Johnson v. Johnson

that one breach foreshadows another and serves as a basis for
McKinnis to demand assurance and avoid its duty under the
awning contract was not reasonable. Hicks has not breached
the roof contract or repudiated the awning contract. The pre-
payment by McKinnis was not warranted, and Hicks’ refusal of
the demand was not a breach of the awning contract.
The district court’s findings show that Hicks stood ready
to perform his obligations under the awning contract and that,
inter alia, in the absence of a breach of the roof contract by
Hicks, McKinnis was not justified in seeking prepayment con-
trary to the payment terms and schedule in paragraph 15 of the
awning contract. Hicks’ refusal to prepay for the awning job
was not a breach by Hicks.
The district court erred when it determined that Hicks
breached the awning contract.
CONCLUSION
Hicks did not breach the roof contract or the awning contract.
We therefore reverse the order of the district court and remand
the cause with directions to vacate the judgment entered on
McKinnis’ behalf and to enter judgment in favor of Hicks.
R eveRsed and Remanded with diRections.
elizabeth GRant Johnson, appellee , v.
K aRi Johnson, appellant.
803 N.W.2d 420
Filed August 12, 2011. 	No. S-10-1092.
1. Service of Process: Waiver: Time. A voluntary appearance signed the day before
the petition is filed waives service of process if filed simultaneously with or after
the petition.
2. Motions to Vacate: Proof: Appeal and Error. An appellate court will reverse
a decision on a motion to vacate only if the litigant shows that the district court
abused its discretion.
3. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
4. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
42 	282 NebrASKA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

5. Jurisdiction: Service of Process: Waiver. proper service, or a waiver by volun-
tary appearance, is necessary to acquire personal jurisdiction over a defendant.
6. Judgments: Jurisdiction. A judgment entered without personal jurisdiction
is void.
7. Judgments: Collateral Attack. A void judgment may be attacked at any time in
any proceeding.
Appeal from the District Court for Douglas County: J.
patRicK mullen, Judge. Affirmed.
Virginia A. Albers, of Lieben, Whitted, Houghton, Slowiaczek
& Cavanagh, p.C., L.L.O., for appellant.
Christine A. Lustgarten, of Dornan, Lustgarten & Troia,
p.C., L.L.O., for appellee.
heavican, 	c.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmacK, and milleR-leRman, JJ.
connolly, J.
[1] Kari Johnson seeks to have a dissolution decree vacated.
He argues that because he signed his voluntary appearance
before his wife had filed her petition, he did not effectively
waive service of process and thus the court did not have per-
sonal jurisdiction over him. We disagree and hold that a vol-
untary appearance signed the day before the petition is filed
waives service of process if filed simultaneously with or after
the petition. We affirm.
bACKGrOUND
On November 23, 2009, Kari and his wife, elizabeth Grant
Johnson, went to a self-help legal clinic for assistance in filing
a dissolution action. With the help of the clinic, elizabeth pre-
pared several documents, including a petition for dissolution,
a voluntary appearance for Kari, an application for support,
a motion for default judgment, and a proposed dissolution
decree. Under a notary’s supervision, Kari signed the voluntary
appearance and the proposed decree. both of these documents
were dated November 23, 2009.
The next day, elizabeth filed the petition for dissolution
and Kari’s voluntary appearance in the district court. The time
JOHNSON v. JOHNSON 	43
Cite as 282 Neb. 42

stamps on the two documents reflect that the documents were
filed simultaneously.
On January 27, 2010, the court held a hearing in which it
reviewed the proposed decree with elizabeth. Kari did not
attend the hearing, but the court found that the voluntary
appearance Kari had signed established personal jurisdiction.
After a few modifications, the court entered the decree that the
parties had signed. Among other things, the decree required
Kari to pay child support and alimony to elizabeth.
In September 2010, Kari moved to vacate the decree of
dissolution. He argued that the decree was void because the
court lacked personal jurisdiction over Kari when it entered
the decree. He argued that his voluntary appearance, which he
signed before elizabeth’s filing of the petition, did not establish
jurisdiction. Further, he argued that he had done nothing else
that would waive his objection to insufficiency of service. The
court denied this motion.
ASSIGNMeNT OF errOr
Kari assigns that the district court erred in refusing to vacate
the dissolution decree, because the court did not have personal
jurisdiction over him when elizabeth failed to serve him with
process and he never waived service.
STANDArD OF reVIeW
[2] We will reverse a decision on a motion to vacate
only if the litigant shows that the district court abused its
discretion.1
[3,4] A jurisdictional issue that does not involve a factual
dispute presents a question of law.2 We independently review
questions of law decided by a lower court.3
ANALYSIS
Kari argues that elizabeth never served him with process
and that his voluntary appearance was not effective to waive
1 See, e.g., Destiny 98 TD v. Miodowski, 269 Neb. 427, 693 N.W.2d 278
(2005).
2 In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).
3 Id.
44 	282 NebrASKA repOrTS

