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Burns v. Burns

Supreme Court of Nebraska

May 27, 2016

MICHAEL P. BURNS, APPELLEE,
v.
KERRY E. BURNS, APPELLANT

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          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.

         Matt Catlett, of Law Office of Matt Catlett, for appellant.

         Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., for appellee.

         HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, STACY, and KELCH, JJ.

          OPINION

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         [293 Neb. 634] Cassel, J.

         INTRODUCTION

         Kerry 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.[1] 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.

         BACKGROUND

         A 2004 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.

         This 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.

         First Modification

         In 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 contempt.

         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 pending proceedings.

         In 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. A-13-387.

         Because the April 2013 order did not include child support worksheets, the

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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.

         In March 2015, the Court of Appeals issued a memorandum opinion.[2] 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.

         Second Modification

         On June 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.

         In September 2013, Kerry filed a " Special Appearance" [3] 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.

         In 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 ...


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