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BURNS v. BURNS

Cite as 296 Neb. 184

Michael P. Burns, appellee, v. 

Kerry E. Burns, appellant.

___ N.W.2d ___

Filed March 24, 2017. No. S-16-491.

1. Motions to Vacate: Time: Appeal and Error. The decision to vacate 

an order any time during the term in which the judgment is rendered is 

within the discretion of the court; such a decision will be reversed only 

if it is shown that the district court abused its discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when 

the trial court’s decision is based upon reasons that are untenable or 

unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

3. Courts: Motions to Vacate. Although a court’s decision to vacate an 

order is discretionary, this discretion is not an arbitrary one. It must be 

exercised reasonably and depends upon the facts and circumstances in 

each case as shown by the record.

4. Jurisdiction: Venue: Words and Phrases. Jurisdiction is the inherent 

power or authority to decide a case; venue is the place of trial of an 

action—the site where the power to adjudicate is to be exercised.

5. Statutes: Presumptions: Legislature: Intent. In interpreting a statute, 

a court is guided by the presumption that the Legislature intended a 

sensible rather than absurd result in enacting the statute.

6. Trial: Venue: Parties: Stipulations. Absent statutory authority to the 

contrary or a written stipulation or oral stipulation on the record by all 

parties, trials and evidentiary hearings must be conducted in the county 

in which they are pending.

Appeal from the District Court for Adams County: James E. 

Doyle IV, Judge. Reversed and remanded with directions.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Nebraska Supreme Court Online Library

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

03/24/2017 09:09 AM CDT
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BURNS v. BURNS

Cite as 296 Neb. 184

Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., 

for appellee.

Wright, Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Kelch, J.

NATURE OF CASE

This case requires this court to determine whether Neb. 

Rev. Stat. § 24-303 (Reissue 2016) authorizes a district court 

sitting in one county to order a party in a contempt proceeding 

to appear in another county to show cause for why she should 

not be held in contempt. We conclude it does not and therefore reverse the court’s order and remand the cause.

FACTS

As an initial matter, we note that the district court judge handling this case is the Honorable James E. Doyle IV. Although 

Judge Doyle is a district court judge for the 11th Judicial 

District, this court appointed him to serve as the district court 

judge for the 10th Judicial District for the limited purpose of 

handling Burns v. Burns, case No. CI03-248. This was done 

because one of the parties, Michael P. Burns, served as a 

county court judge for the 10th Judicial District, thus creating 

a conflict of interest.

Michael and Kerry E. Burns divorced in 2004. Since the 

divorce decree was issued, there have been several modifications and appeals.1

 This particular appeal involves a contempt 

proceeding between the parties, which was pending before the 

district court for Adams County.

On January 6, 2016, Judge Doyle, acting as the district court 

judge for Adams County, issued an order requiring Kerry to 

appear in the Dawson County District Court in Lexington, 

Nebraska, on February 12 and show cause why she should not 

be held in contempt for refusing to comply with prior orders. 

On January 19, an affidavit of service of process was filed in 

1 See Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
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the district court for Adams County, reflecting that Kerry had 

been personally served in Wichita, Kansas. Ultimately, Kerry 

did not appear for the show cause hearing, but an evidentiary 

hearing was nevertheless held in Dawson County.

On February 24, 2016, the district court entered an order 

finding Kerry in contempt and sanctioning her therefore to 10 

days in jail. The order also contained a purge plan.

On March 3, 2016, Kerry moved the district court to vacate 

its February 24 order on the basis that the court did not have 

authority to hold an evidentiary hearing outside of the county 

in which it was sitting.

On April 14, 2016, the district court issued an order in 

which it found that it did have authority to hold the hearing 

outside of the county and therefore overruled Kerry’s motion 

to vacate. Kerry appeals from that order.

ASSIGNMENT OF ERROR

Kerry’s sole assignment of error is that the district court 

erred in overruling her motion to vacate, because the January 6 

and February 24, 2016, orders are void.

STANDARD OF REVIEW

[1-3] The decision to vacate an order any time during the 

term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if it is 

shown that the district court abused its discretion.2 An abuse 

of discretion occurs when the trial court’s decision is based 

upon reasons that are untenable or unreasonable or if its action 

is clearly against justice or conscience, reason, and evidence.3

Although a court’s decision to vacate an order is discretionary, 

this discretion is not an arbitrary one. It must be exercised 

reasonably and depends upon the facts and circumstances in 

each case as shown by the record.4

2 Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).

3 Id.

4 Talkington v. Womens Servs., 256 Neb. 2, 588 N.W.2d 790 (1999).
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ANALYSIS

We first address Michael’s claim that Kerry waived the 

issue of whether the January 6 and February 24, 2016, orders 

should be vacated because she did not appeal from the 

January 6 and February 24 orders. Kerry asserts that both of 

those orders are void for want of jurisdiction and that thus, 

she can attack them at any time in any proceeding.5 Rather 

than being a jurisdictional issue, Michael contends that the 

court’s ability to hold an evidentiary hearing outside the 

county in which it sits is a venue issue and therefore may 

be waived.

