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Burns v. Burns

Supreme Court of Nebraska

March 24, 2017

Michael P. Burns, Appellee,
v.
Kerry E. Burns, Appellant.

         1. Motions to Vacate: Time: Appeal and Error. The decision to vacate an order any time during the term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if it is shown that the district court abused its discretion.

         2. Judgments: Words and Phrases. An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Courts: Motions to Vacate. Although a court's decision to vacate an order is discretionary, this discretion is not an arbitrary one. It must be exercised reasonably and depends upon the facts and circumstances in each case as shown by the record.

         4. Jurisdiction: Venue: Words and Phrases. Jurisdiction is the inherent power or authority to decide a case; venue is the place of trial of an action-the site where the power to adjudicate is to be exercised.

         5. Statutes: Presumptions: Legislature: Intent. In interpreting a statute, a court is guided by the presumption that the Legislature intended a sensible rather than absurd result in enacting the statute.

         6. Trial: Venue: Parties: Stipulations. Absent statutory authority to the contrary or a written stipulation or oral stipulation on the record by all parties, trials and evidentiary hearings must be conducted in the county in which they are pending.

         Appeal from the District Court for Adams County: James e. doyle iv, Judge. Reversed and remanded with directions.

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

         [296 Neb. 185] Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., for appellee.

          Wright, miller-lermaN, Cassel, staCy, kelCh, and FuNke, JJ.

          KELCH, J.

         NATURE OF CASE

         This case requires this court to determine whether Neb. Rev. Stat. § 24-303 (Reissue 2016) authorizes a district court sitting in one county to order a party in a contempt proceeding to appear in another county to show cause for why she should not be held in contempt. We conclude it does not and therefore reverse the court's order and remand the cause.

         FACTS

         As an initial matter, we note that the district court judge handling this case is the Honorable James E. Doyle IV. Although Judge Doyle is a district court judge for the 11th Judicial District, this court appointed him to serve as the district court judge for the 10th Judicial District for the limited purpose of handling Burns v. Burns, case No. CI03-248. This was done because one of the parties, Michael P. Burns, served as a county court judge for the 10th Judicial District, thus creating a conflict of interest.

         Michael and Kerry E. Burns divorced in 2004. Since the divorce decree was issued, there have been several modifications and appeals.[1] This particular appeal involves a contempt proceeding between the parties, which was pending before the district court for Adams County.

         On January 6, 2016, Judge Doyle, acting as the district court judge for Adams County, issued an order requiring Kerry to appear in the Dawson County District Court in Lexington, Nebraska, on February 12 and show cause why she should not be held in contempt for refusing to comply with prior orders. On January 19, an affidavit of service of process was filed in [296 Neb. 186] the district court for Adams County, reflecting that Kerry had been personally served in Wichita, Kansas. Ultimately, Kerry did not appear for the show cause hearing, but an evidentiary hearing was nevertheless held in Dawson County.

         On February 24, 2016, the district court entered an order finding Kerry in contempt and sanctioning her therefore to 10 days in jail. The order also contained a purge plan.

         On March 3, 2016, Kerry moved the district court to vacate its February 24 order on the basis that the court did not have authority to hold an evidentiary ...


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