- 64 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

Jayson H. Tilson, appellant, v. Erica M

appellee, and Kimberly L. Hi

Intervenor-appell

___ N.W.2d ___

Filed February 16, 2018. No. S-17-468.

1. Jurisdiction: Appeal and Error. When a jurisdictional question does 

not involve a factual dispute, its determination is a matter of law, which 

requires an appellate court to reach a conclusion independent of the 

decision made by the lower court.

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: Final Orders: Time: Appeal and Error. To vest an 

appellate court with jurisdiction, the notice of appeal must be filed 

within 30 days of the entry of the final order.

4. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), the three types of final orders which may be reviewed 

on appeal are (1) an order affecting a substantial right in an action, when 

such order in effect determines the action and prevents a judgment; 

(2) an order affecting a substantial right made in a special proceeding; and (3) an order made upon a summary application in an action 

after judgment.

5. Actions: Modification of Decree. Proceedings regarding modification 

of a marital dissolution are special proceedings.

6. Actions: Divorce. An application to modify the terms of a divorce 

decree is not the commencement of an action. It constitutes a continuation of the suit for dissolution of marriage.

7. Final Orders: Appeal and Error. An order affects a substantial right 

when the right would be significantly undermined or irrevocably lost by 

postponing appellate review.

8. Divorce: Jurisdiction: Final Orders: Appeal and Error. Generally, 

when multiple issues are presented to the district court for simultaneous disposition in the same separate yet connected proceeding within 

Nebraska Supreme Court Online Library

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

03/02/2018 09:14 AM CST
- 65 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

the court’s continuing jurisdiction over a dissolution decree, the court’s 

determination of fewer than all the issues presented is not a final order 

for the purpose of an appeal.

9. Final Orders. An order merely preserving the status quo pending a 

further order is not final.

Appeal from the District Court for Lancaster County: Rober

R. Otte, Judge. Appeal dismisse

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

David P. Kyker for appellee Kimberly L. Hill.

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

Funke, JJ

Miller-Lerman,

I. NATURE OF CASE

In this appeal, Jayson H. Tilson addresses the March 31, 

2017, denial of that portion of his “complaint” and associated motion asking the district court for Lancaster County 

to declare void a dissolution decree that it had issued more 

than a year before. He argues that the decree is void because 

prior to the entry of the decree, he had filed a motion to dismiss the petition for dissolution, which he asserts was selfexecuting under Neb. Rev. Stat. § 25-602 (Reissue 2016). But 

Jayson’s notice of appeal is from an order issued on April 4, 

denying his requests for various temporary orders and retaining for decision Jayson’s application to modify the custody 

provisions of the decree. We conclude that the April 4 order 

was not final. Therefore, we dismiss this appeal for lack 

of jurisdiction.

II. BACKGROUND

1. Dissoluti

In September 2014, Jayson filed a complaint for dissolution 

of his marriage to Erica M. Tilson. The record does not reflect 

that Erica filed an answer, but she made a general appearance before the court. Following a hearing, the court issued 
- 66 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

a temporary order awarding custody of the parties’ minor 

children to Erica’s mother, Kimberly L. Hill (Kimberly). The 

court granted Jayson and Erica supervised parenting time and 

ordered them both to pay Kimberly temporary child support.

The court allowed Kimberly to intervene and appointed a 

guardian ad litem for the minor children. Kimberly and her 

husband filed a complaint, asking for grandparent visitation 

and custody of the children. There is no certificate of service 

attached to the complaint.

Subsequently, on November 16, 2015, at 9 p.m., Jayson 

filed a motion to dismiss his complaint for dissolution. The 

next morning, on November 17, Kimberly filed a praecipe 

asking the court to issue summons and deliver to Jayson a 

copy of the complaint for grandparent visitation, at the hearing 

scheduled at 10 a.m., on November 17. The record contains 

two “Process Service Returns” from the sheriff’s office of a 

“Copy of COMPLAINT,” with the service and return charges 

paid by Kimberly’s counsel. The documents reflect that Jayson 

and Erica were personally served copies of the complaint on 

November 17.

