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BRYSON L. v. IZABELLA L.

Cite as 302 Neb. 145

Bryson L., appellee, v. Izabella L., ap

and David B., interested party, a

___ N.W.2d ___

Filed January 25, 2019. No. S-18-459.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. ____: ____. 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. Jurisdiction: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. 

§ 25-1912 (Reissue 2016), to vest an appellate court with jurisdiction, a 

party must timely file a notice of appeal.

4. Motions to Vacate: Judgments: Time. In the absence of an applicable 

rule to the contrary, a motion asking the court to exercise its inherent 

power to vacate or modify its own judgment does not terminate the time 

for taking an appeal.

5. Motions to Vacate: Final Orders: Time: Notice: Appeal and Error. 

A party can move a court to vacate or modify a final order, but if the 

court does not grant the motion, a notice of appeal must be filed within 

30 days of the entry of the earlier final order if the party intends to 

appeal it.

6. Pleadings: Judgments: Time: Appeal and Error. Filing a timely 

motion to alter or amend a judgment terminates the time in which a 

notice of appeal must be filed.

7. Pleadings: Judgments: Time. In order to qualify for treatment as a 

motion to alter or amend a judgment, a motion must be filed no later 

than 10 days after the entry of judgment, as required under Neb. Rev. 

Stat. § 25-1329 (Reissue 2016), and must seek substantive alteration of 

the judgment.

8. Pleadings: Judgments: Time: Appeal and Error. A timely motion to 

alter or amend a judgment terminates the time to file an appeal, and the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/29/2019 09:07 AM CDT
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BRYSON L. v. IZABELLA L.

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full 30-day period to appeal begins to run from the entry of the order 

ruling upon the motion to alter or amend a judgment.

9. ____: ____: ____: ____. An untimely motion to alter or amend a judgment does not terminate the time for perfection of an appeal and does 

not extend or suspend the time limit for filing a notice of appeal.

Appeal from the District Court for Sarpy County: Stefa

A. Martinez, Judge. Appeal dismis

Aaron C. Wegner, of Husker Law, for appellant.

Heather L. Horst, of Walz Law Offices, P.C., L.L.O., for 

appellee Bryson L.

Heavican, C.J., Miller-Lerman, Cassel, 

Papik, and Freudenberg,

Cassel, J

INTRODUCTION

This appeal turns upon a jurisdictional issue. Approximately 

10 months after a marital dissolution decree was entered adjudicating paternity of a child, David B. sought to intervene and 

disestablish paternity. The district court entered a final order 

denying intervention. David then filed two motions to reconsider, one within 10 days of the final order, and after it was 

denied because it lacked a notice of hearing, he filed a second 

motion 11 days after the final order. Because David did not 

appeal within 30 days after the denial of his first motion to 

reconsider, which was properly construed as a motion to alter 

or amend the judgment, we lack jurisdiction of this appeal. 

The second motion, which was untimely as a motion to alter 

or amend, did not terminate or extend the time for appeal. We 

therefore dismiss the appeal.

BACKGROUND

Approximately 3 months after Izabella L. married Bryson 

L., she gave birth to a child. In November 2016, the district 

court approved the parties’ property settlement agreement and 

dissolved the 2-year marriage. The decree awarded Bryson sole 
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BRYSON L. v. IZABELLA L.

Cite as 302 Neb. 145

physical custody of the child and ordered that neither party 

shall pay child support due to Izabella’s unemployment and 

limited income.

In September 2017, David filed a motion to intervene in 

the dissolution case as an interested party. David alleged that 

when Izabella was pregnant and engaged to marry Bryson, she 

“indicated to [David] that he could be the father of the minor 

child.” In light of Izabella’s divorce, David obtained genetic 

testing. The test results, obtained in August, showed David’s 

probability of paternity to be 99.999 percent. Thus, David 

sought to be included in the dissolution case in order to disestablish Bryson’s custodial rights to the child under Neb. Rev. 

Stat. § 43-1412.01 (Reissue 2016). In October, David filed a 

motion to set aside the paternity finding within the decree of 

dissolution. He also requested that the court appoint a guardian 

ad litem for the child.

Although not in our record, Bryson apparently filed a motion 

to dismiss David’s motions to intervene and to set aside paternity. The district court held a hearing on that motion along 

with David’s motions.

On March 2, 2018, the district court entered an “Opinion 

and Order.” The court observed that the child had lived with 

Bryson since birth and was now 3 years old. The court found 

that David failed to act in a timely manner, noting that David 

had actual knowledge in 2014 that he could be the child’s 

father and took no action to determine paternity until after 

Bryson and Izabella divorced. The court sustained Bryson’s 

motion to dismiss and denied David’s motions to intervene and 

to set aside paternity.

