Nichols v. Nichols

Nebraska Advance Sheets
NICHOLS v. NICHOLS 339
Cite as 288 Neb. 339Bonnie Nichols, appellant, v.
Margie Nichols, appellee.
___ N.W.2d ___
Filed June 13, 2014. No. S-13-841.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
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, irrespective of whether the issue is raised by the parties.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, the party must be appealing from a final order or
a judgment.
4. Judgments: Final Orders: Equity. In an equitable case, conditional orders are
void insofar as they purport to be final judgments.
5. Judgments: Final Orders: Words and Phrases. A “judgment” is a court’s final
consideration and determination of the respective rights and obligations of the
parties to an action as those rights and obligations presently exist.
6. Judgments: Final Orders. “Conditional judgments” are not final determinations
of the rights and obligations of the parties as they presently exist, but, rather, look
to the future in an attempt to judge the unknown.
7. ____: ____. While conditional orders will not automatically become final judg-
ments upon the occurrence of the specified conditions, they can operate in con-
junction with a further consideration of the court as to whether the conditions
have been met, at which time a final judgment may be made.
8. Judgments: Final Orders: Time: Appeal and Error. An appeal cannot be taken
from a conditional order purporting to dismiss a pleading in the future upon the
occurrence of an event.
9. Constitutional Law: Jurisdiction: Appeal and Error. Except in those cases
wherein original jurisdiction is specially conferred by Neb. Const. art. V, § 2,
the Nebraska Supreme Court exercises appellate jurisdiction, and such appellate
jurisdiction can be conferred only in the manner provided by statute.
10. Actions: Judgments: Final Orders. A conditional order is not a judgment,
because it is not the final determination of the rights of the parties in an action.
11. Motions to Dismiss: Judgments: Complaints: Appeal and Error. No appeal
can be taken from an order that grants a motion to dismiss a complaint but allows
time in which to file an amended complaint; such a conditional order is not
a judgment.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Appeal dismissed.
Megan N. Mikolajczyk and David A. Domina, of Domina
Law Group, P.C., L.L.O., for appellant.
Nebraska Advance Sheets
340 288 NEBRASKA REPORTS
No appearance for appellee.
Jon Bruning, Attorney General, and James D. Smith for
amicus curiae State of Nebraska.
Jennifer Gaughan for amicus curiae Legal Aid of Nebraska.
Amy A. Miller for amicus curiae American Civil Liberties
Union Foundation of Nebraska.
Martin A. Cannon, Edward A. Morse, and Andrew M.
Hollingsead for amicus curiae Thomas More Society-Omaha.
Dave Bydalek, of Nebraska Family Alliance, and James
R. Cunningham, of Nebraska Catholic Conference, for amici
curiae Nebraska Family Alliance and Nebraska Catholic
Conference.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ., and Pirtle, Judge.
Cassel, J.
INTRODUCTION
Bonnie Nichols attempted to obtain a dissolution of her
Iowa same-sex marriage to Margie Nichols. The district court
granted Margie’s motion to dismiss but allowed Bonnie to
amend her complaint. The court’s order purported to dismiss
Bonnie’s complaint in the future if she failed to amend it
within a specified time. After the time expired and without
further court action, Bonnie appealed. The court’s conditional
order, under long-established precedent, cannot perform as a
final judgment. Nebraska statutes govern judgments and appeal
procedures, and Nebraska’s shift to notice pleading did not
change those statutes. Because there was no final judgment, we
must dismiss the appeal.
BACKGROUND
According to the complaint, Bonnie and Margie were mar-
ried in Iowa in 2009. In 2012, Bonnie filed a complaint in
the district court for Lancaster County to dissolve the union
Nebraska Advance Sheets
NICHOLS v. NICHOLS 341
Cite as 288 Neb. 339described in the complaint. The complaint also requested a
determination of custody and parenting time for the parties’
child and an equitable division of the parties’ property.
Margie moved to dismiss the action. She alleged that a
Nebraska court lacked jurisdiction to dissolve a same-sex
marriage.
