State on behalf of Andreasen v. Andreasen ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE ON BEHALF OF ANDREASEN V. ANDREASEN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA ON BEHALF OF HONORA ANDREASEN, A MINOR CHILD, APPELLEE,
V.
MICHAEL R. ANDREASEN, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,
AND AHKESHIA K. HENLEY, THIRD-PARTY DEFENDANT, APPELLANT.
Filed February 19, 2019. No. A-17-1195.
Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Appeal
dismissed.
Avis R. Andrews for appellant.
Linsey Moran Bryant, of Sidner Law, for appellee Michael R. Andreasen.
RIEDMANN, BISHOP, and WELCH, Judges.
BISHOP, Judge.
INTRODUCTION
In 2013, Michael R. Andreasen and Ahkeshia K. Henley entered into a stipulated custody
order which awarded them joint legal custody of their minor child, Honora Andreasen, with
physical custody awarded to Ahkeshia. When Michael became aware that Ahkeshia was moving
and wanted to remove Honora from Nebraska to Idaho, Michael filed a complaint to modify in the
district court for Dodge County, seeking full custody. After a trial, the district court found
Ahkeshia failed to show removal was in Honora’s best interests; joint legal custody was
maintained and Michael was awarded sole physical custody. Ahkeshia appeals the district court’s
denial of her request for removal, its failure to adopt an amended parenting plan, and its child
support calculation. Because we conclude there is not yet a final order, we dismiss the appeal for
lack of jurisdiction.
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BACKGROUND
Honora was born in 2008. The parties separated in June 2010; the record does not show
that they were ever married. In February 2013, the district court entered a stipulated order awarding
the parties joint legal custody of Honora, with primary physical custody awarded to Ahkeshia. A
parenting plan incorporated into the order provided Michael parenting time with Honora every
other weekend from 5 p.m. Wednesday to 5 p.m. Sunday, as well as every other Wednesday from
5 p.m. until Thursday at 8 a.m. Michael was ordered to pay $174 per month in child support and
Ahkeshia was ordered to provide health insurance for Honora, if available through Ahkeshia’s
employment at a reasonable cost. The parties were to equally divide uncovered medical expenses
and work-related child care expenses. The dependency exemption alternated between them each
year. The parties were to arrange reasonable parenting time or the stated default arrangement
would apply. A parent seeking to change the minor child’s residence for a period of more than 30
days had to give advanced notice of the proposed change by written notice at least 45 days prior
to the change to allow time to mediate changes to custody, parenting time, and access to the minor
child.
On March 1, 2016, Michael filed a complaint to modify, alleging there had been a
substantial and material change in circumstances, namely, that Ahkeshia provided certified notice
around February 27 of her intent to remove Honora from Nebraska without a court order or
hearing. He argued it was in Honora’s best interests to remain in Nebraska and that he be granted
full temporary and permanent custody of her, and that child support be modified. The State filed
an answer on Honora’s behalf to generally deny Michael’s material allegations. After a hearing,
the district court issued an order on March 23 awarding Michael temporary legal and physical
custody of Honora, subject to Ahkeshia’s temporary parenting time (every other weekend from
Friday at 6 p.m. to Sunday at 6 p.m. at the maternal grandmother’s residence, and reasonable,
liberal telephonic communication). The district court denied Honora’s removal from Nebraska
without its permission and suspended Michael’s child support obligation as of March 31.
On April 5, 2016, Ahkeshia filed an “Answer and Counter-Complaint,” denying the
material allegations of Michael’s complaint. She requested an award of full custody of Honora,
revision of the parenting plan in Honora’s best interests, leave to remove Honora to Idaho, and
determination of each party’s obligation for Honora’s financial support. She alleged a modification
of the stipulated order was warranted, asserting that Michael failed to follow the parenting plan,
communicate appropriately with her on behalf of Honora, submit to mediation, and adequately
care for Honora’s physical needs while in his care. She claimed that to obtain the temporary order
Michael mischaracterized her move and their discussions and that her life changes necessitated her
move.
