Mace v. Mace, 82-559

• Decision Date: 18 November 1983
• Docket Number: No. 82-559,82-559
• Parties: James Austin MACE, Appellant, v. Jerri Lynne Hanson MACE, Appellee.
• Court: Nebraska Supreme Court

Page 307

341 N.W.2d 307

215 Neb. 640

James Austin MACE, Appellant, v. Jerri Lynne Hanson MACE, Appellee.

No. 82-559.

Supreme Court of Nebraska.

Nov. 18, 1983.

Syllabus by the Court

1. Habeas Corpus: Child Custody: Foreign Judgments. Habeas corpus proceedings may be used to enforce a foreign judgment regarding child custody.

2. Foreign Judgments: Child Custody: Jurisdiction. Neb.Rev.Stat. § 43-1213 (Cum.Supp.1982) does not require automatic enforcement of a foreign decree or a foreign modification of a decree simply because it is shown to the court that it exists. Rather, the statute requires that the court in which enforcement is sought examine the jurisdictional foundation upon which the foreign court acted.

3. Foreign Judgments: Child Custody: Foreign Judgments. If the foreign court has assumed jurisdiction under statutory provisions substantially in accordance with the Uniform Child Custody Jurisdiction Act or under factual circumstances meeting the UCCJA jurisdictional standards, then the court must recognize and enforce the foreign decree.

4. Foreign Judgments: Child Custody: Foreign Judgments. Primarily, the Uniform Child Custody Jurisdiction Act is concerned with subject-matter jurisdiction and not personal jurisdiction. Submission of a person to the jurisdiction of the court does not alone confer jurisdiction under the act.

5. Child Custody: Jurisdiction. Usually the best interests of the children are served by having a determination in the state where the parties both reside and where the facts concerning the custody of the children are more readily available to the court.

6. Child Custody: Jurisdiction. The home state concept is therefore of the utmost importance in the Uniform Child Custody Jurisdiction Act, requiring the courts, when possible, to choose that forum to adjudicate custody disputes.

7. Records: Appeal and Error. Evidence which does not appear in the record cannot be considered on appeal by the Supreme Court.

8. Child Custody. The controlling consideration in a child custody determination is the best interests and welfare of the child.

9. Child Custody. Among the factors to be considered in determining the best interests of the children are the moral fitness of the parents, respective environments offered by each parent, emotional relationship between the children and parents, and the age, sex, and health of the children. Sexual misconduct, while not determinative, may be considered.

10. Child Custody. A child's statement of preference of custody may be considered.

11. Child Custody. Other considerations are the effect on the children of continuing or disrupting an existing relationship, attitude and stability of each parent, and the capacity to furnish physical care, education, and needs of the children.

Richard F. Welling of Breeling, Welling, Place & Steier, Omaha, for appellant.

Rodney W. Smith of Peebles & Smith, Neligh, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE and SHANAHAN, JJ., and GRANT, District Judge.

BOSLAUGH, Justice.

This is an appeal in a proceeding for a writ of habeas corpus to enforce a Mississippi judgment changing child custody between the parties.

The plaintiff, James Austin Mace, and the defendant, Jerri Lynne Hanson Mace, were married on September 28, 1972, in Elk Point, South Dakota. Two children were born of the marriage: Michelle Lynne, born May 2, 1973, and Adriane Lee, born October 12, 1977. The parties were divorced on September 12, 1980, by a decree of the chancery court of Jones County, Mississippi, the site of the couple's marital home.

The decree awarded custody of Michelle and Adriane to Jerri, subject to the reasonable visitation rights of James. James was ordered to pay child support. The decree did not prohibit Jerri from relocating to another state with the children.

Several members of Jerri's family reside in the Omaha area. Jerri and the two children moved to Omaha, Nebraska, just a few days after the divorce decree was entered. James and his father helped Jerri pack, and the record shows no objection by James to this move. Jerri has resided in Omaha since that time, and Michelle has attended school in Omaha.

In December 1981 the children went to Mississippi to visit their father. Although the parties had agreed that James would return the children to Omaha, he told Jerri that she would have to come to Mississippi to get them. Shortly after her arrival at James' parents' house to get the children, James arrived with an officer, who served Jerri with a summons to appear in the Jones County Chancery Court in an action to modify the decree. She then returned to Omaha with the children.

At the modification hearing in Mississippi, Jerri appeared through counsel, who objected that the chancery court lacked jurisdiction over Jerri and the children. The Mississippi court held that since Jerri had been served with process, it had jurisdiction to modify its original decree. Jerri presented no evidence. James and his mother testified regarding Jerri's fitness as a custodial parent. The court found a material change in circumstances and awarded custody of the two children to James. Judgment was entered on March 24, 1982. On April 9, 1982, Jerri filed a petition for a rehearing, which is still pending. In correspondence with the Douglas County District Court, the presiding judge in Jones County, Mississippi, stated: "No hearing has been requested by that attorney on that petition. Under our procedure, until the attorney requests a hearing and gives proper notice to opposing counsel, the matter will lie dormant."

On April 9, 1982, James filed a petition for a writ of habeas corpus in Douglas County, demanding that Jerri turn the children over to him pursuant to the March 24, 1982, Mississippi judgment modifying the decree of September 12, 1980. Jerri responded to the writ, requesting that the Nebraska court examine the jurisdiction of the Mississippi court in modifying the decree, and requesting that she be awarded custody.

On April 12, 1982, after an altercation with Jerri's brother and upon showing a copy of the Mississippi decree to school officials, James took Michelle from her school and returned to Mississippi. Adriane remained in Omaha with Jerri.

At the hearing in this case the trial court ordered James to return Michelle to Douglas County, and James complied. The court then heard evidence regarding the fitness of the parents, and interviewed the children. The court dismissed the petition for a writ of habeas corpus and awarded custody of the children to Jerri. James appeals.

Habeas corpus proceedings may be used to enforce a foreign judgment regarding child custody. See Slidell v. Valentine, 298 N.W.2d 599 (Iowa 1980). The Uniform Child Custody Jurisdiction Act, 9 U.L.A. 116-70 (1979) (UCCJA), is applicable in the present case.

James argues that the UCCJA, enacted in Nebraska and codified as Neb.Rev.Stat. §§ 43-1201 et seq. (Cum.Supp.1982), required the District Court to summarily enforce the March 24, 1982, Mississippi modification judgment and precluded the District Court from making a modification decree.

There is some doubt as to whether the 1982 Mississippi judgment modifying the 1980 decree was a final order such that we might be required to enforce under any theory. See 50 C.J.S. Judgments § 889(3) (1947). However, neither party has raised an issue regarding its finality, and the plaintiff could not be heard to assert its lack of finality, since he seeks to enforce the judgment. Furthermore, we conclude that the Mississippi court did not exercise jurisdiction substantially in conformity with the act, as required by § 43-1206, and the Mississippi judgment is not enforceable in Nebraska under the terms of our statute.

The general purposes of the UCCJA are set forth in § 43-1201. Of the nine purposes listed the most significant to the present case is set out in subdivision (c): "Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state."

The UCCJA requires the enforcement of a decree of another state under certain conditions: "The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with sections 43-1201 to 43-1225 or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of sections 43-1201 to 43-1225." § 43-1213.

The jurisdictional provisions of the UCCJA are set forth in § 43-1203: "(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

"(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) 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 removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

"(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

"(c)...