DeLima v. Tsevi , 921 N.W.2d 89 ( 2018 )

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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
DeLIMA v. TSEVI
Cite as 301 Neb. 933Kwami M. DeLima, appellant, v.
A nicette C. Tsevi, appellee.
___ N.W.2d ___
Filed December 21, 2018. No. S-17-1144.
1. Child Custody: Jurisdiction: Appeal and Error. In considering
whether jurisdiction exists under the Uniform Child Custody Jurisdiction
and Enforcement Act, a jurisdictional question that does not involve a
factual dispute is determined by an appellate court as a matter of law,
which requires an appellate court to reach a conclusion independent
from the trial court.
2. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
3. Child Custody: Jurisdiction. Jurisdiction over a child custody pro-
ceeding is governed by the Uniform Child Custody Jurisdiction and
Enforcement Act.
4. Child Custody: Jurisdiction: States. For a state to have jurisdiction
to make an initial child custody determination, it must either be the
“home state” as defined by the Uniform Child Custody Jurisdiction and
Enforcement Act or fall under the limited exceptions to the home state
requirement specified by the act. Generally speaking, Neb. Rev. Stat.
§ 43-1238(a)(1) (Reissue 2016) grants jurisdiction to the home state
of the child and § 43-1238(a)(2) through (4) sets out the exceptions
under which a court will have jurisdiction, even if it is not in the child’s
home state.
5. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Michael J. Decker for appellant.
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Cite as 301 Neb. 933Julie Fowler, of Fowler & Kelly Law, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Several years after the Douglas County District Court
awarded custody of the child of Kwami M. DeLima (Kwami)
and Anicette C. Tsevi (Anicette) to Kwami, the court deter-
mined that it did not have and never had subject matter juris-
diction to make custody determinations regarding the child
and vacated all prior orders pertaining to custody or visita-
tion. Kwami appeals. We find that the district court correctly
determined that it did not have and never had subject matter
jurisdiction to make custody determinations regarding the child
and therefore affirm.
BACKGROUND
In 2009, Kwami filed a complaint in Douglas County
District Court seeking to dissolve his marriage with Anicette.
In the complaint for dissolution, he alleged that he and
Anicette were lawfully married in the nation of Togo in
1999; that the marriage had produced one minor child, C.D.,
born in 2003; and that C.D. had resided with C.D.’s maternal
grandmother, Jeanne Akouvi, in Togo since 2006. The com-
plaint for dissolution did not ask that either party be awarded
custody of or visitation with C.D. The subsequent divorce
decree, which appears to be a form document with informa-
tion specific to the parties supplied in handwriting, did not
award either party custody of C.D. The decree does have
what appears to be a handwritten checkmark next to language
indicating that “[t]he defendant is awarded reasonable visita-
tion with the parties’ minor child(ren), upon reasonable notice
to the plaintiff.”
Over 2 years later, in July 2011, Kwami filed an applica-
tion to modify the divorce decree. He alleged that there had
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DeLIMA v. TSEVI
Cite as 301 Neb. 933been a change in circumstances since the entry of the decree,
in that Anicette had “taken the parties’ minor child to Togo,
Africa, and has refused to return the child to [Kwami].” After
a hearing on the modification application in which Anicette
did not appear and was not represented by counsel, the district
court issued an order in June 2012 awarding Kwami sole care,
custody, and control of C.D. In its order, the court found that
Anicette had taken C.D. to Togo and had refused to return the
child to Kwami and that C.D. was not receiving proper medi-
cal treatment.
Several years after the decree was modified to award cus-
tody to Kwami, Anicette filed her own application to modify
the custody decree. She also filed a motion to vacate the decree
as it pertained to child custody. In it, she contended that the
court did not have and never had subject matter jurisdiction to
decide custody issues concerning C.D. The court set Anicette’s
application to modify the custody decree for trial. Trial was
held in September 2017.
