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VI. CONCLUSION

We find no merit to Sellers’ assigned errors. His assertions 

of ineffective assistance of trial and appellate counsel failed to 

establish any prejudice resulting from the alleged deficiencies 

of his counsel. And his claim of instructional error regarding 

the premeditated murder theory of first degree murder was not 

presented as a claim of ineffective assistance of counsel before 

the district court. We affirm the denial of postconviction relief 

without an evidentiary hearing.

Affirmed.

Wright, J., participating on briefs.

Abigail K. Despain, appellee, v. 

William E. Despain, appellant.

___ N.W.2d ___

Filed February 6, 2015. No. S-13-1133.

1. Judgments: Appeal and Error. An appellate court determines jurisdictional 

questions that do not involve a factual dispute as a matter of law.

2. New Trial: Appeal and Error. Regarding motions for new trial, an appellate court will uphold a trial court’s ruling on such a motion absent an abuse 

of discretion.

3. Divorce: Property Division: Appeal and Error. In actions for the dissolution 

of marriage, the division of property is a matter entrusted to the discretion of the 

trial judge, whose decision will be reviewed de novo on the record and will be 

affirmed in the absence of an abuse of discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

5. 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.

6. Jurisdiction: Time: Notice: Appeal and Error. To vest an appellate court with 

jurisdiction, a party must timely file a notice of appeal.

7. Statutes: Appeal and Error. Statutory language is to be given its plain and 

ordinary meaning, and interpretation will not be used to ascertain the meaning of 

statutory words which are plain, direct, and unambiguous.

8. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), 

the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital 
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property to the party who brought that property to the marriage. The second step 

is to value the marital assets and marital liabilities of the parties. The third step 

is to calculate and divide the net marital estate between the parties in accordance 

with the principles contained in § 42-365.

9. ____: ____. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of 

each case.

Appeal from the District Court for Saunders County: Mary

C. Gilbride, Judge. Affirmed as modified.

Mark A. Steele, of Steele Law Office, for appellant.

John H. Sohl for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Miller-Lerman, J.

NATURE OF CASE

Abigail K. Despain, the appellee, and William E. Despain, 

the appellant, were married in June 2012, and Abigail filed 

her complaint for the dissolution of marriage in the district 

court for Saunders County in August 2012. After trial, the district court filed its decree of dissolution of marriage including 

orders regarding property division. William appeals.

The issues in this appeal are whether William’s appeal was 

timely and whether the district court correctly calculated the 

division of property. We determine that although William’s 

motion for new trial was filed before the entry of judgment, 

it was filed after announcement of the decision. Under Neb. 

Rev. Stat. § 25-1144.01 (Reissue 2008), it is treated as filed 

after the entry of judgment. And, thus, the motion was effective and the appeal is timely. We further determine that the 

district court erred in that portion of the decree which divided 

the property, and we modify the decree as indicated below. We 

affirm as modified.

STATEMENT OF FACTS

Abigail and William were married on June 23, 2012. On 

August 27, Abigail filed her complaint for the dissolution 
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of the marriage. No children were born to the parties during 

the marriage.

Prior to their marriage, Abigail and William purchased a 

house together. The parties sold the house after Abigail had 

filed for divorce but prior to trial. The net sale proceeds were 

$12,453.34, and the parties divided the proceeds equally prior 

to trial, each receiving $6,226.67.

A trial was held on June 10, 2013. Abigail and William each 

testified and presented evidence at trial. As noted, at the time 

of trial, Abigail and William had already divided the proceeds 

from the sale of the house. According to the evidence, they had 

no joint indebtedness.

Abigail presented evidence that in purchasing the house 

with William, she had used her premarital funds to pay the 

earnest deposit of $1,000, the closing costs of $4,422, and the 

water deposit of $150. Abigail stated that in total, she had used 

$5,572 of her premarital funds to help purchase the house. 

Abigail also presented evidence that without her knowledge 

at the time, the parties had received a refund in the amount of 

$70 for the overpayment of closing costs, and that William had 

kept the $70.

