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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

Brooke B. Hogan, appellant, v. 

Nicholas T. Hogan, appellee.

___ N.W.2d ___

Filed February 12, 2021. No. S-20-254.

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 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.

3. Divorce: Judgments: Appeal and Error. The meaning of a divorce 

decree presents a question of law, in connection with which an appellate 

court reaches a conclusion independent of the determination reached by 

the court below.

4. Child Custody: Jurisdiction. Jurisdiction over a child custody proceeding with interstate implications, including one seeking to modify a child 

custody decision, is governed exclusively by the Uniform Child Custody 

Jurisdiction and Enforcement Act.

5. ____: ____. Under the Uniform Child Custody Jurisdiction and 

Enforcement Act, Neb. Rev. Stat. § 43-1239 (Reissue 2016), a state’s 

exclusive and continuing jurisdiction is relinquished when both parties 

and the children no longer reside in the state.

6. Jurisdiction: Service of Process. A voluntary appearance of a party is 

equivalent to service of process for purposes of personal jurisdiction.

7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

Nebraska Supreme Court Online Library

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

03/05/2021 01:09 AM CST
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

8. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a 

judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of 

the parties.

9. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

10. ____: ____. A court action taken without subject matter jurisdiction 

is void.

Appeal from the District Court for Douglas County: Gary 

B. Randall, Judge. Affirmed.

Andrea L. McChesney, of McChesney Family Law Office, 

for appellant.

Dennis G. Whelan, of Slowiaczek Albers, P.C., L.L.O., 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Brooke B. Hogan, appellant, and Nicholas T. Hogan, appellee, were divorced in February 2019, in Douglas County, 

Nebraska. Several months after the decree and parenting plan 

were entered, Brooke and Nicholas jointly sought permission to move from Nebraska to Arizona, and the district court 

entered an order modifying the parties’ parenting plan accordingly. The parties and the children moved to Arizona. Later 

the same year, Brooke initiated the present matter when she 

filed a complaint in the Douglas County District Court to 

modify the decree and parenting plan, with the ultimate objective of allowing her to move, with the parties’ children, back 

to Nebraska. Nicholas moved to dismiss Brooke’s complaint 

to modify the decree, claiming that under Neb. Rev. Stat. 

§ 43-1239(a)(2) (Reissue 2016), of Nebraska’s Uniform Child 

Custody Jurisdiction and Enforcement Act (UCCJEA), the 

district court lacked subject matter jurisdiction because the 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

parties and children no longer resided in Nebraska. The district 

court determined that the parties and children did not reside in 

Nebraska, that it lacked continuing exclusive jurisdiction over 

the child custody determination, and that proper jurisdiction of 

the current issue is with Arizona. The district court dismissed 

Brooke’s complaint to modify. Brooke appeals. We conclude 

that the district court’s jurisdictional ruling was proper and, in 

so doing, make no comment on the merits of Brooke’s complaint to modify. We affirm.

STATEMENT OF FACTS

On February 4, 2019, the district court entered a decree of 

dissolution of marriage and a parenting plan, which awarded 

the parties joint legal and physical custody of their minor children, subject to parenting time set forth in the parenting plan.

In April 2019, the parties filed a joint complaint to modify 

the decree and parenting plan to allow them to move with the 

children from Nebraska to Arizona. The district court entered 

the stipulated order. Each party subsequently purchased a home 

in the Phoenix area, and they moved to Arizona. By the time 

the children started the school year on August 15, Brooke, 

Nicholas, and the children were residing in Arizona.

On October 22, 2019, Brooke filed a complaint to modify 

in the Douglas County District Court, seeking a modification 

of the parenting plan with the ultimate objective of gaining 

permission to return with the children to Nebraska. In support 

of her motion, Brooke stated that she and the children had 

encountered problems transitioning to living in Arizona. She 

asserted that she and the children have no friends or family 

in Arizona and struggled to find safe housing and appropriate schools.

