Bryson L. v. Izabella L. , 302 Neb. 145 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/01/2019 01:05 AM CST
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    BRYSON L. v. IZABELLA L.
    Cite as 
    302 Neb. 145
    Bryson L., appellee, v. Izabella L., appellee,
    and David B., interested party, appellant.
    ___ N.W.2d ___
    Filed January 25, 2019.   No. S-18-459.
    1.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    2.	 ____: ____. Before reaching the legal issues presented for review, it is
    the duty of an appellate court to determine whether it has jurisdiction
    over the matter before it.
    3.	 Jurisdiction: Time: Notice: Appeal and Error. Under 
    Neb. Rev. Stat. § 25-1912
     (Reissue 2016), to vest an appellate court with jurisdiction, a
    party must timely file a notice of appeal.
    4.	 Motions to Vacate: Judgments: Time. In the absence of an applicable
    rule to the contrary, a motion asking the court to exercise its inherent
    power to vacate or modify its own judgment does not terminate the time
    for taking an appeal.
    5.	 Motions to Vacate: Final Orders: Time: Notice: Appeal and Error.
    A party can move a court to vacate or modify a final order, but if the
    court does not grant the motion, a notice of appeal must be filed within
    30 days of the entry of the earlier final order if the party intends to
    appeal it.
    6.	 Pleadings: Judgments: Time: Appeal and Error. Filing a timely
    motion to alter or amend a judgment terminates the time in which a
    notice of appeal must be filed.
    7.	 Pleadings: Judgments: Time. In order to qualify for treatment as a
    motion to alter or amend a judgment, a motion must be filed no later
    than 10 days after the entry of judgment, as required under 
    Neb. Rev. Stat. § 25-1329
     (Reissue 2016), and must seek substantive alteration of
    the judgment.
    8.	 Pleadings: Judgments: Time: Appeal and Error. A timely motion to
    alter or amend a judgment terminates the time to file an appeal, and the
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    BRYSON L. v. IZABELLA L.
    Cite as 
    302 Neb. 145
    full 30-day period to appeal begins to run from the entry of the order
    ruling upon the motion to alter or amend a judgment.
    9.	 ____: ____: ____: ____. An untimely motion to alter or amend a judg-
    ment does not terminate the time for perfection of an appeal and does
    not extend or suspend the time limit for filing a notice of appeal.
    Appeal from the District Court for Sarpy County: Stefanie
    A. M artinez, Judge. Appeal dismissed.
    Aaron C. Wegner, of Husker Law, for appellant.
    Heather L. Horst, of Walz Law Offices, P.C., L.L.O., for
    appellee Bryson L.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    This appeal turns upon a jurisdictional issue. Approximately
    10 months after a marital dissolution decree was entered adju-
    dicating paternity of a child, David B. sought to intervene and
    disestablish paternity. The district court entered a final order
    denying intervention. David then filed two motions to recon-
    sider, one within 10 days of the final order, and after it was
    denied because it lacked a notice of hearing, he filed a second
    motion 11 days after the final order. Because David did not
    appeal within 30 days after the denial of his first motion to
    reconsider, which was properly construed as a motion to alter
    or amend the judgment, we lack jurisdiction of this appeal.
    The second motion, which was untimely as a motion to alter
    or amend, did not terminate or extend the time for appeal. We
    therefore dismiss the appeal.
    BACKGROUND
    Approximately 3 months after Izabella L. married Bryson
    L., she gave birth to a child. In November 2016, the district
    court approved the parties’ property settlement agreement and
    dissolved the 2-year marriage. The decree awarded Bryson sole
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    BRYSON L. v. IZABELLA L.
    Cite as 
    302 Neb. 145
    physical custody of the child and ordered that neither party
    shall pay child support due to Izabella’s unemployment and
    limited income.
