Becher . Becher , 302 Neb. 720 ( 2019 )


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  • Nebraska Supreme Court Online Library
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    05/03/2019 02:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    BECHER v. BECHER
    Cite as 
    302 Neb. 720
    Sonia Becher, appellant, v.
    M ark A. Becher, appellee.
    ___ N.W.2d ___
    Filed March 29, 2019.    No. S-18-608.
    1.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law, which requires the appellate court to reach a conclusion
    independent of the lower court’s decision.
    2.	 ____: ____. Before reaching the legal issues presented for review, an
    appellate court must determine whether it has jurisdiction.
    3.	 Courts: Jurisdiction. While it is not a constitutional prerequisite for
    jurisdiction, the existence of an actual case or controversy is necessary
    for the exercise of judicial power.
    4.	 Actions: Moot Question. An action becomes moot when the issues
    initially presented in the proceedings no longer exist or the parties lack
    a legally cognizable interest in the outcome of the action.
    5.	 Moot Question: Words and Phrases. A moot case is one which seeks
    to determine a question that no longer rests upon existing facts or
    rights—i.e., a case in which the issues presented are no longer alive.
    6.	 Moot Question. Mootness refers to events occurring after the filing of
    a suit which eradicate the requisite personal interest in the resolution of
    the dispute that existed at the beginning of the litigation.
    7.	 Moot Question: Jurisdiction: Appeal and Error. Although mootness
    does not prevent appellate jurisdiction, it is a justiciability doctrine that
    can prevent courts from exercising jurisdiction.
    8.	 Moot Question. As a general rule, a moot case is subject to sum-
    mary dismissal.
    9.	 Jurisdiction: Appeal and Error. Generally, once an appeal is perfected,
    the trial court no longer has jurisdiction until a mandate issues.
    10.	 Jurisdiction: Child Custody: Visitation: Appeal and Error. Under
    Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court may retain
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    BECHER v. BECHER
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    302 Neb. 720
    jurisdiction to provide for an order concerning custody and parenting
    time even while an appeal of one of its orders is pending.
    11.	 Jurisdiction: Minors: Final Orders: Appeal and Error. Neb. Rev.
    Stat. § 42-351(2) (Reissue 2016) does not grant a trial court authority
    to hear and determine anew the very issues then pending on appeal and
    to enter permanent orders addressing these issues during the appeal
    process.
    Appeal from the District Court for Lancaster County: K evin
    R. McM anaman, Judge. Vacated and dismissed.
    Sally A. Rasmussen, of Mattson Ricketts Law Firm, for
    appellant.
    David P. Kyker and Bradley A. Sipp for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Sonia Becher and Mark A. Becher were divorced by decree
    in 2015. The parenting plan ordered by the court established
    a parenting time schedule for only one of the parties’ three
    children. In 2018, while an appeal from the dissolution decree
    was pending in this court, Mark filed a motion seeking to
    establish parenting time and telephone communication with
    one of the other children. The court granted that motion, and
    Sonia appeals. For the reasons set forth herein, we vacate
    and dismiss.
    BACKGROUND
    Sonia and Mark were married in December 1991 and had
    three children: Daniel Becher, born in 2000; Cristina Becher,
    born in 2002; and Susana Becher, born in 2008. Sonia and
    Mark were divorced in 2015 after an exceptionally contentious
    dissolution proceeding.
    Mark appealed, and Sonia cross-appealed the 2015 dissolu-
    tion decree. Both parties, in part, assigned the district court
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    BECHER v. BECHER
    Cite as 
    302 Neb. 720
    erred in its ordering of the custodial arrangement and the award
    of parenting time. The court’s decree ordered what it described
    as a “split and joint” custody arrangement. We described the
    arrangement in Becher v. Becher (Becher I )1:
    The district court found that a split and joint custody
    arrangement with [a] parenting plan designed to reduce
    potential conflicts was in the best interests of the children.
    In its decree, the court ordered that Sonia have permanent
    legal and physical care, custody, and control of the par-
    ties’ two daughters, while Mark have permanent legal
    and physical care, custody, and control of the parties’ son
    with each “subject to the rights of parenting time for the
    noncustodial parent as set forth in the parenting plan.”
