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300 Nebraska Reports

IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

In re Guardianship of S.T., a minor child.

Gabe N. Stalder, appellant, v. Anne T. 

and Andrew T., appellees.

___ N.W.2d ___

Filed May 25, 2018. No. S-17-600.

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

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

4. Jurisdiction: Appeal and Error. 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.

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

and Enforcement Act.

6. Child Custody: Guardians and Conservators: Words and Phrases. 

Under the Uniform Child Custody Jurisdiction and Enforcement Act, the 

term “child custody proceeding” is defined to include a proceeding for 

guardianship of a minor.

7. 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. Generally speaking, Neb. Rev. Stat. § 43-1238(a)(1) 

Nebraska Supreme Court Online Library

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

05/25/2018 09:06 AM CDT
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

(Reissue 2016) 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.”

8. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction 

to adjudicate the merits of a claim, issue, or question, an appellate court 

also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

Appeal from the County Court for Richardson County: 

Curtis L. Maschman, Judge. Judgment vacated, and cause 

remanded with directions.

Melanie A. Kirk, of Johnson, Flodman, Guenzel & Widger, 

for appellant.

Andrew T., pro se.

No appearance for appellee Anne T.

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

JJ., and Steinke, District Judge.

Stacy, J.

Gabe N. Stalder petitioned the county court to be appointed 

guardian of his then 7-year-old niece, S.T., alleging her parents 

were not properly caring for her. After an evidentiary hearing, the court denied the petition, finding Stalder had failed 

to prove by clear and convincing evidence that S.T.’s parents 

were unfit. Stalder appealed. Because we find the county court 

lacked jurisdiction over the guardianship proceedings under 

the Uniform Child Custody Jurisdiction and Enforcement Act 

(UCCJEA),1 we vacate the judgment and remand the matter 

with directions to dismiss.

BACKGROUND

Andrew T. and Anne T. are the natural parents of S.T., born 

in November 2009 in Beatrice, Nebraska.

1 Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016).
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

Shortly after S.T.’s birth, Andrew and Anne moved with 

S.T. to a home in Humboldt, Nebraska. They lived together 

in Humboldt until February 27, 2017, when they moved to 

Emporia, Kansas.

A few days later, on March 1, 2017, Anne’s brother, Stalder, 

filed a petition for temporary and permanent guardianship of 

S.T. in the county court for Richardson County, Nebraska. In 

his petition, Stalder claimed S.T.’s parents were unsuitable to 

care for her. He sought an ex parte order appointing him as 

S.T.’s temporary guardian and an expedited hearing on his 

request for appointment as S.T’s permanent guardian. Based 

on the allegations in the petition, the court appointed Stalder as 

temporary limited guardian for S.T. and set the matter for an 

evidentiary hearing on April 12.

Evidentiary Hearing

At the evidentiary hearing, Stalder called three witnesses: 

Andrew, Anne, and himself. Andrew and Anne were selfrepresented and called no witnesses. Generally, Andrew and 

Anne testified that S.T. was healthy and cared for. Stalder 

presented evidence questioning the propriety of her education, 

the condition of the family home in Nebraska, and the effect 

of Andrew’s antigovernment views on S.T.’s emotional and 

physical health.

The evidence was undisputed that on February 10, 2017, 

Andrew signed a 1-year lease on property in Emporia. And on 

February 27, Andrew, Anne, and S.T. moved to Emporia and 

were still living there at the time of the evidentiary hearing.

Order Denying Guardianship

The county court entered an order denying Stalder’s petition for permanent guardianship and terminating his temporary 

limited guardianship.

Before addressing the merits, the court acknowledged that 

jurisdiction over the guardianship proceeding was governed 

by the UCCJEA. It found the evidence was uncontroverted 

that S.T. resided with Andrew and Anne in Nebraska until 
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

February 27, 2017, at which point they moved to Kansas. 

The court then concluded, without further analysis, that the 

UCCJEA “defines Nebraska as the ‘home state’ under the 

facts in this action.”

Addressing the merits, the court noted that because Andrew 

and Anne objected to the guardianship of their child, the 

parental preference doctrine required Stalder to prove parental unfitness by clear and convincing evidence. The court 

explained that “[a]bsent such proof, the constitutional dimensions of the relationship between parent and child require a 

Court to deny a request for guardianship.” The court found that 

Stalder had presented limited evidence regarding the health 

and well-being of S.T. and that most of the evidence focused 

on the “antigovernment” beliefs and actions of Andrew. After 

discussing the evidence, the court concluded Stalder had failed 

to meet his burden of showing parental unfitness. The court 

denied Stalder’s petition for permanent guardianship and dissolved the temporary guardianship.

Stalder timely appealed, and Andrew cross-appealed. We 

moved the case to our docket on our own motion.2

ASSIGNMENTS OF ERROR

Stalder assigns, restated and consolidated, that the county 

court erred in finding he failed to meet his burden of proving 

that S.T.’s parents were unfit.

In Andrew’s purported cross-appeal, he does not specifically 

assign error to any ruling made by the trial court.3 Instead, he 

claims that Stalder’s behavior in seeking the guardianship was 

generally unlawful.

STANDARD OF REVIEW

[1] The question whether jurisdiction should be exercised 

under the UCCJEA is entrusted to the discretion of the trial 

2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 See Neb. Rev. Stat. § 25-1919 (Reissue 2016) and Neb. Ct. R. App. P. 

