Articles Posted in Nebraska Supreme Court

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The Supreme Court affirmed the court of appeals’ dismissal of Appellant’s appeal of a district court order granting temporary visitation of Appellant’s minor children to the children’s maternal grandmother, holding that the order for temporary grandparent visitation was not a final, appealable order. In dismissing the appeal, the court of appeals concluded that the order at issue was a final, appealable order but that the appeal was moot because the order had expired. The court of appeals, however, examined the merits of Appellant’s claims under the public interest exception to the mootness doctrine and concluded that the district court had the authority to issue the temporary order allowing visitation during the pendency of grandparent visitation proceedings. The Supreme Court affirmed on other grounds, holding that the district court’s order of temporary grandparent visitation did not affect a substantial right, and therefore, the court of appeals lacked jurisdiction over the case. View "Simms v. Friel" on Justia Law

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The Supreme Court vacated the orders of the district court making paternity and custody determinations concerning one child but declining to do so with respect to the other child at issue in this case, holding that Mother failed to comply with Neb. Rev. Stat. 25-520.02, and therefore, the district court lacked jurisdiction to enter the relief sought. Specifically, the district court found that Mother did not properly serve Appellee and that it lacked jurisdiction to establish paternity and award custody with respect to one child. The court also failed to find that it was in the children’s best interests to remain in the United States rather than return to Guatemala. Mother challenged these findings on appeal. The Supreme Court dismissed the appeal, holding that Mother did not comply with section 25-520.01, and therefore, her constructive service was improper and the district court lacked personal jurisdiction over Appellee. View "Francisco v. Gonzalez" on Justia Law

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The Supreme Court affirmed the decision of the district court vacated all prior orders pertaining to custody or visitation of Child, holding that the district court properly determined that it did not have and never had subject matter jurisdiction to make custody determinations regarding Child. Father and Mother were married in the nation of Togo, Africa. After they divorced, Father filed a motion to modify the decree, alleging that Mother had taken Child to Togo and refused to return Child to Father. The district court awarded Father sole care, custody, and control of Child. Several years later, Mother filed a motion to vacate the custody decree as it pertained to child custody, arguing that the court never had subject matter jurisdiction to decide custody issues concerning Child. The district court agreed and granted the motion, concluding that Nebraska was not Child’s home state at the time custody proceedings were initiated for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Neb. Rev. Stat. 43-1226 to 43-1266, and therefore, the court never had subject matter jurisdiction under the UCCJEA. The Supreme Court affirmed, holding that the district court never acquired subject matter jurisdiction of the custody of Child and, thus, any actions regarding Child's custody were void. View "DeLima v. Tsevi" on Justia Law

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The Supreme Court affirmed the order of the district court that rescinded an ex parte domestic abuse protection order against Oscar G., holding that the district court did not err in rescinding the ex parte domestic abuse protection order against Oscar. Maria A. and Oscar were the biological parents of Leslie G. Maria filed a petition on Leslie’s behalf to obtain a domestic abuse protection order against Oscar. The district court entered an ex parte domestic abuse protection order barring Oscar from any contact with Oscar. Oscar later requested a hearing on the matter pursuant to Neb. Rev. Stat. 42-925 to show cause why the protection order should not remain in effect. After a show cause hearing, the district court entered an order rescinding the ex parte domestic abuse protection order pertaining to Leslie. The Supreme Court affirmed, holding that the district court did not err in finding that the evidence as a whole was insufficient to show cause why the protection order should not remain in effect. View "Maria A. v. Oscar G." on Justia Law

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The Supreme Court reversed the district court’s finding that the State had a lien on an appearance bond deposit assigned to a debtor’s former attorney, holding that appearance bond funds are not personal property “registered” with a “county office” as required for a lien under Neb. Rev. Stat. 42-371. This appeal related to an order in garnishment enforcing a statutory lien by the State for $18,000 in past-due child support against an appearance bond deposit in the amount of $4,500 held by the clerk of the court in a criminal case unrelated to the child support matter. For payment for the attorney’s services the debtor had assigned to his attorney his contingent right to a return of the bond deposit. During the garnishment proceedings, the attorney filed a motion to quash, arguing that depositing a bond is not “registering” and that the county court is not a “county office” under section 42-371. The district court disagreed and ordered that the bond funds being held by the court be credited against the debtor’s child support arrears. The Supreme Court reversed, holding that the bond deposit was not “registered personal property” under the statute. View "State v. McColery" on Justia Law

