Jennifer T. v. Lindsay P.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/08/2018 01:12 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
Jennifer T., appellant, v.
Lindsay P., appellee.
___ N.W.2d ___
Filed February 2, 2018. No. S-17-107.
1. 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.
2. Parent and Child: Standing: Words and Phrases. In loco parentis is a
common-law doctrine that gives standing to a nonparent to exercise the
rights of a natural parent when the evidence shows that the nonparent’s
exercise of such rights is in the child’s best interests.
3. Parent and Child. In order to stand in loco parentis, one must assume
all obligations incident to the parental relationship.
4. Parent and Child: Parental Rights. A person in loco parentis generally
holds the same rights as a lawful parent. However, in loco parentis status
does not, by itself, eclipse the superior nature of the parental preference
accorded to biological or adoptive parentage.
5. Actions: Parent and Child: Standing. In the face of a natural par-
ent’s objection, in loco parentis gives standing to litigate whether the
child’s best interests are served by maintaining the in loco parentis
relationship.
6. Parent and Child. In loco parentis status is, unlike biological and adop-
tive parentage, transitory.
7. Actions: Parent and Child. A litigant cannot seek a declaration of per-
manent parental status under the in loco parentis doctrine.
8. Parent and Child. Once the person alleged to be in loco parentis no
longer discharges all duties incident to the parental relationship, the
person is no longer in loco parentis.
9. ____. Termination of the in loco parentis relationship also terminates the
corresponding rights and responsibilities afforded thereby.
10. Courts: Jurisdiction: Adoption: Minors. An order of consent under
Neb. Rev. Stat. § 43-104(1)(b) (Reissue 2016) granted by the district
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
court does nothing more than permit the county court, as the tribunal
having exclusive original jurisdiction over adoption matters, to entertain
such proceedings.
11. Adoption. An order of consent under Neb. Rev. Stat. § 43-104(1)(b)
(Reissue 2016) is not a determination of the child’s best interests or any
other issue pertaining to adoption.
12. Courts: Jurisdiction: Adoption. The consent under Neb. Rev. Stat.
§ 43-104(1)(b) (Reissue 2016) can be understood as a limited deferral to
the adoption court of the first court’s jurisdictional priority.
13. Courts: Jurisdiction. Under the doctrine of jurisdictional priority,
when different state courts have concurrent original jurisdiction over the
same subject matter, the court whose power is first invoked by proper
proceedings acquires jurisdiction to the exclusion of all tribunals to
adjudicate the rights of the parties.
14. ____: ____. Two courts cannot possess at the same time the power
to make a final determination of the same controversy between the
same parties.
15. ____: ____. A court with jurisdictional priority can choose to relin-
quish it.
16. ____: ____. Jurisdictional priority is a matter of judicial administration
and comity. It is not to protect the rights of the parties but the rights of
the courts to coordinate jurisdiction to avoid conflicts, confusion, and
delay in the administration of justice.
17. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction over an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
18. Final Orders: Appeal and Error. Having a substantial effect on a
substantial right depends most fundamentally on whether the right
could otherwise effectively be vindicated through an appeal from the
final judgment.
19. ____: ____. Generally, an immediate appeal from an order is justified
only if the right affected by the order would be significantly undermined
or irrevocably lost by waiting to challenge the order in an appeal from
the final judgment.
20. Adoption. Orders of consent under Neb. Rev. Stat. § 43-104(1)(b)
(Reissue 2016) do not affect a substantial right, because they do not
resolve the issue of adoption.
21. Injunction: Final Orders. Orders staying proceedings to await the ter-
mination of related proceedings in another court are usually not final.
22. ____: ____. The finality of an order granting a stay depends upon
the practical effect and impact the stay order might have on the relief
requested by the litigants.
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Nebraska Supreme Court A dvance Sheets
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
23. Injunction: Dismissal and Nonsuit. A substantial right is affected by
an order granting a stay if its effect is tantamount to a dismissal or to a
permanent denial of the requested relief.
24. Final Orders: Appeal and Error. It is the effect on the appellant’s
rights, not another’s, that justifies the immediate review of an interlocu-
tory order.
25. Dismissal and Nonsuit: Moot Question. The mere possibility of moot-
ness is not the functional equivalent of a dismissal or a permanent denial
of the requested relief.
