DeLima v. Tsevi
301 Neb. 933
| Neb. | 2018Background
- Kwami DeLima and Anicette Tsevi married in Togo; their son C.D. was born in 2003 and sent to live with maternal grandmother Jeanne Akouvi in Togo in 2006.
- Kwami filed for dissolution in Douglas County, Nebraska, in 2009; the divorce decree did not clearly award custody but contained a questionable handwritten checkmark near a visitation clause.
- In 2011 Kwami sought modification alleging Anicette took C.D. to Togo and refused to return him; in 2012 the district court (after Anicette failed to appear) awarded Kwami sole custody.
- Anicette later moved to vacate the custody orders, arguing Nebraska never had subject matter jurisdiction under the UCCJEA; a 2017 trial addressed that challenge.
- Evidence showed C.D. lived in Togo from 2006–2012 (school, medical care) with Akouvi; since 2012 C.D. and Anicette have lived in Switzerland and C.D. had not returned to the U.S.
- The district court vacated all prior custody/visitation orders, concluding it never had subject matter jurisdiction under the UCCJEA; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (DeLima) | Defendant's Argument (Tsevi) | Held |
|---|---|---|---|
| Whether Nebraska had subject matter jurisdiction under the UCCJEA to make an initial child custody determination | Nebraska was an appropriate forum; both parents lived in Nebraska when proceedings were commenced and litigated custody there | Nebraska never was C.D.'s home state and other jurisdictions (including Togo) had the relevant connections and evidence, so Nebraska lacked UCCJEA jurisdiction | Court held Nebraska never had subject matter jurisdiction and vacated prior custody orders |
| Whether § 43-1238(a)(4) ("last resort" jurisdiction) applied because no other U.S. state had jurisdiction | Last-resort jurisdiction applies because no other U.S. state could exercise jurisdiction | Foreign countries are treated like states for UCCJEA purposes; Togo would have had jurisdiction so last-resort does not apply | Held that Togo must be treated as a "state" under UCCJEA; a Togo court would have had jurisdiction, so Nebraska could not invoke § 43-1238(a)(4) |
| Whether a person acting as a parent (Akouvi) qualified to make Togo the child's home state under § 43-1227(13) | Akouvi’s long-term custody of C.D. made Togo C.D.'s home state | Question whether Akouvi had or claimed legal custody as required by subsection (13)(B) | Court found it unnecessary to resolve home-state via Akouvi because Togo nonetheless had significant-connection jurisdiction |
| Whether litigating in Nebraska or the parties' consent can cure lack of subject matter jurisdiction | DeLima argued the parties' Nebraska litigation and residence should affirm jurisdiction | Tsevi argued subject matter jurisdiction cannot be conferred by consent or waiver | Court held parties cannot confer subject matter jurisdiction; longtime litigation in Nebraska does not cure lack of UCCJEA jurisdiction |
Key Cases Cited
- In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (Neb. 2018) (appellate review of UCCJEA jurisdiction is a legal question decided independently)
- Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (Neb. 2008) (foreign countries are treated as states under UCCJEA unless their laws violate fundamental human rights)
- J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 (Neb. 2017) (subject matter jurisdiction cannot be created by consent, waiver, or conduct)
- In re C and M Properties, L.L.C., 563 F.3d 1156 (10th Cir. 2009) (actions taken without subject matter jurisdiction are void and must be dismissed)
- Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378 (N.C. Ct. App. 2014) (illustrating that last-resort jurisdiction cannot apply where another court would have had jurisdiction under UCCJEA exceptions)