Mann v. Mann ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/02/2021 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets
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MANN v. MANN
Cite as 29 Neb. App. 548Asia R. Mann, now known as Asia R.
Harrison, appellee, v. Brian L.
Mann, appellant.
___ N.W.2d ___
Filed March 2, 2021. No. A-19-1194.
1. Child Custody: Jurisdiction: Appeal and Error. The question whether
jurisdiction should be exercised under the Uniform Child Custody
Jurisdiction and Enforcement Act is entrusted to the discretion of the
trial court and is reviewed by an appellate court de novo on the record
for abuse of discretion.
2. ____: ____: ____. In considering whether jurisdiction exists under the
Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdic-
tional question that does not involve a factual dispute is determined by
an appellate court as a matter of law, which requires an appellate court
to reach a conclusion independent from the trial court.
3. 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.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
5. Final Orders: Appeal and Error. Among the three types of final orders
which may be reviewed on appeal is an order that affects a substantial
right made during a special proceeding.
6. ____: ____. An order affects a substantial right when the right would
be significantly undermined or irrevocably lost by postponing appel-
late review.
7. Child Custody: Final Orders: Appeal and Error. Child custody deter-
minations are special proceedings for purposes of determining whether
an order is a final, appealable order.
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MANN v. MANN
Cite as 29 Neb. App. 5488. Child Custody: Jurisdiction. Jurisdiction over a child custody proceed-
ing is governed exclusively by the Uniform Child Custody Jurisdiction
and Enforcement Act.
9. Child Custody: Jurisdiction: States. Jurisdiction over custody
matters having interstate dimension must be determined indepen-
dently by application of the Uniform Child Custody Jurisdiction and
Enforcement Act.
10. Courts: Jurisdiction. Jurisdictional priority is neither a matter of sub-
ject matter jurisdiction nor personal jurisdiction. The subsequent court
does not lack judicial power over the general class or category to which
the proceedings belong and the general subject involved in the action
before the court.
11. Child Custody. An action concerning custody of the child is not termi-
nated, resolved, or disposed of until the age of majority.
12. ____. An application to modify a custody determination is not an
independent proceeding, but is simply a proceeding supplementary or
auxiliary to the original action in which certain matters were subject
to modification.
13. Judgments: Equity: Time. A litigant seeking vacation or modification
of a judgment after term may take one of two routes. The litigant may
proceed either under Neb. Rev. Stat. § 25-2001 (Reissue 2016) or under
the district court’s independent equity jurisdiction.
14. Motions to Vacate: Proof: Appeal and Error. An appellate court will
reverse a decision on a motion to vacate or modify a judgment only if
the litigant shows that the district court abused its discretion.
15. Judgments: Words and Phrases. The operative definition of “irregular-
ity” limits the term to the doing or not doing that, in the conduct of a
suit at law, which, conformably with the practice of the court, ought or
ought not to be done.
16. ____: ____. A judgment marred by irregularity is one rendered contrary
to the course of law and practice of the court.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky,
Pohren & Rogers, L.L.P., for appellant.
Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for
appellee.
Moore, Bishop, and Welch, Judges.
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MANN v. MANN
Cite as 29 Neb. App. 548Welch, Judge.
INTRODUCTION
Brian L. Mann appeals the order of the Douglas County
District Court granting the request of Asia R. Mann, now
known as Asia R. Harrison, for partial summary judgment
which vacated a portion of the parties’ 2018 dissolution decree
granting Brian “in loco parentis” status over Asia’s biological
child Maleah D. On appeal, Brian’s sole assignment of error
is the court erred in determining that it did not have subject
matter jurisdiction over Maleah due to the court’s erroneous
interpretation of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). For the reasons set forth herein,
we affirm.
STATEMENT OF FACTS
In 2009, Asia engaged in a relationship with Patrick D. that
resulted in the out-of-wedlock birth of Maleah. When Asia and
Patrick’s relationship ended, the Superior Court of California,
County of Ventura, entered an order in August 2010 that
awarded Asia sole legal and physical custody over Maleah and
granted Patrick reasonable rights of visitation.
