Mann v. Mann

29 Neb.App. 548

956 N.W.2d 318

Asia R. MANN, now known as Asia R. Harrison, appellee,

v.Brian L. MANN, appellant.

No. A-19-1194.

Court of Appeals of Nebraska.

Filed March 2, 2021.

Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky, Pohren & Rogers, L.L.P., Omaha, for appellant.

Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for appellee.

Moore, Bishop, and Welch, Judges.

Welch, Judge.

INTRODUCTION

Brian L. Mann appeals the order of the Douglas County District Court granting the request of Asia R. Mann, now known as Asia R. Harrison, for partial summary judgment which vacated a portion of the parties’ 2018 dissolution decree granting Brian "in loco parentis" status over Asia's biological child Maleah D. On appeal, Brian's sole assignment of error is the court erred in determining that it did not have subject matter jurisdiction over Maleah due to the court's erroneous interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In 2009, Asia engaged in a relationship with Patrick D. that resulted in the out-of-wedlock birth of Maleah. When Asia and Patrick's relationship ended, the Superior Court of California, County of Ventura, entered an order in August 2010 that awarded Asia sole legal and physical custody over Maleah and granted Patrick reasonable rights of visitation.

In March 2011, Asia married Brian, and the parties had two other children. In February 2016, Asia filed a complaint for dissolution of marriage in Nebraska in the Douglas County District Court. However, over 2 years later in March 2018, which was prior to the district court's resolution of the parties’ dissolution action, Patrick filed a complaint in the Douglas County District Court, which complaint sought to register the California judgment. The district court registered the California judgment in Nebraska in April 2018.

Although the California judgment which set forth Patrick's reasonable rights of visitation with Maleah had been registered in Nebraska in April 2018, a few months later, in July, the district court resolved Asia and Brian's dissolution action by entering a stipulated decree, which stated that Brian had acted in loco parentis to Maleah, granted Brian and Asia joint physical custody of Maleah, and granted Asia sole legal custody over Maleah with the exception that Asia could not change Maleah's school district without Brian's consent or the district court's approval. The stipulated decree also awarded Brian and Asia joint legal and physical custody of their two other children and outlined alternating parenting time between Brian and Asia for all three children.

In July 2019, Brian filed a complaint to modify, and in August, Asia filed an answer and counterclaim which alleged Maleah was not a child of Brian and Asia's marriage and requested modification of custody transferring sole legal and physical custody of the children to Asia. In September, Asia filed a motion for partial summary judgment, and later that same month, Brian filed a competing motion for partial summary judgment, both of which related to that portion of the parties’ stipulated dissolution decree governing the custody of Maleah.

A hearing on the competing motions for partial summary judgment was held in October 2019. During that hearing, the district court took judicial notice of the entire case file and received exhibits 1 through 5, which exhibits included the California judgment, the certified application to register the foreign judgment, the Nebraska order confirming the registration of the foreign judgment, Asia's affidavit supporting her motion for summary judgment, and Patrick's affidavit supporting Asia's motion for summary judgment. No argument was presented to the district court on the matter.

In November 2019, the district court entered an order granting Asia's motion for partial summary judgment and vacating its previous orders regarding Maleah, finding it did not have subject matter jurisdiction to make a custody determination governing Maleah. In its order, the district court relied on Blanco v. Tonniges , 2 Neb. App. 520, 511 N.W.2d 555 (1994), for the proposition that " ‘when a parent unilaterally removes a child from the state of a court that has rendered a decree concerning custody of the child, the continuing jurisdiction of the prior court is exclusive, and other states do not have jurisdiction to modify the custody decree.’ " (Emphasis omitted.) The district court articulated that the California court made the initial custody determination concerning Maleah, and had not relinquished its continuing exclusive jurisdiction, and that a significant connection to California remained because Patrick continued to reside there. The district court also noted that the parties could not waive a defect in subject matter jurisdiction, especially when Patrick was not a party to the present case. Additionally, the district court found that granting Brian in loco parentis status had a significant effect on Patrick's rights.

Finally, the district court determined that it did not have jurisdiction to modify the California judgment or to make an initial custody determination regarding Maleah, and it sustained Asia's motion for partial summary judgment and vacated that part of the dissolution decree which had granted Brian in loco parentis rights over Maleah. In December 2019, the district court clarified its order by denying Brian's motion for partial summary judgment and voiding everything pertaining to the custody and parenting time of Maleah in its earlier dissolution decree due to the district court's lack of subject matter jurisdiction. Brian has timely appealed to this court.

ASSIGNMENT OF ERROR

Brian's sole assignment of error is the court erred in determining that it did not have subject matter jurisdiction over Maleah due to the court's erroneous interpretation of the UCCJEA.

STANDARD OF REVIEW

The question whether jurisdiction should be exercised under the UCCJEA 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. In re Guardianship of S.T. , 300 Neb. 72, 912 N.W.2d 262 (2018). 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. In re Guardianship of S.T., supra .

ANALYSIS

JURISDICTION

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. Chief Indus. v. Great Northern Ins. Co. , 259 Neb. 771, 612 N.W.2d 225 (2000).

This claim involves a request by Brian to modify a dissolution decree entered by the district court in July 2018. Although the request to modify involves many issues that have not been resolved, Brian appeals from a partial summary judgment order which voided all portions of the court's July 2018 decree involving the custody of Maleah on the basis that the court lacked subject matter jurisdiction to make custodial decisions due to jurisdictional power retained by a California court. Asia argues that because the partial summary judgment order does not constitute a final, appealable order, this court lacks jurisdiction to hear this appeal.

The question of whether an order which does not finally resolve all issues may constitute a final order was recently addressed by the Nebraska Supreme Court in Simms v. Friel , 302 Neb. 1, 921 N.W.2d 369 (2019). In Simms v. Friel , the Supreme Court held:

For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. Jennifer T. v. Lindsay P. , 298 Neb. 800, 906 N.W.2d 49 (2018). Because the temporary order did not dismiss the action or make a final determination on the merits, it was not a final judgment. See id. The jurisdictional question before us is thus whether we are presented with a final order.

Relevant here, among the three types of final orders which may be reviewed on appeal is an order that affects a substantial right made during a special proceeding. See Neb. Rev. Stat. § 25-1902 (Reissue 2016). A "substantial right" is an essential legal right, not a mere technical right. See Steven S. v. Mary S. , 277 Neb. 124, 760 N.W.2d 28 (2009). A substantial right is affected if the order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant prior to the order from which an appeal is taken. Id. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial. See Cano v. Walker , 297 Neb. 580, 901 N.W.2d 251 (2017). Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter. Id. Most fundamentally, an order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. Tilson v. Tilson , 299 Neb. 64, 907 N.W.2d 31 (2018).

Where visitation, custody, and the parent-child relationship are involved, we have previously looked to juvenile cases for guidance to determine whether the grant or denial of visitation and custody affects a substantial right. See Steven S. v. Mary S., supra . In doing so, we have said that " ‘ "[t]he question ... whether a substantial right of a parent has been affected by an order in juvenile court litigation is dependent upon both the object of the order and the length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed." ’ " Id. at 130, 760 N.W.2d at 33-34.

302 Neb. at 4-5, 921 N.W.2d at 373.

Here, the district court's voiding of a prior custody determination involving Maleah fits the...