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DeLIMA v. TSEVI

Cite as 301 Neb. 933

Kwami M. DeLima, appellan

Anicette C. Tsevi, app

___ N.W.2d ___

Filed December 21, 2018. No. S-17-1144.

1. Child Custody: Jurisdiction: Appeal and Error. In considering 

whether jurisdiction exists under the Uniform Child Custody Jurisdiction 

and Enforcement Act, a jurisdictional question that does not involve a 

factual dispute is determined by an appellate court as a matter of law, 

which requires an appellate court to reach a conclusion independent 

from the trial court.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. Child Custody: Jurisdiction. Jurisdiction over a child custody proceeding is governed by the Uniform Child Custody Jurisdiction and 

Enforcement Act.

4. Child Custody: Jurisdiction: States. For a state to have jurisdiction 

to make an initial child custody determination, it must either be the 

“home state” as defined by the Uniform Child Custody Jurisdiction and 

Enforcement Act or fall under the limited exceptions to the home state 

requirement specified by the act. Generally speaking, Neb. Rev. Stat. 

§ 43-1238(a)(1) (Reissue 2016) grants jurisdiction to the home state 

of the child and § 43-1238(a)(2) through (4) sets out the exceptions 

under which a court will have jurisdiction, even if it is not in the child’s 

home state.

5. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a 

judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of 

the parties.

Appeal from the District Court for Douglas County: Timoth

P. Burns, Judge. Affirm

Michael J. Decker for appellant.

Nebraska Supreme Court Online Library

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

01/25/2019 12:08 AM CST
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Julie Fowler, of Fowler & Kelly Law, L.L.P., for appellee.

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

Papik, and Freudenberg, J

Papik, J

Several years after the Douglas County District Court 

awarded custody of the child of Kwami M. DeLima (Kwami) 

and Anicette C. Tsevi (Anicette) to Kwami, the court determined that it did not have and never had subject matter jurisdiction to make custody determinations regarding the child 

and vacated all prior orders pertaining to custody or visitation. Kwami appeals. We find that the district court correctly 

determined that it did not have and never had subject matter 

jurisdiction to make custody determinations regarding the child 

and therefore affirm.

BACKGROUND

In 2009, Kwami filed a complaint in Douglas County 

District Court seeking to dissolve his marriage with Anicette. 

In the complaint for dissolution, he alleged that he and 

Anicette were lawfully married in the nation of Togo in 

1999; that the marriage had produced one minor child, C.D., 

born in 2003; and that C.D. had resided with C.D.’s maternal 

grandmother, Jeanne Akouvi, in Togo since 2006. The complaint for dissolution did not ask that either party be awarded 

custody of or visitation with C.D. The subsequent divorce 

decree, which appears to be a form document with information specific to the parties supplied in handwriting, did not 

award either party custody of C.D. The decree does have 

what appears to be a handwritten checkmark next to language 

indicating that “[t]he defendant is awarded reasonable visitation with the parties’ minor child(ren), upon reasonable notice 

to the plaintiff.”

Over 2 years later, in July 2011, Kwami filed an application to modify the divorce decree. He alleged that there had 
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been a change in circumstances since the entry of the decree, 

in that Anicette had “taken the parties’ minor child to Togo, 

Africa, and has refused to return the child to [Kwami].” After 

a hearing on the modification application in which Anicette 

did not appear and was not represented by counsel, the district 

court issued an order in June 2012 awarding Kwami sole care, 

custody, and control of C.D. In its order, the court found that 

Anicette had taken C.D. to Togo and had refused to return the 

child to Kwami and that C.D. was not receiving proper medical treatment.

Several years after the decree was modified to award custody to Kwami, Anicette filed her own application to modify 

the custody decree. She also filed a motion to vacate the decree 

as it pertained to child custody. In it, she contended that the 

court did not have and never had subject matter jurisdiction to 

decide custody issues concerning C.D. The court set Anicette’s 

application to modify the custody decree for trial. Trial was 

held in September 2017.

