Fitzgerald v. Fitzgerald , 286 Neb. 96 ( 2013 )

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96 286 NEBRASKA REPORTS
appointment of counsel.22 Where the assigned errors in the
postconviction petition before the district court are either pro­
cedurally barred or without merit, establishing that the post­
conviction proceeding contained no justiciable issue of law or
fact, it is not an abuse of discretion to fail to appoint counsel
for an indigent defendant.23
As we have noted, Phelps has not alleged facts sufficient
to entitle him to an evidentiary hearing on his postconviction
claim, and thus has raised no justiciable issue of law or fact.
The district court did not abuse its discretion in declining to
appoint counsel.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
Affirmed.
Miller-Lerman, J., participating on briefs.
Heavican, C.J., not participating.
22
Id.
23
Id.
Timothy E. Fitzgerald, appellee and cross-appellant, v.
Camille M. Fitzgerald, now known as Camille M.
Fangmeier, appellant and cross-appellee.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-1049.
1. Jurisdiction. The question of jurisdiction is a question of law.
2. Default Judgments: Motions to Vacate: Appeal and Error. In reviewing a trial
court’s action in vacating or refusing to vacate a default judgment, an appellate
court will uphold and affirm the trial court’s action in the absence of an abuse
of discretion.
3. Modification of Decree: Child Custody: Final Orders: Appeal and Error.
Ordinarily, an order modifying a dissolution decree to grant a permanent change
of child custody would be final and appealable as an order affecting a substantial
right made during a special proceeding.
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Cite as 286 Neb. 964. Jurisdiction: Notice: Fees: Time: Appeal and Error. An appellate court gener­
ally does not acquire jurisdiction of an appeal unless a notice of appeal is filed
and the docket fee is paid within 30 days of the final order.
5. Motions for New Trial: Time: Appeal and Error. 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 filing a notice of appeal.
6. Pleadings: Judgments: Time: Appeal and Error. In cases involving a motion
to alter or amend the judgment, a critical factor is whether the motion was filed
within 10 days of the final order, because a timely motion tolls the time for filing
a notice of appeal.
7. Appeal and Error. The proper filing of an appeal shall vest in an appellee the
right to a cross-appeal against any other party to the appeal.
8. Rules of the Supreme Court: Appeal and Error. A cross-appeal need only be
asserted in the appellee’s brief as provided by Neb. Ct. R. App. P. § 2-109(D)(4)
(rev. 2012).
9. Jurisdiction: Time: Appeal and Error. Timeliness of an appeal is a jurisdic­
tional necessity and may be raised by an appellate court sua sponte.
10. Legislature: Courts: Time: Appeal and Error. When the Legislature fixes the
time for taking an appeal, the courts have no power to extend the time directly
or indirectly.
11. Final Orders: Time: Appeal and Error. Where the time for appeal from a final
order has expired without any appeal having been taken and thereafter a timely
appeal is taken from a second final order in the same proceeding, a party to the
timely appeal cannot use a cross-appeal to seek review of the first order.
12. Courts: Jurisdiction. In civil cases, a court of general jurisdiction has inherent
power to vacate or modify its own judgment at any time during the term in which
the court issued it.
13. Judges: Words and Phrases. A judicial abuse of discretion exists when the rea­
sons 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.
14. Divorce: Modification of Decree: Child Custody: Child Support. Modification
of child custody and support in a dissolution action is made pursuant to Neb. Rev.
Stat. § 42-364 (Cum. Supp. 2012) and is therefore a special proceeding.
Appeal from the District Court for Thayer County: Vicky L.
Johnson, Judge. Affirmed.
Nancy S. Johnson, of Conway, Pauley & Johnson, P.C., for
appellant.
Scott D. Grafton, of Svehla, Thomas, Rauert & Grafton,
P.C., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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Cassel, J.
INTRODUCTION
After the parties’ marriage had been dissolved, Camille M.
Fitzgerald, now known as Camille M. Fangmeier (Fangmeier),
sought a modification of child custody and related matters.