William stated at trial that he had made repairs and improvements to the house using his premarital funds in the amount 

of $3,509.92. The district court did not credit this claim, and 

William does not assign error to this finding on appeal.

The record shows that after trial, on August 14, 2013, the 

district court sent the parties an unsigned document captioned 

“Journal Entry” (unsigned journal entry) containing the substance of its decision and ordered counsel for Abigail to prepare a dissolution decree. This unsigned journal entry specifically states that unsigned copies were sent to counsel for each 

party on August 14.

In the unsigned journal entry, regarding “property division,” 

the court found that Abigail is entitled to the return of premarital funds used to purchase the house, in the amount of $5,422; 

the return of the water deposit, in the amount of $150, which 

was paid from her premarital funds; and one-half of the overpayment of closing costs, in the amount of $35. The unsigned 
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journal entry states that William shall make an equalization 

payment which flows from those findings. The unsigned journal entry states:

[Abigail’s attorney] shall prepare the decree herein. It 

shall be reviewed by [William’s attorney] and presented 

to the court for signature not later than September 16, 

2013. The decree shall append the appropriate calculation 

of the division of the estate in accordance with paragraph 

2. In order to avoid confusion as to appeal time, [t]his 

order shall be forwarded to counsel both unsigned and 

unfiled. A signed copy will be filed contemporaneously 

with the entry of the decree.

Following the distribution of the unsigned journal entry on 

August 14, 2013, but before the decree was filed on October 

21, William filed a motion for new trial on October 16 in which 

he claimed that the district court’s decision regarding division 

of property failed to recognize the division of proceeds from 

the sale of the home which had occurred and that an equalization payment based on this failure is erroneous.

On October 21, 2013, the district court filed its “Decree 

of Dissolution of Marriage,” which included orders reflecting 

its provisions. In the dissolution decree, the court stated that 

Abigail and William’s marriage was irretrievably broken and 

should be dissolved. Abigail’s birth name was restored to her. 

Regarding the division of property, the decree stated:

[Abigail] should be entitled to the return of premarital 

funds used to purchase the marital home in the amount 

of $5,422.00. [Abigail] should be entitled to the return 

of the water deposit in the amount of $150.00 which was 

paid from premarital funds, less any amounts deducted 

for water usage during the marriage. [Abigail] should be 

entitled to one half of the overpayment of closing costs in 

the amount of $35.00.

In the decree, the court ordered William to pay Abigail $5,607 

in order to equalize the division of property. The court did 

not award alimony to either party and stated that each party 

shall be responsible for his or her own attorney fees and 

court costs.
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The court signed a copy (signed journal entry) of the 

unsigned journal entry first distributed on August 14, 2013, on 

October 18 and filed it on October 21 along with the decree.

On November 27, 2013, the court filed its order overruling 

William’s motion for new trial. The order states in its entirety: 

“NOW ON this 27th day of November, 2013, this matter comes 

before the Court on [William’s] Motion for New Trial. The 

Court finds that the Decree has been signed. The Motion for 

New Trial is overruled.”

On December 26, 2013, William filed his notice of appeal 

from the November 27 order overruling his motion for 

new trial.

ASSIGNMENT OF ERROR

William claims, restated, that the district court erred when it 

overruled his motion for new trial in which he claimed that the 

court erred in its method of calculating the equalization payment that William owes Abigail.

STANDARDS OF REVIEW

[1] An appellate court determines jurisdictional questions 

that do not involve a factual dispute as a matter of law. Carney 

v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).

[2] Regarding motions for new trial, we will uphold a trial 

court’s ruling on such a motion absent an abuse of discretion. First Express Servs. Group v. Easter, 286 Neb. 912, 840 

N.W.2d 465 (2013).

[3,4] In actions for the dissolution of marriage, the division 

of property is a matter entrusted to the discretion of the trial 

judge, whose decision will be reviewed de novo on the record 

and will be affirmed in the absence of an abuse of discretion. 

