Simms v. Friel ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/25/2019 09:13 AM CST
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SIMMS v. FRIEL
Cite as 302 Neb. 1
K aren Simms, biological grandmother and
next friend of Megan M arie Friel et al.,
minor children, appellee, v.Jeffrey
A llen Friel, appellant.
___ N.W.2d ___
Filed January 11, 2019. No. S-17-054.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. Jurisdiction: Final Orders: Appeal and Error. 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.
3. Final Orders: Appeal and Error. Among the three types of final orders
which may be reviewed on appeal is an order that affects a substantial
right made during a special proceeding.
4. ____: ____. An order affects a substantial right when the right would
be significantly undermined or irrevocably lost by postponing appel-
late review.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and R iedmann, Judge, and Inbody, Judge,
Retired, on appeal thereto from the District Court for Sarpy
County, Stefanie A. M artinez, County Judge. Judgment of
Court of Appeals affirmed.
Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for
appellant.
Aimee S. Melton, of Reagan, Melton & Delaney, L.L.P.,
for appellee.
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302 Nebraska R eports
SIMMS v. FRIEL
Cite as 302 Neb. 1
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After the district court granted temporary visitation of his
minor children to the children’s maternal grandmother, Karen
Simms, Jeffrey Allen Friel appealed. Friel contended that
the district court lacked the authority to make a temporary
order. The Nebraska Court of Appeals determined that the
temporary visitation order was a final, appealable order, but
that the appeal was moot because the order had expired by
its terms. See Simms v. Friel, 25 Neb. Ct. App. 640, 911 N.W.2d
636 (2018). The Court of Appeals nonetheless examined the
merits of Friel’s claims under the public interest exception to
the mootness doctrine and found that district courts do have
authority to issue temporary orders allowing visitation during
the pendency of grandparent visitation proceedings. On further
review, we conclude that the order for temporary grandpar-
ent visitation was not a final, appealable order. Therefore,
although we disagree with the Court of Appeals’ conclusion
that it had jurisdiction over the case, we affirm its dismissal
of the appeal.
BACKGROUND
District Court.
Simms, the maternal grandmother of Friel’s three minor
children, filed a petition for grandparent visitation under Neb.
Rev. Stat. § 43-1802 (Reissue 2016). Simms alleged that
since her daughter, the mother of the children, had died, Friel
had refused to allow Simms to see her grandchildren. Simms
alleged that it would be in the best interests of Friel’s children
for Simms to be granted grandparent visitation rights. Friel
denied, among other things, that it would be in the best inter-
ests of the children to have grandparent visitation and asked
that the petition be dismissed.
After an attempt to resolve the matter through mediation
failed, Simms made an oral motion for “some temporary
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302 Nebraska R eports
SIMMS v. FRIEL
Cite as 302 Neb. 1
visitation.” Her counsel argued that temporary visitation was
warranted, because several months had passed since the action
was filed and various holidays were approaching. The district
court heard arguments on the motion, and the parties submitted
affidavits, which are not in our record.
Expressly in response to Simms’ “oral [m]otion for [t]empo-
rary [v]isitation,” the district court granted Simms monthly
visitation with the children. It granted Simms visitation on
7 specific days, 1 day each month from November 2016
through May 2017. The district court specified that each visit
was to take place from 9 a.m. until 5 p.m., with the exception
of the May 2017 visit, which was to occur “after school until
8:00 pm.” The district court made no express findings con-
cerning a significant beneficial relationship between Simms
and the grandchildren or the children’s best interests under
§ 43-1802.
Friel filed a motion to alter or amend. At a hearing on the
motion, the district court stated that the temporary order was
“not meant to be a final order” but was intended as a “tempo-
rary order through the holidays, mostly.” The district court also
scheduled a trial date of January 27, 2017. The district court
took the motion to alter or amend under advisement and sub-
sequently denied it.
Court of Appeals.
Friel appealed. He assigned that the district court erred in
ordering the temporary visitation, because the statutes estab-
lishing grandparent visitation do not allow for temporary orders
and because it did not make the required statutory findings
before ordering grandparent visitation.
In a published opinion, the Court of Appeals concluded
that the order appealed from was a final, appealable order but
dismissed the appeal as moot because the order expired by its
terms in May 2017. Despite its finding of mootness, the Court
of Appeals considered the merits of the appeal. The Court of
Appeals found that because there were no reported appellate
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SIMMS v. FRIEL
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cases addressing the issues on appeal, consideration was war-
ranted under the public interest exception to the mootness
doctrine. See Simms v. Friel, 25 Neb. Ct. App. 640, 911 N.W.2d
636 (2018).
