmouth.
As instructed under the temporary order, Stacey was
granted visitation with Brayden in Maine during the first half
of his Christmas holiday in 2013. During this visit, Stacey
attempted to discuss with Brayden why he wanted to reside in
Nebraska. She admitted to becoming frustrated with Brayden
and expressed that she did not understand why he wanted
to move. Brayden claimed that Stacey became angry with
him while discussing why he wanted to move to Nebraska,
shouting and swearing at him during the ride from the air-
port. He stated that later that evening, Stacey hugged him
and apologized.
Brayden also testified about an altercation between Stacey
and his stepfather during the holiday visit in which his step-
father shoved Stacey. Brayden claims that Stacey told him to
call the police, but that he chose not to at the request of his
stepfather. This quarrel caused Brayden to feel sad, unsafe,
and scared. Brayden testified that the remainder of his visit
was “mostly good.” Stacey admitted that an argument occurred
between her and Brayden’s stepfather in the presence of
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Brayden. However, Stacey denied that this altercation became
physical, denied requesting that Brayden call the police, and
clarified that it was purely a verbal altercation.
At the close of evidence, the court found that there existed a
material change in circumstances based on Brayden’s articula-
tion of a reason for moving in with Mark. As a result, the court
awarded “primary possession” to Mark subject to Stacey’s
parenting time, along with granting joint legal custody to both
parties. The court also ordered that neither party was to pay
child support. On August 10, 2015, the court memorialized its
holding in a modification order.
Stacey subsequently perfected this appeal.
III. ASSIGNMENTS OF ERROR
Stacey assigns, restated, that the district court (1) erred in
finding that Nebraska had continuing jurisdiction under the
UCCJEA; (2) abused its discretion in granting Mark temporary
custody prior to a full evidentiary hearing, which grant was
prejudicial to Stacey; and (3) erred in finding that a mate-
rial change in circumstances occurred justifying a transfer
of custody.
IV. STANDARD OF REVIEW
[1-3] Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte. In
re Guardianship & Conservatorship of Barnhart, 290 Neb.
314, 859 N.W.2d 856 (2015). The question whether juris-
diction should be exercised under the UCCJEA is entrusted
to the discretion of the trial court and is reviewed de novo
on the record for abuse of discretion by the appellate court.
Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006). See,
also, Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426
(2010) (subject matter jurisdiction is question of law for court,
which requires appellate court to reach conclusion indepen-
dent of lower court’s decision). The same standard of review
applies to jurisdiction existing under the previously operative
Nebraska Child Custody Jurisdiction Act (NCCJA). White v.
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White, 271 Neb. 43, 709 N.W.2d 325 (2006). As in other mat-
ters entrusted to a trial judge’s jurisdiction, absent an abuse of
discretion, the decision will be upheld on appeal. Id.
[4] 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. State
on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d
230 (2015). See, also, Schrag v. Spear, 290 Neb. 98, 858
N.W.2d 865 (2015).
[5] In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions on the matters at issue. When
evidence is in conflict, 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. Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d
300 (2013).
[6,7] 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. Schrag v. Spear, supra. A judicial abuse of dis-
cretion 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. Id.
V. ANALYSIS
1. Jurisdiction
The district court, both in its initial exercise of jurisdiction
over Brayden’s custody in the decree of dissolution and in its
continuing exercise of jurisdiction in the modification order,
claimed “jurisdiction over the parties and the subject matter of
this action.”
Stacey argues that the district court erred in finding that
Nebraska could exercise continuing jurisdiction over Brayden’s
custody. Stacey first challenges the exercise of continuing
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jurisdiction based upon her argument that the court’s exercise
of initial jurisdiction at the time of the decree was erroneous.
Next, she challenges the district court’s exercise of continuing
jurisdiction based upon her assertion that Maine was the home
state of Brayden for 11 years and within the 6 months prior to
the modification filing.
(a) Initial Child Custody Jurisdiction
Under NCCJA
Jurisdiction over child custody proceedings is currently gov-
erned by the UCCJEA. Watson v. Watson, 272 Neb. 647, 724
N.W.2d 24 (2006). The UCCJEA became operative on January
1, 2004, and establishes that all motions made in a child cus-
tody proceeding commenced prior to that date are governed by
the prior law in effect at that time. Neb. Rev. Stat. § 43-1266
(Reissue 2008). The law governing child custody jurisdiction
prior to the effective date of the UCCJEA was the NCCJA.