Plog v. Plog, 20 Neb. App. 383, 824 N.W.2d 749 (2012). A 

judicial abuse of discretion exists when the reasons or rulings 

of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition. Breci v. St. Paul Mercury Ins. Co., 

288 Neb. 626, 849 N.W.2d 523 (2014).
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ANALYSIS

Abigail contends that William’s motion for new trial, filed 

before entry of the decree, was a nullity and that as a result, 

the notice of appeal was untimely and the appeal should be 

dismissed. William claims that the district court erred in overruling his motion for new trial because the district court’s 

method of calculating the equalization payment was incorrect. We conclude that William’s motion for new trial was an 

effective filing pursuant to § 25-1144.01 and that the appeal 

is timely. We further determine that the district court erred in 

its method of calculating the equalization payment owed by 

William to Abigail.

William’s Motion for New Trial.

[5,6] 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. See Huskey v. Huskey, 

289 Neb. 439, 855 N.W.2d 377 (2014). To vest an appellate 

court with jurisdiction, a party must timely file a notice of 

appeal. Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 

(2007). A party must file a notice of appeal within 30 days of 

the judgment, decree, or final order from which the party is 

appealing. See Neb. Rev. Stat. § 25-1912(1) (Reissue 2008). A 

motion for a new trial, however, terminates the time in which 

a notice of appeal must be filed. See § 25-1912(3). If the court 

denies the motion for new trial, and assuming that the motion 

for new trial is an effective filing and not a nullity, the party 

has 30 days from the entry of the order denying the motion to 

file a notice of appeal. Meister v. Meister, supra.

Section 25-1912, upon which the foregoing discussion is 

based provides:

(1) The proceedings to obtain a reversal, vacation, or 

modification of judgments and decrees rendered or final 

orders made by the district court, including judgments 

and sentences upon convictions for felonies and misdemeanors, shall be by filing in the office of the clerk of 

the district court in which such judgment, decree, or final 
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order was rendered, within thirty days after the entry of 

such judgment, decree, or final order, a notice of intention to prosecute such appeal signed by the appellant or 

appellants or his, her, or their attorney of record and, 

except as otherwise provided in sections 25-2301 to 

25-2310, 29-2306, and 48-641, by depositing with the 

clerk of the district court the docket fee required by section 33-103.

. . . .

(3) The running of the time for filing a notice of 

appeal shall be terminated as to all parties (a) by a timely 

motion for a new trial under section 25-1144.01, (b) by 

a timely motion to alter or amend a judgment under section 25-1329, or (c) by a timely motion to set aside the 

verdict or judgment under section 25-1315.02, and the 

full time for appeal fixed in subsection (1) of this section 

commences to run from the entry of the order ruling upon 

the motion filed pursuant to subdivision (a), (b), or (c) of 

this subsection.

Section 25-1144.01, mentioned in § 25-1912, provides:

A motion for a new trial shall be filed no later than ten 

days after the entry of the judgment. A motion for a new 

trial filed after the announcement of a verdict or decision 

but before the entry of judgment shall be treated as filed 

after the entry of judgment and on the day thereof.

William filed his motion for new trial before the court 

filed the dissolution decree, and the decree is the judgment 

in this dissolution case. See Rice v. Webb, 287 Neb. 712, 844 

N.W.2d 290 (2014). Abigail contends that William’s motion 

for new trial filed before entry of the judgment was a nullity and that therefore, the running time for filing a notice of 

appeal from the decree did not terminate awaiting disposition 

of a new trial motion. According to Abigail, the notice of 

appeal was filed more than 30 days after entry of judgment 

and was untimely. Applying § 25-1144.01, we conclude the 

appeal was timely, and we reject Abigail’s contention that we 

lack jurisdiction.
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The relevant dates for our analysis are as follows:

• June 10, 2013: trial conducted.

• August 14, 2013: unsigned journal entry sent to parties’

attorneys.

• October 16, 2013: William’s motion for new trial filed.

