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Metzler v. Metzler

Court of Appeals of Nebraska

April 10, 2018

David Lynn Metzler, appellant,
v.
Mary Grace Metzler, appellee.

          1. Motions to Dismiss: Pleadings: Appeal and Error. A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-dictional issue that does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court.

         3. Jurisdiction: Divorce. Under the doctrine of divisible divorce, divorce proceedings contain two principal components: (1) the dissolution of the marital status and (2) the adjudication of the incidences of the marriage.

         4. Jurisdiction: Divorce: Child Support: Alimony. The divisibility doctrine holds that while a state court may have jurisdiction over the marriage to dissolve it, that same court may lack personal jurisdiction to adjudicate personal matters such as support or alimony.

         5. Jurisdiction: Divorce. The dissolution of the marital status is generally considered an in rem proceeding where the marriage is the res adjudicated.

         6. Jurisdiction: States. In rem proceedings require minimum contacts between a person's interest in the res adjudicated and the forum state.

         7. Jurisdiction: States: Domicile. Because states have a strong interest in the marital status of their residents, a marriage has sufficient contacts with a state to justify that state's exercise of jurisdiction over it when one spouse has established a domicile therein.

         8. __:__:__. A nonresident spouse's absence does not diminish a state's interest in, or contacts with, the resident spouse's marriage, even [25 Neb.App. 758] if the nonresident spouse has never traveled to the resident spouse's new state.

         9. Due Process: Jurisdiction: States: Domicile: Service of Process. If the resident spouse has established a bona fide domicile in a state and his or her service on the nonresident spouse satisfied procedural due process, the state has jurisdiction to adjudicate the resident spouse's marital status.

         10. Divorce: Actions: Domicile: Words and Phrases. The language of Neb. Rev. Stat. § 42-349 (Reissue 2016) requiring an "actual residence in this state" means that one party is required to have a bona fide domicile in Nebraska for 1 year before commencement of a dissolution action.

         11. Domicile: Intent: Words and Phrases. Domicile is obtained only through a person's physical presence accompanied by the present intention to remain indefinitely at a location or site or by the present intention to make a location or site the person's permanent or fixed home.

         12. Domicile: Intent. The absence of either presence or intention thwarts the establishment of domicile.

         13. Domicile. Once established, domicile continues until a new domicile is perfected.

         14. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribunal to subject and bind a particular entity to its decisions.

         15. Due Process: Jurisdiction: States. Before a court can exercise personal jurisdiction over a nonresident defendant, the court must determine, first, whether the long-arm statute is satisfied and, if the long-arm statute is satisfied, second, whether minimum contacts exist between the defendant and the forum state for personal jurisdiction over the defendant without offending due process.

         16. __:__:__. When a state construes its long-arm statute to confer jurisdiction to the fullest extent permitted by the Due Process Clause, the inquiry collapses into the single question of whether exercise of personal jurisdiction comports with due process.

         17. __: __: __ . Due process for personal jurisdiction over a nonresident defendant requires that the plaintiff allege specific acts by the defendant which establish that the defendant had the necessary minimum contacts before a Nebraska court can exercise jurisdiction over a person.

         18. Jurisdiction: States. When considering the issue of personal jurisdiction, it is essential in each case that there be some act by which the defendant purposely avails himself or herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

          [25 Neb.App. 759] 19. Due Process: Jurisdiction: States. The benchmark for determining whether the exercise of personal jurisdiction satisfies due process is whether the defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being haled into court there.

         20. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals with a court's ability to hear a case; it is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.

         21. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face.

         22. Actions: Pleadings. Civil actions are controlled by a liberal pleading regime; a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief.

         23. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R. Pldg. § 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.

          Appeal from the District Court for Sarpy County: George A. Thompson, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Stephanie Weber Milone, of Milone Law ...


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