Jacobo v. Zoltenko , 30 Neb. Ct. App. 44 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/13/2021 12:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
JACOBO v. ZOLTENKO
Cite as 30 Neb. App. 44Holly Jacobo, appellant, v.
Cole Zoltenko, appellee.
___ N.W.2d ___
Filed July 6, 2021. No. A-20-906.
1. Protection Orders: Injunction: Appeal and Error. A protection order
pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2020) is analogous
to an injunction. Thus, the grant or denial of a protection order is
reviewed de novo on the record. In such de novo review, an appellate
court reaches conclusions independent of the factual findings of the
trial court.
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. Protection Orders. A petition for a domestic abuse protection order is
statutorily required to be filed in the district court, although it can be
heard by either a district court judge or a county court judge.
4. Protection Orders: Jurisdiction: Venue. Even though a court has sub-
ject matter jurisdiction to hear a request for a domestic abuse protection
order, the defendant may file to transfer the action to a more appropri-
ate venue.
5. Protection Orders: Affidavits. When a petition and affidavit for a
domestic abuse protection order satisfy the requirements of Neb. Rev.
Stat. § 42-924 (Cum. Supp. 2020), the court is required to issue an
ex parte domestic abuse protection order or schedule an evidentiary
hearing.
Appeal from the District Court for Box Butte County:
Travis P. O’Gorman, Judge. Reversed and remanded for fur-
ther proceedings.
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JACOBO v. ZOLTENKO
Cite as 30 Neb. App. 44Michelle M. Mitchell, of Legal Aid of Nebraska, for
appellant.
Ashley K. Spahn, of Law Office of Ashley K. Spahn,
L.L.C., for appellee.
Pirtle, Chief Judge, and Moore and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Holly Jacobo (Holly) appeals the order of the Box Butte
County District Court dismissing her petition for a domestic
abuse protection order against Cole Zoltenko (Cole) on behalf
of their son without an evidentiary hearing after it determined
it lacked jurisdiction. Upon our de novo review of the record,
we reverse the order of the district court and remand the matter
for further proceedings.
II. BACKGROUND
On October 19, 2020, Holly, pro se, filed a “Nebraska
State Court Form” entitled “Petition and Affidavit to Obtain
Domestic Abuse Protection Order” pursuant to Neb. Rev. Stat.
§ 42-924 (Cum. Supp. 2020) against Cole on behalf of the par-
ties’ 11-year-old son, N.Z. Her petition and affidavit alleged
the following occurred on “10/11/2020 afternoon”:
[N.Z.] stayed overnight with a friend on the 10th. He
and his friends were throwing rocks and [he] threw one
at a kid and hit him in the head. One of the parents told
[N.Z.’s] dad. When [N.Z.] got home, Cole started beating
[him] with a leather belt on his bottom and the backs of
his legs. Cole took [N.Z.’s] cell phone away so he couldn’t
call me and tell me what happened. [N.Z.] said the bruises
were purple they were so bad. He showed some of his
friends at school. [N.Z.] reported it to the principal at the
school who did not report to CPS. When [N.Z.] got to my
house (Holly’s house) on Friday, [he] came in and said
he had to show me something. The bruises were yellow
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JACOBO v. ZOLTENKO
Cite as 30 Neb. App. 44in color and I called CPS right away. They had me call
the Alliance PD. The PD took photos and then [N.Z.] was
interviewed at CAPstone. We also went to the doctor so
they could check him out. At the doctor’s office, they took
pictures and measurements of the bruises. One of the offi-
cers recommended that we get a protection order to keep
[N.Z.] safe from his father. The police department also
recommended that I not return [N.Z.] to his father. On
Friday, after we talked to the PD, [N.Z.] laid in bed and
couldn’t sleep, couldn’t talk because he was so scared. He
said, “What if all of this goes through and nothing hap-
pens and I have to go back to my dad’s?” [N.Z.] hasn’t
been acting like my son. I was so mad and angry for my
son. On Sunday, we told Cole that [N.Z.] wasn’t coming
back. [N.Z.] was so scared he didn’t want to be home
after we told him. He kept saying, “What if he comes
down the road and sees us?” After Cole made contact with
the PD, they called me and said that they told Cole not to
have contact with us. Once I told [N.Z.] that, he calmed
down and felt better knowing he was safe.