• October 21, 2013: dissolution decree filed.

• October 21, 2013: signed journal entry filed.

• October 21, 2013: William’s motion for new trial treated as

filed under § 25-1144.01.

• November 27, 2013: order overruling William’s motion for

new trial filed.

• December 26, 2013: William’s notice of appeal filed.

[7] The plain terms of § 25-1144.01 are dispositive of the 

jurisdictional issue. Section 25-1144.01 as quoted above had 

been amended in 2004 by 2004 Neb. Laws, L.B. 1207, to add 

the second sentence. As noted above, the second sentence of 

§ 25-1144.01 provides: “A motion for a new trial filed after the 

announcement of a verdict or decision but before the entry of 

judgment shall be treated as filed after the entry of judgment 

and on the day thereof.” Statutory language is to be given its 

plain and ordinary meaning, and interpretation will not be used 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. Weber v. North Loup River Pub. 

Power, 288 Neb. 959, 854 N.W.2d 263 (2014).

The 2004 amendment to § 25-1144.01 was apparently 

adopted in reaction to this court’s decision in Macke v. Pierce, 

263 Neb. 868, 643 N.W.2d 673 (2002). In Macke, we determined that under the version of § 25-1144.01 in effect prior 

to the 2004 amendment, a motion for new trial was effective 

and timely only if it was filed within 10 days after the entry 

of a judgment. Thus, under Macke, a motion for new trial filed 

before the entry of a judgment was a nullity, as was the trial 

court’s ruling on such a motion for new trial. Under Macke, 

such a motion for new trial did not terminate the time for taking an appeal. However, under the 2004 amendment, a motion 

for new trial filed after the announcement of the decision but 

before the entry of the judgment is no longer a nullity.
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As we have noted, the court distributed the unsigned journal 

entry on August 14, 2013, containing its substantive decision, 

and it further provided:

[Abigail’s attorney] shall prepare the decree herein. It 

shall be reviewed by [William’s attorney] and presented 

to the court for signature not later than September 16, 

2013. The decree shall append the appropriate calculation 

of the division of the estate in accordance with paragraph 

2. In order to avoid confusion as to appeal time, [t]his 

order shall be forwarded to counsel both unsigned and 

unfiled. A signed copy will be filed contemporaneously 

with the entry of the decree.

(Emphasis supplied.)

We view the copies of the August 14, 2013, unsigned journal 

entry that were sent to the parties as the court’s “announcement 

of a . . . decision” as that expression is used in § 25-1144.01. 

Hence, William’s motion for new trial filed after the announcement of the decision “but before the entry of judgment shall 

be treated as filed after the entry of judgment and on the day 

thereof.” See § 25-1144.01. William’s motion for new trial was 

effective. In sum, William’s motion for new trial was treated 

as having been filed after judgment on October 21, the same 

date the decree was filed, and was properly before the district 

court. Time to appeal from the decree was terminated until the 

district court ruled on the motion for new trial. The notice of 

appeal filed within 30 days after the ruling on the motion for 

new trial was timely.

For completeness, we note that William suggests on appeal 

that the district court failed to properly consider his motion 

for new trial, perhaps because the court’s order of denial was 

brief. The district court’s November 27, 2013, order overruling the motion for new trial stated in its entirety: “NOW ON 

this 27th day of November, 2013, this matter comes before the 

Court on [William’s] Motion for New Trial. The Court finds 

that the Decree has been signed. The Motion for New Trial 

is overruled.” As we view the order, the court considered the 

motion for new trial and found it to be without merit. The 

language in the order signaled the court’s recognition that the 

motion for new trial had been filed before entry of the decree 
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but, by implicit application of § 25-1144.01, that the decree 

had been signed and that the court could therefore properly 

proceed to the merits of the motion for new trial. We find no 

error in this procedure. 

Equalization Payment Ordered 

by the District Court.

William claims that the district court erred in the method 

it employed to calculate the equalization payment owed by 

William to Abigail and that the court erred when it overruled 

his motion for new trial on this basis. We agree with William.

