Tilson v. Tilson , 299 Neb. 64 ( 2018 )


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    03/02/2018 01:12 AM CST
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    TILSON v. TILSON
    Cite as 
    299 Neb. 64
    Jayson H. Tilson, appellant, v. Erica M. Tilson,
    appellee, and K imberly L. H ill,
    Intervenor-appellee.
    ___ N.W.2d ___
    Filed February 16, 2018.   No. S-17-468.
    1.	 Jurisdiction: Appeal and Error. When a jurisdictional question does
    not involve a factual dispute, its determination is a matter of law, which
    requires an appellate court to reach a conclusion independent of the
    decision made by the lower court.
    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: Final Orders: Time: Appeal and Error. To vest an
    appellate court with jurisdiction, the notice of appeal must be filed
    within 30 days of the entry of the final order.
    4.	 Final Orders: Appeal and Error. Under 
    Neb. Rev. Stat. § 25-1902
    (Reissue 2016), the three types of final orders which may be reviewed
    on appeal are (1) an order affecting a substantial right in an action, when
    such order in effect determines the action and prevents a judgment;
    (2) an order affecting a substantial right made in a special proceed-
    ing; and (3) an order made upon a summary application in an action
    after judgment.
    5.	 Actions: Modification of Decree. Proceedings regarding modification
    of a marital dissolution are special proceedings.
    6.	 Actions: Divorce. An application to modify the terms of a divorce
    decree is not the commencement of an action. It constitutes a continua-
    tion of the suit for dissolution of marriage.
    7.	 Final Orders: Appeal and Error. An order affects a substantial right
    when the right would be significantly undermined or irrevocably lost by
    postponing appellate review.
    8.	 Divorce: Jurisdiction: Final Orders: Appeal and Error. Generally,
    when multiple issues are presented to the district court for simultane-
    ous disposition in the same separate yet connected proceeding within
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    the court’s continuing jurisdiction over a dissolution decree, the court’s
    determination of fewer than all the issues presented is not a final order
    for the purpose of an appeal.
    9.	 Final Orders. An order merely preserving the status quo pending a
    further order is not final.
    Appeal from the District Court for Lancaster County: Robert
    R. Otte, Judge. Appeal dismissed.
    Matt Catlett, of Law Office of Matt Catlett, for appellant.
    David P. Kyker for appellee Kimberly L. Hill.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Miller-Lerman, J.
    I. NATURE OF CASE
    In this appeal, Jayson H. Tilson addresses the March 31,
    2017, denial of that portion of his “complaint” and associ-
    ated motion asking the district court for Lancaster County
    to declare void a dissolution decree that it had issued more
    than a year before. He argues that the decree is void because
    prior to the entry of the decree, he had filed a motion to dis-
    miss the petition for dissolution, which he asserts was self-
    executing under 
    Neb. Rev. Stat. § 25-602
     (Reissue 2016). But
    Jayson’s notice of appeal is from an order issued on April 4,
    denying his requests for various temporary orders and retain-
    ing for decision Jayson’s application to modify the custody
    provisions of the decree. We conclude that the April 4 order
    was not final. Therefore, we dismiss this appeal for lack
    of jurisdiction.
    II. BACKGROUND
    1. Dissolution
    In September 2014, Jayson filed a complaint for dissolution
    of his marriage to Erica M. Tilson. The record does not reflect
    that Erica filed an answer, but she made a general appear-
    ance before the court. Following a hearing, the court issued
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    a temporary order awarding custody of the parties’ minor
    children to Erica’s mother, Kimberly L. Hill (Kimberly). The
    court granted Jayson and Erica supervised parenting time and
    ordered them both to pay Kimberly temporary child support.
    The court allowed Kimberly to intervene and appointed a
    guardian ad litem for the minor children. Kimberly and her
    husband filed a complaint, asking for grandparent visitation
    and custody of the children. There is no certificate of service
    attached to the complaint.
    Subsequently, on November 16, 2015, at 9 p.m., Jayson
    filed a motion to dismiss his complaint for dissolution. The
    next morning, on November 17, Kimberly filed a praecipe
    asking the court to issue summons and deliver to Jayson a
    copy of the complaint for grandparent visitation, at the hearing
    scheduled at 10 a.m., on November 17. The record contains
    two “Process Service Returns” from the sheriff’s office of a
    “Copy of COMPLAINT,” with the service and return charges
    paid by Kimberly’s counsel. The documents reflect that Jayson
    and Erica were personally served copies of the complaint on
    November 17.
