Wagner v. Wagner
| Decision Date | 16 May 2008 |
| Docket Number | No. S-06-427.,S-06-427. |
| Citation | 749 N.W.2d 137,275 Neb. 693 |
| Parties | Mary Elizabeth WAGNER, appellee, v. James Brian WAGNER, appellant. |
| Court | Nebraska Supreme Court |
Riko E. Bishop, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., for appellant.
Kevin A. Brostrom and Stacie A. Goding, of Lauritsen, Brownell, Brostrom, Stehlik, Myers & Daugherty, P.C., L.L.O., for appellee.
The question presented in this appeal is whether the trial court's file-stamped letter memorandum to the parties, directing the plaintiff to prepare a final decree, was itself a final judgment.1 The Nebraska Court of Appeals determined that it was, and dismissed an appeal taken after the entry of the final decree, reasoning that the notice of appeal was untimely.2
This case illustrates why trial courts should take care to ensure that regardless of how a final judgment is prepared, only the signed final order is filed with the clerk of the court.3 The clerk should not file stamp any document prepared by the trial court that is not a court order intended to have legal effect. But a filing that does not finally dispose of a case does not become a final, appealable order just because it is file stamped, and the trial court's order in this case was clearly not meant to be a final determination of the rights and liabilities of the parties. Therefore, we conclude that the letter in this case was not a final, appealable order, and reverse the decision of the Court of Appeals.
This case began with Mary Wagner's petition to dissolve her marriage to James Wagner. The parties reached an agreement on child custody and support, and other miscellaneous issues, but the case proceeded to trial on the valuation and division of the marital estate, alimony, and attorney fees. Trial was held on August 22 and December 7, 2005.
A letter from the trial judge dated January 10, 2006, was sent to the parties, and file stamped on January 11. The letter stated that "[b]y this letter I am rendering decision on the trial of this matter." The letter directed Mary's counsel to draft a decree incorporating the judge's findings, submit it to James' counsel for approval, and then submit it to the court. The letter incorporated the previous stipulation of the parties as to child custody, and made several specific findings with respect to the valuation and division of the marital estate. The letter also awarded alimony and attorney fees. But the letter did not make any jurisdictional findings with respect to the dissolution of the marriage,4 nor did it make the required finding that the marriage was irretrievably broken.5 And the letter did not, in point of fact, order the marriage dissolved.
Instead, as directed by the court, a decree of dissolution was prepared by Mary's counsel, and approved as to form by James' counsel. That decree, which included the necessary jurisdictional findings and actually dissolved the marriage, was rendered by the trial court on February 7, 2006. James filed a timely motion for new trial and to alter or amend the judgment. On March 14, the court overruled the motion for new trial, but amended the judgment to expressly provide that the alimony award would terminate on the death of either party. On April 12, James filed his notice of appeal.
The Court of Appeals dismissed James' appeal.6 The Court of Appeals found that the trial court's letter was 7 The Court of Appeals determined that the letter operated to render judgment, "because it was a written, signed notation of the relief granted or denied," and had been entered when it was file stamped by the clerk of the court.8 Thus, the Court of Appeals determined that the letter was a final judgment. And neither a timely notice of appeal, nor a timely tolling motion, had been filed with respect to the letter. Therefore, the Court of Appeals concluded that James' appeal was untimely, and dismissed the appeal.9
James filed a petition for further review, which we granted. The appeal was submitted without oral argument, pursuant to Neb. Ct. R. of Prac. 11B(1) (rev.2006).
James assigns, restated, that the Court of Appeals erred in dismissing his appeal for lack of jurisdiction.
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.10 And regarding a question of law, we reach a conclusion independent of the determination reached by the Court of Appeals.11
Section 25-1301(1) defines a judgment as "the final determination of the rights of the parties in an action." And an order entered by a court may affect a substantial right and be subject to review as a final order although it could not or need not be properly denominated a judgment.12 Section 25-1301(3) also explains how a final judgment or order is rendered by a court. "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." And "[f]or purposes of determining the time for appeal, the date stamped on the judgment, decree, or final order shall be the date of entry."
