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312 Nebraska Reports

BLEICH V. BLEICH

Cite as 312 Neb. 962

Carmen Alicia Aquino Bleich, appellant, 

v. Arlin Edward Bleich, appellee.

___ N.W.2d ___

Filed December 2, 2022. No. S-21-939.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss is reviewed de novo. When reviewing an 

order dismissing a complaint, the appellate court accepts as true all 

facts which are well pled and the proper and reasonable inferences of 

law and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion.

2. Judgments: Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law. An appellate court reviews questions of law 

independently of the lower court’s conclusion.

3. Rules of the Supreme Court: Pleadings: Jurisdiction. A party may 

challenge the court’s subject matter jurisdiction under Neb. Ct. R. 

Pldg. § 6-1112(b)(1) by presenting either a facial challenge or a factual 

challenge.

4. ____: ____: ____. In a facial challenge under Neb. Ct. R. Pldg. 

§ 6-1112(b)(1), the party asserts the allegations of the complaint are 

insufficient to establish the court’s jurisdiction over the subject matter 

of the case. When a facial challenge is presented, the court will look 

only to the complaint to determine whether the plaintiff has sufficiently 

alleged a basis of subject matter jurisdiction.

5. ____: ____: ____. In a factual challenge under Neb. Ct. R. Pldg. 

§ 6-1112(b), the party asserts there is no jurisdiction over the subject 

matter of the case notwithstanding the allegations of the complaint. 

When a factual challenge is presented, the court may consider and 

weigh evidence outside of the pleadings to answer the jurisdictional 

question.

6. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class 

Nebraska Supreme Court Online Library

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

12/02/2022 08:05 AM CST
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or category to which the proceedings in question belong and to deal 

with the general subject matter involved.

7. Divorce: Jurisdiction: Legislature. Pursuant to Neb. Rev. Stat. 

§ 42-351 (Reissue 2016), the Legislature has vested full and complete 

general jurisdiction over the entire marital relationship and all related 

matters in the district court in which a petition for dissolution of marriage is properly filed.

8. Divorce: Domicile: Jurisdiction. Dissolution actions have durational residency requirements, set out in Neb. Rev. Stat. § 42-349 

(Reissue 2016), which must be met in order to confer subject matter 

jurisdiction.

9. Divorce: Jurisdiction. A district court’s determination of whether a 

foreign divorce decree should be recognized under principles of judicial 

comity is not a matter of subject matter jurisdiction.

10. Equity: Estoppel: Pleadings. Equitable estoppel is an affirmative 

defense, and when a party seeks to raise estoppel as an affirmative 

defense to a claim for relief, it must be affirmatively set forth in the 

party’s responsive pleading.

Appeal from the District Court for Lancaster County: 

Susan I. Strong, Judge. Reversed and remanded for further 

proceedings.

Brett McArthur for appellant.

Andrew M. Ferguson and Timothy J. Buckley, of Smith, 

Slusky, Pohren & Rogers, L.L.P., for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

In 2021, Carmen Alicia Aquino Bleich filed a complaint in 

the Lancaster County District Court seeking dissolution of her 

marriage to Arlin Edward Bleich. Arlin moved to dismiss the 

complaint, asserting the parties’ marriage had already been 

dissolved by a Venezuelan divorce decree. The district court 

granted the motion to dismiss, and Carmen filed this timely 

appeal. We reverse, and remand for further proceedings.
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BLEICH V. BLEICH

Cite as 312 Neb. 962

BACKGROUND

Complaint for Dissolution

On May 4, 2021, Carmen filed a complaint for dissolution of marriage in the district court for Lancaster County. 

The complaint alleged (1) the parties were married in Omaha, 

Nebraska, on March 8, 2003; (2) no children were born of 

the marriage; (3) Arlin is a resident of Lancaster County and 

resided in Nebraska for more than 1 year prior to the filing of 

the complaint; (4) the marriage is irretrievably broken; and (5) 

Carmen is “not now a party to any other pending action for 

divorce, separation or dissolution of marriage.” The complaint 

prayed for a decree dissolving the parties’ marriage and equitably dividing their marital property and debts.

Motion to Dismiss

Arlin filed a motion to dismiss the complaint pursuant 

to Neb. Ct. R. Pldg. § 6-1112(b) (rule 12(b)), specifically 

subsections (1), (2), and (6). The motion asserted the parties were married in Nebraska on March 8, 2003, and were 

married in Maracaibo, Zulia, Venezuela, on March 11, 2003. 

