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In re Guardianship of ST.

Supreme Court of Nebraska

May 25, 2018

In re Guardianship of ST., a minor child.
v.
Anne T. and Andrew T., appellees. Gabe N. Stalder, appellant,

         1. 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 by an appellate court de novo on the record for abuse of discretion.

         2. __:__:__ . In considering whether jurisdiction exists under the Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdic-tional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires an appellate court to reach a conclusion independent from the trial court.

         3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

         4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         5. Child Custody: Jurisdiction. Jurisdiction over a child custody proceeding is governed exclusively by the Uniform Child Custody Jurisdiction and Enforcement Act.

         6. Child Custody: Guardians and Conservators: Words and Phrases. Under the Uniform Child Custody Jurisdiction and Enforcement Act, the term "child custody proceeding" is defined to include a proceeding for guardianship of a minor.

         7. Child Custody: Jurisdiction: States. For a state to exercise jurisdiction over a child custody dispute, it must either 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. Generally speaking, Neb. Rev. Stat. § 43-1238(a)(1) [300 Neb. 73] (Reissue 2016) grants jurisdiction to the "home state" of the child and § 43-1238(a)(2) through (4) sets out the "exceptions" under which a court will have jurisdiction, even if it is not in the child's "home state."

         8. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

          Appeal from the County Court for Richardson County: Curtis L. Maschman, Judge. Judgment vacated, and cause remanded with directions.

          Melanie A. Kirk, of Johnson, Flodman, Guenzel & Widger, for appellant.

          Andrew T., pro se.

          No appearance for appellee Anne T.

          HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, AND FUNKE, JJ., AND STEINKE, DISTRICT JUDGE.

          STACY, J.

         Gabe N. Stalder petitioned the county court to be appointed guardian of his then 7-year-old niece, S.T., alleging her parents were not properly caring for her. After an evidentiary hearing, the court denied the petition, finding Stalder had failed to prove by clear and convincing evidence that S.T.'s parents were unfit. Stalder appealed. Because we find the county court lacked jurisdiction over the guardianship proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), [1] we vacate the judgment and remand the matter with directions to dismiss.

         BACKGROUND

         Andrew T. and Anne T. are the natural parents of S.T., born in November 2009 in Beatrice, Nebraska.

         [300 Neb. 74] Shortly after S.T.'s birth, Andrew and Anne moved with S.T. to a home in Humboldt, Nebraska. They lived together in Humboldt until February 27, 2017, when they moved to Emporia, Kansas.

         A few days later, on March 1, 2017, Anne's brother, Stalder, filed a petition for temporary and permanent guardianship of S.T. in the county court for Richardson County, Nebraska. In his petition, Stalder claimed S.T.'s parents were unsuitable to care for her. He sought an ex parte order appointing him as S.T.'s temporary guardian and an expedited hearing on his request for appointment as S.T's permanent guardian. Based on the allegations in the petition, the court appointed Stalder as temporary limited guardian for S.T. and set the matter for an evidentiary hearing on April 12.

         EVIDENTIARY HEARING

         At the evidentiary hearing, Stalder called three witnesses: Andrew, Anne, and himself. Andrew and Anne were self-represented and called no witnesses. Generally, Andrew and Anne testified that S.T. was healthy and cared for. Stalder presented evidence questioning the propriety of her education, the condition of the family home in Nebraska, and the effect of Andrew's antigovernment views on S.T.'s emotional and physical health.

         The evidence was undisputed that on February 10, 2017, Andrew signed a 1-year lease on property in Emporia. And on February 27, Andrew, Anne, and S.T. moved to Emporia and were ...


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