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Nebraska Court of A ppeals A dvance Sheets
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METZLER v. METZLER
Cite as 25 Neb. App. 757
David Lynn Metzler, appellant, v.
M ary Grace Metzler, appellee.
___ N.W.2d ___
Filed April 10, 2018. No. A-17-242.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue that does not involve a factual dispute is a matter of law
which requires an appellate court to reach its conclusions independent
from a trial court.
3. Jurisdiction: Divorce. Under the doctrine of divisible divorce, divorce
proceedings contain two principal components: (1) the dissolution
of the marital status and (2) the adjudication of the incidences of
the marriage.
4. Jurisdiction: Divorce: Child Support: Alimony. The divisibility doc-
trine holds that while a state court may have jurisdiction over the mar-
riage to dissolve it, that same court may lack personal jurisdiction to
adjudicate personal matters such as support or alimony.
5. Jurisdiction: Divorce. The dissolution of the marital status is gener-
ally considered an in rem proceeding where the marriage is the res
adjudicated.
6. Jurisdiction: States. In rem proceedings require minimum contacts
between a person’s interest in the res adjudicated and the forum state.
7. Jurisdiction: States: Domicile. Because states have a strong interest in
the marital status of their residents, a marriage has sufficient contacts
with a state to justify that state’s exercise of jurisdiction over it when
one spouse has established a domicile therein.
8. ____: ____: ____. A nonresident spouse’s absence does not diminish a
state’s interest in, or contacts with, the resident spouse’s marriage, even
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if the nonresident spouse has never traveled to the resident spouse’s
new state.
9. Due Process: Jurisdiction: States: Domicile: Service of Process. If
the resident spouse has established a bona fide domicile in a state and
his or her service on the nonresident spouse satisfied procedural due
process, the state has jurisdiction to adjudicate the resident spouse’s
marital status.
10. Divorce: Actions: Domicile: Words and Phrases. The language of
Neb. Rev. Stat. § 42-349 (Reissue 2016) requiring an “actual residence
in this state” means that one party is required to have a bona fide
domicile in Nebraska for 1 year before commencement of a dissolu-
tion action.
11. Domicile: Intent: Words and Phrases. Domicile is obtained only
through a person’s physical presence accompanied by the present inten-
tion to remain indefinitely at a location or site or by the present intention
to make a location or site the person’s permanent or fixed home.
12. Domicile: Intent. The absence of either presence or intention thwarts
the establishment of domicile.
13. Domicile. Once established, domicile continues until a new domicile
is perfected.
14. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
15. Due Process: Jurisdiction: States. Before a court can exercise personal
jurisdiction over a nonresident defendant, the court must determine,
first, whether the long-arm statute is satisfied and, if the long-arm stat-
ute is satisfied, second, whether minimum contacts exist between the
defendant and the forum state for personal jurisdiction over the defend
ant without offending due process.
16. ____: ____: ____. When a state construes its long-arm statute to confer
jurisdiction to the fullest extent permitted by the Due Process Clause,
the inquiry collapses into the single question of whether exercise of
personal jurisdiction comports with due process.
17. ____: ____: ____. Due process for personal jurisdiction over a non-
resident defendant requires that the plaintiff allege specific acts by the
defendant which establish that the defendant had the necessary mini-
mum contacts before a Nebraska court can exercise jurisdiction over
a person.
18. Jurisdiction: States. When considering the issue of personal jurisdic-
tion, it is essential in each case that there be some act by which the
defendant purposely avails himself or herself of the privilege of con-
ducting activities within the forum state, thus invoking the benefits and
protections of its laws.
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METZLER v. METZLER
Cite as 25 Neb. App. 757
19. Due Process: Jurisdiction: States. The benchmark for determining
whether the exercise of personal jurisdiction satisfies due process is
whether the defendant’s minimum contacts with the forum state are
such that the defendant should reasonably anticipate being haled into
court there.
20. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals
with a court’s ability to hear a case; it is the power of a tribunal to
hear and determine a case of the general class or category to which the
proceedings in question belong and to deal with the general subject mat-
ter involved.
21. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face.
22. Actions: Pleadings. Civil actions are controlled by a liberal pleading
regime; a party is only required to set forth a short and plain statement
of the claim showing that the pleader is entitled to relief.
23. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R.
Pldg. § 6-1112(b)(6) should be granted only in the unusual case in which
a plaintiff includes allegations that show on the face of the complaint
that there is some insuperable bar to relief.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Stephanie Weber Milone, of Milone Law Office, for
appellant.
Todd O. Engleman, of Nebraska Legal Group, for appellee.
Moore, Chief Judge, and R iedmann, Judge, and Inbody,
Judge, Retired.
Moore, Chief Judge.
I. INTRODUCTION
David Lynn Metzler appeals from an order of the district
court for Sarpy County that dismissed his complaint for dis-
solution of marriage. We conclude that the court erred in
dismissing David’s complaint with respect to his request for
the court to dissolve his marriage. However, we find that the
district court was correct in dismissing David’s complaint
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METZLER v. METZLER
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with respect to issues relating to child custody, parenting time,
child support, and division of property and debts. Therefore,
we affirm in part, and in part reverse and remand for fur-
ther proceedings.
II. BACKGROUND
On October 17, 2016, David filed a pro se complaint for
dissolution of marriage in the district court for Sarpy County.
David used a preprinted complaint for dissolution of marriage
(with children) form for self-represented litigants, which form
is available on the Nebraska Judicial Branch website. In his
complaint, David set forth his address in Sarpy County and
alleged that he has lived in Nebraska for more than 1 year
with the intention of making this state a permanent home.
David alleged that his spouse, Mary Grace Metzler, lives at a
particular address in Pennsylvania. The complaint stated that
David and Mary were married on October 27, 2000, in British
Columbia, Canada, and that the marriage is irretrievably bro-
ken. The complaint contains the names and years of birth of
the parties’ four children. The complaint set forth the chil-
dren’s addresses and the persons with whom the children have
lived for the last 5 years. The complaint referenced another
proceeding in a British Columbia court concerning the custody
of or parenting time with the children, including a notation of
“December 08, 2015, determination of guardians.” The form
complaint includes a paragraph that states, “[c]hild custody,
parenting time, or other access, and child support are not
contested.” The form complaint also includes paragraphs that
state property and debts have been accumulated and should be
fairly divided. However, a handwritten notation appears below
these paragraphs, which reads “[n]one to be divided” followed
by the initials “DM.” David requested that the court dissolve
his marriage. After the paragraph requesting that the court
fairly divide the property and debts between him and Mary, a
handwritten note again states “[n]one to be divided” followed
by the initials “DM.” As a further request, David checked the
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METZLER v. METZLER
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box next to “[a]ward my spouse and me joint legal and joint
physical custody of the child(ren).” The form complaint also
contained paragraphs requesting that the court order a parent-
ing plan and award child support according to the Nebraska
Child Support Guidelines.
On February 9, 2017, Mary filed a verified motion to dis-
miss, claiming that Nebraska courts lack personal jurisdiction
of her and subject matter jurisdiction over David’s complaint.
Additionally, she claimed David’s complaint failed to state a
claim upon which relief can be granted. On February 27, the
district court held a hearing on Mary’s motion to dismiss. The
district court filed an order dated February 28, 2017, granting
Mary’s motion to dismiss. The court noted that it was “without
jurisdiction to make determination” on child custody and sup-
port because the children have never resided in Nebraska and
a British Columbia court issued a prior order on these issues.
Despite David’s request that the court retain jurisdiction to liti-
gate the dissolution, the court reasoned that “the issues of child
custody and support are so integrated in the subject matter of
the case that Nebraska is not the most convenient forum, nor
the appropriate forum.” David timely filed this appeal.
