Tilson v. Tilson
| Decision Date | 16 February 2018 |
| Docket Number | No. S-17-468,S-17-468 |
| Citation | 907 N.W.2d 31,299 Neb. 64 |
| Parties | Jayson H. TILSON, appellant, v. Erica M. TILSON, appellee, and Kimberly L. Hill, Intervenor-appellee. |
| Court | Nebraska Supreme Court |
Matt Catlett, Lincoln, of Law Office of Matt Catlett, for appellant.
David P. Kyker, Lincoln, for appellee Kimberly L. Hill.
In this appeal, Jayson H. Tilson addresses the March 31, 2017, denial of that portion of his "complaint" and associated motion asking the district court for Lancaster County to declare void a dissolution decree that it had issued more than a year before. He argues that the decree is void because prior to the entry of the decree, he had filed a motion to dismiss the petition for dissolution, which he asserts was self-executing under Neb. Rev. Stat. § 25-602 (Reissue 2016). But Jayson’s notice of appeal is from an order issued on April 4, denying his requests for various temporary orders and retaining for decision Jayson’s application to modify the custody provisions of the decree. We conclude that the April 4 order was not final. Therefore, we dismiss this appeal for lack of jurisdiction.
In September 2014, Jayson filed a complaint for dissolution of his marriage to Erica M. Tilson. The record does not reflect that Erica filed an answer, but she made a general appearance before the court. Following a hearing, the court issued a temporary order awarding custody of the parties’ minor children to Erica’s mother, Kimberly L. Hill (Kimberly). The court granted Jayson and Erica supervised parenting time and ordered them both to pay Kimberly temporary child support.
The court allowed Kimberly to intervene and appointed a guardian ad litem for the minor children. Kimberly and her husband filed a complaint, asking for grandparent visitation and custody of the children. There is no certificate of service attached to the complaint.
Subsequently, on November 16, 2015, at 9 p.m., Jayson filed a motion to dismiss his complaint for dissolution. The next morning, on November 17, Kimberly filed a praecipe asking the court to issue summons and deliver to Jayson a copy of the complaint for grandparent visitation, at the hearing scheduled at 10 a.m., on November 17. The record contains two "Process Service Returns" from the sheriff’s office of a "Copy of COMPLAINT," with the service and return charges paid by Kimberly’s counsel. The documents reflect that Jayson and Erica were personally served copies of the complaint on November 17.
The hearing was held as scheduled on November 17, 2015, with Jayson in attendance. Referring to the November 17 hearing, the court’s order states "[u]pon motion of [Jayson’s] attorney ... the Plaintiff’s motion to dismiss is withdrawn."
The court issued a consent decree of dissolution on December 8, 2015. The decree ordered the continuation of the children’s legal and physical custody with Kimberly, with set parenting time for Jayson and Erica. Jayson was ordered to pay $200 per month "toward work-related childcare expenses," in the event they were not subsidized. Erica was ordered to pay to Kimberly $100 in monthly child support.
Approximately 10 months later, on October 18, 2016, the court found Jayson in contempt for failing to comply with his obligation under the decree to contribute to the children’s childcare expenses.
On February 24, 2017, Jayson filed a "Complaint to Vacate or Modify, for Declaratory Judgment, and/or for Writ of Habeas Corpus." The "complaint" was filed under the same case number as the dissolution decree, and in the same court.
Jayson asserted that the dissolution decree was void by virtue of his November 16, 2015, motion to dismiss. Based on this assertion, he sought an order of the court declaring the dissolution decree and "all orders flowing therefrom" null and void.
Under the rubric of habeas corpus relief, Jayson alleged that the award of temporary custody of the children with Kimberly was unlawful, because it violated the parental preference principle. He asked for a writ of habeas corpus placing the custody of the children with him.
Alternatively to an order declaring the dissolution void, Jayson sought an order modifying the decree so as to place the children in his custody. Jayson alleged a change in circumstances. In particular, he alleged that Kimberly was neglecting the children and that Erica was in jail awaiting criminal charges.