Regarding motions for new trial, we will uphold a trial 

court’s ruling on such a motion absent an abuse of discretion. First Express Servs. Group v. Easter, 286 Neb. 912, 

840 N.W.2d 465 (2013). As explained in more detail below, 

we determine that the district court erred in the method of 

calculating the equalization payment, and accordingly, we 

determine that the district court abused its discretion when 

it overruled William’s motion for new trial challenging the 

equalization calculation. In particular, in this case, the court 

ordered William to pay Abigail an equalization payment of 

$5,607, whereas we determine it should have ordered him to 

pay $2,856.

[8,9] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the 

equitable division of property is a three-step process. The 

first step is to classify the parties’ property as marital or 

nonmarital, setting aside the nonmarital property to the party 

who brought that property to the marriage. The second step is 

to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital 

estate between the parties in accordance with the principles 

contained in § 42-365. See, Sitz v. Sitz, 275 Neb. 832, 749 

N.W.2d 470 (2008); Plog v. Plog, 20 Neb. App. 383, 824 

N.W.2d 749 (2012). The ultimate test in determining the 

appropriateness of the division of property is fairness and 

reasonableness as determined by the facts of each case. Plog 

v. Plog, supra.

In calculating the amount of the equalization payment, the 

district court first determined the parties’ total property and 
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then divided the total property equally between the two parties. In an attempt to equalize the distribution, the court then 

ordered William to pay Abigail $5,607, which represented 

Abigail’s premarital funds used to purchase the house, Abigail’s 

premarital funds used to pay the water deposit, and half of the 

overpayment of closing costs returned by the bank. Because 

Abigail’s evidence showed that the closing costs were paid by 

Abigail’s premarital funds, the district court erred and should 

have ordered that the entire $70 refund be set off to Abigail as 

premarital property, and our calculations in the remainder of 

this opinion treat the $70 accordingly. See Gress v. Gress, 271 

Neb. 122, 710 N.W.2d 318 (2006) (stating that burden of proof 

to show property is premarital remains with person making 

claim in dissolution proceeding).

The district court erred in two fundamental ways in calculating the equalization payment. First, the district court 

failed to account for the fact that the parties had already 

divided and distributed the proceeds from the sale of the 

house during the pendency of the dissolution proceedings. 

The sale proceeds amounted to $12,453.34, and after dividing 

the proceeds equally, Abigail and William had each received 

$6,226.67 before trial. The district court erred by not recognizing this division and distribution when it calculated the equalization payment.

Second, the court failed to properly follow the initial step 

of the three-step process set forth above. After determining 

the parties’ total property, which amounted to $12,523.34, 

the court should have identified and separated the marital 

assets and nonmarital assets. Then, the court should have 

subtracted and set aside to Abigail her premarital funds used 

for the downpayment on the house, the closing costs, and the 

water deposit, and the $70 refund, all of which totaled $5,642, 

from the total property of $12,523.34, leaving $6,881.34 as 

the marital assets to be divided between the parties, with 

each receiving $3,440.67. By failing to properly follow this 

process, and failing to recognize the prior distribution of the 

house sale proceeds, the court erred in calculating the amount 

owed by William to Abigail in order to equalize division of 

the estate.
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After equalization, Abigail should have received $9,082.67 

(consisting of premarital property equaling $5,642 plus onehalf of the marital estate equaling $3,440.67), and William, 

with no premarital property, should have received one-half of 

the marital estate (equaling $3,440.67). Because the house sale 

proceeds were equally split before trial, Abigail and William 

had each already received $6,226.67 attributable to the sale of 

the house. And because William had already received the $70 

closing cost refund, his receipts before trial totaled $6,296.67. 

To award Abigail the $9,082.62 she was due, and to award 

William the $3,440.67 to which he was entitled, the court 

should have ordered William to pay Abigail $2,856 instead of 

$5,607 as ordered.