    The hearing was held as scheduled on November 17, 2015,
    with Jayson in attendance. Referring to the November 17 hear-
    ing, the court’s order states “[u]pon motion of [Jayson’s] attor-
    ney . . . the Plaintiff’s motion to dismiss is withdrawn.”
    The court issued a consent decree of dissolution on December
    8, 2015. The decree ordered the continuation of the children’s
    legal and physical custody with Kimberly, with set parenting
    time for Jayson and Erica. Jayson was ordered to pay $200
    per month “toward work-related childcare expenses,” in the
    event they were not subsidized. Erica was ordered to pay to
    Kimberly $100 in monthly child support.
    2. Contempt
    Approximately 10 months later, on October 18, 2016, the
    court found Jayson in contempt for failing to comply with
    his obligation under the decree to contribute to the children’s
    childcare expenses.
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    3. Declaratory R elief,
    Modification, and H abeas
    (a) The “Complaint”
    On February 24, 2017, Jayson filed a “Complaint to Vacate
    or Modify, for Declaratory Judgment, and/or for Writ of Habeas
    Corpus.” The “complaint” was filed under the same case num-
    ber as the dissolution decree, and in the same court.
    Jayson asserted that the dissolution decree was void by
    virtue of his November 16, 2015, motion to dismiss. Based
    on this assertion, he sought an order of the court declaring
    the dissolution decree and “all orders flowing therefrom” null
    and void.
    Under the rubric of habeas corpus relief, Jayson alleged that
    the award of temporary custody of the children with Kimberly
    was unlawful, because it violated the parental preference prin-
    ciple. He asked for a writ of habeas corpus placing the custody
    of the children with him.
    Alternatively to an order declaring the dissolution void,
    Jayson sought an order modifying the decree so as to place
    the children in his custody. Jayson alleged a change in circum-
    stances. In particular, he alleged that Kimberly was neglect-
    ing the children and that Erica was in jail awaiting crimi-
    nal charges.
    Kimberly filed an answer generally denying the allegations
    and asking that the matter be dismissed. No ruling on the
    motion to dismiss is found in the record.
    (b) Motion for Declaratory Relief
    and Temporary Orders
    On March 10, 2017, Jayson filed a “Motion for Declaratory
    Relief or Temporary Suspension of Implementation and
    Enforcement of Decree, Temporary Custody, Temporary Child
    Support, Temporary Restraining Orders.” The district court
    referred to this motion as “Filing 14.”
    Specifically, Jayson moved for a declaration that the decree
    of dissolution and all orders flowing therefrom are void and
    of no effect. In support of this relief, Jayson repeated his
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    assertion that his motion to dismiss the complaint for disso-
    lution was self-executing and therefore deprived the court of
    jurisdiction to issue the dissolution decree.
    “[I]n lieu” of such declaratory relief, Jayson moved for
    orders (1) temporarily suspending enforcement of the decree as
    it relates to the care, custody, control, and support of the minor
    children; (2) temporarily awarding Jayson exclusive custody
    of the children; (3) temporarily prohibiting Erica from having
    parenting time; (4) temporarily prohibiting Erica from having
    access to medical and education records; (5) temporarily pro-
    hibiting Kimberly from having visitation with the children; (6)
    temporarily prohibiting Kimberly from having access to the
    children’s medical or education records; and (7) temporarily
    requiring Erica to pay Jayson child support and share in medi-
    cal and childcare expenses.
    In support of this “temporary” relief, Jayson alleged that the
    parental preference principle prohibited the award of custody
    of the children to Kimberly when he had not been found to be
    unfit. He further alleged that Erica was unfit to have custody
    and that it was contrary to the children’s best interests for
    Kimberly to have visitation.
    (c) March 31, 2017, Order
    On March 31, 2017, the court overruled that part of Jayson’s
    “Filing 14” requesting that the court declare the dissolution
    decree void. The court’s order, signed and file stamped on
    March 31, incorporates its docket entry, stating that “[t]he part
    of the motion requesting declaratory relief (vacating the Decree
    of Dec[.] 8, 2015) is overruled.” Also on March 31, the court
    denied Jayson’s requests for full temporary custody and sus-
    pension of child support while the case was pending.
    The “custody case” was set for a trial to be held on August
    21, 2017.
    (d) April 4, 2017, Order
    On April 4, 2017, the court issued another order. The
    April 4 order states that “[t]his proceeding came before the
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    court for consideration of pending matters.” (Emphasis sup-
    plied.) And “[u]pon consideration of the issue(s) presented,
    the court made the docket entry . . .” as follows: “At Filing
    14 is [Jayson’s] Motion for Declaratory Relief Or Temporary
    Suspension Of Implementation And Enforcement Of Decree,
    Temporary Custody, Temporary Child Support, Temporary
    Restraining Orders. The motion was argued and submitted on
    3/31/17. The Motion is overruled. See Order re Docket Entry
    in file.”