The motion also asserted the parties were “legally divorced 

in Maracaibo, Zulia, Venezuela on March 23, 2015,” and 

“[b]oth parties resided there at the time of the divorce.” The 

motion asserted the parties were no longer legally married, 

and it asked the court to dismiss the dissolution action for 

lack of subject matter jurisdiction under rule 12(b)(1), for 

lack of personal jurisdiction over Arlin under rule 12(b)(2), 

and for failure to state a claim on which relief can be granted 

under rule 12(b)(6).

The district court held a hearing on Arlin’s motion to dismiss. Both parties appeared, represented by counsel. The parties offered several exhibits, all of which related to court 

proceedings in Venezuela. The exhibits were received into 

evidence without objection.

The exhibits included a certified copy of a Venezuelan dissolution decree dated March 23, 2015, and a verified English 
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translation of that decree. According to the translation, the 

parties were married in the Venezuelan city of Maracaibo 

on March 11, 2003, and in November 2012, Arlin filed for 

divorce on grounds of voluntary abandonment and cruelty. The 

Venezuelan court appointed a “Defender ad litem” for Carmen, 

who answered the lawsuit by denying Arlin’s claims. The 

Venezuelan decree stated that both parties submitted evidence 

in the divorce action, and it recited a finding that based on 

such evidence, Arlin was entitled to a divorce. The Venezuelan 

decree thus “dissolve[d] the marriage contracted on . . . March 

11, 2003 . . . before the Civil Head of the Parish of Coquivacoa, 

municipality of Maracaibo, state of Zulia, certificate No. 63.” 

The Venezuelan decree did not mention the parties’ March 8, 

2003, marriage in Nebraska.

During the hearing on Arlin’s motion to dismiss, the parties 

focused their argument exclusively on whether the Venezuelan 

decree should be recognized as valid in Nebraska under principles of comity. At the conclusion of the hearing, the district 

court took the matter under advisement and ordered simultaneous briefs addressing “whether or not a foreign divorce decree 

is valid here.”

Order of Dismissal

On October 25, 2021, the district court entered an order 

sustaining Arlin’s motion to dismiss and dismissing Carmen’s 

complaint with prejudice. The court’s order stated, “The 

question before the Court is whether the Venezuelan Decree 

is valid.”

On that issue, Carmen argued the Venezuelan decree was 

invalid and she was therefore entitled to seek a decree of dissolution in Nebraska. Arlin, on the other hand, argued the 

Venezuelan decree was valid in Nebraska and the parties were 

already legally divorced, so the Nebraska dissolution action 

should be dismissed.

The district court agreed with Arlin and found the Venezuelan 

decree was valid in Nebraska, reasoning:
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BLEICH V. BLEICH

Cite as 312 Neb. 962

In Weber v. Weber, 200 Neb. 659, 663, 265 N.W.2d 

436 (1978) . . . the Nebraska Supreme Court held that 

a “divorce obtained in the Dominican Republic by two 

Nebraska residents fell within the statute [Neb. Rev. 

Stat. § 42-341 (Reissue 2016)] providing that a divorce 

obtained in another jurisdiction is of no force or effect if 

both parties to the marriage were domiciled in Nebraska 

at the time that the proceeding for divorce was commenced.” The Court explained in Weber that Nebraska 

has a policy of protecting the interests of Nebraska domiciliaries from being compromised in quick foreign divorce 

proceedings. Id. at 665. However, the Court stated that a 

person may be precluded from attacking the validity of 

a foreign divorce decree if it would be inequitable for her 

or him to do so. . . .

. . . .

Based on the evidence submitted at the hearing on 

[Arlin’s] Motion to Dismiss, both parties had lived in 

Venezuela since 2005 and were residents of Venezuela at 

the time the marriage was dissolved by the Venezuelan 

court in 2015. Therefore, this Court must recognize that 

Decree under principles of comity. In addition, [Carmen] 

is estopped from attacking the validity of the decree 

since she was a participant in the dissolution proceedings . . . .

. . . Accordingly, the Court finds that the parties are no 

longer legally married, that [Carmen] is estopped from 

bringing this action, and that this Court lacks jurisdiction 

to proceed over the subject matter of this action.

Carmen filed this timely appeal, which we moved to our 

docket on our own motion.

