Mann v. Mann

Decision Date26 August 2022
Docket NumberS-19-1194.
Citation312 Neb. 275,978 N.W.2d 606
Parties Asia R. MANN, now known as Asia R. Harrison, appellee,, v. Brian L. MANN, appellant.
CourtNebraska Supreme Court

Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky, Pohren & Rogers, L.L.P., Omaha, for appellant.

Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for appellee.

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

Stacy, J.

This is an interlocutory appeal from an order of partial summary judgment entered in a proceeding brought to modify custody and child support. The Nebraska Court of Appeals concluded the summary judgment order was immediately appealable as a final order in a special proceeding under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020) and affirmed. On further review, we conclude that Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) was also implicated because the case involved multiple claims for relief and the partial summary judgment order resolved fewer than all such claims. Because § 25-1315(1) is implicated but has not been satisfied, we must vacate the decision of the Court of Appeals and remand the cause with directions to dismiss the appeal for lack of jurisdiction.

BACKGROUND

In 2009, Asia R. Mann, now known as Asia R. Harrison (Harrison), gave birth out of wedlock to a daughter, Maleah D. In 2010, a California court established paternity and entered a judgment which granted Harrison sole legal and physical custody of Maleah and granted visitation rights to Maleah's biological father.

MARRIAGE AND DIVORCE

In 2011, Harrison married Brian L. Mann. Their marriage produced two children. In 2016, Harrison filed a complaint for dissolution in the district court for Douglas County, Nebraska. While the dissolution was pending, Maleah's biological father registered the California paternity judgment in the same court. However, no party brought the registered paternity judgment to the attention of the dissolution court before the decree was entered, nor was the court informed that Maleah was the subject of a California custody judgment.

In July 2018, the district court entered a stipulated decree dissolving the parties’ marriage. The decree provided for joint legal and physical custody of the parties’ two children. Additionally, the decree recited that Mann stood in loco parentis to Maleah and ordered the parties to share joint physical custody of Maleah, with Harrison having sole legal custody. The decree also approved the parties’ stipulated parenting plan and ordered Mann to pay child support for all three children. Neither party appealed the 2018 decree.

COMPLAINT TO MODIFY JOINED WITH DECLARATORY JUDGMENT ACTION

In July 2019, Mann filed a complaint to modify his child support obligation and certain provisions of the parenting plan. Harrison's answer generally denied that Mann was entitled to modification. Harrison's answer also alleged two counterclaims. Her first counterclaim was framed as an action under the Uniform Declaratory Judgments Act,1 and it attacked the validity of provisions in the 2018 decree relating to Maleah's custody and care.2 Harrison alleged, summarized, that when the decree was entered, the 2010 California judgment of paternity and custody was still in full force and effect, and that California had not relinquished its exclusive and continuing jurisdiction over Maleah under the Uniform Child Custody Jurisdiction and Enforcement Act.3 She therefore alleged the Nebraska court did not have subject matter jurisdiction over Maleah when the dissolution decree was entered, and she sought a declaration that "any orders for [Maleah's] custody and care should be declared void as a matter of law." Harrison's second counterclaim sought to modify custody of the other two children to give her sole legal and physical custody.

PARTIAL SUMMARY JUDGMENT GRANTING DECLARATORY RELIEF

Both parties moved for partial summary judgment on Harrison's counterclaim for declaratory judgment. After an evidentiary hearing, the district court entered an order which granted Harrison's summary judgment motion and vacated that "portion of the Decree that provides for ‘in loco parentis’ rights to [Mann] with regard to Maleah." The order did not expressly overrule Mann's summary judgment motion or address his support obligations regarding Maleah.

Mann filed a motion to clarify and to set a supersedeas bond. In an order entered December 20, 2019, the district court clarified its prior order by granting Harrison's motion for summary judgment, denying Mann's motion for summary judgment, voiding every provision in the 2018 decree and parenting plan pertaining to Maleah, and eliminating all of Mann's support obligations regarding Maleah. The December order also denied Mann's request for a supersedeas bond.

Mann filed a notice of appeal from the partial summary judgment order, assigning error to the district court's conclusion that it lacked subject matter jurisdiction over Maleah under the Uniform Child Custody Jurisdiction and Enforcement Act when the decree was entered. It is undisputed that when the notice of appeal was filed, the parties’ competing complaints to modify custody and support remained pending and unresolved in the district court. Likewise, it is undisputed that Mann did not ask the court to enter final judgment on the declaratory judgment claim under § 25-1315(1), and no such certification was issued sua sponte.

COURT OF APPEALS

The Court of Appeals affirmed.4 It first addressed appellate jurisdiction, rejecting Harrison's argument that the partial summary judgment order was not immediately appealable under any of the final order categories enumerated in § 25-1902. Instead, the Court of Appeals reasoned that custody modifications are considered special proceedings,5 so the order granting partial summary judgment was an order "affecting a substantial right made during a special proceeding" under § 25-1902(1)(b). The opinion did not discuss or distinguish our cases reciting the rule that partial summary judgment orders are interlocutory in nature and will not be considered final until all issues in the case are determined.6 And although the Court of Appeals noted that the modification case presented other claims for relief that had not yet been resolved,7 its jurisdictional analysis did not address whether § 25-1315(1) was implicated.

After concluding it had appellate jurisdiction, the Court of Appeals framed the question on appeal as whether the district court had the authority to vacate or modify portions of the 2018 decree upon learning that it "should not have exercised jurisdiction on issues related to Maleah's custody due to the California court's continuing jurisdiction."8 It answered that question in the affirmative, finding the necessary authority in Neb. Rev. Stat. § 25-2001(4) (Reissue 2016), which governs a district court's power to vacate or modify judgments after term. The Court of Appeals therefore affirmed the district court's order granting partial summary judgment in favor of Harrison.

We granted Mann's petition for further review and ordered supplemental briefing. Among other questions, we asked the parties to brief whether, to be immediately appealable, an order of partial summary judgment which adjudicates fewer than all claims for relief presented in a custody modification case must satisfy both § 25-1902 and § 25-1315. The parties submitted supplemental briefs addressing this question, which we summarize later in our jurisdictional analysis.

ASSIGNMENTS OF ERROR

On further review, Brian assigns three errors, which can be consolidated and restated into one. He asserts the Court of Appeals erred in concluding the district court had authority, under § 25-2001(4), to vacate the 2018 decree provisions relating to Maleah.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.9

A trial court's decision to certify a final judgment pursuant to § 25-1315(1) is reviewed for an abuse of discretion,10 but whether § 25-1315 is implicated in a case is a question of law which an appellate court considers de novo.

ANALYSIS
APPELLATE JURISDICTION

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, irrespective of whether the issue is raised by the parties.11

The right of appeal in Nebraska is purely statutory, and unless a statute provides for an appeal, such right does not exist.12 The Legislature has authorized appeals from judgments and decrees, as well as final orders, made by the district court.13 A judgment is defined in Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2020) to mean "the final determination of the rights of the parties in an action."14 Final orders are defined in § 25-1902, which currently recognizes four categories of final orders; some categories pertain to actions,15 and one pertains to special proceedings.16

Additionally, in cases that present multiple claims for relief or involve multiple parties, § 25-1315(1) permits a trial court to certify an otherwise interlocutory order as a final, appealable judgment under the limited circumstances set forth in the statute.17 Subsection (1) of that statute provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or partie
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