Belitz v. Belitz ( 2014 )

Decisions of the Nebraska Court of Appeals
716 21 NEBRASKA APPELLATE REPORTS
Kathleen Belitz, now known as K athleen Monaco,
appellee, v. John F. Belitz, Jr., appellant.
___ N.W.2d ___
Filed January 28, 2014. No. A-12-461.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. 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 the trial court’s (1) resolution
of issues of law is reviewed de novo, (2) factual findings are reviewed for clear
error, and (3) determinations of whether a party is in contempt and of the sanction
to be imposed are reviewed for abuse of discretion.
3. 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 jurisdic-
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
4. Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction
of an appeal, there must be a final order entered by the court from which the
appeal is taken.
5. ____: ____. Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the three types of
final orders which may be reviewed on appeal are (1) an order which affects a
substantial right in an action and which in effect determines the action and pre-
vents a judgment, (2) an order affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right made on summary appli-
cation in an action after a judgment is rendered.
6. Child Custody. A proceeding regarding a child custody determination is consid-
ered a special proceeding under Nebraska law.
7. Words and Phrases. A substantial right is an essential legal right, not a mere
technical right.
8. Final Orders. When an order affects the subject matter of the litigation, by
diminishing a claim or defense available to a party, the order affects a substan-
tial right.
9. Parental Rights: Final Orders. Whether a substantial right of a parent has been
affected by an order is dependent upon both the object of the order and the length
of time over which the parent’s relationship with the child may reasonably be
expected to be disturbed.
10. Child Custody: Final Orders. Where child custody is modified on a permanent
basis, the order clearly affects a substantial right.
11. 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 fewer than all the issues is an interlocutory order and is
not a final order for the purpose of an appeal.
Decisions of the Nebraska Court of Appeals
BELITZ v. BELITZ 717
Cite as 21 Neb. App. 71612. Contempt: Words and Phrases. When a party to an action fails to comply with
a court order made for the benefit of the opposing party, such act is ordinarily
a civil contempt, which requires willful disobedience as an essential element.
“Willful” means the violation was committed intentionally, with knowledge that
the act violated the court order.
13. Contempt: Proof. Outside of statutory procedures imposing a different standard,
it is the complainant’s burden to prove civil contempt by clear and convinc-
ing evidence.
14. Jurisdiction: Appeal and Error. Once an appeal has been perfected, the trial
court from which the appeal was taken no longer has jurisdiction.
15. Jurisdiction: Time: Appeal and Error. A party’s failure to timely appeal from a
final order prevents an appellate court from exercising jurisdiction over the issues
raised and decided in that order.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed in part, and in part dismissed.
Joan Watke Stacy for appellant.
Joni Visek for appellee.
Moore, Pirtle, and Bishop, Judges.
Moore, Judge.
John F. Belitz, Jr., appeals following three orders of the
district court for Douglas County which, among other things,
modified the custody arrangement in the parties’ decree of
dissolution and awarded custody of the parties’ youngest
daughter, Katherine Belitz, to Kathleen Belitz, now known as
Kathleen Monaco. John asserts the district court committed a
number of errors in its orders, including in modifying custody,
allowing the parties’ older daughters to testify at trial, improp-
erly calculating child support, awarding Kathleen attorney
fees, failing to find Kathleen in contempt, and entering an
order releasing garnished funds after John had filed his notice
of appeal.
For the reasons that are set out in our analysis below, we
find that we do not have jurisdiction to address John’s argu-
ments related to the modification order or the garnishment pro-
ceedings. We also conclude that the district court did not abuse
its discretion when it declined to find Kathleen in contempt of
previous orders.
Decisions of the Nebraska Court of Appeals
718 21 NEBRASKA APPELLATE REPORTS
I. FACTUAL BACKGROUND
This protracted custody dispute now makes its fourth appear-
ance in this court. Due to the extensive history of this case, we
will not recount the entire factual background in this opinion,
but instead focus on the facts pertinent to this decision. For
a full account of the proceedings in this case, we direct the
reader to our three previous opinions. See Belitz v. Belitz, 8
Neb. App. 41, 587 N.W.2d 709 (1999); Belitz v. Belitz, No.
