Carter v. Carter

stuArt A. cArter , Appellee , v.
nAHoko HAtA cArter , AppellAnt.
758 N.W.2d 1
Filed December 5, 2008. 	No. S-08-025.
1. Child Custody: Jurisdiction: Appeal and Error. In considering whether juris-
diction existed under the Uniform Child Custody Jurisdiction and Enforcement
Act, when the jurisdictional question does not involve a factual dispute, determi-
nation of the issue is a matter of law, which requires an appellate court to reach
a conclusion independent from the trial court.
2. Child Custody: Jurisdiction. Jurisdiction over a child custody proceed-
ing is governed exclusively by the Uniform Child Custody Jurisdiction and
Enforcement Act.
3. Child Custody: Jurisdiction: States. Jurisdiction over custody matters having
interstate dimension must be determined independently by application of the
Uniform Child Custody Jurisdiction and Enforcement Act.
4. ____: ____: ____. The Uniform Child Custody Jurisdiction and Enforcement Act
treats a foreign country as a state of the United States, unless the laws of the
foreign country violate fundamental principles of human rights.
5. ____: ____: ____. In order for a state to exercise jurisdiction over a child cus-
tody dispute, that state must 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.
6. Statutes. Statutory language is to be given its plain and ordinary meaning.
7. Child Custody: Jurisdiction: States: Time. Under the Uniform Child Custody
Jurisdiction and Enforcement Act, regardless of where the child was born, if the
child and his or her parents have been living in another state for the 6 months
immediately preceding the commencement of a custody proceeding, then the state
in which the child was born is not the child’s home state under Neb. rev. Stat.
§ 43-1227 (reissue 2004).
8. Child Custody: Jurisdiction: States: Time: Words and Phrases. For purposes
of the Uniform Child Custody Jurisdiction and Enforcement Act, the plain and
ordinary meaning of “home state” is the state where the child has “lived” with a
parent or person acting as a parent for the 6 months immediately preceding the
child custody action.
9. ____: ____: ____: ____: ____. Under the Uniform Child Custody Jurisdiction
and Enforcement Act, a “temporary absence” should be counted as part of the 6
months during which the child must live in a state for it to be the home state.
10. Child Custody: Jurisdiction: Armed Forces: Words and Phrases. For pur-
poses of the Uniform Child Custody Jurisdiction and Enforcement Act, the time
spent living in another state or country due to a permanent military assignment
is not considered a “temporary absence” simply because it was motivated by
such assignment.
11. Child Custody: Jurisdiction: Armed Forces. In the determination of jurisdic-
tion in a child custody dispute, an adult does not gain or lose a domicile or resi-
dence by serving in the military.
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

12. Child Custody: Jurisdiction: States. The determination of a child’s home state
is separate and distinct from the determination of either the parents’ or the child’s
legal residence.
13. Attorney Fees: Appeal and Error. The district court’s decision on a request
for attorney fees is reviewed de novo on the record and will be affirmed in the
absence of an abuse of discretion.
14. Jurisdiction: Attorney Fees: Costs: Appeal and Error. The Nebraska Supreme
Court has the power to determine jurisdictional issues and to allow attorney fees
and costs regarding litigation of such jurisdictional issues.
Appeal from the District Court for Douglas County: J russell
derr, Judge. reversed and remanded with directions.
Susan Ann koenig and Jennifer J. Stevens, Senior Certified
Law Student, of koenig & Tiritilli, P.C., L.L.O., for appellant.
Christopher A. Vacanti, 	of 	Cohen, Vacanti, 	Higgins 	&
Shattuck, for appellee.
H eAvicAn, c.J., wrigHt, connolly, gerrArd, stepHAn, and
MccorMAck , JJ.
MccorMAck , J.
NATUrE OF CASE
This case presents a dispute over whether Nebraska has juris-
diction over a child custody dispute under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA).1 After
living in Nebraska for about 3 years, Stuart A. Carter, his wife,
Nahoko Hata Carter, and their 10-week-old son, Alexander
Lee Carter (Alex), moved to Japan for approximately 21⁄2 years
during Stuart’s permanent military duty assignment. At the
end of his assignment, without warning or Nahoko’s consent,
Stuart took Alex to Nebraska and immediately filed for legal
separation and custody. Nahoko, who is both a Japanese and
an American citizen, argues that Nebraska is not Alex’s home
state and, therefore, does not have jurisdiction over the parties
and the subject matter.
