Beckman v. McAndrew

Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).
See § 43-285.
[9] The evidence at the review hearing shows that Daniel’s
visitation was reduced because of his incarceration and the
attendant circumstances of the incarceration, including the
lengthy travel required of the children to visit Daniel at the cor-
rectional facility and the inability to have positive, meaningful
interaction between Daniel and the children while at the facil-
ity. The Nebraska Supreme Court has recognized that a parent’s
incarceration is a factor to consider in determining whether or
not a rehabilitation plan should be adopted for that parent. In re
Interest of Tabatha R., supra.
We conclude that Daniel failed to establish that DHHS’
proposal with respect to visitation was not in the children’s
best interests. Accordingly, we affirm the decision of the lower
court adopting the case plan and court report and overruling
Daniel’s objection.
A ffirmed .
B riAn T homAs B eckmAn , AppellAnT, v .
chrisTinA J oy mc A ndrew , Appellee .
742 N.W.2d 778
Filed December 4, 2007. 	No. A-06-910.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of the issue is a matter of law,
which requires an appellate court to reach a conclusion independent from the
trial court.
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.
3. ____: ____. 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.
4. Pleadings: Judgments. A postjudgment motion must be reviewed based on the
relief sought by the motion, not based on the title of the motion.
5. ____: ____. When the statutory basis for a motion challenging a judgment on
the merits is unclear, the motion may be treated as a motion to alter or amend
the judgment.
BeCkmAN v. mcANDreW 	217
Cite as 16 Neb. App. 217
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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6. ____: ____. A determination as to whether a motion, however titled, should be
deemed a motion to alter or amend a judgment depends upon the contents of the
motion, not its title.
7. Pleadings: Judgments: Time. In order to qualify for treatment as a motion to
alter or amend the judgment, the motion must be filed no later than 10 days after
the entry of judgment, as required under Neb. rev. Stat. § 25-1329 (Cum. Supp.
2006), and must seek substantive alteration of the judgment.
8. Pleadings: Judgments. If a motion seeks substantive alteration of a judgment, as
opposed to the correction of clerical errors or relief wholly collateral to the judg-
ment, a court may treat the motion as one to alter or amend the judgment.
Appeal from the District Court for Douglas County: J ohn d.
hArTigAn , J r ., Judge. Appeal dismissed.
Christopher 	A. 	Vacanti, 	of 	Cohen, 	Vacanti, 	Higgins 	&
Shattuck, for appellant.
robert e. O’Connor, Jr., for appellee.
inBody, Chief Judge, and irwin and moore, Judges.
moore, Judge.
INTrODUCTION
Brian Thomas Beckman appeals from an order of the dis-
trict court for Douglas County modifying a decree of paternity
with respect to visitation and other matters. Following entry of
the order, Beckman filed a motion to dismiss with the district
court, claiming that the district court no longer had jurisdiction
under the Uniform Child Custody Jurisdiction and enforcement
Act (UCCJeA), specifically Neb. rev. Stat. § 43-1239(a)(2)
(reissue 2004). We conclude that the motion to dismiss was
a tolling motion under Neb. rev. Stat. § 25-1912(3) (Cum.
Supp. 2006) and that because a ruling on the motion was not
announced prior to the filing of the notice of appeal, the notice
of appeal was of no effect and we do not have jurisdiction to
hear this appeal.
BACkGrOUND
Beckman and Christina Joy mcAndrew are the parents of a
child born October 16, 2000. A paternity decree was entered
on February 6, 2002, which awarded custody of the child to
218 	16 NeBrASkA AppellATe repOrTS

