Tilson v. Tilson ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/16/2018 08:12 AM CDT
- 64 -
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
- 65 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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
- 66 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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.
- 67 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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
- 68 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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
- 69 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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.
- 70 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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.
- 71 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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.
- 72 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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. Ct. App. 801, 771 N.W.2d 222
(2009); Paulsen v. Paulsen, 10 Neb. Ct. 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.
- 73 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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. Ct. App. at 275, 634 N.W.2d at 17.
22
Johnson v. Johnson, 15 Neb. Ct. App. 292, 296, 726 N.W.2d 194, 197 (2006).
- 74 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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. Ct. App. 324, 871 N.W.2d 49 (2015); In re Interest of
Nathaniel P., 22 Neb. Ct. App. 46, 846 N.W.2d 681 (2014).
- 75 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
TILSON v. TILSON
Cite as 299 Neb. 64
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).