BACkGrOUND
The facts of this case are generally not in dispute. Stuart
was commissioned into the Navy through the Navy Aviation
1 Neb. rev. Stat. §§ 43-1226 to 43-1266 (reissue 2004 & Supp. 2007).
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Officer Candidate School in Pensacola, Florida, and over the
last 20 years he has served in a variety of locations. Stuart
and Nahoko met in Japan while Stuart was stationed there,
and they were married in Japan on November 11, 1994. After
about a year, Stuart was reassigned. During their marriage,
Stuart was assigned to several different locations, and Nahoko
accompanied him. After living in Japan, Stuart and Nahoko
moved to San Diego, California, where Stuart was assigned
military duty. Stuart and Nahoko lived in San Diego for about
3 years; after that, they moved to kansas because Stuart was
assigned to the Army Command and General Staff College
in Fort Leavenworth for 1 year. Stuart was then accepted to
the School of Advanced military Studies for another year in
Fort Leavenworth.
In November 1999, Stuart and Nahoko moved to Nebraska,
where Stuart was assigned to U.S. Strategic Command at
Offutt Air Force Base. Alex was born in Nebraska on August
15, 2002.
In October 2002, when Alex was 10 weeks old, Stuart was
assigned to a Navy base in Yokosuka, Japan, and the family
moved back to Japan. For the next 21⁄2 years, Alex attended
daycare in Japan, his first language was Japanese, and he
formed bonds with his Japanese relatives.
In may 2005, Stuart’s assignment ended and Stuart retired.
Stuart and Nahoko had discussed where they should live dur-
ing Stuart’s retirement, and Nahoko was in favor of staying in
Japan, while Stuart wished to move back to the United States.
Stuart and Nahoko apparently had not yet reached an agree-
ment on this point.
The military issued Stuart an order stating that he needed
to go to San Diego for out-processing. It is unclear whether
Nahoko knew of this requirement. Nahoko stated that Stuart
had obtained Alex’s passport from her, explaining that it was
for a special visa that would allow Stuart to stay in Japan after
his retirement. Stuart did not discuss with Nahoko the possibil-
ity of taking Alex with him on any trip to the United States.
On may 27, 2005, the day he left Japan, Stuart called
Nahoko’s mother, who usually picked Alex up from daycare,
and told her he would be picking Alex up and taking him to
842 	276 NEBrASkA rEPOrTS

lunch and then to the park. Nahoko testified that on may 27,
she tried calling Stuart several times, but Stuart’s telephone
was off. Finally, at approximately 4 p.m., Nahoko received a
text message from Stuart. The message was sent from the air-
port and stated simply, “ajevx [sic] is ok we are going to our
ho me [sic] in usa m ore [sic] info later Stu.”
Nahoko testified that she did not understand from this mes-
sage exactly where in the United States Stuart might be tak-
ing Alex and that this took her by complete surprise. When
Nahoko arrived home, she found that her key no longer opened
the locks. Stuart admitted that right before leaving, he changed
the locks on the family home. Stuart explained that he was
concerned about Nahoko’s destroying property.
The next day, Nahoko received an e-mail from Stuart stat-
ing that Alex was fine and telling Nahoko that she “should be
looking for an Omaha-based attorney.” The e-mail also warned
Nahoko “not [to] take any irrational actions,” because “waste-
ful spending or other negative actions could result in a less
favorable settlement for you.”
Stuart apparently first took Alex with him to his out-
processing in San Diego. They then went on to Nebraska.
From the time Stuart joined the Navy until his retirement in
2005, Stuart’s home of record was michigan. But during out-
processing in San Diego, Stuart changed his home of record
with the military from michigan to Nebraska.
On may 31, 2005, almost immediately after arriving in
Omaha, Stuart filed for legal separation and sought temporary
care and permanent custody of Alex. On June 6, Nahoko left
Japan to go to Omaha for the purposes of the child custody
and legal separation proceedings. Nahoko filed a motion to
dismiss the child custody case, based on the grounds that
Nebraska lacked jurisdiction over the matter and over Alex.
