- 245 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

Christine W., appellant, v

Trevor W., appellee

___ N.W.2d ___

Filed May 24, 2019. No. S-18-922.

1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory interpretation present questions of law.

2. 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.

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

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

4. Statutes. Statutory language is to be given its plain and ordinary 

meaning.

5. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

6. Juvenile Courts: Statutes: Jurisdiction. A juvenile court is a statutorily created court of limited and special jurisdiction, and it has only the 

authority which the statutes confer on it.

7. Courts: Juvenile Courts: Jurisdiction: Parental Rights. A juvenile 

court lacks statutory authority under Neb. Rev. Stat. § 42-364(5) (Cum. 

Supp. 2018) to transfer a proceeding back to the district court where: 

(1) The district court, having subject matter jurisdiction of a modification proceeding under § 42-364(6) in which termination of parental 

rights has been placed in issue and having personal jurisdiction of the 

parties to that proceeding, has transferred jurisdiction of the proceeding to the appropriate juvenile court; (2) termination of parental rights 

remains in issue and unadjudicated in the transferred proceeding; (3) the 

State is not involved in the proceeding and has not otherwise asserted 

jurisdiction over the child or children involved in the modification 

proceeding; and (4) the juvenile court has not otherwise been deprived 

of jurisdiction.

Nebraska Supreme Court Online Library

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

07/19/2019 01:06 AM CDT
- 246 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

Appeal from the County Court for Washington County, 

C. Matthew Samuelson, Judge, on transfer thereto from 

District Court for Washington County, John E. Samson, Jud

Judgment of County Court vacated and remanded.

Scott V. Hahn, of Hightower Reff Law, and, on brief, Tosha 

Rae D. Heavican for appellant.

No appearance for appellee.

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

Papik, and Freudenberg, J

Cassel, J.

INTRODUCTION

After Trevor W. commenced a modification proceeding in 

the district court, Christine W. counterclaimed to terminate 

Trevor’s parental rights and obtained an order transferring the 

proceeding to the county court, sitting as a juvenile court. But 

when the proceeding reached the juvenile court, it “denie[d]” 

the transfer and purportedly returned the proceeding to district court. Christine appeals from the juvenile court’s order. 

Because the juvenile court’s order purporting to transfer the 

proceeding back to district court was beyond the juvenile 

court’s statutory authority and void, we vacate that order and 

remand the cause to the juvenile court for further proceedings 

consistent with this opinion.

BACKGROUND

Statutory Framewo

In order to understand the procedural background of this 

appeal, the reader needs some familiarity with the statutes 

concerning jurisdiction of trial courts over the matters at issue: 

modification of a parenting plan and termination of parental 

rights. Before setting forth the specific statute controlling the 

transfer from district court to juvenile court of a proceeding 

where termination of parental rights has been placed in issue, 
- 247 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

we begin by recalling statutes identifying the authority of district, county, and juvenile courts over such matters. We then 

summarize the specific statute addressing transfer or retention 

of a district court proceeding where termination of parental 

rights has been placed in issue.

Under Nebraska’s marital dissolution, separation, annulment, 

custody, and support statutes,1 a proceeding is commenced by 

filing a “complaint” in the district court.2 Consequently, dissolution and custody proceedings begin in the district court.

But another statute3 authorizes “domestic relations matters,”4

which includes dissolution and custody proceedings, to be 

heard by a district court judge or a county court judge.5

Consistent with that other statute, the statute governing commencement of a marital dissolution and custody proceeding 

authorizes the proceeding to be heard “by the county court or 

the district court as provided in section 25-2740.”6

Despite the procedure allowing selection of a county court 

judge in a domestic relations matter, the matter remains as a 

district court proceeding and achieves the same finality as a district court judgment. According to § 25-2740(2), the party shall 

state in the complaint whether he or she wants the proceeding 

to be heard by a district court judge or by a county court judge. 