Neb. Rev. Stat. §§ 43-1201 to 43-1225 (Reissue 1998).
Mark filed the petition for dissolution of marriage on
April 28, 2003. The court subsequently issued the dissolution
decree, which approved the parties’ agreed-upon initial custody
arrangement, on September 12. Thus, the jurisdiction of the
court over the initial custody determination was governed by
the NCCJA and not the UCCJEA.
The NCCJA provided that a Nebraska court had jurisdiction
to make an initial child custody determination if Nebraska was
“the home state of the child at the time of commencement of
the proceedings” or
had been the child’s home state within six months before
commencement of the proceeding and the child is absent
from this state because of his or her removal or retention
by a person claiming his or her custody or for other rea-
sons, and a parent or person acting as parent continues to
live in this state.
§ 43-1203(1)(a). The NCCJA defined “home state” as the “state
in which the child immediately preceding the time involved
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lived with his or her parents, a parent, or a person acting as
parent, for at least six consecutive months.” § 43-1202(5).
These “home state” provisions are substantially similar to
the UCCJEA.
However, the NCCJA provided another means for a
Nebraska court to exercise jurisdiction if Nebraska was not
the home state, an alternative eliminated from the UCCJEA.
Specifically, the NCCJA provided that a Nebraska court may
nonetheless exercise jurisdiction if “[i]t is in the best inter-
est of the child” because the child and his or her parents
“have a significant connection with this state” and “there is
available in this state substantial evidence concerning the
child’s present or future care, protection, training, and per-
sonal relationships.” § 43-1203(1)(b). See, also, In re Interest
of Kelley D. & Heather D., 256 Neb. 465, 590 N.W.2d 392
(1999) (paramount consideration in determining whether state
is convenient forum under NCCJA is determination of what
court is most able to act in best interests of child); State ex
rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994)
(home state under NCCJA may be overcome by circumstances
of particular case). The end goal of the NCCJA is that litiga-
tion concerning the custody of a child takes place in the state
which can best decide the case. White v. White, 271 Neb. 43,
709 N.W.2d 325 (2006).
Brayden resided with Stacey in Maine for approximately 8
months preceding Mark’s dissolution petition. Consequently,
Nebraska was not the child’s “home state” for purposes of the
NCCJA. However, that does not necessarily end the analy-
sis; the remaining question is whether the best interests of
Brayden were served by the district court’s exercising juris-
diction over the initial custody determination because of a
significant connection with this state and the availability of
substantial evidence in this state. Based upon our review of
the record, we conclude that the district court properly exer-
cised initial jurisdiction over the custody determination under
this analysis.
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The issue of the district court’s exercise of initial jurisdic-
tion is complicated, in part due to the fact that neither party
challenged the court’s exercise of jurisdiction, and thus, the
district court did not make any findings regarding its rea-
sons for accepting jurisdiction. Rather, both parties voluntarily
appeared before the court and presented an agreement for the
court’s approval on all matters relating to the dissolution of
their marriage, including custody and a parenting plan.
We acknowledge that subject matter jurisdiction can be
challenged at any point and cannot be waived through consent.
However, we consider Stacey’s approval of the dissolution
decree as evidence that the district court’s exercise of initial
jurisdiction was in the best interests of Brayden. Specifically,
by exercising jurisdiction and approving the parties’ agree-
ment, the court promoted the best interests of the child through
facilitating the reasonable custody and visitation arrangement
desired by both parents.
Further, Brayden and both parties had a significant con-
nection with Nebraska. Brayden was born in Nebraska and
resided in Nebraska for almost 2 years prior to his removal
to Maine. The parties had lived together in Nebraska for at
least 5 years prior to separation, and Mark continued to reside
in the state. Stacey had been away from Nebraska for only 8
months when Mark filed for divorce. Although no contested
trial took place, due to the parties’ agreement, there would
have existed substantial evidence in Nebraska concerning
Brayden’s care.