ASSIGNMENTS OF ERROR

The district court dismissed this divorce action for lack 

of subject matter jurisdiction, after finding the parties were 

already divorced under a Venezuelan decree. Carmen assigns, 
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restated, that the district court erred in dismissing the divorce 

action because (1) the Venezuelan decree is not valid, (2) 

Carmen should not be estopped from challenging the validity 

of the Venezuelan decree, (3) the Venezuelan decree should 

not be recognized under principles of comity because “it does 

not provide for a division of the marital assets and therefore 

violates the public policy of the state of Nebraska,” and (4) 

the complaint should not have been dismissed before discovery 

could be completed on matters bearing on the validity of the 

Venezuelan decree.

STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss is 

reviewed de novo. 1 When reviewing an order dismissing a 

complaint, the appellate court accepts as true all facts which 

are well pled and the proper and reasonable inferences of law 

and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion. 2

[2] Subject matter jurisdiction is a question of law. 3 An 

appellate court reviews questions of law independently of the 

lower court’s conclusion. 4

ANALYSIS

Before reviewing de novo the granting of Arlin’s motion to 

dismiss, we clarify the issues properly before us in this appeal. 

As stated, Arlin moved the district court to dismiss the dissolution action for lack of subject matter jurisdiction under rule 

12(b)(1), for lack of personal jurisdiction over Arlin under rule 

12(b)(2), and for failure to state a claim on which relief can 

1 Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022), citing DMK 

Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).

2 Id.

3 North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970 N.W.2d 461 (2022); 

Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).

4 Id.
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be granted under rule 12(b)(6). The district court’s dismissal 

order, however, addressed only subject matter jurisdiction; it 

made no mention of the other grounds for dismissal. No party 

has assigned error to the district court’s failure to address the 

other grounds for dismissal, and we therefore limit our de 

novo review to whether the district court erred in dismissing 

this action for lack of subject matter jurisdiction.

Dismissal Under 12(b)(1)

[3-5] Before addressing the merits of the rule 12(b)(1) 

motion, we first consider the nature of the challenge. A party 

may challenge the court’s subject matter jurisdiction under 

rule 12(b)(1) by presenting either a facial challenge or a factual challenge. 5 In a facial challenge, the party asserts the 

allegations of the complaint are insufficient to establish the 

court’s jurisdiction over the subject matter of the case. When 

a facial challenge is presented, the court will look only to the 

complaint to determine whether the plaintiff has sufficiently 

alleged a basis of subject matter jurisdiction. 6 In a factual challenge, the party asserts there is no jurisdiction over the subject matter of the case notwithstanding the allegations of the 

complaint. 7 When a factual challenge is presented, the court 

may consider and weigh evidence outside of the pleadings to 

answer the jurisdictional question. 8

Arlin presented a factual challenge to the court’s subject 

matter jurisdiction, because he supported his rule 12(b)(1) 

motion with matters outside the pleadings. More specifically, 

he offered a 2015 Venezuelan divorce decree involving the 

same parties, which was not mentioned in the complaint, to 

support his assertion that the Lancaster County District Court 

5 See Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).

6 See id.

7 See id.

8 See id.
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lacked subject matter jurisdiction over the dissolution action. 

But as we explain next, Arlin’s evidence did not show a lack of 

subject matter jurisdiction over the dissolution action, and the 

district court erred in concluding otherwise.

Subject Matter Jurisdiction 

in Dissolution Actions

Relying on the Venezuelan decree itself, the district concluded it “lack[ed] jurisdiction to proceed over the subject 

matter of this action” for two reasons. First, it found that 

according to the Venezuelan decree, “both parties resided in 

Venezuela at the time the Decree was entered, both parties 

had citizen and/or resident status at the time the Decree was 

entered, and both parties participated in the proceeding.” The 

court therefore concluded it “must recognize [the Venezuelan 

decree] under principles of comity.” Second, having determined the Venezuelan decree was valid, the court found “the 

parties are no longer legally married,” and therefore, Carmen 

was “estopped from attacking the validity of the decree” and 

was “estopped from bringing this [dissolution] action.” On 

our de novo review, we conclude as a matter of law that none 

of these findings implicate the district court’s subject matter 

jurisdiction.

