Schlake v. Schlake

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294 Nebraska Reports
SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Marcia R. Schlake et al., appellees, v.
Gene W. Schlake, appellant, and
CWHEQ, Inc., et al., appellees.
885 N.W.2d 15
Filed September 16, 2016. 	No. S-15-263.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Jurisdiction: Appeal and Error. 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. This is so even
where neither party has raised the issue.
3. Partition: Final Orders. When the dispute in a partition action is
over the partition itself rather than ownership or title, there is no final,
appealable order until the partition is made.
4. ____: ____. When a partition action involves a dispute over ownership
or title as well as a dispute over the method of partition, the parties have
a right to have title determined first, and, if they elect to do so, an order
resolving only the title dispute is a final, appealable order.
5. ____: ____. When the only issue in a partition action depends on owner-
ship and the nature of the title, an order determining that issue is a final,
appealable order.
6. Partition. A proceeding within a partition action to determine only title
is a special proceeding.
7. Partition: Final Orders. In a partition action, the order adopting the
referee’s initial report and ordering a sale is not a final order. Rather, it
is simply one step in the partition process.
8. Partition: Judgments: Final Orders. In a partition action where the
parties unite the issues and litigate the question of title and the right to
partition at the same time, and the court determines both issues in the
same order, such a judgment or order is only one step in the partition
proceedings, is interlocutory in its nature, and cannot be reviewed until
the final decree of partition, or until sale and confirmation.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:26 AM CST

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294 Nebraska Reports
SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
Appeal from the District Court for Gage County: Paul W.
Korslund, Judge. Appeal dismissed.
Lyle J. Koenig, of Koenig Law Firm, for appellant.
Jeffery W. Davis, of Carlson, Schafer & Davis, P.C., L.L.O.,
for appellees Marcia R. Schlake, Tracy J. Schlake, and Tonia
R. Katschke.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
Stacy, J.
SUMMARY
This appeal seeks review of several orders entered by the
district court in a partition action. Because we conclude none
of the orders are properly before us for review, we dismiss
the appeal.
BACKGROUND
Marcia R. Schlake and Gene W. Schlake purchased residen-
tial property in 1996 as joint tenants. They divorced in 1998.
Their property settlement agreement, which was incorporated
into the consent decree, provided that title to the residential
property “shall remain in the joint ownership of the parties
as joint tenants with the right of survivorship; provided that
[Gene] shall assume and be solely responsible for the payment
of the mortgage . . . taxes, insurance, maintenance and other
expenses in connection with such property.” The decree further
provided that “[t]he parties shall not sell such real estate unless
both parties agree in writing.” Under the decree, if a sale took
place, the parties were required to “agree upon the sale price”
and “[u]pon the closing of the sale . . . the parties shall equally
divide the net proceeds from such sale.”
In 2002, Marcia conveyed a remainder interest in her undi-
vided one-half interest to her two adult children, but retained
a life estate interest in her one-half interest.

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
In 2014, Marcia and her children (hereinafter collectively
Marcia) filed a complaint in partition regarding the property.
Gene opposed the partition in a pro se answer. The answer
stated Gene lived in the residence and did not wish to sell it,
and noted the parties’ divorce decree provided they were not to
sell the property unless they both agreed “in writing.”
Marcia moved for summary judgment in the partition action.
Gene appeared pro se at the hearing but offered no evidence
and did not oppose the entry of summary judgment. On May
20, 2014, the court granted summary judgment in Marcia’s
favor, finding as a matter of law that the parties’ shares and
interests in the real estate were as alleged in Marcia’s com-
plaint, that a partition should be made, and that a referee
should be appointed. No appeal was taken from this order.
In June 2014, the referee recommended the court order a
referee sale because the residential property could not be parti-
tioned in kind. The referee recommended the net sale proceeds
be divided between the parties based on their respective own-
ership interests.
After the referee filed his report but before the district
court ruled on it, Gene retained counsel and filed a motion
to vacate the May 20, 2014, summary judgment order. In
support of the motion to vacate, Gene argued that when a
divorce decree gives parties a tenancy in common in mari-
tal property and one of the parties continues to reside on
the property, the nonresiding party waives his or her right
to partition under equity principles. In opposing the motion
to vacate, Marcia argued Gene was precluded from raising
such an affirmative defense at that stage of the proceedings,
since a judgment in partition already had been entered on
summary judgment. On November 13, the district court over-
ruled Gene’s motion to vacate, reasoning in part that although
Gene “could have raised an affirmative defense that [the]
conveyance was a sale in violation of the decree and that as
a matter of equity [Marcia] should be precluded from seeking
partition,” his failure to present such a defense in response