    However, the court-ordered parenting plan provided that
    the parties would share joint legal custody of all three
    children, with Mark having primary physical custody of
    the parties’ son, Sonia having primary physical custody
    of the parties’ oldest daughter, and shared joint physi-
    cal custody of the parties’ youngest daughter. . . . [T]he
    court-ordered parenting plan did not provide a parenting
    schedule for the two oldest children. It did provide a joint
    physical custody arrangement for the youngest child with
    Mark and Sonia having equal parenting time on alternat-
    ing weeks.
    We concluded the district court had not abused its discre-
    tion in entering this parenting plan and found the provisions
    of the decree adequately set forth each party’s rights and
    responsibilities.2
    Relevant to the issues raised in the present appeal, the
    parenting plan gave the following rationale for not establish-
    ing a parenting time schedule for the two older children,
    and expressly contemplated future modification to address
    the issue.
    1
    Becher v. Becher, 
    299 Neb. 206
    , 224, 
    908 N.W.2d 12
    , 28 (2018).
    2
    
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    BECHER v. BECHER
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    302 Neb. 720
    Regular Monthly Parenting Time with Daniel and Cristina:
    Based upon the recommendations of George Williams,
    PhD., the Court determines that it is in the best interests
    of Daniel and Cristina . . . that no set parenting time
    schedule be established at this time. This is because of
    the significant conflict that still exists between these chil-
    dren and their non-custodial parent. Until such time as
    counseling with the family has resolved at least some of
    these issues, Dr. Williams believes a required parenting
    schedule would be inappropriate and perhaps detrimental.
    Both parties have agreed to voluntarily continue counsel-
    ing with Dr. Williams and involve the children as may be
    necessary in order to reduce family conflict before a set
    schedule with respect to these two children is established.
    This parenting plan will need to be modified at some point
    in the future to include specific parenting time with these
    children, on a regular monthly basis, during the summer
    and on holidays. Except for summer parenting time, spe-
    cific parenting time only involves Susana at this time.
    As to communications between the parents and children during
    specified summer parenting time, the parenting plan stated:
    [D]uring the summer parenting time for each parent the
    parent who is not exercising parenting time is to have
    no communication of any nature with their children.
    They are not to attempt to contact their children in any
    fashion during the other parent summer parenting time.
    Additionally, the parent not having parenting time is
    not to accept or respond to any attempt by any child to
    communicate with them. In the event of an emergency
    of any nature during the summer parenting time, Mother
    and Father may communicate with each other to address
    the emergency.
    Becher I was released March 9, 2018, and the mandate
    issued on July 13, 2018.3
    3
    Becher I, supra note 1.
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    BECHER v. BECHER
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    302 Neb. 720
    After Becher I was released but before the mandate was
    issued, Mark filed a motion in the district court on June 8,
    2018, seeking to establish specific parenting time and tele-
    phone contact with Cristina. On June 11, Mark amended his
    motion to add a sentence to the notice of hearing purporting to
    provide that “[t]he hearing will be by affidavit.” Both motions
    were e-filed with the court and directed to Sonia’s attorney by
    U.S. mail.
    Neither motion was styled as a complaint to modify the
    decree, and it does not appear from the record that either
    motion was served on Sonia personally, nor was a praecipe for
    summons ever requested.
    On June 14, 2018, a hearing was held on the amended
    motion. Sonia did not appear personally or through counsel.
    Mark also did not personally appear but was represented by
    counsel. Mark’s affidavit was received as an exhibit. In it,
    he averred he had not had meaningful contact with Cristina
    since the entry of the decree and all telephone contact had to
    go through Sonia. Mark sought specific parenting time to take
    Cristina on a summer vacation in June 2018 and asked to pur-
    chase a cell phone to communicate directly with Cristina with-
    out having to go through Sonia. At the hearing, Mark’s counsel
    indicated that the motion was made pursuant to Neb. Rev. Stat.
    § 42-351 (Reissue 2016) to enable the court to consider the
    issue of custody and parenting time before the mandate of the
    initial appeal issued.
    The same day as the hearing, the district court entered an
    order providing, in full:
    1. [Mark] may, at his sole expense, provide a cellu-
    lar telephone for the minor child of the parties, Cristina
    . . . . While [Sonia] may restrict use of the cellular tele-
    phone, [Sonia] may not restrict any contact or communi-
    cation between [Mark] and Cristina . . . through the use
    of the cellular phone.
    2. [Mark] may have parenting time with Cristina dur-
    ing the week of June 19, 2018[,] at 9:00 a.m. to June 26,
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    BECHER v. BECHER
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    2018[,] at 9:00 a.m. [Mark] shall be responsible for all
    transportation necessary to effect parenting time with his
    daughter during this time.
