Kwami M. DeLima, appellant,
Anicette C. Tsevi, appellee.
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.
Statutes: Appeal and Error. Statutory
interpretation is a question of law, which an appellate court
resolves independently of the trial court.
Child Custody: Jurisdiction. Jurisdiction
over a child custody proceeding is governed by the Uniform
Child Custody Jurisdiction and Enforcement Act.
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.
Jurisdiction. Parties cannot confer subject
matter jurisdiction upon a judicial tribunal by either
acquiescence or consent, nor may subject matter jurisdiction
be created by waiver, estoppel, consent, or conduct of the
from the District Court for Douglas County: Timothy P. Burns,
Michael J. Decker for appellant.
Neb. 934] Julie Fowler, of Fowler & Kelly Law, L.L.P.,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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 determined that it did not
have and never had subject matter jurisdiction to make
custody determinations regarding the child and vacated all
prior orders pertaining to custody or visitation. 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.
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, CD., born in 2003; and
that CD. had resided with C.D.'s maternal grandmother,
Jeanne Akouvi, in Togo since 2006. The complaint for
dissolution did not ask that either party be awarded custody
of or visitation with CD. The subsequent divorce decree,
which appears to be a form document with information specific
to the parties supplied in handwriting, did not award either
party custody of CD. The decree does have what appears to be
a handwritten checkmark next to language indicating that
"[t]he defendant is awarded reasonable visitation with
the parties' minor child(ren), upon reasonable notice to
years later, in July 2011, Kwami filed an application to
modify the divorce decree. He alleged that there had [301
Neb. 935] been 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
CD. In its order, the court found that Anicette had taken CD.
to Togo and had refused to return the child to Kwami and that
CD. was not receiving proper medical treatment.
years after the decree was modified to award custody 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 CD. The
court set Anicette's application to modify the custody
decree for trial. Trial was held in September 2017.
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 CD. to live
with Akouvi in Togo. Both Kwami and Anicette signed a
document 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 CD. to Akouvi. Kwami admitted that he
agreed to send CD. to Togo to live with Akouvi in 2006.
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
sister, who lived with Akouvi and CD. at the time, testified
that Akouvi brought CD. to a hospital and to monthly checkups
at a medical clinic there. After CD. 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 [301 Neb. 936] stayed for several months. When she
departed, she also left the second child in the care of
2011, Anicette moved to Togo. Less than a year later, in
September 2012, she and CD. moved to Switzerland. Anicette
and CD. have resided in Switzerland with her new husband
since then. CD. has not been in the United States since 2006.
the trial, the district court entered an order vacating all
prior orders concerning the custody of CD. It explained that
Nebraska was not the child's home state at the time
custody 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.
assigns on appeal that the district court erred by finding it
never had subject matter jurisdiction under the UCCJEA and