A-02-973, 2003 WL 21648118 (Neb. App. July 15, 2003) (not
designated for permanent publication); and Belitz v. Belitz, 17
Neb. App. 53, 756 N.W.2d 172 (2008).
During their marriage, John and Kathleen had three daugh-
ters: the first daughter, born in October 1994; the second daugh-
ter, born in March 1996; and the third daughter, Katherine,
born in July 1997. After the parties’ divorce in 1998, Kathleen
moved to Chicago, Illinois, and is now remarried with four
additional children. Following their divorce, John and Kathleen
have engaged in substantial litigation over custody and parent-
ing time.
In the decree of dissolution, Kathleen was originally granted
custody and given permission to remove the parties’ three
daughters to Illinois. She later lost her rights as custodial par-
ent after the district court granted John’s application to modify
in July 2002. After that modification, the parties’ daughters
returned to Omaha, Nebraska, and have been living with John
since. Kathleen has remained living in Chicago with her sub-
sequent family.
The present appeal relates to a series of events that began
during Kathleen’s parenting time with the parties’ three
daughters in the summer of 2010. Under the custody order
in effect at the time, the parties’ daughters frequently trav-
eled to Chicago to visit Kathleen. At some point during that
summer, the parties’ youngest child, Katherine, believed that
John had agreed to allow her to move to Chicago to live
with Kathleen. John disagreed that he had given Katherine
permission to move to Chicago to live with her mother, but
stated that he agreed to consider Katherine’s wishes if he and
Kathleen could come to agreement on a number of matters.
However, communication between John and Kathleen soon
Decisions of the Nebraska Court of Appeals
BELITZ v. BELITZ 719
Cite as 21 Neb. App. 716broke down and no mutual agreement was reached by the end
of the summer.
At the beginning of August 2010, the two older daughters
returned to Omaha after being with Kathleen as scheduled,
but Katherine did not. Upon their return, the older daughters
informed John that Katherine was not coming back to Omaha.
On August 11, John initiated contempt proceedings against
Kathleen by filing an application for an order to show cause.
In his application, John alleged that Kathleen should be found
to be in contempt of court because she had not paid his attor-
ney fees as mandated by the previous modification order and
because she failed to return Katherine to Omaha within the
time specified by the court order. On August 12, the district
court signed an order to show cause and an ex parte order
requiring Kathleen to return Katherine to Omaha within 24
hours of service of the order; however, the ex parte order was
not filed until August 30. Kathleen filed a motion for modifica-
tion on August 13, seeking custody of Katherine.
Despite four attempts, the sheriff’s office of DuPage,
Illinois, was not able to personally serve Kathleen with the ex
parte order. This prompted John to file a motion for alternate
service and for an ex parte order, requesting the district court
order Katherine’s return. In response, Kathleen filed a motion
for temporary allowances, asking the court to award her tem-
porary custody of Katherine. On August 30, 2010, the district
court granted John’s motion for alternate service, issued an
ex parte order commanding Kathleen to return Katherine to
Omaha by 6 p.m. on September 1, and issued an order requir-
ing Kathleen to appear and show cause as to why she should
not be held in contempt. The hearing on the order to show
cause was later continued until the trial on Kathleen’s com-
plaint to modify. Kathleen returned Katherine to Omaha on
September 1. After her return, Katherine continued living with
John, completing the eighth grade and beginning her freshman
year of high school.
Trial was held on August 22 and September 23, 2011.
During the trial, the parties adduced evidence regarding the
complaint to modify custody as well as the order to show
cause regarding Kathleen’s alleged contempt. On March 2,
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2012, the district court issued its order of modification, find-
ing a “sufficient change in circumstance” and finding that
Katherine’s best interests required that Kathleen be awarded
custody. In its order, the court also noted that it did not find
awarding Kathleen custody of Katherine constituted a removal
as defined under Nebraska law, but stated that the require-
ments for removal would have been met. In addition to grant-
ing Kathleen custody of Katherine, the district court granted
John the same parenting time rights as Kathleen received
when she was the noncustodial parent and ordered John to pay
$431.26 per month to Kathleen in child support and $7,500
of Kathleen’s attorney fees. John did not directly appeal from
that order.
