Lasu v. Lasu

28 Neb.App. 478

944 N.W.2d 773

Naomi Amulo LASU, appellee,

v.Emmanuel M'Baya LASU, appellant.

No. A-19-155.

Court of Appeals of Nebraska.

Filed June 9, 2020.

Steffanie J. Garner Kotik, of Kotik & McClure Law, Lincoln, for appellant.

John D. Rouse, Lincoln, for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Bishop, Judge.

I. INTRODUCTION

Emmanuel M'Baya Lasu appeals from the decree entered by the Lancaster County District Court dissolving his marriage to Naomi Amulo Lasu, awarding legal and physical custody of the parties’ child to Naomi, and ordering Emmanuel to pay child support. Emmanuel claims the district court lacked subject matter and personal jurisdiction. He also disputes the custody and child support orders. We affirm.

II. BACKGROUND

In November 2015, Emmanuel and Naomi had a child, Jacob Lasu, out of wedlock. At that time and throughout her pregnancy, Naomi lived in Lincoln, Nebraska, her place of residence for many years. Emmanuel has lived solely in California at all times relevant to this case. According to Naomi, from Jacob's birth until December 2016, Emmanuel saw Jacob only three times. Naomi continued to live with Jacob in Lincoln until sometime in December 2016. Then, for about 3 months, from December 2016 to March 2017, Naomi and Jacob lived in Emmanuel's home in California. Naomi explained that she went to California because it was best for Jacob "to have both parents around him." Emmanuel and Naomi wed on December 29, 2016, in California. Shortly thereafter, they began to experience difficulties in their marriage. Following an argument between the parties in March 2017, the facts of which are contested, Naomi returned to Nebraska with Jacob.

Naomi described the circumstances of the argument as follows: Emmanuel had been drinking alcohol that night; alcohol was one of the "major issues" in their marriage. At some point, Jacob was standing on a table and Emmanuel proceeded to move the table after Naomi told him to have Jacob "step down" first. Jacob was not hurt; however, the argument escalated to where Emmanuel was "screaming" at her and calling her "name[s]." He asked her to "get out of his house." Emmanuel was holding a firearm and moving around the house. Naomi was intimidated and feared she might be shot. Naomi left the house and contacted her sister, who called the police. After the police arrived, Naomi left the house with Jacob. She took some physical possessions; Emmanuel had thrown her belongings and some of Jacob's belongings outside a bedroom. She and Jacob stayed at a hotel for a couple days, after which she and Jacob left California and returned to Lincoln.

Emmanuel described the incident differently. He claimed that on March 18, 2017, he and Naomi were arguing about a party that was supposed to have taken place for Naomi in Nebraska before her move to California. Although he had an alcoholic drink at 2 p.m. that day, Emmanuel denied drinking that night. He never called Naomi "names." He said Naomi's story about the table was inaccurate. He claimed he would lift Jacob off the table and put him on the floor, but then Jacob started running and fell on the carpet. Emmanuel acknowledged having a firearm, for which he had a license, but he denied he was carrying it around the house during the argument. It was "locked up in a safe" in his home office.

In the morning on March 19, 2017, Naomi was packing. Emmanuel did not want to "aggravate the situation," so he left around 9 a.m. and came back around noon. Naomi was still packing. Jacob was sleeping downstairs. Emmanuel took him upstairs, and they napped. Naomi awakened Jacob and took him downstairs around 2 p.m. Police arrived 10 minutes later. Emmanuel said he told the police he was not drunk. After a "reasonable conversation," the police believed him. On Emmanuel's direction, the police opened his safe to find a "dusty" unloaded gun. He said the police believed he had not touched the gun the night before. They did not take it away. He was not cited or arrested. Naomi left his house that day.

Emmanuel did not go to work on March 20, 2017, so he could "process" life. Naomi returned to his house and continued packing. She was there for about 30 to 45 minutes before leaving. He denied that he ever threw any of her belongings out of any rooms into the hall. Nor did he ever tell her that she needed to move out of his house. He thought she had at first gone to a hotel and had sent her text messages to come stay at his house. He was not aware of when Naomi left with Jacob for Lincoln. Emmanuel stated that he continued to text Naomi about where she was and that she had said she was in California. Later, a sheriff served him a "letter for domestic violence" filed in Nebraska, dated March 24, 2017. (Naomi testified she filed for a restraining order in Nebraska.) According to Emmanuel, that was the first time he knew Naomi went to Lincoln.

