Kibler v. Kibler

KIBLER v. KIBLER 	1027
Cite as 287 Neb. 1027
K evin F rancis K ibler, appellee, v. cheryl ann K ibler,
now Known as cheryl ann Mc Mullan, appellant.
845 N.W.2d 585
Filed April 24, 2014. 	No. S-13-572.
1. Motions to Vacate: Time. A court has inherent power to vacate or modify its
own judgments at any time during the term at which those judgments are pro-
nounced, and such power exists entirely independent of any statute.
2. 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 discre-
tion of the court; such a decision will be reversed only if it is shown that the
district court abused its discretion.
3. 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.
4. Court Rules: Waiver. In appropriate circumstances where no injustice would
result, the district court may exercise its inherent power to waive its own rules.
Appeal from the District Court for Sarpy County: M ax
K elch, Judge. Affirmed.
Karen 	S. 	Nelson, 	of 	Schirber 	& 	Wagner, 	L.L.P., 	for
appellant.
Joni Visek for appellee.
heavican, c.J., wright, connolly, stephan, MccorMacK,
M iller-lerMan, and cassel, JJ.
heavican, c.J.
INTRODUCTION
Kevin Francis Kibler filed a pro se complaint seeking a
divorce from Cheryl Ann Kibler, now known as Cheryl Ann
McMullan. After filing the complaint, Kevin retained counsel.
A trial date was set, but before that date, the parties negoti-
ated a settlement and Cheryl’s attorney drafted a decree. When
Cheryl refused to sign the decree, Kevin filed a motion to com-
pel. At the hearing on the motion to compel, the court signed
and entered a copy of the drafted decree. Cheryl filed a motion
to vacate, which was denied. Cheryl appeals the denial of her
motion to vacate. We affirm.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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1028 	287 NEBRASKA REPORTS
BACKGROUND
Kevin and Cheryl were married in 1984. They had no chil-
dren. On March 19, 2012, Kevin filed a pro se complaint seek-
ing a divorce from Cheryl. The complaint included the state-
ment that the marriage was irretrievably broken. Cheryl filed
an answer on June 1, which admitted most of the allegations
in the complaint, including that the marriage was irretriev-
ably broken. Trial was set for December 7. The trial date was
canceled after counsel advised the court that the parties had
reached a settlement.
On January 27, 2013, Kevin filed a motion to compel, stat-
ing that the parties’ agreement was memorialized by Cheryl in
a decree of dissolution attached to the motion as an exhibit and
that Cheryl now refused to sign and submit the draft decree.
The motion requested that the court enter the decree and award
attorney fees. The court held a hearing on the motion to compel
on February 11, 2013.
At the hearing, Kevin’s attorney appeared but Kevin did
not. Cheryl and her attorney were both present. Both par-
ties stated that Kevin signed the decree on January 18, 2013.
Arrangements had been made for Cheryl to move her personal
property from the house on January 19. Cheryl canceled the
scheduled move, apparently because the movers arrived early.
Cheryl did not want to sign the decree until after receiving her
property. Cheryl’s attorney also noted that the decree stated
Cheryl would be allowed in the house to see if there was any
additional property that belonged to her and that Cheryl had
not yet been allowed in the house. The court granted that por-
tion of the motion asking that the decree be entered, signing a
copy of the decree which had not been signed by either party.
Neither party appealed.
On May 13, 2013, Cheryl filed a motion to vacate, arguing
that without a written stipulation between the parties or a stipu-
lation on the record as to what the settlement agreement was,
the court was without authority to enter a decree of dissolu-
tion of marriage. On May 28, Cheryl filed an amended motion
to vacate which added that under Neb. Rev. Stat. § 42-361
(Cum. Supp. 2012), there needs to be a judicial finding or a
stipulation between the parties that the marriage is irretrievably

KIBLER v. KIBLER 	1029
Cite as 287 Neb. 1027
broken and that every reasonable effort to effect a reconcilia-
tion has been made. After a hearing, the district court overruled
the motion to vacate. Cheryl appeals.
ASSIGNMENTS OF ERROR
Cheryl assigns the following errors of the district court:
(1) overruling the motion to vacate when the requirements of
§ 42-361 were not met and (2) failing to vacate the decree of
dissolution of marriage, because neither party had signed the
decree, there was not a record of the agreement made in open
court, and both the local rules and the statute of frauds prohibit
the entry of the decree.
STANDARD OF REVIEW
[1] In Cheryl’s brief, she asserts that her motion to vacate
was sought as both an equitable remedy and a cure for
“‘mistake, neglect, [or] omission of the clerk, or irregular-
ity in obtaining a judgment or order’” under Neb. Rev. Stat.
§ 25-2001(4) (Reissue 2008).1 However, under Rules of Dist.
Ct. of Second Jud. Dist. 2-1 (rev. 1995), Cheryl’s May 13,
2013, motion to vacate was filed within the same term as the
February 11 decree. Thus, § 25-2001 is not applicable. “[A]
court has inherent power to vacate or modify its own judg-
ments at any time during the term at which those judgments
are pronounced, and such power exists entirely independent of
any statute.”2
[2,3] 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.3 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.4
1 Brief for appellant at 11.
2 Moackler v. Finley, 207 Neb. 353, 357, 299 N.W.2d 166, 168 (1980).
3 Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).
4 Id.

