Bryant v. Bryant , 28 Neb. Ct. App. 362 ( 2020 )

Nebraska Supreme Court Online Library
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Nebraska Court of Appeals Advance Sheets
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BRYANT v. BRYANT
Cite as 28 Neb. Ct. App. 362
Patrick G. Bryant, Jr., appellee, v.
Stephanie R. Bryant, appellant.
___ N.W.2d ___
Filed May 12, 2020. No. A-19-379.
1. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
2. Right to Counsel: Effectiveness of Counsel. A pro se litigant will
receive the same consideration as if he or she had been represented by
an attorney, and, concurrently, that litigant is held to the same standards
as one who is represented by counsel.
3. 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.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
5. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
6. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue. However, when evidence is
in conflict, 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.
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7. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
8. 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.
9. ____. In appellate proceedings, the examination by the appellate court is
confined to questions which have been determined by the trial court.
10. Child Custody: Jurisdiction: States. For a state to have jurisdiction
to make an initial child custody determination, it must either be the
“home state” as defined by the Uniform Child Custody Jurisdiction and
Enforcement Act or fall under the limited exceptions to the home state
requirement specified by the act. Generally speaking, Neb. Rev. Stat.
§ 43-1238(a)(1) (Reissue 2016) 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 jursdiction, even if it is not in the child’s
home state.
11. Divorce: Child Custody. When custody of a minor child is an issue in a
proceeding to dissolve the marriage of the child’s parents, child custody
is determined by parental fitness and the child’s best interests.
12. Child Custody. When determining the best interests of the child in
deciding custody, a court must consider, at a minimum, (1) the relation-
ship of the minor child to each parent prior to the commencement of the
action; (2) the desires and wishes of a sufficiently mature child, if based
on sound reasoning; (3) the general health, welfare, and social behavior
of the child; (4) credible evidence of abuse inflicted on any family or
household member; and (5) credible evidence of child abuse or neglect
or domestic intimate partner abuse.
13. Visitation. The Parenting Act provides that the best interests of a
child require a parenting plan that provides for a child’s safety, emo-
tional growth, health, stability, physical care, and regular school attend­
ance, and which promotes a child’s continued contact with his or her
families and parents who have shown the ability to act in the child’s
best interests.
Appeal from the District Court for Otoe County: Julie D.
Smith, Judge. Affirmed.
Stephanie R. Bryant, pro se.
Abbie J. Widger and Morgan C.H. Kristensen, of Johnson,
Flodman, Guenzel & Widger, for appellee.
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BRYANT v. BRYANT
Cite as 28 Neb. Ct. App. 362
Pirtle, Bishop, and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Stephanie R. Bryant appeals from the decree of dissolution
of her marriage to Patrick G. Bryant, Jr., that was entered by
the district court for Otoe County. On appeal, Stephanie chal-
lenges the district court’s jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) and its
ultimate custody determination. For the reasons that follow, we
affirm the decision of the district court.
BACKGROUND
On October 6, 2017, Patrick filed a complaint for legal
separation in the district court for Otoe County. He alleged
that both Stephanie and he had been residents of Nebraska
since July 7, 2017, and that their children had been living
with him from that date through the time of filing. Patrick
further alleged that an emergency existed to warrant awarding
him temporary custody of the children and that, without such
an order, Stephanie would remove the children from Nebraska
and “upend [their] stability.” On the same date, Patrick filed
motions for temporary custody and an ex parte order grant-
ing him temporary custody. He alleged that Stephanie had
stated an intention to remove the children from Nebraska and
had arrived at their school in Syracuse, Nebraska, expressing
a desire to remove them. In his motion for temporary cus-
tody, he noted that no other custody determination enforce-
able under the UCCJEA had been entered in any other
state. In support of his motions, Patrick filed an affidavit
which detailed his reasons for seeking temporary custody.
On October 10, the court entered an ex parte order granting
Patrick temporary custody of the children and setting the mat-
ter for a temporary hearing.