Holly’s petition and affidavit stated her address was in Alliance,
Nebraska (located in Box Butte County); stated N.Z.’s address
was in Stratton, Nebraska (located in Hitchcock County);
did not include an address for Cole; and stated that she and
Cole had been involved in past or current court cases, namely
“Custody—Minden, NE (Kearney County).” She requested to
have a district court judge preside over the protection order
proceeding. Holly asked the court to enter a protection order
granting her temporary custody of N.Z. for 90 days, along with
prohibiting Cole from engaging in certain specified behav-
iors. Holly also filed a “Nebraska State Court Form” entitled
“Protection Order Praecipe” on October 19 asking the clerk
of the Box Butte County District Court to have the sheriff
of Hitchcock County, Nebraska, serve Cole with “a copy of
the protection order and/or order to show cause, petition, and
request for hearing (if applicable).”
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Cite as 30 Neb. App. 44In an order entered that same day, October 19, 2020, the
district court denied and dismissed Holly’s petition without a
hearing. The court stated: “The events alleged do not appear
to have occurred in Box Butte County. Thus, this Court lacks
jurisdiction. These matters should be dealt with in the pending
custody proceeding in Kearney County, Nebraska.”
On October 28, 2020, counsel entered an appearance in
the matter on behalf of Holly. That same day, counsel filed a
motion to alter or amend, asking the district court to “vacate
its Order Dismissing Petition Without Hearing entered on
October 19, 2020 and either grant an ex parte Domestic Abuse
Protection Order, or in the alternative, to set the Petition
for hearing as required in Neb. Rev. Stat. §§ 42-925(1) and
42-925(3).” (Emphasis in original.) Counsel alleged that, pur-
suant to Neb. Rev. Stat. § 25-403.01 (Reissue 2016), the court
did have jurisdiction to enter the ex parte protection order or
set the matter for hearing.
On October 29, 2020, Holly filed a praecipe for summons
asking the clerk of the Box Butte County District Court to
prepare a summons directing the sheriff of Hitchcock County
to serve Cole at a “Home Address” in Stratton with a copy of
the (1) petition and affidavit to obtain a domestic abuse protec-
tion order, (2) order dismissing the petition without a hearing,
(3) entry of appearance, (4) motion to alter or amend, and (5)
notice of hearing. Although nothing in the record before us
shows that Cole was served, counsel did subsequently enter an
appearance on his behalf.
When counsel entered an appearance as attorney of record
in the case for Cole on November 9, 2020, Cole also filed a
motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1)
and (2), claiming that the district court lacked subject matter
jurisdiction and jurisdiction over Cole. He claimed that the
allegations in the petition were alleged to have occurred in
Hitchcock County, outside of Holly’s presence, and that Holly’s
allegations were strictly hearsay. Cole further asserted that he
and N.Z. resided in Hitchcock County and that therefore,
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Cite as 30 Neb. App. 44Box Butte County had no jurisdiction. Finally, Cole contended
that Holly “is using this Petition to seek temporary custody of
the minor child; this is an effort to usurp the Kearney County
District Court’s Order granting [Cole] primary physical and
legal custody of the minor child.”
On November 18, 2020, a hearing was held on Holly’s
motion to alter or amend and on Cole’s motion to dismiss. At
the hearing, Holly asked the district court to vacate its dismissal
of her petition, challenging the dismissal on “two fronts.” First,
as to jurisdiction, Holly argued that protection orders are
within the purview of the district court and that “this is perhaps
a question of venue.” Holly further argued that venue is not
fatal to this case “since it’s a personal right of . . . the respond­
ent, it can be something that’s waived.” Second, the domestic
abuse protection order statute “doesn’t allow for straight-up
dismissal, at least not without a hearing.”
In its order entered on November 19, 2020, the district court
denied Holly’s motion to alter or amend.
Holly appeals.
III. ASSIGNMENT OF ERROR
Holly assigns, consolidated, that the district court erred in
dismissing her petition and affidavit to obtain a domestic abuse
protection order after it determined that it lacked jurisdiction.
IV. STANDARD OF REVIEW
[1] A protection order pursuant to § 42-924 is analogous to
an injunction. Thus, the grant or denial of a protection order
is reviewed de novo on the record. In such de novo review, an
appellate court reaches conclusions independent of the factual
findings of the trial court. Robert M. on behalf of Bella O. v.
Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019).
