954 N.W.2d 868
Neb.2021Background
- Parties divorced in Douglas County, Nebraska (Feb 2019); parenting plan awarded joint legal and physical custody.
- In April 2019 the parties jointly stipulated and obtained court approval to move with the children from Nebraska to Arizona; both parents purchased homes in Phoenix and the family resided in Arizona by August 2019.
- On October 22, 2019, Brooke filed a complaint in Douglas County to modify the parenting plan to permit returning to Nebraska, citing difficulties in Arizona.
- Nicholas filed a voluntary appearance and moved to dismiss, arguing Nebraska lacked continuing exclusive jurisdiction under Neb. Rev. Stat. § 43-1239(a)(2) because the parents and children no longer resided in Nebraska.
- The district court concluded Nebraska had relinquished exclusive continuing jurisdiction, conferred with Maricopa County, and dismissed Brooke’s complaint; Brooke appealed.
- Brooke argued Nebraska retained jurisdiction under § 43-1239(a)(1) (significant connection/substantial evidence) and that Nicholas’s voluntary appearance and prior stipulation conferred jurisdiction; the Nebraska Supreme Court affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument (Brooke) | Defendant's Argument (Nicholas) | Held |
|---|---|---|---|
| Whether Nebraska retained exclusive, continuing jurisdiction over custody under UCCJEA § 43-1239(a) | Significant connections (ownership, license, medical care, recent move) mean § 43-1239(a)(1) preserves Nebraska’s jurisdiction | Because parents and children did not reside in Nebraska when the modification was filed, § 43-1239(a)(2) ends Nebraska’s exclusive continuing jurisdiction; Arizona is proper forum | Court held § 43-1239(a)(2) applied: neither parents nor children resided in Nebraska, so Nebraska lost exclusive continuing jurisdiction; dismissal affirmed |
| Whether defendant’s voluntary appearance or prior stipulation confers subject matter jurisdiction on Nebraska court | Nicholas’s voluntary appearance and a stipulation applying Nebraska law amounted to consent to Nebraska jurisdiction | Parties cannot confer subject matter jurisdiction by consent; voluntary appearance only affects personal jurisdiction | Court held parties cannot confer subject matter jurisdiction; voluntary appearance does not create subject matter jurisdiction and stipulation cannot override UCCJEA; argument rejected |
Key Cases Cited
- In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018) (UCCJEA jurisdictional standards; appellate review de novo)
- Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006) (purposes of UCCJEA and interpretation of continuing jurisdiction)
- Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011) (voluntary appearance equates to service for personal jurisdiction)
- J.S. v. Grand Island Pub. Schools, 297 Neb. 347, 899 N.W.2d 893 (2017) (definition and limits of subject matter jurisdiction)
- Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020) (interpretation of divorce decree as question of law)