In March 2011, Asia married Brian, and the parties had two
other children. In February 2016, Asia filed a complaint for
dissolution of marriage in Nebraska in the Douglas County
District Court. However, over 2 years later in March 2018,
which was prior to the district court’s resolution of the parties’
dissolution action, Patrick filed a complaint in the Douglas
County District Court, which complaint sought to register the
California judgment. The district court registered the California
judgment in Nebraska in April 2018.
Although the California judgment which set forth Patrick’s
reasonable rights of visitation with Maleah had been regis-
tered in Nebraska in April 2018, a few months later, in July,
the district court resolved Asia and Brian’s dissolution action
by entering a stipulated decree, which stated that Brian had
acted in loco parentis to Maleah, granted Brian and Asia
joint physical custody of Maleah, and granted Asia sole legal
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Cite as 29 Neb. App. 548custody over Maleah with the exception that Asia could not
change Maleah’s school district without Brian’s consent or the
district court’s approval. The stipulated decree also awarded
Brian and Asia joint legal and physical custody of their two
other children and outlined alternating parenting time between
Brian and Asia for all three children.
In July 2019, Brian filed a complaint to modify, and in
August, Asia filed an answer and counterclaim which alleged
Maleah was not a child of Brian and Asia’s marriage and
requested modification of custody transferring sole legal and
physical custody of the children to Asia. In September, Asia
filed a motion for partial summary judgment, and later that
same month, Brian filed a competing motion for partial sum-
mary judgment, both of which related to that portion of the
parties’ stipulated dissolution decree governing the custody
of Maleah.
A hearing on the competing motions for partial summary
judgment was held in October 2019. During that hearing, the
district court took judicial notice of the entire case file and
received exhibits 1 through 5, which exhibits included the
California judgment, the certified application to register the
foreign judgment, the Nebraska order confirming the registra-
tion of the foreign judgment, Asia’s affidavit supporting her
motion for summary judgment, and Patrick’s affidavit support-
ing Asia’s motion for summary judgment. No argument was
presented to the district court on the matter.
In November 2019, the district court entered an order grant-
ing Asia’s motion for partial summary judgment and vacating
its previous orders regarding Maleah, finding it did not have
subject matter jurisdiction to make a custody determination
governing Maleah. In its order, the district court relied on
Blanco v. Tonniges, 2 Neb. App. 520, 511 N.W.2d 555 (1994),
for the proposition that “‘when a parent unilaterally removes
a child from the state of a court that has rendered a decree
concerning custody of the child, the continuing jurisdiction
of the prior court is exclusive, and other states do not have
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Cite as 29 Neb. App. 548jurisdiction to modify the custody decree.’” (Emphasis omit-
ted.) The district court articulated that the California court
made the initial custody determination concerning Maleah,
and had not relinquished its continuing exclusive jurisdic-
tion, and that a significant connection to California remained
because Patrick continued to reside there. The district court
also noted that the parties could not waive a defect in subject
matter jurisdiction, especially when Patrick was not a party
to the present case. Additionally, the district court found that
granting Brian in loco parentis status had a significant effect
on Patrick’s rights.
Finally, the district court determined that it did not have
jurisdiction to modify the California judgment or to make an
initial custody determination regarding Maleah, and it sus-
tained Asia’s motion for partial summary judgment and vacated
that part of the dissolution decree which had granted Brian
in loco parentis rights over Maleah. In December 2019, the
district court clarified its order by denying Brian’s motion for
partial summary judgment and voiding everything pertaining
to the custody and parenting time of Maleah in its earlier dis-
solution decree due to the district court’s lack of subject matter
jurisdiction. Brian has timely appealed to this court.
ASSIGNMENT OF ERROR
Brian’s sole assignment of error is the court erred in
determining that it did not have subject matter jurisdiction
over Maleah due to the court’s erroneous interpretation of
the UCCJEA.
STANDARD OF REVIEW
[1,2] The question whether jurisdiction should be exercised
under the UCCJEA is entrusted to the discretion of the trial
court and is reviewed by an appellate court de novo on the
record for abuse of discretion. In re Guardianship of S.T.,
300 Neb. 72, 912 N.W.2d 262 (2018). In considering whether
jurisdiction exists under the UCCJEA, a jurisdictional ques-
tion that does not involve a factual dispute is determined
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Cite as 29 Neb. App. 548by an appellate court as a matter of law, which requires an
appellate court to reach a conclusion independent from the
trial court. In re Guardianship of S.T., supra.ANALYSIS
Jurisdiction
[3] 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. Chief Indus. v. Great
Northern Ins. Co., 259 Neb. 771, 612 N.W.2d 225 (2000).