    (e) Notice of Appeal
    On May 3, 2017, Jayson filed a notice of appeal, stating that
    he was appealing the April 4 order. That is the appeal currently
    before us.
    4. Orders Subsequent to
    Notice of A ppeal
    The proceedings continued after the May 3, 2017, notice
    of appeal was filed. Kimberly filed an amended answer to
    Jayson’s “complaint,” setting forth a cross-complaint for a
    reduction in Jayson’s parenting time, for his visitation to be
    supervised, and for an award of child support. On May 30,
    the court issued an order denying a motion by Jayson to con-
    tinue trial and to prohibit Kimberly from serving subpoenas
    upon the Nebraska Department of Health and Human Services
    and “Educare of Lincoln.” The court also granted Kimberly’s
    request for a protective order.
    After a hearing, on June 20, 2017, the court sustained
    Kimberly’s motion to modify parenting time to a “5/2 sched-
    ule” “for this temporary order.” But the court explained that
    to “encourage civil collaboration,” Kimberly’s attorney was
    to confer with Jayson’s attorney and the guardian ad litem.
    “After doing so, [Kimberly’s attorney] shall submit a proposed
    order as to temporary custody.” The court overruled motions
    by Jayson for sanctions and attorney fees and to reconsider the
    court’s appointment of the guardian ad litem.
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    On June 28, 2017, the court issued an order sustaining
    Kimberly’s motion for modification of parenting time. That is
    the last order in the record.
    III. ASSIGNMENT OF ERROR
    Jayson claims that the district court erred when it denied
    his “February 24, 2017, motion” to declare the dissolution
    decree void.
    IV. STANDARD OF REVIEW
    [1] When a jurisdictional question does not involve a
    factual dispute, its determination is a matter of law, which
    requires an appellate court to reach a conclusion independent
    of the decision made by the lower court.1
    V. ANALYSIS
    [2,3] Before reaching the legal issues presented for review,
    it is our duty to determine whether we have jurisdiction over
    this appeal.2 In this case, it is necessary for us to determine
    whether the April 4, 2017, order, from which Jayson appeals,
    is final.3 To vest an appellate court with jurisdiction, the notice
    of appeal must be filed within 30 days of the entry of the
    final order.4 In contrast, if an order is interlocutory, immediate
    appeal from the order is disallowed so that courts may avoid
    piecemeal review, chaos in trial procedure, and a succession of
    appeals granted in the same case to secure advisory opinions to
    govern further actions of the trial court.5
    [4] The three types of final orders which may be reviewed
    on appeal are (1) an order affecting a substantial right in an
    action, when such order in effect determines the action and
    1
    Anderson v. Finkle, 
    296 Neb. 797
    , 
    896 N.W.2d 606
     (2017).
    2
    See, e.g., Rafert v. Meyer, 
    298 Neb. 461
    , 
    905 N.W.2d 30
     (2017).
    3
    See 
    Neb. Rev. Stat. §§ 25-1911
     and 25-1912 (Reissue 2016).
    4
    State v. Jacques, 
    253 Neb. 247
    , 
    570 N.W.2d 331
     (1997). See, also, 
    Neb. Rev. Stat. § 25-1931
     (Reissue 2016).
    5
    State v. Jacques, 
    supra note 4
    .
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    prevents a judgment; (2) an order affecting a substantial right
    made in a special proceeding; and (3) an order made upon a
    summary application in an action after judgment.6
    [5,6] Proceedings regarding modification of a marital disso-
    lution are special proceedings.7 Jayson’s filings with the same
    district court that issued the dissolution decree, under the same
    case number, must be construed as motions asking the court
    for relief pursuant to its continuing jurisdiction over the decree,
    as set forth by the modification statutes.8 An application to
    modify the terms of a divorce decree is not the commencement
    of an action.9 It constitutes a continuation of the suit for dis-
    solution of marriage.10
    The jurisdictional question presented is whether the April
    4, 2017, order from which this appeal is taken affected a sub-
    stantial right. A substantial right is an essential legal right,
    not a mere technical right.11 It is a right of substance.12 It is
    not enough that the right itself be substantial; the effect of the
    order on that right must also be substantial.13 The duration of
    the order is therefore relevant to whether it affects a substan-
    tial right.14
    [7,8] Most fundamentally, an order affects a substantial
    right when the right would be significantly undermined or
    irrevocably lost by postponing appellate review.15 Generally,
    6
    See 
    Neb. Rev. Stat. § 25-1902
     (Reissue 2016).
