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www.nebraska.gov/apps-courts-epub/
06/16/2017 01:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
BURNS v. BURNS
Cite as 296 Neb. 184
Michael P. Burns, appellee, v.
K erry E. Burns, appellant.
___ N.W.2d ___
Filed March 24, 2017. No. S-16-491.
1. Motions to Vacate: Time: Appeal and Error. The decision to vacate
an order any time during the term in which the judgment is rendered is
within the discretion of the court; such a decision will be reversed only
if it is shown that the district court abused its discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
the trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
3. Courts: Motions to Vacate. Although a court’s decision to vacate an
order is discretionary, this discretion is not an arbitrary one. It must be
exercised reasonably and depends upon the facts and circumstances in
each case as shown by the record.
4. Jurisdiction: Venue: Words and Phrases. Jurisdiction is the inherent
power or authority to decide a case; venue is the place of trial of an
action—the site where the power to adjudicate is to be exercised.
5. Statutes: Presumptions: Legislature: Intent. In interpreting a statute,
a court is guided by the presumption that the Legislature intended a
sensible rather than absurd result in enacting the statute.
6. Trial: Venue: Parties: Stipulations. Absent statutory authority to the
contrary or a written stipulation or oral stipulation on the record by all
parties, trials and evidentiary hearings must be conducted in the county
in which they are pending.
Appeal from the District Court for Adams County: James E.
Doyle IV, Judge. Reversed and remanded with directions.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
BURNS v. BURNS
Cite as 296 Neb. 184
Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O.,
for appellee.
Wright, Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
K elch, J.
NATURE OF CASE
This case requires this court to determine whether Neb.
Rev. Stat. § 24-303 (Reissue 2016) authorizes a district court
sitting in one county to order a party in a contempt proceeding
to appear in another county to show cause for why she should
not be held in contempt. We conclude it does not and there-
fore reverse the court’s order and remand the cause.
FACTS
As an initial matter, we note that the district court judge han-
dling this case is the Honorable James E. Doyle IV. Although
Judge Doyle is a district court judge for the 11th Judicial
District, this court appointed him to serve as the district court
judge for the 10th Judicial District for the limited purpose of
handling Burns v. Burns, case No. CI03-248. This was done
because one of the parties, Michael P. Burns, served as a
county court judge for the 10th Judicial District, thus creating
a conflict of interest.
Michael and Kerry E. Burns divorced in 2004. Since the
divorce decree was issued, there have been several modifica-
tions and appeals.1 This particular appeal involves a contempt
proceeding between the parties, which was pending before the
district court for Adams County.
On January 6, 2016, Judge Doyle, acting as the district court
judge for Adams County, issued an order requiring Kerry to
appear in the Dawson County District Court in Lexington,
Nebraska, on February 12 and show cause why she should not
be held in contempt for refusing to comply with prior orders.
On January 19, an affidavit of service of process was filed in
1
See Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
BURNS v. BURNS
Cite as 296 Neb. 184
the district court for Adams County, reflecting that Kerry had
been personally served in Wichita, Kansas. Ultimately, Kerry
did not appear for the show cause hearing, but an evidentiary
hearing was nevertheless held in Dawson County.
On February 24, 2016, the district court entered an order
finding Kerry in contempt and sanctioning her therefore to 10
days in jail. The order also contained a purge plan.
On March 3, 2016, Kerry moved the district court to vacate
its February 24 order on the basis that the court did not have
authority to hold an evidentiary hearing outside of the county
in which it was sitting.
On April 14, 2016, the district court issued an order in
which it found that it did have authority to hold the hearing
outside of the county and therefore overruled Kerry’s motion
to vacate. Kerry appeals from that order.
ASSIGNMENT OF ERROR
Kerry’s sole assignment of error is that the district court
erred in overruling her motion to vacate, because the January 6
and February 24, 2016, orders are void.
STANDARD OF REVIEW
[1-3] The decision to vacate an order any time during the
term in which the judgment is rendered is within the discre-
tion of the court; such a decision will be reversed only if it is
shown that the district court abused its discretion.2 An abuse
of discretion occurs when the trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and evidence.3
Although a court’s decision to vacate an order is discretionary,
this discretion is not an arbitrary one. It must be exercised
reasonably and depends upon the facts and circumstances in
each case as shown by the record.4
2
Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).
3
Id.
4
Talkington v. Womens Servs., 256 Neb. 2, 588 N.W.2d 790 (1999).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
BURNS v. BURNS
Cite as 296 Neb. 184
ANALYSIS
We first address Michael’s claim that Kerry waived the
issue of whether the January 6 and February 24, 2016, orders
should be vacated because she did not appeal from the
January 6 and February 24 orders. Kerry asserts that both of
those orders are void for want of jurisdiction and that thus,
she can attack them at any time in any proceeding.5 Rather
than being a jurisdictional issue, Michael contends that the
court’s ability to hold an evidentiary hearing outside the
county in which it sits is a venue issue and therefore may
be waived.