This claim involves a request by Brian to modify a dissolu-
tion decree entered by the district court in July 2018. Although
the request to modify involves many issues that have not been
resolved, Brian appeals from a partial summary judgment
order which voided all portions of the court’s July 2018 decree
involving the custody of Maleah on the basis that the court
lacked subject matter jurisdiction to make custodial decisions
due to jurisdictional power retained by a California court. Asia
argues that because the partial summary judgment order does
not constitute a final, appealable order, this court lacks juris-
diction to hear this appeal.
[4-6] The question of whether an order which does not
finally resolve all issues may constitute a final order was
recently addressed by the Nebraska Supreme Court in Simms v.
Friel, 302 Neb. 1, 921 N.W.2d 369 (2019). In Simms v. Friel,
the Supreme Court held:
For an appellate court to acquire jurisdiction of an appeal,
there must be a final order or final judgment entered
by the court from which the appeal is taken. Jennifer
T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
Because the temporary order did not dismiss the action
or make a final determination on the merits, it was not a
final judgment. See id. The jurisdictional question before
us is thus whether we are presented with a final order.
Relevant here, among the three types of final orders
which may be reviewed on appeal is an order that
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MANN v. MANN
Cite as 29 Neb. App. 548affects a substantial right made during a special proceed-
ing. See Neb. Rev. Stat. § 25-1902 (Reissue 2016). A
“substantial right” is an essential legal right, not a mere
technical right. See Steven S. v. Mary S., 277 Neb. 124,
760 N.W.2d 28 (2009). A substantial right is affected if
the order affects the subject matter of the litigation, such
as diminishing a claim or defense that was available to
an appellant prior to the order from which an appeal is
taken. Id. It is not enough that the right itself be substan-
tial; the effect of the order on that right must also be sub-
stantial. See Cano v. Walker, 297 Neb. 580, 901 N.W.2d
251 (2017). Whether the effect of an order is substantial
depends on whether it affects with finality the rights of
the parties in the subject matter. Id. Most fundamentally,
an order affects a substantial right when the right would
be significantly undermined or irrevocably lost by post-
poning appellate review. Tilson v. Tilson, 299 Neb. 64,
907 N.W.2d 31 (2018).
Where visitation, custody, and the parent-child rela-
tionship are involved, we have previously looked to juve-
nile cases for guidance to determine whether the grant or
denial of visitation and custody affects a substantial right.
See Steven S. v. Mary S., supra. In doing so, we have said
that “‘“[t]he question . . . whether a substantial right of
a parent has been affected by an order in juvenile court
litigation is dependent upon both the object of the order
and the length of time over which the parent’s relation-
ship with the juvenile may reasonably be expected to be
disturbed.”’” Id. at 130, 760 N.W.2d at 33-34.
302 Neb. at 4-5, 921 N.W.2d at 373.
Here, the district court’s voiding of a prior custody deter-
mination involving Maleah fits the definition of a substantial
right. The court’s ruling, which previously bestowed certain
custodial rights to Brian under the doctrine of in loco parentis
was permanently voided due to the district court’s determi-
nation that it lacked subject matter jurisdiction to enter the
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Cite as 29 Neb. App. 548prior order. Unlike a temporary order in a juvenile proceeding,
the district court’s November 2019 order permanently dimin-
ished Brian’s right to custody under the prior order, which
right would be significantly undermined by postponing appel-
late review. We hold that the court’s partial summary judgment
order affects a substantial right of Brian.
[7] Asia does not contest that the matter does not affect a
substantial right. Instead, she argues that a summary judg-
ment is not a special proceeding and that therefore, the court’s
order does not qualify as a final order. But Asia misconstrues
the meaning of a special proceeding. The request for a partial
summary judgment is a procedural device available under the
rules of civil procedure. The modification action itself is the
proceeding. And the Nebraska Supreme Court has already held
that child custody determinations are special proceedings for
purposes of determining whether an order is a final, appealable
order. See Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d
28 (2009).
Because we find that the district court’s November 2019
partial summary judgment order, as clarified in its December
order, affects a substantial right in a special proceeding, we
find that this is a final, appealable order which conferred juris-
diction on this court to review the legal issues presented for
review in that order.
