Porter v. Porter

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2021 09:09 AM CDT
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PORTER v. PORTER
Cite as 309 Neb. 167Sybil L. Porter, appellant, v. Dustin S. Porter,
appellee, and State of Nebraska,
intervenor-appelllee.
___ N.W.2d ___
Filed May 7, 2021. No. S-20-734.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. ____: ____. It is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
3. Motions to Vacate: Time. In a civil case, a court has inherent power
to vacate or modify its own judgments at any time during the term at
which those judgments are pronounced, and such power exists entirely
independent of any statute.
4. Appeal and Error. The right of appeal in Nebraska is purely statutory.
5. ____. Remaining true to an intrinsically sounder doctrine better serves
the values of stare decisis than following a more recently decided case
inconsistent with the decisions that came before it.
6. Final Orders: Appeal and Error. Broadly stated, an order affects a
substantial right if it affects the subject matter of the litigation, such as
diminishing a claim or defense that was available to the appellant prior
to the order from which he or she is appealing.
7. ____: ____. Whether an order affects a substantial right depends on
whether it affects with finality the rights of the parties in the subject
matter. It also depends on whether the right could otherwise effectively
be vindicated. An order affects a substantial right when the right would
be significantly undermined or irrevocably lost by postponing appel-
late review.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Appeal dismissed.
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PORTER v. PORTER
Cite as 309 Neb. 167Shane Placek and Linsey Moran Bryant, of Sidner Law, for
appellant.
Wesley S. Dodge for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
A mother sought a modification of child support and obtained
a default order of modification. Upon the father’s motion to
vacate, the district court sustained the motion. We conclude the
order appealed from—which set aside the default order modi-
fying child support and set the matter for a status hearing—did
not affect a substantial right of the parties. Because it was not a
final order, we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Sybil L. Porter and Dustin S. Porter are the parents of two
minor children. A 2012 divorce decree awarded Sybil custody
of the children and ordered Dustin to pay child support. In 2015,
the court modified the decree to reduce Dustin’s child support.
In 2017, the court entered another modification order after
Dustin sustained a work-related injury and applied for Social
Security disability benefits. The order provided, “The ­support
that will accrue from this day forward will be suspended
and will be paid from the arrearage payment for the [Social
Security] dependent benefits when ordered and paid.”
On March 25, 2020, Sybil filed a complaint for modifica-
tion. She alleged that there had been a substantial and material
change of circumstances necessitating a modification due to a
change in income. A sheriff served summons on Dustin, but
Dustin did not file a responsive pleading.
On May 12, 2020, Sybil filed a motion for default judgment
against Dustin. During a June 15 hearing, Dustin appeared pro
se and orally moved to continue the hearing. The court granted
the request, setting the hearing for August 17.
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PORTER v. PORTER
Cite as 309 Neb. 167As scheduled, the court held a hearing on August 17, 2020.
Dustin did not appear, nor did counsel appear on his behalf.
The court noted Dustin’s absence and that he had not com-
municated with the court. The court received into evidence
a February 2020 workers’ compensation court award, which
determined that Dustin was entitled to benefits of $466.82 per
week “for so long in the future as [he] remains permanently
and totally disabled.”
On August 18, 2020, the court entered an order of modifica-
tion. The order recited that Dustin was present pro se at the
August 17 hearing. The court found that there had been a sub-
stantial and material change of circumstances because Dustin
received a workers’ compensation award equating to $2,022
per month of income for child support purposes. Among other
things, the court ordered Dustin to pay $604 per month as child
support for two children and to pay an additional $100 per
month to address his child support arrearage.
Within 2 weeks, Dustin filed a motion to vacate or alter the
August 2020 order. Dustin stated that he did not appear at the
August 17 hearing. He asserted that the order did not reflect
his income, that it was not based on accurate information,
and that the court did not apply the Nebraska Child Support
Guidelines.
The court held a hearing on the motion to vacate, which it
ultimately granted. The court stated that it had equitable power
to set aside a default judgment during the term, and it did so.