Kimberly filed an answer generally denying the allegations and asking that the matter be dismissed. No ruling on the motion to dismiss is found in the record.
On March 10, 2017, Jayson filed a "Motion for Declaratory Relief or Temporary Suspension of Implementation and Enforcement of Decree, Temporary Custody, Temporary Child Support, Temporary Restraining Orders." The district court referred to this motion as "Filing 14."
Specifically, Jayson moved for a declaration that the decree of dissolution and all orders flowing therefrom are void and of no effect. In support of this relief, Jayson repeated his assertion that his motion to dismiss the complaint for dissolution was self-executing and therefore deprived the court of jurisdiction to issue the dissolution decree.
"[I]n lieu" of such declaratory relief, Jayson moved for orders (1) temporarily suspending enforcement of the decree as it relates to the care, custody, control, and support of the minor children; (2) temporarily awarding Jayson exclusive custody of the children; (3) temporarily prohibiting Erica from having parenting time; (4) temporarily prohibiting Erica from having access to medical and education records; (5) temporarily prohibiting Kimberly from having visitation with the children; (6) temporarilyprohibiting Kimberly from having access to the children’s medical or education records; and (7) temporarily requiring Erica to pay Jayson child support and share in medical and childcare expenses.
In support of this "temporary" relief, Jayson alleged that the parental preference principle prohibited the award of custody of the children to Kimberly when he had not been found to be unfit. He further alleged that Erica was unfit to have custody and that it was contrary to the children’s best interests for Kimberly to have visitation.
On March 31, 2017, the court overruled that part of Jayson’s "Filing 14" requesting that the court declare the dissolution decree void. The court’s order, signed and file stamped on March 31, incorporates its docket entry, stating that ) Also on March 31, the court denied Jayson’s requests for full temporary custody and suspension of child support while the case was pending.
The "custody case" was set for a trial to be held on August 21, 2017.
On April 4, 2017, the court issued another order. The April 4 order states that "[t]his proceeding came before the court for consideration of pending matters." (Emphasis supplied.) And "[u]pon consideration of the issue(s) presented, the court made the docket entry ..." as follows:
On May 3, 2017, Jayson filed a notice of appeal, stating that he was appealing the April 4 order. That is the appeal currently before us.
The proceedings continued after the May 3, 2017, notice of appeal was filed. Kimberly filed an amended answer to Jayson’s "complaint," setting forth a cross-complaint for a reduction in Jayson’s parenting time, for his visitation to be supervised, and for an award of child support. On May 30, the court issued an order denying a motion by Jayson to continue trial and to prohibit Kimberly from serving subpoenas upon the Nebraska Department of Health and Human Services and "Educare of Lincoln." The court also granted Kimberly’s request for a protective order.
After a hearing, on June 20, 2017, the court sustained Kimberly’s motion to modify parenting time to a "5/2 schedule" "for this temporary order." But the court explained that to "encourage civil collaboration," Kimberly’s attorney was to confer with Jayson’s attorney and the guardian ad litem. "After doing so, [Kimberly’s attorney] shall submit a proposed order as to temporary custody." The court overruled motions by Jayson for sanctions and attorney fees and to reconsider the court’s appointment of the guardian ad litem.
On June 28, 2017, the court issued an order sustaining Kimberly’s motion for modification of parenting time. That is the last order in the record.
Jayson claims that the district court erred when it denied his "February 24, 2017, motion" to declare the dissolution decree void.
When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court.1
Before reaching the legal issues presented for review, it is our duty to determine whether we have jurisdiction over this appeal.2 In this case, it is necessary for us to determine whether the April 4, 2017, order, from which Jayson appeals, is final.3 To vest an appellate court with jurisdiction, the notice of appeal must be filed within 30 days of the entry of the final order.4 In contrast, if an order is interlocutory, immediate appeal from the order is disallowed so that courts may avoid piecemeal review, chaos in...
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