Both Kwami and Anicette testified at the trial, as did other 

witnesses. Both parties also introduced documentary evidence. 

The evidence established that, in 2006, when Kwami and 

Anicette were still married, they agreed to send C.D. to live 

with Akouvi in Togo. Both Kwami and Anicette signed a document at that time stating that they gave permission to let their 

son travel to Togo with Akouvi. The document also purported 

to grant “all and every possible legal right” concerning C.D. to 

Akouvi. Kwami admitted that he agreed to send C.D. to Togo 

to live with Akouvi in 2006.

C.D. resided with Akouvi in Togo from 2006 until September 

2012. During that time, he attended private school in Togo. He 

also received medical attention in Togo. Anicette’s younger sister, who lived with Akouvi and C.D. at the time, testified that 

Akouvi brought C.D. to a hospital and to monthly checkups 

at a medical clinic there. After C.D. had been in Togo several 

years, Anicette gave birth to a second child in Nebraska and, 

shortly thereafter, traveled to Togo with that child. Anicette 
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stayed for several months. When she departed, she also left the 

second child in the care of Akouvi.

In late 2011, Anicette moved to Togo. Less than a year 

later, in September 2012, she and C.D. moved to Switzerland. 

Anicette and C.D. have resided in Switzerland with her new 

husband since then. C.D. has not been in the United States 

since 2006.

Following the trial, the district court entered an order vacating all prior orders concerning the custody of C.D. It explained 

that Nebraska was not the child’s home state at the time custody proceedings were initiated for the purposes of the Uniform 

Child Custody Jurisdiction and Enforcement Act (UCCJEA), 

Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016), and 

that, as a result, the court did not have and never had subject 

matter jurisdiction over custody matters. Following the denial 

of his motion for a new trial, Kwami timely appealed.

ASSIGNMENT OF ERROR

Kwami assigns on appeal that the district court erred by 

finding it never had subject matter jurisdiction under the 

UCCJEA and vacating all prior custody orders on that basis.

STANDARD OF REVIEW

[1,2] In considering whether jurisdiction exists under the 

UCCJEA, a jurisdictional question that does not involve a 

factual dispute is determined by an appellate court as a matter 

of law, which requires an appellate court to reach a conclusion 

independent from the trial court. In re Guardianship of S.T., 

300 Neb. 72, 912 N.W.2d 262 (2018). Statutory interpretation 

is a question of law, which an appellate court resolves independently of the trial court. Id.

ANALYSIS

General Statutory Background.

The question before us is whether the district court ever 

acquired subject matter jurisdiction to determine the custody of C.D. We begin by summarizing the statutory 
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background governing subject matter jurisdiction of child custody determinations.

[3] We have previously said that subject matter jurisdiction 

over a child custody proceeding is governed exclusively by 

the UCCJEA. See, e.g., Carter v. Carter, 276 Neb. 840, 758 

N.W.2d 1 (2008). Our use of the word “exclusively” in this 

context was slightly imprecise, because there are other statutes 

outside the UCCJEA that confer jurisdiction to decide child 

custody matters. See, e.g., Neb. Rev. Stat. § 42-351 (Reissue 

2016). But while other statutes may confer jurisdiction generally, § 42-351 directs courts to determine whether jurisdiction exists over a specific child custody proceeding under 

the UCCJEA.

Section 43-1238 of the UCCJEA sets forth the circumstances under which a court of this state has jurisdiction to 

make an initial child custody determination, providing as 

follows:

(a) Except as otherwise provided in section 43-1241 

[regarding temporary emergency jurisdiction], a court of 

this state has jurisdiction to make an initial child custody 

determination only if:

(1) this state is the home state of the child on the date 

of the commencement of the proceeding or was the home 

state of the child within six months before the commencement of the proceeding and the child is absent from this 

state but a parent or person acting as a parent continues 

to live in this state;

(2) a court of another state does not have jurisdiction 

under subdivision (a)(1) of this section, or a court of the 

home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate 

forum under section 43-1244 or 43-1245, and:

(A) the child and the child’s parents, or the child and 

at least one parent or a person acting as a parent, have 

a significant connection with this state other than mere 

physical presence; and
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(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal 

relationships;

(3) all courts having jurisdiction under subdivision 

(a)(1) or (a)(2) of this section have declined to exercise 

jurisdiction on the ground that a court of this state is the 

more appropriate forum to determine the custody of the 

child under section 43-1244 or 43-1245; or

(4) no court of any other state would have jurisdiction 

under the criteria specified in subdivision (a)(1), (a)(2), or 

(a)(3) of this section.