The court issued an order on November 3 denying the motion.
The court concluded that Nebraska had jurisdiction, accepting
Stuart’s contention that he was ordered back to Nebraska at the
end of his tour, and that Nebraska was Stuart’s residence at all
relevant times.
On February 28, 2006, the court issued a temporary custody
order, again concluding that it had subject matter jurisdiction
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and jurisdiction over the parties. The court concluded it was in
Alex’s best interests for Stuart and Nahoko to have joint legal
and physical custody. The court prohibited either party from
removing Alex from Nebraska without further order.
On march 29, 2006, Stuart amended his complaint for legal
separation to dissolution of marriage. Nahoko filed her answer,
again denying that the court had jurisdiction over the parties
and the subject matter of the custody dispute, and she filed
another motion to dismiss for lack of jurisdiction.
In her motion, Nahoko argued that the court’s finding that
Stuart had sufficient ties to the State of Nebraska was incorrect.
Nahoko presented proof that Stuart’s home of record was listed
as michigan throughout his military career—and not Nebraska
as he previously alleged. However, the district court dismissed
this motion on November 15, 2006, concluding that Nebraska
was the home state and thus had jurisdiction over Alex. The
court reasoned that Stuart had vehicles licensed in Nebraska,
he had personal property left in Nebraska, and Alex was born
in Nebraska.
Finally, on September 25, 2007, the court entered an order
for dissolution of marriage, and the decree was entered on
December 19. The court again found that it had jurisdiction
over the parties and subject matter. It then found that both par-
ties were fit and proper parties to have joint legal and physi-
cal custody and that neither party was entitled to attorney
fees. On January 7, 2008, Nahoko filed her notice of appeal
challenging the decree of dissolution of marriage for lack
of jurisdiction.
ASSIGNmENTS OF ErrOr
Nahoko asserts, restated and renumbered, three assignments
of error. First, she asserts the district court erred in its applica-
tion of the UCCJEA, resulting in the wrongful exercise of sub-
ject matter jurisdiction over the parties’ minor child, because
(1) Nebraska does not have jurisdiction to make an interstate
custody determination; (2) Nebraska was not Alex’s home
state, because the 6-month requirement was not satisfied; (3)
the years the parties lived in Japan do not constitute a tempo-
rary absence; and (4) Stuart’s abduction of Alex was unjustifi-
able conduct.
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Second, Nahoko argues that in the event we find the district
court had jurisdiction, then the court erred by awarding the
parties joint legal and physical custody of Alex by not adopt-
ing her proposed parenting plan, because it was in Alex’s
best interests.
Finally, Nahoko asserts the court erred in failing to award
her attorney fees.
STANDArD OF rEVIEW
[1] In considering whether jurisdiction existed under the
UCCJEA, when the jurisdictional question does not involve a
factual dispute, determination of the issue is a matter of law,
which requires an appellate court to reach a conclusion inde-
pendent from the trial court.2
ANALYSIS
[2,3] Jurisdiction over a child custody proceeding is gov-
erned exclusively by the UCCJEA.3 Jurisdiction over custody
matters having interstate dimension must be determined inde-
pendently by application of the UCCJEA.4
[4] The UCCJEA was enacted to serve the following pur-
poses: (1) to avoid interstate jurisdictional competition and
conflict in child custody matters, (2) 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, (3) to discourage the use of the interstate
system for continuing custody controversies, (4) to deter child
abductions, (5) to avoid relitigation of custody issues, and (6)
to facilitate enforcement of custody orders.5 The UCCJEA
treats a foreign country, such as Japan, as a state of the
United States, unless the laws of the foreign country violate
2 Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).
3 See Neb. rev. Stat. § 42-351(1) (reissue 2004).
4 See, Dorothy v. Dorothy, 88 Ark. App. 358, 199 S.W.3d 107 (2004);
Stevens v. Stevens, 682 N.E.2d 1309 (Ind. App. 1997); 27C C.J.S. Divorce
§ 986 (2005).
