Johnson v. Johnson
Supreme Court of Nebraska affirmed the lower courts ruling holding that a voluntary appearance signed the day before the petition is filed waives service of process if filed simultaneously with or after the petition.
Husband and wife visited a self-help clinic for assistance in filing a dissolution action. With the help of the clinic, wife prepared several documents, including the petition for dissolution, a voluntary appearance for husband, an application for support, and a proposed dissolution decree. Husband signed the appearance and the decree under a notary’s supervision on 11/23/09.
The following day, wife filed the petition for dissolution and the husband’s voluntary appearance in District Court. Time stamps on the documents indicate reflect they were filed simultaneously. On 1/27/10, the Court held a hearing to review the decree. Wife attended this hearing but Husband did not. Court found that the voluntary appearance Husband signed established personal jurisdiction and after a few modifications, the Court entered the decree signed by Husband and Wife. Among other things, the decree required Husband to pay child support and alimony to Wife.
Several months later Husband moved to vacate the decree of dissolution arguing it was void because the Court lacked personal jurisdiction over Husband when it entered the decree. He argued that his voluntary appearance, which was signed prior to Wife filing the petition, did not establish jurisdiction.
Although the Court agreed with Husband, that judgment entered without personal service is void, the Court said “as a general rule, documents are given effect as of the date and time they are filed.” The Court further stated there was nothing in § 25-516.01(1) that would lead it to conclude the Legislature wanted a voluntary appearance to take effect at a time other than its filing. Husband new Wife intended to file the voluntary appearance with the dissolution petition, which she filed the next day. Court concluded this appearance waived service and thus the court had jurisdiction.