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
to Marcia’s summary judgment motion was “not grounds to
vacate the judgment.”
Gene timely appealed from the order denying the motion to
vacate. The Nebraska Court of Appeals dismissed his appeal in
case No. A-14-1078 in a February 13, 2015, minute entry. The
court cited Vrana v. Vrana1 for the proposition that where an
appeal in partition is prosecuted before the trial court has acted
on the report of the referee, such appeal must be dismissed,
because it is not from a final order.
Thereafter, on March 16, 2015, the district court entered
an order approving the referee’s report and ordering that “the
Referee proceed to sale of the premises at public auction as
upon execution, upon such terms . . . and conditions as the
Referee shall deem to be reasonable, and shall make due return
of his biddings to this court.” Gene timely appealed from the
March 16 order, and we moved this case to our docket on our
own motion pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.2
ASSIGNMENTS OF ERROR
Gene assigns, restated, that the district court erred (1) in
overruling his motion to vacate the summary judgment order;
(2) in ordering partition of the property, in violation of the
decree of dissolution; and (3) in accepting the referee’s recom-
mendation and ordering the property to be sold.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.3
ANALYSIS
[2] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
1 Vrana v. Vrana, 85 Neb. 128, 122 N.W. 678 (1909).
2 Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
3 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
jurisdiction over the matter before it.4 This is so even where, as
here, neither party has raised the issue.5
Gene seeks appellate review of several orders entered by
the district court during the pendency of this partition action.
We consider, with respect to each, whether it is properly
before us.
The seminal case on the issue of the appealability of orders
in a partition action is Peterson v. Damoude.6 In that case, we
recognized the varying procedural and factual paths a parti-
tion action can take, and we explained that the appealability
of orders arising in such actions depends on the nature of the
controversy resolved by the order. We noted that
[c]ases involving partition, and the right of appeal before
partition is complete, range themselves in three classes:
(1) Where there is no controversy as to the ownership
of the property in common and the right of partition, but
the controversy is as to something relating to the parti-
tion, as whether the property can be equitably divided
or must be sold, one party contending that it can be
equitably divided and asking for a distinct portion of the
property, and the other party contending that it cannot be
equitably divided and asking that the whole property be
sold, or some similar controversy in regard to the parti-
tion itself. When that is the case, the partition alone is the
subject of litigation, and of course is not final until the
partition is made.
(2) The second class is where there is the same issue as
above indicated as to the method of partition, and at the
same time a distinct issue as to the title and ownership
of the property. In such cases the parties would have a
right to have their title first tried and determined, and, if
that was done, the order thereon would be a final order,
4 Id.
5 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
6 Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914).

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
within the per curiam in [Sewall v. Whiton7], but if the
matter is tried to the court, and the parties do not ask
that their title be first determined, and there is no indica-
tion that the court proceeded first to determine the title,
the parties should be held to have waived their right to
appeal before the partition is completed.
(3) The third class is where everything depends upon
the title and the nature of the title, and where, when that
question is determined, the whole thing is determined. In
such case there can be no doubt under the per curiam in
the Sewall case that, when that question is determined,
such determination is a final order, within the meaning of
the statute, and is appealable.8
[3-5] Stated simply, when the dispute in a partition action
is over the partition itself rather than ownership or title, there
is no final, appealable order until the partition is made. When
a partition action involves a dispute over ownership or title as
well as a dispute over the method of partition, the parties have
a right to have title determined first, and, if they elect to do so,
an order resolving only the title dispute is a final, appealable
order. Finally, when the only issue in a partition action depends
on ownership and the nature of the title, an order determining
that issue is a final, appealable order.9
[6] We implied in Peterson that a proceeding within a par-
tition action to determine only title is a special proceeding,
and we take this opportunity to better explain our reasoning.
We have defined special proceedings in a number of differ-
ent ways over the years, and we do not undertake here the
Sisyphean task of reconciling those definitions.10 As relevant
7 Sewall v. Whiton, 85 Neb. 478, 123 N.W. 1042 (1909).
8 Peterson v. Damoude, supra note 6, 95 Neb. at 471, 145 N.W. at 848.
9 Id.
10 See John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001).