By rule, the term of the court was coextensive with the calen-
dar year. 1 The court then set a status hearing for November 9,
2020. On October 7, the court entered an order memorializing
that it set aside the August order of modification and set a fur-
ther hearing for November 9.
The next day, October 8, 2020, Sybil appealed. We subse-
quently moved the case to our docket. 2
1
See Rules of Dist. Ct. of Sixth Jud. Dist. § 6-13 (rev. 2017).
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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PORTER v. PORTER
Cite as 309 Neb. 167ASSIGNMENT OF ERROR
Sybil assigns that the district court abused its discretion
by sustaining Dustin’s motion to vacate or alter the order of
modification.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 3
ANALYSIS
[2,3] It is the power and duty of an appellate court to
determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties. 4
Before reaching the error assigned on appeal, a threshold issue
is whether the October 2020 order is a final order. There is
no question that the district court had the power to vacate the
August 2020 order. As we have often said, in a civil case, a
court has inherent power to vacate or modify its own judg-
ments at any time during the term at which those judgments
are pronounced, and such power exists entirely independent of
any statute. 5 The question is whether an appeal lies from the
order vacating the judgment. We ordered supplemental briefing
by the parties on the jurisdictional issue and have considered
their submissions.
Before reviewing our own jurisprudence, we note that the
authorities in other states are divided. “In the cases where a
default judgment has been set aside, a majority of the cases
hold that such an order is interlocutory and not appealable,
although a number of cases have taken the contrary view.” 6
3
Colwell v. Managed Care of North America, 308 Neb. 597, 955 N.W.2d
744 (2021).
4
TDP Phase One v. The Club at the Yard, 307 Neb. 795, 950 N.W.2d 640(2020).
5
In re Change of Name of Whilde, 298 Neb. 510, 904 N.W.2d 707 (2017).
6
Annot., 8 A.L.R.3d 1272, 1284 (1966).
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PORTER v. PORTER
Cite as 309 Neb. 167Appellate jurisdiction hinges on whether the order vacating
a default judgment constituted a final order under Neb. Rev.
Stat. § 25-1902 (Cum. Supp. 2020). Under § 25-1902, an order
is final for purposes of appeal if it (1) affects a substantial right
and in effect determines the action and prevents a judgment,
(2) affects a substantial right and is made during a special
proceeding, (3) affects a substantial right and is made on sum-
mary application in an action after a judgment is rendered, or
(4) denies a motion for summary judgment which was based
on the assertion of sovereign immunity or the immunity of a
government official.
We have encountered appeals from an order sustaining a
motion to vacate or set aside a default judgment on numerous
occasions. But many of our prior cases reaching the merits
of the appeal did so without discussing a basis for appellate
jurisdiction. 7 Others reached contradictory conclusions as to
whether the order was appealable. In contrast, our case law has
consistently held that an order overruling a motion to vacate or
set aside a default is appealable. 8
Several early cases involving proceedings in error deter-
mined that an order vacating or setting aside a default judg-
ment was not appealable. 9 In Brown v. Edgerton, 10 we stated:
7
See, e.g., Diplomat Inn, Inc. v. Weindorf, 206 Neb. 565, 293 N.W.2d
861 (1980); Urwin v. Dickerson, 185 Neb. 86, 173 N.W.2d 874 (1970);
Johnston Grain Co. v. Tridle, 175 Neb. 859, 124 N.W.2d 463 (1963),
overruled on other grounds, Moackler v. Finley, 207 Neb. 353, 299
N.W.2d 166 (1980); Lyman v. Dunn, 125 Neb. 770, 252 N.W. 197 (1934).
8
See, e.g., Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721(2010), overruled on other grounds, McEwen v. Nebraska State College
Sys., 303 Neb. 552, 931 N.W.2d 120 (2019); Ak-Sar-Ben Exposition Co.
v. Sorensen, 119 Neb. 358, 229 N.W. 13 (1930); Steele v. Haynes, 20 Neb.
316, 30 N.W. 63 (1886).
9
See, Rose v. Dempster Mill Mfg. Co., 69 Neb. 27, 94 N.W. 964 (1903);
Roh v. Vitera, 38 Neb. 333, 56 N.W. 977 (1893); Cockle Mnfg. Co. v.
