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Heath Wolter, appellee, v.

Christina Fortuna, appell

___ N.W.2d ___

Filed April 30, 2019. No. A-18-267.

1. Domicile: Intent: Words and Phrases. Domicile is obtained only 

through a person’s physical presence accompanied by the present intention to remain indefinitely at a location or site or by the present intention 

to make a location or site the person’s permanent or fixed home.

2. Child Custody: Jurisdiction. Jurisdiction over a child custody proceeding is governed exclusively by the Uniform Child Custody Jurisdiction 

and Enforcement Act.

3. Child Custody: Words and Phrases. “Child custody proceeding” is 

defined under Neb. Rev. Stat. § 43-1227(4) (Reissue 2016) of the 

Uniform Child Custody Jurisdiction and Enforcement Act as a proceeding in which legal custody, physical custody, or visitation with respect to 

a child is an issue and includes a proceeding for paternity in which the 

issue of custody or visitation may appear.

4. Child Custody: Jurisdiction: Appeal and Error. In considering 

whether jurisdiction exists under the Uniform Child Custody Jurisdiction 

and Enforcement Act, 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. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

6. Child Custody: Jurisdiction: States. For a state to exercise jurisdiction 

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.

7. Child Custody: Jurisdiction. A Nebraska court has “last resort” jurisdiction to make an initial child custody determination under Neb. Rev. 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/07/2019 08:06 AM CDT
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Stat. § 43-1238(a)(4) (Reissue 2016) of the Uniform Child Custody 

Jurisdiction and Enforcement Act if no court of any other state would 

have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2), 

or (a)(3) of § 43-1238.

8. ____: ____. A decision to decline to exercise jurisdiction under the 

Uniform Child Custody Jurisdiction and Enforcement Act for the reason 

of an inconvenient forum is entrusted to the discretion of the trial court.

9. Moot Question: Words and Phrases. A moot case is one which seeks 

to determine a question which does not rest upon existing facts or rights, 

in which the issues presented are no longer alive.

10. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

11. Actions: Moot Question. An action becomes moot when the issues 

initially presented in the proceedings no longer exist or the parties lack 

a legally cognizable interest in the outcome of the action.

12. Child Custody: Visitation: Appeal and Error. Child custody determinations, and parenting time determinations, are matters initially entrusted 

to the discretion of the trial court, and although reviewed de novo on the 

record, the trial court’s determination will normally be affirmed absent 

an abuse of discretion.

13. Visitation. The trial court has discretion to set a reasonable parenting 

time schedule.

14. ____. The determination of reasonableness of a parenting plan is to be 

made on a case-by-case basis.

15. ____. Parenting time relates to continuing and fostering the normal 

parental relationship of the noncustodial parent.

16. ____. The best interests of the children are the primary and paramount 

considerations in determining and modifying visitation rights.

17. Evidence: Appeal and Error. Where credible evidence is in conflict 

on a material issue of fact, the appellate court considers, and may give 

weight to, the fact that the trial court heard and observed the witnesses 

and accepted one version of the facts rather than another.

18. Paternity: Attorney Fees: Appeal and Error. An award of attorney 

fees in a paternity action is reviewed de novo on the record to determine 

whether there has been an abuse of discretion by the trial judge. Absent 

such an abuse, the award will be affirmed.

19. Attorney Fees. As a general rule, attorney fees and expenses may be 

recovered in a civil action only where provided for by statute or when a 

recognized and accepted uniform course of procedure has been to allow 

recovery of attorney fees.

20. Paternity: Child Support: Attorney Fees: Costs. Attorney fees and 

costs are statutorily allowed in paternity and child support cases.
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21. Child Custody: Jurisdiction: Attorney Fees. Under the Uniform 

Child Custody Jurisdiction and Enforcement Act, the court shall award 

the prevailing party attorney fees unless the party from whom fees 

or expenses are sought establishes that the award would be clearly 

inappropriate.

22. Attorney Fees. Customarily, attorney fees and costs are awarded only to 

the prevailing party or assessed against those who file frivolous suits.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Aff

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Heath Wolter, pro se.

Riedmann, Bishop, and Welch, Ju

Riedmann, Jud

INTRODUCTION

Christina Fortuna appeals the order of the district court for 

Lancaster County, which established paternity and determined 

custody and parenting time for the parties’ minor child. Finding 

no merit to the arguments raised on appeal, we affirm.