Following the modification order, John apparently attempted,
unsuccessfully, to electronically file a motion for a new trial.
However, the court noted no evidence was adduced to support
this assertion. Thus, the court denied John’s request to con-
sider John’s alleged electronically filed motion for new trial
and would not allow John to submit a motion for new trial out
of time.
Because the district court’s modification order did not
address his contempt application, John filed a pleading styled
as “Motions in the Alternative” on April 19, 2012. In this
single filing, John included three alternative motions: (1)
a motion for “entry of a final order or judgment to include
final determinations and findings as to all the claims between
the parties”; (2) a motion requesting an “express finding that
although not all claims between the parties has [sic] been
made there is no just reason for delay and an express direc-
tion for the entry of judgment”; and (3) a motion for “correc-
tion of the record.” The basis of John’s argument in this filing
was that the modification order was not a final, appealable
order because it did not address the two contempt issues.
Thus, he requested that the district court enter a final order
on the contempt issues, certify a final judgment pursuant to
Neb. Rev. Stat. § 25-1315 (Reissue 2008), or utilize its statu-
tory power under Neb. Rev. Stat. § 25-2001 (Reissue 2008) to
correct the record and find that his motion for new trial was
timely filed.
Decisions of the Nebraska Court of Appeals
BELITZ v. BELITZ 721
Cite as 21 Neb. App. 716On April 20, 2012, the district court entered an order find-
ing that Kathleen was not in contempt of court for failing to
pay John’s attorney fees as required by the prior modification
order. The court concluded that Kathleen did not have the abil-
ity to make the payments as required by the order and, there-
fore, did not willfully disobey the order.
On May 7, 2012, John filed another motion requesting that
the district court enter an amended order resolving all issues
that were presented to the court. In this motion, John asserted
that the district court had not resolved the issue of whether
Kathleen had violated the previous order of modification
by refusing to send Katherine back to Omaha at the end of
Kathleen’s summer parenting time in 2010. John requested
that the district court enter an amended order containing find-
ings from all issues before the court. After a hearing on this
motion on May 11, the court entered an order on May 22,
finding that Kathleen was not in contempt for failing to return
Katherine at the conclusion of Kathleen’s parenting time in
2010. The court noted that the order resolved all issues raised
at trial.
To recover the attorney fees John was ordered to pay in
the March 2, 2012, modification order, Kathleen’s attorney
began garnishment proceedings. On May 11, the district court
entered an order to deliver nonexempt funds from John’s bank
to the court for payment to Kathleen’s attorney. On May 17,
John filed a motion for an injunction to prohibit Kathleen
from executing on the judgment, to vacate the order to deliver
nonexempt funds, and to demand the return of the funds
delivered. The court denied this motion in an order filed on
May 29.
On May 22, 2012, John filed a notice of intention to appeal
in which he indicated that he was appealing from the orders
dated March 2, 2012; April 20, 2012; and May 22, 2012.
II. ASSIGNMENTS OF ERROR
In his brief, John assigns and argues nine errors. However,
because of our conclusion regarding jurisdiction, we discuss
only two of these errors in order to resolve this appeal. John
contends, restated, that the district court erred in not finding
Decisions of the Nebraska Court of Appeals
722 21 NEBRASKA APPELLATE REPORTS
Kathleen in contempt for either (1) failing to pay attorney
fees from a 2007 modification order or (2) failing to return
Katherine to Omaha at the end of her summer parenting time
in 2010.
III. STANDARD OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law. Sutton
v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013).
[2] 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 the trial court’s (1) resolution of issues of law is
reviewed de novo, (2) factual findings are reviewed for clear
error, and (3) determinations of whether a party is in contempt
and of the sanction to be imposed are reviewed for abuse of
discretion. Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d
867 (2012).