CONCLUSION

We conclude that under § 25-1144.01, William’s motion for 

new trial filed after the district court’s announcement of the 

decision but before its entry of the decree was an effective filing and that the appeal is timely. With respect to property division, we determine that the district court erred in the method 

it employed when it calculated the equalization payment owed 

by William to Abigail. We therefore affirm the district court’s 

dissolution decree but modify the portion of the decree that 

ordered William to pay Abigail $5,607 and instead order that 

William pay Abigail $2,856.

Affirmed as modified.

Cassel, J., concurring.

INTRODUCTION

I join the court’s opinion, but write separately to emphasize three points. First, the word “announcement,” as it is 

used in the current statutes governing appeals and motions 

for new trial, is not synonymous with the word “pronouncement” as it was used in the former statute defining rendition 

of judgment. Second, a premature motion for new trial is still 

possible despite the enactment of the savings clause. Finally, 

because “announcement” can take many forms, counsel relying upon the statutory savings clause for a motion for new 

trial should be sure that the “announcement” appears in 

the record.
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“ANNOUNCEMENT” VERSUS 

“PRONOUNCEMENT”

Before 1999, “rendition” of a judgment was defined as a 

court’s or judge’s two-part act of “pronouncing judgment, 

accompanied by the making of a notation on the trial docket.”1

And although “entry” of judgment required the court clerk 

to spread the relief upon the court’s journal,2 the time for 

appeal began to run with “rendition,”3 and not from “entry” 

unless there was no “rendition.” And the first part of “rendition”—the “pronouncement”—was well settled in our case law. 

Pronouncement occurred when the court or judge made an oral 

pronouncement of judgment in open court.4

But the 1999 Legislature refined “rendition” as the court’s 

or judge’s act of “making and signing a written notation.”5

Thus, an oral pronouncement in open court was no longer part 

of the definition of “rendition” of judgment. At the same time, 

the Legislature amended the appeals statute so that the time for 

appeal would run from the “entry” of judgment rather than its 

“rendition.”6 And it redefined “entry” as the court clerk’s act of 

“plac[ing] the file stamp and date” upon the judgment.7

The 1999 Legislature also introduced the first savings clause 

into our general appeal statute.8 This savings clause treated a 

notice of appeal filed after the “announcement” of a decision, 

but before the entry of the judgment, as having been filed after 

the entry of judgment and on the date of entry.9

Although the 1999 Legislature failed to add an equivalent savings clause regarding motions for new trial, the 2004 

1 See Neb. Rev. Stat. § 25-1301(2) (Reissue 1989) (emphasis supplied).

2 See § 25-1301(3).

3 See Neb. Rev. Stat. § 25-1912(1) (Reissue 1989).

4 See, e.g., Tri-County Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526 

N.W.2d 668 (1995).

5 § 25-1301(2) (Reissue 2008). See 1999 Neb. Laws, L.B. 43, § 3.

6 See 1999 Neb. Laws, L.B. 43, § 8.

7 § 25-1301(3). See 1999 Neb. Laws, L.B. 43, § 3.

8 See 1999 Neb. Laws, L.B. 43, § 8.

9 See Neb. Rev. Stat. § 25-1912(2) (Supp. 1999) (emphasis supplied).
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Legislature remedied that omission.10 Thereafter, and currently, 

the savings clause states that “[a] motion for a new trial filed 

after the announcement of a verdict or decision but before the 

entry of judgment shall be treated as filed after the entry of 

judgment and on the day thereof.”11

The change from “pronouncement” to “announcement” was 

not accidental or meaningless. The Nebraska Court of Appeals 

has recognized that “announcement” can come orally from 

the bench, from trial docket notes, from file-stamped but 

unsigned journal entries, or from signed journal entries which 

are not file stamped.12 And the Court of Appeals acknowledged that its list was not all inclusive.13 At oral argument in 

the case before us, counsel relied upon decisions discussing 

“pronouncement” under the former statutes to argue that an 

unsigned journal entry setting forth the general terms of the 

court’s decision, although served on the parties’ attorneys, did 

not qualify as an “announcement.” This court’s decision today 

rejects that argument.