BACKGROUND

Fortuna gave birth to a child in December 2015. In March 

2016, Fortuna and the child moved from Nebraska to Florida 

in order to live with Fortuna’s mother. In June, the Nebraska 

Department of Health and Human Services determined that 

Heath Wolter was the father of the child and sent notice to 

Fortuna and Wolter. Thus, on July 1, Wolter filed a complaint 

in the district court for Cass County asking the court to enter 

an order for custody, parenting time, and child support.

At the same time, Wolter filed a motion for ex parte temporary custody. The court declined to enter an ex parte order 

but set the matter for hearing on July 18, 2016. Fortuna, 

pro se, requested a continuance on July 15, and the court 

rescheduled the hearing for August 15. Thereafter, Fortuna 

obtained counsel who filed a motion to dismiss the action, 
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arguing that despite its caption, Wolter’s complaint was a 

complaint to establish paternity, and that the court lacked 

jurisdiction because the child was neither domiciled nor found 

in Nebraska.

After holding a hearing, the district court denied the motion 

to dismiss, finding that it had jurisdiction over the matter, 

and ordered Fortuna to return the child to Nebraska within 

30 days. On September 22, 2016, Wolter filed a motion for 

temporary custody in which he alleged that Fortuna had not 

returned to Nebraska as previously ordered. In an order dated 

September 26, the court awarded temporary custody of the 

child to Fortuna, who had returned to Nebraska, and granted 

Wolter parenting time with the child a minimum of every other 

Saturday from 9 a.m. until 6 p.m.

In October 2016, Fortuna filed several motions, including a motion to decline jurisdiction under the Uniform Child 

Custody Jurisdiction and Enforcement Act (UCCJEA), motion 

for temporary child support, motion for temporary removal of 

the child, motion to transfer the action from Cass County to 

Lancaster County, and motion to excuse some of the requirements of Nebraska’s Parenting Act. The district court for Cass 

County granted the motion to transfer and awarded temporary 

child support, to be paid by Wolter, in the amount of $389 per 

month. The court reserved ruling on the remaining motions 

pending transfer of the action. Thereafter, the district court 

for Lancaster County considered the outstanding motions and 

denied each of them.

Trial on the issues of paternity, custody, parenting time, and 

child support was held on November 1, 2017. At the outset, 

the parties stipulated as to Wolter’s paternity of the child.

Fortuna testified that she moved to Florida in March 2016, 

and that at the time, her mother had lived there for approximately 1 year. Fortuna did not work while living in Florida 

and planned to stay home with the child for the first year of 

his life while living with her mother. She did receive government assistance in the form of “SNAP” and Medicaid while 
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in Florida. At the time of trial, Fortuna had moved back to 

Nebraska. She was again living with her mother, who had 

also returned to Nebraska and intended to remain here.

Fortuna proposed a parenting plan in which Wolter would 

receive parenting time every other Saturday for 8 hours per 

day. In her opinion, the child was too young for overnight visits. She also explained that Wolter does not listen to her when 

she tries to provide him with information regarding the child 

and has missed several of his scheduled visits. She acknowledged that there have been times that Wolter has asked for 

additional time with the child, but she refused to give him that 

time because it was not his designated parenting time.

Fortuna expressed additional concerns that “[a]bout half the 

time” when the child would return from Wolter, he would be 

“a little dehydrated and hungry,” and that Wolter did not pay 

enough attention to the child during his parenting time. She 

was also concerned about the condition of Wolter’s residence 

because it has “a bunch of holes in the walls,” “it leaks,” 

and it has “moldy” walls in the laundry room. Ultimately, 

she believed that her proposed parenting plan was in the best 

interests of the child. Because of the child’s young age and 

the fact that Wolter did not exercise his time with the child 

regularly, she believed it was in the child’s best interests “to 

stay mostly with [her].”

Wolter also testified and admitted that he missed some of 

his scheduled visits. He explained that at that time, he was 

working as the general manager of a chain of gas stations, 

and that at times, he would unexpectedly have to cover shifts 

for employees who did not show up for work, causing him to 

miss some of his Saturday visits. He testified that he has since 

left that employment, in part because it was interfering with 

his time with his child.