26. Injunction: Dismissal and Nonsuit. A temporary stay that merely
preserves the status quo pending a further order is not an order that
amounts to a dismissal of the action or that permanently denies relief to
a party.
27. Courts: Jurisdiction. A litigant’s substantial rights are not affected by
the mere fact that one court has determined that the interests of judicial
administration are best served by temporarily deferring jurisdictional
priority to another court of this state.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Appeal dismissed.
Lindsay Belmont, of Koenig Dunne, P.C., L.L.O., for
appellant.
Desirae M. Solomon for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Funke, J.
INTRODUCTION
The former partner of a biological mother who conceived
via in vitro fertilization brought a custody action in district
court based on her alleged in loco parentis status to the child.
The biological mother and her wife subsequently filed a peti-
tion in county court for stepparent adoption. The district court
consented to the adoption and stayed the custody action pend-
ing the resolution of the adoption petition. We must determine
whether the consent to adoption or the order staying the cus-
tody action presents a final order.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
BACKGROUND
Lindsay P. and Jennifer T. were in a committed relationship
from 2001 to 2012. During the course of that relationship,
Lindsay conceived Chase T. by artificial insemination through
an anonymous donor. Chase was born in 2010, and Jennifer
stayed home to care for him while Lindsay worked outside
the home.
Lindsay and Jennifer separated in 2012, but they contin-
ued to coparent Chase. They agreed to a parenting schedule
under which Lindsay had Chase on Mondays and Tuesdays,
Jennifer had Chase on Wednesdays and Thursdays, and they
alternated weekend parenting time. Lindsay married Jessica P.
in 2015.
On August 12, 2015, Jennifer filed a complaint in the dis-
trict court for Douglas County for initial determination of
custody and to establish support. The complaint, as amended,
alleged that Jennifer has stood in loco parentis for Chase
since his birth, assuming all rights, responsibilities, and obli-
gations incident to a lawful parental relationship. Jennifer
sought sole legal and physical custody of Chase, with reason-
able parenting time to be awarded to Lindsay. Jennifer also
sought child support and an order requiring both parties to
share in medical, educational, and other expenses relating to
Chase’s care.
Approximately 1 month after Jennifer’s custody action was
filed, Lindsay and Jessica filed a petition for stepparent adop-
tion in the county court for Douglas County. Lindsay filed a
motion for the district court to consent to the stepparent adop-
tion, under Neb. Rev. Stat. § 43-104 (Reissue 2016).
Jennifer filed a motion in county court to intervene in
the adoption proceeding and to stay the adoption proceeding
pending the custody action. At the same time, Jennifer filed
a motion in the district court seeking to enjoin Lindsay from
proceeding in the county court adoption matter.
Lindsay moved in district court for summary judgment
or dismissal of the custody action. Rather than ruling on
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298 Nebraska R eports
JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
Lindsay’s motion, the district court stayed the custody action
pending resolution of the adoption proceeding.
Subsequently, in county court, Jennifer was denied the right
to intervene. The county court also overruled her motion to
stay the adoption proceedings. Jennifer appealed the county
court’s orders, and we reversed.
We explained in In re Adoption of Chase T.1 that the county
court lacked jurisdiction to issue its order dismissing Jennifer’s
complaint to intervene and overruling her motion to stay the
adoption proceeding, because the county court had failed to
obtain the district court’s consent to the adoption. The county
court’s order was vacated.2
While the appeal in In re Adoption of Chase T. was pend-
ing, Jennifer moved in district court for a release of its stay.
She alleged that per the district court’s instructions, she had
requested to intervene in the adoption proceedings, but that the
request was denied for lack of standing. She further alleged
that her “in loco parentis parental relationship must be estab-
lished first, before she has a right to intervene in the adoption
action.” Jennifer also asserted that the district court had an
obligation to retain its jurisdictional priority over the county
court, because the custody action was filed first. The district
court sustained the request to release the stay.
After our opinion in In re Adoption of Chase T., Lindsay
renewed her request for the district court’s consent to the
adoption.
Jessica eventually filed a motion to intervene in the custody
action. Lindsay then filed a motion asking the court to reissue
its stay of the custody action—after ruling on her motion for
consent to adoption and Jessica’s motion to intervene.