Both Kwami and Anicette testified at the trial, as did other
witnesses. Both parties also introduced documentary evidence.
The evidence established that, in 2006, when Kwami and
Anicette were still married, they agreed to send C.D. to live
with Akouvi in Togo. Both Kwami and Anicette signed a docu-
ment at that time stating that they gave permission to let their
son travel to Togo with Akouvi. The document also purported
to grant “all and every possible legal right” concerning C.D. to
Akouvi. Kwami admitted that he agreed to send C.D. to Togo
to live with Akouvi in 2006.
C.D. resided with Akouvi in Togo from 2006 until September
2012. During that time, he attended private school in Togo. He
also received medical attention in Togo. Anicette’s younger sis-
ter, who lived with Akouvi and C.D. at the time, testified that
Akouvi brought C.D. to a hospital and to monthly checkups
at a medical clinic there. After C.D. had been in Togo several
years, Anicette gave birth to a second child in Nebraska and,
shortly thereafter, traveled to Togo with that child. Anicette
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Cite as 301 Neb. 933stayed for several months. When she departed, she also left the
second child in the care of Akouvi.
In late 2011, Anicette moved to Togo. Less than a year
later, in September 2012, she and C.D. moved to Switzerland.
Anicette and C.D. have resided in Switzerland with her new
husband since then. C.D. has not been in the United States
since 2006.
Following the trial, the district court entered an order vacat-
ing all prior orders concerning the custody of C.D. It explained
that Nebraska was not the child’s home state at the time cus-
tody proceedings were initiated for the purposes of the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA),
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016), and
that, as a result, the court did not have and never had subject
matter jurisdiction over custody matters. Following the denial
of his motion for a new trial, Kwami timely appealed.
ASSIGNMENT OF ERROR
Kwami assigns on appeal that the district court erred by
finding it never had subject matter jurisdiction under the
UCCJEA and vacating all prior custody orders on that basis.
STANDARD OF REVIEW
[1,2] In considering whether jurisdiction exists under the
UCCJEA, a jurisdictional question that does not involve a
factual dispute is determined by an appellate court as a matter
of law, which requires an appellate court to reach a conclusion
independent from the trial court. In re Guardianship of S.T.,
300 Neb. 72, 912 N.W.2d 262 (2018). Statutory interpretation
is a question of law, which an appellate court resolves indepen-
dently of the trial court. Id.ANALYSIS
General Statutory Background.
The question before us is whether the district court ever
acquired subject matter jurisdiction to determine the cus-
tody of C.D. We begin by summarizing the statutory
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Cite as 301 Neb. 933background governing subject matter jurisdiction of child cus-
tody determinations.
[3] We have previously said that subject matter jurisdiction
over a child custody proceeding is governed exclusively by
the UCCJEA. See, e.g., Carter v. Carter, 276 Neb. 840, 758
N.W.2d 1 (2008). Our use of the word “exclusively” in this
context was slightly imprecise, because there are other statutes
outside the UCCJEA that confer jurisdiction to decide child
custody matters. See, e.g., Neb. Rev. Stat. § 42-351 (Reissue
2016). But while other statutes may confer jurisdiction gener-
ally, § 42-351 directs courts to determine whether jurisdic-
tion exists over a specific child custody proceeding under
the UCCJEA.
Section 43-1238 of the UCCJEA sets forth the circum-
stances under which a court of this state has jurisdiction to
make an initial child custody determination, providing as
follows:
(a) Except as otherwise provided in section 43-1241
[regarding temporary emergency jurisdiction], a court of
this state has jurisdiction to make an initial child 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;
(2) a court of another state does not have jurisdiction
under subdivision (a)(1) of this section, or a court of the
home state of the child has declined to exercise jurisdic-
tion on the ground that this state is the more appropriate
forum under section 43-1244 or 43-1245, and:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
a significant connection with this state other than mere
physical presence; and
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Cite as 301 Neb. 933(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and personal
relationships;
(3) all courts having jurisdiction under subdivision
(a)(1) or (a)(2) of this section have declined to exercise
jurisdiction on the ground that a court of this state is the
more appropriate forum to determine the custody of the
child under section 43-1244 or 43-1245; or
(4) no court of any other state would have jurisdiction
under the criteria specified in subdivision (a)(1), (a)(2), or
(a)(3) of this section.