[4] However, we conclude that the issue presented is clearly 

one of jurisdiction. Jurisdiction is the inherent power or authority to decide a case; venue is the place of trial of an action—

the site where the power to adjudicate is to be exercised.6

Here, Kerry is not questioning whether the place of trial action 

was proper under Neb. Rev. Stat. § 25-403.01 (Reissue 2016); 

instead, she questions Judge Doyle’s authority in this case 

to order her to appear outside Adams County and to hold an 

evidentiary hearing outside Adams County. Accordingly, this 

appeal presents a jurisdictional issue. As we shall discuss 

below, we find that both orders are void for want of jurisdiction and that thus, Kerry has not waived the issue by failing to 

appeal from those orders.

First, we examine the authority granted to a district judge 

in Nebraska. The powers of a district judge commence with 

article V of the Nebraska Constitution. Section 1 vests the 

judicial power of the state in “a Supreme Court, an appellate 

court, district courts, county courts, in and for each county, 

with one or more judges for each county or with one judge 

for two or more counties, as the Legislature shall provide,” as 

well as “other courts inferior to the Supreme Court as may be 

created by law.” As section 11 states, “The Legislature may 

5 See, In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016); Ryan 

v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).

6 Blitzkie v. State, 228 Neb. 409, 422 N.W.2d 773 (1988).
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change the number of judges of the district courts and alter 

the boundaries of judicial districts.”

Of relevance to this case, section 12 provides that “[t]he 

judges of the district court may hold court for each other and 

shall do so when required by law or when ordered by the 

Supreme Court.” Here, as explained above, Judge Doyle, the 

district court judge for the 11th Judicial District, was ordered 

by this court to serve as a district court judge for the 10th 

Judicial District for the limited purpose of adjudicating the 

case of Burns v. Burns, case No. CI03-248, in the district 

court for Adams County, which is in the 10th Judicial District.7

Although the order of appointment was not part of this record, 

this court has the right to examine its own records and take 

judicial notice of its own proceedings and judgments in the 

former action.8

Although Judge Doyle is still serving as a district judge in 

the 11th Judicial District due to his original appointment to the 

bench, his powers as district judge in each appointment were 

separate and distinct. Accordingly, Judge Doyle’s authority to 

act in the case of Burns v. Burns was the same and not greater 

than any other judge serving Adams County.

Kerry claims that Judge Doyle acted outside his authority as 

a district court judge for Adams County when he ordered her 

to appear in Dawson County and held the contempt hearing 

there. Section 24-303 sets forth where the terms of the district 

court are to be held. It provides:

(1) The judges of the district court shall, the last two 

months in each year, fix the time of holding terms of 

court in the counties composing their respective districts 

during the ensuing year, and cause the same to be published throughout the district, if the same can be done 

without expense. All jury terms of the district court shall 

be held at the county seat in the courthouse, or other 

place provided by the county board, but nothing herein 

7 See Neb. Rev. Stat. § 24-301.02 (Reissue 2016).

8 See State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).
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contained shall preclude the district court, or a judge 

thereof, from rendering a judgment or other final order 

or from directing the entry thereof in any cause, in any 

county other than where such cause is pending, where the 

trial or hearing upon which such judgment or other final 

order is rendered took place in the county in which such 

cause is pending. Terms of court may be held at the same 

time in different counties in the same judicial district, by 

the judge of the district court thereof, if there be more 

than one, and upon request of the judge or judges of such 

court, any term in such district may be held by a judge 

of the district court of any other district of the state. The 

Supreme Court may order the assignment of judges of the 

district court to other districts whenever it shall appear 

that their services are needed to relieve a congested calendar or to adjust judicial case loads, or on account of the 

disqualification, absence, disability, or death of a judge, 

or for other adequate cause. When necessary, a term of 

the district court sitting in any county may be continued into and held during the time fixed for holding such 

court in any other county within the district, or may be 

adjourned and held beyond such time.

(2) All nonevidentiary hearings, and any evidentiary 

hearings approved by the district court and by stipulation 

of all parties that have filed an appearance, may be heard 

by the court telephonically or by videoconferencing or 

similar equipment at any location within the judicial district as ordered by the court and in a manner that ensures 

the preservation of an accurate record. Such hearings 

shall not include trials before a jury. Hearings conducted 

in this manner shall be consistent with the public’s access 

to the courts.