On October 25, 2019, Nicholas entered a voluntary appearance and, on October 30, filed a motion to dismiss the complaint to modify on the basis that the Nebraska court lacked 

subject matter jurisdiction under § 43-1239(a)(2). Section 

43-1239 provides, in relevant part:
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

[A] court of this state which has made a child custody 

determination consistent with section 43-1238 or 43-1240 

has exclusive, continuing jurisdiction over the determination until . . . (2) a court of this state or a court of another 

state determines that the child, the child’s parents, and 

any person acting as a parent do not presently reside in 

this state.

Brooke claimed that Nebraska retained continuing exclusive 

jurisdiction because it continued to be the residence, place of 

domicile, and home state of the children within 6 months before 

the commencement of the complaint to modify. In support of 

her claim, she asserted that during the 6 months prior to her 

complaint, the parties continued to own homes in Nebraska, 

they had driver’s licenses and registered vehicles in Nebraska, 

they maintained voter’s rights in Nebraska, and the children 

were seen by doctors and dentists in Nebraska. However, she 

admitted that by August 2019, the parties resided in Arizona.

Nicholas noted that under § 43-1239(a)(2), because neither the parties nor the children resided in Nebraska when 

Brooke filed her complaint to modify, jurisdiction was proper 

in Arizona.

Following a hearing, the district court determined that 

because the parties and the children resided in Arizona when 

Brooke filed her complaint, Nebraska should relinquish exclusive continuing jurisdiction over modifications to the child custody determination. The court specifically noted that Brooke 

had stipulated to an order approximately 5 months before, 

showing the parties’ intention to move to Arizona and remain 

there with the minor children, which order was not appealed. 

The district court noted that it had conferred with the Maricopa 

County Superior Court of Arizona to review factors of the 

UCCJEA and determined that jurisdiction was appropriate 

in Arizona. On January 9, 2020, the district court granted 

Nicholas’ motion to dismiss for lack of continuing exclusive 

jurisdiction under § 43-1239(a)(2) and dismissed Brooke’s 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

complaint to modify. Brooke unsuccessfully filed a motion 

to reconsider.

Brooke appeals.

ASSIGNMENTS OF ERROR

Brooke assigns, summarized and restated, that the district 

court erred when it dismissed her complaint to modify the 

decree. She specifically claimed that Nebraska had exclusive 

continuing jurisdiction (1) under § 43-1239(a)(1) and, further, (2) because Nicholas conferred jurisdiction on the district court.

STANDARDS OF REVIEW

[1] 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).

[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. In re Guardianship of 

S.T., supra.

[3] The meaning of a divorce decree presents a question 

of law, in connection with which an appellate court reaches 

a conclusion independent of the determination reached by 

the court below. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 

694 (2020).

ANALYSIS

Brooke contends that the district court retained continuing exclusive jurisdiction to make child custody determinations and that it erred when it granted Nicholas’ motion to 

dismiss and dismissed her complaint to modify the parenting 

plan. She specifically claimed that (1) due to connections 

to Nebraska, § 43-1239(a)(1) vested the district court with 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

continuing exclusive jurisdiction, and (2) Nicholas conferred 

jurisdiction on the district court by making a voluntary appearance and by agreeing to application of Nebraska law. We reject 

these arguments.

§ 43-1239 Analysis.

[4] Jurisdiction over a child custody proceeding with interstate implications, including one seeking to modify a child custody decision, is governed exclusively by the UCCJEA. See In 

re Guardianship of S.T., supra. The purposes of the UCCJEA 

are to avoid interstate jurisdictional competition and conflict in 

child custody matters, to promote cooperation between courts 

of other states so that a custody determination can be rendered 

in a state best suited to decide the case in the interest of the 

child, to discourage the use of the interstate system for continuing custody controversies, to deter child abductions, to avoid 

relitigation of custody issues, and to facilitate enforcement of 

custody orders. Watson v. Watson, 272 Neb. 647, 724 N.W.2d 

24 (2006).