[4] As we have previously explained in cases involving the
UCCJEA, for a state to have jurisdiction to make an initial
child custody determination, it must either be the “home state”
as defined by the UCCJEA or fall under the limited excep-
tions to the home state requirement specified by the UCCJEA.
See In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262(2018). Generally speaking, § 43-1238(a)(1) grants jurisdiction
to the home state of the child and § 43-1238(a)(2) through
(4) sets out the exceptions under which a court will have
jurisdiction, even if it is not in the child’s home state. In re
Guardianship of S.T., supra.Section 43-1238(a) grants jurisdiction to make an “initial
child custody determination,” which is defined elsewhere in
the UCCJEA as the “first child custody determination concern-
ing a particular child.” § 43-1227(8). Another section of the
UCCJEA provides that a court that has made an initial child
custody determination consistent with § 43-1238 has “exclu-
sive, continuing jurisdiction over the determination” unless the
court makes certain findings. See § 43-1239.
Because the analysis required to determine whether a court
has jurisdiction to make an initial child custody determination
differs from the analysis required to determine whether a court
can exercise its continuing jurisdiction after making an initial
determination, an evaluation of jurisdiction under the UCCJEA
will occasionally require a determination of when the initial
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Cite as 301 Neb. 933determination was made. That task is not so straightforward
in this case.
One candidate for the initial determination is the 2009
divorce decree. While the decree did not award custody, there
does appear to be a handwritten checkmark next to language
in the decree indicating that the defendant, here Anicette, is
awarded “reasonable visitation,” the specific terms of which
are to be determined by the plaintiff, here Kwami, acting in
good faith. A decree providing for visitation concerning a
child would ordinarily qualify as a child custody determina-
tion, see § 43-1227(3), but it is not clear that the checkmark
on the decree was truly intended to provide for visitation in
this case. The “visitation” language appears to presuppose that
Kwami had been granted custody and thus was authorized to
determine the extent of Anicette’s “visitation,” but, as we have
noted, the decree did not actually address custody. Perhaps
in recognition of the questionable nature of any visitation
provided in the initial decree, Kwami’s counsel characterized
the decree at oral argument as containing “somewhat of a cus-
tody determination.”
If the 2009 divorce decree did not include a child custody
determination, the initial child custody determination for pur-
poses of § 43-1238(a)(2) did not occur until the district court
modified the decree to award Kwami custody in 2012. In the
end, we find that it is unnecessary to determine when the ini-
tial determination was made, because we find that the district
court did not have jurisdiction to make an initial child custody
determination in either 2009 or 2012. We explain our reasons
for this conclusion in more detail below.
Home State Jurisdiction.
As mentioned above, the UCCJEA generally grants juris-
diction to the child’s home state. In this case, the district
court did not have home state jurisdiction to make an initial
child custody determination, because Nebraska was not C.D.’s
home state.
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301 Nebraska R eports
DeLIMA v. TSEVI
Cite as 301 Neb. 933The UCCJEA defines home state 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 com-
mencement of a child custody proceeding.” § 43-1227(7). As
even Kwami concedes, the fact that C.D. was living in Togo
beginning in 2006 precludes any possibility of a Nebraska
court obtaining jurisdiction on the basis of home state status.
“Last Resort” Jurisdiction.
