Appeal from the District Court for Sarpy County: MAX KELCH, Judge.
Karen S. Nelson, of Schirber & Wagner, L.L.P., for appellant.
Joni Visek for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
Kevin Francis Kibler filed a pro se complaint seeking a divorce from Cheryl Ann Kibler, now known as Cheryl Ann McMullan. After filing the complaint, Kevin retained counsel. A trial date was set, but before that date, the parties negotiated a settlement and Cheryl's attorney drafted a decree. When Cheryl refused to sign the decree, Kevin filed a motion to compel. At the hearing on the motion to compel, the court signed and entered a copy of the drafted decree. Cheryl filed a motion to vacate, which was denied. Cheryl appeals the denial of her motion to vacate. We affirm.
[287 Neb. 1028] BACKGROUND
Kevin and Cheryl were married in 1984. They had no children. On March 19, 2012, Kevin filed a pro se complaint seeking a divorce from Cheryl. The complaint included the statement that the marriage was irretrievably broken. Cheryl filed an answer on June 1, which admitted most of the allegations in the complaint, including that the marriage was irretrievably broken. Trial was set for December 7. The trial date was canceled after counsel advised the court that the parties had reached a settlement.
On January 27, 2013, Kevin filed a motion to compel, stating that the parties' agreement was memorialized by Cheryl in a decree of dissolution attached to the motion as an exhibit and that Cheryl now refused to sign and submit the draft decree. The motion requested that the court enter the decree and award attorney fees. The court held a hearing on the motion to compel on February 11, 2013.
At the hearing, Kevin's attorney appeared but Kevin did not. Cheryl and her attorney were both present. Both parties stated that Kevin signed the decree on January 18, 2013. Arrangements had been made for Cheryl to move her personal property from the house on January 19. Cheryl canceled the scheduled move, apparently because the movers arrived early. Cheryl did not want to sign the decree until after receiving her property. Cheryl's attorney also noted that the decree stated Cheryl would be allowed in the house to see if there was any additional property that belonged to her and that Cheryl had not yet been allowed in the house. The court granted that portion of the motion asking that the decree be entered, signing a copy of the decree which had not been signed by either party. Neither party appealed.
On May 13, 2013, Cheryl filed a motion to vacate, arguing that without a written stipulation between the parties or a stipulation on the record as to what the settlement agreement was, the court was without authority to enter a decree of dissolution of marriage. On May 28, Cheryl filed an amended motion to vacate which added that under Neb. Rev. Stat. § 42-361 (Cum. Supp. 2012), there needs to be a judicial finding or a ...