IV. ANALYSIS
1. Jurisdiction Over Modification Order
[3,4] 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, irrespective of whether
the issue is raised by the parties. Sutton v. Killham, supra. For
an appellate court to acquire jurisdiction of an appeal, there
must be a final order entered by the court from which the
appeal is taken. Selma Development v. Great Western Bank,
285 Neb. 37, 825 N.W.2d 215 (2013).
Without noting any distinction in the various orders,
Kathleen argues that we are without jurisdiction to hear this
entire appeal. Citing prior case law which establishes that
proceedings regarding modification of a marital dissolution
and custody determinations are considered special proceed-
ings, Kathleen argues the March 2, 2012, modification order
affecting child custody was a final order from which John had
30 days to appeal. See Steven S. v. Mary S., 277 Neb. 124,
760 N.W.2d 28 (2009). Because John did not file his notice
of appeal until May 22, Kathleen argues, it was untimely and
Decisions of the Nebraska Court of Appeals
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Cite as 21 Neb. App. 716should be dismissed. See Neb. Rev. Stat. § 25-1912(1) (Reissue
2008) (appeal must be filed within 30 days of entry of judg-
ment, decree, or final order).
[5,6] Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the
three types of final orders which may be reviewed on appeal
are (1) an order which affects a substantial right in an action
and which in effect determines the action and prevents a judg-
ment, (2) an order affecting a substantial right made during
a special proceeding, and (3) an order affecting a substantial
right made on summary application in an action after a judg-
ment is rendered. As Kathleen correctly states in her brief, a
proceeding regarding a child custody determination is consid-
ered a special proceeding under Nebraska law. See Steven S. v.
Mary S., supra.[7-10] Because this child custody proceeding was a special
proceeding, we move on to consider whether a substantial right
was affected. A substantial right is an essential legal right, not a
mere technical right. Id. When an order affects the subject mat-
ter of the litigation, by diminishing a claim or defense avail-
able to a party, the order affects a substantial right. Id. Whether
a substantial right of a parent has been affected by an order is
dependent upon both the object of the order and the length of
time over which the parent’s relationship with the child may
reasonably be expected to be disturbed. McCaul v. McCaul, 17
Neb. App. 801, 771 N.W.2d 222 (2009). Where child custody
is modified on a permanent basis, the order clearly affects a
substantial right. Id. Because the district court’s order of modi-
fication in this case permanently awarded Kathleen custody of
Katherine, John’s substantial right as a custodial parent was
affected. Thus, the March 2, 2012, order of modification was a
final and appealable order. See id.[11] However, John contends that the modification order was
not a final and appealable order because it did not dispose of
all the issues that were presented to the court during the trial.
Specifically, John argues there was no final judgment until the
district court entered its order on the final contempt issue on
May 22, 2012, which resolved the last remaining issue brought
by the parties. To support his position, John directs us to case
law which holds that when multiple issues are presented to a
Decisions of the Nebraska Court of Appeals
724 21 NEBRASKA APPELLATE REPORTS
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
fewer than all the issues is an interlocutory order and is not a
final order for the purpose of an appeal. See Wagner v. Wagner,
275 Neb. 693, 749 N.W.2d 137 (2008). Wagner concluded
that a trial judge’s letter to the parties’ attorneys following a
divorce trial did not constitute a final order because not all
issues were determined in the letter, such as the actual disso-
lution of the marriage. The case before us involves a custody
modification action filed by one party and a contempt action
filed by the other, and it therefore presents a jurisdictional mat-
ter not addressed in Wagner.
We conclude that we do not have jurisdiction to address
John’s appeal as it relates to the modification order. Our
decision in Michael B. v. Donna M., 11 Neb. App. 346, 652
N.W.2d 618 (2002), overruled on other grounds, Smeal Fire
Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d
848 (2010), effectively determines this outcome. In that case,
the district court held a trial on the father’s motion for con-
tempt on the same day as his motion for change of custody.