The hearing was held as scheduled on November 17, 2015, 

with Jayson in attendance. Referring to the November 17 hearing, the court’s order states “[u]pon motion of [Jayson’s] attorney . . . the Plaintiff’s motion to dismiss is withdrawn.”

The court issued a consent decree of dissolution on December 

8, 2015. The decree ordered the continuation of the children’s 

legal and physical custody with Kimberly, with set parenting 

time for Jayson and Erica. Jayson was ordered to pay $200 

per month “toward work-related childcare expenses,” in the 

event they were not subsidized. Erica was ordered to pay to 

Kimberly $100 in monthly child support.

2. Contemp

Approximately 10 months later, on October 18, 2016, the 

court found Jayson in contempt for failing to comply with 

his obligation under the decree to contribute to the children’s 

childcare expenses.
- 67 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

3. Declaratory Reli

Modification, and 

(a) The “Complaint”

On February 24, 2017, Jayson filed a “Complaint to Vacate 

or Modify, for Declaratory Judgment, and/or for Writ of Habeas 

Corpus.” The “complaint” was filed under the same case number as the dissolution decree, and in the same court.

Jayson asserted that the dissolution decree was void by 

virtue of his November 16, 2015, motion to dismiss. Based 

on this assertion, he sought an order of the court declaring 

the dissolution decree and “all orders flowing therefrom” null 

and void.

Under the rubric of habeas corpus relief, Jayson alleged that 

the award of temporary custody of the children with Kimberly 

was unlawful, because it violated the parental preference principle. He asked for a writ of habeas corpus placing the custody 

of the children with him.

Alternatively to an order declaring the dissolution void, 

Jayson sought an order modifying the decree so as to place 

the children in his custody. Jayson alleged a change in circumstances. In particular, he alleged that Kimberly was neglecting the children and that Erica was in jail awaiting criminal charges.

Kimberly filed an answer generally denying the allegations 

and asking that the matter be dismissed. No ruling on the 

motion to dismiss is found in the record.

(b) Motion for Declaratory Relief 

and Temporary Orders

On March 10, 2017, Jayson filed a “Motion for Declaratory 

Relief or Temporary Suspension of Implementation and 

Enforcement of Decree, Temporary Custody, Temporary Child 

Support, Temporary Restraining Orders.” The district court 

referred to this motion as “Filing 14.”

Specifically, Jayson moved for a declaration that the decree 

of dissolution and all orders flowing therefrom are void and 

of no effect. In support of this relief, Jayson repeated his 
- 68 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

assertion that his motion to dismiss the complaint for dissolution was self-executing and therefore deprived the court of 

jurisdiction to issue the dissolution decree.

“[I]n lieu” of such declaratory relief, Jayson moved for 

orders (1) temporarily suspending enforcement of the decree as 

it relates to the care, custody, control, and support of the minor 

children; (2) temporarily awarding Jayson exclusive custody 

of the children; (3) temporarily prohibiting Erica from having 

parenting time; (4) temporarily prohibiting Erica from having 

access to medical and education records; (5) temporarily prohibiting Kimberly from having visitation with the children; (6) 

temporarily prohibiting Kimberly from having access to the 

children’s medical or education records; and (7) temporarily 

requiring Erica to pay Jayson child support and share in medical and childcare expenses.

In support of this “temporary” relief, Jayson alleged that the 

parental preference principle prohibited the award of custody 

of the children to Kimberly when he had not been found to be 

unfit. He further alleged that Erica was unfit to have custody 

and that it was contrary to the children’s best interests for 

Kimberly to have visitation.

(c) March 31, 2017, Order

On March 31, 2017, the court overruled that part of Jayson’s 

“Filing 14” requesting that the court declare the dissolution 

decree void. The court’s order, signed and file stamped on 

March 31, incorporates its docket entry, stating that “[t]he part 

of the motion requesting declaratory relief (vacating the Decree 

of Dec[.] 8, 2015) is overruled.” Also on March 31, the court 

denied Jayson’s requests for full temporary custody and suspension of child support while the case was pending.

The “custody case” was set for a trial to be held on August 

21, 2017.