Void Order
Brian’s sole assignment of error is that the district court
erred in finding it could vacate its prior custodial order govern-
ing Maleah, which order was entered in the July 2018 dissolu-
tion decree, because the court erroneously determined that it
did not have subject matter jurisdiction to enter the order.
Brian’s argument is based upon the treatment of subject
matter jurisdiction among courts having concurrent inter-
state jurisdiction as provided in the UCCJEA. He argues that
although a California court originally obtained jurisdiction
governing the custody determination of Maleah, that juris-
diction did not deprive the Nebraska court of subject matter
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Cite as 29 Neb. App. 548jurisdiction to enter its July 2018 order. Accordingly, Brian
argues that because the district court had subject matter juris-
diction to enter the July 2018 dissolution decree, that decree
was not void and the court erred in attempting to vacate por-
tions of the July 2018 dissolution decree in the subsequent
modification action filed in July 2019.
[8,9] Before we address Brian’s specific jurisdictional argu-
ment here, we first provide some background that is relevant to
this determination.
Jurisdiction over a child custody proceeding is gov-
erned exclusively by the UCCJEA. Jurisdiction over cus-
tody matters having interstate dimension must be deter-
mined independently by application of the UCCJEA.
The UCCJEA was enacted to serve the following pur-
poses: (1) to avoid interstate jurisdictional competition
and conflict in child custody matters, (2) to promote
cooperation between courts of other states so that a cus-
tody determination can be rendered in a state best suited
to decide the case in the interest of the child, (3) to dis-
courage the use of the interstate system for continuing
custody controversies, (4) to deter child abductions, (5)
to avoid relitigation of custody issues, and (6) to facilitate
enforcement of custody orders.
Carter v. Carter, 276 Neb. 840, 845, 758 N.W.2d 1, 6-7 (2008).
Here, in 2010, the California court entered a custody order
for Maleah, which order granted legal and physical custody to
Asia with reasonable rights of visitation to Patrick, Maleah’s
father. Neither party to this action contests that the California
court first obtained jurisdiction to make a child custody deter-
mination governing Maleah.
Neb. Rev. Stat. § 43-1239 (Reissue 2016) of the UCCJEA
provides:
(a) Except as otherwise provided in section 43-1241,
a court of this state which has made a child custody
determination consistent with section 43-1238 or 43-1240
has exclusive, continuing jurisdiction over the determina-
tion until:
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Cite as 29 Neb. App. 548(1) a court of this state determines that neither the
child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection
with this state and that substantial evidence is no longer
available in this state concerning the child’s care, protec-
tion, training, and personal relationships; or
(2) a court of this state or a court of another state deter-
mines that the child, the child’s parents, and any person
acting as a parent do not presently reside in this state.
(b) A court of this state which has made a child custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that determina-
tion only if it has jurisdiction to make an initial determi-
nation under section 43-1238.
California has a similar statute found at Cal. Fam. Code § 3422(Deering 2020).
Again, neither party disputes that the California court had
exclusive continuing jurisdiction over this matter.
Neb. Rev. Stat. § 43-1240 (Reissue 2016) of the UCCJEA
provides:
Except as otherwise provided in section 43-1241, a
court of this state may not modify a child custody deter-
mination made by a court of another state unless a
court of this state has jurisdiction to make an initial
determination under subdivision (a)(1) or (a)(2) of sec-
tion 43-1238 and:
(1) the court of the other state determines it no ­longer
has exclusive, continuing jurisdiction under section
43-1239 or that a court of this state would be a more
­convenient forum under section 43-1244; or
(2) a court of this state or a court of the other state
determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in the
other state.