The Court of Appeals acknowledged that the grandparent
visitation statutes do not provide for temporary orders but
concluded that district courts have inherent authority to enter
temporary orders of grandparent visitation during the pendency
of a grandparent visitation proceeding. The Court of Appeals
further observed that, as required by § 43-1802(2), in order
to award grandparent visitation, a court must find that there
is a significant beneficial relationship between the grandpar-
ent and child, that it is in the child’s best interests for that
relationship to continue, and that any visitation ordered will
not adversely interfere with the parent-child relationship. See
Simms v. Friel, supra.
We granted Friel’s petition for further review.
ASSIGNMENT OF ERROR
Upon further review, Friel assigns that the Court of Appeals
erred by finding that the district courts had authority to issue
temporary visitation orders during the pendency of an action
for grandparent visitation.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. Al-Ameen v. Frakes, 293
Neb. 248, 876 N.W.2d 635 (2016).
ANALYSIS
[2] Before reaching the legal issues presented for review, it
is our duty to determine whether we have jurisdiction to decide
them. See Al-Ameen v. Frakes, 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
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taken. Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49
(2018). Because the temporary order did not dismiss the action
or make a final determination on the merits, it was not a final
judgment. See id. The jurisdictional question before us is thus
whether we are presented with a final order.
[3,4] Relevant here, among the three types of final orders
which may be reviewed on appeal is an order that affects a
substantial right made during a special proceeding. See Neb.
Rev. Stat. § 25-1902 (Reissue 2016). A “substantial right” is
an essential legal right, not a mere technical right. See Steven
S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009). A sub-
stantial 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. Id. It is not enough that the right itself be sub-
stantial; the effect of the order on that right must also be sub-
stantial. See Cano v. Walker, 297 Neb. 580, 901 N.W.2d 251
(2017). Whether the effect of an order is substantial depends on
whether it affects with finality the rights of the parties in the
subject matter. Id. Most fundamentally, an order affects a sub-
stantial right when the right would be significantly undermined
or irrevocably lost by postponing appellate review. Tilson v.
Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).
Where visitation, custody, and the parent-child relationship
are involved, we have previously looked to juvenile cases for
guidance to determine whether the grant or denial of visitation
and custody affects a substantial right. See Steven S. v. Mary
S., supra. In doing so, we have said that “‘“[t]he question . . .
whether a substantial right of a parent has been affected by an
order in juvenile court litigation is dependent upon both the
object of the order and the length of time over which the par-
ent’s relationship with the juvenile may reasonably be expected
to be disturbed.”’” Id. at 130, 760 N.W.2d at 33-34.
On a number of occasions, we have analyzed orders tem-
porarily limiting a parent’s custody or visitation rights under
the framework set forth above. For instance, in Steven S. v.
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Mary S., supra, the parties were awarded joint legal custody
of their children in a divorce, with the father receiving primary
physical custody subject to the mother’s rights of visitation.
After the mother was arrested for alleged child abuse, the trial
court entered a temporary order awarding legal and physical
custody to the father and suspending the mother’s visitation.
The mother appealed, but we determined that the order did not
affect a substantial right, because the mother’s “relationship
with the children will be disturbed for only a brief time period
and the order was not a permanent disposition.” Id. at 131, 760
N.W.2d at 34.
In Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763
(2010), we relied upon Steven S. and reiterated that an order
affecting custody temporarily does not affect a substantial
right. There, the trial court granted the father custody during
the mother’s 400-day military deployment, and the mother
appealed. We concluded that this did not constitute a final
order because it was temporary: Custody would revert to the
mother when she returned from active duty. Additionally, we
observed that the temporary order merely enforced the terms of
the original order, which provided that the father would have
custody while the mother was on active duty.
In Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014),
we found another order that affected a custody arrangement
only temporarily did not affect a substantial right. The order at
issue in that case permitted a mother who had custody of two
children to relocate the children to Georgia where she would
serve a military assignment for approximately 8 months. The
order had the effect of disrupting the parenting time of the
children’s father, who resided in Nebraska. Citing Steven S. v.
Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009), and Carmichael
v. Rollins, supra, we held that the order did not affect a sub-
stantial right. We pointed out that the order did not make a
“permanent disposition,” but “affected the custody arrange-
ment of the parties only temporarily.” Huskey v. Huskey, 289
Neb. at 451, 855 N.W.2d at 387. We also emphasized that the
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SIMMS v. FRIEL
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order would disrupt, but not substantially reduce, the father’s
parenting time.
As Steven S., Carmichael, and Huskey illustrate, an order
that reduces a party’s custody or visitation rights on a tem-
porary basis pending a more permanent disposition does not
generally affect a substantial right for purposes of § 25-1902.
The order granting Simms temporary visitation in this case is
such an order. The order did not affect Friel’s custody at all. It
disturbed his relationship with his children only to the extent it
provided for 1 day of visitation per month between November
2016 and May 2017. Most importantly for purposes of analyz-
ing whether the order affected a substantial right, it specifically
said it was granting Simms’ motion for “temporary visitation”
and did not provide for any visitation after May 2017. Further,
the district court set the matter for trial after granting the visita-
tion order at issue, dispelling any possible belief that the order
was not temporary.
We have previously recognized that circumstances could
arise wherein successive temporary orders or a temporary order
of long duration could affect a substantial right and constitute
a final order, despite being labeled “temporary.” See Huskey v.
Huskey, supra. But there is no indication of successive orders
here, and the duration of the order is no longer than other tem-
porary orders we have found to not affect a substantial right.
See, Huskey v. Huskey, supra; Carmichael v. Rollins, supra.
We thus see no basis in the controlling case law to find that the
order at issue affected a substantial right.
The Court of Appeals found that the order of temporary visi-
tation affected a substantial right in reliance on In re Interest
of Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398
(2015), and In re Interest of Zachary W. & Alyssa W., 3 Neb.
App. 274, 526 N.W.2d 233 (1994). See Simms v. Friel, 25 Neb.
App. 640, 911 N.W.2d 636 (2018). We find that these cases do
not squarely address the order at issue here.
In In re Interest of Cassandra B. & Moira B., supra, we
held that a juvenile court order prohibiting a parent from
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homeschooling her child affected a substantial right, but we
explicitly characterized the order there as not temporary. We
pointed out that the order was subject to reconsideration at a
review hearing in approximately 6 months, but the juvenile
court was required to review the case every 6 months and
thus “no order would have a longer duration than that.” Id. at
626, 861 N.W.2d at 404. And while the order at issue in In re
Interest of Zachary W. & Alyssa W. granted grandparent visita-
tion, the visitation was for an unspecified and indefinite period
of time. Neither of these cases involved truly temporary orders
like the one at issue here.
Friel makes a slightly different argument as to whether
the order affected a substantial right. He contends that
because a district court must make certain findings set forth
in § 43-1802(2) before ordering any grandparent visitation
and because the district court ordered grandparent visitation
in its November 2016 order, the district court “determine[d]
the action.” Brief for appellant at 1. We understand Friel to be
contending that despite the temporary nature of the November
2016 order, the district court could only have awarded visita-
tion consistent with § 43-1802(2) if it made the findings neces-
sary to finally decide the petition for visitation and that thus,
the order affects a substantial right. We have recently rejected
substantially the same argument, however, finding that even if
the findings necessary to make a temporary and final disposi-
tion of a matter are the same, it does not follow that a tempo-
rary order is appealable. See In re Interest of Zachary B., 299
Neb. 187, 907 N.W.2d 311 (2018).
At oral argument, counsel for both parties expressed hope
that this court could provide guidance as to whether temporary
orders are permitted in grandparent visitation proceedings.
As counsel observed, the grandparent visitation statutes do
not refer to temporary orders and this court has never before
addressed whether such orders are permissible. But as helpful
as resolution of this issue by this court might be, we do not
have the authority to resolve issues merely because it would be
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helpful. Our appellate jurisdiction, as defined by statute, is lim-
ited to reviewing final orders or judgments. See, e.g., Heckman
v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). Because
there is no final order or judgment to be reviewed in this case,
there is no appellate jurisdiction. The Court of Appeals should
not have addressed the merits, and neither can we.
CONCLUSION
Contrary to the Court of Appeals’ findings, we hold that
the district court’s order of temporary grandparent visitation
did not affect a substantial right and that therefore, the Court
of Appeals lacked jurisdiction to decide the issues presented
for review. It follows that we too lack jurisdiction and that
the appeal is subject to dismissal. We thus affirm the Court of
Appeals’ dismissal of the appeal, albeit on different grounds.
A ffirmed.