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

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. 145Bryson 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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302 Nebraska R eports
BRYSON L. v. IZABELLA L.
Cite as 302 Neb. 145full 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. 145physical 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. 145Later 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.- 149 -
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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
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BRYSON L. v. IZABELLA L.
Cite as 302 Neb. 145which 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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Cite as 302 Neb. 145amend 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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BRYSON L. v. IZABELLA L.
Cite as 302 Neb. 145days 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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BRYSON L. v. IZABELLA L.
Cite as 302 Neb. 1452018.” 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.