Trial took place on February 22, 2017. After the district court took the matter under
advisement, it entered an “Order of Modification” on August 3. It denied Ahkeshia’s request for
removal and sustained Michael’s request for sole physical custody of Honora; the parties retained
joint legal custody. Ahkeshia was ordered to pay $330 per month in child support. The district
court set forth specific parenting time provisions in the order, namely that Ahkeshia would have
parenting time with Honora in the summer from June 1 until July 31 each year, plus the following
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holiday periods every year: from noon on “Christmas Day” until the day before the end of
“Christmas break,” the “entire Spring Break,” and “over the July Fourth holiday.” The parties were
given “Thanksgiving break” on an alternating basis, and Michael was given the following holidays
every year: Easter, Memorial Day, and Labor Day. Ahkeshia was to have liberal and regular
“telephone/Facetime/Skype” parenting time, and all transportation costs “to effectuate the
visitation schedule as ordered” were to be equally shared by the parties. The order also stated:
The Court finds that the parties shall be ordered to follow an Amended Parenting
Plan to be prepared by [Michael’s counsel] and it shall be in accordance with the
Nebraska-recognized format and shall comport with this Court’s decision. Said Amended
Parenting Plan will be approved by both counsel as to form and content and submitted to
the Court for its signature when it has been completed. Said Amended Parenting Plan shall
be [fully] incorporated in this order by reference.
Ahkeshia’s “Motion for New Trial or Reconsideration” was overruled. Ahkeshia now
appeals.
ASSIGNMENTS OF ERROR
Ahkeshia claims, consolidated and restated, that the district court erred when it (1) denied
her request to remove Honora from Nebraska to Idaho, (2) did not adopt an appropriate amended
parenting plan, and (3) did not properly calculate child support.
STANDARD OF REVIEW
A jurisdictional question which does not involve a factual dispute is determined by an
appellate court as a matter of law. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515
(2018).
ANALYSIS
Because it implicates a jurisdictional issue, we begin with Ahkeshia’s second assigned
error related to the district court’s failure to adopt an appropriate amended parenting plan.
Ahkeshia’s position is that the decision (presumably about best interests) “is hampered because
we do not have the Amended Parenting Plan that defines all of the aspects of the parental
relationship going forward, although we do have the trial court’s outline of the parenting time
provisions.” Brief for appellant at 29. In response, Michael acknowledges the lack of the
court-ordered amended parenting plan, but claims that the district court’s order “clearly sets forth
specific orders for visitation by the parties,” and addresses custody, telephone and other media
contact, summer and holiday parenting time, and transportation costs. Brief for appellee at 26. At
oral argument, both parties acknowledged that the court-ordered amended parenting plan did not
yet exist, but the parties nevertheless encouraged this court to find the August 3, 2017, “Order of
Modification” final and appealable. The parties’ assertion that the August 3 order contains enough
specificity as to the matters at issue so as to constitute a final order is compelling, but we must also
be mindful of the other very explicit language in the district court’s order that required the
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preparation of an amended parenting plan which was to be incorporated into the modification
order.
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. McCullough v. McCullough, supra.
For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken. Simms v. Friel, 302 Neb. 1, 921
N.W.2d 369 (2019).
We agree with the parties that the district court set forth some specifics related to when
Ahkeshia would be able to exercise her parenting time with Honora, however, the court also
specifically ordered that an “Amended Parenting Plan” be drafted, approved by both parties, and
then submitted to the court for signature. The court also directed that the amended parenting plan
was to be in accordance with “the Nebraska-recognized format and shall comport with this Court’s
decision.” Further, it was to be incorporated into the modification order. So in addition to
containing the specifics set forth in the August 3, 2017, order, the Amended Parenting Plan was to
be in accordance with a “Nebraska-recognized format.”
In Nebraska, when an action involves child support, child custody, parenting time,
visitation, or other access, a final order must incorporate a parenting plan. See, Neb. Rev. Stat.
§ 42-364(1) (Reissue 2016) (in action under Chapter 42 involving child support, child custody,
parenting time, visitation, or other access, parenting plan shall be developed as provided in
Parenting Act); In re Interest of Ethan M., 18 Neb. Ct. App. 63, 774 N.W.2d 766 (2009) (§ 42-364(1)
requires that final order incorporate parenting plan). Although the record before us does not include
the original pleadings leading to the 2013 stipulated order, whether dealing with modification of a
marriage dissolution or a paternity action, the requirements of § 42-364 would apply. See,
§ 42-364(1) (applies to action under Chapter 42, which includes marriage dissolution); State on
behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (applying
§ 42-364 to custody determination in paternity action); State on behalf of Maddox S. v. Matthew
E., 23 Neb. Ct. App. 500, 873 N.W.2d 208 (2016) (§ 42-364 applies to custody disputes in paternity
actions). See, also, Cox v. Hendricks, 208 Neb. 23, 302 N.W.2d 35 (1981) (fact that child is born
out of wedlock should be disregarded; custody and visitation of minor children should be
determined on basis of best interests of children and standards set out in § 42-364 are to be applied);
Bhuller v. Bhuller, 17 Neb. Ct. App. 607, 609, 767 N.W.2d 813, 815 (2009) (“district court’s failure
to include a parenting plan in the decree prevents the decree from being a final, appealable
judgment,” and “appeal from the decree was premature”).