On October 12, 2017, Stephanie filed a motion to vacate,
motion to dismiss, and notice of hearing. She asserted that
the district court lacked jurisdiction to make an initial child
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custody determination and that Illinois was the children’s
home state. On November 6, the district court entered an
“Order for Hearing.” In the order, the court recited that it
had participated in a conference call with a judge from “the
Twelfth Judicial Circuit Court, Will County, Illinois,” pursu-
ant to the UCCJEA, specifically Neb. Rev. Stat. § 43-1235(c)
(Reissue 2016). The district court found that a proceeding
had been filed in Illinois regarding custody of the minor chil-
dren. As a result, the court ordered that a hearing be held on
December 5 that would be conducted jointly with the Illinois
court, the purpose of which would be to determine the appro-
priate forum state pursuant to the UCCJEA.
On December 5, 2017, the joint hearing under the UCCJEA
was held. Stephanie appeared personally in Illinois with coun-
sel, but was also represented by counsel in Otoe County.
Patrick appeared personally in Otoe County with counsel, but
was also represented by counsel in Illinois. The two court-
rooms were connected telephonically for the hearing.
During the hearing, both courts acknowledged that Illinois
was the children’s home state for purposes of the UCCJEA.
The hearing proceeded on the arguments of counsel in both
states. Patrick argued that the Illinois court ought to find that
Illinois is an inconvenient forum and decline jurisdiction,
which would allow for the matter to be heard in Nebraska.
Patrick argued that the parties had been planning a move
to Omaha, Nebraska, for months before it actually occurred
in July 2017. Patrick was retiring from his service with the
U.S. Coast Guard, and he and Stephanie had agreed to uti-
lize the military’s moving services to move to Nebraska upon
Patrick’s retirement. He also argued that he had traveled to
Nebraska prior to the move, in search of employment and
for purposes of renting or purchasing a home for the fam-
ily, and that he had secured both employment and housing in
Nebraska. Patrick argued that Stephanie was aware of their
plans to move to Nebraska, referencing a social media posting
Stephanie made, which mentioned them making a “‘transition
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BRYANT v. BRYANT
Cite as 28 Neb. Ct. App. 362
back to Nebraska’” facilitated by movers who were “‘com-
ing on July 5th. So change is coming, ready or not.’” Patrick
further argued that Illinois was an inconvenient forum because
neither Stephanie nor he had any home or personal property in
Illinois, both of their extended families lived in Nebraska, he
had obtained employment in Nebraska, and their children had
been enrolled in school in Syracuse since August 2017.
Stephanie, on the other hand, argued that there was a long-
standing discussion between the parties whereby she expressed
a desire not to move to Nebraska. She said that Omaha was
“not a peaceful environment” and that it had “too many trig-
gers” for her. Stephanie also alleged that Patrick had subjected
her to physical domestic abuse. Additionally, Stephanie noted
that the witnesses she would call at trial resided in Illinois.
The Illinois court found that it was clear for months that both
parties planned to move to Nebraska and that Stephanie did not
indicate an unwillingness to move “until the last minute.” The
court further found that there was no evidence of forum shop-
ping or evidence that the children were removed from Illinois
for any improper purpose. Accordingly, the Illinois court deter-
mined that it would grant Patrick’s motion to dismiss based on
inconvenient forum with the understanding that the Nebraska
court would accept jurisdiction of the matter. The Nebraska
court accepted jurisdiction. There is no indication in the record
that any appeal was taken in Illinois from the dismissal of the
case there.
Stephanie filed a motion for temporary custody on December
5, 2017. Patrick filed a similar motion for temporary custody
on December 7, shortly after the UCCJEA hearing. The court
heard arguments on both parties’ motions on December 12. It
awarded the parties temporary joint legal custody and awarded
temporary physical custody to Patrick. It awarded Stephanie
parenting time every Wednesday from 5 to 8 p.m. and every
other weekend from 6 p.m. on Fridays to 6 p.m. on Sundays.
