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Francisco v. De Leon Gonzalez

Supreme Court of Nebraska

January 4, 2019

Eulalia Miguel Francisco, appellant,
v.
Sergio Remigo De Leon Gonzalez, appellee.

         1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

         2. Jurisdiction: Service of Process: Waiver. Proper service, or a waiver by voluntary appearance, is necessary to acquire personal jurisdiction over a defendant.

         3. Jurisdiction: Service of Process. Where a party serves by publication but fails to comply with Neb. Rev. Stat. § 25-520.01 (Reissue 2016), the district court lacks personal jurisdiction over the defendant.

         4. Judgments: Jurisdiction. A judgment entered without personal jurisdiction is void.

         5. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void order is a nullity which cannot constitute a judgment or final order that confers appellate jurisdiction on this court.

         6. Judgments: Jurisdiction: Appeal and Error. An appellate court has the power to determine whether it lacks jurisdiction over an appeal because the lower court lacked jurisdiction to enter the order; to vacate a void order; and, if necessary, to remand the cause with appropriate directions.

          Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge.

          David V. Chipman, of Monz6n Guerra & Associates, and Dorian E. Rojas, of Immigrant Legal Center, an affiliate of the Justice for Our Neighbors Network, for appellant.

         No appearance for appellee.

         [301 Neb. 1046] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PAPIK, J.

         A Nebraska statute, Neb. Rev. Stat. § 25-520.01 (Reissue 2016), requires a party providing service by publication to mail a copy of the published notice to those individuals having an interest in the action whose name and post office address are known. The same statute requires the party serving by publication to file an affidavit stating that the party and his or her attorney, "after diligent investigation and inquiry," were unable to ascertain and do not know the address of any parties having an interest who were not mailed a copy of the published notice. In this case, Eulalia Miguel Francisco (Eulalia) sought paternity and custody determinations concerning two children. The district court made such determinations concerning one child, but declined to do so with respect to the other child, because it found that Eulalia failed to comply with § 25-520.01. On appeal, we find that Eulalia did not comply with § 25-520.01 and that thus, the district court lacked jurisdiction to enter any of the relief sought. As a result, we vacate the district court's orders and dismiss the appeal.

         BACKGROUND

         Eulalia brought this action against Sergio Remigio De Leon Gonzalez (Sergio). In Eulalia's complaint, she alleged that Sergio was the father of both of her children: Christopher Darinel De Leon Miguel, born in 2010, and Yamileth Lizbeth De Leon Miguel, born in 2016. She asked that Sergio be declared ...


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