Following the trial, the district court entered an order in
which it found the mother in contempt for failing to allow the
father’s visitation and also took legal custody of the couple’s
minor child. Id. The district court also ordered a further hear-
ing to determine the appropriate sanctions for the mother’s
contempt, making the contempt portion of the order not final.
Id. After that hearing, the court issued a subsequent order with
sanctions against the mother. Id. The mother filed a timely
notice of appeal from each order. Id.In that case, we consolidated the two appeals and deter-
mined that the order taking legal custody of the minor child
was a final, appealable order even though the contempt portion
of the order was not final. We reasoned that the trial court was
presented with two separate issues and simply chose to address
both at the same trial. Thus, the order that took legal custody
of the minor child was a final, appealable order because it was
an order affecting a substantial right made during a special
Decisions of the Nebraska Court of Appeals
BELITZ v. BELITZ 725
Cite as 21 Neb. App. 716proceeding. Id. The fact that the contempt portion of the order
was not final was of no consequence. Id.In the present case, Kathleen’s application to modify cus-
tody of Katherine and John’s application for an order to show
cause were two separate pleadings and presented separate
issues. Kathleen sought new relief in her cause of action
to change custody of Katherine. When filing his contempt
action against Kathleen, John did not seek new relief; rather,
he sought to enforce relief he had previously been granted.
The district court heard evidence on both issues at the same
hearing. On March 2, 2012, the court issued an order which
disposed of all issues that were raised in Kathleen’s applica-
tion to modify. Thus, that order was a final, appealable order.
Because John did not file his notice of appeal until May 22,
outside the 30-day requirement in § 25-1912(1), we are with-
out jurisdiction to address the portion of his appeal that relates
to that order.
2. Jurisdiction Over Contempt Orders
We conclude that we have jurisdiction to address John’s
arguments as they relate to both of the district court’s orders
on his contempt application. Although the district court entered
two separate orders related to the issues John raised in his
application, he was not required to separately appeal from each
order. Because John’s application contained two discrete claims
of Kathleen’s alleged contempt, the contempt issues were not
appealable until the court disposed of all claims raised in
John’s application. See, Becerra v. United Parcel Service, 284
Neb. 414, 822 N.W.2d 327 (2012); Huffman v. Huffman, 236
Neb. 101, 459 N.W.2d 215 (1990) (when multiple issues are
presented to trial court for simultaneous disposition in same
proceeding and court decides some of issues, while reserving
some issue or issues for later determination, court’s determina-
tion of fewer than all issues is interlocutory order and is not
final order for purpose of appeal).
3. Contempt Findings
John argues that the district court erred when it failed to
find Kathleen in contempt for violating the prior modification
Decisions of the Nebraska Court of Appeals
726 21 NEBRASKA APPELLATE REPORTS
order. As stated above, John raised two separate issues in his
application for an order to show cause: (1) Kathleen’s failure
to pay the attorney fee award entered in his favor from the
prior modification proceeding and (2) Kathleen’s failure to
timely return Katherine to Omaha following summer parenting
time in 2010.
[12,13] Before separately addressing each of these issues in
our analysis below, we set out some general principles regard-
ing contempt proceedings. When a party to an action fails to
comply with a court order made for the benefit of the opposing
party, such act is ordinarily a civil contempt, which requires
willful disobedience as an essential element. “Willful” means
the violation was committed intentionally, with knowledge
that the act violated the court order. Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012). Outside of statutory
procedures imposing a different standard, it is the complain-
ant’s burden to prove civil contempt by clear and convincing
evidence. Id.(a) Kathleen’s Failure to Pay Attorney Fee
Award From Prior Modification Order
Following its order of modification, the district court first
addressed Kathleen’s failure to pay the $10,000 attorney fee
award entered against her from the 2007 modification order.
The court entered an order on April 20, 2012, in which it
declined to find Kathleen in contempt for failure to pay that
award. In so ruling, the court noted that because Kathleen did
not have the financial means to satisfy the entire award, her
failure to pay the award cannot be considered willful contempt
of court.
