Nichols v. Nichols
| Decision Date | 13 June 2014 |
| Docket Number | No. S–13–841,S–13–841 |
| Citation | 288 Neb. 339,847 N.W.2d 307 |
| Parties | Bonnie Nichols, appellant, v. Margie Nichols, appellee. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge. Appeal Dismissed.
Megan N. Mikolajczyk and David A. Domina, of Domina Law Group, P.C., L.L.O., for appellant.
No appearance for appellee.
Jon Bruning, Attorney General, and James D. Smith for amicus curiae State of Nebraska.
Jennifer Gaughan for amicus curiae Legal Aid of Nebraska.
Amy A. Miller for amicus curiae American Civil Liberties Union Foundation of Nebraska.
Martin A. Cannon, Edward A. Morse, and Andrew M. Hollingsead for amicus curiae Thomas More Society–Omaha.
Dave Bydalek, of Nebraska Family Alliance, and James R. Cunningham, of Nebraska Catholic Conference, for amici curiae Nebraska Family Alliance and Nebraska Catholic Conference.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court.
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, irrespective
of whether the issue is raised by the parties.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.
4. Judgments: Final Orders: Equity. In an equitable case, conditional orders are void insofar as they purport to be final judgments.
5. Judgments: Final Orders: Words and Phrases. A “judgment” is a court's final consideration and determination of the respective rights and obligations of the parties to an action as those rights and obligations presently exist.
6. Judgments: Final Orders. “Conditional judgments” are not final determinations of the rights and obligations of the parties as they presently exist, but, rather, look to the future in an attempt to judge the unknown.
7. Judgments: Final Orders. While conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.
8. Judgments: Final Orders: Time: Appeal and Error. An appeal cannot be taken from a conditional order purporting to dismiss a pleading in the future upon the occurrence of an event.
9. Constitutional Law: Jurisdiction: Appeal and Error. Except in those cases wherein original jurisdiction is specially conferred by Neb. Const. art. V, § 2, the Nebraska Supreme Court exercises appellate jurisdiction, and such appellate jurisdiction can be conferred only in the manner provided by statute.
10. Actions: Judgments: Final Orders. A conditional order is not a judgment, because it is not the final determination of the rights of the parties in an action.
11. Motions to Dismiss: Judgments: Complaints: Appeal and Error. No appeal can be taken from an order that grants a motion to dismiss a complaint but allows time in which to file an amended complaint; such a conditional order is not a judgment.
Bonnie Nichols attempted to obtain a dissolution of her Iowa same-sex marriage to Margie Nichols. The district court granted Margie's motion to dismiss but allowed Bonnie to amend her complaint. The court's order purported to dismiss Bonnie's complaint in the future if she failed to amend it within a specified time. After the time expired and without further court action, Bonnie appealed. The court's conditional order, under long-established precedent, cannot perform as a final judgment. Nebraska statutes govern judgments and appeal procedures, and Nebraska's shift to notice pleading did not change those statutes. Because there was no final judgment, we must dismiss the appeal.
According to the complaint, Bonnie and Margie were married in Iowa in 2009. In 2012, Bonnie filed a complaint in the district court for Lancaster County to dissolve the union described in the complaint. The complaint also requested a determination of custody and parenting time for the parties' child and an equitable division of the parties' property.
Margie moved to dismiss the action. She alleged that a Nebraska court lacked jurisdiction to dissolve a same-sex marriage.
On August 30, 2013, the district court entered an order granting Margie's motion to dismiss for lack of subject matter jurisdiction. The court concluded that it lacked subject matter jurisdiction to dissolve the same-sex marriage, because granting a dissolution of marriage under Nebraska law necessarily involves recognizing the marriage and Nebraska's Constitution prohibits recognizing a same-sex marriage.1 The court also rejected Bonnie's argument that Nebraska courts have jurisdiction under the doctrine of comity. The court gave Bonnie 15 days to file an amended complaint if she wished to pursue relief under a different legal theory. The order stated, “If no Amended Complaint is filed within 15 days, this matter will stand dismissed, with prejudice.”
