Bleich v. Bleich

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2022 08:05 AM CST

- 962 -
Nebraska Supreme Court Advance Sheets
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 jurisdic-
tion 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
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 mar-
riage is properly filed.
8. Divorce: Domicile: Jurisdiction. Dissolution actions have dura-
tional 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

BACKGROUND
Complaint for Dissolution
On May 4, 2021, Carmen filed a complaint for dissolu-
tion 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 equita-
bly 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 par-
ties 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 dis-
miss. Both parties appeared, represented by counsel. The par-
ties 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 dis-
solution decree dated March 23, 2015, and a verified English
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 prin-
ciples of comity. At the conclusion of the hearing, the district
court took the matter under advisement and ordered simultane-
ous 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 dis-
solution 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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 com-
menced.” The Court explained in Weber that Nebraska
has a policy of protecting the interests of Nebraska domi-
ciliaries 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 proceed-
ings . . . .
. . . 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 disso-
lution 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 fac-
tual 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 chal-
lenge, the party asserts there is no jurisdiction over the sub-
ject 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 con-
cluded 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 deter-
mined 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

the district court in which a petition for dissolution of mar-
riage is properly filed. 10 That statute provides that in marital
dissolution actions,
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. 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 mar-
riage 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 recogni-
tion under principles of comity. In this respect, it appears
the parties and the district court may have conflated the doc-
trine 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 jurisdic-
tion 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 “juris-
diction.” We mean that a subsequent court that decides
a case already pending in another court with concur-
rent 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 jurisdic-
tion. 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 jurisdic-
tion, 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 dis-
solution proceedings” and that she was “estopped from bring-
ing 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

Venezuela. In Weber v. Weber, 17 we addressed the circum-
stances 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 attack-
ing 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 particu-
lar 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 dis-
trict 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
BLEICH V. BLEICH
Cite as 312 Neb. 962

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 chal-
lenging 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).