Timothy E. Fitzgerald was personally served, but he defaulted.
The district court first entered a default modification order.
On Fitzgerald’s motion, the court entered a second order that
vacated the first order. In this appeal, Fangmeier challenges the
second order as an abuse of discretion. Fitzgerald cross-appeals
but addresses only the first order. We initially decide that
because the first order was a final order from which no appeal
was timely perfected, Fitzgerald cannot use his cross-appeal to
attack it. Next, we reject the argument that precedent forbids
a court from promptly vacating a default modification order
for failure to comply with an approved local district court rule
requiring notice of the motion for default. Thus, we dismiss
Fitzgerald’s cross-appeal and affirm the district court’s order
vacating the first order.
BACKGROUND
Fitzgerald and Fangmeier were divorced in 2007. The
divorce decree awarded joint legal custody of the parties’
minor child but ordered that Fangmeier would have primary
physical custody. Fitzgerald was ordered to pay child support.
In December 2011, Fangmeier filed a complaint for modi­
fication of the divorce decree, seeking sole physical and legal
custody of the child, unspecified changes in child support
and visitation, and attorney fees and general equitable relief.
Fitzgerald was personally served with a summons and a copy
of the complaint.
After Fitzgerald failed to file an answer, Fangmeier moved
for default judgment. She did not mail a copy of the motion
or the related notice of the hearing to Fitzgerald or otherwise
provide him with any notice of the hearing. He did not appear
at the default judgment hearing, which was held on June
29, 2012.
On the day of the default hearing, the district court entered
the first order. It modified the divorce decree as Fangmeier had
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Cite as 286 Neb. 96requested at the hearing. The first order gave Fangmeier sole
physical and legal custody of the child; altered Fitzgerald’s
support obligation; adopted Fangmeier’s proposed parenting
plan; allocated expenses of daycare, extracurricular activities,
and unreimbursed health care; assigned the child’s income
tax exemption to Fangmeier; and ordered Fitzgerald to pay
Fangmeier’s attorney fees.
Thirteen days after entry of the first order, Fitzgerald filed
a motion for new trial, to alter or amend the first order, or to
vacate it based on the absence of any notice of the default
hearing. The district court conducted a hearing on Fitzgerald’s
motion and took the matter under advisement.
The district court’s second order was entered on October
19, 2012. The second order overruled Fitzgerald’s motions
for new trial and to alter or amend as untimely but granted
Fitzgerald’s motion to vacate the first order. The court agreed
with Fitzgerald that the first order should be vacated because
Fangmeier failed to provide notice as required by the rules
of the district court for the First Judicial District. The court
relied upon the reasoning of Cruz-Morales v. Swift Beef Co.,1
our decision in a workers’ compensation appeal that upheld
a Workers’ Compensation Court rule requiring notice of a
default hearing.
Fangmeier timely appealed from the second order. Fitzgerald
filed a cross-appeal, but in it, he addressed only the first order.
Pursuant to statutory authority, we moved the case to our
docket.2 Fangmeier moved to dismiss Fitzgerald’s cross-appeal
as untimely. We reserved ruling on Fangmeier’s motion until
plenary submission of the appeal. Upon completion of oral
argument, the appeal was submitted.3
ASSIGNMENTS OF ERROR
Fangmeier’s appeal assigns, restated, that the district court’s
second order—granting Fitzgerald’s motion to vacate the first
order—was an abuse of the court’s discretion. Fitzgerald’s
1
Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008).
2
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3
See Neb. Ct. R. App. P. § 2-111 (rev. 2008).
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cross-appeal assigns, restated, that the court abused its discre­
tion in the first order, which found a material change of cir­
cumstances warranting modification of the decree as to child
custody, visitation, and support, and allocation of the child’s
income tax exemption.
