Burns v. Burns
| Decision Date | 27 May 2016 |
| Docket Number | No. S–14–789.,S–14–789. |
| Citation | 293 Neb. 633,879 N.W.2d 375 |
| Parties | Michael P. Burns, appellee, v. Kerry E. Burns, appellant. |
| Court | Nebraska Supreme Court |
Matt Catlett, of Law Office of Matt Catlett, Lincoln, for appellant.
Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., Hastings, for appellee.
Cassel
, J.
Kerry E. Burns appealed from a final order granting Michael P. Burns' June 2013 application to modify child custody. The application commenced a second modification proceeding that overlapped one begun by Kerry in 2011. The Nebraska Court of Appeals vacated the custody modification order and remanded the cause for dismissal, premised upon a statutory dismissal by operation of law for failure to complete service of process within 6 months.1 On further review, we conclude that (1) Kerry waived service of process by making a general appearance in the second proceeding and (2) the district court retained jurisdiction to modify custody while an appeal on other issues was pending. We therefore reverse the decision of the Court of Appeals and remand the cause with direction.
A 2004 decree dissolved the parties' marriage. Among other things, the decree awarded Kerry custody of the parties' three minor children, provided Michael with parenting time, and ordered Michael to pay child support.
This case later became procedurally complicated, in part because a second modification proceeding commenced before an earlier modification proceeding was completed. For purposes of this opinion, we will refer to the proceedings as the “first modification” and the “second modification.” The first modification resulted in appeals docketed as cases Nos. A–13–387 and A–13–1053. Proceedings in the second modification led to this appeal. We briefly summarize each modification proceeding. Although we generally indicate when some events occurred, we provide specific dates only for events directly related to our analysis.
In 2011, Kerry filed a complaint for modification requesting an increase in Michael's child support. She amended her complaint to add requests to eliminate a $100 negative deviation in Michael's child support, to change the parenting plan, and to obtain reimbursement for some of the children's health care expenses. In a “Counterclaim,” Michael sought an order finding Kerry in contempt.
In 2012, the parties apparently entered into a “Memorandum of Understanding” to settle all matters. Under the settlement agreement, Michael's child support increased to $1,650 per month net, based on a gross of $1,750 less the $100 deviation. The agreement stated that it would settle all pending matters and that both parties would file motions to dismiss. However, the settlement agreement was not filed with the court, and neither party moved to dismiss his or her pending proceedings.
In April 2013, Michael filed a motion for an order compelling Kerry to comply with the settlement's terms. Seven days later, the district court determined that the settlement agreement was enforceable and ordered the parties to abide by it. Kerry timely appealed. It was docketed as case No. A–13–387.
Because the April 2013 order did not include child support worksheets, the Court of Appeals remanded the cause to the district court with direction to prepare the applicable worksheets. The remand was ordered on June 5. The mandate was issued on July 15 and was spread on the district court's record on August 8. In October, the district court entered an order, purporting to comply with the remand. The court changed the monthly child support to $1,750 per month, eliminated the $100 deviation, and attached child support worksheets. Kerry appealed, and Michael cross-appealed. This appeal was docketed as case No. A–13–1053.
In March 2015, the Court of Appeals issued a memorandum opinion.2 It affirmed the April 2013 order incorporating the settlement, but reversed and vacated the portion of the October 2013 order eliminating the $100 deviation. Kerry sought further review, and we denied her petition on June 17, 2015.
On June 28, 2013, while the first modification was ongoing, Michael filed an “Application to Modify,” seeking a change of custody and a corresponding change to child support and parenting time. A summons was issued, but a deputy sheriff was unable to serve Kerry. Michael then filed a motion to appoint a special process server. The special process server later certified that personal service upon Kerry had been “effectuated.” But there is no dispute that the special process server did not serve Kerry with a summons.
In September 2013, Kerry filed a “Special Appearance”3 to object to the district court's jurisdiction over her. She claimed that no summons had been served upon her and that her daughter had received an envelope containing the application to modify. In February 2014, the district court overruled Kerry's special appearance. The court reasoned that Kerry received actual notice of the application and that there was no indication she had been prejudiced by the manner of service. Kerry subsequently filed an answer in which she alleged that the court lacked subject matter jurisdiction.
In August 2014, the district court granted Michael's application to modify. The court awarded Michael custody of the parties' youngest son, modified parenting time, and adjusted the parties' child support obligations. Upon Kerry's subsequent motion to amend the order, the court changed provisions relating to parenting time.
Kerry timely appealed. She assigned that the district court erred in (1) exercising jurisdiction over the second modification proceeding and (2) “permanently modifying child support and visitation, and therefore, inherently, custody, while a prior order pertaining to such issues was pending appeal.”
The Court of Appeals affirmed the decision of the district court in a memorandum opinion. Upon Kerry's motion for rehearing, the Court of Appeals sustained the motion in part and withdrew its memorandum opinion.
Thereafter, in a published opinion,4 the Court of Appeals vacated the district court's judgment and remanded the cause with directions. The court determined that Michael was required to serve summons on Kerry when he filed the application for modification and that failure to serve the summons on her within 6 months deprived the district court of jurisdiction. The Court of Appeals determined that the action stood dismissed as of December 28, 2013, and that any subsequent orders or pleadings were a ity.
The Court of Appeals overruled Michael's motion for rehearing. Michael then filed a petition for further review, which we granted.
Michael's petition for further review assigns eight errors. We consider only two issues: (1) whether jurisdiction was conferred on the district court such that the Court of Appeals erred in finding the case had been dismissed under Neb.Rev.Stat. § 25–217 (Reissue 2008)
at the expiration of 6 months from the filing of Michael's application to modify custody and (2) whether the district court had jurisdiction under Neb.Rev.Stat. § 42–351(2) (Reissue 2008) to enter an order in the second modification proceeding.
A jurisdictional question that does not involve a factual dispute presents a question of law.5 On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.6
The Court of Appeals determined that the district court lacked personal jurisdiction over Kerry at the time she filed her special appearance. The court observed that Neb.Rev.Stat. §§ 42–352 (Reissue 2008)
and 42–364(6) (Cum. Supp. 2014) direct that summons be served upon the other party to the marriage in a modification proceeding and that summons was not served on Kerry. The court further concluded that under § 25–217, the case was dismissed by operation of law on December 28, 2013, and that all subsequent pleadings and orders were a ity.
The plain language of the statutes supports the Court of Appeals' conclusion that a summons is required to be served on the defendant in a modification proceeding. Section 42–364(6)
provides: And a dissolution action requires summons to be served upon the other party by personal service or in the manner provided in Neb.Rev.Stat. § 25–517.02 (Reissue 2008).7
But for purposes of personal jurisdiction, the voluntary appearance of the party is equivalent to service of process.8 Participation in the proceedings on any issue other than the defenses of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process, waives all such issues except as to the objection that the party is not amenable to process issued by a court of this state.9 Thus, we have said that a general appearance waives any defects in the process or notice, the steps preliminary to its issuance, or in the service or return thereof.10
The Court of Appeals' opinion did not address whether Kerry made a general appearance. Admittedly, the transcript on appeal for the second modification proceeding sheds little light on the issue. The district court's October 2013 order references “post-mandate filings by the parties” that “did not respond to the mandate but instead raised matters outside the mandate.” But it is impossible to tell from this vague reference whether any such filing by Kerry would constitute a general appearance.
Due to the procedural posture of the first and second modification proceedings and their interwoven nature, we take...
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