(d) April 4, 2017, Order

On April 4, 2017, the court issued another order. The 

April 4 order states that “[t]his proceeding came before the 
- 69 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

court for consideration of pending matters.” (Emphasis supplied.) And “[u]pon consideration of the issue(s) presented, 

the court made the docket entry . . .” as follows: “At Filing 

14 is [Jayson’s] Motion for Declaratory Relief Or Temporary 

Suspension Of Implementation And Enforcement Of Decree, 

Temporary Custody, Temporary Child Support, Temporary 

Restraining Orders. The motion was argued and submitted on 

3/31/17. The Motion is overruled. See Order re Docket Entry 

in file.”

(e) Notice of Appeal

On May 3, 2017, Jayson filed a notice of appeal, stating that 

he was appealing the April 4 order. That is the appeal currently 

before us.

4. Orders Subsequent

Notice of App

The proceedings continued after the May 3, 2017, notice 

of appeal was filed. Kimberly filed an amended answer to 

Jayson’s “complaint,” setting forth a cross-complaint for a 

reduction in Jayson’s parenting time, for his visitation to be 

supervised, and for an award of child support. On May 30, 

the court issued an order denying a motion by Jayson to continue trial and to prohibit Kimberly from serving subpoenas 

upon the Nebraska Department of Health and Human Services 

and “Educare of Lincoln.” The court also granted Kimberly’s 

request for a protective order.

After a hearing, on June 20, 2017, the court sustained 

Kimberly’s motion to modify parenting time to a “5/2 schedule” “for this temporary order.” But the court explained that 

to “encourage civil collaboration,” Kimberly’s attorney was 

to confer with Jayson’s attorney and the guardian ad litem. 

“After doing so, [Kimberly’s attorney] shall submit a proposed 

order as to temporary custody.” The court overruled motions 

by Jayson for sanctions and attorney fees and to reconsider the 

court’s appointment of the guardian ad litem.
- 70 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

On June 28, 2017, the court issued an order sustaining 

Kimberly’s motion for modification of parenting time. That is 

the last order in the record.

III. ASSIGNMENT OF ERROR

Jayson claims that the district court erred when it denied 

his “February 24, 2017, motion” to declare the dissolution 

decree void.

IV. STANDARD OF REVIEW

[1] When a jurisdictional question does not involve a 

factual dispute, its determination is a matter of law, which 

requires an appellate court to reach a conclusion independent 

of the decision made by the lower court.1

V. ANALYSIS

[2,3] Before reaching the legal issues presented for review, 

it is our duty to determine whether we have jurisdiction over 

this appeal.2 In this case, it is necessary for us to determine 

whether the April 4, 2017, order, from which Jayson appeals, 

is final.3

 To vest an appellate court with jurisdiction, the notice 

of appeal must be filed within 30 days of the entry of the 

final order.4 In contrast, if an order is interlocutory, immediate 

appeal from the order is disallowed so that courts may avoid 

piecemeal review, chaos in trial procedure, and a succession of 

appeals granted in the same case to secure advisory opinions to 

govern further actions of the trial court.5

[4] The three types of final orders which may be reviewed 

on appeal are (1) an order affecting a substantial right in an 

action, when such order in effect determines the action and 

1 Anderson v. Finkle, 296 Neb. 797, 896 N.W.2d 606 (2017).

2 See, e.g., Rafert v. Meyer, 298 Neb. 461, 905 N.W.2d 30 (2017).

3 See Neb. Rev. Stat. §§ 25-1911 and 25-1912 (Reissue 2016).

4 State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997). See, also, Neb. 

Rev. Stat. § 25-1931 (Reissue 2016).

5 State v. Jacques, supra note 4.
- 71 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

prevents a judgment; (2) an order affecting a substantial right 

made in a special proceeding; and (3) an order made upon a 

summary application in an action after judgment.6

[5,6] Proceedings regarding modification of a marital dissolution are special proceedings.7

 Jayson’s filings with the same 

district court that issued the dissolution decree, under the same 

case number, must be construed as motions asking the court 

for relief pursuant to its continuing jurisdiction over the decree, 

as set forth by the modification statutes.8 An application to 

modify the terms of a divorce decree is not the commencement 

of an action.9 It constitutes a continuation of the suit for dissolution of marriage.10

