Stevens v. Stevens , 292 Neb. 827 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/19/2016 09:22 AM CST
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292 Nebraska R eports
STEVENS v. STEVENS
Cite as 292 Neb. 827K imberly L. Stevens, now known as K imberly L. Moore,
appellant, v. M ichael W. Stevens, appellee, and
State of Nebraska, intervenor-appellee.
___ N.W.2d ___
Filed February 19, 2016. No. S-15-219.
1. Jurisdiction. Jurisdiction is a question of law.
2. Judgments: Appeal and Error. An appellate court resolves questions
of law independently of the conclusion reached by the lower court.
3. Jurisdiction: Appeal and Error. An appellate court has the duty to
determine whether it has jurisdiction before reaching the legal issues
presented for review.
4. Judgments: Jurisdiction: Appeal and Error. Orders which specify
that a trial court will or will not exercise its jurisdiction based on
future action or inaction by a party are conditional and therefore
not appealable.
5. Judgments: Final Orders: Appeal and Error. Conditional orders do
not automatically become appealable on the occurrence of the specified
conditions, but they can operate if other conditions have been met, at
which time the court may make a final order.
Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Appeal dismissed.
Phillip G. Wright for appellant.
Kevin F. Duffy and Marc B. Delman, Deputy Sarpy County
Attorneys, and Andrew T. Erickson, Senior Certified Law
Student, for intervenor-appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
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STEVENS v. STEVENS
Cite as 292 Neb. 827Connolly, J.
SUMMARY
After Michael W. Stevens became disabled, the child sup-
port referee recommended that the court reduce his child
support payments. The court adopted the recommendations
“subject to the right of rehearing reserved in the parties if
exception(s) be duly taken within fourteen (14) days,” in
which case “this Order shall be stayed until further Order of
the Court.” Kimberly L. Stevens, now known as Kimberly L.
Moore, the custodial parent, appeals. The order from which
Kimberly appeals was conditional and therefore not final. We
dismiss her appeal for lack of jurisdiction.
BACKGROUND
In 2003, the court dissolved Kimberly and Michael’s mar-
riage. It awarded Kimberly custody of the minor children and
ordered Michael to pay child support.
In 2014, the State, as intervenor, filed a complaint to modify
the child support order in the decree. It alleged that Michael’s
monthly income had materially decreased.
The court referred the matter to a referee, who held a hear-
ing. On February 17, 2015, the referee filed a report recom-
mending that the court decrease Michael’s support obligation.
On the same day, the court entered an order purporting to
approve the recommendations contingent on neither party’s
filing exceptions during the next 2 weeks. The February 17
order provides:
It is ordered that the referee recommendations are
adopted by the Court as its Order, subject to the right of
rehearing reserved in the parties if exception(s) be duly
taken within fourteen (14) days from this date (Neb. Ct.
R. §4-110). In the event that an exception is duly taken
this Order shall be stayed until further Order of the Court.
Kimberly appeals from the February 17, 2015, order.
ASSIGNMENTS OF ERROR
Kimberly argues that the court did not have jurisdiction
over the State’s complaint to modify, because there was a
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STEVENS v. STEVENS
Cite as 292 Neb. 827preexisting support order. She assigns that if the court did have
jurisdiction, it erred by (1) miscalculating Michael’s support
obligation, (2) finding that there was a material change of
circumstances, (3) “[r]etroactively waiving [Michael’s] child
support arrearage,” (4) delegating judicial power to the referee,
and (5) crediting Michael with “Social Security benefits that
may become due.”
STANDARD OF REVIEW
[1,2] Jurisdiction is a question of law.1 We resolve ques-
tions of law independently of the conclusion reached by the
lower court.2
ANALYSIS
[3] We begin by testing our jurisdiction over this appeal. An
appellate court has the duty to determine whether it has juris-
diction before reaching the legal issues presented for review.3
Kimberly argues that the district court lacked jurisdiction
because there was a preexisting support order. But we identify
another jurisdictional problem that is dispositive: The order
from which Kimberly appeals is conditional and therefore
not final.
[4,5] Orders which specify that a trial court will or will
not exercise its jurisdiction based on future action or inac-
tion by a party are conditional and therefore not appealable.4
Such conditional orders have no effect as a final order from
which a party can appeal.5 Conditional orders do not automati-
cally become appealable on the occurrence of the specified
1
In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859
N.W.2d 856 (2015).
2
Id.
3
Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).
4
See, Custom Fabricators v. Lenarduzzi, 259 Neb. 453, 610 N.W.2d 391(2000); State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465(1999); Kroll v. Department of Motor Vehicles, 256 Neb. 548, 590 N.W.2d
861 (1999).
5
Custom Fabricators v. Lenarduzzi, supra note 4.
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STEVENS v. STEVENS
Cite as 292 Neb. 827­conditions.6 But they can operate if other conditions have been
met, at which time the court may make a final order.7
Here, the court conditioned its February 17, 2015, order
“subject to the right of rehearing reserved in the parties if
exception(s) be duly taken within fourteen (14) days from this
date,” in which case “this Order shall be stayed until further
Order of the Court.” When the court made the February 17
order, it was conditional on the future action or inaction of the
parties. It therefore failed to operate in the present and was
not a final, appealable order.8 The court entered no order after
February 17. So we lack jurisdiction.9
Under Neb. Rev. Stat. § 43-1613 (Reissue 2008), the parties
had the “right to take exceptions to the findings and recom-
mendations made by the referee and to have a further hearing
before such court for final disposition.” Our rules give parties
14 days to take exceptions.10 Here, the court purported to adopt
the referee’s report as its order on the same day the referee
filed her report, conditioned on neither party’s filing excep-
tions. We note that, alternatively, the court could have waited
14 days after the referee filed her report to see if either party
filed exceptions before adopting the referee’s recommendations
as its order.
CONCLUSION
The court conditioned the order from which Kimberly
appeals on the parties’ not filing exceptions to the referee’s
report within 14 days. The order was conditional on the future
action or inaction of the parties and was therefore not a final,
appealable order. We dismiss the appeal.
A ppeal dismissed.
6
See Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811
N.W.2d 178 (2012).
7
See id.
8
See State ex rel. Stenberg v. Moore, supra note 4.
9
See Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014).
10
Neb. Ct. R. § 4-110.