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Tilson v. Tilson

Supreme Court of Nebraska

February 16, 2018


          1. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court.

         2. __:__. 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.

         3. Jurisdiction: Final Orders: Time: Appeal and Error. To vest an appellate court with jurisdiction, the notice of appeal must be filed within 30 days of the entry of the final order.

         4. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three types of final orders which may be reviewed on appeal are (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding; and (3) an order made upon a summary application in an action after judgment.

         5. Actions: Modification of Decree. Proceedings regarding modification of a marital dissolution are special proceedings.

         6. Actions: Divorce. An application to modify the terms of a divorce decree is not the commencement of an action. It constitutes a continuation of the suit for dissolution of marriage.

         7. Final Orders: Appeal and Error. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.

         8. Divorce: Jurisdiction: Final Orders: Appeal and Error. Generally, when multiple issues are presented to the district court for simultaneous disposition in the same separate yet connected proceeding within [299 Neb. 65] the court's continuing jurisdiction over a dissolution decree, the court's determination of fewer than all the issues presented is not a final order for the purpose of an appeal.

         9. Final Orders. An order merely preserving the status quo pending a further order is not final.

         Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Appeal dismissed.

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

          David P. Kyker for appellee

          Kimberly L. Hill. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Miller-Lerman, J.

         I. NATURE OF CASE

         In this appeal, Jayson H. Tilson addresses the March 31, 2017, denial of that portion of his "complaint" and associated motion asking the district court for Lancaster County to declare void a dissolution decree that it had issued more than a year before. He argues that the decree is void because prior to the entry of the decree, he had filed a motion to dismiss the petition for dissolution, which he asserts was self-executing under Neb. Rev. Stat. § 25-602 (Reissue 2016). But Jayson's notice of appeal is from an order issued on April 4, denying his requests for various temporary orders and retaining for decision Jayson's application to modify the custody provisions of the decree. We conclude that the April 4 order was not final. Therefore, we dismiss this appeal for lack of jurisdiction.


         1. Dissolution In September 2014, Jayson filed a complaint for dissolution of his marriage to Erica M. Tilson. The record does not reflect that Erica filed an answer, but she made a general appearance before the court. Following a hearing, the court issued [299 Neb. 66] a temporary order awarding custody of the parties' minor children to Erica's mother, Kimberly L. Hill (Kimberly). The court granted Jayson and Erica supervised parenting time and ordered them both to pay Kimberly temporary child support.

         The court allowed Kimberly to intervene and appointed a guardian ad litem for the minor children. Kimberly and her husband filed a complaint, asking for grandparent visitation and custody of the children. There is no certificate of service attached to the complaint.

         Subsequently, on November 16, 2015, at 9 p.m., Jayson filed a motion to dismiss his complaint for dissolution. The next morning, on November 17, Kimberly filed a praecipe asking the court to issue summons and deliver to Jayson a copy of the complaint for grandparent visitation, at the hearing scheduled at 10 a.m., on November 17. The record contains two "Process Service Returns" from the sheriff's office of a "Copy of COMPLAINT, " with the service and return charges paid by Kimberly's counsel. The documents reflect that Jayson and Erica were personally served copies of the complaint on November 17.

         The hearing was held as scheduled on November 17, 2015, with Jayson in attendance. Referring to the November 17 hearing, the court's order states "[u]pon motion of [Jayson's] attorney . . . the Plaintiff's motion to dismiss is withdrawn."

         The court issued a consent decree of dissolution on December 8, 2015. The decree ordered the continuation of the children's legal and physical custody with Kimberly, with set parenting time for Jayson and Erica. Jayson was ordered to pay $200 per month "toward work-related childcare expenses, " in the event they were not subsidized. Erica was ordered to pay to Kimberly $100 in monthly child support.

         2. Contempt

         Approximately 10 months later, on October 18, 2016, the court found Jayson in contempt for failing to comply with his obligation under the decree to contribute to the children's childcare expenses.

          [299 Neb. 67] 3. Declaratory Relief. Modification, and Habeas

         (a) The "Complaint"

         On February 24, 2017, Jayson filed a "Complaint to Vacate or Modify, for Declaratory Judgment, and/or for Writ of Habeas Corpus." The "complaint" was filed under the same case number as the dissolution decree, and in the same court.

         Jayson asserted that the dissolution decree was void by virtue of his November 16, 2015, motion to dismiss. Based on this assertion, he sought an order of the court declaring the dissolution decree and "all orders flowing therefrom" null and void.

         Under the rubric of habeas corpus relief, Jayson alleged that the award of temporary custody of the children with Kimberly was unlawful, because it violated the parental preference principle. He asked for a writ ...

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