process. So, he argues, the court never acquired personal juris-
diction and the decree is void.
[5-7] Kari is correct in that proper service, or a waiver by
voluntary appearance,4 is necessary to acquire personal juris-
diction over a defendant.5 And we have stated that a judgment
entered without personal jurisdiction is void.6 As mentioned,
Kari signed a voluntary appearance, but did so before elizabeth
filed the petition. If we conclude that this voluntary appearance
is insufficient to waive service of process, the court’s decree
is void. And a void judgment may be attacked at any time in
any proceeding.7
Kari argues that a voluntary appearance cannot be signed
before an action is filed, because there is no pending action
in which to enter an appearance at that point. Kari views the
operative time for a voluntary appearance as the point at which
he signed the document—not when elizabeth filed it with
the court. And because Kari signed his appearance before the
petition was filed, he argues his appearance does not establish
personal jurisdiction.
but as a general rule, documents are given effect as of the
date and time they are filed. For example, an action is com-
menced on the day that the complaint is filed.8 Similarly, we
look to the date of filing for other matters of procedure, such as
a motion to alter or amend a judgment9 or a notice of appeal.10
4 See Neb. rev. Stat. § 25-516.01 (reissue 2008).
5 See, e.g., Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161, 745
N.W.2d 317 (2008); Nebraska Methodist Health Sys. v. Dept. of Health,
249 Neb. 405, 543 N.W.2d 466 (1996). See, also, 49 C.J.S. Judgments § 32
(2009).
6 See, e.g., Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004); State v.
Roth, 158 Neb. 789, 64 N.W.2d 799 (1954); Ehlers v. Grove, 147 Neb.
704, 24 N.W.2d 866 (1946). See, also, 49 C.J.S. supra note 5, § 30.
7 Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).
8 See, Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003); Neb. rev. Stat.
§ 25-217 (reissue 2008).
9 See Neb. rev. Stat. § 25-1329 (reissue 2008).
10 See, Neb. rev. Stat. § 25-1912 (reissue 2008); State v. Parmar, 255 Neb.
356, 586 N.W.2d 279 (1998).
JOHNSON v. JOHNSON 	45
Cite as 282 Neb. 42

We see nothing in § 25-516.01(1) that leads us to conclude that
the Legislature wanted a voluntary appearance to take effect at
a time other than its filing.
We also note that other courts considering similar facts have
likewise ruled that the voluntary appearance signed before a
party filed a petition effectively waives service. For instance,
in Vayette v. Myers,11 the Illinois Supreme Court ruled that the
voluntary appearance of the defendant was valid when it was
filed the same day as the complaint—even though it was signed
the day before. The Missouri Court of Appeals has held that
the “entry of appearance, even though signed before the suit
was actually filed, was sufficient to confer jurisdiction.”12 A
Georgia Supreme Court decision states that a waiver of service
may occur before filing if the waiver is “strictly limited to a
specific suit in the minds of both parties at the time and . . .
is filed in due course and without reasonable delay.”13 Most
courts that have considered this question hold that a voluntary
appearance under such circumstances is valid.14
Admittedly, some of these cases highlight issues that may,
in the future, lead to a different result. For example, in some
cases, no suit was filed for months or years after the appear-
ance was signed.15 Whether an appearance signed long before
the suit was filed would be valid is a question we need not con-
sider because the record shows that elizabeth filed the petition
the next day. Other cases have limited an effective appearance
to those situations in which it is clear that the appearance was
11 Vayette v. Myers, 303 Ill. 562, 136 N.e. 467 (1922).
12 Shields v. Shields, 387 S.W.2d 242, 245-46 (Mo. App. 1965).
13 Adair v. Adair, 220 Ga. 852, 856, 142 S.e.2d 251, 254 (1965). See, also,
Russell v. Russell, 257 Ga. 177, 356 S.e.2d 884 (1987).
14 See, Drinkwater v. Drinkwater, 111 F. Supp. 559 (D.D.C. 1953); Withers v.
Starace, 22 F. Supp. 773 (e.D.N.Y. 1938); Kirk v. Bonner, 186 Ark. 1063,
57 S.W.2d 802 (1933); In re Adoption of Matthew B.-M., 232 Cal. App. 3d
1239, 284 Cal. rptr. 18 (1991); Estate of Raynor, 165 Cal. App. 2d 715,
332 p.2d 416 (1958); Joaquin v. Joaquin, 5 Haw. App. 435, 698 p.2d 298
(1985); Jacobs v. Ellett, 108 Utah 162, 158 p.2d 555 (1945). See, also, 24
Am. Jur. 2d Divorce and Separation § 264 (2008); Annot., 159 A.L.r. 111
(1945).
15 See, e.g., Reagan v. Reagan, 22 Ill. App. 3d 211, 317 N.e.2d 581 (1974).
46 	282 NebrASKA repOrTS

filed in a case that the parties had been contemplating.16 Here,
Kari knew that elizabeth intended to file the voluntary appear-
ance with the dissolution petition, which she filed the next day.
We conclude that the voluntary appearance waived service and
thus the court had jurisdiction. We affirm.
affiRmed.
16 See, e.g., Adair, supra note 13.
JOHNSON v. JOHNSON 	47
Cite as 282 Neb. 42