Despain v. Despain ( 2015 )

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VI. CONCLUSION
We find no merit to Sellers’ assigned errors. His assertions
of ineffective assistance of trial and appellate counsel failed to
establish any prejudice resulting from the alleged deficiencies
of his counsel. And his claim of instructional error regarding
the premeditated murder theory of first degree murder was not
presented as a claim of ineffective assistance of counsel before
the district court. We affirm the denial of postconviction relief
without an evidentiary hearing.
Affirmed.
Wright, J., participating on briefs.
Abigail K. Despain, appellee, v.
William E. Despain, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-13-1133.
1. Judgments: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. New Trial: Appeal and Error. Regarding motions for new trial, an appel-
late court will uphold a trial court’s ruling on such a motion absent an abuse
of discretion.
3. Divorce: Property Division: Appeal and Error. In actions for the dissolution
of marriage, the division of property is a matter entrusted to the discretion of the
trial judge, whose decision will be reviewed de novo on the record and will be
affirmed in the absence of an abuse of discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
5. Jurisdiction: Appeal and Error. 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.
6. Jurisdiction: Time: Notice: Appeal and Error. To vest an appellate court with
jurisdiction, a party must timely file a notice of appeal.
7. Statutes: Appeal and Error. Statutory language is to be given its plain and
ordinary meaning, and interpretation will not be used to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
8. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008),
the equitable division of property is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital, setting aside the nonmarital
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property to the party who brought that property to the marriage. The second step
is to value the marital assets and marital liabilities of the parties. The third step
is to calculate and divide the net marital estate between the parties in accordance
with the principles contained in § 42-365.
9. ____: ____. The ultimate test in determining the appropriateness of the divi-
sion of property is fairness and reasonableness as determined by the facts of
each case.
Appeal from the District Court for Saunders County: Mary
C. Gilbride, Judge. Affirmed as modified.
Mark A. Steele, of Steele Law Office, for appellant.
John H. Sohl for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Abigail K. Despain, the appellee, and William E. Despain,
the appellant, were married in June 2012, and Abigail filed
her complaint for the dissolution of marriage in the district
court for Saunders County in August 2012. After trial, the dis-
trict court filed its decree of dissolution of marriage including
orders regarding property division. William appeals.
The issues in this appeal are whether William’s appeal was
timely and whether the district court correctly calculated the
division of property. We determine that although William’s
motion for new trial was filed before the entry of judgment,
it was filed after announcement of the decision. Under Neb.
Rev. Stat. § 25-1144.01 (Reissue 2008), it is treated as filed
after the entry of judgment. And, thus, the motion was effec-
tive and the appeal is timely. We further determine that the
district court erred in that portion of the decree which divided
the property, and we modify the decree as indicated below. We
affirm as modified.
STATEMENT OF FACTS
Abigail and William were married on June 23, 2012. On
August 27, Abigail filed her complaint for the dissolution
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of the marriage. No children were born to the parties during
the marriage.
Prior to their marriage, Abigail and William purchased a
house together. The parties sold the house after Abigail had
filed for divorce but prior to trial. The net sale proceeds were
$12,453.34, and the parties divided the proceeds equally prior
to trial, each receiving $6,226.67.
A trial was held on June 10, 2013. Abigail and William each
testified and presented evidence at trial. As noted, at the time
of trial, Abigail and William had already divided the proceeds
from the sale of the house. According to the evidence, they had
no joint indebtedness.
Abigail presented evidence that in purchasing the house
with William, she had used her premarital funds to pay the
earnest deposit of $1,000, the closing costs of $4,422, and the
water deposit of $150. Abigail stated that in total, she had used
$5,572 of her premarital funds to help purchase the house.
Abigail also presented evidence that without her knowledge
at the time, the parties had received a refund in the amount of
$70 for the overpayment of closing costs, and that William had
kept the $70.
William stated at trial that he had made repairs and improve-
ments to the house using his premarital funds in the amount
of $3,509.92. The district court did not credit this claim, and
William does not assign error to this finding on appeal.
The record shows that after trial, on August 14, 2013, the
district court sent the parties an unsigned document captioned
“Journal Entry” (unsigned journal entry) containing the sub-
stance of its decision and ordered counsel for Abigail to pre-
pare a dissolution decree. This unsigned journal entry specifi-
cally states that unsigned copies were sent to counsel for each
party on August 14.