If the party requests a county court judge, “the county court 

judge assigned to hear cases in the county in which the matter 

is filed at the time of the hearing is deemed appointed by the 

district court and the consent of the county court judge is not 

required.”7 Where the proceeding is heard by a county court 

1 Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp. 2018).

2 § 42-352.

3 Neb. Rev. Stat. § 25-2740 (Cum. Supp. 2018).

4 See § 25-2740(1)(a) (defining “[d]omestic relations matters”).

5 § 25-2740(2).

6 § 42-352.

7 § 25-2740(2).
- 248 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

judge, it is “considered a district court proceeding” and “an 

order or judgment of the county court in a domestic relations 

matter has the force and effect of a district court judgment.”8

Section 42-364(6) authorizes modification proceedings relating to support, custody, parenting time, visitation, other access, 

or removal of children from the jurisdiction of the court. A 

proceeding to modify a parenting plan is “commenced by filing a complaint to modify.”9

 Under §§ 42-348 and 42-351(1), 

a district court has jurisdiction to adjudicate such actions. But 

under § 42-348, marital dissolution and custody proceedings 

“may be transferred to a separate juvenile court or county 

court sitting as a juvenile court which has acquired jurisdiction 

pursuant to section 43-2,113.”

Neb. Rev. Stat. § 43-2,113(2) (Cum. Supp. 2018) provides 

that a juvenile court “shall have and exercise jurisdiction . . . 

with the county court and district court in all matters arising 

under Chapter 42, article 3, when the care, support, custody, 

or control of minor children under the age of eighteen years 

is involved.” The statute dictates, “Such cases shall be filed in 

the county court and district court and may, with the consent 

of the juvenile judge, be transferred to the trial docket of the 

separate juvenile court or county court.”10

Most proceedings seeking termination of parental rights fall 

within the jurisdiction of the juvenile courts.11 Such jurisdiction 

is concurrent with the county court or district court.12

With this general framework in mind, we now recite the 

statute governing retention or transfer of a proceeding where 

termination of parental rights has been placed in issue—which 

is the situation in the proceeding before us.

8 Id.

9 § 42-364(6).

10 § 43-2,113(2).

11 Neb. Rev. Stat. § 43-247(6) (Reissue 2016).

12 See Neb. Rev. Stat. § 43-246.01(3)(b) (Reissue 2016).
- 249 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

Section 42-364(5) states:

Whenever termination of parental rights is placed in issue 

the court shall transfer jurisdiction to a juvenile court 

established pursuant to the Nebraska Juvenile Code unless 

a showing is made that the county court or district court 

is a more appropriate forum. In making such determination, the court may consider such factors as cost to the 

parties, undue delay, congestion of trial dockets, and relative resources available for investigative and supervisory 

assistance. A determination that the county court or district court is a more appropriate forum shall not be a final 

order for the purpose of enabling an appeal. If no such 

transfer is made, the court shall conduct the termination 

of parental rights proceeding as provided in the Nebraska 

Juvenile Code.

Thus, when termination of parental rights is placed in issue in a 

district court dissolution and custody modification proceeding, 

the district court is required to transfer jurisdiction to a juvenile court unless the district court concludes that it is the more 

appropriate forum.

Although this court13 and the Nebraska Court of Appeals14

have only occasionally reviewed proceedings to terminate 

parental rights which were retained and actually adjudicated 

in district court, the statutes authorize a district court to do so. 

Often, the decision to do so may turn on the “relative resources 

available for investigative and supervisory assistance.”15

Typically, a district court will conclude that where termination 

13 See, e.g., Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013); 

R.D.N. v. T.N., 218 Neb. 830, 359 N.W.2d 777 (1984), disapproved on 

other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).

14 See, e.g., Timothy T. v. Shireen T., 16 Neb. App. 142, 741 N.W.2d 452 

(2007); Worm v. Worm, 6 Neb. App. 241, 573 N.W.2d 148 (1997); Joyce S. 

v. Frank S., 6 Neb. App. 23, 571 N.W.2d 801 (1997), disapproved on other 

grounds, Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998).

