956 N.W.2d 318
Neb. Ct. App.2021Background
- In 2010 a California court awarded Asia sole legal and physical custody of her daughter Maleah and granted Maleah’s biological father (Patrick) reasonable visitation. The California order remained in effect.
- Asia married Brian in 2011. Asia and Brian later filed for dissolution in Douglas County, Nebraska (filed 2016).
- The California custody judgment was registered in Nebraska in April 2018. Despite that, the parties entered a stipulated Nebraska dissolution decree in July 2018 that found Brian acted in loco parentis to Maleah and awarded Brian joint physical custody rights as to Maleah.
- In July–August 2019 Brian sought modification; Asia moved for partial summary judgment arguing Nebraska lacked jurisdiction over Maleah because California retained exclusive, continuing jurisdiction under the UCCJEA.
- The district court granted Asia’s motion, vacated the portions of the 2018 decree concerning Maleah for lack of subject matter jurisdiction, and Brian appealed.
Issues
| Issue | Plaintiff's Argument (Asia) | Defendant's Argument (Brian) | Held |
|---|---|---|---|
| Whether the district court’s November 2019 partial summary-judgment order was a final, appealable order | The order is not final because a summary-judgment motion is a procedural device and does not constitute a special proceeding. | The order affected a substantial right (permanent loss of in loco parentis custody) and thus was final and appealable. | Court: Order affected a substantial right in a child-custody special proceeding and therefore was a final, appealable order. |
| Whether Nebraska lacked subject matter jurisdiction under the UCCJEA so the July 2018 custody provisions concerning Maleah were void | California retained exclusive, continuing jurisdiction over Maleah under the UCCJEA; Nebraska could not validly enter or modify custody as to Maleah. | Nebraska had concurrent subject-matter jurisdiction and, at most, Nebraska erred in exercising jurisdiction (jurisdictional priority); the 2018 decree was voidable (not void) and not subject to collateral attack. | Court: Although California initially had and retained exclusive continuing jurisdiction, the Nebraska court had erred in exercising jurisdiction. That error supported vacatur of the Nebraska custody provisions as to Maleah. |
| Whether the district court could vacate its own prior custody order after term (in the later modification action) | The court’s vacatur was proper because the prior order was obtained by an irregularity (statutorily precluded exercise of jurisdiction under UCCJEA). | Vacatur was improper as a collateral attack; any defect should have been appealed from the 2018 decree. | Court: The modification proceeding is auxiliary to the original action; the court retained power to vacate after term under §25-2001 for an "irregularity in obtaining a judgment or order." Vacatur was within the court’s discretion and proper. |
Key Cases Cited
- Blanco v. Tonniges, 2 Neb. App. 520, 511 N.W.2d 555 (1994) (exclusive continuing jurisdiction of prior court over interstate custody decree)
- Simms v. Friel, 302 Neb. 1, 921 N.W.2d 369 (2019) (when an order affects a substantial right in a special proceeding it may be final and appealable)
- Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009) (child-custody determinations are special proceedings; guidance on substantial-right analysis)
- Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014) (concurrent interstate jurisdiction, jurisdictional priority, and that modification proceedings are auxiliary to the original custody action)
- Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995) (standards for vacating judgments after term; reversal only for abuse of discretion)
- Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016) (definition and limits of collateral attack on judgment)
- In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018) (standard of review for UCCJEA jurisdictional questions)
- Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008) (purposes of the UCCJEA)
- Haen v. Haen, 210 Neb. 380, 314 N.W.2d 276 (1982) (definition of "irregularity" in obtaining a judgment)