In the unsigned journal entry, regarding “property division,”
the court found that Abigail is entitled to the return of premari-
tal funds used to purchase the house, in the amount of $5,422;
the return of the water deposit, in the amount of $150, which
was paid from her premarital funds; and one-half of the over-
payment of closing costs, in the amount of $35. The unsigned
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journal entry states that William shall make an equalization
payment which flows from those findings. The unsigned jour-
nal entry states:
[Abigail’s attorney] shall prepare the decree herein. It
shall be reviewed by [William’s attorney] and presented
to the court for signature not later than September 16,
2013. The decree shall append the appropriate calculation
of the division of the estate in accordance with paragraph
2. In order to avoid confusion as to appeal time, [t]his
order shall be forwarded to counsel both unsigned and
unfiled. A signed copy will be filed contemporaneously
with the entry of the decree.
Following the distribution of the unsigned journal entry on
August 14, 2013, but before the decree was filed on October
21, William filed a motion for new trial on October 16 in which
he claimed that the district court’s decision regarding division
of property failed to recognize the division of proceeds from
the sale of the home which had occurred and that an equaliza-
tion payment based on this failure is erroneous.
On October 21, 2013, the district court filed its “Decree
of Dissolution of Marriage,” which included orders reflecting
its provisions. In the dissolution decree, the court stated that
Abigail and William’s marriage was irretrievably broken and
should be dissolved. Abigail’s birth name was restored to her.
Regarding the division of property, the decree stated:
[Abigail] should be entitled to the return of premarital
funds used to purchase the marital home in the amount
of $5,422.00. [Abigail] should be entitled to the return
of the water deposit in the amount of $150.00 which was
paid from premarital funds, less any amounts deducted
for water usage during the marriage. [Abigail] should be
entitled to one half of the overpayment of closing costs in
the amount of $35.00.
In the decree, the court ordered William to pay Abigail $5,607
in order to equalize the division of property. The court did
not award alimony to either party and stated that each party
shall be responsible for his or her own attorney fees and
court costs.
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The court signed a copy (signed journal entry) of the
unsigned journal entry first distributed on August 14, 2013, on
October 18 and filed it on October 21 along with the decree.
On November 27, 2013, the court filed its order overruling
William’s motion for new trial. The order states in its entirety:
“NOW ON this 27th day of November, 2013, this matter comes
before the Court on [William’s] Motion for New Trial. The
Court finds that the Decree has been signed. The Motion for
New Trial is overruled.”
On December 26, 2013, William filed his notice of appeal
from the November 27 order overruling his motion for
new trial.
ASSIGNMENT OF ERROR
William claims, restated, that the district court erred when it
overruled his motion for new trial in which he claimed that the
court erred in its method of calculating the equalization pay-
ment that William owes Abigail.
STANDARDS OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law. Carney
v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
[2] Regarding motions for new trial, we will uphold a trial
court’s ruling on such a motion absent an abuse of discre-
tion. First Express Servs. Group v. Easter, 286 Neb. 912, 840
N.W.2d 465 (2013).
[3,4] In actions for the dissolution of marriage, the division
of property is a matter entrusted to the discretion of the trial
judge, whose decision will be reviewed de novo on the record
and will be affirmed in the absence of an abuse of discretion.
Plog v. Plog, 20 Neb. Ct. App. 383, 824 N.W.2d 749 (2012). A
judicial abuse of discretion exists when the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition. Breci v. St. Paul Mercury Ins. Co.,
288 Neb. 626, 849 N.W.2d 523 (2014).
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ANALYSIS
Abigail contends that William’s motion for new trial, filed
before entry of the decree, was a nullity and that as a result,
the notice of appeal was untimely and the appeal should be
dismissed. William claims that the district court erred in over-
ruling his motion for new trial because the district court’s
method of calculating the equalization payment was incor-
rect. We conclude that William’s motion for new trial was an
effective filing pursuant to § 25-1144.01 and that the appeal
is timely. We further determine that the district court erred in
its method of calculating the equalization payment owed by
William to Abigail.
William’s Motion for New Trial.
[5,6] 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. See Huskey v. Huskey,
289 Neb. 439, 855 N.W.2d 377 (2014). To vest an appellate
court with jurisdiction, a party must timely file a notice of
appeal. Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746
(2007). A party must file a notice of appeal within 30 days of
the judgment, decree, or final order from which the party is
appealing. See Neb. Rev. Stat. § 25-1912(1) (Reissue 2008). A
motion for a new trial, however, terminates the time in which
a notice of appeal must be filed. See § 25-1912(3). If the court
denies the motion for new trial, and assuming that the motion
for new trial is an effective filing and not a nullity, the party
has 30 days from the entry of the order denying the motion to
file a notice of appeal. Meister v. Meister, supra.
