Wagner v. Wagner

The change in the property division attributable to
this modification is as follows: The trial court found
that the total net marital estate was $446,462, which
when reduced by $59,600 becomes $386,862. Thus, half
of the net marital estate is $193,431. The trial court
awarded Kristi $197,725 as her “net marital estate award”
and an equalizing payment of $25,506. We eliminate
the equalizing payment, leaving Kristi with a total of
$197,725approximately 51 percent of the net marital
estate. In all other respects, we affirm the trial court’s
property division.
The remainder of the opinion shall remain unmodified.
former opinion modified .
motion for reheAring overruled .
mAry elizAbeth wAgner , Appellee , v .
JAmes briAn wAgner , AppellAnt .
743 N.W.2d 782
Filed January 22, 2008. 	No. A-06-427.
1. 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.
2. Judgments: Final Orders: Time: Notice: Appeal and Error. Proceedings to
obtain a reversal, vacation, or modification of judgments and decrees rendered or
final orders made by the district court shall be by filing within 30 days after the
entry of such judgment, decree, or final order, a notice of intention to prosecute
such appeal.
3. Judgments: Words and Phrases. A judgment is the final determination of the
rights of the parties in an action.
4. Judgments: Records: Words and Phrases. Rendition of a judgment is the act of
the court, or a judge thereof, in making and signing a written notation of the relief
granted or denied in an action.
5. Judgments: Records: Time: Appeal and Error. 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. For purposes of determining the time
for appeal, the date stamped on the judgment, decree, or final order shall be the
date of entry.
Appeal from the District Court for hall County: JAmes
livingston, Judge. Appeal dismissed.
328 	16 NEBRASKA APPELLATE REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

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.
irwin , sievers, and moore, Judges.
irwin, Judge.
I. INTRODUCTION
James Brian Wagner appeals a decree entered by the district
court for hall County dissolving his marriage to Mary Elizabeth
Wagner. On appeal, James challenges various aspects of the
court’s property distribution, the court’s alimony award, and
the court’s award of attorney fees to Mary. We conclude that a
typewritten letter from the court to the parties which resolved all
of the issues presented in the case and was filed with the court’s
clerk constituted the final, appealable order, and thus James’
appeal from the subsequently filed “Decree of Dissolution” was
not timely. We dismiss the appeal.
II. BACKGROUND
On January 2, 2004, Mary filed a petition seeking dissolution
of the parties’ marriage. A trial was conducted on August 22
and December 7, 2005.
On January 11, 2006, the district court filed with the clerk of
the court a copy of a letter dated January 10 and sent to counsel
for both parties. In that letter, the court indicated that “[b]y this
letter I am rendering decision on the trial of this matter.” The
court directed Mary’s counsel to “draft the Decree incorporating
the findings and orders [in the letter] and submit it to [James’
counsel] for his approval as to form and then to the Court.” In
the letter, the court resolved all issues, did not reserve judgment
on anything, and did not direct the parties to advise the court of
any issues not resolved or file any further requests for relief.
On February 7, 2006, the court filed a “Decree of Dissolution”
which included all of the findings made in the court’s January
11 letter to counsel. On February 17, James filed a motion seek-
ing a new trial or an alteration or amendment to the judgment.
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On March 14, the court filed a journal entry overruling the
motion. James filed his notice of appeal on April 12.
III. ASSIGNMENTS OF ERROR
James has assigned four errors on appeal. Because of our
conclusion that the appeal was not timely filed, we need not
more specifically discuss James’ assignments of error.
IV. ANALYSIS
Our review of the record in this case revealed that the district
court filed a typewritten, signed letter to the parties in which
the court resolved the issues presented. The subsequently filed
“Decree of Dissolution” did not alter the findings of the court
from those set forth in the letter. Pursuant to established prec-
edent, we conclude that James failed to timely file his appeal.
[1-5] 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. City of Ashland v. Ashland
Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006); Hosack v.
Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004); Peterson v.
Peterson, 14 Neb. App. 778, 714 N.W.2d 793 (2006). Neb. Rev.
Stat. § 25-1912(1) (Cum. Supp. 2006) provides that “proceed-
ings to obtain a reversal, vacation, or modification of judgments
and decrees rendered or final orders made by the district court
. . . shall be by filing . . . within thirty days after the entry of
such judgment, decree, or final order, a notice of intention to
prosecute such appeal.” Neb. Rev. Stat. § 25-1301 (Cum. Supp.
2006) provides in pertinent part:
(1) A judgment is the final determination of the rights
of the parties in an action.
(2) Rendition of a judgment is the act of the court, or a
judge thereof, in making and signing a written notation of
the relief granted or denied in an action.
(3) 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. For
purposes of determining the time for appeal, the date
stamped on the judgment, decree, or final order shall be
the date of entry.
330 	16 NEBRASKA APPELLATE REPORTS

