Burns v. Burns ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
Michael P. Burns, appellee, v.
K erry E. Burns, appellant.
___ N.W.2d ___
Filed December 1, 2015. No. A-14-789.
1. 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.
2. ____: ____. The question of jurisdiction is a question of law, which an
appellate court resolves independently of the trial court.
3. Records: Pleadings: Presumptions: Appeal and Error. Where there
is no bill of exceptions, an appellate court is limited on review to an
examination of the pleadings. If they are sufficient to support the judg-
ment, it will be presumed on appeal that the evidence supports the trial
court’s orders and judgment.
4. Limitations of Actions: Dismissal and Nonsuit. An action is com-
menced on the date the complaint is filed with the court. The action
shall stand dismissed without prejudice as to any defendant not served
within 6 months from the date the complaint was filed.
5. Modification of Decree. Modification proceedings are initiated by the
filing of a complaint to modify.
6. Complaints: Jurisdiction: Service of Process. A proceeding under
Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2008 & Cum. Supp.
2014) shall be commenced by filing a complaint in the district court.
The proceeding may be heard by the county court or the district court
as provided in Neb. Rev. Stat. § 25-2740 (Reissue 2008). Summons
shall be served upon the other party to the marriage by personal
service or in the manner provided in Neb. Rev. Stat. § 25-517.02
(Reissue 2008).
7. Service of Process: Jurisdiction: Appeal and Error. Nebraska appel-
late courts have strictly construed the requirements of service of sum-
mons for a court to gain jurisdiction.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
8. Service of Process: Notice: Pleadings: Time. A summons notifies the
defendant that in order to defend the lawsuit, an appropriate written
response must be filed with the court within 30 days after service and
that upon failure to do so, the court may enter judgment for the relief
demanded in the petition.
9. Service of Process: Notice: Words and Phrases. Generally, a summons
is an instrument used to provide notice to a party of civil proceedings
and of the opportunity to appear and be heard.
10. Limitations of Actions: Dismissal and Nonsuit. The language provid-
ing that an action shall stand dismissed without prejudice as to any
defendant not served within 6 months from the date the complaint was
filed is self-executing and mandatory.
11. Limitations of Actions: Dismissal and Nonsuit: Service of Process.
Any orders or pleadings filed after a lawsuit has been dismissed by
operation of law for failure to serve the defendant within 6 months are
a nullity.
Appeal from the District Court for Adams County: James
E. Doyle IV, Judge. Judgment vacated, and cause remanded
with directions.
Matt Catlett for appellant.
Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O.,
for appellee.
Irwin, Inbody, and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
This matter comes before us upon the motion for rehear-
ing filed by Kerry E. Burns in response to our memorandum
opinion and judgment on appeal issued on June 3, 2015, in
this case. On July 31, we granted the motion in part, relat-
ing only to whether service of a summons was required and
the effect of Neb. Rev. Stat. § 25-217 (Reissue 2008) on the
court’s jurisdiction. On that same date, we also withdrew
the memorandum opinion. We conclude that Neb. Rev. Stat.
§ 42-364(6) (Cum. Supp. 2014) requires service of summons
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
on a defend­ ant when an application for modification of a
divorce decree is filed and that failure to serve the summons
on Kerry within 6 months of the date of filing the application
for modification deprived the district court of jurisdiction.
BACKGROUND
For purposes of addressing the issues on rehearing, the fol-
lowing facts are pertinent:
Kerry and Michael P. Burns were divorced in May 2004.
The decree was modified in August 2010. Kerry filed a
“Complaint for Modification of Decree” in October 2011,
and the parties purportedly came to an agreement in October
2012. Kerry appealed the district court’s order enforcing the
agreement. While the appeal was pending, Michael filed an
application to modify in June 2013. After unsuccessfully try-
ing to serve Kerry with the application to modify, Michael
filed a motion to appoint a special process server. When
Michael first filed the praecipe, he requested that the sum-
mons and application be forwarded to the sheriff for service.