The Nebraska Supreme Court, in State ex rel. Grape v. Zach,
247 Neb. 29, 524 N.W.2d 788 (1994), found similar circum-
stances to support the exercise of jurisdiction in Nebraska over
a child custody proceeding under the NCCJA. In Zach, the
child was born in Nebraska and lived in Nebraska for 3 years
prior to removal by the mother, the mother sought a custody
determination from a Nebraska district court, and the child’s
father resided in Nebraska. The court found that the child and
father both had a significant connection with Nebraska. Id.
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Here, the same considerations apply in determining that the
initial exercise of jurisdiction was appropriate, namely that
Brayden was born and lived in Nebraska for a period of time,
Mark continued to reside in Nebraska, and they both had a sig-
nificant connection with Nebraska.
Given the parties’ agreement regarding custody and parent-
ing matters, it was appropriate for the district court to accept
and exercise jurisdiction at the time of the entry of the decree.
For the district court to decline to exercise jurisdiction at that
time would have needlessly delayed the marital dissolution and
resolution of custody and visitation matters, against the best
interests of Brayden.
Given our determination that the district court properly exer-
cised jurisdiction over the initial custody determination, we
next consider whether the court correctly exercised continuing
jurisdiction over the modification complaint in accordance with
the UCCJEA.
(b) Continuing Jurisdiction
Under UCCJEA
[8,9] A district court has exclusive and continuing jurisdic-
tion under the UCCJEA over custody and visitation issues
if the court made the initial child custody determination in
accordance with Neb. Rev. Stat. § 43-1238 (Reissue 2008).
Neb. Rev. Stat. § 43-1239(a) (Reissue 2008). As established
by § 43-1238 of the UCCJEA, in order for a state to have
exercised initial jurisdiction over a child custody dispute,
that state must have been the child’s home state or fall under
limited exceptions to the home state requirement specified
by the act. See Carter v. Carter, 276 Neb. 840, 758 N.W.2d
1 (2008). Unlike the NCCJA discussed above, the UCCJEA
does not contain the alternative analysis allowing jurisdiction
to be established in Nebraska when it is not the child’s home
state but when it is in the best interests of the child to exer-
cise jurisdiction.
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[10-12] Exclusive and continuing jurisdiction remains with
the district court under the UCCJEA either until jurisdiction is
lost under § 43-1239(a) or until the court declines to exercise
jurisdiction under Neb. Rev. Stat. § 43-1244 (Reissue 2008) on
the basis of being an inconvenient forum. See Watson v. Watson,
272 Neb. 647, 653, 724 N.W.2d 24, 29 (2006). In Watson, both
parents and the child resided in Nebraska at the time the decree
was entered, the mother subsequently was granted permission
to move the child to Maryland, and the Supreme Court held
that continuing jurisdiction remained in Nebraska unless it
was lost or the court declined to exercise it. Jurisdiction is lost
under § 43-1239(a) if neither the child nor the child and one
parent have a significant connection with Nebraska and sub-
stantial evidence pertaining to custody is no longer available in
the state, or if a court determines that the child and parents no
longer reside in Nebraska. § 43-1239(a)(1). The UCCJEA lists
evidence concerning the child’s care, protection, training, and
personal relationships as relevant evidence regarding custody.
§ 43-1239(a)(1).
[13] Stacey’s primary argument is that the district court did
not have continuing jurisdiction over this case because it did
not make the initial child custody determination in accordance
with the UCCJEA. While Stacey’s argument is technically
correct, its application to the facts of this case would lead to
an absurd and unjust result. This is so because the UCCJEA
was not in existence at the time the initial custody determina-
tion was made. We agree with Stacey that under the “home
state” provisions of the UCCJEA, § 43-1238(a), Nebraska did
not have jurisdiction at the time of the initial custody deter-
mination. However, as we have determined above, Nebraska
did properly exercise jurisdiction under the provisions of the
NCCJA in existence at that time. Thus, we conclude that the
court properly applied continuing jurisdiction over the cus-
tody of Brayden under § 43-1239(a). See Chase 3000, Inc.
v. Nebraska Pub. Serv. Comm., 273 Neb. 133, 728 N.W.2d
560 (2007) (construing statute, appellate court will try if
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possible to avoid construction which would lead to absurd,
unconscionable, or unjust results), superseded by statute on
other grounds as stated in Telrite Corp. v. Nebraska Pub. Serv.
Comm., 288 Neb. 866, 852 N.W.2d 910 (2014).