    The order was prepared by Mark’s counsel. The order did
    not construe the motion as a complaint to modify, nor did
    the order purport to modify the decree or the court-ordered
    parenting plan. However, neither did the order indicate it
    was pursuant to § 42-351 nor that it was a temporary order.
    To the extent the order allowed specific parenting time for
    Mark, it was limited to 1 week in June 2018. The telephone
    parenting time authorized by the order contained no tempo-
    ral limit.
    ASSIGNMENTS OF ERROR
    Sonia assigns, restated, that the district court erred in (1)
    modifying the decree while an appeal of the decree was pend-
    ing, (2) exercising jurisdiction although Sonia had not been
    properly served, (3) failing to find Sonia was denied procedural
    due process, and (4) modifying the parties’ parenting time
    without a showing of a material change in circumstances.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter of
    law, which requires the appellate court to reach a conclusion
    independent of the lower court’s decision.4
    ANALYSIS
    [2,3] Before reaching the legal issues presented for review,
    an appellate court must determine whether it has jurisdiction.5
    While it is not a constitutional prerequisite for jurisdiction,
    4
    In re Grand Jury of Douglas Cty., ante p. 128, 
    922 N.W.2d 226
    (2019);
    Jennifer T. v. Lindsay P., 
    298 Neb. 800
    , 
    906 N.W.2d 49
    (2018).
    5
    See, In re Grand Jury of Douglas Cty., supra note 4; Nesbitt v. Frakes, 
    300 Neb. 1
    , 
    911 N.W.2d 598
    (2018).
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    BECHER v. BECHER
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    the existence of an actual case or controversy is necessary for
    the exercise of judicial power.6
    [4-8] We first note the time period granted to Mark for the
    specific summer parenting time with Cristina has passed. An
    action becomes moot when the issues initially presented in
    the proceedings no longer exist or the parties lack a legally
    cognizable interest in the outcome of the action.7 A moot case
    is one which seeks to determine a question that no longer
    rests upon existing facts or rights—i.e., a case in which the
    issues presented are no longer alive.8 Mootness refers to events
    occurring after the filing of a suit which eradicate the requisite
    personal interest in the resolution of the dispute that existed at
    the beginning of the litigation.9 Although mootness does not
    prevent appellate jurisdiction, it is a justiciability doctrine that
    can prevent courts from exercising jurisdiction.10 As a general
    rule, a moot case is subject to summary dismissal.11
    On this point, the order stated that Mark “may have parent-
    ing time with Cristina during the week of June 19, 2018[,] at
    9:00 a.m. to June 26, 2018[,] at 9:00 a.m.” Because this period
    has passed and the order does not provide Mark a continuing
    summer parenting time schedule, the assigned errors concern-
    ing the order’s grant of specific summer 2018 parenting time
    are moot.
    Taking this limitation into account, we turn to Sonia’s
    assignment that the district court erred in modifying the decree
    by allowing Mark to provide Cristina a cell phone and have
    unrestricted communication while an appeal of the decree
    was pending. Mark, in turn, argues that the court retained
    6
    Nesbitt, supra note 5.
    7
    Id.
    8
    Id.
    9
    
    Id. 10 Id.
    11
    
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    BECHER v. BECHER
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    jurisdiction to issue the order under § 42-351(2) and that such
    order was implicitly temporary.
    [9,10] Generally, once an appeal is perfected, the trial court
    no longer has jurisdiction until a mandate issues.12 However,
    a trial court retains jurisdiction under § 42-351(2) for certain
    matters. Section 42-351(2) provides:
    When final orders relating to proceedings governed by
    sections 42-347 to 42-381 are on appeal and such appeal
    is pending, the court that issued such orders shall retain
    jurisdiction to provide for such orders regarding support,
    custody, parenting time, visitation, or other access, orders
    shown to be necessary to allow the use of property or to
    prevent the irreparable harm to or loss of property during
    the pendency of such appeal, or other appropriate orders
    in aid of the appeal process. Such orders shall not be con-
    strued to prejudice any party on appeal.
    Thus, a trial court may retain jurisdiction to provide for an
    order concerning custody and parenting time even while an
    appeal of one of its orders is pending.
