Hopper v. Rainforth

Decision Date15 March 2011
Docket NumberNo. A-10-370.,A-10-370.
PartiesMelissa Hopper, appellee, v. nicholas rainforth, appellant
CourtNebraska Court of Appeals

Appeal from the District Court for Lancaster County: Jeffre Cheuvront, Judge. Affirmed.

Christopher A. Furches, of Furches Law Office, and David P. Kyker for appellant.

Terrance A. Poppe and Heidi M. Hayes, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.

Inbody, Chief Judge, and Sievers and Cassel, Judges.

Cassel, Judge.


In this custody modification proceeding initiated by the child's mother, the district court ordered that the father retain physical custody but prohibited him from "remov[ing]" the child from Nebraska despite a previous modification order authorizing him to remove the child to Minnesota. The father attacks the latest order as a void conditional order and alternatively asserts the issue of removal was not raised by the pleadings and constituted an abuse of discretion. Because (1) the cause is equitable in nature and conditional orders in equity are not automatically void, (2) the mother's pleading gave sufficient notice that the prior removal was disputed, and (3) the relief fashioned by the court was not an abuse of discretion, we affirm.


Although they never married, Melissa Hopper (Melissa) and Nicholas Rainforth (Nicholas) are the biological parents of H.R., born in September 2004. In March 2006, after apaternity proceeding was instituted by Melissa in the district court for Lancaster County, the parties were awarded joint legal custody of H.R. and physical custody was awarded to Melissa. The award of joint legal custody has never been changed.

As a result of a stipulated modification proceeding, physical custody of the child then shifted to Nicholas along with permission to remove the child to Minnesota. On January 5, 2007, by agreement of the parties, the district court placed temporary physical custody with Nicholas. On January 31, 2008, the court's order implemented the parties' agreement placing physical custody of H.R. with Nicholas and allowing him to remove the child to Minnesota, where he had resided since May 2007.

In November 2009, Melissa filed a request to modify, seeking to regain physical custody of H.R. In the complaint for modification, Melissa alleged that there was a material and substantial change in circumstances and included four specifications. The first specification alleged that "[t]he minor child of the parties has never resided with [Nicholas] in Minnesota." The second claimed that "[t]he minor child of the parties is enrolled in [k]indergarten with Lincoln Public Schools." The third specification was that Nicholas "rarely exercises parenting time with the minor child." Melissa's complaint prayed that she be awarded custody of the child and in addition to other specific relief, requested "such other and further relief as the Court shall deem just and equitable."

Nicholas filed a general denial and specifically alleged that there has been no change in circumstances.

After a trial, the district court entered its order on March 15, 2010. The court made numerous findings and discussed the evidence at length. To the extent that additional background information later becomes necessary, we include it at the appropriate point in the analysis. The court acknowledged its earlier order permitting Nicholas to remove H.R. to Minnesota, but then stated, "[I]t is clear that she has continued to spend the majority of the time in Nebraska." The court also stated that "considering the fact [H.R.] spent the majority of the ensuing period in Nebraska, the issue of her permanent removal from Nebraska is an issue that must be reviewed at this time." The court later made the following finding:

The court finds that it is in the best interests of the minor child... that her physical custody remain with Nicholas. However, the court also finds that it is not in her best interests that she be removed to the State of Minnesota. This, of course, creates a dilemma. If Nicholas does not return to Nebraska, then [H.R.] would be placed in the custody of Melissa or, if the parties agree, she could reside with [Nicholas' parents] with Melissa having certain defined parenting time in accordance generally with this court's standard schedule.

The court then ordered:

That the physical custody of [H.R.] shall continue to be awarded to [Nicholas] subject to [Melissa's] rights of parenting time as set forth in the attached Parenting Plan and said Parenting Plan is incorporated by reference as if fully set forth and the parties are ordered to comply with the terms and provisions ther[e]of. All other terms and provisions of this court[']s order for custody dated the 10th day of March, 2006[,] anddated the 31st day of January, 2008[,] shall remain in full force and effect except [Nicholas] may not remove the minor child from the State of Nebraska.
Nicholas has filed a timely appeal.

Nicholas alleges that (1) the trial court's order is a void conditional order and (2) the trial court abused its discretion by "readdressing the issue of removal where only a modification of custody had been pled and tried to the court."


When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court. Heinze v. Heinze, 274 Neb. 595, 742 N.W.2d 465 (2007).

Child custody determinations, and visitation 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. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000).

Does This Court Have Jurisdiction?

At oral argument, we inquired whether the district court had jurisdiction of the child custody proceeding such that we have jurisdiction of this appeal. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010). Our jurisdiction of this appeal depends upon whether the district court had jurisdiction of the child custody dispute. When a lower court does not have jurisdiction over the case before it, an appellate court also lacks jurisdiction to review the merits of the claim. Sack v. State, 259 Neb. 463, 610 N.W.2d 385 (2000). Thus, we first examine the district court's jurisdiction, and we turn to the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Because the district court for Lancaster County made the initial child custody determination, the court retained exclusive and continuing jurisdiction over the instant modification proceeding unless jurisdiction was lost under Neb. Rev. Stat. § 43-1239(a) (Reissue 2008) or until the court declined to exercise its jurisdiction under Neb. Rev. Stat. § 43-1244 (Reissue 2008). See Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006). As the court did not decline jurisdiction under § 43-1244, we need only address whether the court lost its exclusive and continuing jurisdiction pursuant to § 43-1239(a).

Section 43-1239(a) provides:

Except as otherwise provided in section 43-1241 [providing temporary emergency jurisdiction in cases of abandonment or abuse], 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:
(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection withthis state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.

The district court maintained exclusive and continuing jurisdiction under § 43-1239. This jurisdiction would continue unless the district court determined that neither the child, nor the child and one parent, nor the child and a person acting as a parent had a significant connection with this state and that substantial evidence was no longer available in this state concerning the child's care, protection, training, and personal relationships. In Watson, relying upon a California court's opinion, the Nebraska Supreme Court quoted the drafting committee's reporter's explanation of the intended application of this section of the UCCJEA: "'"So long as one parent, or person acting as a parent, remains in the state that made the original custody determination, only that state can determine when the relationship between the child and the left-behind parent has deteriorated sufficiently so that jurisdiction is lost."...'" 272 Neb. at 654, 724 N.W.2d at 30, quoting Grahm v. Superior Court, 132 Cal. App. 4th 1193, 34 Cal. Rptr. 3d 270 (2005) (emphasis omitted). As the California court explained, "'If the remaining parent continues to assert and exercise his [or her] visitation rights, then the parent-child relationship has not deteriorated sufficiently to terminate jurisdiction.'" Watson v. Watson, 272 Neb. at 654, 724 N.W.2d at 30, quoting Grahm v. Superior Court, supra.

The district court implicitly determined that it retained jurisdiction, and the facts clearly support its decision. Although Nicholas had earlier obtained the court's permission to remove H.R. to Minnesota, the child spent much of the intervening time residing with Nicholas' parents in Nebraska. Shortly after Nicholas was granted...

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