Lindsay argued that a stay was warranted, because a deci-
sion in the adoption proceeding was required before the court
1
In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016).
2
Id.
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
could make “an informed decision regarding all issues and
litigants.” She claimed that a stay would avoid unneeded liti-
gation and expense. At a hearing on the motions for consent
to adoption, intervention, and stay, Lindsay elaborated that
she thought the adoption proceeding should be resolved first
in order to protect Chase’s right to be adopted, as well as to
establish Jessica’s status vis-a-vis any visitation rights that
might ultimately be ordered in the custody action.
Jennifer objected to the motions filed by Lindsay and
Jessica. On the motion to intervene, Jennifer argued that any
in loco parentis rights pertaining to Jessica were irrelevant to
her own in loco parentis claim to custody. As for the motions
for consent and stay, Jennifer asserted that the district court
had jurisdictional priority over the county court. She also
argued that a determination of her in loco parentis rights must
be made by the district court before the adoption proceeds,
because the county court, through its vacated order, had deter-
mined that she lacked standing. Finally, she asserted that a stay
would cause irreparable harm to her in loco parentis right to
parent Chase.
On January 27, 2017, the court overruled the motion by
Jessica to intervene in the custody action, but it consented to
the adoption proceeding. In the same order, the district court
granted the motion to stay the custody action “until further
order of the Court.” Jennifer appeals the January 27 order.
ASSIGNMENTS OF ERROR
Jennifer assigns that the district court erred in (1) granting
its consent to the adoption to proceed in county court and (2)
staying the custody proceedings in the district court.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.3
3
In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
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298 Nebraska R eports
JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
ANALYSIS
Jessica’s underlying custody action in this case derives
from common law.4 We held in Latham v. Schwerdtfeger 5
that the former partner to the biological mother of a child
conceived via artificial insemination had standing under the
doctrine of in loco parentis to seek custody and court-ordered
visitation of the child. We recognized a “‘wide spectrum of
arrangements [have filled] the role of the traditional nuclear
family’” and that a biological parent who “‘voluntarily cre-
ated and actively fostered’” a former partner to assume the
status of a parent cannot erase that relationship after the par-
ties’ separation “‘simply because . . . she regretted having
done so.’”6
[2] In loco parentis is a common-law doctrine that gives
standing to a nonparent to exercise the rights of a natural par-
ent when the evidence shows that the nonparent’s exercise of
such rights is in the child’s best interests.7 This standing doc-
trine protects the rights of the natural parent from intrusions
by third parties except when those third parties have a stature
like that of a parent.8
[3-5] In order to stand in loco parentis, one must assume
all obligations incident to the parental relationship.9 In turn,
a person in loco parentis generally holds the same rights as
4
See Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011),
disapproved on other grounds, Windham v. Griffin, 295 Neb. 279, 887
N.W.2d 710 (2016).
5
Id.
6
Id. at 130, 134, 802 N.W.2d at 74, 76.
7
See Latham v. Schwerdtfeger, supra note 4.
8
See In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262
(2013).
9
See, In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002),
disapproved on other grounds, In re Interest of Enyce J., 291 Neb. 965,
870 N.W.2d 413 (2015); Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d
1 (2000), disapproved on other grounds, Windham v. Griffin, supra
note 4.
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
a lawful parent.10 However, in loco parentis status does not,
by itself, eclipse the superior nature of the parental prefer-
ence accorded to biological or adoptive parentage.11 Rather, in
the face of a natural parent’s objection, in loco parentis gives
standing to litigate whether the child’s best interests are served
by maintaining the in loco parentis relationship.12
[6-9] The parental preference accorded to biological or
adoptive parentage is based in part on the fact that in loco
parentis status is, unlike biological and adoptive parentage,
“transitory.”13 We have held that a litigant cannot seek a dec-
laration of permanent parental status under the in loco parentis
doctrine.14 Once the person alleged to be in loco parentis no
longer discharges all duties incident to the parental relation-
ship, the person is no longer in loco parentis.15 Termination of
the in loco parentis relationship also terminates the correspond-
ing rights and responsibilities afforded thereby.16
District Court’s Consent
Was Not Final Order
The district court in this case has not yet determined whether
Jennifer has a right to custody and visitation by virtue of her
alleged in loco parentis relationship with Chase. Instead, the
court gave its statutory consent to the adoption proceedings
and stayed the action. Under § 43-104(1)(b), the county court
must have the consent of any other court with jurisdiction over
the child’s custody before it has jurisdiction to entertain the
merits of any issue in the adoption proceeding.17
10
See Windham v. Griffin, supra note 4.
