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.
Child Custody: Jurisdiction. Jurisdiction
over a child custody proceeding is governed exclusively by
the Uniform Child Custody Jurisdiction and Enforcement Act.
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.
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.
Statutes: Appeal and Error. Statutory
interpretation is a question of law, which an appellate court
resolves independently of the trial court.
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
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.
___ .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.
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.
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.
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.
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.
Visitation. The trial court has discretion
to set a reasonable parenting time schedule.
___. The determination of reasonableness of a parenting plan
is to be made on a case-by-case basis.
___. Parenting time relates to continuing and fostering the
normal parental relationship of the noncustodial parent.
___. The best interests of the children are the primary and
paramount considerations in determining and modifying
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.
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.
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.
Paternity: Child Support: Attorney Fees:
Costs. Attorney fees and costs are statutorily
allowed in paternity and child support cases.
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.
Attorney Fees. Customarily, attorney fees
and costs are awarded only to the prevailing party or
assessed against those who file frivolous suits.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Affirmed.
Catlett, of Law Office of Matt Catlett, for appellant.
Wolter, pro se.
Riedmann, Bishop, and Welch, Judges.
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.
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.
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.
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.
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.
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
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
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
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 ...