    7
    See Steven S. v. Mary S., 
    277 Neb. 124
    , 
    760 N.W.2d 28
     (2009).
    8
    See 
    Neb. Rev. Stat. §§ 42-364
    (6) and 42-365 (Reissue 2016).
    9
    Ruehle v. Ruehle, 
    161 Neb. 691
    , 
    74 N.W.2d 689
     (1956).
    10
    See, Smith-Helstrom v. Yonker, 
    253 Neb. 189
    , 
    569 N.W.2d 243
     (1997);
    Nimmer v. Nimmer, 
    203 Neb. 503
    , 
    279 N.W.2d 156
     (1979).
    11
    In re Adoption of Madysen S. et al., 
    293 Neb. 646
    , 
    879 N.W.2d 34
     (2016).
    12
    
    Id.
    13
    
    Id.
    14
    See 
    id.
    15
    See 
    id.
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    when multiple issues are presented to the district court for
    simultaneous disposition in the same “separate yet connected
    proceeding[]”16 within the court’s continuing jurisdiction over
    a dissolution decree, the court’s determination of fewer than all
    the issues presented is not a final order for the purpose of an
    appeal.17 This is because, absent unusual circumstances, post-
    poning appellate review until all the issues presented under the
    application to modify have been decided will not significantly
    undermine the rights affected by the order.
    Huffman v. Huffman18 illustrates the foregoing principles.
    In Huffman, we concluded that an order denying the father’s
    request for a change of custody was not final when the
    court had not yet decided the father’s alternative request to
    modify the visitation provisions of the decree. We said that
    when the modification application pertains to more than one
    issue involving children affected by the dissolution decree,
    a court’s resolution of one issue raised by the application,
    but retention or reservation of jurisdiction for disposition
    of another issue or issues raised by the application does not
    constitute a final judgment, order, or decree for the purpose
    of an appeal.19
    In Schepers v. Schepers,20 we likewise held that an order
    determining the merits of an application to modify custody
    was not final when the issue of child support was still pending.
    16
    John P. Lenich, What’s So Special About Special Proceedings? Making
    Sense of Nebraska’s Final Order Statute, 
    80 Neb. L. Rev. 239
    , 289 n.227
    (2001).
    17
    See, Wagner v. Wagner, 
    275 Neb. 693
    , 
    749 N.W.2d 137
     (2008); Schepers
    v. Schepers, 
    236 Neb. 406
    , 
    461 N.W.2d 413
     (1990); Huffman v. Huffman,
    
    236 Neb. 101
    , 
    459 N.W.2d 215
     (1990); Gerber v. Gerber, 
    218 Neb. 228
    ,
    
    353 N.W.2d 4
     (1984); Goldenstein v. Goldenstein, 
    110 Neb. 788
    , 
    195 N.W. 110
     (1923); McCaul v. McCaul, 
    17 Neb. App. 801
    , 
    771 N.W.2d 222
    (2009); Paulsen v. Paulsen, 
    10 Neb. App. 269
    , 
    634 N.W.2d 12
     (2001).
    18
    Huffman v. Huffman, 
    supra note 17
    .
    19
    See 
    id.
    20
    Schepers v. Schepers, 
    supra note 17
    .
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    The Nebraska Court of Appeals, in Paulsen v. Paulsen,21 found
    that a similar order was not final, explaining:
    There are practical reasons why an order in a special
    proceeding which determines less than all of the issues
    submitted to the court is not final. The primary reason
    of course is to prevent piecemeal appeals. There can be
    no doubt that custody and the amount of support for the
    children of a family are closely related issues. . . . There
    is no reason why both issues cannot be decided at the
    same time in an action where both are put [at] issue. . . .
    In short, there is no reason not to require a resolution of
    both custody and support to make the order final.
    In Johnson v. Johnson,22 the Court of Appeals clarified that
    it does not matter if the issue or issues yet undecided were
    explicitly requested in the application to modify the decree,
    when the issue or issues were “an inherent part of a custody
    modification action.”
    Without commenting on the extent to which Jayson’s
    requests properly fell under the district court’s continuing
    jurisdiction, in his February 24, 2017, “Complaint to Vacate or
    Modify, for Declaratory Judgment, and/or for Writ of Habeas
    Corpus,” Jayson presented several issues in the proceedings.
    He asked the court to declare the dissolution decree void and
    to vacate it. He asked the court to issue a writ of habeas corpus
    placing the children in his custody. Alternatively to vacating
    the decree or issuing a writ of habeas corpus, Jayson asked
    the court to modify the dissolution decree to place the children
    in his custody, due to an alleged change in circumstances.