Rather than relying on § 43-1238(a)(1), Kwami argues that
the court had jurisdiction to make an initial determination
under § 43-1238(a)(4), a basis for jurisdiction not explicitly
considered by the district court. A Nebraska court has juris-
diction to make an initial child custody determination under
§ 43-1238(a)(4) if “no court of any other state would have
jurisdiction under the criteria specified in subdivision (a)(1),
(a)(2), or (a)(3) of [§ 43-1238].” This is referred to by one
court as “last resort” jurisdiction. See Madrone v. Madrone,
290 P.3d 478 (Colo. 2012).
Viewed on the surface, this argument might appear to have
merit, because Kwami is correct that the record discloses
no other state in the United States that might have jurisdic-
tion. Left unmentioned by Kwami, however, is the fact that
the UCCJEA provides that foreign countries like Togo are to
be treated as if they were states of the United States unless
their child custody law violates “fundamental principles of
human rights.” See, Carter v. Carter, 276 Neb. 840, 846, 758
N.W.2d 1, 7 (2008); § 43-1230(a) through (c). Because there
is no suggestion that the child custody law of Togo violates
fundamental human rights, jurisdiction under § 43-1238(a)(4)
depends on whether a court of Togo would have had jurisdic-
tion to make an initial child custody determination under the
criteria set forth in either subdivision (a)(1), (a)(2), or (a)(3).
If a court of Togo would have had such jurisdiction, it cannot
be said no court of any other “state” would have jurisdiction,
and therefore the district court would not have last resort
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Cite as 301 Neb. 933jurisdiction. See, e.g., Gerhauser v. Van Bourgondien, 238
N.C. App. 275, 767 S.E.2d 378 (2014) (holding that because
courts in Utah or Florida would have had jurisdiction to make
initial child custody determination, North Carolina court could
not exercise jurisdiction under North Carolina version of
§ 43-1238(a)(4)).
Before proceeding to consider whether a court of Togo
would have jurisdiction to make an initial determination of
custody, we pause to clarify the precise nature of our inquiry.
For multiple reasons, we will not explore the laws of Togo to
decide whether it would have been permissible for a court in
that country to make a child custody determination under the
circumstances in this case. First, as a general matter, we are not
authorized to take judicial notice of the laws of foreign coun-
tries and, if, as here, the law of a foreign country is not pleaded
and proved like any other fact, we presume it to be the same as
the law of Nebraska. See, Neb. Rev. Stat. § 25-12,105 (Reissue
2016); Molina v. Sovereign Camp, W. O. W., 6 F.R.D. 385 (D.
Neb. 1947); Exstrum v. Union Casualty & Life Ins. Co., 167
Neb. 150, 91 N.W.2d 632 (1958).
In addition, § 43-1238(a)(4) provides for jurisdiction if
“no court of any other state would have jurisdiction under
the criteria specified in subdivision (a)(1), (a)(2), or (a)(3)
of [§ 43-1238].” (Emphasis supplied.) Section 43-1238(a)(4)
thus directs us to consider whether a court of Togo would have
jurisdiction under the UCCJEA, as opposed to requiring us to
attempt to ascertain and apply the law of Togo to the extent it
might differ from the UCCJEA.
We begin our analysis as to whether a court of Togo would
have had jurisdiction with the question of whether Togo quali-
fied as C.D.’s home state under § 43-1238(a)(1). As noted
above, § 43-1238(a)(1) generally authorizes the exercise of
jurisdiction by a court in the home state of the child. The home
state of the child is defined 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
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Cite as 301 Neb. 933a child custody proceeding.” § 43-1227(7). Since C.D. lived in
Togo with Akouvi from 2006 to 2012, there is no question that
he lived in Togo long enough for that to be his home state. Less
clear, however, is whether Akouvi was a “person acting as a
parent” for purposes of the UCCJEA.
Under § 43-1227(13) of the UCCJEA, a person acting as a
parent is
a person, other than a parent, who:
(A) has physical custody of the child or has had
physical custody for a period of six consecutive months,
including any temporary absence, within one year imme-
diately before the commencement of a child custody pro-
ceeding; and
(B) has been awarded legal custody by a court or
claims a right to legal custody under the law of this state.