[4] As we have previously explained in cases involving the 

UCCJEA, for a state to have jurisdiction to make an initial 

child custody determination, it must either be the “home state” 

as defined by the UCCJEA or fall under the limited exceptions to the home state requirement specified by the UCCJEA. 

See In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 

(2018). Generally speaking, § 43-1238(a)(1) grants jurisdiction 

to the home state of the child and § 43-1238(a)(2) through 

(4) sets out the exceptions under which a court will have 

jurisdiction, even if it is not in the child’s home state. In re 

Guardianship of S.T., supra.

Section 43-1238(a) grants jurisdiction to make an “initial 

child custody determination,” which is defined elsewhere in 

the UCCJEA as the “first child custody determination concerning a particular child.” § 43-1227(8). Another section of the 

UCCJEA provides that a court that has made an initial child 

custody determination consistent with § 43-1238 has “exclusive, continuing jurisdiction over the determination” unless the 

court makes certain findings. See § 43-1239.

Because the analysis required to determine whether a court 

has jurisdiction to make an initial child custody determination 

differs from the analysis required to determine whether a court 

can exercise its continuing jurisdiction after making an initial 

determination, an evaluation of jurisdiction under the UCCJEA 

will occasionally require a determination of when the initial 
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determination was made. That task is not so straightforward 

in this case.

One candidate for the initial determination is the 2009 

divorce decree. While the decree did not award custody, there 

does appear to be a handwritten checkmark next to language 

in the decree indicating that the defendant, here Anicette, is 

awarded “reasonable visitation,” the specific terms of which 

are to be determined by the plaintiff, here Kwami, acting in 

good faith. A decree providing for visitation concerning a 

child would ordinarily qualify as a child custody determination, see § 43-1227(3), but it is not clear that the checkmark 

on the decree was truly intended to provide for visitation in 

this case. The “visitation” language appears to presuppose that 

Kwami had been granted custody and thus was authorized to 

determine the extent of Anicette’s “visitation,” but, as we have 

noted, the decree did not actually address custody. Perhaps 

in recognition of the questionable nature of any visitation 

provided in the initial decree, Kwami’s counsel characterized 

the decree at oral argument as containing “somewhat of a custody determination.”

If the 2009 divorce decree did not include a child custody 

determination, the initial child custody determination for purposes of § 43-1238(a)(2) did not occur until the district court 

modified the decree to award Kwami custody in 2012. In the 

end, we find that it is unnecessary to determine when the initial determination was made, because we find that the district 

court did not have jurisdiction to make an initial child custody 

determination in either 2009 or 2012. We explain our reasons 

for this conclusion in more detail below.

Home State Jurisdiction.

As mentioned above, the UCCJEA generally grants jurisdiction to the child’s home state. In this case, the district 

court did not have home state jurisdiction to make an initial 

child custody determination, because Nebraska was not C.D.’s 

home state.
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The UCCJEA defines home state as “the state in which a 

child lived with a parent or a person acting as a parent for 

at least six consecutive months immediately before the commencement of a child custody proceeding.” § 43-1227(7). As 

even Kwami concedes, the fact that C.D. was living in Togo 

beginning in 2006 precludes any possibility of a Nebraska 

court obtaining jurisdiction on the basis of home state status.

“Last Resort” Jurisdiction.