    [11] Nevertheless, there is a limit on a trial court’s jurisdic-
    tion to enter an order concerning an issue which is pending on
    appeal.13 Section 42-351(2) does not grant a trial court author-
    ity to hear and determine anew the very issues then pending on
    appeal and to enter permanent orders addressing these issues
    during the appeal process.14
    In the instant case, Mark’s motion sought to change the
    decree and court-ordered parenting plan concerning custody
    and parenting time even though those were issues pending on
    appeal. In Becher I, the appeal of the dissolution decree, Sonia
    and Mark both assigned errors related to the district court’s
    award of custody and parenting time.15 During that appeal,
    12
    Burns v. Burns, 
    293 Neb. 633
    , 
    879 N.W.2d 375
    (2016).
    13
    See 
    id. 14 Id.
    15
    See Becher I, supra note 1.
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    BECHER v. BECHER
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    we considered the validity of the custodial arrangement and
    award of parenting time, the interpretation of terminology used
    concerning the custodial arrangement and award of parenting
    time, and whether the decree was contradicted by the parenting
    plan. The resolution of these issues on appeal potentially could
    have had an effect on the summer parenting time explained in
    the parenting plan which prohibited communication between
    the parent not exercising the parenting time and the children.
    Specifically, that section of the plan stated that “the parent who
    is not exercising parenting time is to have no communication of
    any nature with their children” and further explained that “the
    parent not having parenting time is not to accept or respond to
    any attempt by any child to communicate with them.”
    The order currently on appeal also addressed parent-child
    communication. As between Mark and Cristina, the order
    provided: “[Mark] may, at his sole expense, provide a cellular
    telephone for . . . Cristina . . . . While [Sonia] may restrict use
    of the cellular telephone, [Sonia] may not restrict any contact
    or communication between [Mark] and Cristina . . . through
    the use of the cellular phone.” This order did not limit the
    contact between Mark and Cristina, including during those
    times when Sonia would be exercising summer parenting time.
    Instead, the order stated that Sonia could not act to restrict any
    communication through the cell phone and permitted Mark
    to contact Cristina without limitation. Such provision is at
    odds with the section of the parenting plan governing sum-
    mer parenting time, the review of which was still pending,
    that explicitly stated the nonexercising parent is prohibited
    from attempting communication with the children. As stated
    above, this provision was included in the parenting plan sec-
    tion governing custody and parenting time and was at issue in
    the initial appeal. Mark filed his motion for specific parenting
    time after the release of our opinion in Becher I, but before the
    issuance of the mandate. Thus, at that point, the district court
    did not have jurisdiction to enter a permanent order affecting
    parenting time.
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    BECHER v. BECHER
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    302 Neb. 720
    Mark argues that the district court retained jurisdiction,
    because any order entered during the pendency of the initial
    appeal was implicitly temporary and expired upon the issuing
    of the mandate. Mark argues that as a temporary order, any
    change of parenting time scheduling or communication would
    not affect contradictory provisions of the decree on appeal,
    because such modification would expire once the original
    decree was affirmed, and that the original decree’s provisions
    would control.
    However, Mark offers no support for such assertion and we
    find none. The language of § 42-351(2) does not state that any
    order issued through its operation is temporary. As a result,
    we cannot say that an order is always temporary even if there
    is no limiting language when the underlying motion seeks to
    affect the rights of the parties while an appeal on those rights
    is pending.
    Moreover, while Mark’s counsel mentioned the motion
    was pursuant to § 42-351 during the hearing, Mark’s motion
    and the district court’s order failed to indicate that it was a
    § 42-351(2) motion. The order issued by the court contained
    no temporal limit, and Mark’s motion failed to describe that
    it sought only a temporary order. As such, the court’s order
    providing Mark the ability to communicate with Cristina
    without restriction was not implicitly temporary and its issu-
    ance conflicted with the decree’s provision on parent-child
    communication.
    Because we find that during the pendency of the initial
    appeal, the district court lacked jurisdiction to enter a perma-
    nent order and erred in awarding Mark unrestrained cell phone
    communication with Cristina, we need not address Sonia’s
    remaining assignments.
    CONCLUSION
    We conclude Sonia’s assignments concerning the award
    of specific summer 2018 parenting time between Mark and
    Cristina are moot, because the period during which the
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    parenting time was awarded has passed. As such, these assign-
    ments are dismissed. Regarding Sonia’s assignments concern-
    ing the order awarding Mark unrestrained cell phone commu-
    nication with Cristina, the district court lacked subject matter
    jurisdiction during the appeal of the dissolution decree. As a
    result, we vacate the order of the district court on this issue
    and dismiss this appeal.
    Vacated and dismissed.