MICHAEL P. BURNS, APPELLEE,
KERRY E. BURNS, APPELLANT
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Petition for further review from the Court of Appeals, IRWIN,
INBODY, and RIEDMANN, Judges, on appeal thereto from the
District Court for Adams County, JAMES E. DOYLE IV, Judge.
Catlett, of Law Office of Matt Catlett, for appellant.
M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., for
C.J., WRIGHT, MILLER-LERMAN, CASSEL, STACY, and KELCH, JJ.
Neb. 634] Cassel, J.
E. Burns appealed from a final order granting Michael P.
Burns' June 2013 application to modify child [293 Neb.
635] custody. The application commenced a second modification
proceeding that overlapped one begun by Kerry in 2011. The
Nebraska Court of Appeals vacated the custody modification
order and remanded the cause for dismissal, premised upon a
statutory dismissal by operation of law for failure to
complete service of process within 6 months. On further
review, we conclude that (1) Kerry waived service of process
by making a general appearance in the second proceeding and
(2) the district court retained jurisdiction to modify
custody while an appeal on other issues was pending. We
therefore reverse the decision of the Court of Appeals and
remand the cause with direction.
decree dissolved the parties' marriage. Among other
things, the decree awarded Kerry custody of the parties'
three minor children, provided Michael with parenting time,
and ordered Michael to pay child support.
case later became procedurally complicated, in part because a
second modification proceeding commenced before an earlier
modification proceeding was completed. For purposes of this
opinion, we will refer to the proceedings as the " first
modification" and the " second modification."
The first modification resulted in appeals docketed as cases
Nos. A-13-387 and A-13-1053. Proceedings in the second
modification led to this appeal. We briefly summarize each
modification proceeding. Although we generally indicate when
some events occurred, we provide specific dates only for
events directly related to our analysis.
2011, Kerry filed a complaint for modification requesting an
increase in Michael's child support. She amended her
complaint to add requests to eliminate a $100 negative
deviation [293 Neb. 636] in Michael's child support, to
change the parenting plan, and to obtain reimbursement for
some of the children's health care expenses. In a "
Counterclaim," Michael sought an order finding Kerry in
2012, the parties apparently entered into a " Memorandum
of Understanding" to settle all matters. Under the
settlement agreement, Michael's child support increased
to $1,650 per month net, based on a gross of $1,750 less the
$100 deviation. The agreement stated that it would settle all
pending matters and that both parties would file motions to
dismiss. However, the settlement agreement was not filed with
the court, and neither party moved to dismiss his or her
April 2013, Michael filed a motion for an order compelling
Kerry to comply with the settlement's terms. Seven days
later, the district court determined that the settlement
agreement was enforceable and ordered the parties to abide by
it. Kerry timely appealed. It was docketed as case No.
the April 2013 order did not include child support
Court of Appeals remanded the cause to the district court
with direction to prepare the applicable worksheets. The
remand was ordered on June 5. The mandate was issued on July
15 and was spread on the district court's record on
August 8. In October, the district court entered an order,
purporting to comply with the remand. The court changed the
monthly child support to $1,750 per month, eliminated the
$100 deviation, and attached child support worksheets. Kerry
appealed, and Michael cross-appealed. This appeal was
docketed as case No. A-13-1053.
March 2015, the Court of Appeals issued a memorandum
opinion. It affirmed the April 2013 order
incorporating the settlement, but reversed and vacated the
portion of the [293 Neb. 637] October 2013 order eliminating
the $100 deviation. Kerry sought further review, and we
denied her petition on June 17, 2015.
28, 2013, while the first modification was ongoing, Michael
filed an " Application to Modify," seeking a change
of custody and a corresponding change to child support and
parenting time. A summons was issued, but a deputy sheriff
was unable to serve Kerry. Michael then filed a motion to
appoint a special process server. The special process server
later certified that personal service upon Kerry had been
" effectuated." But there is no dispute that the
special process server did not serve Kerry with a summons.
September 2013, Kerry filed a " Special Appearance"
to object to the district court's jurisdiction over her.
She claimed that no summons had been served upon her and that
her daughter had received an envelope containing the
application to modify. In February 2014, the district court
overruled Kerry's special appearance. The court reasoned
that Kerry received actual notice of the application and that
there was no indication she had been prejudiced by the manner
of service. Kerry subsequently filed an answer in which she
alleged that the court lacked subject matter jurisdiction.
August 2014, the district court granted Michael's
application to modify. The court awarded Michael custody of
the parties' youngest son, modified parenting time, and
adjusted the parties' child support obligations. Upon
Kerry's subsequent ...