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Christine W. v. Trevor W.

Supreme Court of Nebraska

May 24, 2019

Christine W., appellant,
v.
Trevor W., appellee.

          1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory interpretation present questions of law.

         2. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.

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

         4. Statutes. Statutory language is to be given its plain and ordinary meaning.

         5. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

         6. Juvenile Courts: Statutes: Jurisdiction. A juvenile court is a statutorily created court of limited and special jurisdiction, and it has only the authority which the statutes confer on it.

         7. Courts: Juvenile Courts: Jurisdiction: Parental Rights. A juvenile court lacks statutory authority under Neb. Rev. Stat. § 42-364(5) (Cum. Supp. 2018) to transfer a proceeding back to the district court where: (1) The district court, having subject matter jurisdiction of a modification proceeding under § 42-364(6) in which termination of parental rights has been placed in issue and having personal jurisdiction of the parties to that proceeding, has transferred jurisdiction of the proceeding to the appropriate juvenile court; (2) termination of parental rights remains in issue and unadjudicated in the transferred proceeding; (3) the State is not involved in the proceeding and has not otherwise asserted jurisdiction over the child or children involved in the modification proceeding; and (4) the juvenile court has not otherwise been deprived of jurisdiction.

          [303 Neb. 246] Appeal from the County Court for Washington County. C. Matthew Samuelson, Judge, on transfer thereto from the District Court for Washington County, John E. Samson, Judge. Judgment of County Court vacated and remanded.

          Scott V. Hahn, of Hightower Reff Law, and, on brief, Tosha Rae D. Heavican for appellant.

         No appearance for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Cassel, J.

         INTRODUCTION

         After Trevor W. commenced a modification proceeding in the district court, Christine W. counterclaimed to terminate Trevor's parental rights and obtained an order transferring the proceeding to the county court, sitting as a juvenile court. But when the proceeding reached the juvenile court, it "denie[d]" the transfer and purportedly returned the proceeding to district court. Christine appeals from the juvenile court's order. Because the juvenile court's order purporting to transfer the proceeding back to district court was beyond the juvenile court's statutory authority and void, we vacate that order and remand the cause to the juvenile court for further proceedings consistent with this opinion.

         BACKGROUND

         Statutory Framework

         In order to understand the procedural background of this appeal, the reader needs some familiarity with the statutes concerning jurisdiction of trial courts over the matters at issue: modification of a parenting plan and termination of parental rights. Before setting forth the specific statute controlling the transfer from district court to juvenile court of a proceeding where termination of parental rights has been placed in issue, [303 Neb. 247] we begin by recalling statutes identifying the authority of district, county, and juvenile courts over such matters. We then summarize the specific statute addressing transfer or retention of a district court proceeding where termination of parental rights has been placed in issue.

         Under Nebraska's marital dissolution, separation, annulment, custody, and support statutes,[1] a proceeding is commenced by filing a "complaint" in the district court.[2] Consequently, dissolution and custody proceedings begin in the district court.

         But another statute[3] authorizes "domestic relations matters, "[4] which includes dissolution and custody proceedings, to be heard by a district court judge or a county court judge.[5] Consistent with that other statute, the statute governing commencement of a marital dissolution and custody proceeding authorizes the proceeding to be heard "by the county court or the district court as provided in section 25 -2740. "[6]

         Despite the procedure allowing selection of a county court judge in a domestic relations matter, the matter remains as a district court proceeding and achieves the same finality as a district court judgment. According to § 25-2740(2), the party shall state in the complaint whether he or she wants the proceeding to be heard by a district court judge or by a county court judge. If the party requests a county court judge, "the county court judge assigned to hear cases in the county in which the matter is filed at the time of the hearing is deemed appointed by the district court and the consent of the county court judge is not required."[7] Where the proceeding is heard by a county court [303 Neb. 248] judge, it is "considered a district court proceeding" and "an order or judgment of the county court in a domestic relations matter has the force and effect of a district court judgment."[8]

         Section 42-364(6) authorizes modification proceedings relating to support, custody, parenting time, visitation, other access, or removal of children from the jurisdiction of the court. A proceeding to modify a parenting plan is "commenced by filing a complaint to modify"[9] Under §§ 42-348 and 42-351(1), a district court has jurisdiction to adjudicate such actions. But under § 42-348, marital dissolution and custody proceedings "may be transferred to a separate juvenile court or county court sitting as a juvenile court which has acquired jurisdiction pursuant to section 43-2, 113."

         Neb. Rev. Stat. § 43-2, 113(2) (Cum. Supp. 2018) provides that a juvenile court "shall have and exercise jurisdiction . . . with the county court and district court in all matters arising under Chapter 42, article 3, when the care, support, custody, or control of minor children under the age of eighteen years is involved." The statute dictates, "Such cases shall be filed in the county court and district court and may, with the consent of the juvenile judge, be transferred to the trial docket of the separate juvenile court or county court."[10]

         Most proceedings seeking termination of parental rights fall within the jurisdiction of the juvenile courts.[11] Such jurisdiction is concurrent with the county court or district court.[12]

         With this general framework in mind, we now recite the statute governing retention or transfer of a proceeding where termination of parental rights has been placed in issue-which is the situation in the proceeding before us.

         [303 Neb. 249] Section 42-364(5) states:

Whenever termination of parental rights is placed in issue the court shall transfer jurisdiction to a juvenile court established pursuant to the Nebraska Juvenile Code unless a showing is made that the county court or district court is a more appropriate forum. In making such determination, the court may consider such factors as cost to the parties, undue delay, congestion of trial dockets, and relative resources available for investigative and supervisory assistance. A determination that the county court or district court is a more appropriate forum shall not be a final order for the purpose of enabling an appeal. If no such transfer is made, the court shall conduct the termination of parental rights proceeding as provided in the Nebraska Juvenile Code.

         Thus, when termination of parental rights is placed in issue in a district court dissolution and custody modification proceeding, the district court is required to transfer jurisdiction to a juvenile court unless the district court concludes that it is the more appropriate forum.

         Although this court[13] and the Nebraska Court of Appeals[14] have only occasionally reviewed proceedings to terminate parental rights which were retained and actually adjudicated in district court, the statutes authorize a district court to do so. Often, the decision to do so may turn on the "relative resources available for investigative and supervisory assistance."[15]Typically, a district court will conclude that where termination [303 Neb. 250] of parental rights has been placed in issue, the proceeding should be ...


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