Further, the district court’s jurisdiction was not lost under
§ 43-1239(a) of the UCCJEA. Continuing jurisdiction was
proper because Brayden had a significant connection with
Nebraska through his annual summer visitation; substantial
evidence was available in Nebraska regarding his “care, pro-
tection, training, and personal relationships,” § 43-1239(a)(1);
and Mark continued to reside in Nebraska from the time of the
dissolution through the proceedings at issue. See, also, Watson
v. Watson, supra, quoting Grahm v. Superior Court, 132 Cal.
App. 4th 1193, 34 Cal. Rptr. 3d 270 (2005) (as long as par-
ent remains in state of original custody determination, only
that state may determine when relationship between child and
remaining parent has deteriorated to point that jurisdiction is
lost, and if remaining parent continues to exercise visitation
rights, this relationship is strong enough to oppose termination
of jurisdiction).
Jurisdiction remains in Nebraska so long as the require-
ments of § 43-1239(a) are met, as they were in this case. See
Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006). The
district court’s exercise of initial jurisdiction under the NCCJA
was not in error, and the court properly exercised continuing
jurisdiction over the custody modification at issue pursuant to
the UCCJEA.
Stacey’s first assignment of error is without merit.
2. Temporary Custody Order
Stacey alleges that the district court abused its discretion in
granting temporary custody to Mark and allowing Brayden to
remain in Nebraska prior to a full evidentiary hearing.
[14] The grant of temporary custody is not a final, appealable
order, as it does not affect a substantial right. See Carmicheal
v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010). See, also,
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Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013)
(ordinarily, order modifying dissolution decree to grant per-
manent change of child custody would be final and appeal-
able as order affecting substantial right made during spe-
cial proceeding).
Stacey relies on the Nebraska Supreme Court’s holding in
Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000), in
support of her claim that the temporary custody order was
inappropriate. Jack was a removal case in which the Supreme
Court discouraged trial courts from granting temporary orders
allowing removal of children to another jurisdiction prior to
ruling on permanent removal. Instead, the Supreme Court
encouraged the prompt conducting of a full hearing on per-
manent removal. Id. We find no merit to Stacey’s argument
based upon Jack. First, this is not a removal case; rather, it
is a custody modification case in which the trial court had
authority to enter a temporary order pending trial. Second,
even if the proposition in Jack were applicable to this case, the
Supreme Court in Jack did not determine that the temporary
order of removal was appealable; rather, it simply discouraged
the practice.
Because the temporary order herein was itself not a final,
appealable order and was effectively adopted by the final order,
we focus in the following section on whether the final order
modifying custody was an abuse of discretion.
Stacey’s second assignment of error is without merit.
3. M aterial Change
in Circumstances
Stacey asserts that the district court erred in finding that a
material change in circumstances existed to modify custody
and that the modification was in Brayden’s best interests. She
argues that the court abused its discretion in finding Brayden
had articulated a sufficient reason to relocate, that her 11
years of sole parenting were not given adequate deference,
and that she had a healthy and good relationship with Brayden
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before the complaint was filed in 2013. She also alleges there
was little to no evidence that a change in custody would ben-
efit the general health and social behavior of Brayden.
[15,16] In a child custody modification case, first, the
party seeking modification must show a material change in
circumstances, occurring after the entry of the previous cus-
tody order and affecting the best interests of the child. Next,
the party seeking modification must prove that changing the
child’s custody is in the child’s best interests. State on behalf
of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230
(2015). See, also, Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015) (party seeking modification of child custody bears
burden); McDonald v. McDonald, 21 Neb. Ct. App. 535, 840
N.W.2d 573 (2013) (ordinarily, custody of minor child will
not be modified unless there has been material change in cir-
cumstances showing custodial parent is unfit or best interests
of child require such action). A material change in circum-
stances 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. Schrag
v. Spear, supra.
[17] Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2014) of
Nebraska’s Parenting Act sets forth a nonexhaustive list of
factors to be considered in determining the best interests of a
child in regard to custody. Such factors include the relation-
ship of the minor child with each parent, the desires of the
minor child, the general health and well-being of the minor
child, and credible evidence of abuse inflicted on the child by
any family or household member. Specifically regarding the
desires of a minor child, the statute provides that the court
should consider “[t]he desires and wishes of the minor child,
if of an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound rea-
soning.” § 43-2923(6)(b). The Nebraska Supreme Court in
applying this provision has stated that while the wishes of a
child are not controlling in the determination of custody, if
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a child is of sufficient age and has expressed an intelligent
preference, the child’s preference is entitled to consideration.
Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). See,
also, Adams v. Adams, 13 Neb. Ct. App. 276, 691 N.W.2d 541
(2005). The Supreme Court has also found that in cases where
the minor child’s preference was given significant consid-
eration, the child was usually over 10 years of age. Vogel v.
Vogel, supra.
The district court found that a material change in circum-
stances had occurred subsequently to the decree which justified
modification of custody and that such a modification is in the
best interests of Brayden. The court specifically focused on
Brayden’s desire to reside with Mark in Nebraska, concluding
that Brayden was articulate and that his decision was based on
sound reasoning.
Based upon our de novo review, we find no abuse of dis-
cretion in the district court’s finding of a material change in
circumstances that justified granting Mark physical custody
of Brayden and its finding that such a modification was in
Brayden’s best interests.
[18] Mark and Stacey presented conflicting testimony
regarding whether a change in custody would be in Brayden’s
best interests, including whether Brayden actually desired
to change his permanent residence to Nebraska and whether
his reasons were sound. Conflicting testimony was also pro-
vided regarding the academic and social benefits available to
Brayden in Nebraska and Maine, respectively. In contested
custody cases, where material issues of fact are in great dis-
pute, the standard of review and the amount of deference
granted to the trial judge, who heard and observed the wit-
nesses testify, are often dispositive of whether the trial court’s
determination is affirmed or reversed on appeal. Schrag v.
Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). The trial court in
this case had an opportunity to observe the testimony of both
parties, as well as the testimony of Brayden. The court found
that Brayden, through his trial testimony, expressed a clear
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and intelligent desire to reside with Mark; accordingly, his
preference was entitled to consideration.
Upon our review, we can find no abuse of discretion in the
district court’s consideration of Brayden’s articulated reasons
for wanting to live with Mark. Brayden was of sufficient age
(13 at the time of trial) and expressed an intelligent custody
preference based on sound reasoning. Brayden, in his own
words, testified to preferring life in Nebraska due to the com-
fortable and relaxed environment at Mark’s house, as opposed
to the home in Maine which he shared with five other people
and where he was exposed to fighting and arguing between
Stacey and his stepfather. He also expressed the satisfaction
he receives from interacting with Mark on a regular basis.
Additionally, Brayden feels that he learns more at Plattsmouth
Middle School and has “made way more friends” in Nebraska.
Brayden desires to reside with Mark because he believes it is
“a better place” to live.
Most importantly, the record shows that Brayden’s desire
to live with Mark was not a hasty decision, but, rather,
was thoughtfully developed over a period of a couple years.
Brayden understood that this change would be permanent.
Because Brayden is of an age of comprehension and clearly
expressed his desire to reside with Mark, having formed an
intelligent preference based on sound reasoning, we give
Brayden’s preference significant consideration in our de
novo review.
While the desire of Brayden to move to Nebraska formed
the primary basis for the custody modification, the court also
had an opportunity to consider other factors. These included
Brayden’s academic performance, extracurricular activities,
friends, living environment, and general quality of life in both
Nebraska and Maine. The record indicates that Brayden has
been thriving both socially and academically in Nebraska,
although he may have enjoyed similar benefits in Maine. The
court also was in a position to consider that Stacey had been
the primary caregiver for Brayden for 11 years, along with the
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generally positive relationship between Brayden and Stacey
prior to the filing of the modification complaint. On the other
hand, Brayden has a very positive relationship with Mark and
has been thriving in his custody.
Upon our de novo review, we conclude that the district
court did not abuse its discretion in finding that a material
change in circumstances existed and that Brayden’s best inter-
ests would be served through a custody modification.
Stacey’s final assignment of error is without merit.
VI. CONCLUSION
Upon our de novo review, we conclude that the district
court did not abuse its discretion in exercising jurisdiction over
the complaint to modify, granting Mark temporary custody
of Brayden, and finding a material change in circumstances
affecting the best interests of Brayden, justifying a custody
modification. We therefore affirm.
A ffirmed.