We agree with the trial court’s conclusion. After our review
of the record, we find that Kathleen has been making con-
sistent, albeit small, monthly payments against this attorney
fee award. Kathleen also testified at trial that she struggles to
make these payments because she is a stay-at-home mother
caring for her four children from her subsequent marriage.
Although her payments have been small, and interest contin-
ues to accrue on this amount, we conclude that Kathleen is
attempting to fulfill her obligation to pay. We further note that
Decisions of the Nebraska Court of Appeals
BELITZ v. BELITZ 727
Cite as 21 Neb. App. 716the 2007 modification order does not contain any time limita-
tion for paying the attorney fee award. Therefore, her failure
to satisfy the entire award was not willful disobedience of
the 2007 order. The district court did not abuse its discretion
when it found that Kathleen was not in contempt of court. This
assigned error is without merit.
(b) Kathleen’s Failure to Return Katherine
to Omaha After 2010 Parenting Time
At the May 11, 2012, hearing, the district court determined
that Kathleen did not commit willful contempt relating to
Katherine’s return to Omaha after the 2010 summer parent-
ing time. An order memorializing this ruling was entered on
May 22, but no specific findings of fact were made. John
takes issue with that decision, contending that the evidence
at trial was sufficient to sustain a finding that Kathleen was
in contempt.
As we noted at the outset of this opinion, John’s initial
willingness to consider Katherine’s move to Chicago to live
with her mother seems to have been the triggering event for
this modification proceeding. According to John’s testimony,
however, Katherine misconstrued his willingness to consider
the move for explicit permission allowing the move to take
place. To attempt to clarify his position, John sent subsequent
e-mails to Kathleen explaining the situation and his concerns
about Katherine’s move. When communication between John
and Kathleen broke down later that summer, before any final
agreement on Katherine’s living situation was reached, John
expected Katherine’s return to Omaha. Upon being informed
by his other daughters that Katherine was not coming back
to Omaha, John sent a series of e-mails to Kathleen demand-
ing Katherine’s return. Although the order and parenting plan
in the record do not contain an exact date for the end of
Kathleen’s summer parenting time, according to the testimony
at trial, both parties agreed their daughters were to return to
Omaha on August 9, 2010.
At trial, Kathleen testified that she tried to get Katherine
to return to Omaha on August 9, 2010, but “couldn’t get her
on the plane.” Kathleen stated that because she “felt bad” for
Decisions of the Nebraska Court of Appeals
728 21 NEBRASKA APPELLATE REPORTS
Katherine, she did not force her to return to Omaha at the end
of the summer. Kathleen also admitted to having registered
Katherine as a student at the local public high school, despite
knowing that John demanded she not do so. According to her
testimony, Kathleen registered Katherine for school because
she did not want Katherine to be truant during the dispute with
John about her return. Kathleen claimed that she was finally
able to convince Katherine to return only because she assured
Katherine of an opportunity to speak in court regarding her
preference to move to Chicago. Katherine was returned to
Omaha on September 1.
Although Katherine was not returned to Omaha on August
9, 2010, our de novo review of the record leads us to conclude
that the district court did not abuse its discretion in failing to
find Kathleen in contempt. There was no court order which
specifically required Kathleen to return Katherine on a date
certain, although there was testimony to an agreed-upon date.
There was ongoing discussion during the summer between
the parties regarding the possibility of Katherine’s remaining
in Kathleen’s custody in Chicago. A few days after the previ-
ously agreed-upon return date, Kathleen filed an application to
modify custody. Kathleen was not served with the original ex
parte order to return Katherine to Omaha, obtained by John on
August 12, which order was not filed until August 30. Another
order was entered on August 30, requiring Kathleen to return
Katherine on September 1, which Kathleen complied with.
Under the particular facts of this case, we affirm the district
court’s determination that Kathleen’s actions did not amount to
a clearly willful violation of prior court orders.
4. Order R eleasing Garnished Funds
John finally argues that the district court erred when it
entered an order releasing garnished funds on May 29, 2012.