A Nebraska court which made an initial custody determination applies § 43-1239 to determine whether it has continuing 

exclusive jurisdiction to modify child custody. Section 43-1239 

provides as follows:

(a) Except as otherwise provided in section 43-1241, 

a court of this state which has made a child custody 

determination consistent with section 43-1238 or 43-1240 

has exclusive, continuing jurisdiction over the determination until:

(1) a court of this state determines that neither the 

child, nor the child and one parent, nor the child and a 

person acting as a parent have a significant connection 

with this state and that substantial evidence is no longer 

available in this state concerning the child’s care, protection, training, and personal relationships; or

(2) a court of this state or a court of another state determines that the child, the child’s parents, and any person 

acting as a parent do not presently reside in this state.
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308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

(b) A court of this state which has made a child custody 

determination and does not have exclusive, continuing 

jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 43-1238.

[5] Here, because neither the parties nor the children resided 

in Nebraska at the time of Brooke’s filing, the district court 

did not err when it found that under § 43-1239(a)(2), Nebraska 

no longer possessed exclusive, continuing jurisdiction. This is 

because when the children and the parents have moved away 

from the issuing state, the issuing state no longer meets the jurisdictional prerequisites of § 43-1239(a). Such was the case here. 

Nebraska’s exclusive and continuing jurisdiction was relinquished because both parties and the children no longer reside 

in the state. See, Watson v. Watson, supra; § 43-1239(a)(2). The 

record was undisputed that Brooke, Nicholas, and the children 

resided in Arizona by August 2019.

Brooke made several arguments that their move was so 

recent that the parties retained a “significant connection” 

to Nebraska and that, hence, Nebraska retained jurisdiction 

under § 43-1239(a)(1). In contrast, relying on § 43-1239(a)(2), 

Nicholas argued that because the parties and children had moved 

to Arizona, the Nebraska court was no longer the exclusive 

forum. We agree with Nicholas, as did the district court. The 

statute is constructed such that jurisdiction may be relinquished 

based on either § 43-1239(a)(1) or § 43-1239(a)(2). Even 

assuming that Nebraska could maintain continuing jurisdiction 

over the child custody determination under § 43-1239(a)(1), 

the court did not err when it determined it had lost exclusivity under § 43-1239(a)(2). This assignment of error is without merit.

Subject Matter Jurisdiction.

Brooke next contends that Nicholas conferred subject matter 

jurisdiction on the district court by filing a voluntary appearance and, in addition, that he acquiesced to proceedings in 

Nebraska when he agreed to application of Nebraska law in 
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308 Nebraska Reports

HOGAN v. HOGAN

Cite as 308 Neb. 397

the parties’ modified stipulated decree and parenting plan. It 

is axiomatic that parties cannot confer subject matter jurisdiction upon a judicial tribunal by consent, and we find no merit 

to this argument.

[6-10] A voluntary appearance of a party is equivalent to 

service of process for purposes of personal jurisdiction. See 

Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011). 

Subject matter jurisdiction is the power of a tribunal to hear 

and determine a case in the general class or category to which 

the proceedings in question belong and to deal with the general 

subject matter involved. J.S. v. Grand Island Public Schools, 

297 Neb. 347, 899 N.W.2d 893 (2017). Parties cannot confer 

subject matter jurisdiction upon a judicial tribunal by either 

acquiescence or consent, nor may subject matter jurisdiction be 

created by waiver, estoppel, consent, or conduct of the parties. 

Id. Lack of subject matter jurisdiction may be raised at any 

time by any party or by the court sua sponte. Id. A court action 

taken without subject matter jurisdiction is void. Id.

As we understand Brooke’s argument, she asks this court to 

ignore the UCCJEA and instead conclude that Nicholas’ voluntary appearance created exclusive subject matter jurisdiction 

in the district court for Douglas County. Based on the propositions outlined above, this argument fails.

Brooke also claims that Nebraska must retain continuing 

exclusive jurisdiction because of a provision in the parties’ 

order of modification and attached parenting plan providing 

that a move to another state would not “in any way alter existing Nebraska law.” This argument is also unpersuasive. By 

applying Nebraska’s UCCJEA, the Nebraska court did in fact 

employ “existing Nebraska law” as anticipated by previous 

orders. See § 43-1239(a)(2). This argument has no merit.

CONCLUSION

For the reasons set forth above, Brooke’s assignments of 

error are without merit, and accordingly, we affirm.

Affirmed.