Bryson L. v. Izabella L.
302 Neb. 145
| Neb. | 2019Background
- Izabella and Bryson divorced in Nov 2016; the dissolution decree adjudicated Bryson as the child’s father and awarded him sole physical custody, with no child support ordered.
- David, who claimed he might be the biological father, obtained genetic tests in Aug 2017 showing 99.999% probability of paternity and moved to intervene and to set aside paternity in Sept–Oct 2017.
- The district court dismissed David’s motions and entered a final Opinion and Order on March 2, 2018, finding David untimely.
- David filed a "Motion to Vacate/Reconsider" on March 9 (within 10 days), which the court denied on March 13 for lack of a notice of hearing.
- David filed a second "Motion to Vacate/Reconsider" on March 13 (11 days after the March 2 order) with a notice of hearing; the court treated it as a motion to alter or amend and denied it on April 10.
- David filed a notice of appeal on May 8; the Nebraska Supreme Court dismissed the appeal for lack of jurisdiction because the appeal deadline had run after denial of the timely March 9 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal was timely | David argued the March 13 (second) motion tolled/extended the appeal period | Bryson argued only the timely March 9 motion (denied Mar 13) controlled the appeal period; the Mar 13 filing was untimely and did not toll appeal time | Appeal dismissed for lack of jurisdiction because the timely Mar 9 motion was a motion to alter/amend; its denial started the 30-day appeal clock and David’s later filings did not extend it |
| Whether the March 9 motion was a motion to alter or amend (thus tolling appeal time) | David treated his filings as motions to reconsider that should preserve appellate time | Bryson argued the March 9 motion was properly treated as a motion to alter/amend and its denial began the 30-day appeal period | Court held the March 9 motion qualified as a motion to alter or amend (filed within 10 days and sought substantive relief), so the appeal period ran from denial of that motion |
| Effect of the March 13 (second) motion filed after 10-day window | David argued the second motion and court’s later rulings kept his appeal timely | Bryson argued a successive or untimely motion cannot extend appeal time | Court held an untimely/successive motion cannot extend or suspend the statutory appeal period |
| Whether procedural defects (lack of notice of hearing) justified treating the first motion as untimely or excusable | David argued procedural defects should not defeat consideration or tolling | Bryson relied on rules/statutory requirements and timeliness to oppose | Court noted district courts may excuse procedural defects but here the March 9 motion was timely; denial for lack of notice triggered the appeal clock and later cure did not revive the tolled period |
Key Cases Cited
- Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (2017) (discusses effect of timely post-judgment motions on appeal timing)
- Applied Underwriters v. Oceanside Laundry, 300 Neb. 333 (2018) (motion to vacate does not necessarily toll appeal time)
- State v. Lotter, 301 Neb. 125 (2018) (full 30-day appeal period runs from order ruling on timely motion to alter or amend)
- Lombardo v. Sedlacek, 299 Neb. 400 (2018) (district courts have discretion to excuse procedural defects like missing notice of hearing)
- Fitzgerald v. Fitzgerald, 286 Neb. 96 (2013) (untimely motion to alter or amend does not extend the appeal deadline)
- Gebhardt v. Gebhardt, 16 Neb. App. 565 (2008) (successive motions for new trial or alteration cannot extend appeal time)