The jurisdictional question presented is whether the April 

4, 2017, order from which this appeal is taken affected a substantial right. A substantial right is an essential legal right, 

not a mere technical right.11 It is a right of substance.12 It is 

not enough that the right itself be substantial; the effect of the 

order on that right must also be substantial.13 The duration of 

the order is therefore relevant to whether it affects a substantial right.14

[7,8] Most fundamentally, an order affects a substantial 

right when the right would be significantly undermined or 

irrevocably lost by postponing appellate review.15 Generally, 

6 See Neb. Rev. Stat. § 25-1902 (Reissue 2016).

7 See Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).

8 See Neb. Rev. Stat. §§ 42-364(6) and 42-365 (Reissue 2016).

9 Ruehle v. Ruehle, 161 Neb. 691, 74 N.W.2d 689 (1956).

10 See, Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997); 

Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979).

11 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

12 Id.

13 Id.

14 See id.

15 See id.
- 72 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

when multiple issues are presented to the district court for 

simultaneous disposition in the same “separate yet connected 

proceeding[]”16 within the court’s continuing jurisdiction over 

a dissolution decree, the court’s determination of fewer than all 

the issues presented is not a final order for the purpose of an 

appeal.17 This is because, absent unusual circumstances, postponing appellate review until all the issues presented under the 

application to modify have been decided will not significantly 

undermine the rights affected by the order.

Huffman v. Huffman18 illustrates the foregoing principles. 

In Huffman, we concluded that an order denying the father’s 

request for a change of custody was not final when the 

court had not yet decided the father’s alternative request to 

modify the visitation provisions of the decree. We said that 

when the modification application pertains to more than one 

issue involving children affected by the dissolution decree, 

a court’s resolution of one issue raised by the application, 

but retention or reservation of jurisdiction for disposition 

of another issue or issues raised by the application does not 

constitute a final judgment, order, or decree for the purpose 

of an appeal.19

In Schepers v. Schepers,

20 we likewise held that an order 

determining the merits of an application to modify custody 

was not final when the issue of child support was still pending. 

16 John P. Lenich, What’s So Special About Special Proceedings? Making 

Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 289 n.227 

(2001).

17 See, Wagner v. Wagner, 275 Neb. 693, 749 N.W.2d 137 (2008); Schepers 

v. Schepers, 236 Neb. 406, 461 N.W.2d 413 (1990); Huffman v. Huffman, 

236 Neb. 101, 459 N.W.2d 215 (1990); Gerber v. Gerber, 218 Neb. 228, 

353 N.W.2d 4 (1984); Goldenstein v. Goldenstein, 110 Neb. 788, 195 

N.W. 110 (1923); McCaul v. McCaul, 17 Neb. App. 801, 771 N.W.2d 222 

(2009); Paulsen v. Paulsen, 10 Neb. App. 269, 634 N.W.2d 12 (2001).

18 Huffman v. Huffman, supra note 17.

19 See id.

20 Schepers v. Schepers, supra note 17.
- 73 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

The Nebraska Court of Appeals, in Paulsen v. Paulsen,

21 found 

that a similar order was not final, explaining:

There are practical reasons why an order in a special 

proceeding which determines less than all of the issues 

submitted to the court is not final. The primary reason 

of course is to prevent piecemeal appeals. There can be 

no doubt that custody and the amount of support for the 

children of a family are closely related issues. . . . There 

is no reason why both issues cannot be decided at the 

same time in an action where both are put [at] issue. . . . 

In short, there is no reason not to require a resolution of 

both custody and support to make the order final.

In Johnson v. Johnson,

22 the Court of Appeals clarified that 

it does not matter if the issue or issues yet undecided were 

explicitly requested in the application to modify the decree, 

when the issue or issues were “an inherent part of a custody 

modification action.”

Without commenting on the extent to which Jayson’s 

requests properly fell under the district court’s continuing 

jurisdiction, in his February 24, 2017, “Complaint to Vacate or 

Modify, for Declaratory Judgment, and/or for Writ of Habeas 

Corpus,” Jayson presented several issues in the proceedings. 

He asked the court to declare the dissolution decree void and 

to vacate it. He asked the court to issue a writ of habeas corpus 

placing the children in his custody. Alternatively to vacating 

the decree or issuing a writ of habeas corpus, Jayson asked 

the court to modify the dissolution decree to place the children 

in his custody, due to an alleged change in circumstances. 