Section 25-1912, upon which the foregoing discussion is
based provides:
(1) The proceedings to obtain a reversal, vacation, or
modification of judgments and decrees rendered or final
orders made by the district court, including judgments
and sentences upon convictions for felonies and misde-
meanors, shall be by filing in the office of the clerk of
the district court in which such judgment, decree, or final
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order was rendered, within thirty days after the entry of
such judgment, decree, or final order, a notice of inten-
tion to prosecute such appeal signed by the appellant or
appellants or his, her, or their attorney of record and,
except as otherwise provided in sections 25-2301 to
25-2310, 29-2306, and 48-641, by depositing with the
clerk of the district court the docket fee required by sec-
tion 33-103.
....
(3) The running of the time for filing a notice of
appeal shall be terminated as to all parties (a) by a timely
motion for a new trial under section 25-1144.01, (b) by
a timely motion to alter or amend a judgment under sec-
tion 25-1329, or (c) by a timely motion to set aside the
verdict or judgment under section 25-1315.02, and the
full time for appeal fixed in 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 subsection.
Section 25-1144.01, mentioned in § 25-1912, provides:
A motion for a new trial shall be filed no later than ten
days after the entry of the judgment. A motion for a new
trial filed after the announcement of a verdict or decision
but before the entry of judgment shall be treated as filed
after the entry of judgment and on the day thereof.
William filed his motion for new trial before the court
filed the dissolution decree, and the decree is the judgment
in this dissolution case. See Rice v. Webb, 287 Neb. 712, 844
N.W.2d 290 (2014). Abigail contends that William’s motion
for new trial filed before entry of the judgment was a nul-
lity and that therefore, the running time for filing a notice of
appeal from the decree did not terminate awaiting disposition
of a new trial motion. According to Abigail, the notice of
appeal was filed more than 30 days after entry of judgment
and was untimely. Applying § 25-1144.01, we conclude the
appeal was timely, and we reject Abigail’s contention that we
lack jurisdiction.
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The relevant dates for our analysis are as follows:
• June 10, 2013: trial conducted.
• August 14, 2013: unsigned journal entry sent to parties’
attorneys.
• October 16, 2013: William’s motion for new trial filed.
• October 21, 2013: dissolution decree filed.
• October 21, 2013: signed journal entry filed.
• October 21, 2013: William’s motion for new trial treated as
filed under § 25-1144.01.
• November 27, 2013: order overruling William’s motion for
new trial filed.
• December 26, 2013: William’s notice of appeal filed.
[7] The plain terms of § 25-1144.01 are dispositive of the
jurisdictional issue. Section 25-1144.01 as quoted above had
been amended in 2004 by 2004 Neb. Laws, L.B. 1207, to add
the second sentence. As noted above, the second sentence of
§ 25-1144.01 provides: “A motion for a new trial filed after the
announcement of a verdict or decision but before the entry of
judgment shall be treated as filed after the entry of judgment
and on the day thereof.” Statutory language is to be given its
plain and ordinary meaning, and interpretation will not be used
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Weber v. North Loup River Pub.
Power, 288 Neb. 959, 854 N.W.2d 263 (2014).
The 2004 amendment to § 25-1144.01 was apparently
adopted in reaction to this court’s decision in Macke v. Pierce,
263 Neb. 868, 643 N.W.2d 673 (2002). In Macke, we deter-
mined that under the version of § 25-1144.01 in effect prior
to the 2004 amendment, a motion for new trial was effective
and timely only if it was filed within 10 days after the entry
of a judgment. Thus, under Macke, a motion for new trial filed
before the entry of a judgment was a nullity, as was the trial
court’s ruling on such a motion for new trial. Under Macke,
such a motion for new trial did not terminate the time for tak-
ing an appeal. However, under the 2004 amendment, a motion
for new trial filed after the announcement of the decision but
before the entry of the judgment is no longer a nullity.
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As we have noted, the court distributed the unsigned journal
entry on August 14, 2013, containing its substantive decision,
and it further provided:
[Abigail’s attorney] shall prepare the decree herein. It
shall be reviewed by [William’s attorney] and presented
to the court for signature not later than September 16,
2013. The decree shall append the appropriate calculation
of the division of the estate in accordance with paragraph
2. In order to avoid confusion as to appeal time, [t]his
order shall be forwarded to counsel both unsigned and
unfiled. A signed copy will be filed contemporaneously
with the entry of the decree.