    In September 2017, David filed a motion to intervene in
    the dissolution case as an interested party. David alleged that
    when Izabella was pregnant and engaged to marry Bryson, she
    “indicated to [David] that he could be the father of the minor
    child.” In light of Izabella’s divorce, David obtained genetic
    testing. The test results, obtained in August, showed David’s
    probability of paternity to be 99.999 percent. Thus, David
    sought to be included in the dissolution case in order to dis­
    establish Bryson’s custodial rights to the child under 
    Neb. Rev. Stat. § 43-1412.01
     (Reissue 2016). In October, David filed a
    motion to set aside the paternity finding within the decree of
    dissolution. He also requested that the court appoint a guardian
    ad litem for the child.
    Although not in our record, Bryson apparently filed a motion
    to dismiss David’s motions to intervene and to set aside pater-
    nity. The district court held a hearing on that motion along
    with David’s motions.
    On March 2, 2018, the district court entered an “Opinion
    and Order.” The court observed that the child had lived with
    Bryson since birth and was now 3 years old. The court found
    that David failed to act in a timely manner, noting that David
    had actual knowledge in 2014 that he could be the child’s
    father and took no action to determine paternity until after
    Bryson and Izabella divorced. The court sustained Bryson’s
    motion to dismiss and denied David’s motions to intervene and
    to set aside paternity.
    On March 9, 2018, David filed a “Motion to Vacate/
    Reconsider.” He asked “for the Court to set this matter for a
    hearing to reconsider the Opinion and Order entered on March
    2, 2018 and to consider the best interests of the minor child
    at issue, amongst other issues stated herein.” On March 13,
    the court denied the motion “for the procedural error that no
    Notice of Hearing was filed with the Motion.”
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    BRYSON L. v. IZABELLA L.
    Cite as 
    302 Neb. 145
    Later on March 13, 2018, David filed a second “Motion to
    Vacate/Reconsider” with a notice of hearing specifying a hear-
    ing date. The addition of a notice of hearing and the date on
    the certificate of service are the only differences between the
    two motions.
    On April 10, 2018, the district court denied David’s motion.
    The court found that the motion should be considered to be
    one to alter or amend under 
    Neb. Rev. Stat. § 25-1329
     (Reissue
    2016) and that it was “initially filed timely on March 9, 2018.”
    However, the court found that David’s motion lacked merit. On
    May 8, David filed a notice of appeal.
    ASSIGNMENTS OF ERROR
    David assigns four errors, which we consolidate and restate
    as alleging that the court erred in (1) denying his motions to
    intervene and to set aside paternity and (2) failing to appoint
    a guardian ad litem to provide an analysis of the child’s
    best interests.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law.1
    ANALYSIS
    [2] Before reaching the legal issues presented for review, it
    is the duty of an appellate court to determine whether it has
    jurisdiction over the matter before it.2 Bryson asserts that we
    lack appellate jurisdiction, because David’s March 13, 2018,
    motion to vacate/reconsider was not timely filed and did not
    terminate the running of the time for filing a notice of appeal.
    We agree.
    1
    State on behalf of Marcelo K. & Rycki K. v. Ricky K., 
    300 Neb. 179
    , 
    912 N.W.2d 747
     (2018).
    2
    
    Id.
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    BRYSON L. v. IZABELLA L.
    Cite as 
    302 Neb. 145
    [3] Under 
    Neb. Rev. Stat. § 25-1912
     (Reissue 2016), to
    vest an appellate court with jurisdiction, a party must timely
    file a notice of appeal.3 The notice of appeal must be filed
    within 30 days of the judgment, decree, or final order from
    which the party is appealing.4 Here, the parties do not dispute
    that the March 2, 2018, order was final and appealable.
    [4,5] We begin by considering the effect of David’s first
    filing of a “Motion to Vacate/Reconsider.” A motion for recon-
    sideration is nothing more than an invitation to the court to
    consider exercising its inherent power to vacate or modify its
    own judgment.5 In the absence of an applicable rule to the
    contrary, a motion asking the court to exercise its inherent
    power to vacate or modify its own judgment does not termi-
    nate the time for taking an appeal.6 A party can move the court
    to vacate or modify a final order, but if the court does not
    grant the motion, a notice of appeal must be filed within 30
    days of the entry of the earlier final order if the party intends
    to appeal it.7 If David’s motion should have been treated as
    one to reconsider or to vacate, the court’s denial of the motion
    meant that he needed to file his notice of appeal within 30
    days of the March 2, 2018, order in order to vest jurisdiction
    in this court.