    Finally, Jayson moved for several temporary orders, apparently
    pending the court’s determination of his underlying requests
    for relief.
    In its order on April 4, 2017, from which this appeal is
    taken, the court stated that it was overruling “pending matters”
    21
    Paulsen v. Paulsen, 
    supra note 17
    , 
    10 Neb. App. at 275
    , 
    634 N.W.2d at 17
    .
    22
    Johnson v. Johnson, 
    15 Neb. App. 292
    , 296, 
    726 N.W.2d 194
    , 197 (2006).
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    under “Filing 14.” As noted above, “Filing 14” asked for a dec-
    laration that the dissolution decree was void and, in the alterna-
    tive, for several temporary orders. “Filing 14” did not ask for a
    writ of habeas corpus or for modification of the decree due to
    a change of circumstances.
    Because in the court’s order issued on March 31, 2017, it
    had overruled Jayson’s request to declare the dissolution decree
    void, the April 4 order’s overruling of the pending matters in
    “Filing 14” necessarily refers to Jayson’s requests for tem-
    porary relief. Specifically, the April 4 order denied Jayson’s
    requests for (1) temporary suspension of the decree as it relates
    to the care, custody, control, and support of the minor children;
    (2) a temporary award to Jayson of exclusive custody of the
    children; (3) a temporary denial of any parenting time for Erica
    and prohibiting Erica from having access to medical and edu-
    cation records; (4) a temporary cessation of grandparent visita-
    tion; and (5) a temporary award of child support.
    At the time of the April 4, 2017, order, the court had not
    yet addressed Jayson’s request for a writ of habeas. Likewise,
    the court had not considered the merits of Jayson’s alternative
    request for modification of the decree to place the children per-
    manently in his custody. On the contrary, it is clear that at the
    time of the April 4 order, the court had retained the “custody
    case” for trial. Thus, the court’s April 4 order determined fewer
    than all the issues submitted and it retained jurisdiction for dis-
    position of another issue raised by the application.
    [9] Furthermore, the April 4, 2017, order pertained only to
    requests for temporary relief. In several cases, we have held
    that under the facts presented, orders temporarily affecting
    a parent’s custodial, visitation, or educational rights are not
    final.23 Despite the importance of the rights affected, such
    orders of limited duration failed to have a substantial effect
    23
    See, In re Interest of Danaisha W. et al., 
    287 Neb. 27
    , 
    840 N.W.2d 533
    (2013); Gerber v. Gerber, 
    supra note 17
    ; In re Interest of Angeleah M.
    & Ava M., 
    23 Neb. App. 324
    , 
    871 N.W.2d 49
     (2015); In re Interest of
    Nathaniel P., 
    22 Neb. App. 46
    , 
    846 N.W.2d 681
     (2014).
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    on those rights. And here, by denying Jayson’s motion for
    temporary relief, the April 4 order essentially left unchanged
    the status quo of the dissolution decree. We have said in other
    contexts that an order merely preserving the status quo pending
    a further order is not final.24
    In his discussion of our jurisdiction in this case, Jayson
    relies on case law wherein we have held that an order denying
    a motion to vacate is a final order.25 We find Jayson’s reli-
    ance on this proposition unavailing, because the order before
    us is not the March 31, 2017, order denying that “part of the
    motion requesting declaratory relief (vacating the Decree of
    Dec[.] 8, 2015),” but, rather, the April 4 order. Furthermore,
    if the March 31 order is a final order, then Jayson failed to
    perfect an appeal from that order within 30 days as required
    by § 25-1931. If the March 31 order is not a final order, then
    it is appealable once the court has determined all the issues
    pending under these current modification proceedings. Either
    way, the finality of the March 31 order does not control the
    jurisdictional question in this appeal; that is, whether the April
    4 order is final.
    We conclude that the April 4, 2017, ruling was not a final
    order, because it did nothing more than deny requests for
    temporary relief, preserving the status quo pending the court’s
    determination of the other issues raised in the proceedings.
    Accordingly, we have no jurisdiction over this appeal.
    VI. CONCLUSION
    For the foregoing reasons, we dismiss the appeal.
    A ppeal dismissed.
    Wright, J., not participating.
    24
    See Shasta Linen Supply v. Applied Underwriters, 
    290 Neb. 640
    , 
    861 N.W.2d 425
     (2015).
    25
    See, Capitol Construction v. Skinner, 
    279 Neb. 419
    , 
    778 N.W.2d 721
    (2010); State v. Hausmann, 
    277 Neb. 819
    , 
    765 N.W.2d 219
     (2009).