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FRANCISCO v. GONZALEZ

Cite as 301 Neb. 1045

Eulalia Miguel Francisco, appellan

Sergio Remigio De Leon Gonzalez, ap

___ N.W.2d ___

Filed January 4, 2019. No. S-18-329.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Jurisdiction: Service of Process: Waiver. Proper service, or a waiver 

by voluntary appearance, is necessary to acquire personal jurisdiction 

over a defendant.

3. Jurisdiction: Service of Process. Where a party serves by publication 

but fails to comply with Neb. Rev. Stat. § 25-520.01 (Reissue 2016), the 

district court lacks personal jurisdiction over the defendant.

4. Judgments: Jurisdiction. A judgment entered without personal jurisdiction is void.

5. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void 

order is a nullity which cannot constitute a judgment or final order that 

confers appellate jurisdiction on this court.

6. Judgments: Jurisdiction: Appeal and Error. An appellate court has 

the power to determine whether it lacks jurisdiction over an appeal 

because the lower court lacked jurisdiction to enter the order; to vacate 

a void order; and, if necessary, to remand the cause with appropriate directions.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Vacated and dism

David V. Chipman, of Monzón Guerra & Associates, and 

Dorian E. Rojas, of Immigrant Legal Center, an affiliate of the 

Justice for Our Neighbors Network, for appellant.

No appearance for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/15/2019 09:08 AM CDT
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FRANCISCO v. GONZALEZ

Cite as 301 Neb. 1045

Heavican, C.J., Miller-Lerman, Cassel, Stacy

Papik, and Freudenberg, J

Papik, J

A Nebraska statute, Neb. Rev. Stat. § 25-520.01 (Reissue 

2016), requires a party providing service by publication to 

mail a copy of the published notice to those individuals having 

an interest in the action whose name and post office address 

are known. The same statute requires the party serving by 

publication to file an affidavit stating that the party and his or 

her attorney, “after diligent investigation and inquiry,” were 

unable to ascertain and do not know the address of any parties 

having an interest who were not mailed a copy of the published notice. In this case, Eulalia Miguel Francisco (Eulalia) 

sought paternity and custody determinations concerning two 

children. The district court made such determinations concerning one child, but declined to do so with respect to the other 

child, because it found that Eulalia failed to comply with 

§ 25-520.01. On appeal, we find that Eulalia did not comply 

with § 25-520.01 and that thus, the district court lacked jurisdiction to enter any of the relief sought. As a result, we vacate 

the district court’s orders and dismiss the appeal.

BACKGROUND

Eulalia brought this action against Sergio Remigio De Leon 

Gonzalez (Sergio). In Eulalia’s complaint, she alleged that 

Sergio was the father of both of her children: Christopher 

Darinel De Leon Miguel, born in 2010, and Yamileth Lizbeth 

De Leon Miguel, born in 2016. She asked that Sergio be 

declared the father of the children and that she be awarded sole 

physical and legal custody.

She also asked that the court make certain specific findings. 

She asked that the court find that reunification with Sergio was 

not viable due to abandonment and neglect and that it was not 

in the children’s best interests to return to Guatemala. Eulalia 

moved from Guatemala to Omaha, Nebraska, while pregnant 

with Yamileth. The specific findings Eulalia requested would 
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have allowed for an application for special immigrant juvenile 

status under federal law. See In re Guardianship of Carlos D., 

300 Neb. 646, 915 N.W.2d 581 (2018).

Eulalia filed a motion requesting that she be allowed to 

serve Sergio by publication. In support of the motion, Eulalia 

submitted an affidavit which stated that she had not had contact with Sergio in nearly 2 years, that she did not know of any 

friends or family that knew Sergio’s whereabouts, and that she 

knew of no other way to locate him. The district court granted 

the motion for service by publication, and thereafter, notice 

was published in The Daily Record of Omaha, a legal newspaper in Douglas County.

After a hearing on the matter at which Eulalia appeared 

with counsel and testified and Sergio did not appear and was 

not represented, the district court entered an order declaring 

Sergio to be the father of the children and awarding Eulalia 

sole physical and legal custody of the children. The district 

court declined to find that it was in the children’s best interests 

to remain in the United States and not to return to Guatemala.

Desiring the specific findings the district court declined to 

make, Eulalia filed a timely motion to alter or amend. But, 

after another hearing, the district court again declined to 

make the requested findings. Additionally, the district court 

found that its earlier order establishing paternity and awarding Eulalia custody of Christopher should be vacated under 

Neb. Rev. Stat. § 43-1411 (Reissue 2016), because the proceeding to establish paternity was not filed within 4 years of 

Christopher’s birth.

