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Bryson L. v. Izabella L.

Supreme Court of Nebraska

January 25, 2019

BRYSON L., APPELLEE,
v.
IZABELLA L., APPELLEE. and David B., interested party, appellant.

         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. __:__. 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: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. § 25-1912 (Reissue 2016), to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.

         4. Motions to Vacate: Judgments: Time. In the absence of an applicable rule to the contrary, a motion asking the court to exercise its inherent power to vacate or modify its own judgment does not terminate the time for taking an appeal.

         5. Motions to Vacate: Final Orders: Time: Notice: Appeal and Error. A party can move a court to vacate or modify a final order, but if the court does not grant the motion, a notice of appeal must be filed within 30 days of the entry of the earlier final order if the party intends to appeal it.

         6. Pleadings: Judgments: Time: Appeal and Error. Filing a timely motion to alter or amend a judgment terminates the time in which a notice of appeal must be filed.

         7. Pleadings: Judgments: Time. In order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment, as required under Neb. Rev. Stat. § 25-1329 (Reissue 2016), and must seek substantive alteration of the judgment.

         8. Pleadings: Judgments: Time: Appeal and Error. A timely motion to alter or amend a judgment terminates the time to file an appeal, and the [302 Neb. 146] full 30-day period to appeal begins to run from the entry of the order ruling upon the motion to alter or amend a judgment.

         9. __: __:__:__. An untimely motion to alter or amend a judgment does not terminate the time for perfection of an appeal and does not extend or suspend the time limit for filing a notice of appeal.

          Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Appeal dismissed.

          Aaron C. Wegner, of Husker Law, for appellant.

          Heather L. Horst, of Walz Law Offices, P.C., L.L.O., for appellee

          Bryson L. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.

         INTRODUCTION

         This appeal turns upon a jurisdictional issue. Approximately 10 months after a marital dissolution decree was entered adjudicating paternity of a child, David B. sought to intervene and disestablish paternity. The district court entered a final order denying intervention. David then filed two motions to reconsider, one within 10 days of the final order, and after it was denied because it lacked a notice of hearing, he filed a second motion 11 days after the final order. Because David did not appeal within 30 days after the denial of his first motion to reconsider, which was properly construed as a motion to alter or amend the judgment, we lack jurisdiction of this appeal. The second motion, which was untimely as a motion to alter or amend, did not terminate or extend the time for appeal. We therefore dismiss the appeal.

         BACKGROUND

         Approximately 3 months after Izabella L. married Bryson L., she gave birth to a child. In November 2016, the district court approved the parties' property settlement agreement and dissolved the 2-year marriage. The decree awarded Bryson sole [302 Neb. 147] physical custody of the child and ordered that neither party shall pay child support due to Izabella's unemployment and limited income.

         In September 2017, David filed a motion to intervene in the dissolution case as an interested party. David alleged that when Izabella was pregnant and engaged to marry Bryson, she "indicated to [David] that he could be the father of the minor child." In light of Izabella's divorce, David obtained genetic testing. The test results, obtained in August, showed David's probability of paternity to be 99.999 percent. Thus, David sought to be included in the dissolution case in order to disestablish Bryson's custodial rights to the child under Neb. Rev. Stat. § 43-1412.01 (Reissue 2016). In October, David ...


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