15 § 42-364(5).
- 250 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

of parental rights has been placed in issue, the proceeding 

should be transferred to the juvenile court under § 42-364(5). 

With that understanding in place, we turn to the circumstances 

presented here.

Dissolution of Marr

The parties are the biological parents of a child born in 

2009. In a 2012 decree, the Washington County District Court 

dissolved the parties’ marriage. The decree included a parenting plan. The district court’s decree awarded Christine legal 

and physical custody of the child and provided Trevor with 

regular parenting time.

Requests for Modifi

and Termina

In 2018, Trevor filed in the district court a “motion” to 

modify the parenting plan. His motion noted that he was 

“incarcerated” and requested, among other things, at least one 

30-minute telephone call per week and two visits per month.

Christine responded by filing a counterclaim for termination 

of Trevor’s parental rights under § 43-247(6) and Neb. Rev. 

Stat. § 43-292(1), (2), and (9) (Reissue 2016). She alleged 

that in May 2014, the Washington County District Court sentenced Trevor to 25 to 35 years’ incarceration following a 

conviction for four counts of sexual assault in the first degree. 

Alternatively, Christine asked that the court modify the decree 

and parenting plan to provide for “no court-ordered parenting 

time or contact” between Trevor and the child.

Motion to Transfer Juris

Shortly after a hearing in which the district court expressed 

doubt that it had jurisdiction to terminate parental rights, 

Christine moved to transfer “jurisdiction of the above-captioned 

matter” to the county court for Washington County, acting as a 

juvenile court. The district court held a hearing on the motion, 

during which Trevor stated that he had no objection to it. The 

district court thereafter entered an order transferring the case 
- 251 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

to the juvenile court “for all issues pertaining to the minor 

child herein.” The order recited that the juvenile court had consented to the transfer of jurisdiction to juvenile court.

Approximately 2 months later, the juvenile court entered a 

“Transfer Order,” stating that it “does not accept said transfer 

for lack of subject matter jurisdiction.” The order was filed in 

the district court proceeding and acknowledged that the court 

had earlier consented to the transfer. But the court stated that it 

lacked jurisdiction based “upon further review of case law and 

Neb. Rev. Stat. [§] 43-292.02.”

Neb. Rev. Stat. § 43-292.02 (Cum. Supp. 2018) provides:

(1) A petition shall be filed on behalf of the state to 

terminate the parental rights of the juvenile’s parents or, 

if such a petition has been filed by another party, the state 

shall join as a party to the petition, and the state shall concurrently identify, recruit, process, and approve a qualified family for an adoption of the juvenile, if:

(a) A juvenile has been in foster care under the responsibility of the state for fifteen or more months of the most 

recent twenty-two months; or

(b) A court of competent jurisdiction has determined 

the juvenile to be an abandoned infant or has made a 

determination that the parent has committed murder of 

another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, 

attempted, conspired, or solicited to commit murder, or 

aided or abetted voluntary manslaughter of the juvenile or 

another child of the parent, or committed a felony assault 

that has resulted in serious bodily injury to the juvenile 

or another minor child of the parent. For purposes of this 

subdivision, infant means a child eighteen months of age 

or younger.

(2) A petition shall not be filed on behalf of the state to 

terminate the parental rights of the juvenile’s parents or, 

if such a petition has been filed by another party, the state 

shall not join as a party to the petition if the sole factual 
- 252 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

basis for the petition is that (a) the parent or parents of 

the juvenile are financially unable to provide health care 

for the juvenile or (b) the parent or parents of the juvenile 

are incarcerated. The fact that a qualified family for an 

adoption of the juvenile has been identified, recruited, 

processed, and approved shall have no bearing on whether 

parental rights shall be terminated.

