State on behalf of Marcelo K. & Rycki K. v. Ricky K.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/18/2018 02:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
State ofNebraska on behalf of M arcelo K.
and Rycki K., minor children, appellant,
v. R icky K. and Belinda D., appellees.
___ N.W.2d ___
Filed June 8, 2018. No. S-17-723.
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. ____: ____. 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.
3. Actions: Parties: Final Orders: Appeal and Error. One may bring an
appeal pursuant to Neb. Rev. Stat. § 25-1315 (Reissue 2016) only when
(1) multiple causes of action or multiple parties are present, (2) the court
enters a “final order” within the meaning of Neb. Rev. Stat. § 25-1902
(Reissue 2016) as to one or more but fewer than all of the causes of
action or parties, and (3) the trial court expressly directs the entry of
such final order and expressly determines that there is no just reason for
delay of an immediate appeal.
4. Jurisdiction: Appeal and Error. An appellate court and the tribu-
nal appealed from do not have jurisdiction over the same case at the
same time.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Appeal dismissed.
Theodore P. Arndt, Authorized Attorney for the State of
Nebraska, for appellant.
Willow T. Head, of Law Offices of Willow T. Head, P.C.,
L.L.O., for appellee Ricky K.
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Daugherty, District Judge.
Cassel, J.
INTRODUCTION
The State of Nebraska initiated a proceeding to establish
support for two children, based upon notarized acknowledg-
ments of paternity. Ultimately, the pleadings framed multiple
claims. After the district court entered an order disestablish-
ing paternity of one child and taking no action on the other
claims, the State purported to appeal. Because our statute1
governing multiple parties and multiple claims dictates that
the order was not final or appealable, we dismiss the appeal
for lack of jurisdiction.
BACKGROUND
The State brought an action against Ricky K., the acknowl-
edged father of Marcelo K. and Rycki K., to establish child
support for the two minor children. Belinda D., the mother of
the minor children, was joined in the initial complaint, which
styled her as a “Third Party Defendant.”
Ricky filed an amended answer and counterclaim and cross-
claim (styled as a cross-complaint, despite seeking relief
against both the State and Belinda) in which he alleged that
he was not the biological father of Marcelo, that Belinda
fraudulently coerced him into signing the minor child’s birth
certificate, and that there was a material mistake of fact and
fraud based on her representations. For these reasons, he
sought a disestablishment of paternity as to Marcelo. As to
Rycki, Ricky admitted he was Rycki’s biological father and
sought joint legal and physical custody of the minor child.
The counterclaim and cross-claim set forth two “causes of
action” separately raising Ricky’s claims regarding Marcelo
and Rycki, respectively.
1
Neb. Rev. Stat. § 25-1315 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
The district court did not officially bifurcate the matter, but
the issues pertaining to the disestablishment of paternity of
Marcelo, including appointment of a guardian ad litem, were
referred to the district court referee. After genetic testing was
done, but before hearing on the disestablishment issue, the
referee appointed a guardian ad litem.
After an evidentiary hearing on disestablishment, the ref-
eree found that the genetic testing excluded Ricky from being
Marcelo’s biological father. However, because the referee
determined that both Ricky and Belinda signed the acknowl-
edgment of paternity knowing that Ricky was not Marcelo’s
biological father, it concluded that the evidence was insuffi-
cient to satisfy the required showing of fraud, material mistake
of fact, or duress. Consequently, the referee determined that
Ricky had failed to meet his burden of proof and recom-
mended denying disestablishment.
Ricky filed exceptions to the referee’s report and requested
that the issue be considered by the district court. After a
hearing, the district court sustained the exception to the ref-
eree’s recommendations and rejected its analysis and conclu-
sion. The court made independent findings and concluded
that the statutory requirements to set aside the acknowledg-
ment of paternity as to Marcelo on the basis of fraud had
been met.
The court entered this order on June 19, 2017. This order
purported to set aside the prior legal determination estab-
lishing Ricky’s paternity of Marcelo and ordered that Ricky
shall have no legal obligation of a parent or be recognized
as a parent to Marcelo. The order was silent as to Rycki, the
other child.
On July 17, 2017, the State purported to appeal from the
June 19 order. In due course, the appeal was docketed and we
moved it to our docket.2
2
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
On September 6, 2017, the district court entered a decree
of paternity addressing the remaining claims against Ricky
concerning the minor child Rycki. The decree stated in part,
“[Ricky] is found not to be the biological father of [Marcelo],
and [Ricky] filed to disestablish paternity of [Marcelo]. . . .
[A]fter a hearing, the Court found that fraud existed and dises-
tablishment was in the best interest of [Marcelo], and granted
disestablishment of paternity as it pertains to [Marcelo].” The
record does not show any appeal or attempt to appeal from
the September 6 decree.
ASSIGNMENTS OF ERROR
The State assigns that the district court abused its discre-
tion when it determined that Ricky successfully challenged a
notarized acknowledgment of paternity and met his burden to
show fraud, duress, or a material mistake of fact in the signing
of the acknowledgment.
