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www.nebraska.gov/apps-courts-epub/
06/08/2018 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
In re Guardianship of S.T., a minor child.
Gabe N. Stalder, appellant, v. A nne T.
and A ndrew T., appellees.
___ N.W.2d ___
Filed May 25, 2018. No. S-17-600.
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 proceed-
ing 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 jurisdic-
tion 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)
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
(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 ques-
tion presented to the lower court.
Appeal from the County Court for Richardson County:
Curtis L. M aschman, 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 hear-
ing, 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.
1
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
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 still living there at the time of the evidentiary hearing.
Order Denying Guardianship
The county court entered an order denying Stalder’s peti-
tion for permanent guardianship and terminating his temporary
limited guardianship.
Before addressing the merits, the court acknowledged that
jurisdiction over the guardianship proceeding was governed
by the UCCJEA. It found the evidence was uncontroverted
that S.T. resided with Andrew and Anne in Nebraska until
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
February 27, 2017, at which point they moved to Kansas.
The court then concluded, without further analysis, that the
UCCJEA “defines Nebraska as the ‘home state’ under the
facts in this action.”
Addressing the merits, the court noted that because Andrew
and Anne objected to the guardianship of their child, the
parental preference doctrine required Stalder to prove paren-
tal unfitness by clear and convincing evidence. The court
explained that “[a]bsent such proof, the constitutional dimen-
sions of the relationship between parent and child require a
Court to deny a request for guardianship.” The court found that
Stalder had presented limited evidence regarding the health
and well-being of S.T. and that most of the evidence focused
on the “antigovernment” beliefs and actions of Andrew. After
discussing the evidence, the court concluded Stalder had failed
to meet his burden of showing parental unfitness. The court
denied Stalder’s petition for permanent guardianship and dis-
solved the temporary guardianship.
Stalder timely appealed, and Andrew cross-appealed. We
moved the case to our docket on our own motion.2
ASSIGNMENTS OF ERROR
Stalder assigns, restated and consolidated, that the county
court erred in finding he failed to meet his burden of proving
that S.T.’s parents were unfit.
In Andrew’s purported cross-appeal, he does not specifically
assign error to any ruling made by the trial court.3 Instead, he
claims that Stalder’s behavior in seeking the guardianship was
generally unlawful.
STANDARD OF REVIEW
[1] The question whether jurisdiction should be exercised
under the UCCJEA is entrusted to the discretion of the trial
2
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
3
See Neb. Rev. Stat. § 25-1919 (Reissue 2016) and Neb. Ct. R. App. P.
§ 2-109(D)(1)(e) (rev. 2014).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
court and is reviewed by an appellate court de novo on the
record for abuse of discretion.4
[2] In considering whether jurisdiction exists under the
UCCJEA, 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
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.6
ANALYSIS
[4] 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.7 Here, the threshold issue
we must address is whether the county court had jurisdic-
tion under the UCCJEA to hear and determine the guardian-
ship petition.
Jurisdiction and UCCEJA
[5,6] Jurisdiction over a child custody proceeding is gov-
erned exclusively by the UCCJEA.8 Under the UCCJEA, the
term “[c]hild custody proceeding” is defined to include a
proceeding for guardianship of a minor.9 The trial court cor-
rectly recognized the UCCJEA was applicable to the guard-
ianship proceeding filed by Stalder, but on this record, we
cannot agree with the trial court’s finding that Nebraska was
S.T.’s “home state” on the date the guardianship proceeding
was commenced.
4
Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).
5
See Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008). See, also, In re
Interest of Violet T., 286 Neb. 949, 840 N.W.2d 459 (2013).
6
In re Interest of Violet T., supra note 5.
7
Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).
8
Carter v. Carter, supra note 5.
9
§ 43-1227(4). Accord In re Guardianship of David G., 18 Neb. App. 918,
798 N.W.2d 131 (2011).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
Jurisdiction to make an initial child custody determination
is governed by § 43-1238 of the UCCJEA, which provides
in part:
(a) Except as otherwise provided in section 43-1241
[regarding temporary emergency jurisdiction], a court of
this state has jurisdiction to make an initial child custody
determination only if:
(1) this state is the home state of the child on the date
of the commencement of the proceeding or was the home
state of the child within six months before the commence-
ment of the proceeding and the child is absent from this
state but a parent or person acting as a parent continues to
live in this state;
(2) a court of another state does not have jurisdiction
under subdivision (a)(1) of this section, or a court of the
home state of the child has declined to exercise jurisdic-
tion on the ground that this state is a more appropriate
forum under section 43-1244 or 43-1245, and:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
a significant connection with this state other than mere
physical presence; and
(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and personal
relationships;
(3) all courts having jurisdiction under subdivision
(a)(1) or (a)(2) of this section have declined to exercise
jurisdiction on the ground that a court of this state is the
more appropriate forum to determine the custody of the
child under section 43-1244 or 43-1245; or
(4) no court of any other state would have jurisdiction
under the criteria specified in subdivision (a)(1), (a)(2), or
(a)(3) of this section.
