Porter v. Porter
| Decision Date | 07 May 2021 |
| Docket Number | No. S-20-734.,S-20-734. |
| Citation | 309 Neb. 167,959 N.W.2d 235 |
| Parties | Sybil L. PORTER, appellant, v. Dustin S. PORTER, appellee, and State of Nebraska, intervenor-appellee. |
| Court | Nebraska Supreme Court |
INTRODUCTION
A mother sought a modification of child support and obtained a default order of modification. Upon the father's motion to vacate, the district court sustained the motion. We conclude the order appealed from—which set aside the default order modifying child support and set the matter for a status hearing—did not affect a substantial right of the parties. Because it was not a final order, we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Sybil L. Porter and Dustin S. Porter are the parents of two minor children. A 2012 divorce decree awarded Sybil custody of the children and ordered Dustin to pay child support. In 2015, the court modified the decree to reduce Dustin's child support. In 2017, the court entered another modification order after Dustin sustained a work-related injury and applied for Social Security disability benefits. The order provided, "The support that will accrue from this day forward will be suspended and will be paid from the arrearage payment for the [Social Security] dependent benefits when ordered and paid."
On March 25, 2020, Sybil filed a complaint for modification. She alleged that there had been a substantial and material change of circumstances necessitating a modification due to a change in income. A sheriff served summons on Dustin, but Dustin did not file a responsive pleading.
On May 12, 2020, Sybil filed a motion for default judgment against Dustin. During a June 15 hearing, Dustin appeared pro se and orally moved to continue the hearing. The court granted the request, setting the hearing for August 17.
As scheduled, the court held a hearing on August 17, 2020. Dustin did not appear, nor did counsel appear on his behalf. The court noted Dustin's absence and that he had not communicated with the court. The court received into evidence a February 2020 workers’ compensation court award, which determined that Dustin was entitled to benefits of $466.82 per week "for so long in the future as [he] remains permanently and totally disabled."
On August 18, 2020, the court entered an order of modification. The order recited that Dustin was present pro se at the August 17 hearing. The court found that there had been a substantial and material change of circumstances because Dustin received a workers’ compensation award equating to $2,022 per month of income for child support purposes. Among other things, the court ordered Dustin to pay $604 per month as child support for two children and to pay an additional $100 per month to address his child support arrearage.
Within 2 weeks, Dustin filed a motion to vacate or alter the August 2020 order. Dustin stated that he did not appear at the August 17 hearing. He asserted that the order did not reflect his income, that it was not based on accurate information, and that the court did not apply the Nebraska Child Support Guidelines.
The court held a hearing on the motion to vacate, which it ultimately granted. The court stated that it had equitable power to set aside a default judgment during the term, and it did so. By rule, the term of the court was coextensive with the calendar year.1 The court then set a status hearing for November 9, 2020. On October 7, the court entered an order memorializing that it set aside the August order of modification and set a further hearing for November 9.
The next day, October 8, 2020, Sybil appealed. We subsequently moved the case to our docket.2
ASSIGNMENT OF ERROR
Sybil assigns that the district court abused its discretion by sustaining Dustin's motion to vacate or alter the order of modification.
STANDARD OF REVIEW
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.3
ANALYSIS
It is the power and 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.4 Before reaching the error assigned on appeal, a threshold issue is whether the October 2020 order is a final order. There is no question that the district court had the power to vacate the August 2020 order. As we have often said, in a civil case, a court has inherent power to vacate or modify its own judgments at any time during the term at which those judgments are pronounced, and such power exists entirely independent of any statute.5 The question is whether an appeal lies from the order vacating the judgment. We ordered supplemental briefing by the parties on the jurisdictional issue and have considered their submissions.