V. ANALYSIS
Holly sought a domestic abuse protection order on behalf
of her son pursuant to § 42-924, which states in relevant part:
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JACOBO v. ZOLTENKO
Cite as 30 Neb. App. 44(1)(a) Any victim of domestic abuse may file a petition
and affidavit for a protection order as provided in this
section. Upon the filing of such a petition and affidavit
in support thereof, the court may issue a protection order
without bond granting the following relief:
(i) Enjoining the respondent from imposing any restraint
upon the petitioner or upon the liberty of the petitioner;
(ii) Enjoining the respondent from threatening, assault-
ing, molesting, attacking, or otherwise disturbing the
peace of the petitioner;
(iii) Enjoining the respondent from telephoning, con-
tacting, or otherwise communicating with the petitioner;
....
(v) Ordering the respondent to stay away from any
place specified by the court;
(vi) Awarding the petitioner temporary custody of any
minor children not to exceed ninety days;
....
(b) The petition for a protection order shall state the
events and dates or approximate dates of acts constituting
the alleged domestic abuse, including the most recent and
most severe incident or incidents.
....
(2) Petitions for protection orders shall be filed with
the clerk of the district court, and the proceeding may be
heard by the county court or the district court as provided
in section 25-2740. . . .
....
(5) If there is any conflict between sections 42-924 to
42-926 and any other provision of law, sections 42-924 to
42-926 shall govern.
“Abuse means the occurrence of one or more of the following
acts between family or household members: (a) Attempting
to cause or intentionally and knowingly causing bodily injury
with or without a dangerous instrument; (b) Placing, by means
of credible threat, another person in fear of bodily injury.”
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Cite as 30 Neb. App. 44Neb. Rev. Stat. § 42-903(1) (Cum. Supp. 2020). And the
phrase “family or household members” includes children. See
§ 42-903(3).
Holly filed the petition on behalf of N.Z., indicating her
relationship to him was as “Mother of child.” Earlier in this
opinion, we set forth Holly’s allegations. Her petition and affi-
davit satisfied the requirements of § 42-924 because it alleged
an incident of domestic abuse between family or household
members—she alleged that Cole “beat[]” his son, N.Z., with a
“leather belt” on his “bottom and the backs of his legs” causing
bruising on N.Z.
Neb. Rev. Stat. § 42-925(1) (Cum. Supp. 2020) provides for
the issuance of an ex parte protection order if “it reasonably
appears from the specific facts included in the affidavit that the
petitioner will be in immediate danger of abuse before the mat-
ter can be heard on notice.” If an order is not issued ex parte,
“the court shall immediately schedule an evidentiary hearing to
be held within fourteen days after the filing of the petition, and
the court shall cause notice of the hearing to be given to the
petitioner and the respondent.” § 42-925(3). However, in this
case, the district court denied and dismissed Holly’s petition
without a hearing, determining that because the events did not
take place in Box Butte County, the court was without jurisdic-
tion. We conclude the court erred in this determination, as we
discuss next.
1. Jurisdiction
(a) Subject Matter Jurisdiction
[2] 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. D.W. v. A.G., 303 Neb. 42, 926
N.W.2d 651 (2019).
Pursuant to Neb. Rev. Stat. § 24-302 (Reissue 2016), dis-
trict courts have general, original, and appellate jurisdiction
in all matters, both civil and criminal, except where otherwise
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Cite as 30 Neb. App. 44provided. Furthermore, § 42-924(2) states that petitions for
domestic abuse protection orders shall be filed with the clerk
of the district court and that the proceeding may be heard by
the county court or the district court as provided in Neb. Rev.
Stat. § 25-2740 (Cum. Supp. 2020). Section 25-2740 provides
the county court with concurrent jurisdiction over certain mat-
ters delineated under § 25-2740(1), which specifically includes
domestic abuse protection orders under § 42-924. And although
a petition or complaint in the cases specified under § 25-2740
must be filed in the district court, it allows the filing party
to request whether he or she wants the case to be heard by a
county court judge or a district court judge. Holly requested
her case to be heard by a district court judge.
[3] There is no question the district court had subject mat-
ter jurisdiction over this petition for a domestic abuse protec-
tion order. Such matters are statutorily required to be filed
in the district court, although they can be heard by either a
district court judge or a county court judge. The district court’s
decision to dismiss the petition may have been based more
on what it perceived as an inappropriate venue. Pursuant to
§ 25-403.01:
Any action, other than the actions mentioned in sec-
tions 25-401 to 25-403 [involving real estate and specific
performance of land contract], may be brought (1) in the
county where any defendant resides, (2) in the county
where the cause of action arose, (3) in the county where
the transaction or some part of the transaction occurred
out of which the cause of action arose, or (4) if all
defend­ants are nonresidents of this state, in any county.
