Jacobo v. Zoltenko
30 Neb. Ct. App. 44
Neb. Ct. App.2021Background
- On Oct. 19, 2020, Holly filed a petition under Neb. Rev. Stat. § 42-924 seeking a domestic abuse protection order on behalf of her 11‑year‑old son, N.Z., alleging Cole beat the child with a leather belt causing bruises (incident alleged in Hitchcock County).
- Holly filed the petition in Box Butte County District Court, requested a district judge, and asked the clerk to have Hitchcock County sheriff serve Cole.
- The Box Butte County District Court dismissed the petition the same day for alleged lack of jurisdiction, citing that the events did not occur in Box Butte County and referencing a pending custody matter in Kearney County.
- Holly’s counsel moved to vacate the dismissal and request an ex parte order or a hearing; Cole later moved to dismiss arguing lack of jurisdiction (subject‑matter and personal), hearsay, and that Holly sought to circumvent the Kearney County custody order.
- After a Nov. 18, 2020 hearing, the district court denied Holly’s motion to alter or amend; Holly appealed. The Court of Appeals reviewed the matter de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject‑matter jurisdiction to hear §42‑924 petitions | Holly: District court has subject‑matter jurisdiction; petitions must be filed in district court and may be heard by district or county court | Cole: Box Butte lacked jurisdiction because alleged events occurred in Hitchcock County | Held: District court had subject‑matter jurisdiction; dismissal on that ground was error |
| Venue / proper county for proceedings | Holly: Venue is not fatal and can be waived; court should issue order or set hearing | Cole: Action filed in wrong county; Box Butte improper venue | Held: Venue may require transfer on timely motion but does not defeat subject‑matter jurisdiction; defendant could seek transfer |
| Requirement to issue ex parte order or schedule hearing under §42‑925 | Holly: Statute requires issuance of ex parte order if affidavit shows immediate danger, or else an evidentiary hearing within 14 days | Cole: Court dismissed on jurisdictional grounds before addressing merits | Held: Because petition met §42‑924 requirements, court was required to issue ex parte order or schedule a hearing; dismissal without hearing was erroneous |
| Mootness (passage of time / subsequent events) | Holly: Not moot because no hearing occurred and protection orders last one year | Cole: Case moot because child returned to father and agencies/court addressed safety | Held: Not moot on record; appellate court will not infer safety determinations absent evidentiary record |
Key Cases Cited
- Robert M. v. Danielle O., 928 N.W.2d 407 (2019) (establishing that protection‑order decisions are reviewed de novo and are analogous to injunctions)
- D.W. v. A.G., 926 N.W.2d 651 (2019) (defining subject‑matter jurisdiction principles)
- Carey v. City of Hastings, 840 N.W.2d 868 (2013) (explaining personal jurisdiction and tribunal power to bind parties)
- Johnson v. Johnson, 803 N.W.2d 420 (2011) (noting need for proper service or voluntary appearance for personal jurisdiction)
- Rosberg v. Rosberg, 916 N.W.2d 62 (2018) (comparing mandatory language of domestic abuse protection statute to discretionary harassment statute)