(3) The petition is not required to be filed on behalf 

of the state or if a petition is filed the state shall not be 

required to join in a petition to terminate parental rights 

or to concurrently find a qualified family to adopt the 

juvenile under this section if:

(a) The child is being cared for by a relative;

(b) The Department of Health and Human Services has 

documented in the case plan or permanency plan, which 

shall be available for court review, a compelling reason 

for determining that filing such a petition would not be in 

the best interests of the juvenile; or

(c) The family of the juvenile has not had a reasonable 

opportunity to avail themselves of the services deemed 

necessary in the case plan or permanency plan approved 

by the court if reasonable efforts to preserve and reunify 

the family are required under section 43-283.01.

(4) Except as otherwise provided in the Nebraska 

Indian Child Welfare Act, if a child is conceived by the 

victim of a sexual assault, a petition for termination of 

parental rights of the perpetrator shall be granted if such 

termination is in the best interests of the child and (a) the 

perpetrator has been convicted of or pled guilty or nolo 

contendere to sexual assault of the child’s birth parent 

under section 28-319 or 28-320 or a law in another jurisdiction similar to either section 28-319 or 28-320 or (b) 

the perpetrator has fathered the child or given birth to the 

child as a result of such sexual assault.

Section 43-292.02 has four main subsections. Generally, 

each main subsection has a distinct purpose. Subsection (1) 
- 253 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

generally establishes circumstances where the State has a duty 

to seek termination of parental rights. Subsection (2) specifies 

circumstances where, despite the command of subsection (1), 

the State shall not seek termination. Subsection (3) identifies 

situations excusing the State from the mandate of subsection 

(1). And subsection (4) mandates termination of parental rights 

in particular circumstances not present here.

In transferring the case back to district court, the juvenile 

court apparently relied on § 43-292.02(3). The court explained, 

“In review of [§] 43-292.02(3)([a]), the Court is of the opinion 

that either [subs]ection (b) or (c) of [§] 43-292.02 must be complied with in conjunction with (3)([a]) of said statute in order 

to proceed to terminate a parent’s parental rights.” The order 

does not cite any particular case law, and it is not clear how or 

why the juvenile court arrived at this conclusion, particularly 

given that the State has not been involved in this proceeding in 

any way. The juvenile court then stated that because it did not 

believe the statute had been followed, it was transferring the 

case back to the district court “for further consideration.”

Eight days later, Christine filed a notice of appeal in the 

district court proceeding. We moved the appeal to our docket.16

ASSIGNMENT OF ERROR

Christine assigns that the juvenile court erred in denying subject matter jurisdiction based on its application of 

§ 43-292.02(3).

STANDARD OF REVIEW

[1] Subject matter jurisdiction and statutory interpretation 

present questions of law.17

ANALYSIS

[2,3] Subject matter jurisdiction is the power of a tribunal to 

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

16 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

17 In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
- 254 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

which the proceedings in question belong and to deal with the 

general subject matter involved.18 Lack of subject matter jurisdiction may be raised at any time by any party or by the court 

sua sponte.19 Here, the juvenile court determined sua sponte 

that it lacked subject matter jurisdiction.

The juvenile court’s conclusion is puzzling, because a 

clear statutory path seems to dictate otherwise. First, reading 

§ 43-246.01(3)(b) together with § 43-247(6), juvenile courts 

have concurrent original jurisdiction over “proceedings for 

termination of parental rights.” Second, the district court for 

Washington County had subject matter jurisdiction of a proceeding seeking to modify a dissolution decree previously 

entered by that court.20 Trevor invoked this jurisdiction by 

filing his complaint to modify (styled as a motion). Christine 

did likewise by her filings styled as a counterclaim and an 

amended counterclaim. Third, the district court had personal 

jurisdiction of the parties to the modification proceeding, who 

both appeared voluntarily.21 The juvenile court’s order does 

not dispute the district court’s jurisdiction of the modification 

proceeding or that termination of parental rights was placed in 

issue in that proceeding. Fourth, the district court transferred 

jurisdiction to the county court for Washington County, sitting as a juvenile court, pursuant to § 42-364(5). Under the 

Nebraska Juvenile Code22 as applied to Washington County, a 

“[j]uvenile court” means “the county court sitting as a juvenile 

court.”23 Thus, the jurisdictional path ran from the district court 

to the juvenile court.