mcAndrew and set Beckman’s visitation rights. At the time of
the decree, Beckman was residing in Colorado and mcAndrew
and the child were residing in Omaha, Nebraska. On December
24, 2003, an order of modification was entered which granted
mcAndrew permission to remove the child from Nebraska to
kansas and altered the visitation provisions. On September 6,
2005, Beckman filed a complaint for modification in the district
court for Douglas County, again requesting a modification of the
visitation provisions. mcAndrew filed an answer and counter-
claim wherein she denied a material change in circumstances as
alleged by Beckman, but mcAndrew requested other modifica-
tions in the event the court decided to modify the decree. At the
time the complaint for modification was filed, Beckman was
still residing in Colorado and mcAndrew and the child were
residing in kansas. Beckman alleged in his complaint that the
court had jurisdiction over the subject matter and parties.
A trial on Beckman’s application was held in the district court
on July 12, 2006, at which time both parties presented evidence.
On July 18, an order was entered which modified the decree in
various respects. In the order, the district court noted that “[t]he
Court has full and complete jurisdiction over the subject matter
of this action, and the parties to this proceeding.” On July 19,
Beckman filed a motion to dismiss in the district court, assert-
ing for the first time that the district court lacked subject matter
jurisdiction under the UCCJeA, specifically Neb. rev. Stat.
§ 43-1238 (reissue 2004) and § 43-1239, and citing to Paulsen
v. Paulsen, 11 Neb. App. 582, 658 N.W.2d 49 (2003). Beckman
alleged that because neither party has resided in Nebraska since
June 2003, the exercise of continuing jurisdiction was improper
and the court should dismiss the action. On August 15, a hearing
was held on the motion to dismiss, at which time the court heard
arguments. We have no record of any announcement by the
court of a decision on August 15. In an order entered on August
23, the court noted that Beckman had also filed a notice of
appeal on August 15, divesting the court of jurisdiction to take
further action pending resolution of the appeal. Nevertheless,
the district court denied the motion to dismiss. Beckman appeals
from the order of modification entered July 18.
BeCkmAN v. mcANDreW 	219
Cite as 16 Neb. App. 217

ASSIGNmeNTS OF errOr
Beckman assigns error to the district court’s finding that a
material change of circumstances existed warranting a reduction
of Beckman’s parenting time rights with the child. Beckman
also assigns error to the district court’s failure to find that it
lacked subject matter jurisdiction to modify the decree.
STANDArD OF reVIeW
[1] When a jurisdictional question does not involve a factual
dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent
from the trial court. Watson v. Watson, 272 Neb. 647, 724
N.W.2d 24 (2006).
ANAlYSIS
[2,3] 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. Waite v. City of Omaha,
263 Neb. 589, 641 N.W.2d 351 (2002); State v. Blair, 14 Neb.
App. 190, 707 N.W.2d 8 (2005). 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.
Waite, supra.
[4-8] We must first examine the effect of Beckman’s filing
of the motion to dismiss; specifically whether it is a tolling
motion contemplated by Neb. rev. Stat. § 25-1912(3) (Cum.
Supp. 2006). A postjudgment motion must be reviewed based
on the relief sought by the motion, not based on the title of
the motion. Woodhouse Ford v. Laflan, 268 Neb. 722, 687
N.W.2d 672 (2004). See Weeder v. Central Comm. College, 269
Neb. 114, 691 N.W.2d 508 (2005). When the statutory basis
for a motion challenging a judgment on the merits is unclear,
the motion may be treated as a motion to alter or amend the
judgment. See Woodhouse Ford, supra. A determination as to
whether a motion, however titled, should be deemed a motion
to alter or amend a judgment depends upon the contents of the
motion, not its title. State v. Bellamy, 264 Neb. 784, 652 N.W.2d
86 (2002); Vesely v. National Travelers Life Co., 12 Neb. App.
622, 682 N.W.2d 713 (2004); Lee Sapp Leasing v. Ciao Caffe
220 	16 NeBrASkA AppellATe repOrTS