He argues the court lacked jurisdiction to enter this order
because he had filed his notice of appeal and posted the
required supersedeas bond on May 22.
In addressing this assigned error, we initially note that
John’s characterization of the May 29, 2012, order is not com-
pletely accurate. The district court entered an order on May 11
Decisions of the Nebraska Court of Appeals
BELITZ v. BELITZ 729
Cite as 21 Neb. App. 716to deliver nonexempt funds. On May 17, John filed a motion
for an injunction to prohibit Kathleen from executing on the
judgment, to vacate the order to deliver nonexempt funds, and
to demand the return of the funds delivered. The district court
denied John’s motion on May 29. Kathleen also filed a receipt
of garnished funds on May 29.
[14,15] Subject to few exceptions, once an appeal has been
perfected, the trial court from which the appeal was taken no
longer has jurisdiction. See Spady v. Spady, 284 Neb. 885, 824
N.W.2d 366 (2012). However, a party’s failure to timely appeal
from a final order prevents an appellate court from exercis-
ing jurisdiction over the issues raised and decided in that
order. Pinnacle Enters. v. City of Papillion, 286 Neb. 322, 836
N.W.2d 588 (2013).
As we concluded above, Kathleen’s application for modi-
fication of custody and John’s contempt application were two
separate proceedings. Thus, John was required to perfect an
appeal within 30 days of the March 2, 2012, modification
order to obtain review of those issues. Because he did not file
a notice of appeal within 30 days of that order, John’s appeal
did not divest the district court of jurisdiction over the modifi-
cation proceedings.
Under § 25-1902, Kathleen’s motion for release of nonex-
empt funds is properly considered as a summary application
in an action after judgment is rendered. See Heathman v.
Kenney, 263 Neb. 966, 644 N.W.2d 558 (2002) (order made
on summary application in action after judgment is ruling on
postjudgment motion in action). Further, we conclude that the
May 11, 2012, order releasing the funds to Kathleen’s attor-
ney affected one of John’s substantial rights and was a final,
appealable order. Thus, John was required to separately appeal
from that order.
However, John filed a motion on May 17, 2012, to vacate
that order. We conclude this motion was a valid motion to
alter or amend judgment, which tolled the time to perfect an
appeal. See Neb. Rev. Stat. § 25-1329 (Reissue 2008) (motion
seeking substantive alteration of judgment must be filed no
later than 10 days after entry of judgment). When the district
court entered its May 29 order overruling this motion, the order
Decisions of the Nebraska Court of Appeals
730 21 NEBRASKA APPELLATE REPORTS
releasing the funds became final and appealable. John has not
perfected an appeal from that order.
Because John has not separately appealed from the order
releasing nonexempt funds, we do not have jurisdiction to con-
sider his arguments related to that order.
V. CONCLUSION
For the reasons stated herein, we do not have jurisdiction
of John’s appeal as it relates to the modification order, due
to his failure to timely appeal from that order. We also find
that we are without jurisdiction to review John’s arguments
as they relate to the garnishment proceedings. Finally, we
affirm the district court’s decisions regarding John’s con-
tempt application.
Affirmed in part, and in part dismissed.
Craig Lynn Barthel et al., Copersonal R epresentatives of
the Estate of Dorothy Barthel, deceased, appellants,
v. Charles A. Liermann, individually and as
Successor Trustee of the Gene W. Liermann
Living R evocable Trust, and Erna E. Liermann,
Trustee of the Erna E. Liermann Living
R evocable Trust, appellees.
___ N.W.2d ___
Filed January 28, 2014. No. A-12-745.
1. Statutes. The meaning and interpretation of a statute are questions of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Statutes: Appeal and Error. When an appellate court confronts a statute, it
gives statutory language its plain and ordinary meaning and will not resort to
interpretation to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment, it is
presumed that the Legislature has acquiesced in the court’s interpretation.
5. Real Estate: Waters: Time. Neb. Rev. Stat. § 31-224 (Reissue 2008) imposes
upon a landowner the duty to clean a drainage ditch once a year, between
March 1 and April 15.