928 N.W.2d 416
Neb. Ct. App.2019Background
- Child born Dec 2015; mother (Fortuna) moved with child from Nebraska to Florida in Mar 2016 to live with her mother; at filing the child was domiciled in Florida.
- In June 2016 DHHS identified Heath Wolter as the father; Wolter filed a complaint (paternity, custody, parenting time, support) in Cass County, Nebraska on July 1, 2016.
- Fortuna moved to dismiss for lack of jurisdiction; the trial court denied dismissal, ordered return of the child to Nebraska, later awarded temporary custody to Fortuna (who returned) and ordered limited parenting time for Wolter.
- Parties litigated jurisdiction, temporary matters, and after transfer to Lancaster County proceeded to a full trial on paternity, custody, parenting time, and support; paternity was stipulated at trial.
- The court awarded legal and physical custody to Fortuna, adopted a parenting plan granting Wolter overnight parenting time (every other week Thu–Mon and additional holiday/summer time), set child support, and denied Fortuna’s request for attorney fees.
Issues
| Issue | Fortuna's Argument | Wolter's Argument | Held |
|---|---|---|---|
| Whether Nebraska had jurisdiction to make an initial custody determination under the UCCJEA | Wolter’s filing was a paternity action and Nebraska lacked jurisdiction because the child was domiciled in Florida | UCCJEA governs when custody/visitation are at issue; Nebraska has jurisdiction under UCCJEA last-resort criteria | Nebraska had jurisdiction under §43-1238(a)(4) (last-resort) because Florida lacked home-state or significant-connection jurisdiction |
| Whether the court should have declined jurisdiction as an inconvenient forum (forum non conveniens under UCCJEA) | Florida was a more appropriate forum and Nebraska should decline | Nebraska was an appropriate forum given short time child had been in Florida and evidence/parties were in Nebraska | Trial court did not abuse discretion in denying motion to decline jurisdiction |
| Whether the court should have adopted Fortuna’s proposed parenting plan (no overnight visits) | Child is very young; Fortuna’s plan (every other Saturday) is in child’s best interests | More frequent and overnight parenting time needed to foster father–child relationship; Wolter’s plan promotes bonding | Court did not abuse discretion; it credited Wolter’s testimony and reasonably adopted his parenting plan with overnight visits |
| Whether Fortuna was entitled to attorney fees | Fortuna sought fees from Wolter | Wolter was prevailing party and sought no fee award against Fortuna | Denial of Fortuna’s requested fees was not an abuse of discretion; prevailing party rule and UCCJEA/child-support statutes supported outcome |
Key Cases Cited
- Metzler v. Metzler, 25 Neb. App. 757 (Neb. Ct. App.) (definition of domicile requires physical presence plus intent)
- In re Guardianship of S.T., 300 Neb. 72 (Neb. 2018) (UCCJEA exclusively governs custody jurisdiction)
- Shandera v. Schultz, 23 Neb. App. 521 (Neb. Ct. App.) (Nebraska UCCJEA jurisdiction where putative father sought paternity and custody)
- Zimmerman v. Biggs, 22 Neb. App. 119 (Neb. Ct. App.) (similar UCCJEA jurisdiction analysis)
- DeLima v. Tsevi, 301 Neb. 933 (Neb. 2018) (factors for significant-connection jurisdiction under UCCJEA)
- Watson v. Watson, 272 Neb. 647 (Neb. 2006) (trial court discretion to decline jurisdiction as inconvenient forum under UCCJEA)
- Thompson v. Thompson, 24 Neb. App. 349 (Neb. Ct. App.) (parenting-time purpose: foster noncustodial relationship)
- Schmeidler v. Schmeidler, 25 Neb. App. 802 (Neb. Ct. App.) (deference to trial court credibility findings)
- Jessen v. Line, 16 Neb. App. 197 (Neb. Ct. App.) (standard of review for attorney-fee awards in paternity actions)
- Coleman v. Kahler, 17 Neb. App. 518 (Neb. Ct. App.) (attorney fees and procedural points in paternity/support cases)
- Pathammavong v. Pathammavong, 268 Neb. 1 (Neb. 2004) (mootness of temporary orders when superseded by final order)
- Nesbitt v. Frakes, 300 Neb. 1 (Neb. 2018) (mootness doctrine)
- State on behalf of Slingsby v. Slingsby, 25 Neb. App. 239 (Neb. Ct. App.) (best-interests factors in custody determinations)