Clark, 23 Neb. 702, 37 N.W. 628 (1888); Brown v. Edgerton, 14 Neb. 453,
16 N.W. 474 (1883).
10
Brown v. Edgerton, supra note 9, 14 Neb. at 454, 16 N.W. at 474-75.
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PORTER v. PORTER
Cite as 309 Neb. 167The order in question was one which, on motion of the
defendant, vacated a judgment against him on default[,]
during the same term at which it was rendered, to enable
him to make a defense to the action. It is very clear that
such an order is not covered by the [statutory definition of
a final order]. It was in no sense final; it did not prevent,
although its effect was doubtless to delay for awhile, the
entry of a judgment.
In Rose v. Dempster Mill Mfg. Co., 11 we reasoned that an order
setting aside a judgment or decree and allowing the defendant
to file an answer “is not a final one, but merely vacates the
decree or deficiency judgment and allows the defendant to file
an answer and make its defense.” In an appeal from an order of
the district court setting aside a default judgment and granting
a new trial, this court explained:
In order to review the judgment of the district court in
making the order complained of, the plaintiffs must await
a final trial and judgment in this case, for, as has been
well said, it may not be necessary for plaintiffs to appeal.
If, upon the final trial in the district court, they should
again recover a judgment, they would have no reason to
complain of such order. 12
But on at least two later occasions, we found an order vacat-
ing a default judgment to be a final order. In Jones v. Nebraska
Blue Cross Hospital Service Assn., 13 we declared, “The order
vacating the judgment is an appealable one.” In support, we
cited § 25-1902 and Sang v. Lee. 14 However, Sang involved
11
Rose v. Dempster Mill Mfg. Co., supra note 9, 69 Neb. at 28, 94 N.W.
at 964.
12
Trimble & Blackman v. Corey & Son, 86 Neb. 5, 7, 124 N.W. 907, 907
(1910), overruled, Wunrath v. Peoples Furniture & Carpet Co., 98 Neb.
342, 152 N.W. 736 (1915).
13
Jones v. Nebraska Blue Cross Hospital Service Assn., 175 Neb. 101, 102,
120 N.W.2d 557, 559 (1963).
14
Sang v. Lee, 20 Neb. 667, 31 N.W. 85 (1886).
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PORTER v. PORTER
Cite as 309 Neb. 167an appeal from an order refusing to set aside a default judg-
ment. Twenty years later, in Vacca v. DeJardine, 15 we stated:
At the outset, both in District Court and here, the
defend­ants insist that the orders vacating the default
judgments were not final orders and therefore not appeal-
able. Cited in support of this contention are Brown v.
Edgerton[ 16] and Roh v. Vitera[ 17]. Both of those cases stand
for that proposition. However, in Jones v. Nebraska Blue
Cross Hospital Service Assn.,[ 18] this court squarely held
in a similar case that “The order vacating the judgment is
an appealable one.”[ 19] We believe that this expresses the
better-reasoned rule.
However, we did not elaborate on why we viewed Jones—
which contained virtually no analysis—to articulate the “better-
reasoned rule.” 20 A few years ago, in dicta, we expressed our
belief that Vacca and Jones were not “wrongly decided.” 21
[4,5] Our dissenting colleagues contend that the more recent
case law, though untethered in statute, settles the issue. The
U.S. Supreme Court has identified several factors in deciding
whether to adhere to the principle of stare decisis, which include
workability, the antiquity of the precedent, whether the deci-
sion was well reasoned, whether experience has revealed the
precedent’s shortcomings, and the reliance interests at stake. 22
Application of these factors militate in favor of correcting our
case law. Although a blanket rule declaring the appealability
15
Vacca v. DeJardine, 213 Neb. 736, 737-38, 331 N.W.2d 516, 517 (1983).
16
Brown v. Edgerton, supra note 9.
17
Roh v. Vitera, supra note 9.
18
Jones v. Nebraska Blue Cross Hospital Service Assn., supra note 13.
19
Id. at 102, 120 N.W.2d at 559.