While the record indicates that Akouvi had the requisite physi-
cal custody of the child in order to qualify as a “person act-
ing as a parent,” under § 43-1227(13)(A), it is not clear that
she would qualify under either of the legal custody prongs of
§ 43-1227(13)(B). There is no indication in the record that she
was ever awarded legal custody of the child by a court or even
“claim[ed] a right to legal custody.”
If Akouvi did not qualify as a “person acting as a par-
ent,” a court of Togo could not exercise jurisdiction under
§ 43-1238(a)(1). However, we need not resolve whether the
action could have been brought in Togo under § 43-1238(a)(1),
because even if it could not, we find that the action could have
been brought in Togo under one of the exceptions to home
state jurisdiction.
As noted above, § 43-1238(a)(2) through (4) sets out the
exceptions under which the court will have jurisdiction even
if it is not the child’s home state. Jurisdiction exists under
§ 43-1238(a)(2) if no court has jurisdiction as the child’s home
state and the following are true:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
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Cite as 301 Neb. 933a significant connection with this state other than mere
physical presence; and
(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and personal
relationships.
This basis for jurisdiction under the UCCJEA is commonly
referred to as “significant connection” jurisdiction. See, e.g.,
Madrone v. Madrone, 290 P.3d 478 (Colo. 2012).
Even if a court in Togo could not have exercised jurisdic-
tion as C.D.’s home state, we find that it could have exercised
significant connection jurisdiction, because all of the necessary
elements were present to do so. First, assuming Togo could
not have exercised jurisdiction as C.D.’s home state, no court
would have home state jurisdiction. As we have explained,
Nebraska did not qualify as C.D.’s home state.
Next, we find that both Anicette and C.D. had a significant
connection to Togo. When tasked with deciding whether an
individual has a significant connection to a state for purposes
of this section of the UCCJEA, courts consider a wide variety
of ties to the state.
“Some factors that have been weighed in these cases are
the child’s relationship with extended or blended family
members, enrollment in school or day care, participation
in social activities, access to medical, dental or psycho-
logical care, or the availability of government assistance.
Some courts will mention the parent’s employment or
family ties.”
J.H. v. C.Y., 161 So. 3d 233, 241 (Ala. Civ. App. 2014), quot-
ing Annot., 52 A.L.R.6th 433 (2010).
For instance, in In re Marriage of Diaz, 363 Ill. App. 3d
1091, 845 N.E.2d 935, 301 Ill. Dec. 70 (2006), an Illinois
appellate court found that a mother and child had a significant
connection to Illinois, based on the facts that the mother was
married in Illinois; she and her child had periodically resided
in Illinois; the mother relied upon her mother, also an Illinois
resident, to care for the child; and the mother intended to
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Cite as 301 Neb. 933take advantage of various opportunities in Illinois. Similarly,
in Matter of Marriage of Schwartz and Battini, 289 Or. App.
332, 410 P.3d 319 (2017), an Oregon appellate court found
that a mother and a child had a significant connection to
Oregon, based on the facts that the mother was from Oregon;
the child was born and had a doctor there; and the child’s
maternal grandparents, with whom the child had spent signifi-
cant time, spent half the year there. And finally, in Breselor v.
Arciniega, 123 A.D.3d 1413, 1 N.Y.S.3d 413 (2014), a New
York court found that a mother and her child had a significant
connection to New York, based on the facts that the mother
and child resided in New York previously, the child visited
her grandparents in New York previously, and the child had
relationships with her grandparents and other extended family
members in New York.