The court also ordered Stephanie to pay temporary child sup-
port of $472 per month.
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Cite as 28 Neb. Ct. App. 362
On July 12, 2018, Patrick filed an amended complaint
for dissolution of marriage. On November 28, counsel for
Stephanie was allowed to withdraw. Stephanie has proceeded
as a self-represented litigant since that time and continues
in that capacity on appeal. Trial was held on February 7 and
March 7, 2019. The evidence revealed that the parties were
married on November 14, 2009, while Patrick was an active
duty member of the Coast Guard. At that time, the parties lived
on Martha’s Vineyard, Massachusetts. Their son, John B., was
born in September 2010. John has had severe food allergies
and recurrent eczema throughout his life. Patrick was later
transferred to Manistee, Michigan, where their daughter, Cora
B., was born in May 2012. The family thereafter moved to
Bolingbrook, Illinois, again on account of a military transfer.
Although Stephanie had previously worked in pharmaceutical
sales, she described herself as being a stay-at-home “military
mom” once John and Cora were born.
Patrick planned to retire from the Coast Guard in April
2017, after which the family planned to move to Omaha.
Stephanie mailed a Christmas card in December 2016 that said
it would be the family’s last Christmas in Illinois and that they
looked forward to returning to Nebraska. Patrick described the
move to Nebraska, where both parties were originally from
and still had family members, as a “fresh start” for them.
Patrick further testified that Nebraska remained his official
state of residence throughout his military career. One of
Patrick’s aunts testified that she attended Patrick’s retirement
party and discussed with Stephanie their plans to move to
Nebraska. His aunt testified that Stephanie described the move
as a nice opportunity for John and Cora to be closer to their
cousins and other family members. Nevertheless, Patrick char-
acterized Stephanie as having a “flavor of the week” when dis-
cussing where they would move upon his retirement, because
she would mention returning to Michigan or Massachusetts
alongside discussions of moving to Nebraska.
Patrick’s mother, Sharon Wellenshiek, helped Patrick find a
home in Omaha that the family could rent, and Patrick entered
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into a lease on a suitable home. Wellenshiek said that she
knew that Patrick had applied for a position with the Omaha
Fire Department, and Patrick testified that he was also in talks
regarding a construction job in Omaha at that time.
After postponing the move twice over the course of 3
months, Patrick arranged for military movers to be at their
Illinois home on July 7, 2017. Patrick also arranged for
Wellenshiek, and a friend of hers, Nancy Hauschild, to help
with the move, and they arrived on July 4. Wellenshiek said
that she also spoke with Stephanie before arriving at the home
and described a call with her in which she was “hysterical
and — and kind of yelling over the phone and crying.” When
Wellenshiek and Hauschild arrived at the home, they discussed
with Stephanie when the movers would arrive and Wellenshiek
went to work washing and folding laundry and watching after
John and Cora. Meanwhile, Hauschild helped prepare meals
for the family while they were packing.
Stephanie stayed at home that evening while Patrick, John,
Cora, Wellenshiek, and Hauschild went to a fireworks show.
When they returned, the stacks of clothing that Wellenshiek
had washed and folded were strewn about the floor, and toys
were strewn about the basement. Stephanie acknowledged
that she had strewn the clothing and toys around the house,
and she told Wellenshiek that she had wanted to do more.
There were also broken picture frames and shattered glass
shards in the backyard. Stephanie told Hauschild that she had
thrown her wedding photographs to the ground from her bed-
room balcony.