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] Ricky asserts that there is “an issue whether or not
[this court] has jurisdiction based on whether the Order dated
June 19, 2017 is the final order.”4 Ricky does not explain why
this is so, but 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.5 Therefore, we
must first determine whether we have appellate jurisdiction to
review the district court’s order disestablishing Ricky’s pater-
nity of Marcelo.
3
Deleon v. Reinke Mfg. Co., 287 Neb. 419, 843 N.W.2d 601 (2014).
4
Brief for appellee at 1.
5
See Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
Appellate courts have jurisdiction to review the judgments
and final orders of the district court.6 A “judgment” is “the
final determination of the rights of the parties in an action.”7
The pleadings set forth three claims: the State’s claim to estab-
lish child support as to both children, Ricky’s “cause of action”
for disestablishment of Marcelo, and his “cause of action”
for custody and visitation of Rycki. The June 19, 2017, order
addressed only one of the three claims. Because the June 19
order did not finally determine the rights of the parties in the
paternity action, it was not a “judgment.”
[3] Another statute provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the
entry of judgment.8
And, where this statute is implicated, we have held that one
may bring an appeal pursuant to such section only when (1)
multiple causes of action or multiple parties are present, (2) the
court enters a “final order” within the meaning of Neb. Rev.
Stat. § 25-1902 (Reissue 2016) as to one or more but fewer
than all of the causes of action or parties, and (3) the trial court
expressly directs the entry of such final order and expressly
determines that there is no just reason for delay of an imme­
diate appeal.9
[4] In the present case, there were multiple parties and
multiple claims. However, the district court did not make an
6
See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
7
Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).
8
§ 25-1315(1).
9
See Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689
(2004).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
express direction for the entry of judgment. Presumably the
district court did not intend the June 19, 2017, order to be
final, because it retained jurisdiction over the case after the
State appealed and entered the paternity decree on September
6. It no doubt was aware of the longstanding principle that
an appellate court and the tribunal appealed from do not have
jurisdiction over the same case at the same time.10 Therefore,
without the district court’s express direction for the entry
of judgment, we have no jurisdiction to review the June
19 order.
Nonetheless, the State responded at oral argument that the
disestablishment order was a final order, because it was an
order affecting a substantial right made during a special pro-
ceeding, or perhaps, the State argued, made when such order in
effect determined the action and prevented a judgment.11
But the State does not explain how this would avoid the
effect of § 25-1315. That section states, “In the absence of
such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the
parties shall not terminate the action as to any of the claims
or parties . . . .”12 Even if disestablishment was fully adjudi-
cated by the June 19, 2017, order, it was asserted with other
claims in the overall proceeding. Because the June 19 order
did not adjudicate those other claims, it did not “terminate
the action as to any of the claims or parties,” including the
disestablishment claim.
For the sake of completeness, we note that in three lim-
ited instances, we have found § 25-1315 to not apply in the
case of a special proceeding. But, we find the present case
10
See, Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 469
(1996); State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 226
N.W. 318 (1929).
11
See § 25-1902.
12
§ 25-1315(1).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
distinguishable. First, we have declined to apply § 25-1315
to a postconviction order granting an evidentiary hearing on
some issues and denying a hearing on others.13 Although we
followed pre-§ 25-1315 precedent, we should have explained
that a postconviction proceeding does not raise multiple claims
within the meaning of § 25-1315, but may assert multiple
grounds for a prisoner’s claim of a “denial or infringement
of the rights of the prisoner as to render the judgment void or
voidable under the Constitution of this state or the Constitution
of the United States.”14 Here, in contrast, multiple claims
were presented.
Second, we have declined to apply § 25-1315 to an order
determining title in a partition proceeding where the par-
ties have united the issues of title and the right to partition.15
Because an order in such a case affirmatively disposes of
all title claims of all interested parties, it does not implicate
§ 25-1315 which only applies where there is a final order “as
to one or more but fewer than all of the claims or parties.”16
But, as we have explained, § 25-1315 is implicated in the
present case, because it involved multiple parties and multiple
claims and resolved fewer than all of the causes of action
or parties.
Finally, we have declined to apply § 25-1315 in the con-
text of an order denying intervention.17 In that circumstance,
we have found that the plain language of § 25-1315 is not
implicated, because although it references claims, counter-
claims, cross-claims, and third-party claims, it does not men-
tion complaints in intervention. Without plain language to the
13
See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
14
Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).
15
See Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889
N.W.2d 825 (2017).
16
§ 25-1315(1) (emphasis supplied).
17
See Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.
Cite as 300 Neb. 179
contrary, we shall continue to apply preexisting final order
jurisprudence to orders denying intervention. But, as here,
where the language of § 25-1315 is implicated, we must apply
the requirements of that section in order to find a final, appeal-
able order.
CONCLUSION
Because the State appealed from an order deemed to be
nonfinal under § 25-1315, we lack jurisdiction over the appeal.
Accordingly, the appeal must be dismissed.
A ppeal dismissed.