III. ASSIGNMENT OF ERROR
David assigns the district court erred in dismissing his com-
plaint for dissolution of marriage.
IV. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Frenchman-Cambridge Irr. Dist.
v. Dept. of Nat. Res., 297 Neb. 999, 902 N.W.2d 159 (2017).
[2] Determination of a jurisdictional issue that does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court. Kozal v. Nebraska Liquor Control Comm., 297 Neb.
938, 902 N.W.2d 147 (2017).
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METZLER v. METZLER
Cite as 25 Neb. App. 757
V. ANALYSIS
1. Personal Jurisdiction
David argues that because Mary was personally served with
a summons and a copy of his complaint, the district court
acquired personal jurisdiction over her. Mary counters that
because she has never been to Nebraska, she has not main-
tained “‘minimum contacts’” with the state to be subject to
its court’s jurisdiction. Brief for appellee at 5. Based on the
authority that follows, we conclude that there is a distinction
between personal jurisdiction over the marriage of a resident
spouse and personal jurisdiction over a nonresident spouse. We
find that because David has established the requisite domicile
in Nebraska, his marriage with Mary has sufficient contact
with the state to justify the district court’s exercise of jurisdic-
tion over the marriage and David’s request to dissolve it.
[3,4] Under the doctrine of divisible divorce, divorce pro-
ceedings contain two principal components: (1) the dissolution
of the marital status and (2) the adjudication of the incidences
of the marriage. See, Tiedeman v. Tiedeman, 195 Neb. 15,
236 N.W.2d 807 (1975); Harvey v. Harvey, 6 Neb. App. 524,
575 N.W.2d 167 (1998). The divisibility doctrine holds that
while a state court may have jurisdiction over the marriage
to dissolve it, that same court may lack personal jurisdiction
to adjudicate personal matters such as support or alimony.
Tiedeman v. Tiedeman, supra; Harvey v. Harvey, supra. As
discussed below, Nebraska courts have jurisdiction to dissolve
David’s marriage with Mary, but they lack the necessary per-
sonal jurisdiction over Mary and her children to adjudicate the
more personal matters, such as child custody, parenting time,
child support, or division of assets and debts.
(a) Dissolution of Marital Status
[5-7] The dissolution of the marital status is generally con-
sidered an in rem proceeding. Stucky v. Stucky, 186 Neb. 636,
643, 185 N.W.2d 656, 660 (1971) (Newton, J., dissenting) (“an
action for divorce is universally considered to be an action
in rem”). The marriage is the res adjudicated. 27A C.J.S.
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Divorce § 10 (2016). In rem proceedings require minimum
contacts between a person’s interest in the res adjudicated and
the forum state. Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct.
2569, 53 L. Ed. 2d 683 (1977). Because states have a strong
interest in the marital status of their residents, a marriage has
sufficient contacts with a state to justify that state’s exercise
of jurisdiction over it when one spouse has established a domi-
cile therein:
Domicil [sic] creates a relationship to the state which
is adequate for numerous exercises of state power.
[Citations omitted.] Each state as a sovereign has a right-
ful and legitimate concern in the marital status of per-
sons domiciled within its borders. The marriage relation
creates problems of large social importance. Protection
of offspring, property interests, and the enforcement of
marital responsibilities are but a few of commanding
problems in the field of domestic relations with which
the state must deal. Thus it is plain that each state, by
virtue of its command over its domiciliaries and its large
interest in the institution of marriage, can alter within its
own borders the marriage status of the spouse domiciled
there, even though the other spouse is absent. There is no
constitutional barrier if the form and nature of the substi-
tuted service [citation omitted] meet the requirements of
due process.
Williams v. North Carolina, 317 U.S. 287, 298-99, 63 S. Ct.
207, 67 L. Ed. 279 (1942).
