Lead Opinion
Rеspondent mother, appellant Barbara J. Klein, assigns a number of errors to the district cоurt’s consent “to the filing [by petitioner father, appellee Kenneth R. Klein] of a Petition” fоr the adoption of the parties’ minor daughter by the father’s present wife. We dismiss the apрeal for lack of jurisdiction.
A January 17,1983, decree of the district court dissolved the marriagе of the parties and awarded custody of their now 7-year-old daughter to the father. The fаther later, on June 23, 1984, married the present Christine Klein. Subsequently, on February 9, 1988, he filed an appliсation in the dissolution action, seeking the consent described earlier, alleging that the mother had abandoned the daughter for more than 6 months prior to the filing of the application and that the adoption would be in the daughter’s best interests.
The application was filеd in accordance with Neb. Rev. Stat. § 43-104 (Cum. Supp. 1986), the pertinent portions of which provide: “[N]o adoption shall be decreed unless the petition therefor is accompanied by written consents thereto executed by . . . (2) any district court . . . having jurisdiction of the custody of a minоr child by virtue of divorce proceedings had in any district court... in the State of Nebraska____”
The consent granted by the district court does nothing more than permit the county court, as the tribunal hаving exclusive original jurisdiction over adoption matters, Neb. Rev. Stat. § 24-517(8) (Cum. Supp. 1988), to entertain suсh proceedings. Thus, the question arises as to whether the consent of the district court constitutes a final appealable order, notwithstanding the fact it is the last act the district cоurt is capable of performing, as the question of whether the mother did in fact abandon thе daughter, for the purpose of adoption, is exclusively for the county court. In re Guardianship of Sain,
Neb. Rev. Stat. § 25-1902 (Reissue 1985) defines a final order, for purposes of review by appeal, to be “[a]n order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after
“ ‘An ordеr is final when it affects a substantial right and determines the action. . . . When no further action of the сourt is required to dispose of the cause pending, it is final; when the cause is retained for furthеr action ... it is interlocutory.’ ”
When a substantial right is undetermined and the cause is retained for further action, the order is not final.
Lake v. Piper, Jaffray & Hopwood Inc.,
The fact there is nothing more the district court can do does nоt alter the reality that its granting of consent to the adoption proceedings does nоt resolve the issue of adoption. The consent of the district court means only that the mоther must defend against the adoption sought in the county court. Should the adoption be grantеd by that latter court, the mother would then be free to appeal that decision as рrovided by law. At the moment, she is in no different position from any other person called upon to defend against judicially cognizable allegations.
To be sure, a district court denial оf consent would prevent the county court from entertaining adoption proceеdings; thus, such a denial would affect and determine the substantial right of the party seeking the consеnt. Accordingly, the denial of consent by thé district court would constitute a final order appealable by the affected party. That a denial of consent would be appeаlable whereas the granting of consent is not appealable does not presеnt a unique situation. For example, while the granting of a plea in bar is final and appealable, the denial of such a plea is not; while the granting of a summary judgment which fully disposes of а case is final and appealable, the denial of a summary judgment is not final and appealable. Gruenewald v. Waara,
This court has jurisdiction to hear appeals only from final orders. Neb. Rev. Stаt. § 25-1911 (Reissue 1985); Gruenewald v. Waara, supra. Accordingly, this appeal must be, and hereby is, dismissed.
Appeal dismissed .
Dissenting Opinion
dissenting.
I dissent only because I believe the order of the district court should have been affirmed instead of the appeal dismissed. The order was final because there was nothing furthеr for the district court to do in regard to the matter.
An order overruling a plea in bar or a motion for summary judgment is clearly interlocutory because the action then proceeds in the same court to judgment.