Rather than relying on § 43-1238(a)(1), Kwami argues that 

the court had jurisdiction to make an initial determination 

under § 43-1238(a)(4), a basis for jurisdiction not explicitly 

considered by the district court. A Nebraska court has jurisdiction to make an initial child custody determination under 

§ 43-1238(a)(4) if “no court of any other state would have 

jurisdiction under the criteria specified in subdivision (a)(1), 

(a)(2), or (a)(3) of [§ 43-1238].” This is referred to by one 

court as “last resort” jurisdiction. See Madrone v. Madrone, 

290 P.3d 478 (Colo. 2012).

Viewed on the surface, this argument might appear to have 

merit, because Kwami is correct that the record discloses 

no other state in the United States that might have jurisdiction. Left unmentioned by Kwami, however, is the fact that 

the UCCJEA provides that foreign countries like Togo are to 

be treated as if they were states of the United States unless 

their child custody law violates “fundamental principles of 

human rights.” See, Carter v. Carter, 276 Neb. 840, 846, 758 

N.W.2d 1, 7 (2008); § 43-1230(a) through (c). Because there 

is no suggestion that the child custody law of Togo violates 

fundamental human rights, jurisdiction under § 43-1238(a)(4) 

depends on whether a court of Togo would have had jurisdiction to make an initial child custody determination under the 

criteria set forth in either subdivision (a)(1), (a)(2), or (a)(3). 

If a court of Togo would have had such jurisdiction, it cannot 

be said no court of any other “state” would have jurisdiction, 

and therefore the district court would not have last resort 
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jurisdiction. See, e.g., Gerhauser v. Van Bourgondien, 238 

N.C. App. 275, 767 S.E.2d 378 (2014) (holding that because 

courts in Utah or Florida would have had jurisdiction to make 

initial child custody determination, North Carolina court could 

not exercise jurisdiction under North Carolina version of 

§ 43-1238(a)(4)).

Before proceeding to consider whether a court of Togo 

would have jurisdiction to make an initial determination of 

custody, we pause to clarify the precise nature of our inquiry. 

For multiple reasons, we will not explore the laws of Togo to 

decide whether it would have been permissible for a court in 

that country to make a child custody determination under the 

circumstances in this case. First, as a general matter, we are not 

authorized to take judicial notice of the laws of foreign countries and, if, as here, the law of a foreign country is not pleaded 

and proved like any other fact, we presume it to be the same as 

the law of Nebraska. See, Neb. Rev. Stat. § 25-12,105 (Reissue 

2016); Molina v. Sovereign Camp, W. O. W., 6 F.R.D. 385 (D. 

Neb. 1947); Exstrum v. Union Casualty & Life Ins. Co., 167 

Neb. 150, 91 N.W.2d 632 (1958).

In addition, § 43-1238(a)(4) provides for jurisdiction if 

“no court of any other state would have jurisdiction under 

the criteria specified in subdivision (a)(1), (a)(2), or (a)(3) 

of [§ 43-1238].” (Emphasis supplied.) Section 43-1238(a)(4) 

thus directs us to consider whether a court of Togo would have 

jurisdiction under the UCCJEA, as opposed to requiring us to 

attempt to ascertain and apply the law of Togo to the extent it 

might differ from the UCCJEA.

We begin our analysis as to whether a court of Togo would 

have had jurisdiction with the question of whether Togo qualified as C.D.’s home state under § 43-1238(a)(1). As noted 

above, § 43-1238(a)(1) generally authorizes the exercise of 

jurisdiction by a court in the home state of the child. The home 

state of the child is defined as “the state in which a child lived 

with a parent or a person acting as a parent for at least six 

consecutive months immediately before the commencement of 
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a child custody proceeding.” § 43-1227(7). Since C.D. lived in 

Togo with Akouvi from 2006 to 2012, there is no question that 

he lived in Togo long enough for that to be his home state. Less 

clear, however, is whether Akouvi was a “person acting as a 

parent” for purposes of the UCCJEA.