As noted by the district court, § 24-303 was amended in 

2008.9 There were two changes. First, subsection (2) was 

added. That subsection authorizes the use of telephone, 

9 See 2008 Neb. Laws, L.B. 1014, § 1.
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videoconferencing, or similar equipment under certain circumstances. However, it specifically prohibits the use of such 

equipment in jury trials. The second change was that the term 

“jury” was added between the words “All” and “terms of the 

district court,” so that the sentence reads: “All jury terms of 

the district court shall be held at the county seat in the courthouse . . . .”10

Obviously, § 24-303(2) does not apply to this case. The 

contempt hearing at issue was not heard telephonically, by 

videoconferencing, or any other equipment.

Instead, the issue here concerns the addition of the word 

“jury” to § 24-303(1). Because of that addition, the district 

court concluded that § 24-303 no longer specifies where nonjury terms of the court are to be held. On the other hand, Kerry 

contends that by adding the word “jury,” the Legislature did 

not intend for the district judge to hold an evidentiary hearing 

at any location.

A careful reading of the remainder of § 24-303(1), which 

was not amended in 2008, reveals that all nonjury trials and 

hearings, except those conducted pursuant to § 24-303(2), must 

take place in the county in which the cause is pending (hereinafter referred to as “the pending county” for ease of discussion). Section 24-303 states, in relevant part:

[N]othing herein contained shall preclude the district 

court . . . from rendering a judgment . . . in any cause, in 

any county other than where such cause is pending, where 

the trial or hearing upon which such judgment or other 

final order is rendered took place in the county in which 

such cause is pending.

11

Based on this language, § 24-303(1) permits a district court 

to render a judgment outside the pending county. But this can 

be done only when the trial or evidentiary hearing upon which 

that judgment is based was held in the pending county, which, 

in this case, was Adams County.

10 See id.

11 § 24-303(1) (emphasis supplied).
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[5,6] In interpreting a statute, a court is guided by the presumption that the Legislature intended a sensible rather than 

absurd result in enacting the statute.12 If we accepted Michael’s 

interpretation of § 24-303(1)—that nonjury trials and hearings can be held anywhere, then the statute would allow a 

district judge handling a case in Omaha, Nebraska, to simply 

decide to hold an evidentiary hearing in Scottsbluff, Nebraska. 

This result would present due process concerns and is clearly 

not what the Legislature intended. Accordingly, we hold that 

absent statutory authority to the contrary or a written stipulation or oral stipulation on the record by all parties, trials and 

evidentiary hearings must be conducted in the county in which 

they are pending.

We note that this holding is supported by the legislative 

history of § 24-303. Although the Legislature’s intent in 

adding the term “jury” to § 24-303(1) is unclear from the 

language of the statute itself, legislators’ testimony before 

the Judiciary Committee is helpful. In discussing the addition of subsection (2), legislators were adamant that under 

the amended statute, jury trials would not be conducted by 

video conferencing or telephone.13 So it appears that out of an 

abundance of caution, in addition to stating in subsection (2) 

that “[s]uch hearings shall not include trials before a jury,” 

subsection (1) was amended to emphasize that jury terms 

must be conducted in the county court house or other place 

provided by the county board, rather than by videoconferencing or otherwise. There was no discussion of allowing district 

courts to hold nonjury trials or evidentiary hearings outside 

their county of origin.

Although neither party cited Neb. Rev. Stat. § 24-734 

(Reissue 2016), we mention it since at least prior to its 

2013 amendment, it provided authority for judges, including 

12 Concrete Indus. v. Nebraska Dept. of Rev., 277 Neb. 897, 766 N.W.2d 103 

(2009).

13 See Judiciary Committee Hearing, L.B. 1014, 100th Leg., 2d Sess. 31, 36 

(Feb. 6, 2008).
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district court judges, to perform certain acts at chambers anywhere within the state. But neither the preamendment nor the 

current version of § 24-734 would extend to matters involving 

testimony of witnesses by oral examination where the parties 

did not consent, such as the contempt hearing at issue here. 

Accordingly, this statute does not provide any assistance in 

this instance.

Applying § 24-303, we conclude that the district court did 

not act in conformity with the law when it ordered Kerry 

to appear in Dawson County and held the contempt hearing 

there, because Dawson County is outside the pending county 

of Adams County. We have said that a district court possesses 

jurisdiction only so long as it is holding court in conformity 

with the law; and when, without excuse, it disregards the 

law and attempts to hold court in any other place than that 

prescribed by statute, its acts become coram non judice.14

Accordingly, the January 6 and February 24, 2016, orders are 

void, and the district court abused its discretion in overruling 

Kerry’s motion to vacate the February 24 order.

CONCLUSION

For the reasons set forth above, the district court abused its 

discretion by overruling Kerry’s motion to vacate. We hereby 

reverse the order overruling Kerry’s motion to vacate and 

remand the cause with directions to grant the motion to vacate 

and set a new show cause hearing in Adams County.

Reversed and remanded with directions.

Heavican, C.J., not participating.

14 Hanson v. Hanson, 195 Neb. 836, 241 N.W.2d 131 (1976).