On August 30, 2013, the district court entered an order
granting Margie’s motion to dismiss for lack of subject matter
jurisdiction. The court concluded that it lacked subject matter
jurisdiction to dissolve the same-sex marriage, because grant-
ing a dissolution of marriage under Nebraska law necessarily
involves recognizing the marriage and Nebraska’s Constitution
prohibits recognizing a same-sex marriage.1 The court also
rejected Bonnie’s argument that Nebraska courts have juris-
diction under the doctrine of comity. The court gave Bonnie
15 days to file an amended complaint if she wished to pursue
relief under a different legal theory. The order stated, “If no
Amended Complaint is filed within 15 days, this matter will
stand dismissed, with prejudice.”
Bonnie did not file an amended complaint. The district court
did not enter a judgment dismissing the action. On September
27, 2013, Bonnie filed a notice of appeal, stating that an order
was entered on August 30 and “was formally dismissed with
prejudice on September 14, 2013.” We granted Bonnie’s peti-
tion to bypass the Nebraska Court of Appeals and directed
supplemental briefing regarding the continued vitality of our
conditional order case law.
ASSIGNMENTS OF ERROR
Bonnie assigns, restated and consolidated, that the district
court erred in (1) failing to give full faith and credit to a valid
marriage in a sister state; (2) dismissing the complaint based
on Neb. Const. art. I, § 29, when that provision violates provi-
sions and amendments of the U.S. Constitution; and (3) deny-
ing Bonnie equal protection of the law and refusing to exercise
1
See Neb. Const. art. I, § 29.
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342 288 NEBRASKA REPORTS
subject matter jurisdiction on the ground that the parties are of
the same gender.
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court.2
ANALYSIS
[2,3] We must first confront the absence of a judgment
dismissing the complaint. 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, irrespective of whether the issue is raised by the parties.3
For an appellate court to acquire jurisdiction of an appeal, the
party must be appealing from a final order or a judgment.4
The court’s August 30, 2013, order gave Bonnie time to file
an amended complaint and stated that the matter would stand
dismissed if no amended complaint was filed within 15 days.
This was a conditional order.
[4-7] In an equitable case, conditional orders are void inso-
far as they purport to be final judgments.5 This is because a
“judgment” is a court’s final consideration and determina-
tion of the respective rights and obligations of the parties
to an action as those rights and obligations presently exist.6
“Conditional judgments” are not final determinations of the
rights and obligations of the parties as they presently exist, but,
rather, look to the future in an attempt to judge the unknown.7
While conditional orders will not automatically become final
judgments upon the occurrence of the specified conditions,
they can operate in conjunction with a further consideration of
2
In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
3
Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
4
Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013).
5
See Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
6
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
7
Id.Nebraska Advance Sheets
NICHOLS v. NICHOLS 343
Cite as 288 Neb. 339the court as to whether the conditions have been met, at which
time a final judgment may be made.8
[8] We have long held that an appeal cannot be taken from
a conditional order purporting to dismiss a pleading in the
future upon the occurrence of an event. In Federal Land Bank
of Omaha v. Johnson,9 the trial court sustained a demurrer and
ordered that “‘the Plaintiff be and it hereby is allowed ten days
in which to further amend its Petition and upon Plaintiff’s fail-
ure to so amend, this matter shall be automatically dismissed
at Plaintiff’s cost.’” This court determined that the order was
a conditional order and not a final judgment and, thus, that an
appeal from it could not be taken. And in Schaad v. Simms,10
the trial court entered in its docket notes, “‘Plaintiff is given
14 days to file second amended petition or to select to stand
on amended petition, in which instance [one of the defendants]
will stand dismissed from this action without further hear-
ing.’” But because there was no order actually dismissing the
action, we determined that there was no final and appealable
order and, thus, no appellate jurisdiction. We have consistently
rejected attempts to appeal from orders purporting to become
effective in the future upon the failure of a condition.11
Bonnie urges that our conditional order jurisprudence was
abandoned in Nebraska’s shift to a notice pleading system. We
disagree. Since our move to a notice pleading system, we have
not discussed the appealability of a conditional order. In one
instance, a conditional order was followed by a final judgment
and we addressed the appeal’s merits.12 But in that case, we did
not discuss jurisdiction.
8
Id.9
Federal Land Bank of Omaha v. Johnson, 226 Neb. 877, 878, 415 N.W.2d
478, 479 (1987).