The sheriff’s return specifically stated she was unable to serve
the summons and the application to modify. Michael then filed
the motion to appoint a special process server; however, this
motion requested only service of the application to modify
and made no mention of the summons. On August 21, a spe-
cial process server signed an affidavit of service of process
certifying that she effectuated personal service on Kerry of the
“Application to Modify, Motion to Appoint Process Server,
Order.” Her affidavit for service of process makes no mention
of a summons.
On September 20, 2013, Kerry filed a “Special Appearance”
asserting a lack of personal jurisdiction. In her special appear-
ance, Kerry asserted that her daughter, and not she, received
the envelope containing the application to modify. Kerry also
asserted that she had never been served with a summons.
In its February 5, 2014, order addressing the issue of juris-
diction, the district court misstated the record and stated that
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
Kerry “averred she was not personally served with sum-
mons, contrary to the sworn statements of the process server.”
(Emphasis supplied.) While the process server’s affidavit does
contradict Kerry’s assertion that her daughter was served rather
than Kerry, the process server does not state that she served
summons on either Kerry or her daughter.
ASSIGNMENTS OF ERROR
In her initial appellate brief, Kerry assigned two errors: (1)
that the district court erred in exercising jurisdiction over the
modification action and (2) that it erred in modifying child
support, visitation, and custody while a prior order was pend-
ing appeal. Because of our resolution on the jurisdictional
issue, we need not reach Kerry’s second assigned error.
STANDARD OF REVIEW
[1,2] 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. In re Guardianship &
Conservatorship of Forster, 22 Neb. Ct. App. 478, 856 N.W.2d
134 (2014). The question of jurisdiction is a question of
law, which an appellate court resolves independently of the
trial court. Anthony K. v. State, 289 Neb. 523, 855 N.W.2d
802 (2014).
ANALYSIS
We first note that the appellate record in this case contains
no bill of exceptions, only the transcript which contains the
pleadings and the orders of the district court.
[3] Where there is no bill of exceptions, an appellate court is
limited on review to an examination of the pleadings. Murphy
v. Murphy, 237 Neb. 406, 466 N.W.2d 87 (1991). If they are
sufficient to support the judgment, it will be presumed on
appeal that the evidence supports the trial court’s orders and
judgment. Id.
Kerry argues that the district court erred in overruling
her special appearance because the actual summons was not
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
served upon her within 6 months and thus that court did not
have jurisdiction over the modification action.
First, we note that Neb. Rev. Stat. § 25-801.01 (Reissue
2008) abolished the special appearance for all civil actions
filed on or after January 1, 2003. Thus, we shall treat Kerry’s
special appearance as a motion to dismiss under Neb. Ct. R.
Pldg. § 6-1112(b), because the failure of Kerry to specifically
reference the appropriate mode of dismissal is not fatal. See,
Weeder v. Central Comm. College, 269 Neb. 114, 123, 691
N.W.2d 508, 515 (2005) (motion to dismiss alleging three
affirmative defenses without specifically referring to “subsec-
tion (6) of rule 12(b) is not fatal”); 5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1347
at 51 (3d ed. 2004) (“technical accuracy in the designation
. . . of the specific rule under which the defense, motion,
or objection is asserted, is [not] critical to [its] presentation
and determination”).
[4] Kerry argues that at no point in the 6 months after
Michael filed his application to modify was she served with
a summons and that therefore the complaint was dismissed
by operation of law. Section 25-217 provides: “An action is
commenced on the date the complaint is filed with the court.
The action shall stand dismissed without prejudice as to any
defendant not served within six months from the date the
complaint was filed.” This language is self-executing and
mandatory. Dillion v. Mabbutt, 265 Neb. 814, 660 N.W.2d
477 (2003); Mohr v. Mohr, 22 Neb. Ct. App. 772, 859 N.W.2d
377 (2015).
[5] Modification proceedings are initiated by the filing of a
complaint to modify.