Movers and a moving truck arrived on the morning of July
7, 2017, which Hauschild described as “a very stressful morn-
ing.” She testified that Stephanie’s behavior became “very
erratic,” and Hauschild asked her whether she ought to take
some of her prescribed anxiety medication. Hauschild said
that Stephanie replied that she did not need to take her medi-
cation because she had “‘God and prayer and purified lemon
water’” instead. Stephanie also said that she was not going
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to Nebraska, that Omaha had too many “‘triggers,’” and that
her family did not support her. Patrick testified that he went
to the local police station that morning to discuss what rights
he had to take John and Cora to Nebraska if Stephanie would
not go along. He said that he anticipated that Stephanie would
“be angry but be three hours behind [them] on the road”
because that was “typical” behavior of hers. Patrick further
said that he was crying and begging Stephanie to get in her
car and drive with them to Nebraska. After police officers and
paramedics arrived and consulted with Patrick about whether
to take the children to Nebraska as planned, Patrick left in
his car with the children and Hauschild for Nebraska around
5 p.m., while Stephanie remained behind. Patrick said that he
felt that the children were safer with him because they were
effectively homeless and without any possessions in Illinois
at that time. Hauschild said that she drove while Patrick
called their pastor and Stephanie’s brother. Hauschild noted
that Patrick was upset because he forgot to leave cash for
Stephanie when they left. Instead of going to the leased home
in Omaha, Patrick and the children went to Wellenshiek’s
home in Syracuse.
The parties spoke by telephone on July 8, 2017, at which
time Stephanie maintained that she did not want to live in
Nebraska. She told Patrick that she was going to drive to
Syracuse, pick up John and Cora, and take them to Michigan
or Massachusetts. Patrick responded that he could not let that
happen to John and Cora because Stephanie had no money,
no job, and no home. In August 2017, Patrick, John, and Cora
moved out of Wellenshiek’s home into a rental house owned by
Wellenshiek. Wellenshiek helped Patrick by paying to break his
lease on the Omaha home. Because the movers had delivered
all of Patrick and Stephanie’s possessions to the Omaha home,
Patrick had them moved to an Omaha storage facility and pro-
vided a key to Stephanie. Patrick then sought employment in
the Syracuse area. At the time of trial, he was working for a
trucking company.
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Another of Patrick’s aunts testified that she sees John and
Cora numerous times each week because they attend an after-
school program near her work in Syracuse. She said that she
took Cora to school for a period of time immediately after
their move and noted that it was difficult and that at first Cora
did not want to attend. She also said that Cora was “very
babyish” but that both John and Cora relaxed and grew calmer
and happier over time. She said that they are fun, happy,
and “goofy” and that Patrick is a “normal dad” who keeps a
routine for the children. Similarly, Wellenshiek testified that
John and Cora were very active and getting good grades in
school. She said that it was evident that they love both Patrick
and Stephanie.
Patrick also described that John and Cora have seemed
calmer since he separated from Stephanie. After their move to
Syracuse, he placed John and Cora in counseling from which
they were discharged in March 2018. He testified that John’s
nervous ticks of playing with his hair and picking at his skin
have decreased or ceased entirely. Patrick further testified that
both John and Cora do well in school, have friends and get
along with others, and are involved in Sunday school, baseball,
T-ball, and soccer.
Stephanie moved to Nebraska later in 2017 and primar-
ily stayed with family members, including her mother and
brother, before moving into a community shelter home for
women on March 13, 2018. She testified that she was oper-
ating a poetry and photography business, from which she
earned approximately $1,000 in 2018. Stephanie said, “I’m
very capable of working.” She was hired in the spring of 2018
to work in banquet catering, but she did not hold that job for
very long. She testified that she worked as a part-time gym-
nastics coach for 6 to 9 hours per week, earning $13 per hour.
Stephanie further testified that she had been earning $169,000
per year when she worked in pharmaceutical sales before John
and Cora were born but added that was “not to say that [she]
would go back into that arena.” The evidence established that
Stephanie did not pay her temporary child support obligation
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as ordered. As of January 25, 2019, Stephanie owed overdue
child support in the amount of $6,230.16.