Wolter’s live-in girlfriend testified at trial that she has been 

present during his parenting time and has no concerns about 

his ability to parent. She explained that the child is close 

with Wolter and is happy while at Wolter’s house. She has 
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observed Wolter tend to the child’s needs, such as making him 

food and changing his diapers.

Wolter proposed a parenting plan in which he would initially receive parenting time every other week from Thursday 

evening through Monday morning, and beginning January 1, 

2018, the parties would begin a “one week on, one week off” 

arrangement. He opined that this plan was in the child’s best 

interests, because it would allow him to be part of his child’s 

life and because the parenting time he received under the 

temporary order, which amounted to 18 hours per month, was 

insufficient to allow him to be a father to his child.

On February 14, 2018, the court entered an order finding 

that venue was proper and that it had jurisdiction over the parties and the subject matter of the proceeding. The court determined that Wolter was the father of the minor child. Legal and 

physical custody of the child was awarded to Fortuna subject 

to Wolter’s parenting time set out in an attached parenting 

plan. The parenting plan awarded Wolter parenting time for 

every other week from Thursday evening through Monday 

morning, certain holidays, and two 2-week periods in the summer. Wolter was ordered to pay child support in the amount of 

$533 per month, and each party was ordered to pay his or her 

own attorney fees.

The following month, the court entered an order which 

reads, “The Court finds that the Parenting Plan filed February 

14, 2018 and the Order filed February 14, 2018 are filed as 

separate filings in this matter. The Parenting Plan should be 

filed as an attachment to the Order.” Fortuna timely appeals to 

this court.

ASSIGNMENTS OF ERROR

Fortuna assigns, renumbered and restated, that the district 

court (1) erred in finding that it had jurisdiction to make 

an initial custody determination; (2) abused its discretion in 

denying her motion to decline jurisdiction, because Florida 

was a more appropriate forum; (3) lacked authority to set a 
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temporary hearing to be held on July 18, 2016; (4) lacked 

authority to order her to move herself and the child back to 

Nebraska and to thereafter reside in Nebraska as a condition of 

her having custody of the child and lacked authority to award 

visitation to Wolter; (5) abused its discretion in not excusing 

Fortuna’s compliance with the Parenting Act requirements; (6) 

abused its discretion in not adopting her proposed parenting 

plan; and (7) abused its discretion in failing to order Wolter to 

pay her attorney fees.

ANALYSIS

Subject Matter Jurisdiction.

Fortuna argues that the district court erred in concluding it 

had jurisdiction to make an initial child custody determination 

and that as a result, its custody order is void. We disagree.

[1] Fortuna claims that despite the fact that Wolter’s initial pleading was captioned as a complaint for custody, the 

pleading was in reality a complaint to establish paternity of 

the child. She correctly notes that a proceeding to establish 

the paternity of a child may be instituted in the court of the 

district where the child is domiciled or found, subject to an 

exception not present here. See Neb. Rev. Stat. § 43-1411 

(Reissue 2016). Domicile is obtained only through a person’s 

physical presence accompanied by the present intention to 

remain indefinitely at a location or site or by the present intention to make a location or site the person’s permanent or fixed 

home. Metzler v. Metzler, 25 Neb. App. 757, 913 N.W.2d 733 

(2018). It is undisputed that at the time the complaint was 

filed, the child was domiciled in Florida.

[2] On the other hand, jurisdiction over a child custody 

proceeding is governed exclusively by the UCCJEA. In re 

Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018). 

The question then becomes whether the instant matter constitutes a proceeding to establish the paternity of a child or a 

child custody proceeding.

An action for paternity or parental support under Neb. Rev. 

Stat. §§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp. 
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2018) may be initiated by filing a complaint with the clerk 

of the district court as provided in Neb. Rev. Stat. § 25-2740 

(Cum. Supp. 2018). § 43-1411.01(1). Section 25-2740(1)(b) 

provides that “[p]aternity or custody determinations means 

proceedings to establish the paternity of a child under sections 43-1411 to 43-1418 or proceedings to determine custody 

of a child under section 42-364.” Thus, the law distinguishes 

paternity actions from custody actions.

[3] Similarly, “[c]hild custody proceeding” is defined under 

Neb. Rev. Stat. § 43-1227(4) (Reissue 2016) of the UCCJEA 

as “a proceeding in which legal custody, physical custody, or 

visitation with respect to a child is an issue.” The term “[c]hild 

custody proceeding” includes a proceeding for paternity in 

which the issue of custody or visitation may appear. Id.