(b) Subsection (a) of this section is the exclusive juris-
dictional basis for making a child custody determination
by a court of this state.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
[7] For a state to exercise jurisdiction over a child custody
dispute, it must either be the home state as defined by the
UCCJEA or fall under limited exceptions to the home state
requirement specified by the UCCJEA.10 Generally speaking,
§ 43-1238(a)(1) 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.11
Here, because the county court found Nebraska was the
home state under the UCCJEA, it did not address any of the
exceptions under § 43-1238(a)(2) through (4). Moreover, the
record developed by the parties lacks any evidence upon which
we might conduct a de novo review of the applicability of
any of the home state exceptions. We therefore necessarily
limit our analysis to whether the county court correctly found
Nebraska was the home state under § 43-1238(a)(1).
The UCCJEA defines “[h]ome state” as
the state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months
immediately before the commencement of a child custody
proceeding. In the case of a child less than six months
of age, the term means the state in which the child lived
from birth with any of the persons mentioned. A period
of temporary absence of any of the mentioned persons is
part of the period.12
As used in the UCCJEA, “[c]ommencement” of a proceed-
ing means “the filing of the first pleading in a proceeding.”13
Thus, the operative date for the home state analysis in this case
is March 1, 2017.
Pursuant to § 43-1238(a)(1), the county court would have
jurisdiction under the UCCJEA if S.T.’s home state was
10
See, Carter v. Carter, supra note 5; § 43-1238(a)(2) through (4).
11
See Carter v. Carter, supra note 5.
12
§ 43-1227(7).
13
§ 43-1227(5).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
Nebraska on March 1, 2017, or if S.T.’s home state was
Nebraska within 6 months before March 1, 2017, and “the
child is absent from [Nebraska] but a parent or person acting
as a parent continues to live in [Nebraska].” Neither alternative
is satisfied here.
It was undisputed that Andrew and Anne moved with S.T.
to Kansas on February 27, 2017. So when the first plead-
ing was filed on March 1, S.T. had not lived in Nebraska for
the immediately preceding 6 consecutive months. Although
§ 43-1227 includes periods of “temporary absence” in the
calculation of the 6-month period, there was no evidence the
move to Kansas was temporary. Andrew signed 1-year lease,
and the family was still living in Kansas at the time of the
evidentiary hearing. On this record, Nebraska was not S.T.’s
home state on March 1, 2017.
Moreover, although Nebraska may have been S.T.’s home
state within 6 months before the guardianship was commenced,
there was no evidence that either of S.T.’s parents continued
to reside in Nebraska after the family moved to Kansas on
February 27, 2017, and there was no evidence that a person
“acting as a parent” continued to reside in Nebraska.14
Section 43-1227(13) defines a “[p]erson acting as a par-
ent” as one who “has had physical custody for a period
of six consecutive months . . . within one year immedi-
ately before the commencement” of the proceeding and
“has been awarded legal custody by a court or claims a
right to legal custody.” Stalder, who continued to reside in
Nebraska, could not be considered “acting as a parent” under
§ 43-1227(13), because he never had physical custody of
S.T., nor was he ever awarded her legal custody. Stalder’s
temporary limited guardianship gave him limited authority
only to access S.T.’s educational, medical, and other such
records; make inquiries about S.T.’s residence and the condi-
tions of that residence; and to see and speak with S.T. and her
14
See § 43-1238(a)(1).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF S.T.
Cite as 300 Neb. 72
caregivers. It did not grant even limited rights of physical or
legal custody.
On this record, Nebraska was not S.T.’s home state under
either of the alternatives in § 43-1238(a)(1). We therefore must
find the county court lacked jurisdiction under the UCCJEA
over this guardianship proceeding.
[8] 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.15 As such, our disposi-
tion of this case does not permit us to reach the merits of the
guardianship proceeding.
CONCLUSION
We conclude the county court lacked jurisdiction over the
guardianship proceedings under the UCCJEA, and we there-
fore lack jurisdiction over this appeal. We must vacate the
judgment of the county court and remand the matter with
directions to dismiss the guardianship proceeding.
Judgment vacated, and cause
remanded with directions.
Wright, J., not participating.
15
See Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d
147 (2017).