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Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

State of Nebraska on behalf of Marcelo K. 

and Rycki K., minor children, appellant, 

v. Ricky K. and Belinda D., appellees.

___ N.W.2d ___

Filed June 8, 2018. No. S-17-723.

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. Actions: Parties: Final Orders: Appeal and Error. One may bring an 

appeal pursuant to Neb. Rev. Stat. § 25-1315 (Reissue 2016) only when 

(1) multiple causes of action or multiple parties are present, (2) the court 

enters a “final order” within the meaning of Neb. Rev. Stat. § 25-1902 

(Reissue 2016) as to one or more but fewer than all of the causes of 

action or parties, and (3) the trial court expressly directs the entry of 

such final order and expressly determines that there is no just reason for 

delay of an immediate appeal.

4. Jurisdiction: Appeal and Error. An appellate court and the tribunal appealed from do not have jurisdiction over the same case at the 

same time.

Appeal from the District Court for Douglas County: Marlon

A. Polk, Judge. Appeal dismissed.

Theodore P. Arndt, Authorized Attorney for the State of 

Nebraska, for appellant.

Willow T. Head, of Law Offices of Willow T. Head, P.C., 

L.L.O., for appellee Ricky K.

Nebraska Supreme Court Online Library

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

07/20/2018 01:08 AM CDT
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and

Papik, JJ., and Daugherty, District Judge.

Cassel, J.

INTRODUCTION

The State of Nebraska initiated a proceeding to establish 

support for two children, based upon notarized acknowledgments of paternity. Ultimately, the pleadings framed multiple 

claims. After the district court entered an order disestablishing paternity of one child and taking no action on the other 

claims, the State purported to appeal. Because our statute1

governing multiple parties and multiple claims dictates that 

the order was not final or appealable, we dismiss the appeal 

for lack of jurisdiction.

BACKGROUND

The State brought an action against Ricky K., the acknowledged father of Marcelo K. and Rycki K., to establish child 

support for the two minor children. Belinda D., the mother of 

the minor children, was joined in the initial complaint, which 

styled her as a “Third Party Defendant.”

Ricky filed an amended answer and counterclaim and crossclaim (styled as a cross-complaint, despite seeking relief 

against both the State and Belinda) in which he alleged that 

he was not the biological father of Marcelo, that Belinda 

fraudulently coerced him into signing the minor child’s birth 

certificate, and that there was a material mistake of fact and 

fraud based on her representations. For these reasons, he 

sought a disestablishment of paternity as to Marcelo. As to 

Rycki, Ricky admitted he was Rycki’s biological father and 

sought joint legal and physical custody of the minor child. 

The counterclaim and cross-claim set forth two “causes of 

action” separately raising Ricky’s claims regarding Marcelo 

and Rycki, respectively.

1 Neb. Rev. Stat. § 25-1315 (Reissue 2016).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

The district court did not officially bifurcate the matter, but 

the issues pertaining to the disestablishment of paternity of 

Marcelo, including appointment of a guardian ad litem, were 

referred to the district court referee. After genetic testing was 

done, but before hearing on the disestablishment issue, the 

referee appointed a guardian ad litem.

After an evidentiary hearing on disestablishment, the referee found that the genetic testing excluded Ricky from being 

Marcelo’s biological father. However, because the referee 

determined that both Ricky and Belinda signed the acknowledgment of paternity knowing that Ricky was not Marcelo’s 

biological father, it concluded that the evidence was insufficient to satisfy the required showing of fraud, material mistake 

of fact, or duress. Consequently, the referee determined that 

Ricky had failed to meet his burden of proof and recommended denying disestablishment.

Ricky filed exceptions to the referee’s report and requested 

that the issue be considered by the district court. After a 

hearing, the district court sustained the exception to the referee’s recommendations and rejected its analysis and conclusion. The court made independent findings and concluded 

that the statutory requirements to set aside the acknowledgment of paternity as to Marcelo on the basis of fraud had 

been met.

The court entered this order on June 19, 2017. This order 

purported to set aside the prior legal determination establishing Ricky’s paternity of Marcelo and ordered that Ricky 

shall have no legal obligation of a parent or be recognized 

as a parent to Marcelo. The order was silent as to Rycki, the 

other child.

On July 17, 2017, the State purported to appeal from the 

June 19 order. In due course, the appeal was docketed and we 

moved it to our docket.2

2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

On September 6, 2017, the district court entered a decree 

of paternity addressing the remaining claims against Ricky 

concerning the minor child Rycki. The decree stated in part, 

“[Ricky] is found not to be the biological father of [Marcelo], 

and [Ricky] filed to disestablish paternity of [Marcelo]. . . . 

[A]fter a hearing, the Court found that fraud existed and disestablishment was in the best interest of [Marcelo], and granted 

disestablishment of paternity as it pertains to [Marcelo].” The 

record does not show any appeal or attempt to appeal from 

the September 6 decree.

ASSIGNMENTS OF ERROR

The State assigns that the district court abused its discretion when it determined that Ricky successfully challenged a 

notarized acknowledgment of paternity and met his burden to 

show fraud, duress, or a material mistake of fact in the signing 

of the acknowledgment.

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.3

ANALYSIS

[2] Ricky asserts that there is “an issue whether or not 

[this court] has jurisdiction based on whether the Order dated 

June 19, 2017 is the final order.”4 Ricky does not explain why 

this is so, but 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.5 Therefore, we 

must first determine whether we have appellate jurisdiction to 

review the district court’s order disestablishing Ricky’s paternity of Marcelo.