(Emphasis supplied.)
We view the copies of the August 14, 2013, unsigned journal
entry that were sent to the parties as the court’s “announcement
of a . . . decision” as that expression is used in § 25-1144.01.
Hence, William’s motion for new trial filed after the announce-
ment of the decision “but before the entry of judgment shall
be treated as filed after the entry of judgment and on the day
thereof.” See § 25-1144.01. William’s motion for new trial was
effective. In sum, William’s motion for new trial was treated
as having been filed after judgment on October 21, the same
date the decree was filed, and was properly before the district
court. Time to appeal from the decree was terminated until the
district court ruled on the motion for new trial. The notice of
appeal filed within 30 days after the ruling on the motion for
new trial was timely.
For completeness, we note that William suggests on appeal
that the district court failed to properly consider his motion
for new trial, perhaps because the court’s order of denial was
brief. The district court’s November 27, 2013, order overrul-
ing the motion for new trial stated in its entirety: “NOW ON
this 27th day of November, 2013, this matter comes before the
Court on [William’s] Motion for New Trial. The Court finds
that the Decree has been signed. The Motion for New Trial
is overruled.” As we view the order, the court considered the
motion for new trial and found it to be without merit. The
language in the order signaled the court’s recognition that the
motion for new trial had been filed before entry of the decree
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but, by implicit application of § 25-1144.01, that the decree
had been signed and that the court could therefore properly
proceed to the merits of the motion for new trial. We find no
error in this procedure.
Equalization Payment Ordered
by the District Court.
William claims that the district court erred in the method
it employed to calculate the equalization payment owed by
William to Abigail and that the court erred when it overruled
his motion for new trial on this basis. We agree with William.
Regarding motions for new trial, we will uphold a trial
court’s ruling on such a motion absent an abuse of discre-
tion. First Express Servs. Group v. Easter, 286 Neb. 912,
840 N.W.2d 465 (2013). As explained in more detail below,
we determine that the district court erred in the method of
calculating the equalization payment, and accordingly, we
determine that the district court abused its discretion when
it overruled William’s motion for new trial challenging the
equalization calculation. In particular, in this case, the court
ordered William to pay Abigail an equalization payment of
$5,607, whereas we determine it should have ordered him to
pay $2,856.
[8,9] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the
equitable division of property is a three-step process. The
first step is to classify the parties’ property as marital or
nonmarital, setting aside the nonmarital property to the party
who brought that property to the marriage. The second step is
to value the marital assets and marital liabilities of the par-
ties. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles
contained in § 42-365. See, Sitz v. Sitz, 275 Neb. 832, 749
N.W.2d 470 (2008); Plog v. Plog, 20 Neb. Ct. App. 383, 824
N.W.2d 749 (2012). The ultimate test in determining the
appropriateness of the division of property is fairness and
reasonableness as determined by the facts of each case. Plog
v. Plog, supra.
In calculating the amount of the equalization payment, the
district court first determined the parties’ total property and
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then divided the total property equally between the two par-
ties. In an attempt to equalize the distribution, the court then
ordered William to pay Abigail $5,607, which represented
Abigail’s premarital funds used to purchase the house, Abigail’s
premarital funds used to pay the water deposit, and half of the
overpayment of closing costs returned by the bank. Because
Abigail’s evidence showed that the closing costs were paid by
Abigail’s premarital funds, the district court erred and should
have ordered that the entire $70 refund be set off to Abigail as
premarital property, and our calculations in the remainder of
this opinion treat the $70 accordingly. See Gress v. Gress, 271
Neb. 122, 710 N.W.2d 318 (2006) (stating that burden of proof
to show property is premarital remains with person making
claim in dissolution proceeding).
The district court erred in two fundamental ways in cal-
culating the equalization payment. First, the district court
failed to account for the fact that the parties had already
divided and distributed the proceeds from the sale of the
house during the pendency of the dissolution proceedings.
The sale proceeds amounted to $12,453.34, and after dividing
the proceeds equally, Abigail and William had each received
$6,226.67 before trial. The district court erred by not recogniz-
ing this division and distribution when it calculated the equal-
ization payment.