The problem in this case is that the trial court's letter memorandum was signed and file stamped, which is all that § 25-1301 requires for the court to render a judgment. Thus, the question presented is whether the trial court's file-stamped letter memorandum was a final judgment. We have recently decided two cases addressing similar issues, and a review of those cases is essential to our analysis of the instant case.
In Hosack v. Hosack,13 the district court entered a file-stamped journal entry in which the court dissolved the parties' marriage, divided the marital estate, and awarded alimony. The journal entry provided that a decree was to be prepared by counsel, provided to opposing counsel for review, and "`presented to the Court for signature no later than November 15, 2002.'"14 The decree was prepared and entered, and an appeal was taken. The Court of Appeals summarily dismissed the appeal, finding it was untimely because it was not taken within 30 days of the file-stamped journal entry, which the Court of Appeals determined to be a final, appealable order.15
On further review, we reversed, finding that the journal entry "left certain matters unresolved."16 We noted that in the journal entry, "counsel was directed to advise the district court by written motion if the court had failed to rule on any material issue presented."17 And we noted that "[t]he journal entry contemplated that the decree was to be prepared for opposing counsel's review...."18 Therefore, we concluded that "the journal entry was not the final determination of the rights of the parties in this action."19
We also took the opportunity to expressly disapprove of the practice of a trial court's filing of a journal entry which describes an order that is to be entered at a subsequent date, explaining that confusion "`can be avoided if trial courts will, as they should, limit themselves to entering but one final determination of the rights of the parties in a case.'"20 We expressly directed that "[o]nly the signed final order should be filed with the clerk of the court."21
Then, in City of Ashland v. Ashland Salvage,22 we again faced a file-stamped journal entry followed by a subsequent order. But the situation was distinguishable from Hosack, in that the plaintiff in City of Ashland sought both declaratory and injunctive relief. The journal entry disposed of the entire merits of the case, but directed the plaintiff to prepare an "`Order of Permanent Injunction'" that the court entered later.23 Because, unlike Hosack, the journal entry in City of Ashland disposed of all claims, it was a final, appealable order. And because the notice of appeal in City of Ashland had been taken from the journal entry and not the subsequent permanent injunction, we concluded we had jurisdiction over the appeal.24
In the present case, as set forth in more detail above, the trial court sent a letter to counsel, setting forth the court's determination of several of the issues presented for resolution. The letter was, however, file stamped by the clerk of the court. The letter directed counsel for one of the parties to prepare another document and present it to opposing counsel for approval as to form. The Court of Appeals concluded that the letter was a final, appealable order, and dismissed the appeal.25
The Court of Appeals, however, erred in two respects. First, the letter had not disposed of all the issues presented by the pleadings. Most pertinently, the letter had not found that the marriage was irretrievably broken, or dissolved the marriage. Section 42-361(1) requires, even if the issue is uncontested, that "the court, after hearing, shall make a finding whether the marriage is irretrievably broken." In this case, the trial court's letter had not addressed the most fundamental issue presented by the case: whether the marriage should be dissolved. It could not have been rendered as a final judgment within the meaning of § 25-1301.
But just as important is the fact that, as in Hosack,26 the trial court's letter was written only in contemplation of a decree to be entered later. In this regard, our decision in Dawes v. Wittrock Sandblasting & Painting27 is instructive. In Dawes, the problem was that the trial judge's final order had failed to expressly discuss certain matters presented by the pleadings. We noted the well-established proposition that when multiple issues are presented to a trial court for simultaneous disposition in the same proceeding and the court decides some...
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...but if no agreement, then court must find irretrievable breakdown to grant divorce, citing RCW 26.09.30(3)(a)(c); Wagner v. Wagner, 275 Neb. 693, 749 N.W.2d 137 (Neb.2008) (Nebraska statute requires the court, after a hearing, to make a finding that the marriage is irretrievably broken), ci......
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