[6,7] We have defined subject matter jurisdiction as the 

power of a tribunal to hear and determine a case in the general 

class or category to which the proceedings in question belong 

and to deal with the general subject matter involved. 9 Article 

V, § 9, of the Nebraska Constitution states that “[t]he district 

courts shall have both chancery and common law jurisdiction, 

and such other jurisdiction as the Legislature may provide . . 

. .” Pursuant to Neb. Rev. Stat. § 42-351 (Reissue 2016), the 

Legislature has vested full and complete general jurisdiction 

over the entire marital relationship and all related matters in 

9 Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015); Charleen 

J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).
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the district court in which a petition for dissolution of marriage is properly filed. 10 That statute provides that in marital 

dissolution actions,

the court shall have jurisdiction to inquire into such matters, make such investigations, and render such judgments 

and make such orders, both temporary and final, as are 

appropriate concerning the status of the marriage, the 

custody and support of minor children, the support of 

either party, the settlement of the property rights of the 

parties, and the award of costs and attorney’s fees. 11

[8] Dissolution actions also have durational residency 

requirements, set out in Neb. Rev. Stat. § 42-349 (Reissue 

2016), which must be met in order to confer subject matter 

jurisdiction. 12 That statute provides two ways to satisfy the 

durational residency requirement:

No action for dissolution of marriage may be brought 

unless at least one of the parties has had actual residence 

in this state with a bona fide intention of making this 

state his or her permanent home for at least one year 

prior to the filing of the complaint, or unless the marriage was solemnized in this state and either party has 

resided in this state from the time of marriage to filing 

the complaint. 13

Here, the allegations of Carmen’s complaint, which must 

be accepted as true at this stage of the proceeding, sufficiently 

established the district court’s subject matter jurisdiction over 

this divorce action. The durational residency requirement was 

satisfied by allegations that Arlin was a resident of Lancaster 

County and had been a resident of Nebraska for at least 1 

year prior to the date of filing the complaint, and Arlin’s 

10 See Whitesides, supra note 9.

11 § 42-351 (emphasis supplied).

12 See Rozsnyai v. Svacek, 272 Neb. 567, 723 N.W.2d 329 (2006).

13 § 42-349.
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evidence did not contradict such allegations. Moreover, the 

complaint alleged the parties were lawfully married in Omaha 

on March 8, 2003, and the marriage was irretrievably broken, 

thereby placing the status of the marriage at issue. As such, 

the district court had “full and complete general jurisdiction 

over the entire marital relationship and all related matters” 14

which necessarily includes inquiry into and determination of 

the impact, if any, of the Venezuelan decree on the status of 

their marriage. Arlin relied on the Venezuelan divorce decree 

to argue the parties were no longer legally married, but as we 

explain next, this presented an issue of judicial comity, not 

subject matter jurisdiction.

Judicial Comity and Subject 

Matter Jurisdiction

We understand the district court to have concluded it 

lacked subject matter jurisdiction over the dissolution action 

once it found the Venezuelan decree was entitled to recognition under principles of comity. In this respect, it appears 

the parties and the district court may have conflated the doctrine of judicial comity with subject matter jurisdiction. We 

addressed a similar issue in Charleen J. v. Blake O.,

 15 where 

we explained:

Some confusion has developed from our failure to 

always distinguish the improper exercise of jurisdiction under judicial comity from a lack of subject matter 

jurisdiction. We have sometimes said, under the doctrine 

of jurisdictional priority, that a second court lacks “jurisdiction.” We mean that a subsequent court that decides 

a case already pending in another court with concurrent subject matter jurisdiction errs in the exercise of 

its jurisdiction. Jurisdictional priority is neither a matter 

14 Whitesides, supra note 9, 290 Neb. at 122, 858 N.W.2d at 864.

15 Charleen J., supra note 9, 289 Neb. at 462-63, 855 N.W.2d at 595 

(emphasis omitted).
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of subject matter jurisdiction nor personal jurisdiction. 

The subsequent court does not lack judicial power over 

the general class or category to which the proceedings 

belong and the general subject involved in the action 

before the court.

[9] Similarly, a district court’s determination of whether a 

foreign divorce decree should be recognized under principles 

of judicial comity is not a matter of subject matter jurisdiction. 16 Whether the Venezuelan divorce decree is entitled to 

recognition under principles of judicial comity is sure to be 

a contested issue in this dissolution action. But it is not an 

issue bearing on the district court’s subject matter jurisdiction, and as such, it did not provide a basis for dismissal under 

rule 12(b)(1).