1. development of lAw
The jurisdictional issue in the present case arises because
the record includes two signed and file-stamped documents
which contain the district court’s findings and resolution on the
issues presented at trial. In prior cases, the appellate courts of
this state have established that in such a situation, if the first
document is a final determination of the parties’ rights and
does not leave matters unresolved, it can be considered a final,
appealable order for purposes of establishing the appropriate
deadline for filing a notice of appeal. See, City of Ashland v.
Ashland Salvage, supra; Hosack v. Hosack, supra; Peterson v.
Peterson, supra.
(a) Hosack v. Hosack
In Hosack v. Hosack, supra, Judy Louise hosack filed a peti-
tion seeking dissolution of her marriage to Max Galen hosack.
On October 15, 2002, the district court filed a journal entry
resolving a number of the issues presented in the dissolution
proceeding. The journal entry also specifically indicated that
counsel was to advise the court, by written motion, if the court
had failed to rule on any material issue and that if no motion
was filed within 10 days, all matters not specifically ruled upon
were deemed denied. The journal entry directed Judy’s counsel
to prepare the decree and present it to Max’s counsel for review.
A decree was signed by the district court on November 14 and
filed by the clerk of the district court.
On December 4, 2002, Max filed a notice of appeal to this
court. This court dismissed the appeal, ruling that the October
15 journal entry was a proper entry of judgment and that Max’s
notice of appeal was not timely. Max then sought and was
granted further review by the Nebraska Supreme Court.
On further review, the Supreme Court held that the October
15, 2002, journal entry was not a proper entry of judgment.
The court held that the journal entry “left certain matters unre-
solved” and noted that the journal entry “directed [counsel] to
advise the district court by written motion if the court had failed
to rule on any material issue presented.” Hosack v. Hosack, 267
Neb. 934, 939, 678 N.W.2d 746, 752 (2004).
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The Supreme Court also specifically disapproved of the
practice of a trial court’s filing a journal entry describing an
order to be entered at a subsequent date. The court recognized
that “‘the confusion presented . . . can be avoided if trial courts
will, as they should, limit themselves to entering but one final
determination of the rights of the parties in a case.’” Id. at 940,
678 N.W.2d at 752, quoting Federal Land Bank v. McElhose,
222 Neb. 448, 384 N.W.2d 295 (1986). The court directed trial
courts to “notify the parties of [the] findings and intentions as
to the matter before the court by an appropriate method of com-
munication without filing a journal entry” and noted that “[t]he
trial court may thereby direct the prevailing party to prepare
an order subject to approval as to form by the opposing party.”
267 Neb. at 940, 678 N.W.2d at 752-53. The court specifically
directed that “[o]nly the signed final order should be filed with
the clerk of the court.” Id. at 940, 678 N.W.2d at 753.
(b) City of Ashland v. Ashland Salvage
In City of Ashland v. Ashland Salvage, 271 Neb. 362, 711
N.W.2d 861 (2006), Ashland Salvage, Inc., and Arlo Remmen
(collectively Ashland Salvage) filed suit against the City of
Ashland to challenge a special assessment imposed by the
city for cleanup costs associated with the removal of materials
Ashland Salvage had been storing on portions of public rights-
of-way. The city filed a declaratory judgment action, and prior
to trial, the district court consolidated the two actions.
On November 22, 2004, following a trial, the district court
ruled in favor of the city on the declaratory judgment claim
in a file-stamped journal entry. The journal entry also directed
counsel for the city to prepare an injunction. On November 30,
Ashland Salvage filed a notice of appeal from the November
22 journal entry. On December 6, the court filed an order of
permanent injunction.
The Nebraska Supreme Court held that the November 22,
2004, journal entry was a final, appealable order and that
Ashland Salvage’s appeal from it, rather than the later December
6 order, was timely. The court held that the journal entry
resolved all issues raised in the declaratory judgment action
and disposed of the whole merits of the case, notwithstanding
332 	16 NEBRASKA APPELLATE REPORTS