Before reviewing our own jurisprudence, we note that the authorities in other states are divided. "In the cases where a default judgment has been set aside, a majority of the cases hold that such an order is interlocutory and not appealable, although a number of cases have taken the contrary view."6
Appellate jurisdiction hinges on whether the order vacating a default judgment constituted a final order under Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020). Under § 25-1902, an order is final for purposes of appeal if it (1) affects a substantial right and in effect determines the action and prevents a judgment, (2) affects a substantial right and is made during a special proceeding, (3) affects a substantial right and is made on summary application in an action after a judgment is rendered, or (4) denies a motion for summary judgment which was based on the assertion of sovereign immunity or the immunity of a government official.
We have encountered appeals from an order sustaining a motion to vacate or set aside a default judgment on numerous occasions. But many of our prior cases reaching the merits of the appeal did so without discussing a basis for appellate jurisdiction.7 Others reached contradictory conclusions as to whether the order was appealable. In contrast, our case law has consistently held that an order overruling a motion to vacate or set aside a default is appealable.8
Several early cases involving proceedings in error determined that an order vacating or setting aside a default judgment was not appealable.9 In Brown v. Edgerton ,10 we stated:
The order in question was one which, on motion of the defendant, vacated a judgment against him on default[,] during the same term at which it was rendered, to enable him to make a defense to the action. It is very clear that such an order is not covered by the [statutory definition of a final order]. It was in no sense final; it did not prevent, although its effect was doubtless to delay for awhile, the entry of a judgment.
In Rose v. Dempster Mill Mfg. Co. ,11 we reasoned that an order setting aside a judgment or decree and allowing the defendant to file an answer "is not a final one, but merely vacates the decree or deficiency judgment and allows the defendant to file an answer and make its defense." In an appeal from an order of the district court setting aside a default judgment and granting a new trial, this court explained:
In order to review the judgment of the district court in making the order complained of, the plaintiffs must await a final trial and judgment in this case, for, as has been well said, it may not be necessary for plaintiffs to appeal. If, upon the final trial in the district court, they should again recover a judgment, they would have no reason to complain of such order.12
But on at least two later occasions, we found an order vacating a default judgment to be a final order. In Jones v. Nebraska Blue Cross Hospital Service Assn. ,13 we declared, "The order vacating the judgment is an appealable one." In support, we cited § 25-1902 and Sang v. Lee .14 However, Sang involved an appeal from an order refusing to set aside a default judgment. Twenty years later, in Vacca v. DeJardine ,15 we stated:
At the outset, both in District Court and here, the defendants insist that the orders vacating the default judgments were not final orders and therefore not appealable. Cited in support of this contention are Brown v. Edgerton[16 ] and Roh v. Vitera[17 ]. Both of those cases stand for that proposition. However, in Jones v. Nebraska Blue Cross Hospital Service Assn. ,[18 ] this court squarely held in a similar case that "The order vacating the judgment is an appealable one." [19 ] We believe that this expresses the better-reasoned rule.
However, we did not elaborate on why we viewed Jones —which contained virtually no analysis—to articulate the "better-reasoned rule."20 A few years ago, in dicta, we expressed our belief that Vacca and Jones were not "wrongly decided."21
Our dissenting colleagues contend that the more recent case law, though untethered in statute, settles the issue. The U.S. Supreme Court has identified several factors in deciding whether to adhere to the principle of stare decisis, which include workability, the antiquity of the precedent, whether the decision was well reasoned, whether experience has revealed the precedent's shortcomings, and the reliance interests at stake.22 Application of these factors militate in favor of correcting our case law. Although a blanket rule declaring the appealability of an order sustaining a motion to vacate a default judgment would be convenient and workable, the right of appeal in Nebraska is purely statutory23 and such a rule does not comport with our final order statute. Section 25-1902 requires that an order affect a substantial right to be appealable, and we disagree that an order sustaining a motion to vacate a default judgment will always affect such a right. Regarding antiquity of the precedent, Jones24 was decided 58 years ago, but cases reaching the opposite conclusion dated back to the late 1800's and early 1900's.25 Jones took a contrary view without citing or distinguishing any of these earlier decisions and without an explanation as to how the order...
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