[8,9] A nonresident spouse’s absence does not diminish a
state’s interest in, or contacts with, the resident spouse’s mar-
riage, even if the nonresident spouse has never traveled to the
resident spouse’s new state. See id. If the resident spouse has
established a bona fide domicile in a state and his or her service
on the nonresident spouse satisfied procedural due process, the
state has jurisdiction to adjudicate the resident spouse’s marital
status. See, Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L.
Ed. 1561 (1948); Williams v. North Carolina, supra; Vanvelzor
v. Vanvelzor, 219 P.3d 184 (Alaska 2009); Collins v. Collins,
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165 Ohio App. 3d 71, 844 N.E.2d 910 (2006); Bartsch v.
Bartsch, 636 N.W.2d 3 (Iowa 2001); Taylor v. Jarrett, 191
Ariz. 550, 959 P.2d 807 (Ariz. App. 1998); Smith v. Smith,
459 N.W.2d 785 (N.D. 1990); In re Marriage of Rinderknecht,
174 Ind. App. 382, 367 N.E.2d 1128 (1977); Stottlemyer v.
Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974). See, also,
Restatement (Second) Conflict of Laws § 71 (1971).
[10-13] David satisfied Nebraska’s residency requirement
to obtain a divorce. In relevant part, Neb. Rev. Stat. § 42-349
(Reissue 2016) provides as follows:
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 . . . .
The Nebraska Supreme Court has interpreted the language
of § 42-349 requiring an “actual residence in this state” to
mean that one party is required to have a bona fide domicile
in Nebraska for 1 year before commencement of a dissolution
action. Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368
(2015). Domicile is obtained only through a person’s physi-
cal presence accompanied by the present intention to remain
indefinitely at a location or site or by the present intention to
make a location or site the person’s permanent or fixed home.
Id. The absence of either presence or intention thwarts the
establishment of domicile. Id. Once established, domicile con-
tinues until a new domicile is perfected. Id.
In David’s complaint for dissolution of marriage, he alleged
that he has lived in Nebraska for more than 1 year with the
intent of making this state a permanent home, which Mary
does not dispute. Accepting the allegations in the complaint
as true, we conclude David is a resident of Nebraska under
§ 42-349 who can properly petition a Nebraska court to dis-
solve his marriage.
In addition, David satisfied procedural due process by com-
plying with the process service requirements for dissolution
proceedings. Neb. Rev. Stat. § 42-352 (Reissue 2016) states
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that “[s]ummons [for a proceeding under Neb. Rev. Stat.
§§ 42-347 to 42-381 (Reissue 2016)] shall be served upon
the other party to the marriage by personal service or in the
manner provided in section 25-517.02.” Mary was personally
served by a county sheriff in Pennsylvania, and therefore,
David complied with the service requirement of § 42-352. As
a result, the district court had jurisdiction to dissolve David
and Mary’s marriage.
Mary cites the Nebraska Supreme Court’s decisions in
Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971), and
York v. York, 219 Neb. 883, 367 N.W.2d 133 (1985), to sup-
port her argument that the district court lacks jurisdiction to
dissolve her marriage because it lacks personal jurisdiction of
her. We find these cases to be factually distinguishable. The
principles stated in each are consistent with our analysis.
In Stucky v. Stucky, supra, the parties resided together in
Nebraska, but upon separation, the husband left the state. The
husband returned to Nebraska only twice after the parties’
separation. However, he continued to deposit money in a joint
bank account in Nebraska, he maintained credit accounts and
utilities on the family home in Nebraska in his name, and the
parties made joint mortgage payments. Based upon the hus-
band’s contacts with Nebraska, the Nebraska Supreme Court
determined that the district court had in personam jurisdiction
over the husband to enter a personal judgment for support,
alimony, and costs. The decree also awarded the husband cer-
tain property.