1030 	287 NEBRASKA REPORTS
ANALYSIS
Findings Under § 42-361.
In her first assignment of error, Cheryl alleges that the
district court abused its discretion in overruling her amended
motion to vacate, because neither party signed the decree, con-
trary to § 42-361, and the necessary findings under § 42-361
were not made.
Section 42-361 states:
(1) If both of the parties state under oath or affirmation
that the marriage is irretrievably broken, or one of the
parties so states and the other does not deny it, the court,
after hearing, shall make a finding whether the marriage
is irretrievably broken.
(2) If one of the parties has denied under oath or affir-
mation that the marriage is irretrievably broken, the court
shall consider all relevant factors, including the circum-
stances that gave rise to the filing of the complaint and
the prospect of reconciliation, and shall make a finding
whether the marriage is irretrievably broken.
(3) Sixty days or more after perfection of service of
process, the court may enter a decree of dissolution with-
out a hearing if:
(a) Both parties waive the requirement of the hearing
and the court has sufficient basis to make a finding that it
has subject matter jurisdiction over the dissolution action
and personal jurisdiction over both parties; and
(b) Both parties have certified in writing that the mar-
riage is irretrievably broken, both parties have certified
that they have made every reasonable effort to effect
reconciliation, all documents required by the court and by
statute have been filed, and the parties have entered into
a written agreement, signed by both parties under oath,
resolving all issues presented by the pleadings in their
dissolution action.
Although the decree was not signed by Cheryl, it was
drafted by Cheryl’s attorney. At the motion to compel hear-
ing, neither Cheryl nor her attorney indicated that Cheryl had
changed her mind about or disagreed with the settlement for

KIBLER v. KIBLER 	1031
Cite as 287 Neb. 1027
any reason. Instead, Cheryl told the court she would sign the
agreement as soon as she received her property from Kevin’s
house. Kevin and Cheryl both admitted in their pleadings
that the marriage was irretrievably broken. We have held that
pleadings alone are not sufficient for the court to make a find-
ing that a marriage is irretrievably broken5; however, under the
circumstances of this case, the district court was not relying on
the pleadings alone. Additionally, Cheryl was notified of the
court’s entry of judgment and could have appealed the decree,
but did not. The divorce has since become final, and the inter-
ests of justice do not support vacating the decree.
The trial court’s decision was not based upon reasons that
are untenable or unreasonable, and its action was not clearly
against justice or conscience, reason, and evidence. Thus, we
hold that the district court did not abuse its discretion in over-
ruling Cheryl’s motion to vacate the judgment.
Local Rules and Statute of Frauds.
In her second assignment of error, Cheryl alleges that the
district court abused its discretion in not vacating the decree,
because its entry violated Rules of Dist. Ct. of Second Jud.
Dist. 2-3 (rev. 1995) and the statute of frauds, codified at Neb.
Rev. Stat. § 36-105 (Reissue 2008), and because the decree was
not signed by the parties and the oral agreement was not made
in open court.
Local rule 2-3 states:
All stipulations not made in open court or in cham-
bers and recorded by the reporter and all agreements of
counsel or parties to a suit, must be reduced to writing
and signed by the parties making the same and filed with
the clerk, or they will not be recognized or considered by
the court.
[4] We have recognized that “[i]n appropriate circumstances
where no injustice would result, the district court may exercise
5 Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998). See, also,
Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991).

1032 	287 NEBRASKA REPORTS
its inherent power to waive its own rules.”6 In this case, the
agreement between the parties was the subject of a motion to
compel and Cheryl objected neither to the terms of the agree-
ment nor to the court’s consideration of it under this rule. We
conclude that local rule 2-3 was waived by the trial court in
this case and that no injustice resulted.
Section 36-105 states: “Every contract for the leasing for
a longer period than one year, or for the sale of any lands,
shall be void unless the contract or some note or memoran-
dum thereof be in writing and signed by the party by whom
the lease or sale is to be made.” Cheryl alleges that the
statute of frauds applies to the agreement because it trans-
ferred property.
Cheryl did not raise the issue of the statute of frauds at the
hearing on the motion to compel, and she did not raise it in her
motion to vacate. The question before us now is not whether
the parties’ agreement was enforceable, but, rather, whether the
district court abused its discretion in overruling the motion to
vacate. As we have concluded above, under the circumstances
of this case, the district court did not abuse its discretion in
overruling the motion to vacate.
CONCLUSION
For the foregoing reasons, the decision of the district court
is affirmed.
aFFirMed.
6 Heese Produce Co. v. Lueders, 233 Neb. 12, 22, 443 N.W.2d 278, 284
(1989). See, also, Woodmen of the World Life Ins. Soc. V. Kight, 246 Neb.
619, 522 N.W.2d 155 (1994).