Fitzgerald v. Fitzgerald
286 Neb. 96
Neb.2013Background
- Fangmeier filed a modification of the dissolution decree seeking custody, visitation, and support changes after divorce; Fitzgerald was personally served but did not answer.
- The district court issued a default modification order granting Fangmeier sole custody and related relief; Fitzgerald later moved for new trial or to alter/vacate, and the court vacated the first order.
- The district court then issued a second order denying new trials but vacating the first order for lack of notice under local district rule 1-9; Fangmeier appealed the second order.
- Fitzgerald filed a cross-appeal, but on briefing the cross-appeal attacked the first order rather than the second; the supreme court dismissed the cross-appeal and affirmed the second order.
- The court held that (i) the cross-appeal could not attack the first order because no timely appeal existed, (ii) the district court did not abuse its discretion in vacating the first order under rule 1-9, and (iii) the second order was proper and the first order remained unreviewed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can Fitzgerald cross-appeal attack the first order? | Fangmeier | Fitzgerald attempted cross-appeal from second order; attacks first order | Cross-appeal dismissed; cannot attack final first order |
| Did the district court abuse its discretion in vacating the first order? | Fangmeier | Fitzgerald | No abuse; second order affirmed |
| Was Fitzgerald's cross-appeal timely or jurisdictionally proper? | Fangmeier | Fitzgerald timely cross-appealed from second order | Timeliness issue barred review of first order; cross-appeal dismissed |
Key Cases Cited
- Tejral v. Tejral, 220 Neb. 264, 369 N.W.2d 359 (Neb. 1985) (notice not required where no local rule; context on default decrees)
- Starr v. King, 234 Neb. 339, 451 N.W.2d 82 (Neb. 1990) (local rules’ status differs from early Starr-era)
- Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (Neb. 2007) (notice permitted; confirms simple notice procedure)
- Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (Neb. 2008) (procedural rule referencing vacatur after default)