In York v. York, supra, the parties were married in Nebraska,
lived in the state together for approximately 17 years, and
had five children born here. The parties also owned a home
together in Nebraska. The husband moved out of state and
was personally served with summons upon the filing of the
wife’s action for dissolution. The Nebraska Supreme Court
determined that Nebraska had in personam jurisdiction over
the presently nonresident husband, since Nebraska was the last
place of marital domicile and his wife and children still resided
in Nebraska.
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While the above cases support the proposition that a court
cannot make determinations about the incidences of marriage
without personal jurisdiction, they do not deny a court’s ability
to grant a resident spouse’s request for dissolution of a mar-
riage. Because a court does not need personal jurisdiction of
the nonresident spouse to adjudicate the marital status of the
resident spouse, the principles outlined in Stucky and York do
not apply here.
Nebraska courts have jurisdiction to dissolve a marriage
so long as the petitioner meets the residency requirements
and procedural due process is satisfied. After our de novo
review of the record, we conclude the district court erred
when it dismissed David’s petition requesting a dissolution of
his marriage.
(b) Incidences of Marriage
[14,15] On the other hand, Nebraska courts lack per-
sonal jurisdiction over Mary to adjudicate personal matters
that are incidences of the marriage, such as child custody,
parenting time, child support, and division of property and
debts. Personal jurisdiction is the power of a tribunal to
subject and bind a particular entity to its decisions. RFD-TV
v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107
(2014). Before a court can exercise personal jurisdiction over a
nonresident defendant, the court must determine, first, whether
the long-arm statute is satisfied and, if the long-arm statute is
satisfied, second, whether minimum contacts exist between the
defendant and the forum state for personal jurisdiction over the
defendant without offending due process. Id.
[16] Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536
(Reissue 2016), provides that a court may exercise personal
jurisdiction over a person “[w]ho has any . . . contact with
or maintains any . . . relation to this state to afford a basis
for the exercise of personal jurisdiction consistent with the
Constitution of the United States.” When a state construes
its long-arm statute to confer jurisdiction to the fullest extent
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permitted by the Due Process Clause, the inquiry collapses
into the single question of whether exercise of personal juris-
diction comports with due process. RFD-TV v. WildOpenWest
Finance, supra.
[17-19] Due process for personal jurisdiction over a non-
resident defendant requires that the plaintiff allege specific
acts by the defendant which establish that the defendant had
the necessary minimum contacts before a Nebraska court can
exercise jurisdiction over a person. Id. When considering the
issue of personal jurisdiction, it is essential in each case that
there be some act by which the defendant purposely avails
himself or herself of the privilege of conducting activities
within the forum state, thus invoking the benefits and protec-
tions of its laws. Id. The benchmark for determining whether
the exercise of personal jurisdiction satisfies due process is
whether the defendant’s minimum contacts with the forum
state are such that the defendant should reasonably anticipate
being haled into court there. Id.
Here, there is no dispute that Mary and their children
have never had any contact with Nebraska whatsoever. Mary
and David were married, had four children, and separated
in Canada. Mary and their children have never traveled to
Nebraska. While David alleged there was no marital property
or debts for the court to divide, the form complaint requested a
fair division of property and debts. Further, although the com-
plaint acknowledges a prior proceeding concerning custody of
the children in a British Columbia court, the form complaint
included a paragraph requesting that the court grant David
joint legal and physical custody of the children. The form
complaint also requested that the court determine a parenting
plan and set child support. To the extent that David’s complaint
included requests for relief that are personal in nature, i.e.,
child custody, parenting time, child support, and division of
property and debts, we find the district court did not err in dis-
missing these requests in the complaint due to lack of personal
jurisdiction over Mary.
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2. Subject M atter Jurisdiction
David argues the district court also had subject matter juris-
diction to adjudicate his complaint for divorce. Mary disagrees,
arguing the Nebraska courts lack subject matter jurisdiction of
David’s divorce petition because there are no marital assets
in Nebraska.