From the foregoing, we deduce that if the proceeding is 

solely to establish the paternity of a child or seeks parental support, § 43-1411 applies, and the proceeding is to be 

instituted in the court of the district where the child is domiciled or found. But when the custody and/or visitation of a 

child is also at issue, even if the action is a paternity action, 

jurisdiction over the proceeding is governed exclusively by 

the UCCJEA.

Accordingly, the present case is governed by the UCCJEA, 

not § 43-1411, even though Wolter sought to establish his 

paternity, because he was also seeking an order regarding custody and visitation. We observe that there have been two previous cases in which this court has determined that Nebraska 

has jurisdiction under the UCCJEA over actions where a putative father filed a complaint seeking to establish paternity and 

custody of a child located outside of Nebraska at the time the 

complaint was filed. See, Shandera v. Schultz, 23 Neb. App. 

521, 876 N.W.2d 667 (2016); Zimmerman v. Biggs, 22 Neb. 

App. 119, 848 N.W.2d 653 (2014).

[4,5] Having decided that the UCCJEA applies, we must 

now determine whether the district court properly found that 

it had jurisdiction over the proceeding. In considering whether 
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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., 300 Neb. 72, 912 N.W.2d 

262 (2018). Statutory interpretation is a question of law, 

which an appellate court resolves independently of the trial 

court. Id.

Jurisdiction to make an initial child custody determination 

is governed by Neb. Rev. Stat. § 43-1238 (Reissue 2016) 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 commencement 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 jurisdiction on the ground that this state is the 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 concerning 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 
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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 jurisdictional basis for making a child custody determination 

by a court of this state.

[6] 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. In re Guardianship 

of S.T., supra. 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. In 

re Guardianship of S.T., supra.

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.” § 43-1227(7). 

As used in the UCCJEA, “[c]ommencement” of a proceeding means “the filing of the first pleading in a proceeding.” 

§ 43-1227(5).

In the present case, Nebraska was not the child’s home state 

because the child had not lived in Nebraska for 6 consecutive months. Therefore, Nebraska did not have subject matter 

jurisdiction over the proceeding under § 43-1238(a)(1).

[7] However, a Nebraska court has jurisdiction to make an 

initial child custody determination under § 43-1238(a)(4) of 

the UCCJEA if “no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2), 

or (a)(3) of [§ 43-1238].” See DeLima v. Tsevi, 301 Neb. 933, 

921 N.W.2d 89 (2018). This has been referred to as “last 

resort” jurisdiction. See id.
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Jurisdiction under § 43-1238(a)(4) here depends on whether 

a Florida court would have had jurisdiction to make an initial child custody determination under the criteria set forth in 

either subsection (a)(1), (a)(2), or (a)(3). See DeLima v. Tsevi, 

supra. As with Nebraska, Florida would not qualify as the 

child’s home state under § 43-1238(a)(1) because the child had 

not lived in Florida for at least 6 consecutive months before 

the action was commenced.

With respect to § 43-1238(a)(2), Florida would have jurisdiction under this subsection if no court has jurisdiction as the 

child’s home state and the following are true:

(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 concerning the child’s care, protection, training, and personal 

relationships.

This basis for jurisdiction under the UCCJEA is commonly 

referred to as “significant connection” jurisdiction. DeLima v. 

Tsevi, supra.

When tasked with deciding whether an individual has a 

significant connection to a state for purposes of this section 

of the UCCJEA, courts consider a wide variety of ties to the 

state. DeLima v. Tsevi, supra. Relying upon cases from other 

jurisdictions, the Nebraska Supreme Court in DeLima iterated 

that some factors that have been weighed in these cases are 

the child’s relationship with extended or blended family members; enrollment in school or day care; participation in social 

activities; access to medical, dental, or psychological care; the 

availability of government assistance; or the parent’s employment or family ties.

In DeLima v. Tsevi, supra, the Supreme Court concluded 

that the child and his mother had a significant connection 

to the nation of Togo because the child resided with family 

members in the country continuously for 6 years and attended 
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school and received medical attention there. In addition, the 

mother was married in Togo, had family living there, and voluntarily sent the child to live in Togo with his maternal grandmother while the mother remained in Nebraska.

