Kingston v. Kingston , 31 Neb. Ct. App. 201 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/02/2022 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
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KINGSTON V. KINGSTON
Cite as 31 Neb. App. 201Laura A. Kingston, appellant and
cross-appellee, v. Trevor L. Kingston,
appellee and cross-appellant.
___ N.W.2d ___
Filed July 26, 2022. No. A-21-582.
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. Constitutional Law: Statutes: Jurisdiction: Time: Appeal and Error.
An appellate court does not acquire jurisdiction over an appeal if a party
fails to properly perfect it. The appellate jurisdiction of a court is con-
tingent upon timely compliance with constitutional or statutory methods
of appeal.
4. Jurisdiction: Time: Appeal and Error. To perfect an appeal, Neb. Rev.
Stat. § 25-1912(1) (Cum. Supp. 2020) requires that a notice of appeal
be filed within 30 days after the entry of such judgment, decree, or final
order appealed from. The timely filing of a notice of appeal is a jurisdic-
tional requirement.
5. Pleadings: Judgments: Time. A determination as to whether a motion,
however titled, should be deemed a motion to alter or amend a judg-
ment depends upon the contents of the motion, not its title. 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.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Appeal dismissed.
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KINGSTON V. KINGSTON
Cite as 31 Neb. App. 201Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Cuddigan, Peebles, Belmont & Line, L.L.P., for appellant.
Adam R. Little and Hannah C. Sommers, of Nebraska Legal
Group, for appellee.
Pirtle, Chief Judge, and Bishop and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
This appeal pertains to a decree of dissolution entered by
the district court for Douglas County dissolving the marriage
of Trevor L. Kingston and Laura A. Kingston and dividing the
marital estate. Laura appeals, raising six assignments of error,
and Trevor cross-appeals, raising five assignments of error. For
the reasons that follow, we dismiss the appeal and cross-appeal
for lack of appellate jurisdiction.
BACKGROUND
Following a contentious 4-day dissolution trial, the dis-
trict court entered a decree of dissolution on May 27, 2021.
Thereafter, on June 3, Laura filed a motion to alter or amend
or, in the alternative, a motion for new trial, alleging a num-
ber of errors in the May 27 decree. On June 4, Trevor filed
a motion for order nunc pro tunc, seeking clarification with
regard to his obligation to carry health insurance for Laura.
After a hearing on the motions, the court entered a June 14
order overruling Laura’s motion for new trial but sustaining
in part her motion to alter or amend. Specifically, the court
amended the May 27 decree to include $100,552 of Laura’s
student loan debt as marital debt, replacing the $25,000 origi-
nally included in the decree. The court also sustained Trevor’s
motion for order nunc pro tunc, which the court treated as a
motion to alter or amend.
On June 21, 2021, Trevor filed a motion styled a “Motion
to Reconsider,” seeking various forms of relief in the alterna-
tive, all of which were directly related to the court’s June 14
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KINGSTON V. KINGSTON
Cite as 31 Neb. App. 201order substantially increasing the amount of Laura’s student
loan debt, which was classified as marital debt. Trevor’s
motion was set for hearing on July 29; however, on July 13,
Laura filed a notice of appeal from the May 27 decree and
June 14 order. The primary dispute at the July 29 hearing was
whether the district court had jurisdiction to hear the motion
in light of Laura’s notice of appeal. On July 30, the court
entered an order finding that the motion “should be denied
because the Court no longer has jurisdiction of this matter
because [Laura] filed an appeal on July 13, 2021.” Neither
party filed a notice of appeal following the court’s July 30
order resolving Trevor’s motion.
ASSIGNMENTS OF ERROR
Laura assigns that the district court erred in (1) ordering
joint physical custody; (2) denying alimony; (3) failing to
include income from all sources when calculating child sup-
port; (4) excluding retention shares, dividends, and apprecia-
tion of investment accounts from the marital estate; (5) fail-
ing to apply the time rule to premarital retention shares; and
(6) determining that the appreciation of various investment
accounts was passive.
On cross-appeal, Trevor assigns that the district court erred
in (1) including a portion of Laura’s personal student loan debt
in the marital estate, (2) granting in part Laura’s motion to
alter or amend, (3) denying Trevor an opportunity to be heard
on his motion to reconsider, (4) failing to make reimbursement
of work- and education-related childcare expenses reciprocal,
and (5) ordering Trevor to pay $10,000 toward Laura’s attor-
ney fees.
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. Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d
829 (2019).
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KINGSTON V. KINGSTON
Cite as 31 Neb. App. 201ANALYSIS
[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. Id. Prior to oral argument
in this case, both parties were instructed to prepare arguments
on the jurisdictional issue. Counsel for Laura conceded that
whether this court has jurisdiction to hear the case depends on
whether Trevor’s June 21, 2021, motion to reconsider qualifies
as a timely motion to alter or amend terminating the time for
appeal under Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2020).
