Olson v. Palagi, S-02-273.
| Decision Date | 18 July 2003 |
| Docket Number | No. S-02-273.,S-02-273. |
| Citation | 665 N.W.2d 582,266 Neb. 377 |
| Parties | Sharon K. OLSON, formerly known as Sharon K. Palagi, Appellee, v. Ronald J. PALAGI, Appellant. |
| Court | Nebraska Supreme Court |
Steven H. Howard, G. Rosanna Moore, and Shayla M. Reed, of Law Offices of Ronald J. Palagi, P.C., Omaha, for appellant.
Theodore J. Stouffer, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.
Appellant Ronald J. Palagi (Palagi) was ordered to pay child support as part of his divorce from appellee Sharon K. Olson, formerly known as Sharon K. Palagi (Olson). In 1998, Palagi filed an ultimately unsuccessful application to terminate child support. Olson sought, in the district court, to recover attorney fees and costs accrued in the course of resisting Palagi's application at the trial level. On February 5, 2002, the district court granted attorney fees and costs to Olson, and Palagi appeals. Because we determine that the district court did not have jurisdiction to enter the February 5 order, we vacate the order and dismiss the appeal.
As part of the parties' divorce in 1988, Palagi was ordered to pay child support for their daughter, Eva, born to that marriage in 1980. On July 6, 1998, Palagi filed an application to terminate his $1,000 per month child support obligation as of June 30, 1998, because thereafter Eva was attending college at the University of Kansas in Lawrence; was not residing in Olson's home in Bellevue, Nebraska; and had attained Kansas' age of majority. Olson filed an answer, denying that Eva had left her home in Bellevue and alleging that Eva maintained her legal residence with her and that Eva lived with her when not attending the University of Kansas. As part of her answer, Olson specifically requested that Palagi's application be denied and that she should be awarded attorney fees and costs.
A May 5, 2000, trial was conducted on stipulated facts, none of which concerned the amount or reasonableness of attorney fees. Based on these stipulated facts, the district court entered an order dated May 9, 2000, and file stamped on May 10, denying Palagi's application to terminate child support. The order did not speak to Olson's request for attorney fees and costs. A handwritten docket entry, dated May 9, 2000, noted the entry of the order and further stated, "Nothing under advisement." Olson did not file a motion for new trial with respect to the May 10 order. However, on May 23, Olson filed an application for attorney fees and costs. A separate evidentiary hearing on this issue was scheduled for June 13. On June 8, before that hearing occurred, Palagi filed a notice of appeal from the denial of his application to terminate child support.
The record does not show any activity on the attorney fees issue for the next several months. On January 2, 2001, the court sent out notices of impending dismissal of the attorney fees action for lack of prosecution unless a certificate of readiness was timely filed. The certificate not forthcoming, the court dismissed the action without prejudice for lack of prosecution on February 2. Meanwhile, the appeal of the application to terminate child support was heard in the Nebraska Court of Appeals. On May 29, 2001, that court affirmed the district court's order denying Palagi's application. Palagi v. Palagi, 10 Neb.App. 231, 627 N.W.2d 765 (2001). Thereafter, Olson filed a notice of evidentiary hearing on the now-dismissed attorney fees issue. The district court held a hearing on December 17, apparently without setting aside the dismissal or reinstating the case. Based on evidence presented at that hearing, the district court on February 5, 2002, awarded Olson $6,699 in attorney fees and $127.70 in costs associated with the litigation surrounding Palagi's application to terminate child support. Palagi timely appeals.
Palagi assigns, restated, that the district court erred by (1) finding it had jurisdiction over the issue of attorney fees and costs when its May 10, 2000, order did not mention them and the appellate decision did not authorize them, (2) failing to apply res judicata to the issue of attorney fees and costs, (3) exercising jurisdiction over a child support case at a time when no children of the marriage were minors, (4) exercising jurisdiction when the underlying application had been dismissed by an order of dismissal on progression, and (5) abusing its discretion in awarding excessive attorney fees.
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. Waite v. City of Omaha, 263 Neb. 589, 641 N.W.2d 351 (2002).
Palagi's first assignment of error asserts that at the time of its February 5, 2002, order awarding attorney fees and costs to Olson, the district court did not have subject matter jurisdiction over that issue. The law supports his argument.
The original May 10, 2000, order denied Palagi the requested child support termination without articulating a ruling on the attorney fees issue requested by Olson in her answer. The question is whether this silence in the dispositive order constitutes a denial which should have been timely appealed or cross-appealed in May or June 2000.
Neb.Rev.Stat. § 42-351 (Reissue 1998) is the basis of the court's authority to award attorney fees and costs in this child support modification proceeding. Section 42-351(1) states:
256 Neb. 299, 589 N.W.2d 542 (1999); Muff v. Mahloch Farms Co., Inc., 186 Neb. 151, 181 N.W.2d 258 (1970).
In Salkin, supra, we...
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