20
Vacca v. DeJardine, supra note 15, 213 Neb. at 738, 331 N.W.2d at 517.
21
Fidler v. Life Care Centers of America, 301 Neb. 724, 731, 919 N.W.2d
903, 908 (2018).
22
See McEwen v. Nebraska State College Sys., supra note 8.
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PORTER v. PORTER
Cite as 309 Neb. 167of an order sustaining a motion to vacate a default judgment
would be convenient and workable, the right of appeal in
Nebraska is purely statutory 23 and such a rule does not com-
port with our final order statute. Section 25-1902 requires that
an order affect a substantial right to be appealable, and we
disagree that an order sustaining a motion to vacate a default
judgment will always affect such a right. Regarding antiquity
of the precedent, Jones 24 was decided 58 years ago, but cases
reaching the opposite conclusion dated back to the late 1800’s
and early 1900’s. 25 Jones took a contrary view without citing
or distinguishing any of these earlier decisions and without
an explanation as to how the order fit within the definition of
§ 25-1902. Remaining true to an intrinsically sounder doctrine
better serves the values of stare decisis than following a more
recently decided case inconsistent with the decisions that came
before it. 26 And the only reliance interest that appears to be at
stake is that Sybil filed this appeal from the order vacating the
default order of modification rather than awaiting an order fol-
lowing a presentation of evidence, if any, by Dustin. Respect
for precedent should not prevent us from restoring our adher-
ence to the Nebraska Constitution and statutes. 27
We view an order vacating a default judgment or order and
allowing a defendant to answer and defend to be somewhat akin
to an order vacating a dismissal and reinstating a case. And in
the context of an order vacating a dismissal and reinstating a
case, we have declared that there is no blanket rule that every
such order is final and appealable; rather, the statutory criteria
23
Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937 N.W.2d 487(2020).
24
Jones v. Nebraska Blue Cross Hospital Service Assn., supra note 13.
25
See, Rose v. Dempster Mill Mfg. Co., supra note 9; Roh v. Vitera, supra
note 9; Cockle Mnfg. Co. v. Clark, supra note 9; Brown v. Edgerton, supra
note 9.
26
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
27
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PORTER v. PORTER
Cite as 309 Neb. 167of § 25-1902 must be applied to determine whether the order
appealed from is final. 28 We apply the same rule with respect to
an order vacating a default judgment or order.
[6,7] The issue turns on whether the order vacating the
default order of modification affected a substantial right of the
parties in the subject action. Broadly stated, an order affects a
substantial right if it affects the subject matter of the litigation,
such as diminishing a claim or defense that was available to
the appellant prior to the order from which he or she is appeal-
ing. 29 Whether an order affects a substantial right depends
on whether it affects with finality the rights of the parties in
the subject matter. It also depends on whether the right could
other­wise effectively be vindicated. An order affects a substan-
tial right when the right would be significantly undermined or
irrevocably lost by postponing appellate review. 30
Sybil argues that the order affected a substantial right. She
highlights that because the 2017 order of modification sus-
pended Dustin’s child support obligation, she and her children
have gone over 3 years without child support as of August
2020. Thus, the modification order obligating Dustin to pay
$604 in child support was substantial. Sybil argues that the
court’s order setting aside its default order deprived her of
“finality, repose and her judgment” and forces her “to restart
the litigation process that had been pending since March of
2020, in which she made three (3) total appearances and par-
ticipated in mediation.” 31
While we are sympathetic to Sybil’s struggle, we are not
persuaded that a substantial right is affected. The court’s order
merely set the default modification order aside and allowed
28
See, Fidler v. Life Care Centers of America, supra note 21; Deines v.
Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
29
Fidler v. Life Care Centers of America, supra note 21.
30
Id.
31
Supplemental brief for appellant at 6.