Estoppel and Subject 

Matter Jurisdiction

The district court’s order dismissing the action for lack 

of subject matter jurisdiction also included factual findings 

that Carmen was “estopped from attacking the validity of the 

[Venezuelan] decree since she was a participant in the dissolution proceedings” and that she was “estopped from bringing this action” because the parties were already divorced in 

16 See id. See, also, Perry v. Coles County, Illinois, 906 F.3d 583 (7th Cir. 

2018) (describing comity as doctrine of abstention, not subject matter 

jurisdiction); Taveras v. Taveraz, 477 F.3d 767, 783 (6th Cir. 2007) 

(“courts are obligated to consider whether a judgment of a foreign 

court should be afforded comity only when the . . . court already has 

jurisdiction”); European Community v. RJR Nabisco, Inc., 150 F. Supp. 

2d 456, 474 (E.D.N.Y. 2001) (“[i]nternational comity does not describe 

a limitation upon the subject matter jurisdiction of the federal courts”); 

Iqtaifan v. Hagerty, 617 S.W.3d 400, 408 (Ky. 2021) (holding Kentucky 

court’s decision regarding whether to recognize Jordanian divorce decree 

under principles of comity “had no bearing on whether [the Kentucky 

court] was acting within [its] jurisdiction”); Guimaraes v. Brann, 562 

S.W.3d 521, 536 (Tex. App. 2018) (“[t]he doctrine of international comity, 

however, involves a case over which a Texas court has subject-matter 

jurisdiction, but, in its discretion, chooses not to exercise it”).
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Venezuela. In Weber v. Weber,

 17 we addressed the circumstances under which a party might be equitably estopped from 

challenging the validity of a foreign divorce decree:

In a proper case, a person may be precluded from attacking the validity of a foreign divorce decree if, under the 

circumstances, it would be inequitable for him or her to 

do so. . . . Such inequity may exist when action has been 

taken in reliance on the divorce, or when the attack on 

the divorce is inconsistent with the earlier conduct of the 

attacking party. . . . In cases involving foreign divorce 

decrees, as in other situations, however, the application 

of principles of equitable estoppel cannot be subjected to 

fixed and settled rules of universal application, but rests 

largely on the facts and circumstances of each particular case.

[10] Equitable estoppel is an affirmative defense. 18 And 

when a party seeks to raise estoppel as an affirmative defense 

to a claim for relief, it must be affirmatively set forth in the 

party’s responsive pleading. 19 Here, no answer has yet been 

filed, so it is unclear how the affirmative defense of equitable 

estoppel became a consideration at this stage in the case. But 

regardless, the affirmative defense of equitable estoppel has 

no bearing whatsoever on the district court’s subject matter 

jurisdiction over the dissolution action. To the extent the district court relied on its equitable estoppel findings to support 

dismissal for lack of subject matter jurisdiction, it erred.

CONCLUSION

Our de novo review shows that the allegations of Carmen’s 

complaint sufficiently established the district court’s subject 

matter jurisdiction over the entire marital relationship and all 

17 Weber v. Weber, 200 Neb. 659, 666, 265 N.W.2d 436, 441 (1978).

18 See Neb. Ct. R. Pldg. § 6-1108(c).

19 See de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 

(2021).
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related matters, including the status of the parties’ marriage. 

Because the evidence adduced at the hearing on Arlin’s motion 

to dismiss did not pertain to subject matter jurisdiction or 

establish a lack of subject matter jurisdiction, it was error to 

dismiss this action for a lack of subject matter jurisdiction.

We therefore reverse the order of dismissal in its entirety, 

including all factual findings contained therein, and remand 

the matter for further proceedings. Because of this disposition, 

it is not necessary to address Carmen’s assignments of error 

relating to the validity of the Venezuelan decree. 20 Moreover, 

we express no opinion on whether the Venezuelan decree is 

entitled to recognition under principles of judicial comity, 

whether Carmen should be equitably estopped from challenging the validity of such decree, or whether such decree, 

if ultimately recognized, has any effect on the status of the 

parties’ March 8, 2003, marriage. Resolution of these issues 

will necessarily depend on how the parties decide to frame 

their pleadings, the procedure used to present the issues to 

the district court for resolution, and the evidence adduced and 

properly considered.

Reversed and remanded for 

further proceedings.

20 See Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015) (appellate 

court need not address assignments of error or engage in analysis that is 

not necessary to adjudicate matter before it).