Huskey v. Huskey ( 2014 )

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we have quoted above has not disabused the Department of
the notion that it is free to disregard a court order with which
it disagrees. So we add our own admonition: In the seemingly
unlikely event that the circumstances presented here should
arise in the future, the Department, OJS, and the YRTC can,
and indeed must, comply with the juvenile court’s order, and
it is their statutory duty to provide appropriate treatment to a
juvenile committed to their care and custody unless and until
an appellate court reverses or modifies the commitment order.
Statutory interpretation and construction is a function of the
judicial branch, not the executive branch.
Based upon the manner in which these cases became moot,
and the distinct possibility that the issue presented is one
of last impression, we decline to reach the merits of these
appeals under the public interest exception to the doctrine
of mootness.
CONCLUSION
For the foregoing reasons, we lack appellate jurisdiction over
these appeals because the issue presented is moot. Accordingly,
the appeals are dismissed.
Appeals dismissed.
Heavican, C.J., not participating.
Curtis Charles Huskey, appellant and cross-appellee, v.
Deitra Marie Huskey, now known as Deitra Marie
Osterfoss, appellee and cross-appellant.
___ N.W.2d ___
Filed November 7, 2014. No. S-13-1140.
1. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
2. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Constitutional Law: Jurisdiction: Appeal and Error. Except in those cases
wherein original jurisdiction is specially conferred by Neb. Const. art. V, § 2,
the Nebraska Supreme Court exercises appellate jurisdiction, and such appellate
jurisdiction can be conferred only in the manner provided by statute.
4. Appeal and Error. The right of appeal in Nebraska is purely statutory.
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5. Judgments: Words and Phrases. A judgment is the final determination of the
rights of the parties in an action.
6. ____: ____. Every direction of a court or judge, made or entered in writing and
not included in a judgment, is an order.
7. Jurisdiction: Final Orders: Appeal and Error. In the absence of a judgment
or order finally disposing of a case, an appellate court has no authority or juris-
diction to act, and in the absence of such judgment or order, the appeal will
be dismissed.
8. Actions: Parties. Neb. Rev. Stat. § 25-1315(1) (Reissue 2008) is implicated only
where multiple causes of action are presented or multiple parties are involved.
9. Child Custody: Armed Forces: Legislature: Intent: Final Orders. Because
a court may dispense only temporary relief pursuant to Neb. Rev. Stat.
§ 43-2929.01(4)(a) (Cum. Supp. 2012), the Legislature did not intend for a truly
temporary order entered under that subsection to be characterized as a final order
under Neb. Rev. Stat. § 25-1902 (Reissue 2008).
10. Final Orders: Words and Phrases: Appeal and Error. A substantial right is an
essential legal right, not a mere technical right. A substantial right is affected if
the order affects the subject matter of the litigation, such as diminishing a claim
or defense that was available to an appellant prior to the order from which an
appeal is taken.
11. Constitutional Law: Appeal and Error. Generally, a constitutional issue not
passed upon by the trial court is not appropriate for consideration on appeal.
12. Final Orders: Appeal and Error. When multiple issues are presented to a trial
court for simultaneous disposition in the same proceeding and the court decides
some of the issues, while reserving other issues for later determination, the
court’s determination of less than all the issues is an interlocutory order and is
not a final order for the purpose of an appeal.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Appeal dismissed.
Vanessa J. Gorden and Abigail F. Littrell, of Gorden Law,
L.L.C., and Megan McDowell, Senior Certified Law Student,
for appellant.
Kelly T. Shattuck, of Vacanti Shattuck, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
A recently enacted statute1 affords procedural protections in
cases involving child custody and parenting time to military
1
Neb. Rev. Stat. § 43-2929.01 (Cum. Supp. 2012).
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parents affected by mobilization or deployment.2 Pursuant to
one provision,3 the district court permitted the children of a
military mother to temporarily accompany her for the duration
of her assignment to Fort Benning, Georgia. The nonmilitary
father appeals. The statutory language persuades us that the
Legislature did not intend for truly temporary orders legiti-
mately falling within the scope of this specific provision to be
subject to appellate review. We therefore dismiss the appeal for
lack of jurisdiction.