Thus, my first point is that the old term “pronouncement” 

and the new term “announcement” are not synonymous. 

“Pronouncement” occurred when the court or judge orally pronounced judgment in open court. “Announcement” can occur 

in or out of court. It includes pronouncements, but also contemplates other means of communication.

PREMATURE MOTION 

FOR NEW TRIAL

As the court’s opinion correctly observes, our decision in 

Macke v. Pierce14 appears to have prompted the Legislature 

to provide a savings clause for some motions for new trial 

filed before the entry of judgment. The Legislature evidently 

recognized that a potential trap existed where a decision was 

clearly made but for some reason the entry of a judgment was 

10 See 2004 Neb. Laws, L.B. 1207, § 3.

11 Neb. Rev. Stat. § 25-1144.01 (Reissue 2008).

12 See State v. Brown, 12 Neb. App. 940, 687 N.W.2d 203 (2004).

13 Id.

14 Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (2002).
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delayed. The Legislature had already enacted a savings clause 

for notices of appeal filed after announcement of a decision but 

before the entry of judgment. And it clearly wanted to provide 

a similar savings clause for a motion for new trial.

But a premature motion for new trial is still possible. If the 

motion is filed before the “announcement” of the verdict or 

decision, the savings clause does not apply.15 And our decision in Macke v. Pierce would still dictate that such a motion 

is a nullity.16

CAUTION TO PRACTITIONERS

As I have explained, “announcement” of a decision can 

occur in many ways. Some of these ways may not be apparent 

on the trial court’s record.

Appellate courts cannot ignore a question of whether the 

savings clause applies. 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.17

Thus, where a motion for new trial is filed before the “entry” 

of judgment, an appellate court will examine the record to 

determine whether an “announcement” of a decision occurred 

before the filing of the motion.

If the motion was filed before any announcement, the motion 

will be deemed void. Thus, in many instances, the time for taking an appeal will not be tolled by the motion for new trial. 

And this unfortunate circumstance may not be discovered until 

it is too late. It is well settled that an untimely motion for new 

trial is ineffectual, does not toll the time for perfection of an 

appeal, and does not extend or suspend the time limit for filing a notice of appeal.18 Consequently, a premature motion for 

new trial can easily result in the irrevocable loss of the right 

to appeal.

It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate 

15 See § 25-1144.01.

16 See Macke v. Pierce, supra note 14.

17 Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

18 Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
Nebraska Advance Sheets

HUGHES v. SCHOOL DIST. OF AURORA 47

Cite as 290 Neb. 47

court will affirm the lower court’s decision regarding those 

errors.19 Because the appellant has the duty to present a record 

supporting the assigned errors, he or she necessarily bears the 

burden of presenting a record demonstrating that the appellate 

court has jurisdiction.

If the party appealing from a judgment after the denial of 

a motion for new trial is relying upon the savings clause of 

§ 25-1144.01, the party must ensure that the “announcement” 

of decision appears in the record. If the trial court’s record 

does not include it, the party seeking to appeal must make sure 

that it properly becomes part of the record. And the party must 

then make sure that it is included in the record presented to the 

appellate court.

CONCLUSION

The savings clause of § 25-1144.01 is a useful tool to avoid 

losing the right to appeal. But it has no effect when a motion 

is filed before announcement or where the record does not 

show an announcement before entry of judgment. I remind the 

practicing bar that failing to ensure that such an announcement is included in the record might result in an irrevocable 

loss of an appeal, which in turn is likely to lead to unpleasant consequences.

19 Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013).

John Hughes, appellant, v. School District

of Aurora, Nebraska, a Nebraska

political subdivision, appellee.

___ N.W.2d ___

Filed February 6, 2015. No. S-13-1144.

1. Summary Judgment: Appeal and Error. An appellate court affirms a lower 

court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to 

judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views the 

evidence in the light most favorable to the party against whom the judgment was