Finally, Jayson moved for several temporary orders, apparently 

pending the court’s determination of his underlying requests 

for relief.

In its order on April 4, 2017, from which this appeal is 

taken, the court stated that it was overruling “pending matters” 

21 Paulsen v. Paulsen, supra note 17, 10 Neb. App. at 275, 634 N.W.2d at 17.

22 Johnson v. Johnson, 15 Neb. App. 292, 296, 726 N.W.2d 194, 197 (2006).
- 74 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

under “Filing 14.” As noted above, “Filing 14” asked for a declaration that the dissolution decree was void and, in the alternative, for several temporary orders. “Filing 14” did not ask for a 

writ of habeas corpus or for modification of the decree due to 

a change of circumstances.

Because in the court’s order issued on March 31, 2017, it 

had overruled Jayson’s request to declare the dissolution decree 

void, the April 4 order’s overruling of the pending matters in 

“Filing 14” necessarily refers to Jayson’s requests for temporary relief. Specifically, the April 4 order denied Jayson’s 

requests for (1) temporary suspension of the decree as it relates 

to the care, custody, control, and support of the minor children; 

(2) a temporary award to Jayson of exclusive custody of the 

children; (3) a temporary denial of any parenting time for Erica 

and prohibiting Erica from having access to medical and education records; (4) a temporary cessation of grandparent visitation; and (5) a temporary award of child support.

At the time of the April 4, 2017, order, the court had not 

yet addressed Jayson’s request for a writ of habeas. Likewise, 

the court had not considered the merits of Jayson’s alternative 

request for modification of the decree to place the children permanently in his custody. On the contrary, it is clear that at the 

time of the April 4 order, the court had retained the “custody 

case” for trial. Thus, the court’s April 4 order determined fewer 

than all the issues submitted and it retained jurisdiction for disposition of another issue raised by the application.

[9] Furthermore, the April 4, 2017, order pertained only to 

requests for temporary relief. In several cases, we have held 

that under the facts presented, orders temporarily affecting 

a parent’s custodial, visitation, or educational rights are not 

final.23 Despite the importance of the rights affected, such 

orders of limited duration failed to have a substantial effect 

23 See, In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 

(2013); Gerber v. Gerber, supra note 17; In re Interest of Angeleah M. 

& Ava M., 23 Neb. App. 324, 871 N.W.2d 49 (2015); In re Interest of 

Nathaniel P., 22 Neb. App. 46, 846 N.W.2d 681 (2014).
- 75 -

Nebraska Supreme Court Advance S

299 Nebraska Report

TILSON v. TILSON

Cite as 299 Neb. 64

on those rights. And here, by denying Jayson’s motion for 

temporary relief, the April 4 order essentially left unchanged 

the status quo of the dissolution decree. We have said in other 

contexts that an order merely preserving the status quo pending 

a further order is not final.24

In his discussion of our jurisdiction in this case, Jayson 

relies on case law wherein we have held that an order denying 

a motion to vacate is a final order.25 We find Jayson’s reliance on this proposition unavailing, because the order before 

us is not the March 31, 2017, order denying that “part of the 

motion requesting declaratory relief (vacating the Decree of 

Dec[.] 8, 2015),” but, rather, the April 4 order. Furthermore, 

if the March 31 order is a final order, then Jayson failed to 

perfect an appeal from that order within 30 days as required 

by § 25-1931. If the March 31 order is not a final order, then 

it is appealable once the court has determined all the issues 

pending under these current modification proceedings. Either 

way, the finality of the March 31 order does not control the 

jurisdictional question in this appeal; that is, whether the April 

4 order is final.

We conclude that the April 4, 2017, ruling was not a final 

order, because it did nothing more than deny requests for 

temporary relief, preserving the status quo pending the court’s 

determination of the other issues raised in the proceedings. 

Accordingly, we have no jurisdiction over this appeal.

VI. CONCLUSION

For the foregoing reasons, we dismiss the appeal.

Appeal dismissed

Wright, J., not participating.

24 See Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 

N.W.2d 425 (2015).

25 See, Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721 

(2010); State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).