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DeLima v. Tsevi

Supreme Court of Nebraska

December 21, 2018

Kwami M. DeLima, appellant,
v.
Anicette C. Tsevi, appellee.

         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 proceeding 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 matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

          Appeal from the District Court for Douglas County: Timothy P. Burns, Judge.

          Michael J. Decker for appellant.

         [301 Neb. 934] Julie 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 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.

         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, 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 the plaintiff'

         Over 2 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.

         Several 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.

         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 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.

         CD. 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 Akouvi.

         In late 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.

         Following 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.

         ASSIGNMENT OF ERROR

         Kwami assigns on appeal that the district court erred by finding it never had subject matter jurisdiction under the UCCJEA and ...


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