11
See id.
12
See In re Guardianship of Brydon P., supra note 8.
13
Id. at 674, 838 N.W.2d at 272. See, also, Windham v. Griffin, supra note 4.
14
In re Guardianship of Brydon P., supra note 8.
15
In re Interest of Destiny S., supra note 9.
16
Id.
17
See In re Adoption of Chase T., supra note 1.
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
[10-12] The consent granted by the district court does noth-
ing more than permit the county court, as the tribunal having
exclusive original jurisdiction over adoption matters, to enter-
tain such proceedings.18 Such consent is not a determination
of the child’s best interests or any other issue pertaining to
adoption.19 Indeed, because county courts have exclusive juris-
diction over adoption, we have said that a nonadoption court
lacks authority to decide such matters.20 The consent under
§ 43-104(1)(b) can be understood as a limited deferral to the
adoption court of the first court’s jurisdictional priority.
[13,14] Under the doctrine of jurisdictional priority, when
different state courts have concurrent original jurisdiction over
the same subject matter, the court whose power is first invoked
by proper proceedings acquires jurisdiction to the exclusion of
all tribunals to adjudicate the rights of the parties.21 Logically,
two courts cannot possess at the same time the power to make
a final determination of the same controversy between the
same parties.22
The doctrine of jurisdictional priority usually applies to two
pending cases only when they involve the same whole issue.23
In other words, the two actions must be materially the same,
involving substantially the same subject matter and the same
parties.24 But this is sometimes extended to situations where
each action composes part of the whole issue,25 and we have
18
See Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).
19
See Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).
20
Id.
21
See, Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013); State ex
rel. Consortium for Economic & Community Dev. for Hough Ward 7 v.
Russo, 2017 Ohio 8133, 151 Ohio St. 3d 129, 86 N.E.3d 327 (2017).
22
See id.
23
Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).
24
See id.
25
See State ex rel. Consortium For Economic & Community Dev. For Hough
Ward 7 v. McMonagle, 2016 Ohio 4704, 68 N.E.3d 125 (2016).
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
applied this broader concept of jurisdictional priority to mat-
ters of continuing jurisdiction of child custody.26 We have indi-
cated that the first court with jurisdiction over a child’s custody
has priority over a subsequent court with jurisdiction over the
child’s custody, even if the subject matter of the proceedings is
not otherwise the same.27
[15,16] A court with jurisdictional priority can choose to
relinquish it.28 In Charleen J. v. Blake O.,29 we explained that
we have sometimes referred to the second court as lacking
jurisdiction, but this is wrong. “We mean that a subsequent
court that decides a case already pending in another court with
concurrent subject matter jurisdiction errs in the exercise of
its jurisdiction.”30 Jurisdictional priority is a matter of judicial
administration and comity.31 It is not to protect the rights of the
parties but the rights of the courts to coordinate jurisdiction to
avoid conflicts, confusion, and delay in the administration of
justice.32 The consent provision of § 43-104(1)(b) contemplates
that another court has jurisdictional priority over the custody of
the child, and it contemplates that only with the other court’s
consent will the adoption be allowed to proceed.
Jennifer argues in this appeal that she has been prejudiced
by the district court’s deferral of its jurisdictional priority to
the county court. She argues that without a prior determination
in the custody action of her in loco parentis status, the county
court may deny her standing to intervene in the adoption pro-
ceeding. Further, she argues that if the county court grants the
adoption, her custody action will be moot; she assumes this
26
See Charleen J. v. Blake O., supra note 23 (and cases cited therein).
27
See Charleen J. v. Blake O., supra note 23.
28
Id.
29
See id.
30
Id. at 463, 855 N.W.2d at 595 (emphasis in original).
31
Charleen J. v. Blake O., supra note 23.
32
See id.
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JENNIFER T. v. LINDSAY P.
