Smith-Helstrom v. Yonker

• Decision Date: 01 March 1996
• Docket Number: No. S-95-256,F,SMITH-HELSTRO,S-95-256
• Citation: 249 Neb. 449,544 N.W.2d 93
• Parties: Diana Ellenormerly Known as Diana Ellen Yonker, Appellant, v. David Loren YONKER, Appellee.
• Court: Nebraska Supreme Court

Page 93

544 N.W.2d 93

249 Neb. 449

Diana Ellen SMITH-HELSTROM, Formerly Known as Diana Ellen Yonker, Appellant, v. David Loren YONKER, Appellee.

No. S-95-256.

Supreme Court of Nebraska.

March 1, 1996.

Syllabus by the Court

1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the inferior courts.

2. Child Custody: Jurisdiction: States. The Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. § 43-1201 et seq. (Reissue 1993), establishes a strong jurisdictional preference for the state which originally determined custody to exercise its continuing jurisdiction, provided the requirements of § 43-1203(1)(b) are satisfied.

3. Child Custody: States: Federal Acts: Kidnapping. The federal Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738A (1994), imposes upon the states a duty to enforce a child custody determination entered by the court of a sister state if that determination is consistent with the terms of the act.

4. Child Custody: Federal Acts: Kidnapping: States: Jurisdiction. For a state court's custody decree to be consistent with the federal Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738A (1994), the state must have jurisdiction under its own local law and must meet one of five conditions set out in § 1738A(c)(2).

5. Child Custody: Appeal and Error. An appellate court reviews child custody determinations de novo on the record; such determinations are initially entrusted to the discretion of the trial judge and will be affirmed unless they constitute an abuse of discretion; where credible evidence is in conflict on a material issue of fact, an appellate 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.

6. Child Custody: Proof. Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. The party seeking modification of child custody bears the burden of showing such a change in circumstances.

7. Child Support. The proper amount of child support is determined not necessarily by a parent's earnings, but by a parent's earning capacity.

Appeal from the District Court, Gosper County; John P. Murphy, Judge. Reversed and remanded for further proceedings.

Katherine Karuschkat, P.C., Denver, CO, and Michael E. Piccolo, of Clough Dawson & Piccolo, North Platte, for appellant.

Jeffrey M. Wightman and James E. Doyle IV, of Cook, Wightman & Doyle, Lexington, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CAPORALE, Justice.

I. INTRODUCTION

This interstate child custody dispute challenges the order of the Nebraska dissolution court modifying its earlier decree so as to remove the custody of the parties' minor son, Michael Douglas Yonker, from the petitioner-appellant mother, Diana Ellen Smith-Helstrom, who resides in Colorado, and place it with the respondent-appellee father, David Loren Yonker, who resides in Nebraska. In appealing to the Nebraska Court of Appeals, the mother asserted that the dissolution court erred in (1) taking jurisdiction, (2) ruling as it did with regard to custody, and (3) determining her child support obligation. Under our authority to regulate the caseloads of the two courts, we, on our own motion, removed the matter to our docket. We now, for the reasons hereinafter set forth, reverse, and remand for further proceedings.

II. FACTS

The parties married on December 27, 1986; their son was born on March 8, 1988; and the marriage was dissolved on June 8, 1989. The decree permitted the mother to permanently relocate to Colorado with her son and granted the father reasonable visitation rights.

On July 13, 1990, the father filed an application in the dissolution court seeking modification of the custody provisions of its decree. The mother filed a responsive pleading and counterclaim seeking to have the motion dismissed. She also filed a pleading seeking to have the father held in contempt. After the dissolution court appointed a guardian ad litem for the son and held a number of hearings, a 2-day trial commenced on October 9, 1991. Both parties were present and represented by counsel, and both parties presented evidence. However, on October 10, the trial judge declared a mistrial and, for reasons the record does not disclose, recused himself.