On March 9, 2018, David filed a “Motion to Vacate/

Reconsider.” He asked “for the Court to set this matter for a 

hearing to reconsider the Opinion and Order entered on March 

2, 2018 and to consider the best interests of the minor child 

at issue, amongst other issues stated herein.” On March 13, 

the court denied the motion “for the procedural error that no 

Notice of Hearing was filed with the Motion.”
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BRYSON L. v. IZABELLA L.

Cite as 302 Neb. 145

Later on March 13, 2018, David filed a second “Motion to 

Vacate/Reconsider” with a notice of hearing specifying a hearing date. The addition of a notice of hearing and the date on 

the certificate of service are the only differences between the 

two motions.

On April 10, 2018, the district court denied David’s motion. 

The court found that the motion should be considered to be 

one to alter or amend under Neb. Rev. Stat. § 25-1329 (Reissue 

2016) and that it was “initially filed timely on March 9, 2018.” 

However, the court found that David’s motion lacked merit. On 

May 8, David filed a notice of appeal.

ASSIGNMENTS OF ERROR

David assigns four errors, which we consolidate and restate 

as alleging that the court erred in (1) denying his motions to 

intervene and to set aside paternity and (2) failing to appoint 

a guardian ad litem to provide an analysis of the child’s 

best interests.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law.1

ANALYSIS

[2] 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 Bryson asserts that we 

lack appellate jurisdiction, because David’s March 13, 2018, 

motion to vacate/reconsider was not timely filed and did not 

terminate the running of the time for filing a notice of appeal. 

We agree.

1 State on behalf of Marcelo K. & Rycki K. v. Ricky K., 300 Neb. 179, 912 

N.W.2d 747 (2018).

2 Id.
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[3] Under Neb. Rev. Stat. § 25-1912 (Reissue 2016), to 

vest an appellate court with jurisdiction, a party must timely 

file a notice of appeal.3 The notice of appeal must be filed 

within 30 days of the judgment, decree, or final order from 

which the party is appealing.4 Here, the parties do not dispute 

that the March 2, 2018, order was final and appealable.

[4,5] We begin by considering the effect of David’s first 

filing of a “Motion to Vacate/Reconsider.” A motion for reconsideration is nothing more than an invitation to the court to 

consider exercising its inherent power to vacate or modify its 

own judgment.5 In the absence of an applicable rule to the 

contrary, a motion asking the court to exercise its inherent 

power to vacate or modify its own judgment does not terminate the time for taking an appeal.6

 A party can move the court 

to vacate or modify a final order, but if the court does not 

grant the motion, a notice of appeal must be filed within 30 

days of the entry of the earlier final order if the party intends 

to appeal it.7 If David’s motion should have been treated as 

one to reconsider or to vacate, the court’s denial of the motion 

meant that he needed to file his notice of appeal within 30 

days of the March 2, 2018, order in order to vest jurisdiction 

in this court.

[6-8] But if David’s motion qualified as a motion to alter 

or amend a judgment, the time in which to file an appeal 

was effectively extended. That is because filing a timely 

motion to alter or amend a judgment terminates the time in 

3 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

4 See § 25-1912(1).

5 Applied Underwriters v. Oceanside Laundry, 300 Neb. 333, 912 N.W.2d 

912 (2018).

6 See In re Change of Name of Whilde, 298 Neb. 510, 904 N.W.2d 707 

(2017).

7 Id.
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which a notice of appeal must be filed.8 In order to qualify 

for treatment as a motion to alter or amend a judgment, a 

motion must be filed no later than 10 days after the entry of 

judgment, as required under § 25-1329, and must seek substantive alteration of the judgment.9

 A timely motion to alter 

or amend a judgment terminates the time to file an appeal, 

and the full 30-day period to appeal begins to run from the 

entry of the order ruling upon the motion to alter or amend 

a judgment.10

David filed his first motion within 10 days of the March 

2, 2018, order, and sought substantive alteration of the March 

2 order. Thus, the first motion qualified as a motion to alter 

or amend, thereby terminating the appeal time. But the court 

denied the first motion on March 13, which started the running 

of a new 30-day period for appeal.

[9] David’s second motion to reconsider was untimely and 

could not be construed as a motion to alter or amend the judgment. David filed his second motion to vacate or reconsider 

11 days after the March 2, 2018, order. An untimely motion to 

alter or amend does not terminate the time for perfection of an 

appeal and does not extend or suspend the time limit for filing 

a notice of appeal.11 Because that motion was not filed within 

10 days, it did not terminate the time for filing an appeal. Thus, 

the appeal time ran 30 days after the entry of the March 13 

order denying his first motion. David’s notice of appeal, filed 

in May 2018, was not timely. We therefore lack jurisdiction 

over this appeal.

The circumstances of this case provide a cautionary tale for 

both bar and bench. On March 13, 2018, when David filed his 

second motion, the 10-day period for filing a motion to alter or 

8 See § 25-1912(3).

9 State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).

10 See id.

11 See Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
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amend had expired. Thus, unlike his first motion to vacate or 

reconsider, the second motion could not be treated as a motion 

to alter or amend a judgment. The second motion was only a 

motion to reconsider, which, as we explained above, does not 

extend the time for appeal. Although David did file an appeal 

of the April 10 order denying his second motion and did so 

within 30 days after the second motion was denied, the time for 

appeal had already expired.