Stephanie testified that she had exercised her right to par-
enting time for the most part. She said that the last overnight
parenting time she had with John and Cora was on Christmas
Eve 2018, which she hosted at her mother’s home. Prior to
that, the most recent overnight parenting time was the first
weekend in November, which she hosted at her brother’s
home. A friend whom Stephanie met when they both lived
at the community shelter home testified that she allowed
Stephanie to use her apartment for an overnight visitation with
John and Cora. She said that Stephanie was welcome to return
to her home with the children to exercise overnight parenting
time and also testified that some mothers had visitations with
their children at the community shelter home. Stephanie stated
that she would no longer spend overnights at her mother’s,
brother’s, or friend’s homes, however.
Patrick produced a calendar that documented when Stephanie
exercised her overnight parenting time. His records indicated
that she had overnight parenting time on approximately half
of the possible weekends between January and October 2018.
She more regularly exercised parenting time on Wednesday
evenings but occasionally missed those as well, including,
for example, a stretch of 3 weeks in October. Patrick noted
that Stephanie sometimes rescheduled parenting time from
Wednesday to Thursday. Patrick also testified that he had
provided a hotel room on occasion for Stephanie to exercise
parenting time with the children and had allowed Stephanie
to spend hours with Cora in his home when Cora was ill. A
witness who had observed Stephanie’s parenting described her
preparing special snacks for John to take to school on account
of his allergies. Another witness, who had observed both
Stephanie and Patrick with their children, testified that both of
them were “loving parents.”
While Patrick acknowledged that he had “bear-hugged”
Stephanie “to get her to calm down” during arguments, he
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denied ever hitting her. Patrick also denied various alleged
acts of abuse, including pushing Stephanie against a wall
during the first year of their marriage, grabbing Stephanie,
throwing her onto their bed, and shaking her shortly after
Cora was born. He testified that their arguments often resulted
in them yelling “horrible things” at each other. He testified
that Stephanie threw things at him, such as car keys, dur-
ing their arguments. Stephanie testified that Patrick verbally
abused her whenever she would discuss wanting to move back
to Massachusetts.
Patrick acknowledged that he had been treated for alcohol
abuse prior to the parties’ engagement and marriage. He tes-
tified that he does not abuse alcohol presently, drinks only
occasionally, and never drinks when John and Cora are in
his care.
Stephanie testified that several incidents of abuse did occur
during the course of the marriage. She further testified that
she had been the primary caregiver for the children and was
better suited to care for their needs, particularly in light of
John’s dietary restrictions. She testified that she was seeking
to obtain more stable employment and housing, but had not
secured either as of the time of trial. On cross-examination,
she admitted that she had not exercised all of her court-ordered
parenting time.
On March 18, 2019, the court entered its decree of disso-
lution. The court determined that both Stephanie and Patrick
were fit parents and awarded them joint legal custody of John
and Cora. The court awarded sole physical care and custody
of the children to Patrick, finding that Stephanie was not
presently in a position to have physical custody of the chil-
dren. The court devised a parenting plan that gave Stephanie
parenting time on every other weekend and on Wednesday
afternoons. The court directed Stephanie to pay child support
of $95 per month to Patrick. The court specifically found that
domestic abuse had not been established by a preponderance
of the evidence. Additionally, the court divided the parties’
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property and entered additional orders, none of which have
been assigned as error on appeal.
Stephanie now appeals.
ASSIGNMENTS OF ERROR
[1,2] Across two sections both titled “Assignments of
Errors,” Stephanie assigns myriad errors that are inconsistently
or inaccurately enumerated. Moreover, between those two sec-
tions, there is a mixture of duplicative and original errors
assigned. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error. Diamond v. State,
302 Neb. 892, 926 N.W.2d 71 (2019). As such, many of
Stephanie’s assignments of error cannot be addressed. A pro
se litigant will receive the same consideration as if he or she
had been represented by an attorney, and, concurrently, that
litigant is held to the same standards as one who is represented
by counsel. Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d
153 (2015).
Upon our review, we consolidate and restate the errors that
Stephanie both assigns and argues. Those alleged errors are
(1) that the court should not have accepted jurisdiction of
the child custody determination and (2) that the court should
have awarded physical custody of John and Cora to Stephanie.
