JAYSON H. TILSON, APPELLANT,
ERICA M. TILSON, APPELLEE, AND KLMBERLY L. HLLL, INTERVENOR-APPELLEE .
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.
__:__. 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.
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.
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.
Actions: Modification of Decree. Proceedings
regarding modification of a marital dissolution are special
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.
Final Orders: Appeal and Error. An order
affects a substantial right when the right would be
significantly undermined or irrevocably lost by postponing
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
Final Orders. An order merely preserving the
status quo pending a further order is not final.
from the District Court for Lancaster County: Robert R. Otte,
Judge. Appeal dismissed.
Catlett, of Law Office of Matt Catlett, for appellant.
P. Kyker for appellee
Kimberly L. Hill. Heavican, C.J., Miller-Lerman, Cassel,
Stacy, Kelch, and Funke, JJ.
NATURE OF CASE
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.
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.
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.
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.
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."
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.
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
Neb. 67] 3. Declaratory Relief. Modification, and Habeas
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.
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.
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 ...