The bar should be cognizant of and follow any applicable 

statutes and rules concerning motions. A statute sets forth that 

“[w]here notice of a motion is required, it must be in writing 

and shall state . . . the place where and the day on which it 

will be heard . . . .”12 Although we see nothing in the Uniform 

District Court Rules of Practice and Procedure13 requiring a 

notice of hearing at the time of filing a motion, some local 

district court rules contain such a requirement.14 We do not 

find an equivalent requirement in the local rules for the Second 

Judicial District, which includes Sarpy County.15

Where a local rule does require a notice of hearing, it can be 

crafted to provide some leeway for compliance. For example, 

a local rule of the 12th Judicial District, which by its terms is 

applicable only to Scotts Bluff County, states: “If it is impossible to secure a time for hearing, the motion may be filed, 

but notice of hearing must be furnished promptly thereafter. 

Failure to secure and serve notice of . . . hearing within 10 

12 Neb. Rev. Stat. § 25-910 (Reissue 2016).

13 Neb. Ct. R. §§ 6-1501 to 6-1526.

14 See, Rules of Dist. Ct. of First Jud. Dist. 1-9 (rev. 2005); Rules of Dist. Ct. 

of Third Jud. Dist. 3-2 (rev. 2014); Rules of Dist. Ct. of Fourth Jud. Dist. 

4-2 (rev. 2005); Rules of Dist. Ct. of Eighth Jud. Dist. 8-3 (rev. 1995); 

Rules of Dist. Ct. of Ninth Jud. Dist. 9-11 (rev. 2010); Rules of Dist. Ct. 

of 10th Jud. Dist. 10-21 (rev. 2010); Rules of Dist. Ct. of 11th Jud. Dist. 

11-3 (rev. 2012).

15 See Rules of Dist. Ct. of Second Jud. Dist. 2-2 and 2-4 (rev. 2018).
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days after filing a motion will be deemed an abandonment of 

the motion.”16

Because we lack jurisdiction of this appeal, we express no 

opinion whether the district court erred in overruling David’s 

first motion because it did not include a notice of hearing. 

Where a notice of hearing is required, we recently explained 

that a district court has the discretion to excuse that requirement. There, as here, a party timely filed a motion to alter or 

amend, but the motion did not contain a notice of hearing.17

In that case, unlike the situation here, the opposing party 

objected that the district court lacked “jurisdiction” due to 

noncompliance with a local court rule requiring a party to 

obtain a hearing date at the time of filing a motion, but the 

court accepted and ruled upon the merits of the motion. In the 

context of discussing appellate jurisdiction, this court stated 

that the “statutory description of the motion to alter or amend 

does not include any requirement that the motion be accompanied simultaneously by a notice of hearing before the district 

court.”18 We found no error in the district court’s consideration 

of the motion, noting that “district courts have discretion to 

excuse procedural court rules.”19

But what a court cannot do is extend the time for filing an 

appeal. The district court here denied David’s first motion to 

reconsider—which was timely as a motion to alter or amend 

the judgment. Upon the entry of that denial order, the new 

30-day appeal time began to run. After David filed his second 

motion to reconsider (outside of the 10-day period), the district 

court apparently tried to help David by finding that his motion 

for reconsideration should be considered as a motion to alter 

or amend and that it “was initially filed timely on March 9, 

16 Rules of Dist. Ct. of 12th Jud. Dist. 12-3(A)(1) (rev. 2010).

17 See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).

18 Id. at 413, 908 N.W.2d at 641.

19 Id. at 413-14, 908 N.W.2d at 641.
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2018.” But the court had already denied that March 9 motion. 

David’s March 13 motion was not timely. A successive motion 

to alter or amend the same judgment does not terminate the 

time to appeal.20 As we recently stated: “Allowing an untimely 

motion to alter or amend would have the effect of extending 

the time for filing an appeal. But when the Legislature fixes 

the time for taking an appeal, the courts have no power to 

extend the time directly or indirectly.”21

CONCLUSION

David’s second motion to reconsider did not terminate the 

time for filing an appeal, because it was not filed within 10 

days of the final order. Because David did not appeal within 30 

days of the overruling of his first motion to reconsider, which 

was properly construed as a motion to alter or amend, we lack 

jurisdiction and must dismiss his appeal.

Appeal dismis

20 See Gebhardt v. Gebhardt, 16 Neb. App. 565, 746 N.W.2d 707 (2008). 

See, also, Mason v. Cannon, 246 Neb. 14, 516 N.W.2d 250 (1994) (time 

for filing appeal cannot be extended by successive filings of motions for 

new trial).

21 State v. Lotter, supra note 9, 301 Neb. at 137, 917 N.W.2d at 860.