Michael suggests that Citta v. Facka, 19 Neb. Ct. App. 736, 812 N.W.2d 917 (2012), would
support the position that the August 3, 2017, order is final and appealable. In Citta v. Facka, which
involved establishment of paternity, custody, parenting time, and child support, the district court’s
order addressed all material matters raised, but did not include a separate parenting plan as
contemplated under Neb. Rev. Stat. § 43-2929(1) (Reissue 2008) (when parenting functions for
child are at issue, parenting plan shall be developed and shall be approved by court). This court
concluded that although the district court’s order left unaddressed several determinations which
should be included in a parenting plan as identified in § 43-2929(1)(b), the failure to include such
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matters “would be error, but that such error does not deprive us of jurisdiction and neither party
assigns any error in this regard.” Citta v. Facka, 19 Neb. Ct. App. at 743, 812 N.W.2d at 925.
As applied here, if the district court had set forth the key provisions related to custody,
parenting time, and child support, and stopped there, we would agree that the failure to supply a
separately documented parenting plan would not have necessarily deprived this court of
jurisdiction as we decided in Citta v. Facka, supra. However, the case before us departs from the
facts of Citta in a significant way, namely, that the district court specifically ordered the
preparation of an amended parenting plan, and directed that it should comport with the court’s
decision and also “shall be in accordance with the Nebraska-recognized format.” Further, it was
to be approved by both counsel and submitted to the court for signature when completed, and the
amended parenting plan was to be incorporated into the order. The entry of an initial order (as
opposed to simply setting forth the court’s findings) followed by a multi-step process to fully
complete the disposition of the case can certainly create confusion as to when a party must appeal.
We find Huffman v. Huffman, 236 Neb. 101, 459 N.W.2d 215 (1990), instructive; it stands
for the proposition that an order cannot be final when a trial court specifically requires further
action by the court, and the further action is then incorporated into the court’s ultimate order. In
Huffman v. Huffman, supra, a father filed a modification action seeking custody of his children
and a determination of parenting time. At the conclusion of an evidentiary hearing on October 18,
1989, the district court stated from the bench that the motion to change custody was denied;
parenting time was taken under advisement. Also on October 18, in the presence of the parties and
their lawyers, the district court noted on its docket sheet that the father’s application to modify
custody was overruled. The father did not appeal from the October 18 determinations. On
November 3, the district court entered an order reflecting the court’s action on October 18 and also
setting forth a specific parenting time schedule for the father. The father appealed on November
30. The mother argued on appeal that the father should be limited to an appellate review of the
parenting time issue only because the father failed to timely appeal from the October 18
pronouncement on custody. In rejecting the mother’s argument, the Nebraska Supreme Court held:
[W]hen an application is filed to modify a decree in a marital dissolution action,
and the modification application pertains to more than one issue involving children affected
by the dissolution decree, a court’s resolution of one issue raised by the modification
application, but retention or reservation of jurisdiction for disposition of another issue or
other issues raised by the modification application, does not constitute a final judgment,
order, or decree for the purpose of an appeal.
Huffman v. Huffman, 236 Neb. at 106, 459 N.W.2d at 220.
In this case, the August 3, 2017, order did contain certain specifics related to Ahkeshia’s
parenting time, but it left open the details of its court-ordered amended parenting plan. In other
words, there were further steps to complete before the order itself was final; the district court
reserved its jurisdiction for disposition of another matter--the amended parenting plan. The failure
to include the referenced incorporated amended parenting plan into the modification order renders
this appeal premature. Without a file-stamped modification order containing the referenced
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court-ordered amended parenting plan, there is no final order, and this court therefore lacks
jurisdiction over the appeal.
CONCLUSION
Because there is no final order, this court lacks jurisdiction and the appeal must be
dismissed.
APPEAL DISMISSED.
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