5 Uniform Child Custody Jurisdiction and Enforcement Act (1997) § 101,
comment, 9 U.L.A. 657 (1999).
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fundamental principles of human rights.6 In this case, there
is no allegation that Japan violates fundamental principles of
human rights.
[5] In order for a state to exercise jurisdiction over a child
custody dispute, that state must be the home state as defined by
the UCCJEA or fall under limited exceptions to the home state
requirement specified by the act.7 Under the facts of this case,
for Nebraska to exercise initial jurisdiction over a child custody
dispute, Nebraska must be the home state as defined by the
UCCJEA.8 The UCCJEA provides that a state has jurisdiction
to make an initial 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 commence-
ment 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.9
Stuart does not allege that any of the exceptions to the
home state requirement are applicable here. Instead, he asserts
that the district court properly exercised jurisdiction over
Alex because, at the time of the filing, Nebraska was Alex’s
home state.
Home state of the child is defined in the UCCJEA 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.10
6 § 43-1230.
7 See § 43-1238.
8 Id.
9 Id.
10 § 43-1227(7).
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[6,7] Statutory language is to be given its plain and ordi-
nary meaning.11 We first note that although Stuart emphasizes
that portion of § 43-1227 which refers to children under 6
months of age, the statement that “[i]n the case of a child less
than six months of age, [home state] means the state in which
the child lived from birth” clearly refers back to the sentence
preceding it and applies only to a child custody case involv-
ing a child under the age of 6 months of age at the time of
the commencement of the proceedings.12 In other words, this
clause was meant to provide a home state for a child when a
custody proceeding is commenced at a time when a child has
not lived in a state for the requisite 6-month period—because
the child has not been alive for that period of time.13 It is not
meant to say that a child’s state of birth is that child’s home
state.14 Under the UCCJEA, regardless of where the child
was born, if the child and his or her parents have been liv-
ing in another state for the 6 months immediately preceding
the commencement of a custody proceeding, then the state in
which the child was born is not the child’s home state under
§ 43-1227.15
[8,9] As the Nebraska Court of Appeals emphasized in Lamb
v. Lamb,16 the plain and ordinary meaning of “home state” is
the state where the child has “lived” with a parent or person
acting as a parent for the 6 months immediately preceding
the action.17 But Stuart argues that the 2 years spent in Japan
was only a “temporary absence” from Nebraska and that thus,
under § 43-1227, Alex continued to live in Nebraska for well
11 Premium Farms v. County of Holt, 263 Neb. 415, 640 N.W.2d 633
(2002).
12 See, In re D.S., 354 Ill. App. 3d 251, 828 N.E.2d 1189, 293 Ill. Dec. 691
(2004); State ex rel. In Interest of R.P. v. Rosen, 966 S.W.2d 292 (mo. App.
1998).
13 Id.
14 Id.
15 Paulsen v. Paulsen, 11 Neb. App. 582, 685 N.W.2d 49 (2003).
16 Lamb v. Lamb, 14 Neb. App. 337, 707 N.W.2d 423 (2005).
17 See, e.g., In re Marriage of Ben-Yehoshua, 91 Cal. App. 3d 259, 154 Cal.
rptr. 80 (1979); Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D. 1978).
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over the requisite 6-month period. Section 43-1227 states that
“[a] period of temporary absence of any of the mentioned
persons is part of the period.” Thus, under the UCCJEA, a
“temporary absence” should be counted as part of the 6 months
during which the child must live in a state for it to be the
home state.18
[10] Stuart argues that the absence was temporary because
it was due to a military assignment. We disagree. In the pres-
ent case, the fact that Alex was in Japan because of Stuart’s
military obligations is of no consequence. The UCCJEA does
not specifically address the meaning of “temporary absence”
as used in § 43-1227. But it is clear that time spent living
in another state or country due to a permanent military duty
assignment is not considered a “temporary absence” simply
because it was motivated by such assignment.19
In Consford v. Consford,20 the child was born while her
parents were on military assignment in Germany. When that
assignment was completed several months later, the family
moved to Texas to await the father’s next military assignment.