To the contrary here, Fortuna and the child had lived in 

Florida for fewer than 4 months at the time this proceeding was 

commenced. Fortuna was not working in Florida or looking 

for employment, but she did receive government assistance in 

the form of “SNAP” and Medicaid. Fortuna testified that she 

found a pediatrician in Florida for the child, but it is unclear 

whether the child received any medical care there, and the 

child did not attend daycare. Fortuna and the child lived with 

Fortuna’s mother, but at the time Fortuna moved to Florida, 

her mother had lived in the state for only 1 year. There was 

no evidence that Fortuna had any other family members living 

in Florida. On the other hand, Fortuna has siblings that live in 

Nebraska, and her mother moved back to Nebraska in October 

2017. Based on the foregoing, we conclude that Fortuna and 

the child did not have a significant connection with Florida 

at the time the action was commenced, and therefore, Florida 

would not have had jurisdiction to make an initial child custody determination under § 43-1238(a)(2).

Finally, § 43-1238(a)(3) provides for jurisdiction when all 

courts having jurisdiction under subsection (a)(1) or (a)(2) 

have declined to exercise jurisdiction on the ground that a 

court of this state is the more appropriate forum. There is no 

evidence that any courts in the present case have declined to 

exercise jurisdiction on the ground that Florida is the more 

appropriate forum. Accordingly, a court in Florida could not 

have exercised jurisdiction under § 43-1238(a)(3). Because 

Florida would not have jurisdiction over this matter under 

the criteria specified in subsections (a)(1), (a)(2), or (a)(3), 

Nebraska has “last resort” jurisdiction under § 43-1238(a)(4). 

As a result, the district court did not err in concluding that it 

had jurisdiction over the proceedings and entering a custody 

order after trial.
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Inconvenient Forum.

Fortuna next asserts that even if the district court had jurisdiction to make an initial child custody determination, the court 

should have declined jurisdiction because Florida was a more 

appropriate forum. We find no merit to this argument.

[8] A court of this state which has jurisdiction under Neb. 

Rev. Stat. § 43-1244(a) (Reissue 2016) of the UCCJEA to 

make a child custody determination may decline to exercise 

its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of 

another state is a more appropriate forum. As a general rule, a 

decision to decline to exercise jurisdiction under the UCCJEA 

for the reason of an inconvenient forum is entrusted to the 

discretion of the trial court. Watson v. Watson, 272 Neb. 647, 

724 N.W.2d 24 (2006).

Before determining whether it is an inconvenient forum, a 

court of this state shall consider whether it is appropriate for 

a court of another state to exercise jurisdiction. § 43-1244(b). 

For this purpose, the court shall allow the parties to submit 

information and shall consider all relevant factors, including:

(1) whether domestic violence has occurred and is 

likely to continue in the future and which state could best 

protect the parties and the child;

(2) the length of time the child has resided outside 

this state;

(3) the distance between the court in this state and the 

court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state 

should assume jurisdiction;

(6) the nature and location of the evidence required 

to resolve the pending litigation, including testimony of 

the child;

(7) the ability of the court of each state to decide the 

issue expeditiously and the procedures necessary to present the evidence; and
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(8) the familiarity of the court of each state with the 

facts and issues in the pending litigation.

§ 43-1244(b).

The evidence in the present case reveals that at the time 

the action was commenced, the child had resided outside 

of Nebraska for fewer than 4 months. The court that would 

assume jurisdiction is located in Florida, but there was no evidence presented as to the exact distance between the courts.

There is a disparity in the financial circumstances of the 

parties: Wolter was working full time, and Fortuna was unemployed. At the time the hearing on this motion was held, however, Fortuna had moved back to Nebraska, and was looking 

for employment, and Wolter had been ordered to pay temporary child support.

The child is too young to testify, and otherwise, the evidence required to resolve the pending litigation would be presented in the form of testimony from Wolter and Fortuna, both 

of whom were residing in Nebraska. There was no specific 

evidence as to the ability of the court of each state to decide 

the issue expeditiously and the procedures necessary to present 

the evidence or the familiarity of the court of each state with 

the facts and issues in the pending litigation.

Before determining whether Nebraska was an inconvenient 

forum, the court was required to consider whether it would 

be appropriate for a court in Florida to exercise jurisdiction. 

Pursuant to § 43-1244(b), the court held an evidentiary hearing 

on the issue. Based on the foregoing evidence that was presented at that hearing, we conclude that the district court did 

not abuse its discretion in concluding that Florida would not 

be an appropriate forum and accordingly denying Fortuna’s 

motion to decline jurisdiction.