Informed by the basis upon which other courts have found
a significant connection, we find that both C.D. and Anicette
had a significant connection to Togo. With respect to C.D.,
there is no doubt he had a significant connection. He resided
with family members in the country continuously from 2006
to 2012 and attended school and received medical attention
there. We also find that Anicette had a significant connection
to Togo. She was married in Togo. And while she later moved
to Nebraska, she continued to have significant connections to
Togo even when she lived in Nebraska. Those connections
included family living in Togo; the record indicates at least
her mother and sister lived there. In addition, and perhaps
most important, Anicette voluntarily sent C.D. to live in Togo
with Akouvi while she remained in Nebraska. Based on all
these facts, we find that Anicette had a significant connection
to Togo.
Finally, it is clear from the record that substantial evi-
dence concerning C.D.’s care, protection, training, and per-
sonal relationships was available in Togo. Indeed, given the
fact that C.D. had lived in Togo from 2006 to 2012, substan-
tial evidence on these subjects would not have been available
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Cite as 301 Neb. 933anywhere else. In any case, the record indicates that C.D.
attended school in Togo, that he received medical attention at
both a hospital and medical clinic in Togo, that he had friends
in Togo, and that his primary caregiver, Akouvi, resided in
Togo. On this basis, we conclude there was substantial evi-
dence in Togo regarding C.D.’s care, protection, training, and
personal relationships.
Based on the foregoing, we find that even if a court in Togo
would not have had jurisdiction to make an initial custody
determination under § 43-1238(a)(1), it would have had signif-
icant connection jurisdiction to make an initial child custody
determination under § 43-1238(a)(2). And because a court
in Togo would have had jurisdiction under § 43-1238(a)(2),
the district court did not have last resort jurisdiction under
§ 43-1238(a)(4). See, e.g., Gerhauser v. Van Bourgondien, 238
N.C. App. 275, 767 S.E.2d 378 (2014).
District Court’s Order Vacating
All Prior Custody Orders.
At oral argument, counsel for Kwami contended that even
if a child custody proceeding could have initially been brought
in Togo, the district court should not have found a lack
of jurisdiction, because at the time the custody proceed-
ings were commenced, both Kwami and Anicette lived in
Nebraska and chose to litigate the issues in the district court.
Counsel additionally pointed out that C.D.’s custody has been
litigated in the district court for 9 years but that as a result
of the district court’s most recent order, it has still not
been resolved.
[5] All of this appears to be true, but it does not affect
whether the district court acquired subject matter jurisdiction.
If a court lacks subject matter jurisdiction, it lacks the power
to determine the case. See J.S. v. Grand Island Public Schools,
297 Neb. 347, 899 N.W.2d 893 (2017). Accordingly, par-
ties cannot confer subject matter jurisdiction upon a judicial
tribunal by either acquiescence or consent, nor may subject
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Cite as 301 Neb. 933matter jurisdiction be created by waiver, estoppel, consent, or
conduct of the parties. Id.That the parties litigated this case in the district court for
some time is thus irrelevant to whether the district court had
subject matter jurisdiction. The district court’s authority to
decide C.D.’s custody is determined by the UCCJEA, and for
reasons we have explained, the UCCJEA did not give it the
power to do so. When a court acts without subject matter juris-
diction, its actions are void. See J.S. v. Grand Island Public
Schools, supra.So while it is certainly regrettable that the significant time
and energy devoted to litigating C.D.’s custody in the district
court was all for naught, upon its correct determination that
it never had subject matter jurisdiction, the district court had
no choice but to vacate its prior custody orders. See In re
C and M Properties, L.L.C., 563 F.3d 1156, 1167-68 (10th Cir.
2009) (holding that action must be dismissed for lack of sub-
ject matter jurisdiction despite court’s being “loathe to add to
the duration and complexity of an already overlong and overly
complex matter, let alone to deliver the unwelcome news that
the parties have been litigating in vain in federal court for over
four years based on a mistaken premise”).
CONCLUSION
Because the district court never acquired subject matter
jurisdiction of the custody of C.D., any actions regarding his
custody were void. The district court thus correctly vacated
any orders pertaining to C.D.’s custody or visitation, and
we affirm.
A ffirmed.