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Wolter v. Fortuna

Court of Appeals of Nebraska

April 30, 2019

Heath Wolter, appellee,
Christina Fortuna, appellant.

         1. Domicile: Intent: Words and Phrases. Domicile is obtained only through a person's physical presence accompanied by the present intention to remain indefinitely at a location or site or by the present intention to make a location or site the person's permanent or fixed home.

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

         3. Child Custody: Words and Phrases. "Child custody proceeding" is defined under Neb. Rev. Stat. § 43-1227(4) (Reissue 2016) of the Uniform Child Custody Jurisdiction and Enforcement Act as a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue and includes a proceeding for paternity in which the issue of custody or visitation may appear.

         4. Child Custody: Jurisdiction: Appeal and Error. In considering whether jurisdiction exists under the Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdictional 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.

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

         6. 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.

         7. Child Custody: Jurisdiction. A Nebraska court has "last resort" jurisdiction to make an initial child custody determination under Neb. Rev. [27 Neb.App. 167] Stat. § 43-1238(a)(4) (Reissue 2016) of the Uniform Child Custody Jurisdiction and Enforcement Act if no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2), or (a)(3) of § 43-1238.

         8. ___: ___ .A decision to decline to exercise jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act for the reason of an inconvenient forum is entrusted to the discretion of the trial court.

         9. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

         10. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

         11. Actions: Moot Question. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.

         12. Child Custody: Visitation: Appeal and Error. Child custody determinations, and parenting time 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.

         13. Visitation. The trial court has discretion to set a reasonable parenting time schedule.

         14. ___. The determination of reasonableness of a parenting plan is to be made on a case-by-case basis.

         15. ___. Parenting time relates to continuing and fostering the normal parental relationship of the noncustodial parent.

         16. ___. The best interests of the children are the primary and paramount considerations in determining and modifying visitation rights.

         17. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

         18. Paternity: Attorney Fees: Appeal and Error. An award of attorney fees in a paternity action is reviewed de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Absent such an abuse, the award will be affirmed.

         19. Attorney Fees. As a general rule, attorney fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

         20. Paternity: Child Support: Attorney Fees: Costs. Attorney fees and costs are statutorily allowed in paternity and child support cases.

         [27 Neb.App. 168] 21. Child Custody: Jurisdiction: Attorney Fees. Under the Uniform Child Custody Jurisdiction and Enforcement Act, the court shall award the prevailing party attorney fees unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

         22. Attorney Fees. Customarily, attorney fees and costs are awarded only to the prevailing party or assessed against those who file frivolous suits.

          Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed.

          Matt Catlett, of Law Office of Matt Catlett, for appellant.

          Heath Wolter, pro se.

          Riedmann, Bishop, and Welch, Judges.



         Christina Fortuna appeals the order of the district court for Lancaster County, which established paternity and determined custody and parenting time for the parties' minor child. Finding no merit to the arguments raised on appeal, we affirm.


         Fortuna gave birth to a child in December 2015. In March 2016, Fortuna and the child moved from Nebraska to Florida in order to live with Fortuna's mother. In June, the Nebraska Department of Health and Human Services determined that Heath Wolter was the father of the child and sent notice to Fortuna and Wolter. Thus, on July 1, Wolter filed a complaint in the district court for Cass County asking the court to enter an order for custody, parenting time, and child support.

         At the same time, Wolter filed a motion for ex parte temporary custody. The court declined to enter an ex parte order but set the matter for hearing on July 18, 2016. Fortuna, pro se, requested a continuance on July 15, and the court rescheduled the hearing for August 15. Thereafter, Fortuna obtained counsel who filed a motion to dismiss the action, [27 Neb.App. 169] arguing that despite its caption, Wolter's complaint was a complaint to establish paternity, and that the court lacked jurisdiction because the child was neither domiciled nor found in Nebraska.

         After holding a hearing, the district court denied the motion to dismiss, finding that it had jurisdiction over the matter, and ordered Fortuna to return the child to Nebraska within 30 days. On September 22, 2016, Wolter filed a motion for temporary custody in which he alleged that Fortuna had not returned to Nebraska as previously ordered. In an order dated September 26, the court awarded temporary custody of the child to Fortuna, who had returned to Nebraska, and granted Wolter parenting time with the child a minimum of every other Saturday from 9 a.m. until 6 p.m.

         In October 2016, Fortuna filed several motions, including a motion to decline jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), motion for temporary child support, motion for temporary removal of the child, motion to transfer the action from Cass County to Lancaster County, and motion to excuse some of the requirements of Nebraska's Parenting Act. The district court for Cass County granted the motion to transfer and awarded temporary child support, to be paid by Wolter, in the amount of $389 per month. The court reserved ruling on the remaining motions pending transfer of the action. Thereafter, the district court for Lancaster County considered the outstanding motions and denied each of them.

         Trial on the issues of paternity, custody, parenting time, and child support was held on November 1, 2017. At the outset, the parties stipulated as to Wolter's paternity of the child.

         Fortuna testified that she moved to Florida in March 2016, and that at the time, her mother had lived there for approximately 1 year. Fortuna did not work while living in Florida and planned to stay home with the child for the first year of his life while living with her mother. She did receive government assistance in the form of "SNAP" and Medicaid while [27 Neb.App. 170] in Florida. At the time of trial, Fortuna had moved back to Nebraska. She was again living with her mother, who had also returned to Nebraska and intended to remain here.

         Fortuna proposed a parenting plan in which Wolter would receive parenting time every other Saturday for 8 hours per day. In her opinion, the child was too young for overnight visits. She also explained that Wolter does not listen to her when she tries to provide him with information regarding the child and has missed several of his scheduled visits. She acknowledged that there have been times that Wolter has asked for additional time with the child, but she refused to give him that time because it was not his designated parenting time.

         Fortuna expressed additional concerns that "[a]bout half the time" when the child would return from Wolter, he would be "a little dehydrated and hungry," and that Wolter did not pay enough attention to the child during his parenting time. She was also concerned about the condition of Wolter's residence because it has "a bunch of holes in the walls," "it leaks," and it has "moldy" walls in the laundry room. Ultimately, she believed that her proposed parenting plan was in the best interests of the child. Because of the child's young age and the fact that Wolter did not exercise his time ...

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