Hogan v. Hogan, 021221 NESC, S-20-254

Docket NºS-20-254
Opinion JudgeMILLER-LERMAN, J.
Party NameBrooke B. Hogan, appellant, v. Nicholas T. Hogan, appellee.
AttorneyAndrea L. McChesney, of McChesney Family Law Office, for appellant. Dennis G. Whelan, of Slowiaczek Albers, P.C., L.L.O.. for appellee.
Judge PanelHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Case DateFebruary 12, 2021
CourtSupreme Court of Nebraska

308 Neb. 397

Brooke B. Hogan, appellant,

v.

Nicholas T. Hogan, appellee.

No. S-20-254

Supreme Court of Nebraska

February 12, 2021

1.

Child Custody: Jurisdiction: Appeal and Error. The question whether jurisdiction should be exercised under the Uniform Child Custody Jurisdiction and Enforcement Act is entrusted to the discretion of the trial court and is reviewed by an appellate court de novo on the record for abuse of discretion.

2. ___: ___: ___. In considering whether jurisdiction exists under the Uniform Child Custody Jurisdiction and Enforcement Act, a 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.

3. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below.

4. Child Custody: Jurisdiction. Jurisdiction over a child custody proceeding with interstate implications, including one seeking to modify a child custody decision, is governed exclusively by the Uniform Child Custody Jurisdiction and Enforcement Act.

5. ___: ___. Under the Uniform Child Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat. § 43-1239 (Reissue 2016), a state's exclusive and continuing jurisdiction is relinquished when both parties and the children no longer reside in the state.

6. Jurisdiction: Service of Process. A voluntary appearance of a party is equivalent to service of process for purposes of personal jurisdiction.

7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.

[308 Neb. 398] 8. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

9. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

10. ___: ___. A court action taken without subject matter jurisdiction is void.

Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed.

Andrea L. McChesney, of McChesney Family Law Office, for appellant.

Dennis G. Whelan, of Slowiaczek Albers, P.C., L.L.O.. for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Brooke B. Hogan, appellant, and Nicholas T. Hogan, appellee, were divorced in February 2019, in Douglas County, Nebraska. Several months after the decree and parenting plan were entered, Brooke and Nicholas jointly sought permission to move from Nebraska to Arizona, and the district court entered an order modifying the parties' parenting plan accordingly. The parties and the children moved to Arizona. Later the same year, Brooke initiated the present matter when she filed a complaint in the Douglas County District Court to modify the decree and parenting plan, with the ultimate objective of allowing her to move, with the parties' children, back to Nebraska. Nicholas moved to dismiss Brooke's complaint to modify the decree, claiming that under Neb. Rev. Stat. § 43-1239(a)(2) (Reissue 2016), of Nebraska's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the district court lacked subject matter jurisdiction because the [308 Neb. 399] parties and children no longer resided in Nebraska. The district court determined that the parties and children did not reside in Nebraska, that it lacked continuing exclusive jurisdiction over the child custody determination, and that proper jurisdiction of the current issue is with Arizona. The district court dismissed Brooke's complaint to modify. Brooke appeals. We conclude that the district court's jurisdictional ruling was proper and, in so doing, make no comment on the merits of Brooke's complaint to modify. We affirm.

STATEMENT OF FACTS

On February 4, 2019, the district court entered a decree of dissolution of marriage and a parenting plan, which awarded the parties joint legal and physical custody of their minor children, subject to parenting time set forth in the parenting plan.

In April 2019, the parties filed a joint complaint to modify the decree and parenting plan to allow them to move with the children from Nebraska to Arizona. The district court entered the stipulated order. Each party subsequently purchased a home in the Phoenix area, and they moved to Arizona. By the time the children started the school year on August 15, Brooke, Nicholas, and the children were residing in Arizona.

On October 22, 2019, Brooke filed a complaint to modify in the Douglas County District Court, seeking a modification of the parenting plan with the ultimate objective of gaining permission to return with the children to Nebraska. In support of her motion, Brooke stated that she and the children had encountered problems transitioning to living in Arizona. She asserted that she and the children have no friends or family in Arizona and struggled to find safe housing and appropriate schools.

On October 25, 2019, Nicholas entered a voluntary appearance and, on October 30, filed a motion to dismiss the complaint to modify on the basis that the Nebraska court lacked subject matter jurisdiction under § 43-1239(a)(2). Section 43-1239 provides, in relevant part: [308 Neb. 400] [A] court of this state which has made a child custody determination consistent with section 43-1238 or 43-1240 has exclusive, continuing jurisdiction over the determination until ... (2) a court of this state or a...

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