State ex rel. Grape v. Zach

• Decision Date: 09 December 1994
• Docket Number: No. S-93-454,S-93-454
• Citation: 524 N.W.2d 788,247 Neb. 29
• Parties: STATE of Nebraska ex rel. Penny J. GRAPE, as Mother and Next Friend of Cody J. Grape, a Minor Child, Appellant, v. Roy A. ZACH, Appellee.
• Court: Nebraska Supreme Court

Page 788

524 N.W.2d 788

247 Neb. 29

STATE of Nebraska ex rel. Penny J. GRAPE, as Mother and Next Friend of Cody J. Grape, a Minor Child, Appellant, v. Roy A. ZACH, Appellee.

No. S-93-454.

Supreme Court of Nebraska.

Dec. 9, 1994.

Syllabus by the Court

1. Jurisdiction: Motions to Dismiss: Pleadings. A court's jurisdiction over the subject matter may and should be questioned early in the proceedings by a demurrer; the issue may not properly be raised by a pretrial motion to dismiss, such pleading not being a part of this state's procedure.

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

3. Jurisdiction: Appeal and Error. If the lower court did not possess subject matter jurisdiction, neither does any reviewing tribunal.

4. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law which requires an appellate court to reach a conclusion independent from that of the trial court; however, when the determination rests on factual findings, a trial court's decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect.

5. Child Custody: Jurisdiction: Appeal and Error. The question as to whether jurisdiction existing under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993), should be exercised is a matter entrusted to the discretion of the trial court and is reviewed de novo on the record; absent an abuse of discretion, the decision of the trial court will be upheld on appeal.

6. Child Custody: Jurisdiction: States. The failure to communicate with the court of another state does not in and of itself deprive the failing court of jurisdiction under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993).

7. Evidence. Ex parte statements are too unreliable to be considered in the investigation of controverted facts.

8. Due Process: Witnesses. Due process requires that witnesses be subject to the right of cross-examination by the parties to the proceeding.

9. Judges. Canon 3 of the Nebraska Code of Judicial Conduct requires that a judge perform the duties of judicial office impartially.

10. Trial: Judges. Canon 3B(7) of the Nebraska Code of Judicial Conduct prohibits a judge from initiating, permitting, or considering ex parte communications or considering other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except that it authorizes, where circumstances require, ex parte communications for scheduling administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits where the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and where the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

11. Jurisdiction. The resolution of a jurisdictional issue is a substantive matter.

12. Trial: Judges: Recusal. A judge who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding must recuse himself or herself from the proceedings.

13. Trial: Judges: Witnesses. A judge's role as a witness in a trial before the judge is manifestly inconsistent with a judge's customary role of impartiality in the adversary system of trial.

14. Constitutional Law. The distribution of powers clause contained in Neb.Const. art. II, § 1, prohibits the legislative department of government from telling the judicial department of government how to conduct judicial business.

15. Constitutional Law: Statutes. Even when a statute is constitutionally suspect, courts will attempt to interpret it in a manner consistent with the Constitution.

16. Statutes. If a statute is susceptible to more than one reasonable construction, the reviewing court uses the construction that will achieve the statute's purpose and preserve the statute's validity.

17. Statutes: Legislature: Intent. There is no universal test by which directory provisions of a statute may be distinguished from mandatory provisions; ordinarily, such differences must be determined by the intent of the Legislature as gleaned from the whole statute.

18. Statutes: Intent: Words and Phrases. While the word "shall" may render a particular provision mandatory in character, when the spirit and purpose of the legislation require that the word "shall" be construed as permissive rather than mandatory, such will be done.

19. Jurisdiction. The failure to follow a legislative recommendation does not divest a court of jurisdiction.

20. Child Custody: Jurisdiction: States. The correctness of the home state as the forum under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993), may be overcome by the circumstances of a particular case.

21. Child Custody: Jurisdiction: States. Neb.Rev.Stat. § 43-1214 (Reissue 1993) establishes a strong preference for the state which originally determined custody to exercise its continuing jurisdiction if the jurisdictional prerequisites enumerated in the Nebraska Child Custody Jurisdiction Act are satisfied.

22. Paternity: Child Custody. In a filiation proceeding in which paternity has been admitted and the natural father has demonstrated a familial relationship with the child and fulfilled his parental responsibilities of support and maintenance, the fact that the child was born out of wedlock is to be disregarded and custody determined on the basis of the child's best interests.

23. Child Custody. While an unwed mother is initially entitled to automatic custody of the child, the issue must ultimately be resolved on the basis of the fitness of the parent and the best interests of the child.

24. Child Custody: Jurisdiction. Under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993), if the evidence is sufficient to support a finding that placing custody in and with a particular parent is in the child's best interests, it does not matter that the order fails to contain an affirmative finding so declaring.

25. Due Process: Parent and Child. The relationship between parent and child is constitutionally protected and thus cannot be affected without procedural due process.

26. Due Process. Procedural due process includes notice to the person whose right is affected by the proceeding, that is, timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the Constitution or statutes; and hearing before an impartial decisionmaker.

27. Child Custody: Jurisdiction: States. A state which is not the home state and which does not have continuing jurisdiction by virtue of having originally determined custody may nonetheless have jurisdiction under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993), if the relevant parties have significant contacts with the state and there is available in the state substantial evidence concerning the statutorily designated issues.

28. Paternity: Child Custody: Appeal and Error. In a filiation proceeding, questions concerning custody of the child are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion.

29. Paternity: Child Custody: Appeal and Error. When the evidence is in conflict, the appellate court, in its de novo review of questions concerning custody in a filiation proceeding, considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

Clark J. Grant, of Grant, Rogers, Maul & Grant, Columbus, for appellant.

Terrell R. Cannon, of Law Offices of Terrell R. Cannon, Lincoln, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ., and BOSLAUGH, J., Retired.

CAPORALE, Justice.

I. STATEMENT OF CASE

The district court granted custody of the minor child of the parties, the petitioner-appellant mother, Penny J. Grape, and the respondent-appellee father, Roy A. Zach, to the latter. Grape appealed to the Nebraska Court of Appeals, contending, in summary, (1) that the district court lacked subject matter jurisdiction to entertain the proceeding and (2) that, in any event, it erred in finding that the boy's best interests would be served by placing his custody with Zach. The Court of Appeals determined that the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993), hereinafter referred to as the act, deprived the district court of subject matter jurisdiction, and thus ordered the proceeding dismissed. State ex rel. Grape v. Zach, 94 NCA No. 13, case No. A-93-454, 1994 WL 102142 (not designated for permanent publication). Zach thereupon successfully sought further review by this court. We now reverse the judgment of the Court of Appeals and remand with the direction that it reinstate and affirm the judgment of the district court.

II. BACKGROUND

In early 1989, the State of Nebraska, on Grape's relation, filed this filiation proceeding against Zach. The petition asserted that Grape and the minor child, a boy, who was born May 14, 1987, were residents of Platte County, Nebraska, and asked the court to adjudge Zach the boy's father...