Nichols v. Nichols
288 Neb. 339
| Neb. | 2014Background
- Bonnie and Margie, a same-sex couple married in Iowa in 2009, sued in Lancaster County, Nebraska in 2012 seeking dissolution, custody/parenting time, and equitable division of property.
- Margie moved to dismiss for lack of subject matter jurisdiction, arguing Nebraska courts cannot dissolve same-sex marriages.
- The district court granted the motion on August 30, 2013, concluded it lacked jurisdiction under Neb. Const. art. I, § 29, rejected comity, and gave Bonnie 15 days to file an amended complaint; the order stated the matter would "stand dismissed, with prejudice" if no amendment was filed.
- Bonnie did not amend; no separate judgment was entered by the court, but Bonnie filed a notice of appeal after the 15‑day period.
- The Nebraska Supreme Court considered whether it had appellate jurisdiction given that the district court’s order was conditional and no final judgment had been entered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of conditional dismissal with leave to amend | Bonnie: Nebraska’s move to notice pleading renders prior conditional‑order doctrine obsolete; her appeal is proper after the amendment period expired | Margie/State: Order was conditional, not a final judgment; appeal requires a final judgment entered per statute | Court: Conditional order is not a final judgment; no appellate jurisdiction; appeal dismissed |
| Subject‑matter jurisdiction to dissolve an out‑of‑state same‑sex marriage | Bonnie: Nebraska must give full faith and credit / equal protection; courts can dissolve Iowa marriage | Margie: Nebraska Const. prohibits recognition; trial court lacked jurisdiction | Court: Did not reach merits because appeal was dismissed for lack of jurisdiction |
| Continued vitality of conditional‑order jurisprudence after notice pleading | Bonnie: Notice pleading supersedes the old rule permitting only appeals from clerk‑entered judgments | State/Respondent: Statutory framework for judgments/appeals persists; conditional orders remain nonfinal | Court: Conditional‑order rule remains sound and applicable despite notice pleading |
| Effect of statutory rules on rendition/entry of judgment and appeal timing | Bonnie: (implicitly) appealable once amendment period elapsed and plaintiff elected not to amend | State: Statute requires judge’s written notation and clerk’s file stamp to create an appealable judgment; mere lapse of amendment period without entry is not a judgment | Court: Statutory scheme controls; judgment is entry by clerk; conditional order without clerk‑stamped judgment is not appealable |
Key Cases Cited
- Federal Land Bank of Omaha v. Johnson, 226 Neb. 877, 415 N.W.2d 478 (Neb. 1987) (order dismissing with leave to amend is conditional and not final)
- Schaad v. Simms, 240 Neb. 758, 484 N.W.2d 474 (Neb. 1992) (no final appealable order where dismissal was to become effective later without separate entry)
- Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (Neb. 2006) (discussing finality of judgments in equitable cases)
- Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 178 (Neb. 2012) (definition and characteristics of final judgments)
- Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (Neb. 2013) (appealability and final order requirements)
- Jung v. K. & D. Mining Co., 356 U.S. 335 (U.S. 1958) (federal precedent that dismissal with leave to amend is not final for purposes of appeal)
- State ex rel. Jacob v. Bohn, 271 Neb. 424, 711 N.W.2d 884 (Neb. 2006) (example where conditional order was followed by final judgment and appeal reviewed on merits)