[10] Brian does not dispute that § 43-1240 would gov-
ern any attempt by himself or Asia to modify the California
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Cite as 29 Neb. App. 548court’s decree, nor does Brian argue that the California court
no longer has exclusive continuing jurisdiction as provided by
statute. Brian simply argues that even though the California
court had continuing exclusive jurisdiction, this did not deprive
the Nebraska district court of subject matter jurisdiction. In
support of that argument, Brian cites to Susan L. v. Steven L.,
273 Neb. 24, 729 N.W.2d 35 (2007), which establishes that
states have “concurrent” jurisdiction over child custody deter-
mination under the UCCJEA, and Charleen J. v. Blake O.,
289 Neb. 454, 855 N.W.2d 587 (2014), which held that, when
courts have concurrent jurisdiction, their authority is governed
by the doctrine of jurisdictional priority. Brian then cites to the
Nebraska Supreme Court’s jurisdictional statement governing
the doctrine of jurisdictional priority:
Some confusion has developed from our failure to
always distinguish the improper exercise of jurisdic-
tion under judicial comity from a lack of subject matter
jurisdiction. We have sometimes said, under the doctrine
of jurisdictional priority, that a second court lacks “juris-
diction.” We mean that a subsequent court that decides
a case already pending in another court with concur-
rent subject matter jurisdiction errs in the exercise of
its jurisdiction. Jurisdictional priority is neither a matter
of subject matter jurisdiction nor personal jurisdiction.
The subsequent court does not lack judicial power over
the general class or category to which the proceedings
belong and the general subject involved in the action
before the court.
Charleen J. v. Blake O., 289 Neb. at 462-63, 855 N.W.2d
at 595.
Based on the doctrine of judicial priority, Brian argues
that because the Nebraska district court had subject matter
jurisdiction in rendering the July 2018 dissolution decree, the
court simply erred in the exercise of subject matter jurisdic-
tion over custody issues related to Maleah. Brian then argues
that this made the July 2018 dissolution decree voidable, but
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Cite as 29 Neb. App. 548not void. And Brian argues that because neither party appealed
from the July 2018 decree, any attempt by a party to have
the order voided in the subsequent modification proceedings
constitutes a collateral attack on the original decree which the
law does not allow. See Sanders v. Frakes, 295 Neb. 374, 888
N.W.2d 514 (2016).
Assuming without deciding that the Nebraska district court
had subject matter jurisdiction when it entered the July 2018
dissolution decree, it then vacated the decree during the
course of the modification action filed in 2019. The Nebraska
court, upon learning it should not have exercised jurisdiction
on issues related to Maleah’s custody due to the California
court’s continuing jurisdiction, most certainly had the power
to vacate that portion of the decree if it was brought during
the original dissolution action filed in 2018. See Charleen J. v.
Blake O., supra (affirming district court’s order vacating prior
rulings due to another court’s jurisdictional priority). But did
the Nebraska district court retain the power to vacate its prior
order through the modification action? We hold that it did.
[11,12] As the Nebraska Supreme Court held in Charleen J.
v. Blake O.:
In custody matters, we speak of “‘continuing jurisdic-
tion.’” In that sense, the action concerning custody of
the child is not terminated, resolved, or disposed of until
the age of majority. We have said that an application to
modify a custody determination is not an independent
proceeding, but is simply a proceeding supplementary or
auxiliary to the original action in which certain matters
were subject to modification.
Other courts have more specifically held that a court
which renders judgment for alimony, custody, or child
support incident to an action for divorce or paternity
retains the exclusive exercise of jurisdiction for purposes
of modifying such a decree. In other words, where the
first district court has issued a custody order, the issue
of the child’s custody remains pending in that court for
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in such circumstances wished to proceed on a motion to
modify in another county, they would first request from
the court that issued the original order a transfer of venue
or otherwise gain the original court’s assent to another
court’s exercise of jurisdiction.
289 Neb. at 464-65, 855 N.W.2d at 596.
Because the district court retained jurisdiction over custody
matters raised and decided in the 2018 decree, the subsequent
modification action cannot be described as a collateral attack.
See Sanders v. Frakes, 295 Neb. at 379-80, 888 N.W.2d at
520 (holding “[a] collateral attack on a judgment is where the
judgment is attacked in a way other than a proceeding in the
original action to have it vacated, reversed, or modified, or
a proceeding in equity to prevent its enforcement”). Having
retained jurisdiction over the matter, the question becomes
whether the district court retained the authority to vacate its
prior order, albeit out of term.
Neb. Rev. Stat. § 25-2001(4) (Reissue 2016) provides that
“[a] district court may vacate or modify its own judgments or
orders after the term at which such judgments or orders were
made . . . for mistake, neglect, or omission of the clerk, or
irregularity in obtaining a judgment or order.”