Despite the juvenile court’s reasoning that it lacked subject 

matter jurisdiction because of § 43-292.02, the juvenile court 

18 Id.

19 Id.

20 See §§ 42-351(1) and 42-364(6).

21 See § 42-355.

22 Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2016 & Cum. Supp. 2018).

23 § 43-245(12).
- 255 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

did not dismiss the proceeding. Instead, it purported to transfer 

the matter back to the district court. In doing so, it exceeded its 

statutory authority under § 42-364(5).

[4,5] Statutory language is to be given its plain and ordinary 

meaning.24 And the intent of the Legislature is expressed by 

omission as well as by inclusion.25

Section 42-364(5) is clear: Where termination of parental 

rights has been “placed in issue,” it empowers a district court 

(or a county court adjudicating a modification proceeding 

pursuant to § 25-2740) to “transfer jurisdiction” to a “juvenile 

court established pursuant to the Nebraska Juvenile Code.” 

Indeed, § 42-364(5) requires the transfer unless the district 

court concludes that it is the more appropriate forum.

Once jurisdiction has been established in the district court, 

the transfer to the juvenile court has been made, and termination of parental rights remains in issue, the juvenile court must 

adjudicate those rights. Section 42-364(5) simply does not 

authorize a juvenile court to transfer a termination proceeding 

back to the district court under these circumstances. In doing 

so, the court exceeded its statutory authority. While there may 

be circumstances under which authority for a juvenile court 

to transfer a termination proceeding back to the district court 

is impliedly authorized under § 42-364(5), they are not present here.

[6] A juvenile court is a statutorily created court of limited 

and special jurisdiction, and it has only the authority which the 

statutes confer on it.26 This applies equally to a county court 

sitting as a juvenile court.27

24 See Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 

(2019).

25 Donna G. v. Nebraska Dept. of Health & Human Servs., 301 Neb. 838, 

920 N.W.2d 668 (2018).

26 In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018).

27 See In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
- 256 -

Nebraska Supreme Court Advance S

303 Nebraska Report

CHRISTINE W. v. TREVOR W.

Cite as 303 Neb. 245

[7] We hold that a juvenile court lacks statutory authority 

under § 42-364(5) to transfer a proceeding back to the district court where: (1) The district court, having subject matter 

jurisdiction of a modification proceeding under § 42-364(6) in 

which termination of parental rights has been placed in issue 

and having personal jurisdiction of the parties to that proceeding, has transferred jurisdiction of the proceeding to the 

appropriate juvenile court; (2) termination of parental rights 

remains in issue and unadjudicated in the transferred proceeding; (3) the State is not involved in the proceeding and has 

not otherwise asserted jurisdiction over the child or children 

involved in the modification proceeding; and (4) the juvenile 

court has not otherwise been deprived of jurisdiction. That is 

the situation here. Accordingly, the juvenile court lacked the 

statutory authority to transfer to the district court a case which 

had been transferred to the juvenile court under § 42-364(5). 

The juvenile court’s order doing so was void, and we must 

vacate the void order.

CONCLUSION

We conclude that the juvenile court acted beyond its statutory authority and that its order, filed in the district court 

proceeding, was void. We vacate the void order. Because the 

last order that was not void was the order transferring the proceeding to the juvenile court, that order remains effective but 

interlocutory. The cause should proceed based upon the district 

court’s order transferring the matter to juvenile court.

In disposing of this appeal, we observe that over a year has 

elapsed since Trevor filed his motion seeking to modify the 

parenting time and Christine filed a counterclaim to terminate 

his parental rights. No relief has been afforded either party. 

We encourage the juvenile court to focus on the best interests of the child and to move this matter promptly to a final 

disposition.

Vacated and reman