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law.4
[2] In reviewing a trial court’s action in vacating or refusing
to vacate a default judgment, an appellate court will uphold
and affirm the trial court’s action in the absence of an abuse
of discretion.5
ANALYSIS
Jurisdiction of Cross-appeal
We first address Fangmeier’s motion to dismiss Fitzgerald’s
cross-appeal for lack of jurisdiction. She argues that no
appeal was filed within 30 days after the first order and that
Fitzgerald’s cross-appeal in the instant appeal cannot be used
for the purpose of attacking the first order. We agree.
[3,4] The first order was final and appealable, but no appeal
was timely perfected. Ordinarily, an order modifying a dissolu­
tion decree to grant a permanent change of child custody would
be final and appealable as an order affecting a substantial right
made during a special proceeding.6 The first order changed
the child’s custody, and thus, the first order was clearly a
final, appealable order. But no appeal was filed by either party
within 30 days after the entry of the first order. This court
generally does not acquire jurisdiction of an appeal unless a
notice of appeal is filed and the docket fee is paid within 30
days of the final order.7 As to the first order, neither party filed
a notice of appeal or deposited a docket fee. Once the time for
appeal expired without any appeal having been perfected, the
4
Butler County Dairy v. Butler County, 285 Neb. 408, 827 N.W.2d 267(2013).
5
First Nat. Bank of York v. Critel, 251 Neb. 128, 555 N.W.2d 773 (1996).
6
McCaul v. McCaul, 17 Neb. App. 801, 771 N.W.2d 222 (2009).
7
State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
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Cite as 286 Neb. 96first order ceased to be subject to appeal. Of course, it was still
subject to the district court’s jurisdiction to vacate or modify
its own orders.8
[5,6] Fitzgerald’s motions for new trial and to alter or amend
the judgment were untimely and, thus, failed to terminate the
running of the time for appeal from the first order. 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 filing a notice of appeal.9 Similarly, in cases
involving a motion to alter or amend the judgment, a critical
factor is whether the motion was filed within 10 days of the
final order, because a timely motion tolls the time for filing a
notice of appeal.10 Because Fitzgerald’s motions for new trial
and to alter or amend the judgment were filed outside of the
10-day time limit, neither motion affected the running of the
appeal time on the first order. The appeal time expired before
any appeal was taken.
[7,8] Fangmeier’s timely appeal from the second order
vested Fitzgerald with the right to cross-appeal. The proper
filing of an appeal shall vest in an appellee the right to a
cross-appeal against any other party to the appeal.11 Thus,
Fangmeier’s appeal from the second order vested in Fitzgerald
the right of cross-appeal from that order. The cross-appeal need
only be asserted in the appellee’s brief as provided by Neb. Ct.
R. App. P. § 2-109(D)(4) (rev. 2012).12 He purported to exer­
cise this right.
[9-11] But Fitzgerald’s cross-appeal assigned no error
regarding the second order; instead, he attempted to attack the
first order. Timeliness of an appeal is a jurisdictional necessity
and may be raised by an appellate court sua sponte.13 Once
8
See Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).
9
Manske v. Manske, 246 Neb. 314, 518 N.W.2d 144 (1994).
10
See Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631, 694 N.W.2d 832(2005).
11
Neb. Ct. R. App. P. § 2-101(E) (rev. 2010).
12
Id.
13
Manske v. Manske, supra note 9.
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the 30-day period ran and neither party filed a timely appeal
from the first order, it was no longer possible to invoke this
court’s jurisdiction of an appeal regarding that order. When the
Legislature fixes the time for taking an appeal, the courts have
no power to extend the time directly or indirectly.14 Although
we can find no instance where a party has attempted to use a
cross-appeal in this manner, our jurisprudence clearly dictates
that Fitzgerald cannot do so. Thus, we hold that where the time
for appeal from a final order has expired without any appeal
having been taken and thereafter a timely appeal is taken from
a second final order in the same proceeding, a party to the
timely appeal cannot use a cross-appeal to seek review of the
first order.
Because there are no issues raised in Fitzgerald’s cross-
appeal over which we have jurisdiction, we must dismiss his
cross-appeal. We therefore sustain Fangmeier’s motion.
