Gebhardt v. Gebhardt

746 N.W.2d 707, 16 Neb. Ct. App. 565
CourtNebraska Court of Appeals
DecidedMarch 11, 2008
DocketA-07-102
StatusPublished
Cited by61 cases

This text of 746 N.W.2d 707 (Gebhardt v. Gebhardt) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gebhardt v. Gebhardt, 746 N.W.2d 707, 16 Neb. Ct. App. 565 (Neb. Ct. App. 2008).

Opinion

746 N.W.2d 707 (2008)
16 Neb. App. 565

Rhonda L. GEBHARDT, Appellant
v.
John O. GEBHARDT, Appellee.

No. A-07-102.

Court of Appeals of Nebraska.

March 11, 2008.

*710 Gregory G. Jensen, P.C., L.L.O., for appellant.

Barry D. Geweke, of Stowell, Kruml, Geweke & Cullers, P.C., L.L.O., Ord, for appellee.

IRWIN, SIEVERS, and MOORE, Judges.

SIEVERS, Judge.

Rhonda L. Gebhardt and John O. Gebhardt were divorced by a decree of dissolution of marriage entered on May 1, 2006, by then District Judge Ronald D. Olberding in the district court for Greeley County, Nebraska. Judge Olberding retired effective April 30. Following the entry of decree, there was a motion for a new trial on May 3 and a ruling thereupon on August 10 by District Judge Mark D. Kozisek. Thereafter, there were a series of motions to alter or amend judgment, rulings thereupon, and finally Rhonda's notice of appeal, which was filed January 23, 2007. These procedural occurrences, which we discuss in further detail below, raise jurisdictional issues which we have previously directed the parties to address in their briefs. We have determined that the matter should be submitted for decision without oral argument pursuant to our authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2006).

PROCEDURAL BACKGROUND

The district court's decree of dissolution of May 1, 2006, was followed by Rhonda's motion for a new trial of May 3. The motion raised issues with respect to the trial court's property division, award of alimony, and failure to award her attorney fees. Judge Kozisek's order on Rhonda's motion for new trial and order modifying decree was entered August 10. Citing Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000), Judge Kozisek recited in his order the well-known three-step process for property division: (1) to classify the parties' property as marital or nonmarital, (2) to value the marital assets and liabilities, and (3) to calculate and divide the net marital estate.

The trial court found a number of problems with the previous property division, which we will not fully detail other than to set forth the order portion of the ruling, which provided that the motion to set aside the judgment and grant a new trial was overruled, but that the judgment of May 1, 2006, was modified to provide:

"[Rhonda] is awarded all property and ordered to pay all debt listed under the column heading `Rhonda' on the Property Division Worksheet. [John] is awarded all property and ordered to pay all debt listed under the column heading `John' on the Property Division Worksheet.
"[John] shall pay to the court clerk for disbursement to [Rhonda] as property settlement the total sum of $62,000.00 within 60 days of entry of this order. There shall be no interest if paid on or before the due date, but any delinquent payment shall bear interest at the judgment rate of 7.297% per annum from due date until paid."

Otherwise, the trial court left the original decree of dissolution unchanged. This *711 ruling of August 10 changed the May 1 judgment by awarding Rhonda a $62,000 judgment against John which had not previously been part of the decree.

Within 10 days of the August 10, 2006, decision, John filed a motion to alter or amend the order modifying decree so as to eliminate the $62,000 judgment against him and in favor of Rhonda. Additionally, John's motion asserted that the original decree of dissolution of May 1 failed to give him credit for a $384,288.67 cash inheritance and that with said credit, no property settlement judgment against him was warranted.

Rhonda filed a "Cross Motion to Alter or Amend Order Modifying Decree" on October 10, 2006.

By an "Order on Motion to Alter or Amend Order Modifying Decree" entered on November 14, 2006, Judge Kozisek first found that Rhonda's pending cross-motion to alter or amend filed October 10 was filed more than 10 days after the entry of the order modifying decree of August 10, and therefore the court granted John's motion to strike Rhonda's cross-motion to alter or amend as untimely. The trial court then took up John's motion to alter or amend, and after citing authority making inheritances and gifts which are traceable nonmarital property, see Quinn v. Quinn, 13 Neb.App. 155, 689 N.W.2d 605 (2004), the court found that "it incorrectly failed to give John credit for the inheritance and life insurance when it rendered its Order Modifying Decree." The trial court had allowed a credit to Rhonda for her inherited property in the amount of $43,000. However, Judge Kozisek found that there was no evidence adduced which traced such inherited property and that no credit would be allowed for Rhonda's inherited property. Thus, the court ordered that John's motion to alter or amend was granted to the extent of allowing him credit for inherited property and life insurance proceeds in the amount of $384,288.67. The court further ordered:

The judgment previously entered on May 1, 2006 . . . and the Order Modifying Decree entered August 10, 2006 are modified to provide:
"[Rhonda] is awarded all property and ordered to pay all debt listed under the column heading `Rhonda' on the Property Division Worksheet-2. [John] is awarded all property and ordered to pay all debt listed under the column heading `John' on the Property Division Worksheet-2. Neither party shall pay the other money for any property division."

Rhonda was unsatisfied with the above outcome and therefore filed another motion to alter or amend the order modifying decree on November 22, 2006, which was within 10 days of November 14. Such motion was denied by a signed and filed journal entry of December 28, after which Rhonda filed an appeal to this court on January 23, 2007.

JURISDICTIONAL ANALYSIS

[1, 2] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Saunders County v. City of Lincoln, 263 Neb. 170, 638 N.W.2d 824 (2002). Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue of jurisdiction sua sponte. Keef v. State, 262 Neb. 622, 634 N.W.2d 751 (2001).

This appeal raises issues dealing with the tolling effect of a motion to alter or amend, the effect of successive motions to alter or amend, and ultimately, if we have jurisdiction, which actions of the trial court are subject to our appellate review.

*712 Rhonda asserts that because she was satisfied with the order on her motion for new trial of August 10, 2006, she takes "the unusual position of arguing that this Court lacks jurisdiction," provided we determine that the August 10 order is the final order in this case, from which order an appeal needed to be filed within 30 days. Brief for appellant at 1. As we understand Rhonda's jurisdictional argument, it is that only her motion for new trial of May 3 was effective to terminate the running of the 30 days in which to appeal to this court. We note that Rhonda does not assign error to the trial court's ruling of November 14, or its ruling of December 28.

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Cite This Page — Counsel Stack

Bluebook (online)
746 N.W.2d 707, 16 Neb. Ct. App. 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gebhardt-v-gebhardt-nebctapp-2008.