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
here, we have noted that “[w]here the law confers a right and
authorizes a special application to a court to enforce the right,
the proceeding is special, within the ordinary meaning of the
term ‘special proceeding.’”11 Our recognition in Peterson that
parties in partition actions have a right to have their title “first
tried and determined” is recognition of just such a right, as
well as recognition that an order determining title ordinarily
affects a substantial right.12
We have consistently applied Peterson to determine when
and under what circumstances orders in partition actions are
final and appealable,13 and we conclude it is applicable here
as well.
Finality of March 16 Order
The district court’s March 16, 2015, order approved the
referee’s initial report and ordered that “the Referee proceed
to sale of the premises at public auction as upon execution,
upon such terms . . . and conditions as the Referee shall deem
to be reasonable, and shall make due return of his biddings to
this court.” We conclude this is not a final, appealable order
because it is merely one step in the partition action.
The partition statutes set up a series of statutorily man-
dated phases in order to achieve the partition of property.14
Partition begins with the filing of a complaint in partition.15
The parties then produce documentary proof showing their
share,16 after which the district court shall render judgment
11 State v. Jacques, 253 Neb. 247, 253, 570 N.W.2d 331, 335 (1997).
12 Peterson v. Damoude, supra note 6, 95 Neb. at 471, 145 N.W. at 848.
Accord Sewall v. Whiton, supra note 7.
13 See, Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950); Beck v.
Trapp, 103 Neb. 832, 174 N.W. 610 (1919).
14 See Neb. Rev. Stat. § 25-2170 et seq. (Reissue 2008).
15 § 25-2170.
16 See §§ 25-2177 and 25-2178.

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
“confirming those shares and interests, and directing parti-
tion to be made accordingly.”17 At this point, the district court
appoints up to three referees18 who compile a report on the
property to be partitioned.19 If, as was the case here, the report
recommends partition in sale rather than partition in kind,
and if the court is satisfied with the report, it “shall cause an
order to be entered directing the referee or referees to sell the
premises.”20 After the sale, the referee must report the results
of the sale to the court.21 At that time, the court may appoint
a referee to “inquire into the nature and amount of encum-
brances, and report accordingly.”22 Once the referee’s final
report is confirmed, “judgment thereon shall be rendered that
the partition be firm and effectual forever.”23
[7] We recite this statutory scheme to illustrate what we
observed long ago in Vrana v. Vrana24: The order adopting
the referee’s initial report and ordering a sale is not a final
order. Rather, it is simply one step in the partition process.
Vrana was a partition action which only involved a contro-
versy over the method of partition. There, the district court
appointed a referee to make partition and report back to the
court and appeal was taken from that order. We held the order
appealed from was not final, and we dismissed the appeal.
This is because, as we explained shortly thereafter in Sewall
v. Whiton,25 such an order is merely “one step in the parti-
tion proceedings, is interlocutory in its nature, and cannot
17 § 25-2179.
18 § 25-2180.
19 See §§ 25-2181 and 25-2182.
20 § 25-2183.
21 § 25-2186.
22 § 25-2187.
23 § 25-21,105.
24 Vrana v. Vrana, supra note 1.
25 Sewall v. Whiton, supra note 7, 85 Neb. at 479, 123 N.W. at 1043.