Bonnie did not file an amended complaint. The district court did not enter a judgment dismissing the action. On September 27, 2013, Bonnie filed a notice of appeal, stating that an order was entered on August 30 and “was formally dismissed with prejudice on September 14, 2013.” We granted Bonnie's petition to bypass the Nebraska Court of Appeals and directed supplemental briefing regarding the continued vitality of our conditional order case law.
Bonnie assigns, restated and consolidated, that the district court erred in (1) failing to give full faith and credit to a valid marriage in a sister state; (2) dismissing the complaint based on Neb. Const. art. I, § 29, when that provision violates provisions and amendments of the U.S. Constitution; and (3) denying Bonnie equal protection of the law and refusing to exercise subject matter jurisdiction on the ground that the parties are of the same gender.
The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court.2
We must first confront the absence of a judgment dismissing the complaint. 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.3 For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.4 The court's August 30, 2013, order gave Bonnie time to file an amended complaint and stated that the matter would stand dismissed if no amended complaint was filed within 15 days. This was a conditional order.
In an equitable case, conditional orders are void insofar as they purport to be final judgments.5 This is because a “judgment” is a court's final consideration and determination of the respective rights and obligations of the parties to an action as those rights and obligations presently exist.6 “Conditional judgments” are not final determinations of the rights and obligations of the parties as they presently exist, but, rather, look to the future in an attempt to judge the unknown.7 While conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.8
We have long held that an appeal cannot be taken from a conditional order purporting to dismiss a pleading in the future upon the occurrence of an event. In Federal Land Bank of Omaha v. Johnson,9 the trial court sustained a demurrer and ordered that “ ‘the Plaintiff be and it hereby is allowed ten days in which to further amend its Petition and upon Plaintiff's failure to so amend, this matter shall be automatically dismissed at Plaintiff's cost.’ ” This court determined that the order was a conditional order and not a final judgment and, thus, that an appeal from it could not be taken. And in Schaad v. Simms,10 the trial court entered in its docket notes, “ ‘Plaintiff is given 14 days to file second amended petition or to select to stand on amended petition, in which instance [one of the defendants] will stand dismissed from this action without further hearing.’ ” But because there was no order actually dismissing the action, we determined that there was no final and appealable order and, thus, no appellate jurisdiction. We have consistently rejected attempts to appeal from orders purporting to become effective in the future upon the failure of a condition. 11
Bonnie urges that our conditional order jurisprudence was abandoned in Nebraska's shift to a notice pleading system. We disagree. Since our move to a notice pleading system, we have not discussed the appealability of a conditional order. In one instance, a conditional order was followed by a final judgment and we addressed the appeal's merits.12 But in that case, we did not discuss jurisdiction.
The shift from code to notice pleading did not change the statutory procedures governing judgments and appeals. Except in those cases wherein original jurisdiction is specially conferred by Neb. Const. art. V, § 2, the Nebraska Supreme Court exercises appellate jurisdiction, and such appellate jurisdiction can be conferred only in the manner provided by statute. 13 Thus, we must look to our statutes to determine whether we have jurisdiction of an appeal.
Treating a conditional order as appealable would not be consistent with our statutory framework governing judgments and appeals. First, a...
To continue reading
Request your trial
-
Thompson v. Heineman
...v. State, 270 Neb. 100, 699 N.W.2d 387 (2005).4 Engler v. State, 283 Neb. 985, 814 N.W.2d 387 (2012).5 See, e.g., Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014).6 Field Club v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (2012).7 Id.8 Id.9 See, e.g., Project Extra ......
-
Becher v. Becher
...the respective rights and obligations of the parties to an action as those rights and obligations presently exist. Nichols v. Nichols , 288 Neb. 339, 847 N.W.2d 307 (2014). See Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2020). The court's May 11, 2016, order made such a determination regardin......
-
Heckman v. Marchio
...Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).20 See Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933).21 See Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014).22 Richardson v. Griffiths , supra note 2.23 Id. at 831, 560 N.W.2d at 435, quoting Maddocks v. Ricker , supra note 1.......
-
Robinson v. Houston, S-17-287
..., 271 Wis.2d 633, 663, 681 N.W.2d 110, 124 (2004).23 § 25-2301.02(1) (emphasis supplied).24 See Neb. Rev. Stat. § 25-1902 (Reissue 2016).25 Nichols v . Nichols , 288 Neb. 339, 847 N.W.2d 307 ...