Authority to Schedule Temporary Hearing.

Fortuna asserts that the district court erred in entering an 

order setting the matter for a temporary hearing on July 18, 

2016, because this was a paternity action and paternity had 
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not yet been established. Even assuming without deciding 

that the court’s order was an abuse of discretion, we cannot 

afford relief to Fortuna from the temporary order. See, State 

ex rel. Pathammavong v. Pathammavong, 268 Neb. 1, 679 

N.W.2d 749 (2004); Coleman v. Kahler, 17 Neb. App. 518, 

766 N.W.2d 142 (2009).

[9] A moot case is one which seeks to determine a question 

which does not rest upon existing facts or rights, in which 

the issues presented are no longer alive. Coleman v. Kahler, 

supra. The issue of whether the district court erred in scheduling a temporary hearing and thereafter entering a temporary 

order was relevant only from the time the order was entered 

until it was replaced by the final order after trial. Therefore, 

any issue relating to the temporary order is moot and need not 

be resolved in this appeal. See id.

Authority to Order Return to Nebraska 

and Award Visitation.

Fortuna challenges the court’s authority to order her to 

return the child to Nebraska in the August 22, 2016, order 

and to award Wolter visitation with the child in the September 

26 order. We note, however, that Fortuna did not raise these 

issues before the district court.

[10] An appellate court will not consider an issue on appeal 

that was not presented to or passed upon by the trial court. 

Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 

N.W.2d 906 (2016). After reviewing the transcript in the 

instant case, we observe that Fortuna referenced her belief that 

the district court lacked the authority to order her to return to 

Nebraska, but she never placed the issue before the district 

court in the form of a motion for the court’s consideration and 

ruling. To the extent Fortuna relies upon her belief that the 

district court lacked jurisdiction to enter either order, we have 

resolved that issue. Because the arguments Fortuna asserts on 

appeal were not presented to the district court, we do not consider them on appeal.
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Compliance With Parenting 

Act Requirements.

Fortuna contends that the district court abused its discretion 

in not excusing her compliance with the Parenting Act requirements of mediation and a parenting education course. We find 

these issues to be moot.

Fortuna filed a motion asking the district court to waive the 

parties’ participation in mediation pursuant to Neb. Rev. Stat. 

§ 43-2937(4) (Reissue 2016). The court denied the motion, and 

at trial, Wolter testified that the parties had attempted mediation but were unsuccessful.

[11] An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a 

legally cognizable interest in the outcome of the action. Nesbitt 

v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018). Because the 

parties attended mediation and ultimately a trial on the issues 

was held, the issue of whether the court should have waived 

the mediation requirement is moot.

Likewise, Fortuna requested that the court, under Neb. Rev. 

Stat. § 43-2928(1) (Reissue 2016), excuse her participation 

in the required parenting education course. The motion was 

denied, and as noted above, trial was held. Rules of Dist. Ct. of 

Third Jud. Dist. 3-9(B) (rev. 1995) provides that the court may 

not schedule a hearing on a motion to set the case for trial until 

the parties have completed the statutorily required parenting 

classes. Because the court declined to excuse participation in 

the parenting classes and trial was held, we infer that Fortuna 

completed the required course prior to trial. As a result, this 

issue is also moot.

Parenting Plan.

Fortuna claims that the court should have adopted the parenting plan she proposed because it was in the child’s best 

interests. We find no abuse of discretion in the parenting plan 

adopted by the district court.
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[12] Child custody determinations, and parenting time determinations, are matters initially entrusted to the discretion of 

the trial court, and although reviewed de novo on the record, 

the trial court’s determination will normally be affirmed absent 

an abuse of discretion. Aguilar v. Schulte, 22 Neb. App. 80, 

848 N.W.2d 644 (2014).

[13-16] The trial court has discretion to set a reasonable 

parenting time schedule. Thompson v. Thompson, 24 Neb. App. 

349, 887 N.W.2d 52 (2016). The determination of reasonableness of a parenting plan is to be made on a case-by-case 

basis. Id. Parenting time relates to continuing and fostering 

the normal parental relationship of the noncustodial parent. 

Id. The best interests of the children are the primary and paramount considerations in determining and modifying visitation 

rights. Id.

