concurring
While concurring with the result reached by the majority, I would hold that the ore tenus hearing conducted after the divorce decree was entered should have been conducted as a de novo proceeding, and that the change of circumstance principle was not applicable. I am unable to find any language in the Code sections cited by the majority to support a legislative intent to deprive circuit courts of their power to make independent determinations in custody matters unencumbered by a prior decision of a juvenile and domestic relations district court (district court).
I respectfully disagree with the majority’s assertion that the record fails to show that prior to the ore tenus hearing the circuit court had not entered an order “relating to custody” which divested the district court of further jurisdiction. While in a footnote the majority asserts that no evidence was presented to the circuit court on the issue of custody, in its opinion the majority notes that at the time the divorce decree was entered the circuit court had before it a background report received pursuant to its order of October 18, 1984.1 With this report in hand the divorce decree entered by the circuit court prior to the ore tenus hearing ordered “that the prior order of the Juvenile and Domestic Relations District Court ... be continued in full force and effect . . .” and continued the cause on the circuit court’s docket for a subsequent ore tenus hearing as requested by husband. The circuit court did not make that custody order in a vacuum. When ordering the maintenance of the status quo while postponing the ore tenus hearing, the circuit court was in possession of sufficient information, at the very least the background report, to make a temporary ruling concerning custody of the infant child. The most reasonable and logical interpretation of the circuit court’s action is that when entering the divorce decree the court recognized that a custody provision should be made; that its review of the matter, which included the background report, satisfied the court that no harm would befall the child if it temporarily remained with its mother (wife); that husband was entitled to a full ore tenus hearing as requested; and that it would be reasonable to maintain the status quo until the circuit court’s docket would permit such hear*425ing. This process and the language in the decree clearly constitute a temporary custody decree which deprived the district court of any further jurisdiction; thus, the circuit court was entitled, indeed required, to conduct a de novo review unencumbered by the prior order of the district court.
Further, in the footnote referred to above, the majority declares that neither party contends that the provisions relating to custody contained in the divorce decree constitute a temporary custody decree, and for the reason stated declines to consider those provisions as constituting a “pendente lite” decree. In such matters, by intent or oversight, parties may neither bestow nor deprive courts of their jurisdiction. This is not a matter of failure to preserve a point or comply with a rule. It is a matter of our duty to review the record and determine the issue submitted. To make that determination, I suggest we first ask what authority was possessed by the district court to change custody from wife to husband after the circuit court entered the divorce decree containing a provision which ordered that the district court custody order remain in full force and effect pending an ore tenus hearing. In my view the answer is that the district court possessed no such authority because the circuit court’s order contained in the divorce decree deprived the district court of further jurisdiction.
I am of opinion that by the reference to custody in the divorce decree the circuit court assumed jurisdiction of all matters relating to custody; therefore, the district court was without authority to alter custody or exercise control over the parties concerning that issue.
Having deprived the district court of jurisdiction, the ore tenus hearing should have been conducted, de novo-, thus the ultimate question to be answered is whether this record discloses an abuse of the discretionary powers possessed by the circuit court in matters of custody. I agree with the majority that the record clearly supports the judgment of the trial court and its judgment should be affirmed.
Even if there had been no evidence, the time honored rule is that error is not presumed. Moreover, no objection to the decree was made on the ground of lack of evidence to support it.