Carmicheal v. Rollins
| Decision Date | 18 June 2010 |
| Docket Number | No. S-09-775.,S-09-775. |
| Citation | 783 N.W.2d 763,280 Neb. 59 |
| Parties | Terry CARMICHEAL, appellee,v.Tracy ROLLINS, appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jurisdiction: Judgments: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach an independent conclusion.
2. Jurisdiction: Appeal and Error. 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: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.
5. Actions: Child Custody. A proceeding regarding custody determinations is a special proceeding.
6. Actions: Armed Forces: Civil Rights: Federal Acts: Intent. One of the articulated purposes of the Servicemembers Civil Relief Act, 50 U.S.C. app. § 501 et seq. (2006), is to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.
7. Armed Forces: Federal Acts: Intent. The Servicemembers Civil Relief Act, 50 U.S.C. app. § 501 et seq. (2006), is intended to strengthen and expedite the national defense by enabling persons in the military service to devote their entire energy to the defense needs of the nation.
8. Actions: Armed Forces: Federal Acts: Intent. The protections afforded by the Servicemembers Civil Relief Act, 50 U.S.C. app. § 501 et seq. (2006), are intended to be far ranging, applying to any judicial or administrative proceeding commenced in any court or agency in any jurisdiction subject to this act.
9. Jurisdiction. A request for a stay, or the grant of a stay, does not affect whether a court has jurisdiction.
10. Child Custody: Child Support: Final Orders. The grant of temporary custody and child support must be considered separately, and it is not a final order.
Robert Wm. Chapin, Jr., Lincoln, for appellant.
Eddy M. Rodell, Lincoln, for appellee.
Tracy Rollins appeals the temporary grant of custody to Terry Carmicheal, the father of her child. Rollins alleges that the Lancaster County District Court did not have jurisdiction to enter the temporary order under the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app. § 501 et seq. (2006). Rollins further alleges that the district court erred when it granted Carmicheal's petition for child support while she is deployed on active duty. Carmicheal argues that the district court had jurisdiction, that the SCRA does not apply to these circumstances, and that the court's temporary grant of custody is not a final, appealable order within the meaning of Neb.Rev.Stat. § 25-1902 (Reissue 2008). We affirm the order of the district court.
An order of paternity, custody, child support, and visitation was entered by the district court for Lancaster County on January 9, 2002, regarding the minor child of Rollins and Carmicheal. Rollins was given primary custody and support of the child at that time. The original order is not part of the record, although the district court took judicial notice of the order.
On April 9, 2009, Rollins filed an application to modify the original order due to a change in circumstances and requested an increase in support. On May 6, Rollins, a member of the U.S. Army Reserves, received orders deploying her overseas for a period of 400 days commencing on July 5. Carmicheal responded to the application to modify by entering a cross-complaint requesting custody of their child and support while Rollins was deployed.
On May 29, 2009, a hearing was held on the motions, including Rollins' motion to stay the proceedings under the SCRA. After that hearing, the district court scheduled an evidentiary hearing for June 17, at which hearing Rollins was present. Following the evidentiary hearing, the district court entered an order denying Rollins' motion to stay under the SCRA because her military duty did not materially affect her ability to appear. The district court then granted temporary custody to Carmicheal while Rollins was on active duty and granted Carmicheal's request for child support while he had custody of the minor child. The court also stated that its order was temporary and was intended only to enforce the original order. Pursuant to that original order, custody of the child would revert to Rollins when she returned from active duty, and Carmicheal would be required to pay Rollins child support as under the original order. Rollins appeals.
Rollins assigns that the district court erred in (1) finding that it had jurisdiction to hear the case, (2) not allowing her to exercise her family plan as submitted to the Army, and (3) awarding child support based on her overseas pay and not on her average income for a 3-year period.
Determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach an independent conclusion.1
Because Carmicheal has alleged that we do not have jurisdiction, we first turn to the question of whether the trial court's order was final and appealable. 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.2 For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken.3 The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.4
We have held that a proceeding regarding custody determinations is a special proceeding.5 However, we have not previously addressed whether the denial of a stay under the SCRA is an order affecting a substantial right. We find that it is.
One of the articulated purposes of the SCRA is “to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.” 6 The SCRA is also intended to “strengthen ... and expedite the national defense” by enabling persons in the military service “to devote their entire energy to the defense needs of the Nation.” 7 The protections afforded by the SCRA are intended to be far ranging, applying to “any judicial or administrative proceeding commenced in any court or agency in any jurisdiction subject to [the SCRA].” 8 Refusal to grant a stay of civil proceedings may result in the precise wrong that the SCRA was intended to prevent. In effect, if a servicemember is unable to defend himself or herself, he or she could be subjected to a default judgment, or other legal penalty, while serving his or her country.9 Therefore, we find that the denial of a stay affects a substantial right.
Having determined that Rollins' appeal is properly before us, we next turn to the question of whether the trial court erred when it denied Rollins' motion to stay. Section 522(a) states that “[t]his section applies to any civil action or proceeding ... in which the plaintiff or defendant at the time of filing an application under this section ... (1) is in military service or is within 90 days after termination of or release from military service.” A servicemember can request a stay under § 522 at any stage before final judgment in a civil proceeding to which the servicemember is a party. Upon application by the servicemember for a stay the court “shall ... stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.” 10
In order to qualify for a stay of the proceedings, the servicemember shall include “[a] letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.” 11 The servicemember is also required to include a “letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.” 12
With the requirements set forth in the SCRA in mind, we also consider case law from other states addressing requests for a stay under the SCRA. Although we note Rollins argues that the request for a stay under the SCRA deprives a court of jurisdiction, she has provided no case law to support that argument. And, as one court noted, granting a stay merely holds the case in abeyance until the servicemember can return to defend herself. 13 A request for a stay, or the grant of a stay, does not affect whether a court has jurisdiction.14
On May 28, 2009, Rollins filed a motion to stay as part of her affidavit in opposition to Carmicheal's request for temporary custody and support. In her...
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