The parties thereafter continued to conduct discovery, and on April 1, 1992, the father served upon the mother, her attorney, and the guardian ad litem notice that a hearing would be held on June 8 on the father's application to modify the custody arrangement. In addition, the father filed a motion asking for an order directing the mother to show cause why she should not be held in contempt for failing to abide by the court's visitation orders. The mother neither filed a response nor appeared at the hearing.

Upon the testimony of only the father and the Nebraska guardian ad litem, the dissolution court, on June 8, 1992, entered an order changing custody of the son, as set forth in part I. The court also ordered the mother to pay child support in the amount of $345 per month.

In the meantime, the mother had, on February 28, 1992, commenced an action in Colorado, asking the Colorado court to exercise jurisdiction over her, her son, and the issues concerning custody of him. On April 24, the Colorado court, in proceedings at which the father was represented by counsel and the son by a Colorado guardian ad litem, exercised jurisdiction. It determined that notwithstanding the pending proceedings in Nebraska, under Colorado's version of the Uniform Child Custody Jurisdiction Act Colo.Rev.Stat. Ann. § 14-13-101 et seq. (West 1989), hereinafter referred to as the Colorado child custody act, the son's "home state" was Colorado, as he had lived there continuously since January 1989.

In its order of June 3, 1992, the Colorado court continued custody of the son with the mother. Because of the ongoing jurisdictional dispute, the court forbade the father from removing the son from Colorado and required that any visitation be under supervised conditions until the jurisdictional dispute was resolved. For reasons which the record does not reveal, the father's effort to appeal the Colorado court's order was unsuccessful.

The father initially refused to abide by the restrictions the Colorado court placed upon his visitation with his son. As a result, he did not see his son for approximately 2 1/2 years. Finally, in February 1994, the father notified the Colorado guardian ad litem that he would agree to the supervised visitation. The first Colorado visit was supervised by a police officer and took place in mid-March 1994.

A second visit occurred at a Colorado mall on March 30, 1994. The supervising police officer brought the son to the mall parking lot to meet with the father. The father gave the keys to his automobile to the officer and then went inside the mall with his son. The child's grandfather was also present for this visit. While the officer and the grandfather were drinking coffee, the father purchased a rabbit for his son at a mall store. Shortly thereafter, the father told the officer that he was going to take his son to look in one of the stores for some other items. Unbeknownst to the officer, the father had another automobile at the mall, which he used to drive his son to the airport. The father, a licensed pilot, then put his son and the rabbit in a private plane and flew to Nebraska. Enclosing a picture of his son and the rabbit, the father then sent a letter to the Colorado guardian ad litem thanking her for her help in arranging to have the visitation in a public place, since this facilitated the "release" of his son from Colorado.

On June 24, 1994, the mother filed in the dissolution court an application to modify the court's custody order of June 8, 1992. She later questioned whether the dissolution court had subject matter jurisdiction enabling it to enter the order, and still later filed an application for custody of her son. Following the taking of evidence from the parties and the Nebraska guardian ad litem, the dissolution court denied the mother any relief.

III. ANALYSIS

With that background, we turn our attention to the mother's assignments of error.

1. JURISDICTION

In challenging the dissolution court's finding that it had subject matter jurisdiction to entertain these proceedings, the mother argues that its exercise of such jurisdiction conflicts with the federal Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738A (1994), hereinafter referred to as the kidnapping act. She points out that the kidnapping act confers jurisdictional priority to the home state unless there is an emergency, or unless there is a case still pending in a jurisdiction in which at least one party resides. § 1738A(c) and (d). Since, according to the mother, neither of the exceptions to home state jurisdictional priority existed at the time she filed the Colorado custody action, Colorado is the proper forum to exercise jurisdiction over the custody dispute.

(a) Scope of Review

When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the inferior courts. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996); State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994).

(b) Application of Law to Facts

"Home state," as defined under the kidnapping act, the Colorado child custody act, and the Nebraska Child Custody Jurisdiction Act, hereinafter...