On April 5, 2017, Naomi filed a complaint in the district court seeking the dissolution of her marriage. She alleged that she had been a Nebraska resident for more than 1 year prior to filing and that she maintained a residence in Lincoln, Nebraska. She sought temporary and permanent custody of Jacob, subject to Emmanuel's reasonable parenting time. On June 6, Naomi filed an amended complaint substantially similar to her complaint. Emmanuel was personally served in California on July 25. On August 22, Emmanuel filed a motion to dismiss the case for lack of subject matter and personal jurisdiction. As to subject matter jurisdiction, Emmanuel disputed that Naomi had lived in Nebraska for 1 year before filing her initial complaint for dissolution of marriage. Emmanuel argued that he had never resided in Nebraska and that Jacob had not lived in Nebraska for 4 months at the time Naomi filed her initial complaint. Regarding personal jurisdiction, Emmanuel alleged that he had lived in California during the parties’ marriage and had been served there.

On September 15, 2017, there was a joint teleconference hearing before the district court and a California court related to Emmanuel's motion to dismiss and Naomi's motion to stay or dismiss a dissolution and custody action that Emmanuel had filed in July in California. Each party had an attorney representing his/her interests both in Nebraska and California. The California court found that Jacob never lived in California for more than 6 months as required for it to acquire jurisdiction over custody matters. It was prepared to decline jurisdiction altogether if the Nebraska court saw it fit to assert jurisdiction over child custody issues. The district court determined it could exercise jurisdiction over the parties and custody and dissolution matters. The district court noted that Naomi moved to California with "some intent" but it "didn't work out." Naomi was in Nebraska "for a period" before she went to California and the "three-month period [in California] gets tacked onto that, essentially, so she can show a six-month period here." During the telephonic hearing, Emmanuel personally agreed to litigate the marriage dissolution in Nebraska given that custody was to be litigated here. The same day, the district court entered an order overruling Emmanuel's motion to dismiss and noting the California case would be dismissed. On September 28, the district court entered an order in which it stated its reasoning for finding jurisdiction over custody issues, namely that Jacob resided in Nebraska for 6 consecutive months or more but lived in California for only 3 months. It also noted that the parties "stipulated that the divorce proceeding should also be heard in Nebraska."

On October 12, 2017, Emmanuel filed an answer to Naomi's amended complaint, admitting that she had been a resident of Nebraska for more than 1 year prior to filing her amended complaint, but denying the other material allegations. In the same filing, Emmanuel included a "cross-complaint," which sought dissolution of the parties’ marriage and custody of Jacob.

Trial took place on December 17, 2018. Each party testified, and their exhibits were admitted into evidence. In addition to the evidence already set forth above, we will discuss other evidence in our analysis where relevant to the issues on appeal. At the end of trial, the district court granted Emmanuel 10 days of parenting time over Jacob's Christmas break. The other issues relevant to this appeal were taken under advisement.

On January 14, 2019, the district court entered a decree dissolving the parties’ marriage. Naomi was awarded legal and physical custody of Jacob, subject to Emmanuel's parenting time in accordance with a parenting plan attached to the decree. Emmanuel was to receive extended periods of parenting time during Jacob's summer and spring school breaks, as well as half of Jacob's Christmas break. Each party was allowed reasonable telephone contact with Jacob every other day. Emmanuel was to accompany Jacob in both directions of travel in the exercise of his parenting time until further order. Emmanuel was responsible for transportation costs associated with his parenting time in consideration of a reduction in child support. Child support without a reduction was calculated to be $927 per month. With a deviation for transportation costs, the district court ordered child support of $600 per month beginning January 1. The parties would equally split any childcare expenses incurred by Naomi to allow her to maintain employment or attend school. Generally, the parties would alternate entitlement to claim Jacob as a dependent each year. Naomi was to maintain health insurance for Jacob provided it was available to her through work at a reasonable cost; uncovered medical costs for Jacob were to be split equally by the parties after Naomi's payment of $480 per year.

Emmanuel appeals.

III. ASSIGNMENTS OF ERROR

Emmanuel claims, restated, that the district court erred by (1) failing to dismiss this case for lack of subject matter and personal...