Huffman v. Huffman

• Decision Date: 30 June 1989
• Docket Number: No. 88-902,88-902
• Citation: 232 Neb. 742,441 N.W.2d 899
• Parties: Bruce Clayton HUFFMAN, Appellant, v. Muffy N. HUFFMAN, Appellee.
• Court: Nebraska Supreme Court

Page 899

441 N.W.2d 899

232 Neb. 742

Bruce Clayton HUFFMAN, Appellant, v. Muffy N. HUFFMAN, Appellee.

No. 88-902.

Supreme Court of Nebraska.

June 30, 1989.

Syllabus by the Court

1. Courts: Judgments. A district court has discretionary inherent power to vacate or modify its judgment anytime during the term in which the judgment was rendered.

2. Divorce: Appeal and Error. In an appeal involving an action for dissolution of marriage, the Supreme Court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the Supreme 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.

3. Divorce: Jurisdiction: Appeal and Error. The standard of review in an appeal concerning a jurisdictional issue in an action for dissolution of marriage is the same standard for appellate review of any other judgment in a dissolution action.

4. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review.

5. Domicile: Intent: Words and Phrases. Domicile is obtained only through a person's physical presence accompanied by the present intention to remain indefinitely at a location or site or by the present intention to make a location or site the person's permanent or fixed home.

6. Domicile: Intent: Words and Phrases. Residence is the result of or achieved by a person's physical presence and living at a location and does not require an intention to stay permanently in the location.

7. Divorce: Domicile: Actions: Parties. If one of the parties to a dissolution action has had a Nebraska domicile for the duration prescribed by Neb.Rev.Stat. § 42-349 (Reissue 1988), a party may commence a dissolution action under Neb.Rev.Stat. § 42-348 (Reissue 1988) in the county where one of the parties lives and is not required to commence the action in the domiciliary county of either party to the dissolution action.

Gregory J. Beal, of Gregory J. Beal & Associates, P.C., Ogallala, for appellant.

Steven C. Smith, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

Sometime before he filed an action for dissolution of marriage, Bruce Clayton Huffman lost the lease on ranchland used for his cattle operation in McPherson County, Nebraska. On August 11, 1987, Bruce Huffman commenced an action to dissolve his marriage with Muffy N. Huffman and filed his dissolution petition in the district court for Lincoln County, Nebraska, of which North Platte is the county seat. In his petition, Bruce Huffman alleged that he was "a resident of Lincoln County" and that he had been a Nebraska "resident" for at least 1 year before the dissolution petition was filed. See Neb.Rev.Stat. § 42-349 (Reissue 1988) (dissolution; action; conditions). In the petition, Bruce Huffman designated his address as Tryon, McPherson County, Nebraska. By her "Responsive Pleading and Cross-Petition," Muffy Huffman alleged that she was a resident of Dawes County, Nebraska, that she had been a Nebraska resident for the year preceding commencement of the action by Bruce Huffman, and that Bruce "is a resident of Lincoln County, Nebraska."

Huffmans and their lawyers appeared for trial in the district court for Lincoln County on March 28, 1988. At the conclusion of evidence, the court specifically found that "the Court has jurisdiction over the parties and the subject matter of this action," and entered a decree, reflecting dissolution of Huffmans' marriage and custody of the four Huffman children granted to Muffy Huffman, subject to Bruce Huffman's right to visit the children.

On July 28, 1988, Bruce Huffman filed his application to modify the dissolution decree and requested, among other things, that he be granted custody of the Huffman children. Muffy Huffman did not file any pleading directed to Bruce's application. (We do not imply that any pleading was required from Muffy Huffman; rather, we mention the pleadings at this point only as background for the hearing on Bruce's application.)

On September 21, 1988, only Bruce Huffman testified at the modification hearing before the same judge who previously rendered judgment in the Huffman case and signed the dissolution decree. The hearing was abbreviated by the court's action reviewed in this appeal. During direct examination of Bruce Huffman concerning the change of circumstances alleged for modification of the decree, a recess was taken when Muffy Huffman became ill. When direct examination of Bruce Huffman was about to resume, the court entered the interrogation:

THE COURT: Before we go on, the Petition for Dissolution shows your address as HC 85, Box 24 Tryon, Nebraska, which is a McPherson County address. Were you living in McPherson County at the time you filed this petition or in Lincoln County?