Less than 8 weeks later, the family moved to Arizona upon
the father’s military assignment there. Shortly after moving to
Arizona, the parents separated and the mother and child went
to Florida to stay with the child’s maternal grandmother. The
father continued living in Arizona. Five months after moving
there, he filed for divorce in Texas, and the Texas court even-
tually entered a custody decree.
[11,12] In the meantime, the mother and child had moved
to New York, where the parties eventually disputed whether
the Texas custody decree was enforceable for lack of jurisdic-
tion. The Supreme Court of New York, Appellate Division,
ultimately held that Texas lacked jurisdiction as the child’s
home state despite the fact that the parents had chosen Texas
18 See, e.g., In re Marriage of Richardson, 255 Ill. App. 3d 1099, 625 N.E.2d
1122, 193 Ill. Dec. 1 (1993).
19 See, Consford v. Consford, 271 A.D.2d 106, 711 N.Y.S.2d 199 (2000);
L.H. v. Youth Welfare Office, 150 misc. 2d 490, 568 N.Y.S.2d 852 (1991);
Jackson v. Jackson, 390 So. 2d 787 (Fla. App. 1980).
20 Consford v. Consford, supra note 19.
848 	276 NEBrASkA rEPOrTS

as their legal domicile, had registered a vehicle there, and had
filed their tax returns there before being moved to Arizona on
military assignment. Although the move from Texas was com-
pelled by a military assignment, the court held that time spent
in Arizona could not be considered simply a temporary absence
from Texas. The court explained: “Although an adult does not
gain or lose a domicile or residence by serving in the military
. . . , the determination of a child’s home state . . . is separate
and distinct from the determination of either the parents’ or the
child’s legal residence . . . .”21 The court found simply that the
family had functioned as a family unit in Arizona in a manner
such that they “lived” there.
In the present case, we note that before moving to Japan
for Stuart’s last military assignment, Stuart and Nahoko had
significant ties to Japan. Nahoko is a Japanese citizen and has
family in Japan. Stuart and Nahoko were married in Japan,
and they lived in Japan previously to living in Nebraska.
When they moved back, they stayed for over 2 years, most
of Alex’s life at that time. Alex attended daycare in Japan,
he established close family relationships with his Japanese
grandparents, and his first language was Japanese. Under
these facts, Alex’s absence from Nebraska could not be con-
sidered simply “temporary.” While their move to Japan was
required by Stuart’s military assignment, this is no different
from any of the previous places the family had lived during
their married life. In fact, the family lived in Nebraska only
briefly prior to leaving for Japan—because of Stuart’s military
assignment there. While Alex may have been under 6 months
of age at the time they left, that fact does not change our
analysis in this case.
The time spent in Japan is not considered a “temporary
absence,” and, therefore, it is clear that Alex was not living in
Nebraska for the 6 months prior to the commencement of these
proceedings. Thus, the district court did not have jurisdiction,
and it should have granted Nahoko’s motion to dismiss the
child custody dispute.
21 Id. at 111-12, 711 N.Y.S.2d at 204-05 (emphasis supplied) (emphasis in
original).
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[13,14] Nahoko also assigns error to the district court’s
failure to award her attorney fees. The district court’s deci-
sion on a request for attorney fees is reviewed de novo on
the record and will be affirmed in the absence of an abuse of
discretion.22 Although the district court did not have jurisdic-
tion to decide the child custody case because Nebraska is not
Alex’s home state, we have the power to determine jurisdic-
tional issues and to allow attorney fees and costs regarding
litigation of such jurisdictional issues.23 Based on our de novo
review of the record, the district court abused its discretion
in not awarding Nahoko attorney fees. Nahoko was forced to
leave her home in Japan to defend this lengthy and meritless
jurisdiction dispute. As such, we award $10,000 to Nahoko in
attorney fees.
CONCLUSION
We conclude that the district court lacked jurisdiction over
the child custody dispute and that this court also lacks that
same jurisdiction. We, therefore, vacate the district court’s
order relating to child custody and direct it to dismiss the child
custody proceeding. We also award Nahoko attorney fees in the
amount of $10,000.
reversed And reMAnded witH directions.
M iller-lerMAn, J., participating on briefs.
22 Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
23 See In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635
(1994). See, also, Carlson v. Carlson, 75 Ariz. 308, 256 P.2d 249 (1953).
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