3 Deleon v. Reinke Mfg. Co., 287 Neb. 419, 843 N.W.2d 601 (2014).

4 Brief for appellee at 1.

5 See Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

Appellate courts have jurisdiction to review the judgments 

and final orders of the district court.6 A “judgment” is “the 

final determination of the rights of the parties in an action.”7

The pleadings set forth three claims: the State’s claim to establish child support as to both children, Ricky’s “cause of action” 

for disestablishment of Marcelo, and his “cause of action” 

for custody and visitation of Rycki. The June 19, 2017, order 

addressed only one of the three claims. Because the June 19 

order did not finally determine the rights of the parties in the 

paternity action, it was not a “judgment.”

[3] Another statute provides:

When more than one claim for relief is presented in an 

action, whether as a claim, counterclaim, cross-claim, or 

third-party claim, or when multiple parties are involved, 

the court may direct the entry of a final judgment as to 

one or more but fewer than all of the claims or parties 

only upon an express determination that there is no just 

reason for delay and upon an express direction for the 

entry of judgment.8

And, where this statute is implicated, we have held that one 

may bring an appeal pursuant to such section only when (1) 

multiple causes of action or multiple parties are present, (2) the 

court enters a “final order” within the meaning of Neb. Rev. 

Stat. § 25-1902 (Reissue 2016) as to one or more but fewer 

than all of the causes of action or parties, and (3) the trial court 

expressly directs the entry of such final order and expressly 

determines that there is no just reason for delay of an immediate appeal.9

[4] In the present case, there were multiple parties and 

multiple claims. However, the district court did not make an 

6 See Neb. Rev. Stat. § 25-1911 (Reissue 2016).

7 Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).

8 § 25-1315(1).

9 See Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689 

(2004).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

express direction for the entry of judgment. Presumably the 

district court did not intend the June 19, 2017, order to be 

final, because it retained jurisdiction over the case after the 

State appealed and entered the paternity decree on September 

6. It no doubt was aware of the longstanding principle that 

an appellate court and the tribunal appealed from do not have 

jurisdiction over the same case at the same time.10 Therefore, 

without the district court’s express direction for the entry 

of judgment, we have no jurisdiction to review the June 

19 order.

Nonetheless, the State responded at oral argument that the 

disestablishment order was a final order, because it was an 

order affecting a substantial right made during a special proceeding, or perhaps, the State argued, made when such order in 

effect determined the action and prevented a judgment.11

But the State does not explain how this would avoid the 

effect of § 25-1315. That section states, “In the absence of 

such determination and direction, any order or other form of 

decision, however designated, which adjudicates fewer than 

all the claims or the rights and liabilities of fewer than all the 

parties shall not terminate the action as to any of the claims 

or parties . . . .”12 Even if disestablishment was fully adjudicated by the June 19, 2017, order, it was asserted with other 

claims in the overall proceeding. Because the June 19 order 

did not adjudicate those other claims, it did not “terminate 

the action as to any of the claims or parties,” including the 

disestablishment claim.

For the sake of completeness, we note that in three limited instances, we have found § 25-1315 to not apply in the 

case of a special proceeding. But, we find the present case 

10 See, Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 469 

(1996); State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 226 

N.W. 318 (1929).

11 See § 25-1902.

12 § 25-1315(1).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

distinguishable. First, we have declined to apply § 25-1315 

to a postconviction order granting an evidentiary hearing on 

some issues and denying a hearing on others.13 Although we 

followed pre-§ 25-1315 precedent, we should have explained 

that a postconviction proceeding does not raise multiple claims 

within the meaning of § 25-1315, but may assert multiple 

grounds for a prisoner’s claim of a “denial or infringement 

of the rights of the prisoner as to render the judgment void or 

voidable under the Constitution of this state or the Constitution 

of the United States.”14 Here, in contrast, multiple claims 

were presented.

Second, we have declined to apply § 25-1315 to an order 

determining title in a partition proceeding where the parties have united the issues of title and the right to partition.15

Because an order in such a case affirmatively disposes of 

all title claims of all interested parties, it does not implicate 

§ 25-1315 which only applies where there is a final order “as 

to one or more but fewer than all of the claims or parties.”16

But, as we have explained, § 25-1315 is implicated in the 

present case, because it involved multiple parties and multiple 

claims and resolved fewer than all of the causes of action 

or parties.

Finally, we have declined to apply § 25-1315 in the context of an order denying intervention.17 In that circumstance, 

we have found that the plain language of § 25-1315 is not 

implicated, because although it references claims, counterclaims, cross-claims, and third-party claims, it does not mention complaints in intervention. Without plain language to the 

13 See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).

14 Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).

15 See Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 

N.W.2d 825 (2017).

16 § 25-1315(1) (emphasis supplied).

17 See Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017).
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STATE ON BEHALF OF MARCELO K. & RYCKI K. v. RICKY K.

Cite as 300 Neb. 179

contrary, we shall continue to apply preexisting final order 

jurisprudence to orders denying intervention. But, as here, 

where the language of § 25-1315 is implicated, we must apply 

the requirements of that section in order to find a final, appealable order.

CONCLUSION

Because the State appealed from an order deemed to be 

nonfinal under § 25-1315, we lack jurisdiction over the appeal. 

Accordingly, the appeal must be dismissed.

Appeal dismissed.