Sosso v. Sosso

242 N.W.2d 621, 196 Neb. 242, 1976 Neb. LEXIS 770

• Court: Nebraska Supreme Court
• Decided: May 26, 1976
• Docket: 40411
• Status: Published

Opinions

Newton, J.

This is a divorce action. The court terminated parental rights as to two minor children of the parties after dissolving their marriage. Mary M. Sosso, mother of the children and appellant, challenges the order terminating parental rights. She asserts that parental rights to children cannot be terminated in a divorce proceeding; that proper notice of a hearing on termination was not given; that the children should have been represented by an attorney; and that the evidence does not sustain the judgment. We reverse the order terminating parental rights to the children.

The primary question is the jurisdiction of the District Court to terminate parental rights in a divorce action. “Jurisdiction of the court in matters relating to divorce and alimony is given by the statute, and every power exercised by the court with reference thereto must look for its source in the statute, or it does not exist.” Detter v. Erpelding, 176 Neb. 600, 126 N. W. 2d 827. The only authority conferred on the District Court to deal with children in a divorce suit is found in section 42-364, R. S. Supp., 1974. It provides: “When dissolution of a marriage or legal separation is decreed, the court may include such orders in relation to any minor children and their maintenance as shall be justified, including placing the minor children in court custody if their welfare so requires. Custody and visitation of minor children shall be determined on the basis of their best interests. Subsequent changes may be made by the court when required after notice and hearing.” A reading of the entire statute makes it obvious that the authority of the court is limited to provisions for children which will remain subject to change. No final disposition of the children such as an order terminating parental rights is contemplated.

Under the Nebraska statutes a termination of parental rights can only be decreed by a juvenile court in a proceeding brought for that purpose. See § 43-209, R. S. Supp., 1974.

In view of the foregoing, it is not necessary to consider appellant’s other assignments of error. That portion of the judgment of the District Court purporting to terminate parental rights to the children of the parties is reversed and the cause is remanded for further proceedings.

It appears that in some instances District Judges have terminated parental rights in divorce cases. With that in mind, we wish to make it clear that the rule herein laid down, except as to this case, shall be prospective in nature and fully effective as of June 1, 1976.

Reversed and remanded.

Spencer, J., participating on briefs.