Bleich v. Bleich

• Decision Date: 02 December 2022
• Docket Number: S-21-939.
• Citation: 312 Neb. 962,981 N.W.2d 801
• Parties: Carmen Alicia Aquino BLEICH, appellant, v. Arlin Edward BLEICH, appellee.
• Court: Nebraska Supreme Court

312 Neb. 962

981 N.W.2d 801

Carmen Alicia Aquino BLEICH, appellant,

v.Arlin Edward BLEICH, appellee.

No. S-21-939.

Supreme Court of Nebraska.

Filed December 2, 2022

Brett McArthur, Lincoln, for appellant.

Andrew M. Ferguson, Omaha, and Timothy J. Buckley, of Smith, Slusky, Pohren & Rogers, L.L.P., Papillion, 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.

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 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:

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, 265 N.W.2d 436. 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, 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

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

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 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)

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 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...