Second, the court failed to properly follow the initial step
of the three-step process set forth above. After determining
the parties’ total property, which amounted to $12,523.34,
the court should have identified and separated the marital
assets and nonmarital assets. Then, the court should have
subtracted and set aside to Abigail her premarital funds used
for the downpayment on the house, the closing costs, and the
water deposit, and the $70 refund, all of which totaled $5,642,
from the total property of $12,523.34, leaving $6,881.34 as
the marital assets to be divided between the parties, with
each receiving $3,440.67. By failing to properly follow this
process, and failing to recognize the prior distribution of the
house sale proceeds, the court erred in calculating the amount
owed by William to Abigail in order to equalize division of
the estate.
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After equalization, Abigail should have received $9,082.67
(consisting of premarital property equaling $5,642 plus one-
half of the marital estate equaling $3,440.67), and William,
with no premarital property, should have received one-half of
the marital estate (equaling $3,440.67). Because the house sale
proceeds were equally split before trial, Abigail and William
had each already received $6,226.67 attributable to the sale of
the house. And because William had already received the $70
closing cost refund, his receipts before trial totaled $6,296.67.
To award Abigail the $9,082.62 she was due, and to award
William the $3,440.67 to which he was entitled, the court
should have ordered William to pay Abigail $2,856 instead of
$5,607 as ordered.
CONCLUSION
We conclude that under § 25-1144.01, William’s motion for
new trial filed after the district court’s announcement of the
decision but before its entry of the decree was an effective fil-
ing and that the appeal is timely. With respect to property divi-
sion, we determine that the district court erred in the method
it employed when it calculated the equalization payment owed
by William to Abigail. We therefore affirm the district court’s
dissolution decree but modify the portion of the decree that
ordered William to pay Abigail $5,607 and instead order that
William pay Abigail $2,856.
Affirmed as modified.
Cassel, J., concurring.
INTRODUCTION
I join the court’s opinion, but write separately to empha-
size three points. First, the word “announcement,” as it is
used in the current statutes governing appeals and motions
for new trial, is not synonymous with the word “pronounce-
ment” as it was used in the former statute defining rendition
of judgment. Second, a premature motion for new trial is still
possible despite the enactment of the savings clause. Finally,
because “announcement” can take many forms, counsel rely-
ing upon the statutory savings clause for a motion for new
trial should be sure that the “announcement” appears in
the record.
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“ANNOUNCEMENT” VERSUS
“PRONOUNCEMENT”
Before 1999, “rendition” of a judgment was defined as a
court’s or judge’s two-part act of “pronouncing judgment,
accompanied by the making of a notation on the trial docket.”1
And although “entry” of judgment required the court clerk
to spread the relief upon the court’s journal,2 the time for
appeal began to run with “rendition,”3 and not from “entry”
unless there was no “rendition.” And the first part of “rendi-
tion”—the “pronouncement”—was well settled in our case law.
Pronouncement occurred when the court or judge made an oral
pronouncement of judgment in open court.4
But the 1999 Legislature refined “rendition” as the court’s
or judge’s act of “making and signing a written notation.”5
Thus, an oral pronouncement in open court was no longer part
of the definition of “rendition” of judgment. At the same time,
the Legislature amended the appeals statute so that the time for
appeal would run from the “entry” of judgment rather than its
“rendition.”6 And it redefined “entry” as the court clerk’s act of
“plac[ing] the file stamp and date” upon the judgment.7
The 1999 Legislature also introduced the first savings clause
into our general appeal statute.8 This savings clause treated a
notice of appeal filed after the “announcement” of a decision,
but before the entry of the judgment, as having been filed after
the entry of judgment and on the date of entry.9
Although the 1999 Legislature failed to add an equiva-
lent savings clause regarding motions for new trial, the 2004
1
See Neb. Rev. Stat. § 25-1301(2) (Reissue 1989) (emphasis supplied).
2
See § 25-1301(3).
3
See Neb. Rev. Stat. § 25-1912(1) (Reissue 1989).
4
See, e.g., Tri-County Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526
N.W.2d 668 (1995).
5
§ 25-1301(2) (Reissue 2008). See 1999 Neb. Laws, L.B. 43, § 3.
6
See 1999 Neb. Laws, L.B. 43, § 8.
7
§ 25-1301(3). See 1999 Neb. Laws, L.B. 43, § 3.
8
See 1999 Neb. Laws, L.B. 43, § 8.
9
See Neb. Rev. Stat. § 25-1912(2) (Supp. 1999) (emphasis supplied).
