Peterson v. Peterson

Decision Date30 May 2006
Docket NumberNo. A-04-893.,A-04-893.
PartiesMary J. PETERSON, appellant and cross-appellee, v. Paul R. PETERSON, appellee and cross-appellant.
CourtNebraska Court of Appeals

Van A. Schroeder, of Bertolini, Schroeder & Blount, Bellevue, for appellant.

Mark J. Milone, of Govier & Milone, L.L.P., Omaha, for appellee.

INBODY, Chief Judge, and IRWIN and CASSEL, Judges.

INBODY, Chief Judge.

INTRODUCTION

Mary J. Peterson appeals the decision of the district court for Sarpy County dissolving her marriage to Paul R. Peterson, and Paul has cross-appealed. For the reasons set forth herein, we dismiss both Mary's appeal and Paul's cross-appeal for lack of jurisdiction.

STATEMENT OF FACTS

On August 28, 1993, Mary and Paul were married. No children were born of the marriage. On March 26, 2003, Mary filed a petition for dissolution, and a trial was held on April 12, 2004.

On May 3, 2004, a document titled "Opinion and Findings" was file stamped and filed by the clerk of the district court. This document was signed by the trial judge and set forth the following:

JURISDICTION

The Court finds it has jurisdiction over the parties and subject matter of action and that there is sufficient evidence, and the Court finds the marriage is irretrievably broken and should be dissolved.

INSURANCE
Medical

The Respondent [Paul] shall maintain the Petitioner [Mary] insured during the interlocutory period, and shall, if requested by the Petitioner do all things necessary to allow the Petitioner to obtain COBRA benefits at her own expenses.

REAL PROPERTY

The Petitioner and Respondent are owners of the following described real estate, to wit: 7533 South 22nd Street, Bellevue, Nebraska.

The above real estate is awarded to the Petitioner, subject to the mortgage or mortgages thereon and the Petitioner shall hold the Respondent harmless from the payment of the same.

PERSONAL PROPERTY

The Petitioner and Respondent have each submitted to the Court exhibits regarding the division of the parties [sic] personal property. The Court having reviewed each exhibit finds the Respondent should be awarded the items as set out in Exhibit # 1 attached hereto, along with any other personal property now in his possession[.]

Each party is awarded any checking or savings accounts in their respective names.

AUTOMOBILES

Petitioner is awarded the 1994 Chevrolet Silverado truck, the Respondent is awarded the 1991 Chevrolet Caprice and the 1986 Ford Econoline Van, subject to any liens thereon.

DEBTS

Petitioner and Respondent shall pay all debts in their own names.

PENSION

Petitioner is awarded all interest in his 401K plan with National Bedding[.]

ALIMONY

The Court having reviewed the evidence determines that due to the length of the marriage, need for the Petitioner to seek additional training, need for Petitioner to obtain employment, that she should be awarded alimony in the sum of $500.00 per month for a period of 60 months. The same to terminate upon the death of either party or remarriage of the Petitioner.

ATTORNEY FEES AND COSTS

Petitioner is awarded the sum of $1500.00 for the services of her attorney in these actions, with the Respondent to pay the cost of the action.

ARREARAGE

Any unpaid amounts of temporary support shall be preserved and shall not merge into the decree. The court finding the non-payment of spousal support to be wilful.

[Petitioner's counsel] to prepare a Decree in conformance with the Court's findings and submit the same to opposing Counsel for approval, then to the Court for signature.

IT IS SO ORDERED.

On the following day, May 4, the court entered an order nunc pro tunc, which stated:

An Opinion and Order having been issued by the Court on May 3, 2004, the Court finds that in said Opinion scribners [sic] errors have occurred and the following corrections are made.

AUTOMOBILES

Respondent is awarded the 1994 Chevrolet Silverado truck, the Petiti[on]er is awarded the 1991 Chevrolet Caprice and the 1986 Ford Econoline Van, subject to any liens thereon.

PENSION

Respondent is awarded all interest in his 401K plan with National Bedding[.]

IT IS SO ORDERED.

Thereafter, on May 28, 2004, a "Decree of Dissolution of Marriage" was filed. This document was also signed by the trial judge and file stamped, and it set forth essentially the same findings that were set forth in the previous "Opinion and Findings" as amended by the May 4 order nunc pro tunc. On June 4, Mary filed a motion for new trial, which motion was denied on July 8. On August 3, Mary filed a notice of appeal. Paul has cross-appealed.

ASSIGNMENTS OF ERROR

On appeal, Mary contends that the district court erred (1) in dividing the parties' marital property, specifically in finding that her house was a marital asset, in whole or in part; (2) in awarding inadequate alimony; (3) in awarding inadequate attorney fees; (4) in failing to disregard Paul's testimony regarding his expenses; and (5) in failing to implement coercive sanctions for contempt of court following a finding of willful failure to pay temporary spousal support.