[13-16] In Roemer v. Maly, 248 Neb. 741, 743-45, 539 N.W.2d
40, 43-44 (1995), the Nebraska Supreme Court explained:
A litigant seeking vacation or modification of a judg-
ment after term may take one of two routes: The litigant
may proceed either under § 25-2001 or under the district
court’s independent equity jurisdiction. Welch v. Welch,
246 Neb. 435, 519 N.W.2d 262 (1994). This court will
reverse a decision on a motion to vacate or modify a
judgment only if the litigant shows that the district court
abused its discretion. Jarrett v. Eichler, 244 Neb. 310,
506 N.W.2d 682 (1993) [disapproved on other grounds,
Fidler v. Life Care Centers of America, 301 Neb. 724, 919
N.W.2d 903 (2018)].
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Cite as 29 Neb. App. 548Under the auspice of § 25-2001(3), a district court
may vacate or modify its own judgment after the term in
which that judgment was rendered if the moving party
can show “mistake, neglect, or omission of the clerk, or
irregularity in obtaining a judgment or order.” . . .
....
Roemer next attempts to trigger § 25-2001(3) by assert-
ing that an irregularity occurred in obtaining the judgment
or order. Her argument seems to be predicated on the
notion that because a notice is sent for the purpose that it
be received, that purpose is frustrated—and an “irregular-
ity” occurs—when the notice is not received and cause is
not shown.
The operative definition of “irregularity” in our prec-
edent, however, limits the term to “‘[t]he doing or not
doing that, in the conduct of a suit at law, which, con-
formably with the practice of the court, ought or ought
not to be done. . . .’” (Emphasis omitted.) Haen v. Haen,
210 Neb. 380, 382, 314 N.W.2d 276, 277 (1982). A judg-
ment marred by irregularity is one rendered contrary to
the course of law and practice of the court. Haen, supra.
An example of irregularity under these circumstances
would be dismissal for want of prosecution entered with-
out any opportunity to show cause, not failure of counsel
to take notice of opportunity given in accordance with
court rules. The record reveals no deviation by the clerk
from the standard practice of the district court of sending
notice to counsel of record and publishing notice in The
Daily Reporter.
Here, the district court acknowledged that at the time it
entered the 2018 dissolution decree, the court was unaware
of the California order and that the California court retained
exclusive, continuing jurisdiction over Maleah. Pursuant
to § 43-1240 and California’s equivalent statute, Cal. Fam.
Code § 3423 (Deering 2020), “a court of this state may not
modify a child custody determination made by a court of
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Cite as 29 Neb. App. 548another state” under these circumstances. Although this may
not deprive the court of subject matter jurisdiction, as the
Nebraska Supreme Court held in Charleen J. v. Blake O., 289
Neb. 454, 463, 855 N.W.2d 587, 595 (2014), by unknowingly
accepting jurisdiction under these circumstances, it “err[ed]
in the exercise of its jurisdiction.” (Emphasis in original.)
Because the district court erred in the exercise of jurisdiction
and was statutorily precluded from doing so, we concluded
this error fits squarely within the definition in § 25-2001(4)(a)
of an “irregularity in obtaining a judgment or order.” Pursuant
to § 25-2001(4)(a), the district court, which retained jurisdic-
tion over the matter, was authorized to vacate that order once
it was apprised of that irregularity out of term. See Roemer v.
Maly, 248 Neb. 741, 539 N.W.2d 40 (1995) (judgment marred
by irregularity is one rendered contrary to course of law and
practice of court).
Because the district court retained the right to vacate its
prior order and did not abuse its discretion in doing so, Brian’s
argument fails that the court, in vacating that portion of the
2018 dissolution decree governing the custody of Maleah,
lacked the power to do so.
CONCLUSION
In sum, we determined that the district court’s November
2019 partial summary judgment order, as clarified in its
December order, affected a substantial right in a special pro-
ceeding and constituted a final, appealable order which con-
ferred jurisdiction on this court to review the legal issues
presented for review. We then determined that the district court
retained the right in a modification of a dissolution proceed-
ing to vacate a prior order relating to the custody of the minor
child whose custody had been the subject of a prior order by
a California court, which court retained continuing exclusive
jurisdiction over the minor child. Accordingly, we affirm the
district court’s order of partial summary judgment.
Affirmed.