MR. HUFFMAN: When I filed back in August or whatever it was I was living here in North Platte, that's why we filed it here.

THE COURT: But it shows on the face of the petition a Tryon address, McPherson County.

MR. HUFFMAN: That's where I was still getting my mail for sure. I was just living--I was staying with my grandparents here for the summer.

THE COURT: Well, were you staying with them on a temporary basis, you mean?

MR. HUFFMAN: Yeah, I was looking for a job.

THE COURT: Where was your drivers' license issued from?

MR. HUFFMAN: Probably still at McPherson.

THE COURT: Were you registered to vote in McPherson County?

MR. HUFFMAN: I'm sure I was.

The court then expressed its concern whether there was any jurisdiction for the dissolution decree. See Neb.Rev.Stat. § 42-348 (Reissue 1988) ("All proceedings [for dissolution of marriage] shall be brought in the district court of the county in which one of the parties resides.").

Direct examination of Bruce Huffman resumed:

[Bruce Huffman's lawyer:] Where did you live at the time you filed this petition?

A. North Platte.

Q. At what address?

A. 220 James Avenue.

Q. And had you left your home in McPherson County?

A. Yes.

Q. Did you have any intent of returning to that home in McPherson County at that time?

A. No.

Q. And did you become employed here in North Platte and in Lincoln County, Nebraska?

A. For a short period of time with--I was collecting things for the NEBRASKAland Days Committee or something--collecting money or donations, that kind of thing.

Q. And then, did you reside here for several months at that same address in Lincoln County, Nebraska, before you went anywhere else?

A. From June through September.

....

Q. At the time you filed this--this action, did you have any intent of living anywhere else other than in Lincoln County, Nebraska?

A. I didn't know where I was going to go. I was kind of in limbo, but--but I figured North Platte area would afford me, you know, the opportunities--maybe more opportunities than--until I did find something more suited to what I knew how to do.

Q. At the time you moved to North Platte and in Lincoln County, Nebraska, did you intend to remain here?

[Muffy Huffman's lawyer]: Objection, asked and answered.

THE COURT: Go ahead and answer.

A. I--did I intend to remain here? I didn't know for sure so I can't answer that, really.

Q. Well, did you have any immediate plans to move anywhere else?

A. No.

Q. Did you intend to remain here for the indefinite future?

A. Right.

Cross-examination included the following:

[Muffy Huffman's lawyer:] Mr. Huffman, now, before you left your residence, your home up in McPherson County near Tryon, had you lived there all your life?

[Bruce Huffman:] Yes.

....

Q. Okay. And did you stay there [McPherson County] after she [Muffy Huffman] left?

A. I was back and forth but--

Q. Back and forth between your grandparents' place in North Platte and your home place in McPherson County?

A. It wasn't my home place. I didn't have a home there.

Q. Well, you lived there all your life?

A. But I was asked to leave and I did not have a home there, my home was here [North Platte, Lincoln County].

After the court had noted that "[t]he Court on its own motion raises the question of whether it had jurisdiction to enter a decree of dissolution," the court declined to receive further evidence concerning the merits of Bruce Huffman's modification application, took the jurisdictional question under advisement, and later entered an order which contained:

The Court finds that this matter is controlled by Small v. Small, 229 Neb. 344, 427 N.W.2d 42 (1988) "In comparing the repealed ch. 25, section 6, statute section 42-301, and the current section 42-348, it is apparent that the change of the word 'may' to 'shall' reinforces this court's prior determination that residency of one party in the county where the petition is filed is jurisdictional. The rule announced in Fletcher (Fletcher v. Fletcher, 182 Neb. 549, 156 N.W.2d 1 (1968)), is still valid. The district court for a county cannot acquire jurisdiction over dissolution proceedings unless one of the parties is a resident of that county at the time the original petition is filed."

This Court has no question that residency was not established by the Petitioner in this case. All of the indicias of residency point to McPherson County as the county of residence. There is no question that the Petitioner was temporarily domiciled within the county, but the question is not domicile it is residence. There is no showing that the Petitioner intended to reside in Lincoln County. All evidence points to temporary situation in which the Petitioner...