Marcia R. Schlake et al., Appellees,
Gene W. Schlake, Appellant, and CWHEQ, Inc., et al., Appellees.
Judgments: Jurisdiction. A jurisdictional issue that does not
involve a factual dispute presents a question of law.
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.
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.
___:___. 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.
___:___. 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.
Partition. A proceeding within a partition action to
determine only title is a special proceeding.
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: 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
Neb. 756] Appeal from the District Court for Gage County:
Paul W. Korslund, Judge.
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.
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
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
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.
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.''
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
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
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
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 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.
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.
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
jurisdictional issue that does not involve a factual dispute