Burns v. Burns
293 Neb. 633
| Neb. | 2016Background
- Parties divorced in 2004; Kerry received custody of three minor children; Michael had parenting time and child support obligations.
- First modification (filed by Kerry in 2011) sought child support and parenting changes; parties purported to settle in 2012; the district court enforced the settlement in April 2013 and that order produced appeals (Court of Appeals docketed A-13-387 and A-13-1053).
- While the first modification appeals were pending, Michael filed a second modification (June 28, 2013) seeking a change in custody, parenting time, and child support; attempts at service by deputy sheriff failed and a special process server later certified service though no summons was actually served.
- Kerry filed a special appearance in September 2013 contesting personal jurisdiction; later she filed motions (including an omnibus motion to vacate/modify/strike and a motion to disqualify/sanction counsel) and participated in hearings before filing the special appearance.
- The district court overruled Kerry’s special appearance and in August 2014 granted Michael custody of the youngest son and modified parenting time and support; the Court of Appeals vacated that order on the ground that lack of summons triggered dismissal under §25-217.
- The Nebraska Supreme Court granted further review, held Kerry’s filings amounted to a general appearance (waiving service defects), and concluded the district court retained jurisdiction to modify custody while an appeal on other issues was pending; it reversed and remanded to affirm the district court order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of formal summons service caused dismissal under §25-217 and deprived the court of personal jurisdiction | Michael: summons was not required because Kerry waived defects by appearing; district court had jurisdiction | Kerry: no summons was served; thus the action was dismissed by operation of law after 6 months, leaving the court without jurisdiction | Kerry made a general appearance via motions and participation, waiving service defects; Court of Appeals’ dismissal reversed |
| Whether the trial court could modify custody while an appeal in a related matter was pending under §42-351(2) | Michael: §42-351(2) preserves trial court authority to enter orders (including custody) necessary during appeals to protect children’s interests | Kerry: pending appeal in first modification involved related parenting/support orders, so district court lacked authority to enter permanent custody/support orders in second modification | §42-351(2) allows the trial court to enter orders on custody when custody was not the subject of the pending appeal; district court retained jurisdiction |
Key Cases Cited
- Murray v. Stine, 291 Neb. 125 (appellate courts review questions of law de novo)
- Friedman v. Friedman, 290 Neb. 973 (general appearance waives defects in process)
- Bauermeister Deaver Ecological Consultants v. Waste Management Co., 290 Neb. 899 (courts may judicially notice adjudicative facts and related records)
- Hunt v. Trackwell, 262 Neb. 688 (voluntary appearance is equivalent to service of process)
- Wagner v. Wagner, 275 Neb. 693 (§42-351(2) preserves certain trial court powers during appeals)
- Spady v. Spady, 284 Neb. 885 (generally trial court loses jurisdiction after appeal is perfected)
- Phelps v. Phelps, 239 Neb. 618 (§42-351(2) intended to protect interests of dependent children)