Eulalia then filed another motion to alter or amend, this time 

requesting that the district court declare Sergio to be the father 

of Christopher and award Eulalia custody of Christopher. It 

also again requested the specific finding that it was in the children’s best interests to remain in the United States and not to 

return to Guatemala.

The district court denied Eulalia’s second motion to alter or 

amend. In its written order, the court stated that while Eulalia 
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obtained leave to serve Sergio by publication, she did not 

comply with a Nebraska statute “by mailing a copy of the published notice to the defendant’s last known place of residence, 

or filing an affidavit required by that statute.” While the statute 

cited by the district court, Neb. Rev. Stat. § 25-512.01 (Reissue 

2016), pertains to service on a partnership, the context suggests 

that the district court found that Eulalia failed to comply with 

§ 25-520.01.

The district court determined that because Eulalia failed to 

constructively serve Sergio, it did not have personal jurisdiction over him. In addition, the district court stated that because 

Sergio was not provided with notice that was reasonably calculated to inform him of this action, any orders against him 

would not comport with procedural due process.

Eulalia filed a timely appeal.

ASSIGNMENTS OF ERROR

Eulalia assigns the following errors by the district court: 

(1) finding that Eulalia did not properly serve Sergio, (2) finding that it lacked jurisdiction to establish paternity and award 

custody with respect to Christopher, and (3) failing to find that 

it was in the children’s best interests to remain in the United 

States and not return to Guatemala.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law. State on behalf of Marcelo K. & Rycki K. v. Ricky K., 300 

Neb. 179, 912 N.W.2d 747 (2018).

ANALYSIS

[2,3] The district court ultimately refused to grant Eulalia 

the relief she sought in her final motion to alter or amend 

because it found that Eulalia had not complied with the statutory requirements for service by publication set forth in 

§ 25-520.01. Proper service, or a waiver by voluntary appearance, is necessary to acquire personal jurisdiction over a 
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defendant. Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 

(2011). Where a party serves by publication but fails to comply 

with § 25-520.01, the district court lacks personal jurisdiction 

over the defendant. See, Farmers Co-op. Mercantile Co. v. 

Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963); In re Adoption of 

Leslie P., 8 Neb. App. 954, 604 N.W.2d 853 (2000).

[4] A judgment entered without personal jurisdiction is void. 

Johnson v. Johnson, supra. Because the district court’s power 

to order any of the substantive relief Eulalia contends it should 

have turns on whether service was proper, we begin our analysis there.

Compliance With § 25-520.01.

Service by publication, while constitutionally permitted in 

some circumstances, is a poor bet to provide actual notice to 

a party of an action that affects his or her rights. As the U.S. 

Supreme Court observed in Mullane v. Central Hanover Tr. 

Co., 339 U.S. 306, 315, 70 S. Ct. 652, 94 L. Ed. 865 (1950):

Chance alone brings to the attention of even a local 

resident an advertisement in small type inserted in the 

back pages of a newspaper, and if he makes his home 

outside the area of the newspaper’s normal circulation the 

odds that the information will never reach him are large 

indeed.

Based on the recognition that notice by publication is unlikely 

to provide actual notice, the Court held in Mullane that it was 

inconsistent with due process for known beneficiaries of a 

trust with a known place of residence to receive only notice by 

publication of an action affecting their rights.

Enacted within a decade of Mullane, § 25-520.01 requires a 

party providing notice by publication to also take steps beyond 

publication. Section 25-520.01 provides:

In any action or proceeding of any kind or nature 

. . . where a notice by publication is given as authorized 

by law, a party instituting or maintaining the action or 

proceeding with respect to notice or his attorney shall 
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within five days after the first publication of notice send 

by United States mail a copy of such published notice 

to each and every party appearing to have a direct legal 

interest in such action or proceeding whose name and post 

office address are known to him. Proof by affidavit of the 

mailing of such notice shall be made by the party or his 

attorney and shall be filed with the officer with whom 

filings are required to be made in such action or proceeding within ten days after mailing of such notice. Such 

affidavit of mailing of notice shall further be required to 

state that such party and his attorney, after diligent investigation and inquiry, were unable to ascertain and do not 

know the post office address of any other party appearing 

to have a direct legal interest in such action or proceeding other than those to whom notice has been mailed 

in writing.

Eulalia does not dispute that for purposes of § 25-520.01, 

Sergio has a “direct legal interest” in this proceeding. Because 

Sergio has such an interest, § 25-520.01 required Eulalia 

to mail Sergio a copy of the published notice if his address 

was “known to [her].” This language has been interpreted 

to require that notice be sent to the “last known address” of 

persons with an interest in the proceeding. See In re Adoption 

of Leslie P., 8 Neb. App. at 960, 604 N.W.2d at 858. At oral 

argument, Eulalia’s counsel conceded that Eulalia would have 

known Sergio’s address at the time she departed Guatemala. 

