Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Floerchinger v. Floerchinger

Court of Appeals of Nebraska

June 21, 2016

Mark G. Floerchinger, appellee,
v.
Stacey Leigh Floerchinger, appellant.

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

         2. Child Custody: Jurisdiction: Appeal and Error. The question whether jurisdiction should be exercised under the Uniform Child Custody Jurisdiction and Enforcement Act is entrusted to the discretion of the trial court and is reviewed de novo on the record for abuse of discretion by the appellate court.

         3. ___: ___: ___. The question as to whether jurisdiction existing under the Nebraska Child Custody Jurisdiction Act should be exercised is entrusted to the discretion of the trial court and is reviewed de novo on the record for abuse of discretion by the appellate court. As in other matters entrusted to a trial judge's discretion, absent an abuse of discretion, the decision will be upheld on appeal.

         4. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

         5. Judgments: Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions on the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

         6. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         [24 Neb.App. 121] 7. ___: ___. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.

         8. Child Custody: Visitation: Jurisdiction. A district court has exclusive and continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act over custody and visitation issues if the court made the initial child custody determination in accordance with Neb. Rev. Stat. § 43-1238 (Reissue 2008).

         9. Child Custody: States: Jurisdiction. In order for a state to exercise jurisdiction over a child custody dispute, that state must be the home state as defined by the Uniform Child Custody Jurisdiction and Enforcement Act or fall under limited exceptions to the home state requirement specified by the act.

         10. Child Custody: Jurisdiction. Exclusive and continuing jurisdiction remains with the district court under the Uniform Child Custody Jurisdiction and Enforcement Act either until jurisdiction is lost under Neb. Rev. Stat. § 43-1239(a) (Reissue 2008) or until the court declines to exercise jurisdiction under Neb. Rev. Stat. § 43-1244 (Reissue 2008) on the basis of being an inconvenient forum.

         11. ___: ___. Jurisdiction is lost under Neb. Rev. Stat. § 43-1239(a) (Reissue 2008) if neither the child nor the child and one parent have a significant connection with Nebraska and substantial evidence pertaining to custody is no longer available in the state, or if a court determines that the child and parents no longer reside in Nebraska.

         12. Child Custody: Evidence: Jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act lists evidence concerning the child's care, protection, training, and personal relationships as relevant evidence regarding custody.

         13. Statutes: Appeal and Error. In construing a statute, an appellate court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.

         14. Child Custody: Final Orders. The grant of temporary custody is not a final, appealable order, as it does not affect a substantial right.

         15. Child Custody: Proof. In a child custody modification case, first, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests.

         16. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been [24 Neb.App. 122] known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

         17. Child Custody. While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration.

         18. Child Custody: Appeal and Error. In contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court's determination is affirmed or reversed on appeal.

         Appeal from the District Court for Sarpy County: William B. Zastera, Judge.

          Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellant.

          Angela M. Minahan, of Reinsch, Slattery, Bear & Minahan, PC, L.L.O., for appellee.

          Moore, Chief Judge, and Inbody and Bishop, Judges.

          Moore, Chief Judge.

         I. INTRODUCTION

         Stacey Leigh Floerchinger appeals from a modification order entered by the district court for Sarpy County, in which the court found that a material change in circumstances had occurred since the original dissolution of marriage decree and awarded joint legal custody of the parties' minor child to Stacey and her former husband, Mark G. Floerchinger, with "primary possession" of the child awarded to Mark. On appeal, Stacey challenges the court's exercise of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the entry of a temporary order, and the modification of custody. Because the district court properly exercised jurisdiction and we find no abuse of discretion in the custody determination, we affirm.

         [24 Neb.App. 123] II. BACKGROUND

         1. Procedural Background

         Mark and Stacey were married in 1993 in the State of Maine and are the biological parents of Brayden Floerchinger (age 15) and his older sister (age 21). The parties moved from Maine to Papillion, Nebraska, soon after their marriage. The parties separated in August 2002, at which time Stacey returned to Maine with Brayden and his sister while Mark remained in Papillion.

         On April 28, 2003, Mark filed a "Petition for Dissolution of Marriage" in the district court for Sarpy County, in which Mark alleged, in part, that while both he and Stacey were fit parents, it was in the best interests of the minor children that their custody be awarded to Stacey, subject to Mark's reasonable rights to share time with the minor children.

         On September 12, 2003, a "Decree of Dissolution of Marriage" was entered. Pursuant to the parties' agreed-upon parenting plan, the legal custody of the children was awarded to Stacey, subject to Mark's visitation rights set forth in the parenting plan. The decree is silent as to Stacey and the children's place of residence, although the parenting plan references Mark's visitation with the children in Maine. Mark's visitation included a split holiday parenting schedule along with 2 months of summer visitation in Nebraska each year.

         Mark maintained his residence in Nebraska from the entry of the decree through the present case, residing in Plattsmouth, Nebraska, at the time of trial. Stacey and the children remained in Maine from August 2002 until the current proceedings. Mark testified that the decree was never registered in Maine although he thought there was an attempt to do so.

         On July 17, 2013, Mark filed a complaint to modify just Brayden's custody (Brayden's sister having already reached the age of majority). Mark alleged that a material change in circumstances had occurred, namely that Brayden expressed a desire to reside with Mark in Nebraska. Mark requested that the parties be awarded joint legal custody with primary [24 Neb.App. 124] possession of Brayden being placed with him. Mark also sought termination of his child support obligation, although he did not seek child support from Stacey.

         On August 27 and 29, 2013, Stacey filed objections to the district court's exercise of jurisdiction over the complaint to modify, asserting that pursuant to the UCCJEA, the proper jurisdiction is the State of Maine. In addition, Stacey alleged that Nebraska lacks the requisite minimum contacts to justify the case's being heard in Nebraska.

         Mark filed a motion for temporary allowances on August 29, 2013, requesting that the court order that custody of Brayden be placed temporarily with Mark and that it temporarily suspend his child support payments. On September 3, Stacey filed a motion to enforce the decree, seeking the return of Brayden to Maine.

         On September 18, 2013, the district court entered a temporary order denying Stacey's motion to enforce the decree and granting Mark's motion. Specifically, the court placed temporary legal custody of Brayden with the court and primary possession with Mark, suspended child support payments, established telephonic visitation between Brayden and Stacey, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.