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
be reviewed until the final decree of partition, or until sale
and confirmation.”
In Trowbridge v. Donner,26 we reviewed a partition action
after the subject property had been sold and an order con-
firming the sale had been entered. In discussing the history
of the case, we noted the district court had properly denied
a supersedeas bond when one of the parties wanted to appeal
from an earlier order adopting a referee’s report and ordering
the property sold. We noted that “the decree ordering partition
and sale was not appealable as a final order until partition was
effected and confirmed.”27
We recognize that in In re Estate of McKillip,28 we held that
an order adopting a referee report and ordering a referee sale
was a final, appealable order under Neb. Rev. Stat. § 25-1902
(Reissue 2008). But in that case, we were considering a par-
tition for purposes of distribution within a probate proceed-
ing.29 Because proceedings under the probate code are special
proceedings,30 we concluded the county court’s order directing
a referee’s sale arose in a special proceeding and affected a
substantial right under § 25-1902. In concluding the order in
In re Estate of McKillip was final and appealable, we distin-
guished our holdings in Peterson and Trowbridge, because
those cases did not involve partitions within probate proceed-
ings, but, rather, involved orders in civil partition actions
filed in district court pursuant to chapter 25, article 21, of the
Nebraska Revised Statutes.31
Here, the partition action was filed in district court and
is not part of a probate proceeding. Analysis of whether
26 Trowbridge v. Donner, supra note 13.
27 Id. at 209-10, 40 N.W.2d at 658.
28 In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
29 See Neb. Rev. Stat. § 30-24,109 (Reissue 2008).
30 Id.
31 See § 25-2170 et seq.

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
the March 16, 2015, order is final is governed by Peterson,
Trowbridge, and Vrana, rather than by In re Estate of McKillip.
Under our established precedent, the district court’s March 16
order adopting the referee’s initial report and ordering a sale
was not a final, appealable order.
Order on Summary Judgment
and Order Overruling
Motion to Vacate
Gene also seeks appellate review of the order granting sum-
mary judgment on the issue of partition and the subsequent
order overruling his motion to vacate the summary judgment.
We conclude neither the summary judgment order nor the
order overruling the motion to vacate is properly before us in
this appeal.
On May 20, 2014, the district court entered its order grant-
ing summary judgment as to the questions of title and partition.
There is no dispute that Gene did not appeal from that order
within 30 days. Under Peterson, whether the May 20 order was
final depends on whether ownership or title was disputed as the
record stood at that time. Our review of the record convinces
us it was not.
[8] At the summary judgment hearing, Gene did not contest
ownership or title in any respect, but, rather, agreed ownership
was as alleged by Marcia. Moreover, even if Gene’s pro se
answer could liberally be construed as disputing title, we rec-
ognized in Sewall that if the parties
unite the issues and litigate the question of title and
the right to partition at the same time, and the court
determines both issues in the same judgment, such a
judgment or order is only one step in the partition pro-
ceedings, is interlocutory in its nature, and cannot be
reviewed until the final decree of partition, or until sale
and confirmation.32
32 Sewall v. Whiton, supra note 7, 85 Neb. at 479, 123 N.W. at 1043.

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SCHLAKE v. SCHLAKE
Cite as 294 Neb. 755
Here, the issues of title and partition were presented simul-
taneously to the district court on summary judgment without
objection and the issues were determined by the court in a
single order, so “the parties should be held to have waived
their right to appeal [the title determination] before the parti-
tion is completed.”33
This is not a case which falls, either procedurally or factu-
ally, into the third Peterson category. And whether it falls into
the first or second categories is not dispositive because, either
way, under the rules announced in Peterson and Sewall, there
can be no final order or judgment until the partition action is
complete. To the extent Gene desires appellate review of the
district court’s summary judgment rulings on the issues of title
and partition, such review, if it is to occur, must wait until the
partition action is completed.34
Finally, we note Gene assigns error to the district court’s
overruling of his motion to vacate the May 20, 2014, summary
judgment order. This assigned error was the subject of Gene’s
first appeal, which was dismissed by the Court of Appeals
for lack of a final order. Gene did not seek further review of
that dismissal, and we will not, in his current appeal, revisit
the issue.
CONCLUSION
For the foregoing reasons, we conclude Gene has appealed
from a nonfinal order and we must dismiss the appeal.
Appeal dismissed.
Connolly, J., not participating in the decision.
33 See Peterson v. Damoude, supra note 6, 95 Neb. at 471, 145 N.W. at 848.
See, also, Sewall v. Whiton, supra note 7.
34 See id.