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The Supreme Court dismissed the appeal brought from an order of the district court extending a harassment protection order for one year as moot but applied the public interest exception to mootness to address whether a respondent against whom a harassment protection order is sought must appear in person rather than through counsel. During a show cause hearing, the district court concluded that because Respondent appeared through counsel rather than appearing in person, the ex parte harassment protection order against him would automatically be extended for one year. The court allowed Petitioner to testify and allowed Respondent’s counsel to cross-examine Petitioner. The court then found that Petitioner had presented evidence sufficient to extend the harassment protection order for one year to expire on October 5, 2018. The Supreme Court held (1) Respondent’s appeal from the harassment protection order was moot; and (2) through a plain reading of Neb. Rev. Stat. 28-311.09(8)(b), a respondent is entitled to appear by and through his or her counsel. View "Weatherly v. Cochran" on Justia Law

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The Supreme Court affirmed the judgment of the district court denying Barbara Hotz’s motion to modify the divorce judgment, holding that the Nebraska Child Support Guidelines excludes alimony between parents from their total monthly income for the purpose of calculating child support obligations for their children. In dissolving the parties’ marriage, the district court split custody of their children, ordered James Hotz to pay child support until the parties’ oldest child reached the age of majority, and awarded alimony to Barbara. Later, Barbara moved to modify the amount of child support that James paid. The court declined to include James’ alimony payments to Barbara in its calculation of the parties’ total monthly income for the purpose of recalculating child support obligations and abated part of Barbara’s child support obligations. The Supreme Court affirmed, holding that the court did not abuse its discretion in calculating the parties’ child support obligations or abating Barbara’s child support payments. View "Hotz v. Hotz" on Justia Law

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The Supreme Court affirmed the order of the district court that modified Father’s child support obligation to Mother, holding that the district court did not err in the calculation of child support. In the parties’ divorce decree, Mother was granted physical custody of the parties three children, subject to Father’s parenting time, and Father was ordered to pay child support in the amount of $950 per month. Father later filed a complaint seeking modification of custody with respect to the parties’ middle child and a reduction in his child support obligation due to the change in custody. The district court awarded physical custody of the child to Father and modified child support accordingly. The Supreme Court affirmed, holding that the child support order was not a judicial abuse of discretion. View "Armknecht v. Armknecht" on Justia Law

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The Supreme Court held that the county court erred when it declined to make special factual findings for Juvenile to apply for special immigrant juvenile (SIJ) status under 8 U.S.C. 1101(a)(27)(J) on the grounds that it was not a “juvenile court” for purposes of the statute. Juvenile’s grandfather (Grandfather) sought to be appointed as Juvenile’s guardian and requested that the county court make special findings of fact contemplated in section 1101(a)(27)(J) to potentially become eligible for SIJ status. The county court appointed Grandfather as Juvenile’s legal guardian but declined to make the requested special findings of fact that Juvenile could use in his immigration petition based on its conclusion that it did not constitute a “juvenile court” for SIJ findings purposes. The Supreme Court reversed, holding (1) a county court with a jurisdictional basis under Neb. Rev. Stat. 43-1238(a) and which has made a child custody determination, such as appointing a guardian, has authority to make factual findings consistent with 8 U.S.C. 1101(a)(27)(J)(i) and (ii); and (2) the county court erred when it made a custody determination under section 43-1238(a) but then refused to make special findings under 8 U.S.C. 1101(a)(27)(J)(i). View "In re Guardianship of Luis J." on Justia Law

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The Supreme Court affirmed the conclusion of the district court that Mother’s petition for habeas corpus challenging Adoptive Parents’ custody over the child in this case did not state a claim, holding that the court did not err in its ultimate determination that Mother failed to allege facts that would establish that Adoptive Parents were not entitled to sole custody of Mother’s biological child. In her petition, Mother alleged that her relinquishment of parental rights to the Department of Health and Human Services and consent to adoption had been obtained through coercion, false pretenses, or fraud. Specifically, Mother alleged that Adoptive Parents failed to comply with a communication and contact agreement allowing her to have contact with Child. The district court dismissed the petition. The Supreme Court affirmed, holding (1) the district court and the parties did not follow the correct procedure for a habeas proceeding; but (2) Mother’s allegations failed to allege facts that could warrant relief in a habeas proceeding. View "Maria T. v. Jeremy S." on Justia Law