[20] Subject matter jurisdiction deals with a court’s abil-
ity to hear a case; it is the power of a tribunal to hear and
determine a case of the general class or category to which the
proceedings in question belong and to deal with the general
subject matter involved. House v. House, 24 Neb. App. 595,
894 N.W.2d 362 (2017). Neb. Rev. Stat. § 42-351 (Reissue
2016) provides in relevant part as follows:
(1) In proceedings under sections 42-347 to 42-381,
the court shall have jurisdiction to inquire into such mat-
ters, 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.
(Emphasis supplied.) As discussed above, David’s complaint
requests the dissolution of his marriage, which is clearly within
the district court’s jurisdiction. Based upon our de novo review
of the record, we conclude that the district court had sub-
ject matter jurisdiction to adjudicate David’s divorce under
§§ 42-349 and 42-351. We find the district court erred in grant-
ing Mary’s motion to dismiss David’s complaint for lack of
subject matter jurisdiction.
3. Failure to State Claim
Last, David argues that his complaint contains all the alle-
gations required by § 42-349 and Neb. Rev. Stat. § 42-353
(Reissue 2016). Therefore, it states a claim upon which
relief may be granted, and the district court should not have
dismissed it based upon Neb. Ct. R. Pldg. § 6-1112(b)(6).
We agree.
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[21-23] To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts to state a
claim to relief that is plausible on its face. Davis v. State, 297
Neb. 955, 902 N.W.2d 165 (2017). Nebraska is a notice plead-
ing jurisdiction. Rodriguez v. Catholic Health Initiatives, 297
Neb. 1, 899 N.W.2d 227 (2017). Civil actions are controlled
by a liberal pleading regime: a party is only required to set
forth a short and plain statement of the claim, showing that the
pleader is entitled to relief. Id. Dismissal under § 6-1112(b)(6)
should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint that
there is some insuperable bar to relief. In re Interest of Noah
B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
Section 42-353 details the allegations a dissolution of mar-
riage complaint must contain:
The complaint shall include the following:
(1) The name and address of the plaintiff and his or
her attorney, except that a plaintiff who is living in an
undisclosed location because of safety concerns is only
required to disclose the county and state of his or her
residence and, in such case, shall provide an alternative
address for the mailing of notice;
(2) The name and address, if known, of the defendant;
(3) The date and place of marriage;
(4) The name and year of birth of each child whose
custody or welfare may be affected by the proceedings
and whether (a) a parenting plan as provided in the
Parenting Act has been developed and (b) child custody,
parenting time, visitation, or other access or child sup-
port is a contested issue;
(5) If the plaintiff is a party to any other pending
action for divorce, separation, or dissolution of marriage,
a statement as to where such action is pending;
(6) Reference to any existing restraining orders, protec-
tion orders, or criminal no-contact orders regarding any
party to the proceedings;
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(7) A statement of the relief sought by the plaintiff,
including adjustment of custody, property, and support
rights; and
(8) An allegation that the marriage is irretrievably
broken if the complaint is for dissolution of marriage or
an allegation that the two persons who have been legally
married shall thereafter live separate and apart if the com-
plaint is for a legal separation.
David’s complaint contained each of the allegations required
above. Therefore, we conclude that David stated a claim upon
which the district court could grant relief and that the district
court erred in granting Mary’s motion to dismiss for failure to
state a claim.
VI. CONCLUSION
The district court had personal and subject matter juris-
diction to adjudicate David’s request for a dissolution of his
marriage, and David’s complaint stated a cause of action for
such dissolution. However, the district court lacked personal
jurisdiction of Mary to adjudicate issues relating to child cus-
tody, parenting time, child support, and division of property
and debts. Therefore, we affirm the dismissal of any claims
contained in the complaint for child custody, parenting time,
child support, and division of property and debts. We reverse
the dismissal of the request for a dissolution of marriage
contained in the complaint and remand the cause for fur-
ther proceedings.
A ffirmed in part, and in part reversed and
remanded for further proceedings.