When an action has been commenced in any other county,
the court in which the action has been commenced shall
have jurisdiction over the action, but upon timely motion
by a defendant, the court shall transfer the action to
the proper court in a county in which such action might
have been properly commenced. The court in the county
to which the action is transferred, in its discretion, may
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Cite as 30 Neb. App. 44order the plaintiff or the plaintiff’s attorney to pay to the
defend­ant all reasonable expenses, including attorney’s
fees, incurred by the defendant because of the improper
venue or in proceedings to transfer the action.
(Emphasis supplied.)
[4] Thus, under the plain language of the statutes above, the
Box Butte County District Court had subject matter jurisdic-
tion to hear and determine Holly’s request for a domestic abuse
protection order against Cole on behalf of their son, although
Cole could have filed to transfer the action to a more appropri-
ate venue. To the extent the district court’s reference to it lack-
ing “jurisdiction” was premised upon the lack of subject matter
jurisdiction, it was in error.
(b) Personal Jurisdiction
Personal jurisdiction is the power of a tribunal to subject
and bind a particular person or entity to its decisions. Carey v.
City of Hastings, 287 Neb. 1, 840 N.W.2d 868 (2013). Proper
service, or a waiver by voluntary appearance, is necessary
to acquire personal jurisdiction over a defendant. Johnson v.
Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011).
In this case, there was no opportunity to ensure proper serv­
ice on Cole, because the district court dismissed Holly’s peti-
tion for a domestic abuse protection order on the same day that
it was filed. Based on the immediate dismissal of the petition,
consideration of personal jurisdiction would have been pre­
mature at the time of the court’s order on October 19, 2020.
2. Dismissal of Petition
Holly argues that the district court erred when it dismissed
her petition without issuing an ex parte protection order or
scheduling an evidentiary hearing. We agree.
[5] Once the requirements of § 42-924 are satisfied, an
ex parte domestic abuse protection order should be issued
or, alternatively, an evidentiary hearing should be scheduled.
See § 42-925. Because the district court had subject matter
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Cite as 30 Neb. App. 44jurisdiction over the case and Holly’s petition and affidavit
satisfied the requirements of § 42-924, the court was required
to issue an ex parte domestic abuse protection order or sched-
ule an evidentiary hearing. See, also, Rosberg v. Rosberg, 25
Neb. App. 856, 916 N.W.2d 62 (2018) (comparing mandatory
language found in domestic abuse protection order statute with
discretionary language of harassment protection order statute).
The court’s failure to issue an ex parte domestic abuse protec-
tion order or otherwise schedule an evidentiary hearing was in
error. We therefore reverse the court’s dismissal of the petition
and remand the matter for further proceedings.
3. Mootness
We take a moment to address Cole’s argument that the issue
in this case is now moot. He argues:
At the hearing [on Holly’s motion to alter or amend and
on Cole’s motion to dismiss] held on November 18, 2020,
Counsel for Cole advised the Court that the minor child
was no longer in Box Butte County as he had been returned
to Cole by order of the Kearney County District Court.
The circumstantial evidence is clear that law enforce-
ment, Child Protective Services, and the Kearney County
District Court determined there was no safety concern.
Brief for appellee at 8. Cole’s argument would require us to
consider matters outside of the record before us and/or to
speculate that a safety determination was made. What is appar-
ent from our record is that no evidentiary hearing was held on
Holly’s petition, and there is no indication that the merits of
such petition were considered; the court simply dismissed the
petition for lack of jurisdiction, and we have already deter-
mined that such dismissal was in error.
Cole also points out that several months “have expired from
the date that Holly applied for this protection order” on October
19, 2020. Id. However, the passing of several months does not
make this case moot, because protection orders issued pursu-
ant to § 42-924 are effective for 1 year. See § 42-924(3)(a).
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Cite as 30 Neb. App. 44If a protection order would have been issued in this case, it
would have been effective until October 19, 2021, a date that
has not yet come to pass.
VI. CONCLUSION
For the reasons stated above, we reverse the order of the
district court dismissing Holly’s petition and affidavit for a
domestic abuse protection order against Cole on behalf of their
son, N.Z., and we remand the matter for further proceedings.
Reversed and remanded for
further proceedings.