§ 2-109(D)(1)(e) (rev. 2014).
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

court and is reviewed by an appellate court de novo on the 

record for abuse of discretion.4

[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.5

[3] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court.6

ANALYSIS

[4] 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.7 Here, the threshold issue 

we must address is whether the county court had jurisdiction under the UCCJEA to hear and determine the guardianship petition.

Jurisdiction and UCCEJA

[5,6] Jurisdiction over a child custody proceeding is governed exclusively by the UCCJEA.8

 Under the UCCJEA, the 

term “[c]hild custody proceeding” is defined to include a 

proceeding for guardianship of a minor.9 The trial court correctly recognized the UCCJEA was applicable to the guardianship proceeding filed by Stalder, but on this record, we 

cannot agree with the trial court’s finding that Nebraska was 

S.T.’s “home state” on the date the guardianship proceeding 

was commenced.

4 Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).

5 See Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008). See, also, In re 

Interest of Violet T., 286 Neb. 949, 840 N.W.2d 459 (2013).

6 In re Interest of Violet T., supra note 5.

7 Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).

8 Carter v. Carter, supra note 5.

9 § 43-1227(4). Accord In re Guardianship of David G., 18 Neb. App. 918, 

798 N.W.2d 131 (2011).
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

Jurisdiction to make an initial child custody determination 

is governed by § 43-1238 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 a 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 

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.
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

[7] 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.10 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.11

Here, because the county court found Nebraska was the 

home state under the UCCJEA, it did not address any of the 

exceptions under § 43-1238(a)(2) through (4). Moreover, the 

record developed by the parties lacks any evidence upon which 

we might conduct a de novo review of the applicability of 

any of the home state exceptions. We therefore necessarily 

limit our analysis to whether the county court correctly found 

Nebraska was the home state under § 43-1238(a)(1).

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. In the case of a child less than six months 

of age, the term means the state in which the child lived 

from birth with any of the persons mentioned. A period 

of temporary absence of any of the mentioned persons is 

part of the period.12

As used in the UCCJEA, “[c]ommencement” of a proceeding means “the filing of the first pleading in a proceeding.”13

Thus, the operative date for the home state analysis in this case 

is March 1, 2017.

Pursuant to § 43-1238(a)(1), the county court would have 

jurisdiction under the UCCJEA if S.T.’s home state was 

10 See, Carter v. Carter, supra note 5; § 43-1238(a)(2) through (4).

11 See Carter v. Carter, supra note 5.

12 § 43-1227(7).

13 § 43-1227(5).
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

Nebraska on March 1, 2017, or if S.T.’s home state was 

Nebraska within 6 months before March 1, 2017, and “the 

child is absent from [Nebraska] but a parent or person acting 

as a parent continues to live in [Nebraska].” Neither alternative 

is satisfied here.

It was undisputed that Andrew and Anne moved with S.T. 

to Kansas on February 27, 2017. So when the first pleading was filed on March 1, S.T. had not lived in Nebraska for 

the immediately preceding 6 consecutive months. Although 

§ 43-1227 includes periods of “temporary absence” in the 

calculation of the 6-month period, there was no evidence the 

move to Kansas was temporary. Andrew signed 1-year lease, 

and the family was still living in Kansas at the time of the 

evidentiary hearing. On this record, Nebraska was not S.T.’s 

home state on March 1, 2017.

Moreover, although Nebraska may have been S.T.’s home 

state within 6 months before the guardianship was commenced, 

there was no evidence that either of S.T.’s parents continued 

to reside in Nebraska after the family moved to Kansas on 

February 27, 2017, and there was no evidence that a person 

“acting as a parent” continued to reside in Nebraska.14

Section 43-1227(13) defines a “[p]erson acting as a parent” as one who “has had physical custody for a period 

of six consecutive months . . . within one year immediately before the commencement” of the proceeding and 

“has been awarded legal custody by a court or claims a 

right to legal custody.” Stalder, who continued to reside in 

Nebraska, could not be considered “acting as a parent” under 

§ 43-1227(13), because he never had physical custody of 

S.T., nor was he ever awarded her legal custody. Stalder’s 

temporary limited guardianship gave him limited authority 

only to access S.T.’s educational, medical, and other such 

records; make inquiries about S.T.’s residence and the conditions of that residence; and to see and speak with S.T. and her 

14 See § 43-1238(a)(1).
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IN RE GUARDIANSHIP OF S.T.

Cite as 300 Neb. 72

caregivers. It did not grant even limited rights of physical or 

legal custody.

On this record, Nebraska was not S.T.’s home state under 

either of the alternatives in § 43-1238(a)(1). We therefore must 

find the county court lacked jurisdiction under the UCCJEA 

over this guardianship proceeding.

[8] When a trial court lacks jurisdiction to adjudicate the 

merits of a claim, issue, or question, an appellate court also 

lacks the power to determine the merits of the claim, issue, or 

question presented to the lower court.15 As such, our disposition of this case does not permit us to reach the merits of the 

guardianship proceeding.

CONCLUSION

We conclude the county court lacked jurisdiction over the 

guardianship proceedings under the UCCJEA, and we therefore lack jurisdiction over this appeal. We must vacate the 

judgment of the county court and remand the matter with 

directions to dismiss the guardianship proceeding.

Judgment vacated, and cause

remanded with directions.

Wright, J., not participating.

15 See Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 

147 (2017).