Porter v. Porter
309 Neb. 167
| Neb. | 2021Background
- Sybil and Dustin Porter are parents of two children; prior divorce decree and subsequent modifications governed Dustin’s child support, including a 2017 order that suspended ongoing support tied to Social Security/dependent benefits.
- Sybil filed a complaint to modify child support on March 25, 2020; Dustin was served but did not timely answer.
- Sybil moved for default judgment; a hearing was continued from June to August 17, 2020; Dustin failed to appear at the August hearing.
- The district court received a workers’ compensation award into evidence and on August 18, 2020 entered a default modification ordering Dustin to pay $604/month plus $100/month toward arrearage.
- Dustin filed a motion to vacate within two weeks, asserting he did not appear, the order misstated his income, and the court misapplied the child support guidelines; the district court granted the motion during the same term and set a status hearing.
- Sybil appealed the October 2020 order vacating the August default modification; the Supreme Court considered whether that order was a final, appealable order under Neb. Rev. Stat. § 25-1902.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order vacating the default modification is a final, appealable order | Sybil: vacatur deprived her of finality and a substantial right to child support awarded by the August order | Dustin: order merely reinstated his opportunity to defend; court has inherent power to vacate during the term | Not final/appealable — dismissal for lack of jurisdiction because order did not affect a substantial right |
| Whether the district court abused discretion in granting the motion to vacate | Sybil: court abused its discretion by setting aside the modification | Dustin: court acted within its inherent authority to vacate defaults and allow defense | Merits not reached — appeal dismissed for lack of jurisdiction |
| Whether Nebraska should follow later cases holding vacatur orders appealable (Jones/Vacca) or earlier cases holding they are not | Sybil: relied on precedents treating vacatur orders as appealable | Dustin: argued statutory final-order test controls; not every vacatur affects a substantial right | Majority: reject a blanket appealability rule; apply §25-1902’s substantial-right test; Jones/Vacca not controlling in all cases |
| Whether vacating the modification irreparably harmed custodial parent’s right to collect support | Sybil: delay harms custodial parent and children who had gone years without support | Dustin: modification amount can be litigated; modification awards normally apply retroactively to the month after application so right not lost | Court: postponing review will not irrevocably destroy right; retroactivity principle mitigates harm; no substantial right affected |
Key Cases Cited
- Fidler v. Life Care Centers of America, 301 Neb. 724, 919 N.W.2d 903 (2018) (applied final-order analysis to reinstatement and discussed appealability of vacatur orders)
- Jones v. Nebraska Blue Cross Hospital Service Assn., 175 Neb. 101, 120 N.W.2d 557 (1963) (held order vacating default judgment is appealable)
- Vacca v. DeJardine, 213 Neb. 736, 331 N.W.2d 516 (1983) (endorsed Jones as the better-reasoned rule that vacatur is appealable)
- Brown v. Edgerton, 14 Neb. 453, 16 N.W. 474 (1883) (early authority holding vacatur during the term is not a final, appealable order)
- Rose v. Dempster Mill Mfg. Co., 69 Neb. 27, 94 N.W. 964 (1903) (held an order setting aside a decree and permitting an answer is not final)
- Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937 N.W.2d 487 (2020) (observed that right of appeal is statutory and emphasized applying §25-1902)