Under § 43-1227(13) of the UCCJEA, a person acting as a 

parent is

a person, other than a parent, who:

(A) has physical custody of the child or has had 

physical custody for a period of six consecutive months, 

including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

(B) has been awarded legal custody by a court or 

claims a right to legal custody under the law of this state.

While the record indicates that Akouvi had the requisite physical custody of the child in order to qualify as a “person acting as a parent,” under § 43-1227(13)(A), it is not clear that 

she would qualify under either of the legal custody prongs of 

§ 43-1227(13)(B). There is no indication in the record that she 

was ever awarded legal custody of the child by a court or even 

“claim[ed] a right to legal custody.”

If Akouvi did not qualify as a “person acting as a parent,” a court of Togo could not exercise jurisdiction under 

§ 43-1238(a)(1). However, we need not resolve whether the 

action could have been brought in Togo under § 43-1238(a)(1), 

because even if it could not, we find that the action could have 

been brought in Togo under one of the exceptions to home 

state jurisdiction.

As noted above, § 43-1238(a)(2) through (4) sets out the 

exceptions under which the court will have jurisdiction even 

if it is not the child’s home state. Jurisdiction exists under 

§ 43-1238(a)(2) if no court has jurisdiction as the child’s home 

state and the following are true:

(A) the child and the child’s parents, or the child and 

at least one parent or a person acting as a parent, have 
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a significant connection with this state other than mere 

physical presence; and

(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal 

relationships.

This basis for jurisdiction under the UCCJEA is commonly 

referred to as “significant connection” jurisdiction. See, e.g., 

Madrone v. Madrone, 290 P.3d 478 (Colo. 2012).

Even if a court in Togo could not have exercised jurisdiction as C.D.’s home state, we find that it could have exercised 

significant connection jurisdiction, because all of the necessary 

elements were present to do so. First, assuming Togo could 

not have exercised jurisdiction as C.D.’s home state, no court 

would have home state jurisdiction. As we have explained, 

Nebraska did not qualify as C.D.’s home state.

Next, we find that both Anicette and C.D. had a significant 

connection to Togo. When tasked with deciding whether an 

individual has a significant connection to a state for purposes 

of this section of the UCCJEA, courts consider a wide variety 

of ties to the state.

“Some factors that have been weighed in these cases are 

the child’s relationship with extended or blended family 

members, enrollment in school or day care, participation 

in social activities, access to medical, dental or psychological care, or the availability of government assistance. 

Some courts will mention the parent’s employment or 

family ties.”

J.H. v. C.Y., 161 So. 3d 233, 241 (Ala. Civ. App. 2014), quoting Annot., 52 A.L.R.6th 433 (2010).

For instance, in In re Marriage of Diaz, 363 Ill. App. 3d 

1091, 845 N.E.2d 935, 301 Ill. Dec. 70 (2006), an Illinois 

appellate court found that a mother and child had a significant 

connection to Illinois, based on the facts that the mother was 

married in Illinois; she and her child had periodically resided 

in Illinois; the mother relied upon her mother, also an Illinois 

resident, to care for the child; and the mother intended to 
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take advantage of various opportunities in Illinois. Similarly, 

in Matter of Marriage of Schwartz and Battini, 289 Or. App. 

332, 410 P.3d 319 (2017), an Oregon appellate court found 

that a mother and a child had a significant connection to 

Oregon, based on the facts that the mother was from Oregon; 

the child was born and had a doctor there; and the child’s 

maternal grandparents, with whom the child had spent significant time, spent half the year there. And finally, in Breselor v. 

Arciniega, 123 A.D.3d 1413, 1 N.Y.S.3d 413 (2014), a New 

York court found that a mother and her child had a significant 

connection to New York, based on the facts that the mother 

and child resided in New York previously, the child visited 

her grandparents in New York previously, and the child had 

relationships with her grandparents and other extended family 

members in New York.