Modification proceedings relating to support, custody,
parenting time, visitation, other access, or removal of
children from the jurisdiction of the court shall be com-
menced by filing a complaint to modify. Modification
of a parenting plan is governed by the Parenting
Act. Proceedings to modify a parenting plan shall be
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
commenced by filing a complaint to modify. . . . Service
of process and other procedure shall comply with the
requirements for a dissolution action.
§ 42-364(6) (emphasis supplied).
[6] The service of process requirements for a dissolution
action state:
A proceeding under sections 42-347 to 42-381 shall
be commenced by filing a complaint in the district court.
The proceeding may be heard by the county court or the
district court as provided in section 25-2740. Summons
shall be served upon the other party to the marriage
by personal service or in the manner provided in sec-
tion 25-517.02.
Neb. Rev. Stat. § 42-352 (Reissue 2008) (emphasis supplied).
The statutory requirement that modification proceedings be
commenced by filing a fresh complaint and that they comply
with service requirements was first added in 2004. See 2004
Neb. Laws, L.B. 1207. This amendment clearly requires serv­
ice of a summons, which did not occur in this case.
[7] Although the Nebraska appellate courts have not
addressed the effect of failing to serve a summons in modifica-
tion proceedings, the Nebraska appellate courts have strictly
construed the requirements of service of summons for a court
to gain jurisdiction in other contexts. The Nebraska Supreme
Court has concluded that the absence of a summons in a juve-
nile support case precluded the lower court from exercising
jurisdiction. See In re Interest of Rondell B., 249 Neb. 928,
546 N.W.2d 801 (1996).
In In re Interest of Rondell B., the juvenile’s mother had
received a summons regarding an adjudication action brought
pursuant to Neb. Rev. Stat. § 43-247(3) (Reissue 1993).
Thereafter, a support proceeding was commenced under Neb.
Rev. Stat. § 43-290 (Reissue 1993), and her attorney received
a hearing date for the support proceeding. Section 43-290,
governing support proceedings, stated in relevant part that
“after summons to the parent of the time and place of hearing
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Decisions of the Nebraska Court of A ppeals
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BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
served as provided in sections 43-262 to 43-267, the court may
order and decree that the parent shall pay . . . a reasonable sum
that will cover in whole or part the support . . . of the juve-
nile.” The court held that in order to comply with this statute,
a summons must be served. In rejecting the State’s argument
to the contrary, the court stated:
[W]e simply are not free to disregard the requirement
of § 43-290 that in the event of a separate support hear-
ing, a summons with regard thereto is to be served. In
construing a statute, a court must attempt to give effect
to all of its parts, and if it can be avoided, no word,
clause, or sentence will be rejected as superfluous or
meaningless; it is not within the province of a court
to read anything plain, direct, and unambiguous out of
a statute.
In re Interest of Rondell B., 249 Neb. at 932-33, 546 N.W.2d
at 805.
[8,9] Likewise, in Osborn v. Osborn, 4 Neb. Ct. App. 802, 806,
550 N.W.2d 58, 61 (1996), we iterated the requirement for
service of a summons under § 42-352 (Reissue 1993) where
one party failed to serve either a motion to modify a decree
or a summons on the other party; rather, the moving party
served a “‘Notice of Hearing’” on the other party’s attorney.
We held such service was insufficient. Osborn was decided
prior to the 2004 revisions to § 42-364(6); however, we cited
§ 42-352 and Neb. Rev. Stat. §§ 42-365 (Reissue 1993) and
25-504.01 (Reissue 1995) to conclude that the moving party
“was required to file a petition for modification and to serve
[respondent] with both a copy of the petition and a summons.”
