Wagner v. Wagner

749 N.W.2d 137, 275 Neb. 693
CourtNebraska Supreme Court
DecidedMay 16, 2008
DocketS-06-427
StatusPublished
Cited by38 cases

This text of 749 N.W.2d 137 (Wagner v. Wagner) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wagner v. Wagner, 749 N.W.2d 137, 275 Neb. 693 (Neb. 2008).

Opinion

749 N.W.2d 137 (2008)
275 Neb. 693

Mary Elizabeth WAGNER, appellee,
v.
James Brian WAGNER, appellant.

No. S-06-427.

Supreme Court of Nebraska.

May 16, 2008.

*139 Riko E. Bishop, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., for appellant.

Kevin A. Brostrom and Stacie A. Goding, of Lauritsen, Brownell, Brostrom, Stehlik, Myers & Daugherty, P.C., L.L.O., for appellee.

HEAVICAN, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

The question presented in this appeal is whether the trial court's file-stamped letter memorandum to the parties, directing the plaintiff to prepare a final decree, was itself a final judgment.[1] The Nebraska Court of Appeals determined that it was, and dismissed an appeal taken after the entry of the final decree, reasoning that the notice of appeal was untimely.[2]

This case illustrates why trial courts should take care to ensure that regardless of how a final judgment is prepared, only the signed final order is filed with the clerk of the court.[3] The clerk should not file stamp any document prepared by the trial court that is not a court order intended to have legal effect. But a filing that does not finally dispose of a case does not become a final, appealable order just because it is file stamped, and the trial court's order in this case was clearly not meant to be a final determination of the rights and liabilities of the parties. Therefore, we conclude that the letter in this case was not a final, appealable order, and reverse the decision of the Court of Appeals.

PROCEDURAL HISTORY

This case began with Mary Wagner's petition to dissolve her marriage to James Wagner. The parties reached an agreement on child custody and support, and other miscellaneous issues, but the case proceeded to trial on the valuation and division of the marital estate, alimony, and attorney fees. Trial was held on August 22 and December 7, 2005.

A letter from the trial judge dated January 10, 2006, was sent to the parties, and file stamped on January 11. The letter stated that "[b]y this letter I am rendering decision on the trial of this matter." The letter directed Mary's counsel to draft a decree incorporating the judge's findings, submit it to James' counsel for approval, and then submit it to the court. The letter incorporated the previous stipulation of the parties as to child custody, and made several specific findings with respect to the valuation and division of the marital estate. The letter also awarded alimony and attorney fees. But the letter did not make any jurisdictional findings with respect to the dissolution of the marriage,[4] nor did it make the required finding that the marriage was irretrievably broken.[5] And the letter did not, in point of fact, order the marriage dissolved.

Instead, as directed by the court, a decree of dissolution was prepared by Mary's *140 counsel, and approved as to form by James' counsel. That decree, which included the necessary jurisdictional findings and actually dissolved the marriage, was rendered by the trial court on February 7, 2006. James filed a timely motion for new trial and to alter or amend the judgment. On March 14, the court overruled the motion for new trial, but amended the judgment to expressly provide that the alimony award would terminate on the death of either party. On April 12, James filed his notice of appeal.

The Court of Appeals dismissed James' appeal.[6] The Court of Appeals found that the trial court's letter was "a written, signed document which set forth the court's determination of all issues presented for resolution. In that document, the court specifically indicated that it was `rendering decision on the trial of this matter.'"[7] The Court of Appeals determined that the letter operated to render judgment, "because it was a written, signed notation of the relief granted or denied," and had been entered when it was file stamped by the clerk of the court.[8] Thus, the Court of Appeals determined that the letter was a final judgment. And neither a timely notice of appeal, nor a timely tolling motion, had been filed with respect to the letter. Therefore, the Court of Appeals concluded that James' appeal was untimely, and dismissed the appeal.[9]

James filed a petition for further review, which we granted. The appeal was submitted without oral argument, pursuant to Neb. Ct. R. of Prac. 11B(1) (rev.2006).

ASSIGNMENT OF ERROR

James assigns, restated, that the Court of Appeals erred in dismissing his appeal for lack of jurisdiction.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.[10] And regarding a question of law, we reach a conclusion independent of the determination reached by the Court of Appeals.[11]

ANALYSIS

Section 25-1301(1) defines a judgment as "the final determination of the rights of the parties in an action." And an order entered by a court may affect a substantial right and be subject to review as a final order although it could not or need not be properly denominated a judgment.[12] Section 25-1301(3) also explains how a final judgment or order is rendered by a court. "The entry of a judgment, decree, or final order occurs when the clerk of the court places the file stamp and date upon the judgment, decree, or final order." And "[f]or purposes of determining the time for appeal, the date stamped on the judgment, decree, or final order shall be the date of entry."

The problem in this case is that the trial court's letter memorandum was signed and file stamped, which is all that § 25-1301 requires for the court to render a judgment. *141 Thus, the question presented is whether the trial court's file-stamped letter memorandum was a final judgment. We have recently decided two cases addressing similar issues, and a review of those cases is essential to our analysis of the instant case.

In Hosack v. Hosack,[13] the district court entered a file-stamped journal entry in which the court dissolved the parties' marriage, divided the marital estate, and awarded alimony. The journal entry provided that a decree was to be prepared by counsel, provided to opposing counsel for review, and "`presented to the Court for signature no later than November 15, 2002.'"[14] The decree was prepared and entered, and an appeal was taken. The Court of Appeals summarily dismissed the appeal, finding it was untimely because it was not taken within 30 days of the file-stamped journal entry, which the Court of Appeals determined to be a final, appealable order.[15]

On further review, we reversed, finding that the journal entry "left certain matters unresolved."[16] We noted that in the journal entry, "counsel was directed to advise the district court by written motion if the court had failed to rule on any material issue presented."[17] And we noted that "[t]he journal entry contemplated that the decree was to be prepared for opposing counsel's review...."[18] Therefore, we concluded that "the journal entry was not the final determination of the rights of the parties in this action."[19]

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Cite This Page — Counsel Stack

Bluebook (online)
749 N.W.2d 137, 275 Neb. 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-wagner-neb-2008.