that it directed counsel for the city to prepare another order. The
court held that the journal entry satisfied the requirements of
§ 25-1301 to constitute a judgment from which an appeal could
be taken. In contrast to the journal entry in Hosack v. Hosack,
supra, that left certain matters unresolved, the November 22
file-stamped journal entry disposed of all claims.
The Supreme Court also once again took the opportunity to
disapprove of the practice of a trial court’s filing of a journal
entry describing an order to be entered on a subsequent date.
The court again gave direction to the trial courts of the proper
procedure and again indicated that “‘[o]nly the signed [judg-
ment, decree, or] final order should be filed with the clerk of the
court.’” 271 Neb. at 368, 711 N.W.2d at 868, quoting Hosack
v. Hosack, supra.
(c) Peterson v. Peterson
In Peterson v. Peterson, 14 Neb. App. 778, 714 N.W.2d 793
(2006), Mary J. Peterson filed a petition seeking dissolution of
her marriage to Paul R. Peterson. On May 3, 2004, a document
titled “‘Opinion and Findings’” was file stamped and filed by
the clerk of the district court. Id. at 779, 714 N.W.2d at 795.
The May 3 document was also signed by the trial judge, and it
set forth the court’s resolution of the issues presented. The docu-
ment did not include any language suggesting that either party
could file any motion to advise the court of material issues left
unresolved. The document did include a provision stating that
Mary’s counsel was “‘to prepare a Decree in conformance with
the Court’s findings and submit the same to opposing Counsel
for approval, then to the Court for signature.’” Id. at 781, 714
N.W.2d at 796. On May 4, the court entered an order nunc pro
tunc in which the court revised the May 3 document with respect
to two provisions.
On May 28, 2004, a “‘Decree of Dissolution of Marriage’”
was filed. Id. This document was also signed by the trial judge
and file stamped, and it set forth essentially the same findings
set forth in the previous two documents. On June 4, Mary filed
a motion for new trial, which motion was denied on July 8. On
August 3, Mary filed a notice of appeal, and Paul subsequently
filed a cross-appeal.
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Cite as 16 Neb. App. 328

This court reviewed the Nebraska Supreme Court’s hold-
ings in City of Ashland v. Ashland Salvage, 271 Neb. 362, 711
N.W.2d 861 (2006), and Hosack v. Hosack, 267 Neb. 934, 678
N.W.2d 746 (2004), to determine whether the May 3 and 4,
2004, documents should be considered a final, appealable order.
We held that the May 3 and 4 documents set forth the district
court’s determination of the issues presented for resolution and
left no matters unresolved. We held that, pursuant to City of
Ashland v. Ashland Salvage, supra, the language directing one
party’s counsel to prepare another document did not contradict
the May 3 and 4 documents’ function as a final determination
of the rights of the parties. Finally, we held that the May 28
decree did not alter the determination of the issues as set out in
the May 3 and 4 documents. We concluded that Mary’s notice
of appeal was clearly filed out of time. We also held that Mary’s
motion for new trial was not timely filed with respect to the
May 3 and 4 final order. On July 19, 2006, the Supreme Court
overruled a petition for further review in Peterson.
In the course of this court’s discussion in Peterson, we noted
that the Nebraska Supreme Court has specifically disapproved
of the practice of a trial court’s filing a journal entry describ-
ing an order to be filed at a subsequent date. We quoted the
Supreme Court’s directions to trial courts from City of Ashland
v. Ashland Salvage, supra, and Hosack v. Hosack, supra, as set
forth above.
2. A ppliCAtion And resolution
The present case is, for all practical purposes, nearly identi-
cal to City of Ashland v. Ashland Salvage, supra, and Peterson
v. Peterson, supra. In this case, the district court filed a written,
signed document which set forth the court’s determination of all
issues presented for resolution. In that document, the court spe-
cifically indicated that it was “rendering decision on the trial of
this matter.” In this case, that document was a letter to counsel
for both parties, while in City of Ashland, that document was
a signed journal entry and in Peterson, that document was in
the form of an “Opinion and Findings”; but in each case, the
court filed a written, signed document determining all issues
presented. In each case, that written, signed document directed
334 	16 NEBRASKA APPELLATE REPORTS

counsel for one of the parties to prepare another document and
present it to opposing counsel for approval as to form, but as
the Nebraska Supreme Court directed in City of Ashland, that
direction does not deprive the document of its function as a
final, appealable order.
The letter to counsel in this case satisfied the requirements
of § 25-1301(2) to constitute a rendition of judgment, because
it was a written, signed notation of the relief granted or denied.
The letter to counsel further satisfied the requirements of
§ 25-1301(3) to constitute the entry of a judgment, because the
clerk placed the file stamp and date upon the letter.
Although the Nebraska Supreme Court has specifically cau-
tioned in both City of Ashland v. Ashland Salvage, supra, and
Hosack v. Hosack, supra, that only the final order should be
filed by the trial court, the district court in the present case filed
both the letter to counsel and the subsequently drafted decree of
dissolution. As a result, the January 11, 2006, letter to counsel
constituted a final, appealable order. James’ notice of appeal
was not filed until April 12, and was clearly filed out of time.
Additionally, as in Peterson v. Peterson, 14 Neb. App. 778, 714
N.W.2d 793 (2006), the motion for new trial did not serve to
toll the time for filing an appeal, because it was not filed within
10 days of the final, appealable order.
V. CONCLUSION
having found that James’ appeal was filed outside the 30-day
time limit for filing an appeal, we are without jurisdiction to hear
the appeal. The appeal is dismissed for lack of jurisdiction.
A ppeAl dismissed .
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Cite as 16 Neb. App. 328