4 Neb. Ct. App. at 805, 550 N.W.2d at 60. We noted the purpose
of a summons:
A summons notifies the defendant that in order to
defend the lawsuit[,] an appropriate written response
must be filed with the court within 30 days after service
and that upon failure to do so, the court may enter judg-
ment for the relief demanded in the petition. Neb. Rev.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
Stat. § 25-503.01 (Reissue 1995). Where the Legislature
has intended for service to be executed as a summons
in civil cases, it has specifically stated so within the
statutes. Ventura v. State, 246 Neb. 116, 517 N.W.2d
368 (1994) (finding that service upon attorney of record
was permissible under Neb. Rev. Stat. § 25-534 (Reissue
1995) where notice statute, Neb. Rev. Stat. § 20-333
(Reissue 1991), did not require any particular form of
service). Generally, a summons is an instrument used
to provide notice to a party of civil proceedings and
of the opportunity to appear and be heard. Ventura v.
State, supra.
Osborn, 4 Neb. Ct. App. at 805-06, 550 N.W.2d at 61.
Accordingly, the summons that had been initially directed
to Kerry specifically advised her that she had been sued by
Michael, that she was required to respond within 30 days,
and that her failure to do so may result in Michael’s being
granted his requested relief. This summons was never served,
however, as the sheriff was unable to obtain service. Michael
did not request that the special process server serve the
summons when alternate service by a special process server
was approved.
Similarly, in American Nat. Bank v. Cutler, No. A-01-1398,
2003 WL 22038257 (Neb. App. Sept. 2, 2003) (not designated
for permanent publication), we held that where a statute delin-
eates the procedure to bring a motion to vacate, a petitioner’s
failure to follow the statutory prerequisites (in that case, filing
a petition and serving a summons) may deprive a district court
of subject matter jurisdiction to hear the motion.
In the present action, the statutes specifically direct that
summons be served upon the other party to the marriage. See
§§ 42-352 (Reissue 2008) and 42-364. The evidence con-
tained in the record reveals that a summons was never served.
While there is no doubt that Kerry received the application to
modify, no summons was served as required by the statutes.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
Accordingly, the district court lacked personal jurisdiction over
Kerry at the time her special appearance was filed.
For purposes of completeness, we address whether Kerry’s
subsequent answer waived her defense of lack of jurisdiction.
We conclude that it did not. In reaching our decision, the fol-
lowing chronology is important:
• June 28, 2013—Michael filed application for modification.
• August 21, 2013—Modification papers left with Kerry’s
daughter.
• September 20, 2013—Kerry filed special appearance.
• January 27, 2014—Hearing on special appearance held.
• February 5, 2014—Order overruling special appearance
entered.
• February 18, 2014—Kerry filed answer.
[10] As evidenced by the above chronology, Kerry filed her
answer almost 8 months after Michael filed the modification
action. Section 25-217 provides: “An action is commenced
on the date the complaint is filed with the court. The action
shall stand dismissed without prejudice as to any defendant
not served within six months from the date the complaint was
filed.” This language is self-executing and mandatory. Dillion
v. Mabbutt, 265 Neb. 814, 660 N.W.2d 477 (2003); Mohr v.
Mohr, 22 Neb. Ct. App. 772, 859 N.W.2d 377 (2015).
[11] Because Michael did not properly serve Kerry within
6 months from the date he filed the application to modify,
the action stood dismissed as of December 28, 2013. Any
subsequent orders or pleadings were a nullity. Any orders or
pleadings filed after a lawsuit has been dismissed by operation
of law for failure to serve the defendant within 6 months are
a nullity. See Reid v. Evans, 273 Neb. 714, 733 N.W.2d 186
(2007). Accordingly, Kerry’s subsequent answer, filed more
than 6 months after the modification action was filed, was
a nullity and could not have conferred jurisdiction over her.
Likewise, all court orders issued after December 28, 2013,
were also null.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
BURNS v. BURNS
Cite as 23 Neb. Ct. App. 420
CONCLUSION
Because Kerry was never served with a summons, the modi-
fication action was dismissed by operation of law on December
28, 2013. The district court and this court lack the power to
determine the merits of Michael’s application for modification.
We previously withdrew our memorandum opinion affirming
the district court’s decision modifying the parties’ decree, and
we now vacate the district court’s decision. We further remand
the cause to the district court with directions to dismiss the
application to modify.
Judgment vacated, and cause
remanded with directions.