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PORTER v. PORTER
Cite as 309 Neb. 167Dustin an opportunity to defend. We have said that “[t]he fact
that an order of reinstatement may allow the case to move for-
ward to trial does not, without more, mean the order affects a
substantial right of the opposing party.” 32 The order certainly
did not affect with finality the rights of the parties. Dustin
will still owe child support; the question that remains concerns
only the amount of the obligation. Sybil’s right to collect child
support from Dustin will not be irrevocably lost by postpon-
ing appellate review. Moreover, we have recognized that the
children and the custodial parent should not be penalized by
delay in the legal process, nor should the noncustodial parent
gratuitously benefit from such delay. 33 Thus, absent equities to
the contrary, modification of a child support order should be
applied retroactively to the first day of the month following the
filing date of the application for modification. 34 This reinforces
our conclusion that the October 2020 order did not affect a
substantial right. Because the order setting aside a default order
of modification did not affect a substantial right, it was not a
final, appealable order.
CONCLUSION
Because the order appealed from is not a final order, we
dismiss the appeal for lack of jurisdiction.
Appeal dismissed.
32
Fidler v. Life Care Centers of America, supra note 21, 301 Neb. at 732,
919 N.W.2d at 909.
33
See Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015).
34
Id.Heavican, C.J., dissenting.
One would be forgiven for finding unclear our jurispru-
dence interpreting what qualifies as a final, appealable order. 1
1
See Neb. Rev. Stat. §§ 25-1902 (Cum. Supp. 2020) and 25-1911 (Reissue
2016).
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PORTER v. PORTER
Cite as 309 Neb. 167As a respected commentator has observed, our “confusing”
case law interpreting § 25-1902 is not good for anyone—not
for judges who must resolve jurisdictional challenges or for
litigants and their attorneys who must timely appeal from the
right order if they are to have their day in appellate court. 2
Therefore, in my view, if we have recently stated that a
specific type of order is or is not appealable under § 25-1902,
we should be especially reticent to depart from such decision.
After all, our opinions must mean something; we do our courts,
litigants, and lawyers a disservice by further muddying the
waters of what is and is not an appealable order. 3
Even if, as the majority asserts, other states are divided on
the issue of whether an order setting aside a default judgment
is final and appealable, our case law with respect to the issue is
not. In Jones v. Nebraska Blue Cross Hospital Service Assn., 4
we held categorically that “[t]he order vacating the [default]
judgment is an appealable one.” Again, 20 years later, we held
in Vacca v. DeJardine 5 that although two opinions from the
19th century had disfavored appeal from an order setting aside
a default judgment, 6 the categorical rule in Jones “expresse[d]
the better-reasoned rule.” 7
2
John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 240 (2001).
Accord Daniel L. Real, Appellate Practice in Nebraska: A Thorough,
Though Not Exhaustive, Primer in How to Do It and How to Be More
Effective, 39 Creighton L. Rev. 29 (2005).
3
Cf. McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d
120 (2019) (justifying stare decisis in part by litigants’ interest in being
able to rely over time on precedent).
4
Jones v. Nebraska Blue Cross Hospital Service Assn., 175 Neb. 101, 102,
120 N.W.2d 557, 559 (1963).
5
Vacca v. DeJardine, 213 Neb. 736, 331 N.W.2d 516 (1983).
6
See Roh v. Vitera, 38 Neb. 333, 56 N.W. 977 (1893), and Brown v.
Edgerton, 14 Neb. 453, 16 N.W. 474 (1883).
7
Vacca, supra note 5, 213 Neb. at 738, 331 N.W.2d at 517.
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PORTER v. PORTER
Cite as 309 Neb. 167Then, in 2018, we reaffirmed in dicta that Jones and Vacca
“were [not] wrongly decided.” 8 In other words, we accepted
just 3 years ago, for the third time, the categorical rule that
an order vacating a default judgment is a final, appealable
order under § 25-1902. But the majority departs from that
rule today.
Because the issue of whether this case presents a final,
appealable order is settled by our recent case law, I would fol-
low that recent case law. I respectfully dissent.
Miller-Lerman and Papik, JJ., join in this dissent.
8
Fidler v. Life Care Centers of America, 301 Neb. 724, 731, 919 N.W.2d
903, 908 (2018) (reaffirming Jones, supra note 4, and Vacca, supra
note 5, in dicta while reviewing reinstatement of case that had been
administratively dismissed for lack of prosecution).