DeLima v. Tsevi
301 Neb. 933
Neb.2018Background
- DeLima (husband) and Tsevi (wife) married in Togo; their son C.D. was born in 2003 and sent to live with maternal grandmother Jeanne Akouvi in Togo in 2006.
- In 2009 DeLima filed for divorce in Douglas County, Nebraska; the decree did not clearly award custody (a handwritten checkmark arguably indicated visitation).
- In 2011 DeLima sought modification, alleging Tsevi had taken C.D. to Togo and refused to return him; in 2012 the Nebraska court awarded DeLima sole custody after Tsevi did not appear.
- Tsevi later moved to Togo and then Switzerland; C.D. lived in Togo (2006–2012) and then Switzerland (from 2012) and had not been in the U.S. since 2006.
- Years later Tsevi moved to vacate the Nebraska custody orders, arguing the court never had subject matter jurisdiction under the UCCJEA; after trial the district court vacated its prior custody and visitation orders for lack of UCCJEA jurisdiction.
- The Nebraska Supreme Court affirmed, holding the state courts never acquired subject matter jurisdiction to decide custody under the UCCJEA.
Issues
| Issue | DeLima's Argument | Tsevi's Argument | Held |
|---|---|---|---|
| Whether Nebraska had "home state" jurisdiction under the UCCJEA | C.D. had ties to Nebraska and earlier proceedings (2009 decree) sufficed to support jurisdiction | C.D. lived in Togo beginning 2006, so Nebraska was not the home state | Nebraska was not C.D.’s home state; UCCJEA home-state jurisdiction did not apply |
| Whether Nebraska could exercise "last resort" jurisdiction (§ 43-1238(a)(4)) because no other U.S. state had jurisdiction | Because the other parties lived in Nebraska and litigated there, Nebraska could act as last resort | Foreign countries (Togo) count as "states" under the UCCJEA; a court in Togo would have had jurisdiction | Court held Togo must be considered; a Togolese court would have had jurisdiction (significant-connection), so Nebraska lacked last-resort jurisdiction |
| Whether party conduct or long-term litigation in Nebraska conferred subject matter jurisdiction | Litigating in Nebraska and both parents living there when proceedings were commenced should confer jurisdiction | Subject matter jurisdiction cannot be conferred by consent, waiver, estoppel, or party conduct; UCCJEA controls | Held party consent/litigation cannot create subject matter jurisdiction; UCCJEA governs and Nebraska never had it |
Key Cases Cited
- In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (Neb. 2018) (UCCJEA jurisdiction and statutory interpretation principles)
- Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (Neb. 2008) (foreign countries treated as UCCJEA "states" unless their law violates fundamental human rights)
- J.S. v. Grand Island Pub. Schs., 297 Neb. 347, 899 N.W.2d 893 (Neb. 2017) (subject matter jurisdiction cannot be conferred by parties' consent or conduct)
- In re C & M Props., L.L.C., 563 F.3d 1156 (10th Cir. 2009) (actions taken without subject matter jurisdiction are void)
- Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378 (N.C. Ct. App. 2014) (discussing last-resort jurisdiction when other jurisdictions have or would have UCCJEA jurisdiction)