Mark G. Floerchinger, appellee,
Stacey Leigh Floerchinger, appellant.
Actions: Jurisdiction. Lack of subject
matter jurisdiction may be raised at any time by any party or
by the court sua sponte.
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.
___: ___. 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.
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.
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.
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
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.
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).
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.
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.
___: ___. 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.
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
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
Child Custody: Final Orders. The grant of
temporary custody is not a final, appealable order, as it
does not affect a substantial right.
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.
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.
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
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
from the District Court for Sarpy County: William B. Zastera,
K. Meehan, of Schirber & Wagner, L.L.P., for appellant.
M. Minahan, of Reinsch, Slattery, Bear & Minahan, PC,
L.L.O., for appellee.
Chief Judge, and Inbody and Bishop, Judges.
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.
Neb.App. 123] II. BACKGROUND
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
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
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.
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.
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.
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.
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
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,