Motion to Vacate Default
Modification Order
[12,13] In civil cases, a court of general jurisdiction has
inherent power to vacate or modify its own judgment at any
time during the term in which the court issued it.15 Fangmeier
does not contest the district court’s power to vacate the first
order, but, rather, argues that the court abused its discretion
in doing so. Clearly, the district court had the power to vacate
the first order, and as we have already recited, we review the
court’s order doing so for an abuse of discretion. 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.16
The district court based its decision to vacate the first
order upon the local rules of the district court for the First
Judicial District. Rule 1-9 defines a “motion” as including
14
State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
15
Molczyk v. Molczyk, supra note 8.
16
Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 (2013).
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Cite as 286 Neb. 96“applications, special appearances, and all requests for an order
from the Court.”17 The rule then requires that all motions be
filed “not less than ten (10) working days prior to the hearing”
and that at the time of filing of the motion, “the moving party
shall obtain a date for hearing . . . and provide notice to the
opposing party.”18 The court reasoned that motions for default
were not excepted from the definition of “motion” and that
thus, the rule required that Fangmeier give notice of the hear­
ing to Fitzgerald.
Fangmeier concedes that she failed to comply with the
notice requirement of rule 1-9, but advances two broad argu­
ments. First, she argues that the rule is contrary to Nebraska
common law. Second, she argues that rule 1-9 is inconsistent
with certain statutes and court rules. We now turn to the prec­
edent she cites in support of her first argument.
Fangmeier cites an 1894 decision of this court, which states
that there is “no statutory provision requiring a plaintiff to give
notice of an application for a default and judgment.”19 But that
case involved only a monetary judgment and was premised
upon the absence of any statute requiring notice of an appeal
from a judgment of a justice of the peace—a type of court long
abolished in Nebraska government.20 In the case before us, the
interests of a minor child are at stake. The district court was
empowered to protect the interests of the minor child in this
dissolution proceeding.21
Fangmeier relies heavily on this court’s decision in Tejral
v. Tejral,22 in which this court reversed an order vacating a
default decree of dissolution involving child custody. But this
court specifically noted in Tejral that “[n]either those statutes
nor the applicable court rules of the Eleventh Judicial District
of Nebraska required notice of the final hearing to be given”
17
Rules of Dist. Ct. of First Jud. Dist. 1-9 (rev. 2005).
18
Id. (emphasis supplied).
19
McBrien v. Riley, 38 Neb. 561, 564, 57 N.W. 385, 386 (1894).
20
See 1969 Neb. Laws, ch. 419, § 1, p. 1434.
21
See Peterson v. Peterson, 224 Neb. 557, 399 N.W.2d 792 (1987).
22
Tejral v. Tejral, 220 Neb. 264, 369 N.W.2d 359 (1985).
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where the respondent was in default.23 In the case before us,
a rule of the district court for the First Judicial District of
Nebraska does require such notice. Thus, the Tejral holding
applies only where there is no local court rule requiring notice
to be given.
Fangmeier also relies on other cases which directly or indi­
rectly follow Tejral. Joyce v. Joyce24 directly cited Tejral and
addressed only an argument that due process was violated,
making no reference to any local court rule. Similarly, Starr
v. King25 quoted that portion of the Joyce decision expressly
relying on Tejral. Fangmeier also relies on our more recent
decision in State on behalf of A.E. v. Buckhalter,26 which
cited the Tejral holding. But in Buckhalter, actual notice
of the default hearing was given 11 days prior to the hear­
ing by regular U.S. mail to the defendant’s Mississippi,
Pennsylvania, and New Jersey addresses. The district court
refused to vacate the default judgment, and this court upheld
that decision. Indeed, in Buckhalter, this court had little dif­
ficulty in rejecting the defendant’s argument in light of the
notice that was given.
Fangmeier also relies on this court’s observation in Starr27
that local court rules do not supersede the common law of this
state. However, in Starr, this court made the observation at a
time when local court rules were not approved and published
by the Nebraska Supreme Court. That situation has changed.