Informed by the basis upon which other courts have found 

a significant connection, we find that both C.D. and Anicette 

had a significant connection to Togo. With respect to C.D., 

there is no doubt he had a significant connection. He resided 

with family members in the country continuously from 2006 

to 2012 and attended school and received medical attention 

there. We also find that Anicette had a significant connection 

to Togo. She was married in Togo. And while she later moved 

to Nebraska, she continued to have significant connections to 

Togo even when she lived in Nebraska. Those connections 

included family living in Togo; the record indicates at least 

her mother and sister lived there. In addition, and perhaps 

most important, Anicette voluntarily sent C.D. to live in Togo 

with Akouvi while she remained in Nebraska. Based on all 

these facts, we find that Anicette had a significant connection 

to Togo.

Finally, it is clear from the record that substantial evidence concerning C.D.’s care, protection, training, and personal relationships was available in Togo. Indeed, given the 

fact that C.D. had lived in Togo from 2006 to 2012, substantial evidence on these subjects would not have been available 
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anywhere else. In any case, the record indicates that C.D. 

attended school in Togo, that he received medical attention at 

both a hospital and medical clinic in Togo, that he had friends 

in Togo, and that his primary caregiver, Akouvi, resided in 

Togo. On this basis, we conclude there was substantial evidence in Togo regarding C.D.’s care, protection, training, and 

personal relationships.

Based on the foregoing, we find that even if a court in Togo 

would not have had jurisdiction to make an initial custody 

determination under § 43-1238(a)(1), it would have had significant connection jurisdiction to make an initial child custody 

determination under § 43-1238(a)(2). And because a court 

in Togo would have had jurisdiction under § 43-1238(a)(2), 

the district court did not have last resort jurisdiction under 

§ 43-1238(a)(4). See, e.g., Gerhauser v. Van Bourgondien, 238 

N.C. App. 275, 767 S.E.2d 378 (2014).

District Court’s Order Vacating 

All Prior Custody Orders.

At oral argument, counsel for Kwami contended that even 

if a child custody proceeding could have initially been brought 

in Togo, the district court should not have found a lack 

of jurisdiction, because at the time the custody proceedings were commenced, both Kwami and Anicette lived in 

Nebraska and chose to litigate the issues in the district court. 

Counsel additionally pointed out that C.D.’s custody has been 

litigated in the district court for 9 years but that as a result 

of the district court’s most recent order, it has still not 

been resolved.

[5] All of this appears to be true, but it does not affect 

whether the district court acquired subject matter jurisdiction. 

If a court lacks subject matter jurisdiction, it lacks the power 

to determine the case. See J.S. v. Grand Island Public Schools, 

297 Neb. 347, 899 N.W.2d 893 (2017). Accordingly, parties cannot confer subject matter jurisdiction upon a judicial 

tribunal by either acquiescence or consent, nor may subject 
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matter jurisdiction be created by waiver, estoppel, consent, or 

conduct of the parties. Id.

That the parties litigated this case in the district court for 

some time is thus irrelevant to whether the district court had 

subject matter jurisdiction. The district court’s authority to 

decide C.D.’s custody is determined by the UCCJEA, and for 

reasons we have explained, the UCCJEA did not give it the 

power to do so. When a court acts without subject matter jurisdiction, its actions are void. See J.S. v. Grand Island Public 

Schools, supra.

So while it is certainly regrettable that the significant time 

and energy devoted to litigating C.D.’s custody in the district 

court was all for naught, upon its correct determination that 

it never had subject matter jurisdiction, the district court had 

no choice but to vacate its prior custody orders. See In re 

C and M Properties, L.L.C., 563 F.3d 1156, 1167-68 (10th Cir. 

2009) (holding that action must be dismissed for lack of subject matter jurisdiction despite court’s being “loathe to add to 

the duration and complexity of an already overlong and overly 

complex matter, let alone to deliver the unwelcome news that 

the parties have been litigating in vain in federal court for over 

four years based on a mistaken premise”).

CONCLUSION

Because the district court never acquired subject matter 

jurisdiction of the custody of C.D., any actions regarding his 

custody were void. The district court thus correctly vacated 

any orders pertaining to C.D.’s custody or visitation, and 

we affirm.

Affirm