BACKGROUND
Divorce
In March 2011, a decree was entered dissolving the mar-
riage of Deitra Marie Osterfoss, who was then known as
Deitra Marie Huskey, and Curtis Charles Huskey. Osterfoss
was awarded sole legal and physical custody of the parties’ two
children. Huskey was granted parenting time and ordered to
pay child support in the amount of $600 per month.
Osterfoss joined the U.S. Army Reserve shortly after the
parties’ divorce. On March 26, 2013, the Department of the
Army sent Osterfoss orders requiring her to report to Fort
Benning on August 17 for active duty for a period of 1 year,
ending August 16, 2014.
P leadings for Modification
On July 2, 2013, Osterfoss filed a “Complaint for
Modification,” alleging that her assignment to Fort Benning
constituted a material change in circumstances. She requested
that the district court modify the parties’ divorce decree and
parenting plan for the 2013-14 school year and enter an order
permitting her to temporarily relocate the parties’ children to
Georgia. In support of her request, she asserted that it would
not be in the children’s best interests to remain in Nebraska
with Huskey, because he was in “an unstable relationship with
his girlfriend and must move.”
2
See Committee Statement, L.B. 673, Judiciary Committee, 102d Leg., 1st
Sess. (Feb. 3, 2011).
3
§ 43-2929.01(4)(a).
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In response to Osterfoss’ complaint, Huskey filed an
“Answer and Counter Complaint to Modify,” in which he
protested relocation of the children for any length of time that
would impact his parenting time or the children’s education.
He further contended that remaining in Nebraska was in the
children’s best interests, because he would be able to exercise
parenting time, the children would be able to continue their
education in the Gretna Public Schools system, the children
would have the support of extended family members, and
relocation of the children would result in their removal from
Nebraska for a minimum of 1 year. He therefore requested
that the district court award him temporary primary cus-
tody during Osterfoss’ assignment to Georgia, permanently
modify custody to joint legal and physical custody, and order
child support.
Motions for Temporary
or Expedited R elief
Osterfoss moved the district court for temporary orders and/
or an expedited trial. In her motion, she clarified that she was
not seeking to permanently relocate the children to Georgia, but
sought only a temporary order. The court overruled Osterfoss’
motion and granted Huskey temporary custody. The court fur-
ther suspended Huskey’s child support obligation while the
children were in his possession and ordered Osterfoss to pay
child support.
Trial
Trial began on December 5, 2013. The district court first
conducted an in camera interview of the parties’ children. The
parties’ 12-year-old daughter testified that she wanted to go to
Georgia with Osterfoss. The parties’ 6-year-old son similarly
testified that he desired to be with Osterfoss.
Huskey testified that he was currently living with his girl-
friend and their 13-month-old daughter in Waverly, Nebraska.
The parties’ children had been living with him since the
middle of August 2013 pursuant to the grant of temporary cus-
tody. Huskey described that he and the children had become
“a lot closer.” And his employment as a sergeant for the
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Lancaster County Department of Corrections permitted him to
pick up the children from school every day. However, Huskey
explained that because he and his girlfriend were both required
to work nights, his mother usually stayed overnight with the
children two or three times a week and would take the children
to school the following morning.
As to Osterfoss’ allegation that Huskey and his girlfriend
had an unstable relationship, Huskey testified that his rela-
tionship with his girlfriend was secure. He further explained
that any discussion of a future move was for the purpose of
being closer to Gretna, Nebraska, in order to minimize travel
time to the children’s school.
Huskey agreed that he and Osterfoss had generally “gotten
along” and been able to cooperate with respect to the children’s
best interests. As to her parenting of the children, Huskey
stated that he had “some issues,” but that “for the most part,
[Osterfoss] did a good job” and that he considered her to be a
good parent. He further confirmed that both he and Osterfoss
possessed good relationships with the children and indicated
that the children missed Osterfoss.
However, Huskey described that Osterfoss had frustrated his
parenting time “[v]ery early on” and that he had filed contempt
proceedings against her. But he testified that he and Osterfoss
had “gotten over that.” He also confirmed that he did not
believe Osterfoss would frustrate his parenting time if she was
permitted to relocate the children to Georgia.
As to his concern for the children’s welfare, Huskey testi-
fied that he believed the parties’ daughter would have problems
adjusting to life in Georgia. He explained that their daughter is
shy, reserved, and slower at making friends. However, Huskey
expressed that the parties’ son would adjust because he is
“pretty good at adjusting.”
Osterfoss testified that she believed the children would
benefit from relocating to Georgia. She explained that the
children would receive educational benefits because the
schools in Georgia have greater diversity. And relocating
would permit the children to remain with her, which would
provide them continuity, because she had been their primary
care provider since their birth. She further confirmed that she
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did not believe the children would suffer physically, emotion-
ally, or developmentally if they relocated to Georgia. She
testified that the children are resilient and would benefit from
the experience.
Osterfoss also expressed concern as to Huskey’s care of the
children. She explained that she would be able to spend time
with the children every day after work, but that Huskey was
required to leave the children in the care of others. She also
claimed that she was required to purchase a cell phone for the
parties’ daughter because Huskey was not permitting Osterfoss
to speak with her.
A portion of Osterfoss’ testimony also concerned Huskey’s
child support obligation under the divorce decree. On cross-
examination, Huskey’s counsel asked her, “You’ve requested
in your response to the counterclaim that child support change
permanently, is that correct, the amount that . . . Huskey pays
to you?” Osterfoss responded affirmatively. Osterfoss testi-
fied that Huskey’s hourly wage at the time of the parties’
divorce was $16. However, Huskey testified that at the time
of trial, his hourly wage had increased to approximately $23
per hour.
District Court’s Order
At the conclusion of trial, the district court made an oral
pronouncement that the children would be permitted to relocate
to Georgia with Osterfoss for the remainder of her temporary
assignment. Osterfoss’ counsel then inquired as to how child
support would be treated, asking, “[A]re we assuming we’re
going back, then . . . to the old order as far as child support
then?” The court responded, “Right.”
The district court entered a written order on December 17,
2013, sustaining Osterfoss’ motion for temporary removal. In its
order, the court observed that it construed Osterfoss’ complaint
as a request for temporary removal pursuant to § 43-2929.01.
And it further noted that, in this case, § 43-2929.01 placed the
burden of proof on Huskey, the party seeking to prevent the
removal. It therefore determined that Huskey had the burden
of proving that a change in custody was in the children’s best
interests by clear and convincing evidence and that he had
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failed to meet that burden. Consequently, the court declined
to modify custody. But its order provided that the children
were to be returned to Nebraska no later than August 16, 2014.
The court’s order did not address Huskey’s countercomplaint,
which apparently is still pending.
Appeal
Huskey filed a timely notice of appeal, and the case was
assigned to the docket of the Nebraska Court of Appeals.
Osterfoss cross-appealed. Huskey filed a petition in this court
to bypass the Court of Appeals, and Osterfoss filed a motion
for summary dismissal, alleging a lack of appellate jurisdic-
tion. Osterfoss also filed a motion for attorney fees incurred in
association with the appeal. We granted Huskey’s petition to
bypass and overruled Osterfoss’ motion for summary dismissal.
However, we ordered the parties to further brief the issue of
appellate jurisdiction. After briefing was completed, we heard
oral arguments.
ASSIGNMENTS OF ERROR
Huskey assigns, reworded, that the district court erred in
(1) interpreting § 43-2929.01 as requiring that Osterfoss main-
tain physical custody of the parties’ children unless a custody
change was demonstrated to be in the children’s best interests
by clear and convincing evidence; (2) applying § 43-2929.01 in
a manner that violated his right to equal protection under Neb.
Const. art. I, § 3; and (3) finding that temporary removal of the
children to Georgia was in the children’s best interests.
In her cross-appeal, Osterfoss assigns that the district court
erred in failing to modify Huskey’s child support obligation.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, which
we review independently of the lower court’s determination.4
ANALYSIS
[2] Before we are able to address the merits of the par-
ties’ assignments of error, we must determine whether this
4
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
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court has jurisdiction. It is the duty of an appellate court to
determine whether it has jurisdiction over the matter before
it.5 In her motion for summary dismissal, Osterfoss alleged
that the district court’s December 17, 2013, order was not a
final, appealable order. She therefore asserted that this court is
without jurisdiction over the appeal. We focus our attention on
that order.
The order implemented § 43-2929.01(4)(a). Because the
question of appellate jurisdiction in this appeal focuses on a
relatively new and unexplored statute, we set forth the full text
of § 43-2929.01:
(1) The Legislature finds that for children of military
parents it is in the best interests of the child to maintain
the parent-child bond during the military parent’s mobili-
zation or deployment.
(2) In a custody or parenting time, visitation, or other
access proceeding or modification involving a military
parent, the court shall consider and provide, if appropriate:
(a) Orders for communication between the military
parent and his or her child during any mobilization or
deployment of greater than thirty days. Such communi-
cation may be by electronic or other available means,
including webcam, Internet, or telephone; and
(b) Parenting time, visitation, or other access orders
that ensure liberal access between the military parent and
the child during any military leave of the military par-
ent during a mobilization or deployment of greater than
thirty days.
(3) A military parent’s military membership, mobi-
lization, deployment, absence, relocation, or failure to
comply with custody, parenting time, visitation, or other
access orders because of military duty shall not, by itself,
be sufficient to justify an order or modification of an
order involving custody, parenting time, visitation, or
other access.
(4) If a custody, child support, or parenting time,
visitation, or other access proceeding, or modification
5
In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
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thereof, involves a military parent and is filed after the
military parent’s unit has received notice of potential
deployment or during the time the military parent is mobi-
lized or deployed:
(a) The court shall not issue a custody order or modify
any previous custody order that changes custody as it
existed on the day prior to the military parent’s unit
receiving notice of potential deployment, except that the
court may issue a temporary custody order or tempo-
rary modification if there is clear and convincing evi-
dence that the custody change is in the best interests of
the child;
(b) The court shall not issue a child support order or
modify any previous child support order that changes
child support as it existed on the day prior to the military
parent’s unit receiving notice of potential deployment,
except that the court may issue a temporary child support
order or temporary modification if there is clear and con-
vincing evidence that the order or modification is required
to meet the child support guidelines established pursuant
to section 42-364.16; and
(c) The court shall not issue a parenting time, visita-
tion, or other access order or modify any previous order
that changes parenting time, visitation, or other access
as it existed on the day prior to the military parent’s unit
receiving notice of potential deployment, except that the
court may enter a temporary parenting time, visitation, or
other access order or modify any such existing order to
permit liberal parenting time, visitation, or other access
during any military leave of the military parent.
(5) If a temporary order is issued under subsection (4)
of this section, upon the military parent returning from
mobilization or deployment, either parent may file a
motion requesting a rehearing or reinstatement of a prior
order. The court shall rehear the matter if the temporary
order was the initial order in the proceeding and shall
make a new determination regarding the proceeding. The
court shall reinstate the original order if the temporary
order was a modification unless the court finds that the
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best interests of the child or the child support guide-
lines established pursuant to section 42-364.16 require a
new determination.
(6) Upon finding an (a) unreasonable failure of a non-
military parent to accommodate the military leave sched-
ule of the military parent, (b) unreasonable delay by the
nonmilitary parent of custody, child support, parenting
time, visitation, or other access proceedings, (c) unreason-
able failure of the military parent to notify the nonmilitary
parent or court of release from mobilization, or (d) unrea-
sonable failure of the military parent to provide requested
documentation, the court may order the offending party to
pay any attorney’s fees of the other party incurred due to
such unreasonable action.
(7) This section does not apply to permanent change of
station moves by a military parent.
(Emphasis supplied.) The plain language of this statute shows
that it contemplates various orders, some temporary and some
final. Before addressing the specific jurisdictional issue involv-
ing § 43-2929.01(4)(a), we recall some basic principles of
appellate jurisdiction.
[3,4] Except in those cases wherein original jurisdiction is
specially conferred by Neb. Const. art. V, § 2, the Nebraska
Supreme Court exercises appellate jurisdiction, and such appel-
late jurisdiction can be conferred only in the manner provided
by statute.6 Thus, in order for this court to have jurisdiction
over an appeal, appellate jurisdiction must be specifically pro-
vided by the Legislature. The right of appeal in this state is
purely statutory.7
[5-7] Neb. Rev. Stat. § 25-1911 (Reissue 2008) authorizes
appellate jurisdiction over a judgment rendered or a final order.
Of course, a “judgment” is the “final determination of the
rights of the parties in an action.”8 In the case before us, the
“judgment” was the March 2011 divorce decree. Conversely,
6
Waite v. City of Omaha, 263 Neb. 589, 641 N.W.2d 351 (2002).
7
See From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953).
8
Neb. Rev. Stat. § 25-1301(1) (Reissue 2008).
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every direction of a court or judge, made or entered in writing
and not included in a judgment, is an order.9 In the absence of
a judgment or order finally disposing of a case, the Supreme
Court has no authority or jurisdiction to act, and in the absence
of such judgment or order, the appeal will be dismissed.10
[8] Apart from the existence of a final judgment, the two
statutes primarily relevant to the issue of appellate jurisdic-
tion are Neb. Rev. Stat. §§ 25-1315(1) and 25-1902 (Reissue
2008).11 Section 25-1315(1), however, is implicated only where
multiple causes of action are presented or multiple parties are
involved.12 Because the order before us does not have either of
those characteristics, we focus on § 25-1902.
Section 25-1902 defines the three types of final orders that
may be reviewed on appeal: (1) an order which affects a sub-
stantial right and which determines the action and prevents a
judgment, (2) an order affecting a substantial right made during
a special proceeding, and (3) an order affecting a substantial
right made upon summary application in an action after a judg-
ment is rendered.
We have observed that an order modifying custody arises
from a special proceeding, falling within the second category
of § 25-1902.13 However, it has been noted that an order
modifying custody may be similarly classified under the third
category of that section: an order affecting a substantial right
made upon summary application in an action after a judgment
is rendered.14 But to constitute a final order under either cat-
egory, the order must affect a substantial right.15
Turning to the specific statutory provision before us, we
observe that in enacting § 43-2929.01, the Legislature intended
to provide protection for military parents in the midst of
9
Neb. Rev. Stat. § 25-914 (Reissue 2008).
10
Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990).
11
See Waite, supra note 6.
12
See, id.; § 25-1315(1).
13
See Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010).
14
See id. (Connolly, J., concurring in part, and in part dissenting).
15
See, id.; § 25-1902.
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mobilization or deployment with respect to custody, child
support, parenting time, and related matters. In particular,
§ 43-2929.01(4) prohibits a court from undertaking several
actions when a military parent’s unit has received notice of
potential deployment or the military parent has been mobilized
or deployed: A court may not issue or modify a custody order,
child support order, or parenting time, visitation, or other
access order that changes custody, child support, or parenting
time, visitation, or other access as it existed on the day prior to
the military parent’s unit receiving notice of potential deploy-
ment. However, if no such order is in existence or the modi-
fication of an existing order is shown to be warranted, a court
may issue a temporary order or temporary modification.
The Legislature made clear that any relief to be afforded
under § 43-2929.01(4)(a) should be strictly temporary. First,
the Legislature expressly designated the permitted orders as
“temporary.” Thus, in plain language, the Legislature charac-
terized these orders as “temporary” rather than “final.” Second,
§ 43-2929.01(5) provides that upon the return of the military
parent from mobilization or deployment, either parent may
request a rehearing or reinstatement of a prior order. If the
temporary order was the initial order, the court is required to
rehear the matter and make a new determination. And if the
temporary order was a modification, the court is required to
reinstate the original order unless the best interests of the child
or child support guidelines require otherwise.
[9] Because a court may dispense only temporary relief pur-
suant to § 43-2929.01(4)(a), we conclude that the Legislature
did not intend for a truly temporary order entered under
that subsection to be characterized as a “final order” under
§ 25-1902. An order entered pursuant to § 43-2929.01(4)(a)
does not finally determine the rights of the parties, because
further court action is contemplated once the military parent
returns from mobilization or deployment.16 And a truly tem-
porary order under that subsection does not affect a substan-
tial right.
16
See, § 43-2929.01(5); Dorshorst v. Dorshorst, 174 Neb. 886, 120 N.W.2d
32 (1963); Buda v. Humble, 2 Neb. Ct. App. 872, 517 N.W.2d 622 (1994).
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[10] We have previously held that a temporary order affecting
custody does not affect a substantial right. We have described
a substantial right as an essential legal right, not a mere tech-
nical right.17 A substantial right is affected if the order affects
the subject matter of the litigation, such as diminishing a claim
or defense that was available to an appellant prior to the order
from which an appeal is taken.18
In Steven S. v. Mary S.,19 we determined that an order mak-
ing a temporary custody determination and suspending the
mother’s right to visitation did not affect a substantial right.
Our conclusion was based upon two factors: (1) The order
disturbed the mother’s relationship with her children for only
a brief period of time, and (2) the order was not a perma-
nent disposition.20
In Carmicheal v. Rollins,21 we reinforced the principle that
an order affecting custody only temporarily does not affect a
substantial right. In that case, we observed that the temporary
grant of custody to the father during the mother’s military
deployment period of 400 days was not a final order.22 We
noted that the grant of custody to the father was temporary and
that custody would revert to the mother upon her return from
active duty.23
The order before us did not affect a substantial right. It did
not make a permanent disposition. Pursuant to § 43-2929.01(5),
the order contemplated further action by the court upon
Osterfoss’ return. And it affected the custody arrangement of
the parties only temporarily. It permitted Osterfoss to relo-
cate the children only from December 25, 2013, to August
16, 2014—a period of less than 8 months. While we concede
that 8 months is not an insignificant period of time, we have
17
See Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
18
Id.
19
See id.
20
See id.
21
See Carmicheal, supra note 13.
22
See id.
23
See id.
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already determined that an order granting temporary custody
for a period of 400 days did not affect a substantial right.24
Further, we view the object of the order before us as less
obtrusive. In contrast to Steven S. and Carmicheal, the order
before us provided for continuity of custody by maintaining
the custody arrangement of the parties as it existed before
Osterfoss received her orders and filed her complaint. It dis-
rupted only Huskey’s right to parenting time. And Huskey’s
parenting time was not substantially reduced under the order.
The order was truly a temporary order within the meaning of
§ 43-2929.01(4)(a).
Because the order was properly characterized as a “tempo-
rary” order under § 43-2929.01(4)(a), and because it did not
affect a substantial right, we conclude that it was not a “final
order” under § 25-1902. We are therefore without a statutory
basis to exercise jurisdiction over the parties’ appeal.
However, in holding that the order before us is not sub-
ject to appeal, we acknowledge the danger that a court might
enter a final order disguised as a temporary order under
§ 43-2929.01(4)(a), that successive temporary orders could be
employed in an attempt to evade appellate review, or that a
temporary order might persist for such a duration that it would
affect a substantial right and constitute a final order despite
its label as “temporary.” We are not suggesting that under any
of those circumstances, a purportedly temporary order would
evade appellate review.
[11] And we do not pass upon the constitutionality of
§ 43-2929.01. We lack jurisdiction to do so. But even if we had
jurisdiction, we would not reach Huskey’s constitutional claim.
Although Huskey challenges the statute’s constitutionality in
his assignments of error, he failed to raise any constitutional
issue before the district court. Generally, a constitutional issue
not passed upon by the trial court is not appropriate for consid-
eration on appeal.25 Because he failed to raise the issue before
the trial court, we would not reach it in this appeal even if we
had jurisdiction.
24
See id.
25
Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).
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[12] We further note that Huskey’s countercomplaint for a
permanent modification of custody is apparently still pending
before the district court. The order before us made no mention
of Huskey’s countercomplaint. Although the court may have
considered itself constrained by § 43-2929.01 from perma-
nently modifying custody, it should have addressed the issue
if only to make it clear that the pleading had not been adjudi-
cated. When multiple issues are presented to a trial court for
simultaneous disposition in the same proceeding and the court
decides some of the issues, while reserving other issues for
later determination, the court’s determination of less than all
the issues is an interlocutory order and is not a final order for
the purpose of an appeal.26
Because the appeal was taken from an order that was not
final, we must dismiss the appeal for lack of jurisdiction. And
we are therefore without power to grant Osterfoss’ motion
for attorney fees. We overrule the motion for attorney fees
without prejudice to the reassertion of the request before the
district court.
CONCLUSION
We conclude that the Legislature did not intend for appel-
late review of truly temporary orders entered pursuant to
§ 43-2929.01(4)(a). That subsection is limited to temporary
relief, and orders which do not finally determine the rights of
the parties or affect a substantial right are not final orders as
defined by § 25-1902. Without a statutory basis to exercise
jurisdiction, we must dismiss the appeal.
Appeal dismissed.
26
Wagner v. Wagner, 275 Neb. 693, 749 N.W.2d 137 (2008).