Eulalia did not, however, mail a copy of the published notice 

to Sergio’s last known address.

Despite not sending notice to Sergio’s last known address, 

Eulalia argues that the district court erred by concluding that 

she failed to comply with § 25-520.01. She contends that 

because she did not know Sergio’s whereabouts at the time 

of publication, she was not required to mail a copy of the 

published notice. Section 25-520.01 contemplates that there 

may be situations in which the location of parties having an 

interest in a proceeding is not known. In such cases, however, 
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under § 25-520.01, the party relying on service by publication must file an affidavit stating that “such party and his 

attorney, after diligent investigation and inquiry, were unable 

to ascertain and do not know the post office address” of any 

parties having an interest who were not mailed a copy of the 

published notice.

Eulalia argues that she filed an affidavit that excuses her 

from not mailing a copy of the published notice to Sergio and 

satisfies § 25-520.01. The affidavit Eulalia points to is the affidavit she filed in support of her motion to serve by publication. 

As noted above, the affidavit stated only that she had not had 

contact with Sergio in nearly 2 years, that she did not know 

any friends or family who knew his whereabouts, and that she 

did not know of any other way to locate him. Even though 

§ 25-520.01 seems to require the filing of a separate affidavit 

after publication, Eulalia argues that her affidavit filed beforehand contains the content required by § 25-520.01 and that 

she should thus not be required to file an additional affidavit 

after publication.

Even if we were to assume that an affidavit filed in support 

of a motion to serve by publication could satisfy § 25-520.01, 

we find that Eulalia’s affidavit does not do so for a number 

of reasons. Section 25-520.01 requires that the affidavit state 

that both the party and her attorney were unable to ascertain 

the address after “diligent investigation and inquiry.” Eulalia’s 

affidavit makes no reference at all to Eulalia’s attorney, let 

alone to diligent efforts her attorney conducted to attempt to 

locate Sergio.

Neither does the affidavit refer to any investigation or 

inquiry of Sergio’s whereabouts undertaken by Eulalia. It 

simply states that she does not know where he is or how to 

locate him. Eulalia contends this is sufficient, apparently taking the position that there was nothing she could possibly 

do to locate Sergio. As noted above, however, Eulalia knew 

where Sergio lived prior to her departure from Guatemala. 

Because Eulalia’s affidavit provides no indication that she or 
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her attorney attempted to determine whether Sergio still lived 

where Eulalia once knew him to live, we cannot say she demonstrated a reasonably diligent investigation and inquiry. See 

In re Interest of A.W., 224 Neb. 764, 768, 401 N.W.2d 477, 

480 (1987) (“a search which makes no effort to determine 

where the subject of the search was last known to be and which 

makes no effort to check whether the subject is still there cannot be considered reasonably diligent”).

Compliance with § 25-520.01 would not have guaranteed 

that Sergio would receive actual notice of this proceeding. 

Sergio may no longer live at the same address. A diligent 

search to locate him may have proved fruitless. Even so, in 

§ 25-520.01, the Legislature required that a person seeking to 

accomplish service by publication take measures in addition 

to publication in an attempt to provide actual notice. Because 

Eulalia failed to comply with § 25-520.01, her constructive 

service was improper and the district court lacked personal 

jurisdiction over Sergio.

Proper Disposition of Appeal.

While the district court denied Eulalia the relief she sought 

concerning Christopher because it determined it lacked personal jurisdiction over Sergio, it did not vacate its earlier 

order determining paternity and custody as to Yamileth. As 

Eulalia correctly points out, the district court could not have 

had personal jurisdiction over Sergio for purposes of one child 

and lack it for the other child. Eulalia is incorrect, however, 

to the extent that she suggests that this incongruence in the 

district court’s orders allows us to ignore the lack of personal 

jurisdiction over Sergio and proceed to the merits of the relief 

Eulalia seeks.

[5,6] In fact, the lack of personal jurisdiction over Sergio 

requires just the opposite. As noted above, an order entered 

by a court without personal jurisdiction is void. Johnson v. 

Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011). And a void 

order is a nullity which cannot constitute a judgment or final 
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order that confers appellate jurisdiction on this court. In re 

Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011). 

Even when appellate jurisdiction is lacking, however, an appellate court has the power to determine whether it lacks jurisdiction over an appeal because the lower court lacked jurisdiction 

to enter the order; to vacate a void order; and, if necessary, to 

remand the cause with appropriate directions. Id.

CONCLUSION

In light of the foregoing, and because the orders of the 

district court that purported to determine paternity and award 

custody of Yamileth were made without personal jurisdiction 

and were thus void, Eulalia has not appealed from a final order 

or judgment. We therefore vacate the orders entered by the 

district court as to Yamileth and dismiss the appeal for lack 

of jurisdiction.

Vacated and dismiss