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Shawn E. v. Dlane S.

Supreme Court of Nebraska

June 22, 2018

Shawn E. on behalf of Grace E., a minor child, appellant,
v.
Dlane S. and State of Nebraska, appellees.

          1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

         2. Moot Question: Appeal and Error. An appellate court may choose to review an otherwise moot case under the public interest exception if it involves a matter affecting the public interest or when other rights or liabilities may be affected by its determination.

         3. Moot Question: Words and Phrases. The public interest exception requires a consideration of the public or private nature of the question presented, the desirability of an authoritative adjudication for future guidance of public officials, and the likelihood of future recurrence of the same or a similar problem.

         4. Garnishment. Garnishment in aid of execution is a provisional remedy created by statute directing the procedure to obtain such relief.

         5. Final Orders: Words and Phrases. A substantial right is an essential legal right.

         6. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken.

         7. Final Orders: Dismissal and Nonsuit: Appeal and Error. Without a final order, an appellate court lacks jurisdiction and must dismiss the appeal.

          Petition for further review from the Court of Appeals. Moore, Chief Judge, and Riedmann, Judge, and Inbody, [300 Neb. 290] Judge, Retired, on appeal thereto from the District Court for Buffalo County, John H. Marsh, Judge. Judgment of Court of Appeals affirmed.

          Shawn E., pro se.

          Shawn R. Eatherton, Buffalo County Attorney, and Kari R. Fisk for appellee State of Nebraska.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Hall, District Judge.

          CASSEL, J.

         INTRODUCTION

         As a matter of first impression, we consider whether a judgment debtor who, using the procedure specified in Neb. Rev. Stat. § 25-1011 (Reissue 2016), unsuccessfully objects to a garnishment may immediately appeal. Because we conclude that a substantial right is not affected until judgment is entered in the garnishment, an appeal must wait. The Nebraska Court of Appeals correctly dismissed Shawn E.'s premature appeal for lack of jurisdiction, and we affirm its decision.

         BACKGROUND

         The State of Nebraska initiated a garnishment action against Shawn, an inmate residing at the Nebraska State Penitentiary, alleging that he owed $3, 097.67 in past due child support and $2, 499.54 in medical support for a total of $5, 597.21. It caused a summons and order of garnishment to be sent to "the garnishee, [the] Nebraska Department of Corrections," to recover money in its possession belonging to Shawn.

         Shawn requested a hearing, asserting that he did not owe the amount of the judgment. A hearing was held, during which Shawn appeared telephonically. The State offered certified copies of Shawn's Department of Health and Human Services child support payment history and medical support payment history, which were received into evidence. The court took [300 Neb. 291] judicial notice of a journal entry establishing Shawn's child support obligation in the amount of $379 per month and cash medical support obligation in the amount of $62 per month. It also took judicial notice of a second journal entry suspending the child support portion of the prior order.

         At the hearing, Shawn argued that he did not owe the amount alleged and that there was no way he could make the payments the State claimed he owed. He further alleged that the Department of Health and Human Services "is charging me $62 . . . ...


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