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Charleen J. v. Blake O

Supreme Court of Nebraska

November 7, 2014

CHARLEEN J., APPELLANT,
v.
BLAKE O., APPELLEE

Page 588

[Copyrighted Material Omitted]

Page 589

Appeal from the District Court for Madison County: Mark A. Johnson, Judge.

Michael C. Moyer, of Moyer & Moyer, for appellant.

Joel E. Carlson, of Stratton, DeLay, Doele, Carlson & Buettner, P.C., L.L.O., for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., not participating.

OPINION

Page 590

[289 Neb. 455] McCormack, J.

NATURE OF CASE

The district court for Boone County determined paternity in a paternity action, but did not explicitly determine custody. Approximately 3 years later, all parties lived in Madison County, Nebraska. The mother filed a complaint for custody in the district court for Madison County. The question presented is whether the district court for Madison County was correct in dismissing the case and vacating its prior orders under the mother's complaint on the ground that the child's paternity had been decided by the district court of another county.

BACKGROUND

In December 2010, the district court for Boone County issued a default judgment of paternity against Blake O., the father of a child born out of wedlock in 2009. The action had been commenced by the Department of Health and Human Services. Charleen J., the mother, was not a party to the action, but the court ordered child support to be paid to the mother. The court apparently was not asked to explicitly determine custody, and it did not do so.

In 2013, the mother filed a complaint for custody in the district court for Madison County. By that time, both the mother and the father of the child lived in Madison County. The complaint set forth the prior paternity order from the district court for Boone County. The complaint further set forth that the district court for Madison County had issued a domestic abuse protection order against the father and that there was no other pending litigation in another county concerning the custody of the child.

In June 2013, the district court for Madison County granted the mother's motion for temporary custody of the child, subject

Page 591

to the father's reasonable visitation rights. The court's order noted the prior paternity determination in the district court for Boone County.

In October 2013, the mother moved for a default judgment. At the hearing, which the father failed to attend, the court orally pronounced that it was granting the motion for default judgment with the exception of determining the child's best [289 Neb. 456] interests. The hearing on the child's best interests began, and the mother began to testify. Among other things, the mother testified that paternity was established by an order of the district court for Boone County.

At that point, the court interjected that it needed to set aside the default judgment on the ground that it lacked subject matter jurisdiction. The court said, " complaints for custody, we do not have subject matter jurisdiction for -- statutorily -- that we believe that the proper venue for that is in the original paternity action."

The court then indicated that the mother should move to transfer venue to Boone County. The mother orally moved to transfer venue, and the motion was orally granted. By written order, the court " vacate[d] its order announced in open Court" and continued the matter for another hearing. The court further stated in its order that the mother " may take action as she deems necessary to either transfer this case or initiate a new action in the paternity matter."

In a written order on November 1, 2013, subsequent to the scheduled hearing, the court stated that because paternity was previously established in a different county, it lacked " subject matter jurisdiction" to determine custody of the child. The court overruled the motion for default judgment and granted the mother's motion to transfer venue.

Thereafter, the father filed a motion with the district court for Madison County for leave to file a responsive pleading out of time. The motion requested that the court deny the motion to transfer venue or reconsider the order approving transfer, and to require the parties to enter into immediate mediation.

In response, the mother filed another motion to transfer venue to the district court for Boone County for all further proceedings on her complaint for custody.

After a hearing was held, on November 12, 2013, the court issued an order vacating its November 1 order. The court had by then come to the conclusion that because it lacked subject matter jurisdiction, it had no jurisdiction to transfer the cause to another county. The November 12 order also dismissed the case without prejudice.

[289 Neb. 457] On November 20, 2013, the mother filed a " Motion for New Trial, Motion to Amend and Motion to Clarify." The motion asked for a new trial and order reinstating the mother's complaint for custody " so that this matter may be transferred to Boone County District Court pursuant to [Neb. Rev. ...


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