Miller-Lerman, J.
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.
Abigail and William were married on June 23, 2012. On August 27, Abigail filed her complaint for the dissolution of the marriage. No children were born to the parties during the marriage.
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 journal entry states that William shall make an equalization payment which flows from those findings. The unsigned journal entry states:
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:
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.
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.
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.
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).
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).
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).
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.
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.
Section 25-1912, upon which the foregoing discussion is based provides:
Section 25-1144.01, mentioned in § 25-1912, provides:
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.
The relevant dates for our analysis are as follows:
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.
As we have noted, the court distributed the unsigned journal entry on August 14, 2013, containing its substantive decision, and it further provided:
(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
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.
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 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).
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.
After equalization, Abigail should have received $9,082.67 (consisting of premarital property equaling $5,642 plus one-half 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.
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.
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.
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."
But the 1999 Legislature refined "rendition" as the court's or judge's act of "making and signing a written notation."
The 1999 Legislature also introduced the first savings clause into our general appeal statute.
Although the 1999 Legislature failed to add an equivalent savings clause regarding motions for new trial, the 2004 Legislature remedied that omission.
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.
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.
As the court's opinion correctly observes, our decision in Macke v. Pierce
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.
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.
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.
It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors.
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.
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.