In determining custody and parenting arrangements, the 

court shall consider the best interests of the minor child, 

which shall include, but not be limited to, consideration of 

the following:

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if 

of an age of comprehension but regardless of chronological age, when such desires and wishes are based on 

sound reasoning;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member . . . ; and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

Neb. Rev. Stat. § 43-2923(6) (Reissue 2016). See, also, State 

on behalf of Slingsby v. Slingsby, 25 Neb. App. 239, 903 

N.W.2d 491 (2017).
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Fortuna testified at trial as to her concerns regarding 

Wolter’s ability to parent the child, including the fact that 

he canceled several visits, the condition of his residence, and 

her perception that he was unable to care for a young child. 

She believed that the child was too young for overnight visits 

with Wolter.

Wolter admitted to canceling some of his parenting time, 

but explained that he had to do so because of employment 

issues and that he has since left that job in part because it 

was interfering with his parenting time. He opined that his 

proposed parenting plan was in the best interests of the child 

because it would allow him to be part of the child’s life.

[17] Essentially, Fortuna did not believe that overnight visits were in the child’s best interests, but Wolter did. In fact, 

the parenting plan proposed by Fortuna afforded Wolter less 

parenting time than he was receiving under the temporary 

order. She proposed that he receive parenting time for every 

other Saturday from 10 a.m. until 6 p.m. and certain holidays, 

but no overnight visits. Where credible evidence is in conflict 

on a material issue of fact, the appellate court considers, and 

may give weight to, the fact that the trial court heard and 

observed the witnesses and accepted one version of the facts 

rather than another. Schmeidler v. Schmeidler, 25 Neb. App. 

802, 912 N.W.2d 278 (2018).

Here, in adopting a parenting plan almost identical to 

Wolter’s proposed plan and affording him overnight visits, the 

district court apparently found Wolter’s testimony more credible. We give weight to the district court’s assessment of the 

evidence presented.

We understand Fortuna’s position given the young age of 

the child and the relatively little amount of time Wolter has 

spent with the child during his lifetime. However, parenting 

time relates to continuing and fostering the normal parental relationship of the noncustodial parent. See Thompson 

v. Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (2016). 

Fortuna’s proposed plan granting Wolter just 16 hours of 
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parenting time per month with the child does little to continue 

and foster Wolter’s relationship with the child. We therefore 

cannot find that the court abused its discretion in declining to 

adopt Fortuna’s proposed parenting plan.

Attorney Fees.

Fortuna argues that the district court erred in denying her 

request for attorney fees. We find no merit to this argument.

[18] An award of attorney fees in a paternity action is 

reviewed de novo on the record to determine whether there has 

been an abuse of discretion by the trial judge. Absent such an 

abuse, the award will be affirmed. Jessen v. Line, 16 Neb. App. 

197, 742 N.W.2d 30 (2007).

[19,20] As a general rule, attorney fees and expenses may 

be recovered in a civil action only where provided for by 

statute or when a recognized and accepted uniform course 

of procedure has been to allow recovery of attorney fees. 

Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009). 

Attorney fees and costs are statutorily allowed in paternity 

and child support cases. Id. See Neb. Rev. Stat. § 43-1412(3) 

(Reissue 2016).

[21,22] Further, under Neb. Rev. Stat. § 43-1259(a) (Reissue 

2016) of the UCCJEA, the court shall award the prevailing party attorney fees unless the party from whom fees 

or expenses are sought establishes that the award would be 

clearly inappropriate. Coleman v. Kahler, supra. Customarily, 

attorney fees and costs are awarded only to the prevailing party 

or assessed against those who file frivolous suits. Id.

Here, Fortuna sought an award of attorney fees from Wolter, 

but it was Wolter who was the prevailing party. His paternity 

of the child was established, and despite Fortuna’s objection to 

overnight visits, the court granted Wolter parenting time every 

other weekend from Thursday evening until Monday morning, as Wolter requested, and awarded him parenting time for 

certain holidays and two 2-week periods in the summer. The 

court also adopted his proposed child support calculations. In 
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addition, despite Fortuna’s repeated attempts, the court properly found that it had jurisdiction over the matter under the 

UCCJEA. Accordingly, the court did not abuse its discretion in 

declining to award attorney fees to Fortuna.

CONCLUSION

We find no merit to the arguments raised on appeal and 

therefore affirm the order of the district court.

Affirmed