& Espresso, Inc., 10 Neb. App. 948, 640 N.W.2d 677 (2002).
In order to qualify for treatment as a motion to alter or amend
the judgment, the motion must be filed no later than 10 days
after the entry of judgment, as required under Neb. rev. Stat.
§ 25-1329 (Cum. Supp. 2006), and must seek substantive altera-
tion of the judgment. Weeder v. Central Comm. College, supra;
State v. Bellamy, supra. If a motion seeks substantive alteration
of a judgment, as opposed to the correction of clerical errors
or relief wholly collateral to the judgment, a court may treat
the motion as one to alter or amend the judgment. Strong v.
Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d
320 (2005).
Following the above principles, the Nebraska Supreme Court
and this court have treated a variety of postjudgment motions
as motions to alter or amend. There are several cases wherein
a motion for new trial has been treated as a motion to alter or
amend. See, id.; Allied Mut. Ins. Co. v. City of Lincoln, 269
Neb. 631, 694 N.W.2d 832 (2005); Weeder v. Central Comm.
College, supra; Diversified Telecom Servs. v. Clevinger, 268
Neb. 388, 683 N.W.2d 338 (2004); Central Neb. Pub. Power v.
Jeffrey Lake Dev., 267 Neb. 997, 679 N.W.2d 235 (2004). The
Supreme Court has also stated that a motion for reconsidera-
tion is the functional equivalent of a motion to alter or amend
a judgment. See, Strong v. Omaha Constr. Indus. Pension
Plan, supra; Allied Mut. Ins. Co. v. City of Lincoln, supra;
Woodhouse Ford v. Laflan, supra. In Debose v. State, 267 Neb.
116, 672 N.W.2d 426 (2003), the court found that the plaintiffs’
motion, which was filed after dismissal of their action on stat-
ute of limitations grounds and which requested reinstatement of
their action, was properly characterized as a motion to alter or
amend a judgment.
We conclude that Beckman’s motion to dismiss in this case
should be treated as a motion to alter or amend because it asks
for vacation of the July 18, 2006, order and dismissal of the
action. At the time Beckman’s notice of appeal was filed on
August 15, there had been no announcement by the court or
order entered with regard to the motion to dismiss. Therefore,
under § 25-1912(3), the notice of appeal filed on August 15 was
of no effect. No new notice of appeal was filed from the order
BeCkmAN v. mcANDreW 	221
Cite as 16 Neb. App. 217

entered on August 23, ruling on the motion to dismiss. Therefore,
this court is without jurisdiction to hear this appeal.
A ppeAl dismissed .
vAsile hurBencA, AppellAnT, v . neBrAskA depArTmenT
of correcTionAl services , Appellee .
742 N.W.2d 773
Filed December 4, 2007. 	No. A-06-945.
1. Statutes: Appeal and Error. Interpretation of a statute presents a question of law,
in connection with which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court below.
2. Sentences: Time: Prisoners. The chief executive officer of a correctional facility
shall reduce the term of a committed offender by 6 months for each year of the
offender’s term and pro rata for any part thereof which is less than a year.
3. ____: ____: ____. The total of term reductions shall be credited from the date of
sentence, which shall include any term of confinement prior to sentence and com-
mitment as provided pursuant to Neb. rev. Stat. § 83-1,106 (reissue 1987), and
shall be deducted (1) from the minimum term, to determine the date of eligibility
for release on parole, and (2) from the maximum term, to determine the date when
discharge from the custody of the state becomes mandatory.
4. Statutes. A statute is open for construction only when the language used requires
interpretation or may reasonably be considered ambiguous.
5. ____. A statute is ambiguous when the language used cannot be adequately
understood either from the plain meaning of the statute or when considered in pari
materia with any related statutes.
6. Habitual Criminals: Sentences: Probation and Parole: Time. It is undisputed
that a habitual criminal sentenced under Neb. rev. Stat. § 29-2221 (reissue 1995)
may not be released on parole until the individual has served the mandatory mini-
mum sentence of 10 years’ imprisonment.
7. Sentences: Time: Prisoners. The fact that Neb. rev. Stat. § 83-1,107 (reissue
1994) does not address whether good time may be applied to the maximum term of
the sentence when the mandatory minimum and the maximum term are the same
number of years gives rise to an ambiguity.
8. Probation and Parole: Time. The Board of parole shall reduce, for good conduct
in conformity with the conditions of parole, a parolee’s parole term by 2 days for
each month of such term.
9. Sentences: Probation and Parole: Time. The total of reductions for good conduct
shall be deducted from the maximum term, less good time granted pursuant to
Neb. rev. Stat. § 83-1,107 (reissue 1994), to determine the date when discharge
from parole becomes mandatory.
222 	16 NeBrASkA AppellATe repOrTS