While Stephanie purports to assign many more errors than the
two we will review on appeal, she does not properly and spe-
cifically assign or argue those other errors, and, thus, as stated
above, we will not consider them.
STANDARD OF REVIEW
[3,4] In considering whether jurisdiction exists under the
UCCJEA, a jurisdictional question that does not involve a
factual dispute is determined by an appellate court as a matter
of law, which requires an appellate court to reach a conclu-
sion independent from the trial court. DeLima v. Tsevi, 301
Neb. 933, 921 N.W.2d 89 (2018). Statutory interpretation is
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a question of law, which an appellate court resolves indepen-
dently of the trial court. Id.
[5-7] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge.
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
This standard of review applies to the trial court’s determina-
tions regarding custody, child support, division of property,
alimony, and attorney fees. Id. In a review de novo on the
record, an appellate court is required to make independent
factual determinations based upon the record, and the court
reaches its own independent conclusions with respect to the
matters at issue. Id. However, when evidence is in conflict, 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. Id. A judicial
abuse of discretion exists if the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. Id.
ANALYSIS
Jurisdiction.
Stephanie first argues that the district court for Otoe County
erred in accepting jurisdiction of this matter, because it had
been many years since the parties last lived in Nebraska, and
that the Illinois court was the appropriate venue. She alleges
that the district court thereby “violated both the [UCCJEA] in
collaboration with the Parental Kidnapping Prevention Act.”
Patrick argues in reply that Nebraska was the correct venue for
this matter and that the Nebraska court therefore did not err in
accepting jurisdiction of the matter. We find that the Nebraska
court had jurisdiction to make an initial child custody determi-
nation in this matter.
[8] We first consider Stephanie’s invocation of the “Parental
Kidnapping Prevention Act.” We decline to consider what, if
any, effect the act has on this matter, because Stephanie raises
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this issue for the first time on appeal. An appellate court will
not consider an issue on appeal that was not presented to or
passed upon by the trial court. Wolter v. Fortuna, 27 Neb. Ct. App.
166, 928 N.W.2d 416 (2019).
[9] We next address Stephanie’s arguments that seem
directed toward the Illinois court’s decision not to exercise
jurisdiction under the UCCJEA. In appellate proceedings, the
examination by the appellate court is confined to questions
which have been determined by the trial court. Watson v.
Watson, 272 Neb. 647, 724 N.W.2d 24 (2006). The only deci-
sion our district court made was to accept jurisdiction of this
matter after the Illinois court declined to exercise jurisdiction
over the children. Any claim of error by the Illinois court
would have to be appealed to the appellate courts of that state.
We cannot and will not review arguments related to the Illinois
court’s declination to exercise jurisdiction.
[10] As we have previously explained in cases involving
the UCCJEA, for a state to have jurisdiction to make an ini-
tial child custody determination, it must either be the “home
state” as defined by the UCCJEA or fall under the limited
exceptions to the home state requirement specified by the
UCCJEA. DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89
(2018). Generally speaking, Neb. Rev. Stat. § 43-1238(a)(1)
(Reissue 2016) 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. DeLima v. Tsevi, supra.
Section 43-1238 of the UCCJEA sets forth the circumstances
under which a court of this state has jurisdiction to make an
initial child custody determination as follows:
(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
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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 per-
sonal 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
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.
In the present case, the courts agreed that Illinois was the
children’s home state. The Illinois court declined to exer-
cise jurisdiction, however, determining that Nebraska was the
more appropriate or convenient forum. As such, this case
falls directly within the scope of the exception enumerated
in § 43-1238(a)(2) and (3). We note that both Stephanie and
Patrick had significant connections to Nebraska, including
the location of both of their extended families. Both par-
ties lived in Nebraska as of the time of hearing. Patrick had
obtained employment and was renting a home in Syracuse,
and Stephanie lived at a community shelter home in Omaha.