10
Schaad v. Simms, 240 Neb. 758, 484 N.W.2d 474, 475 (1992).
11
See, e.g., County of Sherman v. Evans, 247 Neb. 288, 526 N.W.2d 232(1995); Snell v. Snell, 230 Neb. 764, 433 N.W.2d 200 (1988); Building
Systems, Inc. v. Medical Center, Ltd., 228 Neb. 168, 421 N.W.2d 773(1988); Fritch v. Fritch, 191 Neb. 29, 213 N.W.2d 445 (1973).
12
See State ex rel. Jacob v. Bohn, 271 Neb. 424, 711 N.W.2d 884 (2006).
Nebraska Advance Sheets
344 288 NEBRASKA REPORTS
[9] The shift from code to notice pleading did not change the
statutory procedures governing judgments and appeals. Except
in those cases wherein original jurisdiction is specially con-
ferred by Neb. Const. art. V, § 2, the Nebraska Supreme Court
exercises appellate jurisdiction, and such appellate jurisdiction
can be conferred only in the manner provided by statute.13
Thus, we must look to our statutes to determine whether we
have jurisdiction of an appeal.
[10] Treating a conditional order as appealable would
not be consistent with our statutory framework governing
judgments and appeals. First, a conditional order is not a
judgment, because it is not “the final determination of the
rights of the parties in an action.”14 Thus, by definition,
a conditional order is not a judgment. Second, our statute
requires a specific procedure for entry of a judgment in order
to measure the time for appeal from the clerk’s file stamp
on the judgment. In 1999, the Legislature amended the law
concerning judgments to clarify when rendition and entry of
a judgment occurs.15 Rendition of a judgment happens when
the judge makes and signs a written notation of the relief
granted or denied in an action.16 “The entry of a judgment . . .
occurs when the clerk of the court places the file stamp and
date upon the judgment . . . .”17 The date of entry stamped
on the judgment is used to determine the time for appeal.18
Thus, the statute dictates that the time for taking an appeal
will be meas­ red uniformly from the date of the court clerk’s
u
file stamp on the judgment. The 1999 legislation made cor-
responding changes to other statutes governing appeals.19
These amendments ensured certainty in the appeal process.
13
Waite v. City of Omaha, 263 Neb. 589, 641 N.W.2d 351 (2002).
14
See Neb. Rev. Stat. § 25-1301(1) (Reissue 2008).
15
See 1999 Neb. Laws, L.B. 43, § 3.
16
See § 25-1301(2).
17
§ 25-1301(3).
18
See id.
19
See L.B. 43, § 8 et seq.
Nebraska Advance Sheets
NICHOLS v. NICHOLS 345
Cite as 288 Neb. 339Allowing an appeal to be taken from a conditional order
would defeat the purpose of this legislation.
Because Nebraska did not adopt the federal rules govern-
ing judgments and appeals, federal case law provides little
assistance. We often look to federal decisions for guidance
where our rule of procedure is identical to the equivalent fed-
eral rule.20 Although Nebraska’s notice pleading rules largely
import the language of the equivalent federal rules, the federal
courts follow a different framework of rules governing entry
of judgment and taking of appeals. Federal courts have pointed
to Fed. R. Civ. P. 58, a rule that addresses entering judgment.
But Nebraska did not adopt rule 58; rather, our jurisprudence
is driven by statute. Consequently, the federal decisions are not
persuasive authority.
But, for the sake of completeness, we note that most federal
courts reach the same result regarding conditional orders. The
U.S. Supreme Court has determined that an order dismiss-
ing a complaint, but granting leave to amend, is not final.21
Numerous federal circuit courts articulate the same principle
in various ways. Several circuits have held that an order dis-
missing a complaint with leave to amend is not final.22 One
circuit court added that when it is clear that the pleading may
be saved by proper amendment, there is no appealable order
20
See, e.g., DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013)
(looking to federal decisions for guidance regarding Neb. Ct. R. Pldg.
§ 6-1112(b)).
21
See Jung v. K. & D. Mining Co., 356 U.S. 335, 78 S. Ct. 764, 2 L. Ed. 2d
806 (1958).