Since September 1, 1995, this court’s rules have permitted
district courts to propose local rules which become effective
on approval by this court and publication in the Nebraska
Advance Sheets.28 Thus, local court rules have a different sta­
tus than they did at the time of the Starr decision.
23
Id. at 267, 369 N.W.2d at 361 (emphasis supplied).
24
Joyce v. Joyce, 229 Neb. 831, 429 N.W.2d 355 (1988).
25
Starr v. King, 234 Neb. 339, 451 N.W.2d 82 (1990).
26
State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340(2007).
27
Starr v. King, supra note 25.
28
See Neb. Ct. R. § 6-1501.
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Cite as 286 Neb. 96We turn to Fangmeier’s second broad argument—that rule
1-9 is inconsistent with certain statutes and court rules. We are
not persuaded that any conflict exists.
[14] First, Fangmeier cites Neb. Rev. Stat. § 25-1308(Reissue 2008), which governs the procedure for a default judg­
ment in a civil action.29 But modification of child custody and
support in a dissolution action is made pursuant to Neb. Rev.
Stat. § 42-364 (Cum. Supp. 2012) and is therefore a special
proceeding.30 Indeed, in Tejral,31 upon which Fangmeier relies,
this court focused upon Neb. Rev. Stat. § 42-355 (Reissue
1984) and not upon § 25-1308. Thus, Fangmeier’s reliance on
§ 25-1308 is misplaced.
Second, Fangmeier argues that rule 1-9 is inconsistent with
Neb. Ct. R. Pldg. § 6-1105(a) (rev. 2011), which states, in
pertinent part: “No service need be made on parties in default
for failure to appear except that pleadings asserting new or
additional claims for relief against them shall be served upon
them in the manner provided for service of a summons.”
(Emphasis supplied.) We reject this argument for three rea­
sons. First, we note that rule 1-9 merely requires “notice,”
which can be satisfied with something less than “service.”
For example, a telephone call to Fitzgerald or his counsel
would have complied with the literal requirement of rule 1-9.
Second, as we have already explained, local district court
rules are now approved and published by this court and, thus,
have a different status than at the time of our earlier deci­
sions. Third, a notice requirement can easily be satisfied in a
modification proceeding by a simple mailing of notice to the
address that a parent is required to maintain on file with the
clerk of the district court.32 Thus, in a modification proceed­
ing, the local rule’s notice requirement would not “paralyze
29
See Neb. Rev. Stat. § 25-101 (Reissue 2008).
30
See, State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994),
overruled on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d
780 (1999); Paulsen v. Paulsen, 10 Neb. App. 269, 634 N.W.2d 12 (2001).
31
Tejral v. Tejral, supra note 22.
32
See Neb. Rev. Stat. § 42-364.13(1) (Reissue 2008).
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the ordinary and orderly functioning of the legal process.”33
Indeed, our decision in Buckhalter,34 where such notice was
given, illustrates that no delay or difficulty results from this
simple procedure.
Our decision upholding the district court’s second order
should not be read as mandating that a court must vacate a
default judgment in a modification proceeding simply because
notice of the hearing was not given. The circumstances may
vary considerably from case to case. Our decision stands only
for the proposition that under the circumstances in the present
case, the district court did not abuse its discretion in granting
the motion.
CONCLUSION
Because Fitzgerald cannot use a cross-appeal from the sec­
ond order to attack the first order, which was final and appeal­
able and from which no appeal was timely taken, we dismiss
his cross-appeal. We conclude that the district court did not
abuse its discretion in granting Fitzgerald’s motion to vacate
the first order. Thus, we affirm the district court’s second order,
i.e., its order of October 19, 2012.
Affirmed.
33
See Tejral v. Tejral, supra note 22, 220 Neb. at 267, 369 N.W.2d at 361.
34
State on behalf of A.E. v. Buckhalter, supra note 26.