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Legislature remedied that omission.10 Thereafter, and currently,
the savings clause states that “[a] motion for a new trial filed
after the announcement of a verdict or decision but before the
entry of judgment shall be treated as filed after the entry of
judgment and on the day thereof.”11
The change from “pronouncement” to “announcement” was
not accidental or meaningless. The Nebraska Court of Appeals
has recognized that “announcement” can come orally from
the bench, from trial docket notes, from file-stamped but
unsigned journal entries, or from signed journal entries which
are not file stamped.12 And the Court of Appeals acknowl-
edged that its list was not all inclusive.13 At oral argument in
the case before us, counsel relied upon decisions discussing
“pronouncement” under the former statutes to argue that an
unsigned journal entry setting forth the general terms of the
court’s decision, although served on the parties’ attorneys, did
not qualify as an “announcement.” This court’s decision today
rejects that argument.
Thus, my first point is that the old term “pronouncement”
and the new term “announcement” are not synonymous.
“Pronouncement” occurred when the court or judge orally pro-
nounced judgment in open court. “Announcement” can occur
in or out of court. It includes pronouncements, but also con-
templates other means of communication.
PREMATURE MOTION
FOR NEW TRIAL
As the court’s opinion correctly observes, our decision in
Macke v. Pierce14 appears to have prompted the Legislature
to provide a savings clause for some motions for new trial
filed before the entry of judgment. The Legislature evidently
recognized that a potential trap existed where a decision was
clearly made but for some reason the entry of a judgment was
10
See 2004 Neb. Laws, L.B. 1207, § 3.
11
Neb. Rev. Stat. § 25-1144.01 (Reissue 2008).
12
See State v. Brown, 12 Neb. Ct. App. 940, 687 N.W.2d 203 (2004).
13
Id.
14
Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (2002).
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delayed. The Legislature had already enacted a savings clause
for notices of appeal filed after announcement of a decision but
before the entry of judgment. And it clearly wanted to provide
a similar savings clause for a motion for new trial.
But a premature motion for new trial is still possible. If the
motion is filed before the “announcement” of the verdict or
decision, the savings clause does not apply.15 And our deci-
sion in Macke v. Pierce would still dictate that such a motion
is a nullity.16
CAUTION TO PRACTITIONERS
As I have explained, “announcement” of a decision can
occur in many ways. Some of these ways may not be apparent
on the trial court’s record.
Appellate courts cannot ignore a question of whether the
savings clause applies. Before reaching the legal issues pre-
sented for review, it is the duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it.17
Thus, where a motion for new trial is filed before the “entry”
of judgment, an appellate court will examine the record to
determine whether an “announcement” of a decision occurred
before the filing of the motion.
If the motion was filed before any announcement, the motion
will be deemed void. Thus, in many instances, the time for tak-
ing an appeal will not be tolled by the motion for new trial.
And this unfortunate circumstance may not be discovered until
it is too late. It is well settled that an untimely motion for new
trial is ineffectual, does not toll the time for perfection of an
appeal, and does not extend or suspend the time limit for fil-
ing a notice of appeal.18 Consequently, a premature motion for
new trial can easily result in the irrevocable loss of the right
to appeal.
It is incumbent upon the appellant to present a record sup-
porting the errors assigned; absent such a record, an appellate
15
See § 25-1144.01.
16
See Macke v. Pierce, supra note 14.
17
Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).
18
Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
Nebraska Advance Sheets
HUGHES v. SCHOOL DIST. OF AURORA 47
Cite as 290 Neb. 47
court will affirm the lower court’s decision regarding those
errors.19 Because the appellant has the duty to present a record
supporting the assigned errors, he or she necessarily bears the
burden of presenting a record demonstrating that the appellate
court has jurisdiction.
If the party appealing from a judgment after the denial of
a motion for new trial is relying upon the savings clause of
§ 25-1144.01, the party must ensure that the “announcement”
of decision appears in the record. If the trial court’s record
does not include it, the party seeking to appeal must make sure
that it properly becomes part of the record. And the party must
then make sure that it is included in the record presented to the
appellate court.
CONCLUSION
The savings clause of § 25-1144.01 is a useful tool to avoid
losing the right to appeal. But it has no effect when a motion
is filed before announcement or where the record does not
show an announcement before entry of judgment. I remind the
practicing bar that failing to ensure that such an announce-
ment is included in the record might result in an irrevocable
loss of an appeal, which in turn is likely to lead to unpleas-
ant consequences.
19
Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013).
John Hughes, appellant, v. School District
of Aurora, Nebraska, a Nebraska
political subdivision, appellee.
___ N.W.2d ___
Filed February 6, 2015. No. S-13-1144.
1. Summary Judgment: Appeal and Error. An appellate court affirms a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was