22
See, e.g., Hunt v. Hopkins, 266 F.3d 934 (8th Cir. 2001); Trotter v. Regents
of University of New Mexico, 219 F.3d 1179 (10th Cir. 2000); Santoro v.
CTC Foreclosures Services Corp., 193 F.3d 1106 (9th Cir. 1999); Bastian
v. Petren Resources Corp., 892 F.2d 680 (7th Cir. 1990); Blanco v. United
States, 775 F.2d 53 (2d Cir. 1985); Richards v. Dunne, 325 F.2d 155 (1st
Cir. 1963); Groves v. City of Darlington, S.C., 346 Fed. Appx. 965 (4th
Cir. 2009). See, also, Anastasiadis v. S.S. Little John, 339 F.2d 538 (5th
Cir. 1964) (order staying action for period of time to allow commencement
of action in different jurisdiction at which time court would enter order
dismissing action was conditional and not final).
Nebraska Advance Sheets
346 288 NEBRASKA REPORTS
where the court dismisses the complaint without prejudice
to amendment.23
We acknowledge that the federal courts are not unanimous.
Some courts have reasoned that a dismissal order with leave to
amend becomes final as of the end of the amendment period
or when a plaintiff appeals, thereby waiving the filing of an
amended complaint.24 Another circuit court has stated that an
order granting a motion to dismiss the complaint, without prej-
udice, was final where the plaintiff clearly indicated an intent
to stand on the original complaint and that once the amend-
ment period expired, the order had the effect of dismissing the
improperly pleaded claims with prejudice.25
State courts with notice pleading systems also tend to take
two different approaches. One approach is to declare an order
dismissing the complaint but granting leave to amend to be
interlocutory and not appealable by the plaintiffs.26 The other
approach is to treat the order as final when the plaintiff files
a notice of appeal instead of filing an amended complaint.27
But as we have already determined, only the first approach
is consistent with Nebraska’s statutory framework governing
judgments and appeals.
[11] We believe our jurisprudence regarding the appeal-
ability of conditional orders remains sound after our move
to a notice pleading system, and we continue to adhere to
it. Thus, no appeal can be taken from an order that grants a
motion to dismiss a complaint but allows time in which to
23
See Azar v. Conley, 480 F.2d 220 (6th Cir. 1973).
24
See, Phonometrics v. Hospitality Franchise Systems, 203 F.3d 790 (Fed.
Cir. 2000); Albiero v. City of Kankakee, 122 F.3d 417 (7th Cir. 1997);
Schuurman v. Motor Vessel Betty K V, 798 F.2d 442 (11th Cir. 1986).
25
Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007). See, also, Borelli
v. City of Reading, 532 F.2d 950 (3d Cir. 1976) (plaintiff can convert
dismissal with leave to amend into final order by electing to stand on
complaint).
26
See Day v. Coffey, 68 N.C. App. 509, 315 S.E.2d 96 (1984).
27
See, e.g., Purnell v. Covington County Bd. of Educ., 519 So. 2d 560 (Ala.
Civ. App. 1987); Garver v. Public Service Company of New Mexico, 77
N.M. 262, 421 P.2d 788 (1966); Avin v. Verta, 106 A.2d 145 (D.C. 1954).
Nebraska Advance Sheets
STATE v. CARNGBE 347
Cite as 288 Neb. 347file an amended complaint; such a conditional order is not
a judgment.
CONCLUSION
Because Bonnie appealed from a conditional order and not a
final judgment, we lack jurisdiction over the appeal. Therefore,
we must dismiss the appeal.
Appeal dismissed.
Wright, J., not participating.
State of Nebraska, appellee, v.
Wellington J. Carngbe, appellant.
___ N.W.2d ___
Filed June 13, 2014. No. S-13-1077.
1. Sentences: Appeal and Error. Whether a defendant is entitled to credit for time
served and in what amount are questions of law. An appellate court reviews ques-
tions of law independently of the lower court.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
3. Sentences. Imposing a sentence within statutory limits is a matter entrusted to the
discretion of the trial court.
4. Statutes: Appeal and Error. An appellate court gives statutory language its
plain and ordinary meaning.
5. Statutes: Legislature: Intent. In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordinary, and popu-
lar sense.
6. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
7. Sentences: Appeal and Error. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
8. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
9. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,