944 N.W.2d 773
Neb. Ct. App.2020Background
- Naomi Amulo Lasu lived in Lincoln, Nebraska for about 10 years, had a child (Jacob) in Nov 2015, and moved briefly to California with Jacob from Dec 2016 to Mar 2017; she returned to Nebraska after an altercation.
- Naomi filed for dissolution in Nebraska on April 5, 2017, alleging she had been a Nebraska resident for more than one year; Emmanuel lived in California and was served there.
- A California court declined custody jurisdiction; Nebraska district court held a joint telephonic hearing, Emmanuel agreed to litigate in Nebraska, and the Nebraska court overruled his motion to dismiss.
- Emmanuel later filed an answer and cross-complaint; trial occurred Dec 17, 2018.
- The district court awarded Naomi sole legal and physical custody, ordered Emmanuel parenting time (including holiday and summer periods), and set child support at $600/month (reduced from $927 by a $327/month deviation for travel).
- Emmanuel appealed, arguing lack of subject-matter and personal jurisdiction, that custody should be joint, and that a larger child-support deviation was warranted for travel costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction (divorce) | Naomi: she retained Nebraska domicile and thus satisfied the 1-year residency requirement. | Emmanuel: Naomi abandoned Nebraska domicile when she moved to California; no party lived in Nebraska 1 year before filing. | Court: Naomi remained domiciled in Nebraska (brief move to test marriage); §42-349 satisfied; SMJ proper. |
| Personal jurisdiction | Naomi: Emmanuel waived PJ objection by agreeing to litigate in Nebraska and by filing affirmative relief (answer/cross-complaint). | Emmanuel: served in California and initially moved to dismiss for lack of PJ. | Court: Emmanuel waived PJ by stipulation/appearance and by filing counterclaims; PJ proper. |
| Custody (legal & physical) | Naomi: awarded sole custody as she was primary caregiver, provided stability, and concerns existed about Emmanuel's limited parenting time and alcohol/firearm issues. | Emmanuel: requested joint legal and physical custody. | Court: no abuse of discretion; Naomi fit, primary caretaker, parties had poor communication, joint custody not in child's best interests. |
| Child support deviation for travel | Naomi: guideline support appropriate; limited deviation for reasonable travel costs. | Emmanuel: needed larger downward deviation (requested much greater abatement) to cover long-distance travel for parenting time. | Court: applied Nebraska Child Support Guidelines with permitted deviation of $327/month for travel (child support $600/month); larger requested deviation would unduly reduce custodial support and was not justified. |
Key Cases Cited
- Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (jurisdictional questions of law reviewed independently)
- Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (de novo review and abuse-of-discretion standard in dissolution custody/support)
- Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (subject-matter jurisdiction cannot be conferred by consent)
- Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (rulings made without SMJ are nullities)
- Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (bona fide domicile requirement for divorce jurisdiction)
- Wray v. Wray, 149 Neb. 376, 31 N.W.2d 228 (brief moves to test marriage do not necessarily change domicile)
- Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368 (domicile can persist despite physical absences when intent to remain is shown)
- Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (personal jurisdiction may be waived by conduct)
- Applied Underwriters v. Oceanside Laundry, 300 Neb. 333, 912 N.W.2d 912 (appearance/waiver principles)
- Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (transportation costs may justify deviation but cannot abate support unreasonably)
- Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (Child Support Guidelines as rebuttable presumption)