Opinion
No. A-11-681
11-20-2012
KATHRYN J. PASSAUER, ALSO KNOWN AS KATHRYN J. KELLEY, APPELLANT, v. SAMUEL G. KELLEY, APPELLEE.
Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Order vacated, and appeal dismissed.
Gregory A. Pivovar for appellant.
Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for appellee.
PIRTLE and RIEDMANN, Judges.
PIRTLE, Judge.
INTRODUCTION
Kathryn J. Passauer, also known as Kathryn J. Kelley, appeals from the decree of dissolution of marriage entered by the district court for Sarpy County on July 6, 2011. Kathryn asserts the district court erred in denying a motion for continuance and finding it had jurisdiction to hear the case. Kathryn also asserts the district court abused its discretion in the award of alimony, distribution of marital property, and determination of custody. Because the lower court was without jurisdiction to enter the decree of dissolution, we vacate the decree and dismiss the appeal.
BACKGROUND
Samuel G. Kelley and Kathryn were married in Gretna, Nebraska, on February 18, 2000, and the parties have two children. The family lived in Gretna until approximately February 2009, when they moved to Lincoln, Nebraska. They moved into the home of Samuel's parents in order to assist them with the maintenance of their home and to allow Samuel to live closer to his job in Lincoln.
On September 30, 2009, Kathryn filed an action for dissolution of the marriage in the district court for Sarpy County. The complaint prayed for dissolution of the marriage, an equitable distribution of personal and real property, the temporary and permanent custody and control of the minor children, child support, alimony, attorney fees, court costs, and a temporary and permanent restraining order. Kathryn did not provide her current residential address in the complaint, nor did she affirmatively allege that she was a resident of Sarpy County.
The complaint indicated both parties were residents of the State of Nebraska for more than 1 year. The complaint also alleged Samuel resided in Lincoln, but did not include any information as to the location where Kathryn was residing on the date the complaint was filed.
The record shows Kathryn lived at several addresses in Saunders and Sarpy Counties after she left the home she shared with Samuel, up to the date of trial on June 1, 2011. However, there is no evidence in the record that Kathryn resided in Sarpy County at the time the complaint was filed.
When the complaint for dissolution was filed, Kathryn was represented by attorney Joseph Risko. At the hearing before the court on July 26, 2010, Risko withdrew his motion to withdraw from representing Kathryn. However, by the next hearing on August 30, Risko had withdrawn and Christina Thornton appeared as Kathryn's attorney. At the August 30 hearing, Thornton and Kathryn were advised that the trial date was set for October 5. Thornton made a motion for a continuance on October 4, requesting more time due to discovery and timing problems created by the turnover of attorneys. The continuance was granted and the trial was rescheduled for January 25 and 26, 2011.
On January 25, 2011, the district court made a docket entry indicating that the trial was continued to April 27 and 28 "[b]y agreement of Counsel." On April 25, attorney David Christopher Holcomb entered his appearance as cocounsel for Kathryn. On April 27, Kathryn's other attorney, Thornton, filed a motion to withdraw, which was granted. The trial was then continued to June 1.
Trial took place on June 1 and 2, 2011. Prior to the commencement of trial on June 1, Kathryn requested a continuance because her attorney, Holcomb, was not present. She explained that she did not receive notice Thornton had withdrawn until May 20, approximately 2 weeks prior to trial, and that her new attorney said he wanted money up front and another payment before trial. The judge responded, "[W]ell this thing can't go on forever. I mean . . . you've asked for continuances before." Kathryn responded that "we both have." After some discussion, the district court denied the motion and said "now you're the plaintiff, so you have to go forward." Kathryn reluctantly represented herself for the entirety of the trial while Samuel continued to be represented by counsel. Although Holcomb was still attorney of record for Kathryn and had not filed a formal motion to withdraw, the record is void of any effort by the judge to contact Holcomb and inquire as to his whereabouts or order him to appear for trial.
At the conclusion of the trial, the district court granted legal custody of the children to the parties jointly and granted primary physical custody of the children to Samuel. The court awarded alimony for a period of 36 months and ordered distribution of the parties' marital property. The district court filed the decree of dissolution of marriage on July 6, 2011. The decree stated that Kathryn was a resident of Gretna in Sarpy County and determined that the court had "full and complete jurisdiction of the parties hereto and the subject matter hereof."
