42-351. County or district court; jurisdiction.

(1) In proceedings under sections 42-347 to 42-381, the court shall have jurisdiction to inquire into such matters, make such investigations, and render such judgments and make such orders, both temporary and final, as are appropriate concerning the status of the marriage, the custody and support of minor children, the support of either party, the settlement of the property rights of the parties, and the award of costs and attorney's fees. The court shall determine jurisdiction for child custody proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act.

(2) When final orders relating to proceedings governed by sections 42-347 to 42-381 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, parenting time, visitation, or other access, orders shown to be necessary to allow the use of property or to prevent the irreparable harm to or loss of property during the pendency of such appeal, or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal.

Source

Cross References

Annotations

1. Jurisdiction of court

2. Investigations

3. Custody of children

4. Attorneys' fees

5. Miscellaneous

1. Jurisdiction of court

The trial court was not divested of jurisdiction to enter an order modifying child custody where orders that were pending on appeal did not address custody. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).

An order helping a party pay for his or her attorney's work on appeal is an order in aid of the appeal process under subsection (2) of this section. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).

The word “support” in subsection (2) of this section includes spousal support, i.e., alimony. Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).

Pursuant to subsection (1) of this section, jurisdiction over a child custody proceeding is governed exclusively by the Uniform Child Custody Jurisdiction and Enforcement Act. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).

Full and complete general jurisdiction over the entire marital relationship and all related matters, including child custody and support, is vested in the district court in which a petition for dissolution of a marriage is properly filed. Knerr v. Swigerd, 243 Neb. 591, 500 N.W.2d 839 (1993); Nemec v. Nemec, 219 Neb. 891, 367 N.W.2d 705 (1985); Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (1985).

Full and complete general jurisdiction over child custody and support is vested in the district court in which a petition for dissolution of a marriage is properly filed. Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).

The district court in which a divorce is granted maintains continuing jurisdiction over the marital relationship and all related matters, including child custody and support, unless and until the case is transferred to another court. State ex rel. Storz v. Storz, 235 Neb. 368, 455 N.W.2d 182 (1990).

Where minor children are affected by a divorce proceeding, the district court has complete jurisdiction over the custody, support, and welfare of those children. Farmer v. Farmer, 200 Neb. 308, 263 N.W.2d 664 (1978).

Generally, once an appeal has been perfected, the trial court no longer has jurisdiction, although the district court retains jurisdiction under subsection (2) of this section for certain matters. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).

Subsection (2) of this section does not grant authority to hear and determine anew the very issues then pending on appeal and to enter permanent orders addressing these issues during the appeal process. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).

Satisfaction of the residency requirement in section 42-349 is required to confer subject matter jurisdiction on a district court hearing a dissolution proceeding. Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368 (2015).

This section does not allow a district court to retain jurisdiction to permanently modify a decree concerning an issue which is pending appeal from a previous order concerning the same issue. Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165 (1999).

Generally, once an appeal has been perfected, the trial court has no jurisdiction to determine any issues regarding the subject matter of the litigation. However, if a supersedeas bond has not been filed, the court retains jurisdiction to enforce the terms of the judgment. Kricsfeld v. Kricsfeld, 8 Neb. App. 1, 588 N.W.2d 210 (1999).

2. Investigations

In a divorce case, ex parte investigative reports are not evidence, and cannot be the basis for any adjudication. Jorgensen v. Jorgensen, 194 Neb. 271, 231 N.W.2d 360 (1975).

Error, if any, in such use as was made of the testimony of an independent investigator and her report which was submitted to the court and filed but not received in evidence, was harmless since the award of custody was amply supported by the record. Kockrow v. Kockrow, 191 Neb. 657, 217 N.W.2d 89 (1974).

Investigation was authorized and petitioner had opportunity to explore and introduce evidence with reference to the report, and even if it was in part inadmissible it is presumed the court did not base its decision thereon. Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974).

3. Custody of children

The best interests and welfare of children is paramount in custody cases and the court may place the children in its custody if continuance thereof so requires. Broadstone v. Broadstone, 190 Neb. 299, 207 N.W.2d 682 (1973).

Under the divorce law it was held that when the court had placed custody of the children in the court, with possession and care in a parent, it could summarily modify the possession of the parent or parents in the best interests of the children. Benson v. Benson, 190 Neb. 87, 206 N.W.2d 51 (1973).

4. Attorneys' fees

A court has no authority under this section to fix the amount of attorney fees which the parties are to pay their respective attorneys. Griffin v. Vandersnick, 210 Neb. 590, 316 N.W.2d 299 (1982).

Adultery of party will not as a matter of law prevent an award of attorney's fees nor affect the payment of costs. Lockard v. Lockard, 193 Neb. 400, 227 N.W.2d 581 (1975).

5. Miscellaneous

A district court has no authority to include a child who is more than 19 years of age in its child support calculations. Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002).

This section does not authorize a district court to modify, sua sponte, a final order from which no appeal has been taken. Martin v. Martin, 261 Neb. 125, 621 N.W.2d 511 (2001).

Under certain circumstances, an order that a part of child support payments be held in escrow while an appeal to the Supreme Court is pending is an abuse of discretion. Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991).

A decree in a divorce case, insofar as minor children are concerned, is never final in the sense that it cannot be changed. Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 413 (1975).

The word "support" in this section is not limited to child support and, in fact, applies to spousal support. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).