Jacobo v. Zoltenko
30 Neb. Ct. App. 44
| Neb. Ct. App. | 2021Background
- On October 19, 2020, Holly Jacobo (initially pro se) filed a petition and affidavit in Box Butte County seeking a domestic abuse protection order on behalf of her 11‑year‑old son, alleging Cole Zoltenko beat the child with a leather belt causing bruises.
- The petition alleged abuse that occurred in Hitchcock County; Holly listed her address in Box Butte County and requested a district court judge preside.
- The Box Butte County District Court dismissed the petition the same day, concluding it lacked jurisdiction because the alleged events did not occur in Box Butte County and pointing to a pending custody matter in Kearney County.
- Counsel later entered appearances for both parties; Holly moved to vacate the dismissal and requested issuance of an ex parte protection order or an evidentiary hearing. The district court denied the motion.
- The Nebraska Court of Appeals held on de novo review that the district court had subject‑matter jurisdiction to hear the petition (district courts are proper filing forums for domestic abuse protection orders) and that, because Holly’s petition met statutory requirements, the court should have either issued an ex parte order or scheduled a hearing rather than dismissing.
- The appellate court reversed and remanded for further proceedings, explaining that venue objections could be addressed by transfer, and that dismissal without a hearing was improper where statutory prerequisites were satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject‑matter jurisdiction: whether Box Butte court could hear petition | Jacobo: district court is the statutorily required filing forum; dismissal was venue, not jurisdictional | Zoltenko: events occurred in Hitchcock County so Box Butte lacked jurisdiction | Held: District court had subject‑matter jurisdiction; dismissal for lack of jurisdiction was error |
| Requirement to issue ex parte order or set hearing | Jacobo: petition satisfied § 42‑924; court must issue ex parte order or schedule an evidentiary hearing | Zoltenko: argued petition was improper/usurped custody proceedings; contested merits and jurisdiction | Held: Petition met statutory requirements; court was required to issue ex parte order or schedule a hearing; dismissal without hearing was error |
| Personal jurisdiction / service | Jacobo: attempted service and praecipe filed; court should not dismiss before addressing service | Zoltenko: challenged court’s jurisdiction over him and sufficiency of allegations | Held: Personal jurisdiction assessment was premature because court dismissed the same day before service; proper service or waiver needed for personal jurisdiction |
| Mootness / effect of elapsed time | Jacobo: relief still effective for statutory term if issued | Zoltenko: argued events and later proceedings rendered matter moot | Held: Not moot; protection orders last one year and the court could not rely on facts outside the record to find mootness |
Key Cases Cited
- Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019) (protection order review is de novo and treated like injunction)
- D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019) (definition of subject‑matter jurisdiction)
- Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d 868 (2013) (personal jurisdiction principles)
- Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011) (service or voluntary appearance required for personal jurisdiction)
- Rosberg v. Rosberg, 25 Neb. App. 856, 916 N.W.2d 62 (2018) (statutory comparison: mandatory vs discretionary relief under protection statutes)