Kathryn filed a motion for new trial on July 15, 2011, and it was overruled. Kathryn's notice of appeal in this case was filed August 5 by her appellate counsel, Gregory Pivovar. Holcomb is listed as cocounsel. Holcomb's motion to withdraw was not filed in the district court until October 7.
ASSIGNMENTS OF ERROR
Kathryn claims the trial court erred in denying the continuance she requested prior to the commencement of trial and in finding that the court had jurisdiction to hear the case. Kathryn also claims the trial court abused its discretion when it granted custody to Samuel. Finally, Kathryn asserts the trial court abused its discretion in the distribution of the parties' marital property and in the award of alimony.
STANDARD OF REVIEW
In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of discretion. Titus v. Titus, 19 Neb. App. 751, 811 N.W.2d 318 (2012).
The standard of review in an appeal concerning a jurisdictional issue in an action for dissolution of marriage is the same standard for appellate review of any other judgment in a dissolution action. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review. Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (1989).
ANALYSIS
Prior to the commencement of trial on June 1, 2011, Kathryn made a motion for continuance. One of Kathryn's attorneys had withdrawn a short time before the day of trial, and another attorney was not present on the day of trial because of a disagreement over the payment of attorney fees. The motion for continuance was denied by the district court. The district court noted that the trial had already been continued several times, although the record demonstrates only one of those prior continuances was at the request of Kathryn's attorney. The court concluded it was necessary for the trial to proceed as scheduled. As such, Kathryn was required to proceed pro se.
Kathryn now appeals with the assistance of new counsel. Kathryn argues several assignments of error, including the court's failure to grant her motion for continuance on the first day of trial, as well as errors in the distribution of property and the award of child support and alimony. However, we must first address Kathryn's assertion that the trial court erred when it found it had jurisdiction to hear the dissolution proceeding, as that issue bears upon the necessity of considering the remaining assignments of error.
The residency of one party in the county where a petition is filed is jurisdictional. The district court for a county cannot acquire jurisdiction over dissolution proceedings unless one of the parties is a resident of that county at the time the original petition is filed. Small v. Small, 229 Neb. 344, 427 N.W.2d 42 (1988).
Samuel cites Huffman v. Huffman, 232 Neb. at 750, 441 N.W.2d at 905, where the Nebraska Supreme Court stated that "[i]n today's mobile society, it is understandable that a spouse may leave the domiciliary county and relocate as a result of a broken marriage," and found that residence is the result of or achieved by a person's physical presence within the county. Samuel also cites Fletcher v. Fletcher, 182 Neb. 549, 156 N.W.2d 1 (1968), where the Supreme Court found the plaintiff satisfied the jurisdictional requirements when she filed her petition for dissolution the same day she moved to Brown County with her children.
Samuel argues that on the day Kathryn's complaint for dissolution was filed, she was a resident of Sarpy County; therefore, the district court had jurisdiction. He cites the complaint wherein Kathryn stated she was also a petitioner for a protection order in Sarpy County and notes that the complaint was filed on the day that she left Samuel and their Lincoln home in Lancaster County.
There is some evidence in the record that Kathryn lived in Sarpy County, specifically Gretna, during the pendency of this case, but the issue here is whether Kathryn resided in Sarpy County on September 29, 2009, the day the complaint was filed.
In Fletcher v. Fletcher, supra, there was evidence that the plaintiff left her husband on October 30, 1966, and moved into a home owned by her parents in Brown County on October 31. The petition was filed October 31. The evidence established the residency requirement was fulfilled, and the district court in Brown County was found to have jurisdiction. In contrast, Samuel testified at trial that he lived in Lincoln on September 29, 2009, and that Kathryn lived with him on that day. He specifically stated that she was not residing in Sarpy County and that she did not have a Sarpy County address on that day.
There is no evidence in the record in this case that Kathryn was a resident of Sarpy County on September 29, 2009. Thus, the record before us is insufficient to establish jurisdiction. Absent a showing that Kathryn was a resident of Sarpy County on the day the complaint was filed, we must find the district court was without jurisdiction to proceed with the dissolution of this marriage.
Having found the district court was without jurisdiction, we do not further address Kathryn's additional assignments of error. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it. Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).
CONCLUSION
We conclude that the district court lacked jurisdiction over this case. We, therefore, vacate the district court order and dismiss the appeal.
ORDER VACATED, AND APPEAL DISMISSED.
SIEVERS, Judge, participating on briefs.