Counsel for Trevor argued that the June 21 motion does qualify
as a timely motion to alter or amend, such that Laura’s July
13 notice of appeal was ineffective because it was filed prior
to the district court’s July 30 order resolving Trevor’s motion.
We agree.
[3,4] An appellate court does not acquire jurisdiction over
an appeal if a party fails to properly perfect it. In re Interest of
Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017). The appel-
late jurisdiction of a court is contingent upon timely compli-
ance with constitutional or statutory methods of appeal. Id. To
perfect an appeal, § 25-1912(1) requires that a notice of appeal
be filed “‘within thirty days after the entry of such judgment,
decree, or final order’” appealed from. In re Interest of Luz
P. et al., 295 Neb. at 824, 891 N.W.2d at 659. We have held
that the timely filing of a notice of appeal is a jurisdictional
requirement. Id.
Under § 25-1912(3),
[t]he running of the time for filing a notice of appeal
shall be terminated as to all parties (a) by a timely motion
for new trial . . . (b) by a timely motion to alter or amend
a judgment . . . or (c) by a timely motion to set aside
the verdict or judgment . . . and the full time for appeal
fixed by subsection (1) of this section commences to run
from the entry of the order ruling upon the motion filed
pursuant to subdivision (a), (b), or (c) of this subsec-
tion. When any motion terminating the time for filing a
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KINGSTON V. KINGSTON
Cite as 31 Neb. App. 201notice of appeal is timely filed by any party, a notice of
appeal filed before the court announces its decision upon
the terminating motion shall have no effect, whether
filed before or after the timely filing of the terminating
motion. A new notice of appeal shall be filed within the
prescribed time after the entry of the order ruling on
the motion.
In this case, there were two terminating motions filed in
quick succession within 10 days of the entry of the initial May
27, 2021, decree: (1) Laura’s motion to alter or amend or, in
the alternative, a motion for new trial; and (2) Trevor’s motion
for order nunc pro tunc, which sought substantive alteration of
the judgment and was treated as a motion to alter or amend.
Thus, the time for filing an appeal from the May 27 decree
was terminated and commenced again following the entry of
the court’s June 14 order resolving those motions. The central
jurisdictional question in this case is the effect of Trevor’s
subsequent motion to reconsider filed on June 21, which was
7 days after the entry of the June 14 order. If Trevor’s motion
qualifies as a timely motion to alter or amend that order, then
the time for appeal was again terminated and recommenced
following the court’s resolution of that motion on July 30. See
Crawford v. Crawford, 18 Neb. App. 890, 896, 794 N.W.2d
198, 203 (2011) (trial court’s order substantively altering initial
decree created “new judgment” subject to statutory right to
seek timely alteration or amendment thereof).
[5] A determination as to whether a motion, however titled,
should be deemed a motion to alter or amend a judgment
depends upon the contents of the motion, not its title. McEwen
v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120(2019). 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 substan-
tive alteration of the judgment. See McEwen v. Nebraska State
College Sys., supra. The Nebraska Supreme Court reaffirmed
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KINGSTON V. KINGSTON
Cite as 31 Neb. App. 201that a motion to reconsider may be treated as a motion to alter
or amend so long as it is timely filed and seeks substantive
alteration of a judgment. See Bryson L. v. Izabella L., 302 Neb.
145, 921 N.W.2d 829 (2019).
In this case, Trevor’s motion to reconsider requested various
forms of relief in the alternative, all of which sought substan-
tive alteration of the June 14, 2021, order with regard to the
court’s handling of Laura’s student loan debt. Furthermore,
the motion was timely filed within 10 days of the entry of the
June 14 order. Thus, Trevor’s motion constitutes the functional
equivalent of a motion to alter or amend that was filed within
10 days of a judgment and thus terminated the time to file an
appeal. Accordingly, Laura’s July 13 notice of appeal, filed
before the court resolved Trevor’s motion, was ineffective. See,
§ 25-1912(3); State v. Blair, 14 Neb. App. 190, 707 N.W.2d
8 (2005). Because neither party filed a new notice of appeal
within 30 days of the court’s July 30 order resolving Trevor’s
motion, this court is without jurisdiction to consider the issues
raised by both parties in this appeal.
CONCLUSION
We conclude that Trevor’s June 21, 2021, motion to recon-
sider qualified as a timely motion to alter or amend terminating
the time for appeal until resolution of that motion on July 30.
Accordingly, Laura’s July 13 notice of appeal was ineffective,
as the judgments appealed from were not final and appealable
at that time. Without a timely, effective notice of appeal from
a final, appealable judgment, this court is without jurisdiction
to consider the issues raised by both parties in this appeal. As a
result, the appeal and the cross-appeal are dismissed.
Appeal dismissed.