[4] However, we conclude that the issue presented is clearly
one of jurisdiction. Jurisdiction is the inherent power or author-
ity to decide a case; venue is the place of trial of an action—
the site where the power to adjudicate is to be exercised.6
Here, Kerry is not questioning whether the place of trial action
was proper under Neb. Rev. Stat. § 25-403.01 (Reissue 2016);
instead, she questions Judge Doyle’s authority in this case
to order her to appear outside Adams County and to hold an
evidentiary hearing outside Adams County. Accordingly, this
appeal presents a jurisdictional issue. As we shall discuss
below, we find that both orders are void for want of jurisdic-
tion and that thus, Kerry has not waived the issue by failing to
appeal from those orders.
First, we examine the authority granted to a district judge
in Nebraska. The powers of a district judge commence with
article V of the Nebraska Constitution. Section 1 vests the
judicial power of the state in “a Supreme Court, an appellate
court, district courts, county courts, in and for each county,
with one or more judges for each county or with one judge
for two or more counties, as the Legislature shall provide,” as
well as “other courts inferior to the Supreme Court as may be
created by law.” As section 11 states, “The Legislature may
5
See, In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016); Ryan
v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).
6
Blitzkie v. State, 228 Neb. 409, 422 N.W.2d 773 (1988).
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BURNS v. BURNS
Cite as 296 Neb. 184
change the number of judges of the district courts and alter
the boundaries of judicial districts.”
Of relevance to this case, section 12 provides that “[t]he
judges of the district court may hold court for each other and
shall do so when required by law or when ordered by the
Supreme Court.” Here, as explained above, Judge Doyle, the
district court judge for the 11th Judicial District, was ordered
by this court to serve as a district court judge for the 10th
Judicial District for the limited purpose of adjudicating the
case of Burns v. Burns, case No. CI03-248, in the district
court for Adams County, which is in the 10th Judicial District.7
Although the order of appointment was not part of this record,
this court has the right to examine its own records and take
judicial notice of its own proceedings and judgments in the
former action.8
Although Judge Doyle is still serving as a district judge in
the 11th Judicial District due to his original appointment to the
bench, his powers as district judge in each appointment were
separate and distinct. Accordingly, Judge Doyle’s authority to
act in the case of Burns v. Burns was the same and not greater
than any other judge serving Adams County.
Kerry claims that Judge Doyle acted outside his authority as
a district court judge for Adams County when he ordered her
to appear in Dawson County and held the contempt hearing
there. Section 24-303 sets forth where the terms of the district
court are to be held. It provides:
(1) The judges of the district court shall, the last two
months in each year, fix the time of holding terms of
court in the counties composing their respective districts
during the ensuing year, and cause the same to be pub-
lished throughout the district, if the same can be done
without expense. All jury terms of the district court shall
be held at the county seat in the courthouse, or other
place provided by the county board, but nothing herein
7
See Neb. Rev. Stat. § 24-301.02 (Reissue 2016).
8
See State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).
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BURNS v. BURNS
Cite as 296 Neb. 184
contained shall preclude the district court, or a judge
thereof, from rendering a judgment or other final order
or from directing the entry thereof in any cause, in any
county other than where such cause is pending, where the
trial or hearing upon which such judgment or other final
order is rendered took place in the county in which such
cause is pending. Terms of court may be held at the same
time in different counties in the same judicial district, by
the judge of the district court thereof, if there be more
than one, and upon request of the judge or judges of such
court, any term in such district may be held by a judge
of the district court of any other district of the state. The
Supreme Court may order the assignment of judges of the
district court to other districts whenever it shall appear
that their services are needed to relieve a congested cal-
endar or to adjust judicial case loads, or on account of the
disqualification, absence, disability, or death of a judge,
or for other adequate cause. When necessary, a term of
the district court sitting in any county may be contin-
ued into and held during the time fixed for holding such
court in any other county within the district, or may be
adjourned and held beyond such time.
(2) All nonevidentiary hearings, and any evidentiary
hearings approved by the district court and by stipulation
of all parties that have filed an appearance, may be heard
by the court telephonically or by videoconferencing or
similar equipment at any location within the judicial dis-
trict as ordered by the court and in a manner that ensures
the preservation of an accurate record. Such hearings
shall not include trials before a jury. Hearings conducted
in this manner shall be consistent with the public’s access
to the courts.
As noted by the district court, § 24-303 was amended in
2008.9 There were two changes. First, subsection (2) was
added. That subsection authorizes the use of telephone,
9
See 2008 Neb. Laws, L.B. 1014, § 1.