    [6-8] But if David’s motion qualified as a motion to alter
    or amend a judgment, the time in which to file an appeal
    was effectively extended. That is because filing a timely
    motion to alter or amend a judgment terminates the time in
    3
    Clarke v. First Nat. Bank of Omaha, 
    296 Neb. 632
    , 
    895 N.W.2d 284
    (2017).
    4
    See § 25-1912(1).
    5
    Applied Underwriters v. Oceanside Laundry, 
    300 Neb. 333
    , 
    912 N.W.2d 912
     (2018).
    6
    See In re Change of Name of Whilde, 
    298 Neb. 510
    , 
    904 N.W.2d 707
    (2017).
    7
    
    Id.
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    BRYSON L. v. IZABELLA L.
    Cite as 
    302 Neb. 145
    which a notice of appeal must be filed.8 In order to qualify
    for t­reatment as a motion to alter or amend a judgment, a
    motion must be filed no later than 10 days after the entry of
    judgment, as required under § 25-1329, and must seek sub-
    stantive alteration of the judgment.9 A timely motion to alter
    or amend a judgment terminates the time to file an appeal,
    and the full 30-day period to appeal begins to run from the
    entry of the order ruling upon the motion to alter or amend
    a judgment.10
    David filed his first motion within 10 days of the March
    2, 2018, order, and sought substantive alteration of the March
    2 order. Thus, the first motion qualified as a motion to alter
    or amend, thereby terminating the appeal time. But the court
    denied the first motion on March 13, which started the running
    of a new 30-day period for appeal.
    [9] David’s second motion to reconsider was untimely and
    could not be construed as a motion to alter or amend the judg-
    ment. David filed his second motion to vacate or reconsider
    11 days after the March 2, 2018, order. An untimely motion to
    alter or amend does not terminate the time for perfection of an
    appeal and does not extend or suspend the time limit for filing
    a notice of appeal.11 Because that motion was not filed within
    10 days, it did not terminate the time for filing an appeal. Thus,
    the appeal time ran 30 days after the entry of the March 13
    order denying his first motion. David’s notice of appeal, filed
    in May 2018, was not timely. We therefore lack jurisdiction
    over this appeal.
    The circumstances of this case provide a cautionary tale for
    both bar and bench. On March 13, 2018, when David filed his
    second motion, the 10-day period for filing a motion to alter or
    8
    See § 25-1912(3).
    9
    State v. Lotter, 
    301 Neb. 125
    , 
    917 N.W.2d 850
     (2018).
    10
    See 
    id.
    11
    See Fitzgerald v. Fitzgerald, 
    286 Neb. 96
    , 
    835 N.W.2d 44
     (2013).
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    BRYSON L. v. IZABELLA L.
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    amend had expired. Thus, unlike his first motion to vacate or
    reconsider, the second motion could not be treated as a motion
    to alter or amend a judgment. The second motion was only a
    motion to reconsider, which, as we explained above, does not
    extend the time for appeal. Although David did file an appeal
    of the April 10 order denying his second motion and did so
    within 30 days after the second motion was denied, the time for
    appeal had already expired.
    The bar should be cognizant of and follow any applicable
    statutes and rules concerning motions. A statute sets forth that
    “[w]here notice of a motion is required, it must be in writing
    and shall state . . . the place where and the day on which it
    will be heard . . . .”12 Although we see nothing in the Uniform
    District Court Rules of Practice and Procedure13 requiring a
    notice of hearing at the time of filing a motion, some local
    district court rules contain such a requirement.14 We do not
    find an equivalent requirement in the local rules for the Second
    Judicial District, which includes Sarpy County.15
    Where a local rule does require a notice of hearing, it can be
    crafted to provide some leeway for compliance. For example,
    a local rule of the 12th Judicial District, which by its terms is
    applicable only to Scotts Bluff County, states: “If it is impos-
    sible to secure a time for hearing, the motion may be filed,
    but notice of hearing must be furnished promptly thereafter.
