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Schlake v. Schlake

Supreme Court of Nebraska

September 16, 2016

Marcia R. Schlake et al., Appellees,
v.
Gene W. Schlake, Appellant, and CWHEQ, Inc., et al., Appellees.

         1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         2. Jurisdiction: Appeal and Error. 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. This is so even where neither party has raised the issue.

         3. Partition: Final Orders. When the dispute in a partition action is over the partition itself rather than ownership or title, there is no final, appealable order until the partition is made.

         4. ___:___. When a partition action involves a dispute over ownership or title as well as a dispute over the method of partition, the parties have a right to have title determined first, and, if they elect to do so, an order resolving only the title dispute is a final, appealable order.

         5. ___:___. When the only issue in a partition action depends on ownership and the nature of the title, an order determining that issue is a final, appealable order.

         6. Partition. A proceeding within a partition action to determine only title is a special proceeding.

         7. Partition: Final Orders. In a partition action, the order adopting the referee's initial report and ordering a sale is not a final order. Rather, it is simply one step in the partition process.

         8. Partition: Judgments: Final Orders. In a partition action where the parties unite the issues and litigate the question of title and the right to partition at the same time, and the court determines both issues in the same order, such a judgment or order is only one step in the partition proceedings, is interlocutory in its nature, and cannot be reviewed until the final decree of partition, or until sale and confirmation.

         [294 Neb. 756] Appeal from the District Court for Gage County: Paul W. Korslund, Judge.

          Lyle J. Koenig, of Koenig Law Firm, for appellant.

          Jeffery W. Davis, of Carlson, Schafer & Davis, PC, L.L.O., for appellees Marcia R. Schlake, Tracy J. Schlake, and Tonia R. Katschke.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          STACY, J.

         SUMMARY

         This appeal seeks review of several orders entered by the district court in a partition action. Because we conclude none of the orders are properly before us for review, we dismiss the appeal.

         BACKGROUND

         Marcia R. Schlake and Gene W. Schlake purchased residential property in 1996 as joint tenants. They divorced in 1998. Their property settlement agreement, which was incorporated into the consent decree, provided that title to the residential property "shall remain in the joint ownership of the parties as joint tenants with the right of survivorship; provided that [Gene] shall assume and be solely responsible for the payment of the mortgage . . . taxes, insurance, maintenance and other expenses in connection with such property." The decree further provided that "[t]he parties shall not sell such real estate unless both parties agree in writing." Under the decree, if a sale took place, the parties were required to "agree upon the sale price" and "[u]pon the closing of the sale ... the parties shall equally divide the net proceeds from such sale."

         In 2002, Marcia conveyed a remainder interest in her undivided one-half interest to her two adult children, but retained a life estate interest in her one-half interest.

         [294 Neb. 757] In 2014, Marcia and her children (hereinafter collectively Marcia) filed a complaint in partition regarding the property. Gene opposed the partition in a pro se answer. The answer stated Gene lived in the residence and did not wish to sell it. and noted the parties' divorce decree provided they were not to sell the property unless they both agreed "in writing.''

         Marcia moved for summary judgment in the partition action. Gene appeared pro se at the hearing but offered no evidence and did not oppose the entry of summary judgment. On May 20, 2014, the court granted summary judgment in Marcia's favor, finding as a matter of law that the parties' shares and interests in the real estate were as alleged in Marcia's complaint, that a partition should be made, and that a referee should be appointed. No appeal was taken from this order.

         In June 2014, the referee recommended the court order a referee sale because the residential property could not be partitioned in kind. The referee recommended the net sale proceeds be divided between the parties based on their respective ownership interests.

         After the referee filed his report but before the district court ruled on it, Gene retained counsel and filed a motion to vacate the May 20, 2014, summary judgment order. In support of the motion to vacate, Gene argued that when a divorce decree gives parties a tenancy in common in marital property and one of the parties continues to reside on the property, the nonresiding party waives his or her right to partition under equity principles. In opposing the motion to vacate, Marcia argued Gene was precluded from raising such an affirmative defense at that stage of the proceedings, since a judgment in partition already had been entered on summary judgment. On November 13, the district court overruled Gene's motion to vacate, reasoning in part that although Gene "could have raised an affirmative defense that [the] conveyance was a sale in violation of the decree and that as a matter of equity [Marcia] should be precluded from seeking partition, " his failure to present such a defense in response [294 Neb. 758] to Marcia's summary judgment motion was "not grounds to vacate the judgment."

         Gene timely appealed from the order denying the motion to vacate. The Nebraska Court of Appeals dismissed his appeal in case No. A-14-1078 in a February 13, 2015, minute entry. The court cited Vrana v. Vrana[1] for the proposition that where an appeal in partition is prosecuted before the trial court has acted on the report of the referee, such appeal must be dismissed, because it is not from a final order.

         Thereafter, on March 16, 2015, the district court entered an order approving the referee's report and ordering that "the Referee proceed to sale of the premises at public auction as upon execution, upon such terms . . . and conditions as the Referee shall deem to be reasonable, and shall make due return of his biddings to this court." Gene timely appealed from the March 16 order, and we moved this case to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.[2]

         ASSIGNMENTS OF ERROR

         Gene assigns, restated, that the district court erred (1) in overruling his motion to vacate the summary judgment order; (2) in ordering partition of the property, in violation of the decree of dissolution; and (3) in accepting the referee's recommendation and ordering the property to be sold.

         STANDARD OF REVIEW

         A jurisdictional issue that does not involve a factual dispute ...


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