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Fitzgerald v. Fitzgerald

Supreme Court of Nebraska

June 14, 2013

Timothy E. Fitzgerald, appellee and cross-appellant,
v.
Camille M. Fitzgerald, now known as Camille M. Fangmeier, appellant and cross-appellee.

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.

[286 Neb. 97] 4. Jurisdiction: Notice: Fees: Time: Appeal and Error. An appellate 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.

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 jurisdictional 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 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.

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.

Nancy S. Johnson, of Conway, Pauley & Johnson, P.C., for appellant.

Scott D. Grafton, of Svehla, Thomas, Rauert & Grafton, PC, for ...


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