    Failure to secure and serve notice of . . . hearing within 10
    12
    
    Neb. Rev. Stat. § 25-910
     (Reissue 2016).
    13
    Neb. Ct. R. §§ 6-1501 to 6-1526.
    14
    See, Rules of Dist. Ct. of First Jud. Dist. 1-9 (rev. 2005); Rules of Dist. Ct.
    of Third Jud. Dist. 3-2 (rev. 2014); Rules of Dist. Ct. of Fourth Jud. Dist.
    4-2 (rev. 2005); Rules of Dist. Ct. of Eighth Jud. Dist. 8-3 (rev. 1995);
    Rules of Dist. Ct. of Ninth Jud. Dist. 9-11 (rev. 2010); Rules of Dist. Ct.
    of 10th Jud. Dist. 10-21 (rev. 2010); Rules of Dist. Ct. of 11th Jud. Dist.
    11-3 (rev. 2012).
    15
    See Rules of Dist. Ct. of Second Jud. Dist. 2-2 and 2-4 (rev. 2018).
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    days after filing a motion will be deemed an abandonment of
    the motion.”16
    Because we lack jurisdiction of this appeal, we express no
    opinion whether the district court erred in overruling David’s
    first motion because it did not include a notice of hearing.
    Where a notice of hearing is required, we recently explained
    that a district court has the discretion to excuse that require-
    ment. There, as here, a party timely filed a motion to alter or
    amend, but the motion did not contain a notice of hearing.17
    In that case, unlike the situation here, the opposing party
    objected that the district court lacked “jurisdiction” due to
    noncompliance with a local court rule requiring a party to
    obtain a hearing date at the time of filing a motion, but the
    court accepted and ruled upon the merits of the motion. In the
    context of discussing appellate jurisdiction, this court stated
    that the “statutory description of the motion to alter or amend
    does not include any requirement that the motion be accompa-
    nied simultaneously by a notice of hearing before the district
    court.”18 We found no error in the district court’s consideration
    of the motion, noting that “district courts have discretion to
    excuse procedural court rules.”19
    But what a court cannot do is extend the time for filing an
    appeal. The district court here denied David’s first motion to
    reconsider—which was timely as a motion to alter or amend
    the judgment. Upon the entry of that denial order, the new
    30-day appeal time began to run. After David filed his second
    motion to reconsider (outside of the 10-day period), the district
    court apparently tried to help David by finding that his motion
    for reconsideration should be considered as a motion to alter
    or amend and that it “was initially filed timely on March 9,
    16
    Rules of Dist. Ct. of 12th Jud. Dist. 12-3(A)(1) (rev. 2010).
    17
    See Lombardo v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
     (2018).
    18
    
    Id. at 413
    , 908 N.W.2d at 641.
    19
    Id. at 413-14, 908 N.W.2d at 641.
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    2018.” But the court had already denied that March 9 motion.
    David’s March 13 motion was not timely. A successive motion
    to alter or amend the same judgment does not terminate the
    time to appeal.20 As we recently stated: “Allowing an untimely
    motion to alter or amend would have the effect of extending
    the time for filing an appeal. But when the Legislature fixes
    the time for taking an appeal, the courts have no power to
    extend the time directly or indirectly.”21
    CONCLUSION
    David’s second motion to reconsider did not terminate the
    time for filing an appeal, because it was not filed within 10
    days of the final order. Because David did not appeal within 30
    days of the overruling of his first motion to reconsider, which
    was properly construed as a motion to alter or amend, we lack
    jurisdiction and must dismiss his appeal.
    A ppeal dismissed.
    20
    See Gebhardt v. Gebhardt, 
    16 Neb. App. 565
    , 
    746 N.W.2d 707
     (2008).
    See, also, Mason v. Cannon, 
    246 Neb. 14
    , 
    516 N.W.2d 250
     (1994) (time
    for filing appeal cannot be extended by successive filings of motions for
    new trial).
    21
    State v. Lotter, 
    supra note 9
    , 
    301 Neb. at 137
    , 917 N.W.2d at 860.