Schlake v. Schlake
294 Neb. 755
| Neb. | 2016Background
- Marcia and Gene Schlake owned residential property as joint tenants; their 1998 divorce decree kept title as joint tenants and prohibited sale without both parties' written agreement, allocating payment responsibilities to Gene.
- In 2002 Marcia conveyed a remainder interest in her half to her adult children but retained a life estate in that half; Marcia and her children later (collectively “Marcia”) filed a partition action in 2014 seeking sale.
- Gene, initially pro se, opposed partition and asserted he lived in the residence and the divorce decree restricted sale; he did not present evidence at the summary judgment hearing and did not timely appeal the summary judgment order.
- On May 20, 2014, the district court granted summary judgment in Marcia’s favor as to ownership and that partition should be made; a referee later recommended sale because the property could not be partitioned in kind.
- Gene moved to vacate the summary judgment; the court denied that motion on November 13, 2014; Gene appealed but the Court of Appeals dismissed that appeal for lack of a final order.
- On March 16, 2015, the district court adopted the referee’s report and ordered a public sale; Gene again appealed and the Nebraska Supreme Court moved the case to its docket to consider jurisdiction and appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of March 16, 2015 order adopting referee report and ordering sale | Marcia: the order is a proper intermediate step in partition and should proceed | Gene: the order is appealable and the sale violates the divorce decree and his rights | Court: order is interlocutory and not final; dismiss appeal |
| Appealability of May 20, 2014 summary judgment as to title/partition | Marcia: summary judgment resolved title and partition; no timely appeal | Gene: summary judgment should be vacated; equitable defenses (waiver) apply | Court: issues of title and partition were litigated together; parties waived early appeal; order not reviewable until partition complete |
| Appealability of order denying motion to vacate summary judgment | Gene: denial of vacatur is erroneous | Marcia: denial proper; procedural default | Court: prior Court of Appeals dismissal addressed this; not revisited here; no jurisdiction to review |
| Whether this partition qualifies as a special proceeding making intermediate orders final | Gene: analogies to probate special proceedings (In re Estate of McKillip) | Marcia: this is a district-court civil partition under chapter 25, not probate | Court: this is a district civil partition; McKillip (probate) is distinguishable; intermediate orders are not final |
Key Cases Cited
- Vrana v. Vrana, 85 Neb. 128, 122 N.W. 678 (1909) (order adopting referee report and directing sale in partition is not final)
- Sewall v. Whiton, 85 Neb. 478, 123 N.W. 1042 (1909) (adopting Vrana: interlocutory nature of referee-adoption orders in partition)
- Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914) (framework for appealability in partition actions: three classes of cases)
- Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950) (partition sale and confirmation required before appealability)
- In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012) (distinguishing probate partitions as special proceedings where referee-sale orders may be final)
Conclusion: The Nebraska Supreme Court dismissed Gene's appeal for lack of a final, appealable order because the challenged district court orders were interlocutory steps in an ongoing civil partition proceeding.