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Nebraska Supreme Court A dvance Sheets
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BURNS v. BURNS
Cite as 296 Neb. 184
videoconferencing, or similar equipment under certain cir-
cumstances. However, it specifically prohibits the use of such
equipment in jury trials. The second change was that the term
“jury” was added between the words “All” and “terms of the
district court,” so that the sentence reads: “All jury terms of
the district court shall be held at the county seat in the court-
house . . . .”10
Obviously, § 24-303(2) does not apply to this case. The
contempt hearing at issue was not heard telephonically, by
videoconferencing, or any other equipment.
Instead, the issue here concerns the addition of the word
“jury” to § 24-303(1). Because of that addition, the district
court concluded that § 24-303 no longer specifies where non-
jury terms of the court are to be held. On the other hand, Kerry
contends that by adding the word “jury,” the Legislature did
not intend for the district judge to hold an evidentiary hearing
at any location.
A careful reading of the remainder of § 24-303(1), which
was not amended in 2008, reveals that all nonjury trials and
hearings, except those conducted pursuant to § 24-303(2), must
take place in the county in which the cause is pending (here-
inafter referred to as “the pending county” for ease of discus-
sion). Section 24-303 states, in relevant part:
[N]othing herein contained shall preclude the district
court . . . from rendering a judgment . . . in any cause, in
any county other than where such cause is pending, where
the trial or hearing upon which such judgment or other
final order is rendered took place in the county in which
such cause is pending.11
Based on this language, § 24-303(1) permits a district court
to render a judgment outside the pending county. But this can
be done only when the trial or evidentiary hearing upon which
that judgment is based was held in the pending county, which,
in this case, was Adams County.
10
See id.
11
§ 24-303(1) (emphasis supplied).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
BURNS v. BURNS
Cite as 296 Neb. 184
[5,6] In interpreting a statute, a court is guided by the pre-
sumption that the Legislature intended a sensible rather than
absurd result in enacting the statute.12 If we accepted Michael’s
interpretation of § 24-303(1)—that nonjury trials and hear-
ings can be held anywhere, then the statute would allow a
district judge handling a case in Omaha, Nebraska, to simply
decide to hold an evidentiary hearing in Scottsbluff, Nebraska.
This result would present due process concerns and is clearly
not what the Legislature intended. Accordingly, we hold that
absent statutory authority to the contrary or a written stipula-
tion or oral stipulation on the record by all parties, trials and
evidentiary hearings must be conducted in the county in which
they are pending.
We note that this holding is supported by the legislative
history of § 24-303. Although the Legislature’s intent in
adding the term “jury” to § 24-303(1) is unclear from the
language of the statute itself, legislators’ testimony before
the Judiciary Committee is helpful. In discussing the addi-
tion of subsection (2), legislators were adamant that under
the amended statute, jury trials would not be conducted by
video conferencing or telephone.13 So it appears that out of an
abundance of caution, in addition to stating in subsection (2)
that “[s]uch hearings shall not include trials before a jury,”
subsection (1) was amended to emphasize that jury terms
must be conducted in the county court house or other place
provided by the county board, rather than by videoconferenc-
ing or otherwise. There was no discussion of allowing district
courts to hold nonjury trials or evidentiary hearings outside
their county of origin.
Although neither party cited Neb. Rev. Stat. § 24-734
(Reissue 2016), we mention it since at least prior to its
2013 amendment, it provided authority for judges, including
12
Concrete Indus. v. Nebraska Dept. of Rev., 277 Neb. 897, 766 N.W.2d 103
(2009).
13
See Judiciary Committee Hearing, L.B. 1014, 100th Leg., 2d Sess. 31, 36
(Feb. 6, 2008).
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BURNS v. BURNS
Cite as 296 Neb. 184
district court judges, to perform certain acts at chambers any-
where within the state. But neither the preamendment nor the
current version of § 24-734 would extend to matters involving
testimony of witnesses by oral examination where the parties
did not consent, such as the contempt hearing at issue here.
Accordingly, this statute does not provide any assistance in
this instance.
Applying § 24-303, we conclude that the district court did
not act in conformity with the law when it ordered Kerry
to appear in Dawson County and held the contempt hearing
there, because Dawson County is outside the pending county
of Adams County. We have said that a district court possesses
jurisdiction only so long as it is holding court in conformity
with the law; and when, without excuse, it disregards the
law and attempts to hold court in any other place than that
prescribed by statute, its acts become coram non judice.14
Accordingly, the January 6 and February 24, 2016, orders are
void, and the district court abused its discretion in overruling
Kerry’s motion to vacate the February 24 order.
CONCLUSION
For the reasons set forth above, the district court abused its
discretion by overruling Kerry’s motion to vacate. We hereby
reverse the order overruling Kerry’s motion to vacate and
remand the cause with directions to grant the motion to vacate
and set a new show cause hearing in Adams County.
R eversed and remanded with directions.
Heavican, C.J., not participating.
14
Hanson v. Hanson, 195 Neb. 836, 241 N.W.2d 131 (1976).