On cross-appeal, Paul contends that the district court erred (1) in awarding alimony for an unreasonable length of time, (2) in finding that Paul's nonpayment of spousal support was willful, and (3) in awarding Mary attorney fees of $1,500.

STANDARD OF REVIEW

In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).

A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Crawford v. Crawford, 263 Neb. 37, 638 N.W.2d 505 (2002).

ANALYSIS

[4] 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. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004); Cerny v. Longley, 266 Neb. 26, 661 N.W.2d 696 (2003).

Neb.Rev.Stat. § 25-1301 (Cum.Supp. 2004) provides in pertinent part:

(1) A judgment is the final determination of the rights of the parties in an action.

(2) Rendition of a judgment is the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action.

(3) The entry of a judgment, decree, or final order occurs when the clerk of the court places the file stamp and date upon the judgment, decree, or final order. For purposes of determining the time for appeal, the date stamped on the judgment, decree, or final order shall be the date of entry.

In the instant case, a document titled "Opinion and Findings" and signed by the judge was file stamped on May 3, 2004. Thereafter, a "Decree of Dissolution of Marriage," which was also signed by the judge, was file stamped on May 28, 2004. This raises an issue as to which filing is the final order in this case.

The Nebraska Supreme Court recently considered a nearly identical factual situation in City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006). In that case, the City of Ashland brought a declaratory judgment action against appellants Ashland Salvage, Inc., and Arlo Remmen "seeking a declaration as to the existence and lawful boundaries of certain public rights-of-way claimed by the city and further seeking an injunction against appellants' improper use of the public rights-of-way." Id. at 363, 711 N.W.2d at 864.

Following a trial, in a file-stamped journal entry dated November 22, 2004, the district court ruled in favor of the City of Ashland in the declaratory judgment action, "declaring the boundaries of appellants' property and the existence of the city's public rights-of-way. Specifically, in its journal entry, the district court stated that `a public right-of-way exists and its legal boundaries are as set forth in Exhibit 14.'" Id. at 365, 711 N.W.2d at 866. Further, in the journal entry, the district court "`enjoined [appellants] from any use of [the disputed] property inconsistent with its use as a public right-of-way.'" Id. The journal entry also "directed the city to prepare an `injunction,' and an `Order of Permanent Injunction' was subsequently filed on December 6." Id. at 365-66, 711 N.W.2d at 866. On November 30, the appellants filed their notice of appeal from the adverse ruling, and the Nebraska Supreme Court considered whether appellate jurisdiction existed in the case.

The Nebraska Supreme Court concluded:

[T]he district court's file-stamped journal entry of November 22, 2004, found in favor of the city, declared the boundaries of the rights-of-way, and enjoined appellants from any use of the disputed property inconsistent with the city's rights-of-way. This ruling resolved all issues raised in the city's declaratory action. Although the November 22 journal entry also directed the city to prepare an injunction, the November 22 ruling nevertheless disposed of the whole merits of the case[.]

Id. at 367, 711 N.W.2d at 867. Since the November 22 journal entry disposed of all the claims, the appeal taken from the November 22 journal entry was timely.

Another case involving a similar factual situation is Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004). In Hosack, the Nebraska Supreme Court was faced with the...

To continue reading

Request your trial
5 cases
  • Wagner v. Wagner
    • United States
    • Nebraska Supreme Court
    • May 16, 2008
    ...the parties and do not become a final order or judgment if file stamped. To the extent that the Court of Appeals' majority opinion in Peterson v. Peterson37 provides otherwise, it is disapproved. Instead, we agree with the dissenting opinion in Peterson, that "there [must] first be a final ......
  • In re Estate of Breinig, No. A-06-633 (Neb. App. 3/11/2008)
    • United States
    • Nebraska Court of Appeals
    • March 11, 2008
    ...to resemble the situation in City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006), and Peterson v. Peterson, 14 Neb. App. 778, 714 N.W.2d 793 (2006), where a decision apparently complete on its face is both signed by the trial judge and entered by the court clerk. Because......
  • Ferer v. Aaron Ferer & Sons Co.
    • United States
    • Nebraska Court of Appeals
    • July 29, 2008
    ...a party, dictates whether the document constitutes "`the final determination of the rights of the parties.'" Peterson v. Peterson, 14 Neb.App. 778, 785, 714 N.W.2d 793, 799 (2006), disapproved on other grounds, Wagner v. Wagner, 275 Neb. 693, 749 N.W.2d 137 (2008). See § 25-1301(1). In Neuj......
  • Vaughn v. Schnell, No. A-07-328 (Neb. App. 4/8/2008)
    • United States
    • Nebraska Court of Appeals
    • April 8, 2008
    ...861 (2006), because of the uncertainty as to which filed document is the final appealable order. See, also, Peterson v. Peterson, 14 Neb. App. 778, 714 N.W.2d 793 (2006) ("opinion and findings" document signed by trial judge and file stamped was final order as it set forth court's determina......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT