Yori v. Helms ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/13/2020 08:07 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
YORI v. HELMS
Cite as 307 Neb. 375
Connie S. Yori, appellee, v.
Kirk P. Helms, appellant.
___ N.W.2d ___
Filed October 2, 2020. Nos. S-19-520, S-19-840.
1. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc­
tion to be imposed are reviewed for abuse of discretion.
2. Parental Rights: Appeal and Error. Whether relief entered in a pro-
ceeding to enforce a parent’s rights is reasonably necessary to enforce
such rights is reviewed for an abuse of discretion.
3. 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.
4. Contempt. Contempt proceedings may both compel obedience to orders
and administer the remedies to which the court has found the parties to
be entitled.
5. ____. In a civil contempt proceeding, for the sanction to retain its civil
character, the contemnor must, at the time the sanction is imposed, have
the ability to purge the contempt by compliance and either avert punish-
ment or, at any time, bring it to an end.
6. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris-
diction over a dissolution decree includes the power to provide equitable
relief in a contempt proceeding.
7. Courts: Equity. Where a situation exists that is contrary to the prin-
ciples of equity and which can be redressed within the scope of judicial
action, a court of equity will devise a remedy to meet the situation.
8. Evidence: Appeal and Error. Where credible evidence is in conflict
on a material issue of fact, the appellate court considers, and may give
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307 Nebraska Reports
YORI v. HELMS
Cite as 307 Neb. 375
weight to, the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another.
9. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
10. ____: ____. Generally, once an appeal has been perfected, the trial court
no longer has jurisdiction.
11. ____: ____. A trial court’s jurisdiction under Neb. Rev. Stat. § 42-351(2)
(Reissue 2016) during the pendency of an appeal is properly character-
ized as jurisdiction in aid of the appeal process.
12. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
13. Judgments: Final Orders: Appeal and Error. While all judgments not
incorrectly designated as such are appealable, an order may be appealed
only if a statute expressly makes the order appealable or the order falls
within the statutory definition of a final order.
14. Final Orders: Appeal and Error. To be a final order subject to appel-
late review, the lower court’s order must (1) affect a substantial right
and determine the action and prevent a judgment, (2) affect a substantial
right and be made during a special proceeding, (3) affect a substantial
right and be made on summary application in an action after a judg-
ment is rendered, or (4) deny a motion for summary judgment which
was based on the assertion of sovereign immunity or the immunity of a
government official.
15. Final Orders. The inquiry of whether a substantial right is affected
focuses on whether the right at issue is substantial and whether the
court’s order has a substantial impact on that right.
16. ____. Whether an order affects a substantial right depends on whether it
affects with finality the rights of the parties in the subject matter.
17. Final Orders: Time. The duration of an order is relevant to whether it
affects a substantial right.
Appeals from the District Court for Lancaster County: John
A. Colborn, Judge. Judgment in No. S-19-520 affirmed.
Appeal in No. S-19-840 dismissed.
Gregory D. Barton, of Barton Law, P.C., L.L.O., for
appellant.
Amie C. Martinez and Megan M. Zobel, of Anderson,
Creager & Wittstruck, P.C., L.L.O., for appellee.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
YORI v. HELMS
Cite as 307 Neb. 375
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
The district court found Kirk P. Helms in contempt of court
for violating parenting provisions of a dissolution decree,
imposed a suspended jail sentence, and modified terms of the
parenting plan. Helms appealed, arguing that the modifications
were punitive and not reasonably necessary (first appeal). While
that appeal was pending, the district court entered an order of
commitment and a purge order which contained a reduction
in Helms’ parenting time but set the matter for a review hear-
ing in 41⁄2 months. Helms appealed that order (second appeal).
Because the modifications involved in the first appeal were
part of the equitable relief that the court was authorized to pro-
vide, we find no abuse of discretion and affirm. We dismiss the
second appeal for lack of a final order.
BACKGROUND
Marriage and Dissolution
Helms married Connie S. Yori in 1996, and a child was
born to the marriage in July 2004. The parties subsequently
sought to dissolve their marriage and entered into a mediated
agreement.
On March 1, 2017, the district court entered a decree of
dissolution. The decree awarded the parties joint legal and
physical custody of the child. The parenting plan attached to
the decree contained the terms of the parties’ mediated agree-
ment and addressed topics such as day-to-day decisionmaking,
alcohol consumption and testing, and parental responsibility
and cooperation.
Contempt Proceedings
Yori claimed that Helms violated provisions of the parent-
ing plan and mediated agreement. She filed an application for
an order to show cause in October 2017 and thereafter filed
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YORI v. HELMS
Cite as 307 Neb. 375
several amended applications. The operative pleading, filed in
September 2018, alleged over 60 violations by Helms of the
mediated agreement and decree of dissolution. In particular,
Yori alleged that Helms violated the provisions regarding pay-
ment of expenses for the child, medical appointments for the
child, cooperation between the parents, and Helms’ consump-
tion of alcohol and compliance with alcohol testing.
Trial began in October 2018 but needed to be continued to
December. In November, Helms moved to continue the hear-
ing. The court sustained the motion, subject to provisions con-
tained in a temporary order. Trial resumed in March 2019.
The December 2018 temporary order addressed transpor-
tation of the child and also gave Yori “final say on matters
relating to the minor child’s sports and athletics.” It ordered
that during the pendency of the proceedings, Yori or her
designated representative be allowed to provide the child’s
transportation to and from all religious confirmation or youth
group activities, educational meetings or events relating to an
educational action plan, athletic practices, and athletic tourna-
ments or games.
During a February 2019 hearing, the court clarified its intent
with respect to the December 2018 temporary order. The court
explained that its intent was for Yori to transport the child to
the various activities, even if the activities occurred during
Helms’ parenting time. The court stated that Yori “either is
to return the child or, if . . . Helms is present at that activity,
I don’t think there was any objection to him taking the child
home from that activity, at least, from an email here it says
you can take him home afterwards.” The court repeated, “The
purpose and intent of this is to make sure the child makes it to
all the activities . . . .”
During the hearings on Yori’s application for an order to
show cause, a number of witnesses testified on Yori’s behalf.
Tim McGovern, who coached the child’s basketball team with
Yori, testified that during a meeting with the players’ parents,
Helms said that Yori was bullying the children and should
not be trusted to be in charge of their sons. It appeared to
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YORI v. HELMS
Cite as 307 Neb. 375
McGovern that “trying to make [Yori] look bad was the goal.”
McGovern testified that he observed Helms at the child’s bas-
ketball tournaments and had concerns that Helms was under
the influence of alcohol.
Other witnesses echoed McGovern’s testimony. Jennifer
Cramer, who attended the meeting mentioned by McGovern,
testified that Helms told the parents that Yori was abusive to
the players and to him during their marriage. Cramer com-
plained to Helms at that meeting about his failure to bring the
child to practices or games. At a May 2018 basketball tourna-
ment, Cramer observed Helms exhibiting abnormal behavior,
including “flip[ping her] off” in the presence of parents and
children. Another parent testified about her concerns that
Helms was under the influence of alcohol at the child’s bas-
ketball tournaments. She testified that she smelled alcohol on
him and that she observed him “walk across the court, flip-
ping off . . . towards our area.” Helms denied standing in the
middle of a basketball court and flipping off the crowd. He
also denied attending any of the child’s basketball games or
events while under the influence of alcohol. But in February
2019, Helms was arrested for driving under the influence on
his way home from attending the child’s basketball event. At
the time of the hearing, Helms did not have a driver’s license
and relied on transportation by bicycle or bus or as provided
by his family.
Yori testified about difficulties in obtaining reimbursement
from Helms for the child’s medical expenses. She sent numer-
ous emails to Helms, requesting reimbursement and including
itemizations of expenses and copies of each billing statement.
Helms did not reimburse Yori because she did not send him the
insurer’s explanation of benefits and instead sent handwritten
information and amounts. He also asked Yori to sign a release
so that he could talk with the healthcare provider, but she did
not do so.
The parties testified regarding issues with alcohol monitor-
ing through Soberlink. The decree required Helms to keep
Soberlink in place and to test during his parenting time at
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YORI v. HELMS
Cite as 307 Neb. 375
8 a.m., 2 p.m., and 10 p.m. Six weeks after entry of the decree,
Helms submitted a change request form to Soberlink, direct-
ing that Yori not be listed as a concerned party. Although a
Soberlink form showed a change in the concerned party name
to Helms’ sister, Helms testified that he just intended to add
his sister as a contact. The same page of the form identified
Yori as someone who is to receive test results. Helms testified
that Yori never informed him that she was not timely receiving
Soberlink reports and that he did not recall her complaining
about not being listed as a concerned party.
Helms also reduced the Soberlink monitoring from “Level
2” to “Level 1” monitoring. With Level 1 monitoring, in con-
trast with Level 2 monitoring, Yori does not receive missed
tests alerts and Helms does not have scheduled testing. Helms
testified that he switched from Level 2 to Level 1 because it
was his understanding that dates and times for testing could not
be changed on Level 2. He felt that Level 1 would work better
under the parenting agreement, because dates when the child
would be with him would not stay the same all year long.
Yori testified that through the summers of 2017 and 2018,
Helms routinely missed Soberlink testing at 2 p.m. on Fridays.
According to Helms, he tested at all required times when
the child was with him. But if his parenting time ended at 3
p.m., he would not take the 2 p.m. test unless he had to pick
the child up for some reason. He admitted there was no lan-
guage in the decree excusing him from taking a test at 2 p.m.
on Fridays.
The decree gave Yori “final say” regarding educational
and religious issues. Yori informed Helms that she wanted
the child to participate in religious confirmation preparation,
but she testified that Helms expressed unwillingness to allow
the child to participate. Yori testified that because the child
was struggling in school, his counselor and teacher devised a
plan to help him which included arriving at school 30 minutes
early. But of the 11 sessions during Helms’ parenting time, the
child attended only 3. Yori testified that in April 2018, during
Helms’ parenting time, the child was suspended from school
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YORI v. HELMS
Cite as 307 Neb. 375
and Helms did not inform her of a meeting with the principal
and vice principal. Helms did not respond to Yori’s request
inquiring of the consequences for the child.
Yori had concerns about the child’s attendance at athletic
events. She testified that in the summer of 2017, Helms took
the child to only 3 of 18 practices. She felt that Helms acted
in a retaliatory fashion when he removed the child from an
athletic team. Even after the court entered the temporary order
allowing Yori to transport the child to and from events, Helms
attempted to transport the child.
Order of Contempt
On May 1, 2019, the court entered an order of contempt.
The court found that Helms willfully, intentionally, and contu-
maciously violated multiple provisions of the decree, includ-
ing the obligation to not consume alcohol, to continue with
Soberlink as ordered, and to comply with the parenting respon-
sibilities and cooperation language. It also found that it had the
authority to modify the decree as it related to the child in order
to remedy the contempt. The court committed Helms to jail for
21 days, but suspended execution of the sentence as long as
Helms complied with several terms of the order. Among others,
the terms included:
•  refraining from consuming alcohol through December 31,
2022;
•  refraining from attending any practices for the child;
•  allowing Yori or her designee to pick the child up from
Helms’ house for various specified reasons and return the
child following the event; and
•  giving Yori “final say” on “all athletic issues and sports
participation, religious activities, school activities, medical
issues, and all other issues regarding the minor child’s partici-
pation, education and development.”
The court ordered that Helms comply with the purge plan for
36 months.
On May 29, 2019, Helms filed a notice of appeal. The first
appeal is docketed as case No. S-19-520.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
YORI v. HELMS
Cite as 307 Neb. 375
Motion for Commitment
In July 2019, while the first appeal was pending, Yori moved
for Helms’ commitment pursuant to the order of contempt. An
amended motion additionally requested attorney fees and “such
further and equitable relief as this Court deems just and equi-
table including, but not limited to, a modification of [Helms’]
parenting time.”
Yori alleged that Helms violated the decree of dissolution in
numerous ways. She alleged Helms failed to timely reimburse
her for the child’s health care expenses, disparaged her in the
child’s presence, failed to promptly notify her of orthodontic
appointments scheduled for the child, scheduled the child’s
orthodontic appointments during times that conflict with the
child’s other activities, and scheduled an appointment for the
child regarding an ankle injury without informing Yori of
the time.
Yori also alleged that Helms failed to abide by multiple pro-
visions of the order of contempt. Specifically, she alleged that
Helms refused to allow Yori to transport the child to and from
athletic events, refused to commence counseling to address the
family dynamic, refused to allow Yori to speak with the child
on the telephone, and failed to reimburse Yori for half of the
cost of the child’s athletic activities.
During a hearing, Yori testified that it was important that she
transport the child after events because Helms had removed the
child from events early. Yori testified that a recurring problem
was Helms’ demanding to transport the child. On one occa-
sion, Yori arrived at Helms’ residence to pick the child up for
a weightlifting session, but the child was still sleeping even
though Yori communicated with Helms about the session ear-
lier that morning.
Yori also presented evidence concerning Helms’ failure to
pay his share of expenses. Despite Yori’s sending Helms a
request for payment with attachments, including the explana-
tion of benefits, Helms had not paid. Helms testified that he
notified Yori that the explanation of benefits was not attached,
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YORI v. HELMS
Cite as 307 Neb. 375
but that she did not respond. He said he would pay his share
if he received those documents. Yori also requested payment
for athletic expenses, including hotel charges for out-of-state
tournaments. But she had not received payment for anything
sent in a July 8, 2019, email. Helms did not have any evidence
that he paid Yori for any expenses she had incurred since May
1, 2019.
On May 14, 2019, Yori sent Helms a copy of the court’s
order requiring him to immediately commence counseling with
a mutually agreed-upon provider and included the names of
three counselors. On May 28, she sent another email stating
that she had not received any communication regarding which
counselor Helms had selected. Helms testified that he made an
appointment but had not seen a counselor yet.
Yori claimed that Helms refused to allow her to speak to the
child on May 1 and 12, 2019. According to Helms, Yori called
to say that the child did not answer and to ask Helms to have
the child call her. Helms was not home at the time, so he sent
the child a text, told him to call Yori, and “left it at that.” On
one occasion, Helms spoke with the child on the telephone for
38 minutes, exceeding his 20-minute telephone call limit, but
he did not realize he had done so because he “usually do[es]n’t
keep track” when speaking to the child.
Order of Commitment
On August 1, 2019, the court entered an order of commit-
ment. It committed Helms to the Lancaster County Department
of Corrections for 21 days.
The next day, the court entered a purge order. It ordered
Helms to serve his 21-day commitment, but stated that he shall
be released from custody so long as he met the following terms:
paid $513.74 for past-due athletic expenses, paid $537.34 for
past-due medical expenses, and paid $5,000 in attorney fees.
The purge order contained additional terms. The court
ordered that Helms immediately commence counseling per the
May 1, 2019, order of contempt. It declared that Yori “shall
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YORI v. HELMS
Cite as 307 Neb. 375
have initial and final say on all medical, dental and ortho­
dontic appointments for the minor child.” The order stated
that Helms
is allowed to attend such appointments but shall not
schedule such appointments nor transport the minor child
to or from such appointments. [Yori] shall be contacted in
the event [Helms] believes any medical, dental or ortho­
dontic issue has arisen. [Yori] will be responsible for
making any decision as to whether an appointment is nec-
essary. [Helms] is granted authority only to take the minor
child for emergent situations to the emergency room or
Urgent Care during his parenting time. In the event he
does so, he shall immediately notify [Yori] of the same
including the reason for the emergent visit, and the loca-
tion to which he will be taking the minor child.
The court reduced Helms’ parenting time from a “7/7” sched-
ule to a “10/4” schedule, which it stated it was doing “[t]empo-
rarily” until December 19 or until further order of the court.
The court ordered Helms to not denigrate Yori in the child’s
presence, to direct the child to do as Yori has decided, to sup-
port Yori’s decisions related to the child, and to “not sit silently
with regard to those decisions.”
The court set the matter for a review hearing on December
19, 2019. The court explained that the purpose of the review
hearing would be to allow Helms to prove his compliance
with the court’s orders and to “adduce evidence as to the best
interest of the minor child to support [Helms’] request for rein-
statement of the original parenting time schedule.” The court
stated that it would then address whether changes should be
made to the 10/4 parenting time schedule. During the hearing,
the court stated that if Helms was in compliance, the parent-
ing schedule would “likely” go back to the 7/7 schedule. The
court ordered that all provisions of prior court orders, except
those specifically modified, shall remain in full force and
effect. The court ordered Helms to comply with the purge
plan for 36 months and provided that if he failed to do so, “he
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YORI v. HELMS
Cite as 307 Neb. 375
shall be immediately detained for a period of 21 days in the
Lancaster County jail.”
On September 3, 2019, Helms filed a notice of appeal, stat-
ing his intent to appeal from the August 2 purge order. The
second appeal is docketed as case No. S-19-840.
ASSIGNMENTS OF ERROR
In the first appeal, Helms assigns several errors to the dis-
trict court’s parenting plan modifications which he claims went
beyond what was reasonably necessary and were punitive and
therefore contrary to the law and the evidence. Specifically, he
challenges (1) the “transportation provisions” of the original
mediated parenting plan, (2) the modifications banning him
from attending the child’s athletic and piano practices, and
(3) the “final say provisions” of the original mediated parent-
ing plan.
In the second appeal, Helms assigns that the court erred by
(1) reducing his parenting time by 43 percent, (2) making par-
enting plan modifications that were not reasonably necessary to
enforce Yori’s rights, and (3) finding he was in arrears on his
obligation to pay half of the child’s athletic expenses.
STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanc­tion to be imposed are reviewed for
abuse of discretion. 1
[2] Whether relief entered in a proceeding to enforce a par-
ent’s rights is reasonably necessary to enforce such rights is
reviewed for an abuse of discretion. 2
1
Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020).
2
See Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).
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YORI v. HELMS
Cite as 307 Neb. 375
[3] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 3
ANALYSIS
First Appeal
The court modified the parenting plan after finding Helms
to be in contempt. Helms does not contest the finding of con-
tempt. Nor does he dispute the court’s authority to modify the
decree and parenting plan. Rather, he challenges particular
modifications included in the order of contempt and purge
plan. He claims that those modifications were punitive and
were not reasonably necessary.
[4,5] Contempt proceedings may both compel obedience
to orders and administer the remedies to which the court has
found the parties to be entitled. 4 The sanction in a civil con-
tempt proceeding is both remedial and coercive. 5 In a civil con-
tempt proceeding, for the sanction to retain its civil character,
the contemnor must, at the time the sanction is imposed, have
the ability to purge the contempt by compliance and either
avert punishment or, at any time, bring it to an end. 6
[6] A court’s continuing jurisdiction over a dissolution decree
includes the power to provide equitable relief in a contempt
proceeding. 7 Neb. Rev. Stat. § 42-364.15(1) (Reissue 2016)
explicitly authorizes a court to “enter such orders as are rea-
sonably necessary to enforce rights of either parent including
the modification of previous court orders relating to parenting
time, visitation, or other access” and to “use contempt powers
to enforce its court orders relating to parenting time, visitation,
or other access.”
3
Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).
4
Mart. v. Martin, supra note 2.
5
See Braun v. Braun, supra note 1.
6
Id.
7
Martin v. Martin, supra note 2.
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YORI v. HELMS
Cite as 307 Neb. 375
Helms argues that certain modifications were punitive rather
than coercive and that they were not reasonably necessary to
protect Yori’s rights under the parenting plan. He challenges
as punitive the transportation provisions, the ban on his attend­
ance at athletic and piano practices, and the final say provi-
sions. He argues that the transportation provisions were puni-
tive because the purpose was to ensure that the child make it to
all of his activities; thus, it was unnecessary to give Yori con-
trol over transportation from the event. He also argues that they
are punitive because there is nothing he can do to avoid them
through his conduct—they are unconditional. Helms argues
that there was no factual or remedial justification to ban him
from attending the child’s athletic and musical practices or
to deprive him of final say over the child’s participation in
musical activities or any say regarding participation in athletic
events. He contends that the alcohol and Soberlink testing pro-
visions were not reasonably necessary to protect Yori’s rights
under the parenting plan.
In characterizing the modifications as punitive, Helms
appears to be trying to impose a “least remedial measure” rule.
But that is not consistent with statute. Section 42-364.15(1)
empowers the court to solve the problem. Rather than a sanc-
tion, the modifications here were remedial measures to gain
compliance. While it is possible that a modification could be
so extreme that it qualifies as a sanction, the modifications here
do not rise to that level.
[7] Where a situation exists that is contrary to the principles
of equity and which can be redressed within the scope of judi-
cial action, a court of equity will devise a remedy to meet the
situation. 8 Here, the court had the equitable authority, within
the contempt proceeding, to modify the decree and parenting
plan to remedy issues that led to contempt.
[8] The evidence showed that the remedial modifications
were reasonably related to behavior prompting the contempt
8
Id.
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YORI v. HELMS
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proceeding. Yori adduced evidence that Helms violated the
parenting plan on numerous occasions and in numerous ways.
Where credible evidence is in conflict on a material issue of
fact, the appellate court considers, and may give weight to,
the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another. 9
There was evidence that Helms expressed an unwillingness to
allow the child to participate in some events, failed to trans-
port him to educational meetings and practices, and had him
depart early from other events. The court also heard testimony
about Helms’ intoxication and inappropriate behavior at the
child’s athletic games and practices. And Yori testified that
he had been confrontational. We conclude the modifications
about which Helms complains were part of the equitable relief
that the court is authorized to provide. 10 We find no abuse
of discretion.
Second Appeal
[9] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 11 This appeal presents
two distinct jurisdictional issues: whether the district court pos-
sessed jurisdiction to further modify aspects of the parenting
plan and whether Helms has appealed from a final order.
[10,11] Helms argues that the district court did not have
jurisdiction to further modify the final say provisions of the
parenting plan while an appeal concerning the final say provi-
sions was pending. Generally, once an appeal has been per-
fected, the trial court no longer has jurisdiction. 12 But under
Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court retains
jurisdiction for certain matters. Section 42-351(2) provides:
9
Id.
10
See id.
11
Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774
(2018).
12
Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
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YORI v. HELMS
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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 . . .
or other appropriate orders in aid of the appeal process.
Such orders shall not be construed to prejudice any party
on appeal.
A trial court’s jurisdiction under § 42-351(2) during the pend­
ency of an appeal is properly characterized as jurisdiction in
aid of the appeal process. 13
A trial court’s jurisdiction to modify a decree regarding
an issue which is pending appeal is not unlimited. Section
42-351(2) 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. 14 In the first appeal, Helms opposed modifi-
cations to provisions regarding transportation, the ban on his
attendance at athletic and piano practices, the final say provi-
sions, and his alcohol use and testing. Following the filing of
the notice of appeal, the district court held further hearings,
but it did not make new determinations about the identical
issues being appealed. Rather, in the August 2019 purge order,
the court set forth terms for Helms to comply with in order to
be released from jail. This falls within the court’s continuing
jurisdiction to provide for such orders regarding parenting time
or other access.
[12,13] Yori contends that the August 2019 order is not a
final, appealable order. For an appellate court to acquire juris-
diction of an appeal, the party must be appealing from a final
order or a judgment. 15 A judgment is the final determination
13
See Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
14
Burns v. Burns, supra note 12.
15
State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 701 (2020).
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of the rights of the parties in an action. 16 Every direction of the
court made or entered in writing and not included in a judg-
ment is an order. 17 While all judgments 18 not incorrectly desig-
nated as such 19 are appealable, an order may be appealed only
if a statute expressly makes the order appealable or the order
falls within the statutory definition of a final order. 20
[14] Under our final order statute, 21 to be a final order
subject to appellate review, the lower court’s order must (1)
affect a substantial right and determine the action and prevent
a judgment, (2) affect a substantial right and be made during a
special proceeding, (3) affect a substantial right and be made
on summary application in an action after a judgment is ren-
dered, or (4) deny a motion for summary judgment which was
based on the assertion of sovereign immunity or the immunity
of a government official. 22 Proceedings regarding modifica-
tion of a marital dissolution are special proceedings. 23 And we
have described a contempt order as one made upon a summary
application in an action after judgment. 24 Here, our focus is
not upon the procedural classification under § 25-1902, but,
rather, whether the order affected a substantial right of one or
more parties. 25
[15,16] The inquiry of whether a substantial right is
affected focuses on whether the right at issue is substantial
and whether the court’s order has a substantial impact on that
16
Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018).
17
State v. Fredrickson, supra note 15.
18
See § 25-1301(1) (defining judgment).
19
See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).
20
See State v. Fredrickson, supra note 15.
21
See Neb. Rev. Stat. § 25-1902 (Supp. 2019).
22
See State v. Fredrickson, supra note 15.
23
Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).
24
See McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
25
See State v. Fredrickson, supra note 15.
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right. 26 Whether an order affects a substantial right depends on
whether it affects with finality the rights of the parties in the
subject matter. 27 An order affects a substantial right when the
right would be significantly undermined or irrevocably lost by
postponing appellate review. 28
[17] The duration of an order is relevant to whether it affects
a substantial right. 29 In several cases, we have determined that
orders temporarily affecting a parent’s custodial, visitation, or
educational rights were not final. 30 With respect to a visitation
order in a guardianship proceeding, we stated that where a
final guardianship hearing was scheduled for 3 weeks later, an
order that effectively denied visitation until that hearing did not
affect a substantial right because “the length of time that [the
mother’s] relationship with [the child] was to be disturbed was
brief, and the order was not a permanent disposition.” 31
Here, the court did not intend its order to be a permanent
disposition. The order stated in part:
IT IS FURTHER ORDERED that this matter be set
for review hearing on Thursday, December 19, 2019 at
1:30 p.m. At such hearing, [Helms] shall be allowed 45
minutes to present evidence. [Yori] shall be awarded a
like amount of time. The purpose of the review hearing
shall be to allow [Helms] to prove his compliance with
the Court’s orders and adduce evidence as to the best
interest of the minor child to support [Helms’] request
for reinstatement of the original parenting time schedule.
26
See id.
27
Id.
28
Id.
29
Tilson v. Tilson, supra note 23.
30
See, id.; In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533
(2013); Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009); Gerber
v. Gerber, 218 Neb. 228, 353 N.W.2d 4 (1984).
31
In re Guardianship of Sophia M., 271 Neb. 133, 139, 710 N.W.2d 312, 317
(2006).
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The Court notes it is specifically interested in [Helms’]
compliance with the Court’s orders and the information
from Dr. Williams. The Court will address what changes,
if any, should be made to the 10/4 parenting time sched-
ule as in the best interest of the minor child.
And the court orally advised that it was changing Helms’ par-
enting time “[t]emporarily” and that the “temporary order”
would be in effect until December 19, 2019. The court antici-
pated that the parenting schedule would “likely” revert to the
7/7 schedule if Helms complied with the purge order.
That the court planned to revisit the parenting time schedule
in 41⁄2 months demonstrates the temporary nature of the order.
We recognize that the length of time involved here is perhaps
on the outer edge of what would be considered a temporary
disturbance, but we cannot say the reduction in parenting time
from a 7/7 schedule to a 10/4 schedule for 41⁄2 months affects
a substantial right.
Because the order did not affect a substantial right of Helms,
it is not a final order that may be appealed under § 25-1902.
We dismiss the second appeal for lack of jurisdiction.
CONCLUSION
In the first appeal, we conclude that the court’s modifica-
tions were part of the equitable relief that it had the authority
to provide to remedy issues that led to contempt. We find no
abuse of discretion and affirm the district court’s judgment.
Because the second appeal was not taken from a final order, we
dismiss it for lack of jurisdiction.
Judgment in No. S-19-520 affirmed.
Appeal in No. S-19-840 dismissed.