John and Cora were enrolled in Syracuse schools. Nebraska
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also housed substantial evidence regarding the parents’ care of
John and Cora, including witnesses such as Patrick’s mother
and aunt and Stephanie’s brother, each of whom observed the
parties parenting John and Cora and witnessed the parties’
relationship throughout its duration. Thus, the Nebraska court
had jurisdiction under the UCCJEA to make an initial custody
determination in this matter.
Custody.
Stephanie argues that the district court erred in awarding
physical custody of John and Cora to Patrick. She contends
that she offered superior care for the children, especially in
light of John’s allergies and eczema, as she was a stay-at-
home mother. Patrick argues in reply that the district court did
not err in finding that awarding him physical custody of John
and Cora promoted their best interests. We affirm the district
court’s order with respect to custody.
[11] When custody of a minor child is an issue in a pro-
ceeding to dissolve the marriage of the child’s parents, child
custody is determined by parental fitness and the child’s best
interests. Olson v. Olson, 27 Neb. Ct. App. 869, 937 N.W.2d 260
(2019). When both parents are found to be fit, the inquiry for
the court is the best interests of the children. Id.
[12,13] When determining the best interests of the child
in deciding custody, a court must consider, at a minimum,
(1) the relationship of the minor child to each parent prior to
the commencement of the action; (2) the desires and wishes
of a sufficiently mature child, if based on sound reasoning;
(3) the general health, welfare, and social behavior of the
child; (4) credible evidence of abuse inflicted on any fam-
ily or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse. State on
behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d
692 (2019). See Neb. Rev. Stat. § 43-2923 (Reissue 2016).
The Parenting Act also provides that the best interests of a
child require a parenting plan that provides for a child’s safety,
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emotional growth, health, stability, physical care, and regular
school attendance, and which promotes a child’s continued
contact with his or her families and parents who have shown
the ability to act in the child’s best interests. State on behalf of
Kaaden S. v. Jeffery T., supra.
The district court in this matter determined that both par-
ents were fit and that neither Stephanie nor Patrick seriously
or specifically contended that the other parent was an unfit
parent. Accordingly, custody ought to be devised to advance
the best interests of the children. We find that the court’s
award of physical custody of the children to Patrick is sup-
ported by the evidence. The evidence established that at the
time of trial, Stephanie was not in a position to provide ade-
quate care for the children. She did not have stable housing
or employment. She had not provided support for the children
as previously ordered by the court, and she frequently did
not exercise the parenting time afforded her by the tempo-
rary order. The court’s order contemplates the children’s
general health, welfare, social behavior, emotional growth,
physical care, and regular school attendance. The evidence
demonstrates that at the time of trial, Stephanie was living in
a community shelter home in Omaha while Patrick was rent-
ing a single-family residence in Syracuse. The children were
enrolled in school in Syracuse, where they were performing
well, and they were also engaged in sports and other activities
in Syracuse. The evidence also demonstrates that Patrick has
put himself in a position to provide for the children’s needs.
Patrick is employed and has an established support network of
family members in Syracuse. Based on Stephanie’s testimony,
she was limiting her contact with her own family members
and would no longer exercise overnight parenting time in
their homes. Thus, at the time of trial, awarding physical
custody of John and Cora to Patrick advanced the children’s
best interests.
Finally, we must note that in evaluating the children’s best
interests, courts are also directed to consider credible evidence
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of domestic abuse. The district court concluded that domes-
tic abuse had not been proved in this case. While Stephanie
offered some evidence that Patrick engaged in acts of domestic
abuse, Patrick denied such allegations. He acknowledged, how-
ever, the contentious nature of the parties’ relationship, which
resulted in loud arguments at times. Cognizant that the district
court observed the witnesses and accepted one version of the
facts over the other, we conclude that the court did not abuse
its discretion with respect to its finding that domestic abuse
was not proved in this case.
CONCLUSION
For the foregoing reasons, we affirm the orders of the dis-
trict court which accepted jurisdiction over the child custody
determination herein and which awarded physical custody of
the children to Patrick.
Affirmed.