Cite as 298 Neb. 800
because she assumes that three people cannot have joint legal
custody over a child.
[17] But before reaching the merits of the district court’s
decision, we must determine if we have appellate jurisdic-
tion. For an appellate court to acquire jurisdiction over an
appeal, there must be a final order or final judgment entered
by the court from which the appeal is taken.33 The January 27,
2017, order did not dismiss the custody action or make a final
determination of its merits; thus, it was not a final judgment.34
The question, therefore, is whether we are presented with a
final order.
Jennifer asserts that both aspects of the January 27, 2017,
order, the consent and the stay, affected a substantial right and
were made in a special proceeding. Neb. Rev. Stat. § 25-1902
(Reissue 2016) provides that “an order affecting a substantial
right made in a special proceeding . . . is a final order.”
We have held that a substantial right is an essential legal
right, not a mere technical right.35 It is a right of “substance.”
It is not enough that the right itself be substantial; the effect of
the order on that right must also be substantial.36
We have said that an order affects a substantial right if it
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to the appellant prior to
the order from which he or she is appealing. We have also said
that whether the effect of an order is substantial depends upon
whether it affects with finality the rights of the parties in the
subject matter.37
[18,19] Having a substantial effect on a substantial right
depends most fundamentally on whether the right could oth-
erwise effectively be vindicated through an appeal from the
33
In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).
34
See id.
35
Id.
36
Id.
37
Id.
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Cite as 298 Neb. 800
final judgment.38 Generally, an immediate appeal from an
order is justified only if the right affected by the order would
be significantly undermined or irrevocably lost by waiting to
challenge the order in an appeal from the final judgment.39
In several cases, we have held that orders involving consent
to adoption are not final orders, because they do not affect a
substantial right.40 In Klein v. Klein,41 we held that a district
court’s order of consent under § 43-104(1)(b) was not a final
order, even if the consent was the last act the court would take
in relation to the child. In In re Adoption of Krystal P. & Kile
P.,42 we held that the county court’s order finding that consent
was not required from the then Department of Social Services
was not final. Finally, in In re Adoption of Madysen S. et
al.,43 we held that the county court’s determination that due to
abandonment, a father’s consent was not required, was not a
final order.
[20] We concluded in these cases that the orders did not
affect a substantial right, because they did not resolve the
issue of adoption.44 Despite the orders, the county court could
ultimately decide to deny the petition for adoption—at which
point, the complaining party’s substantial rights would never
be affected.45 And, if instead the adoption were permitted, then
the rights at issue could be effectively vindicated in an appeal
from the final judgment of adoption.46
38
Id.
39
Id.
40
See, In re Adoption of Krystal P. & Kile P., 248 Neb. 907, 540 N.W.2d 312
(1995); Klein v. Klein, supra note 18.
41
Klein v. Klein, supra note 18.
42
In re Adoption of Krystal P. & Kile P., supra note 40.
43
In re Adoption of Madysen S. et al., supra note 33.
44
See Klein v. Klein, supra note 18.
45
See In re Adoption of Madysen S. et al., supra note 33.
46
See id.
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We see no reason to diverge from this precedent here. It
is true that in these cases concerning the immediate appeal-
ability of consent-related orders, the complaining parties were
allowed to participate in the adoption proceedings. Indeed, in
In re Adoption of Madysen S. et al., we emphasized the father’s
continued ability to participate in the best interests hearing in
the adoption proceeding when we concluded that the order of
abandonment and substitute consent did not affect the father’s
substantial rights.
We understand that it is precisely Jennifer’s ability to inter-
vene in the adoption proceedings that she argues is one of the
substantial rights at issue. But Jennifer presents no argument
that the district court’s consent represented a rejection of the
in loco parentis status under which she claims standing in both
the custody action and the adoption proceedings. Nor does she
assert that a determination in the district court of her in loco
parentis status would collaterally estop her claim to standing in
the adoption proceeding.
While we have held under certain circumstances that an
order denying intervention affects a substantial right,47 this is
not an appeal from an order denying intervention. The only
effect of the consent order is that the county court has juris-
diction to consider Jennifer’s motion to intervene and any
other issues related to the adoption proceeding. As we have
already discussed, the district court’s consent is not a determi-
nation of the merits of any matter under the exclusive jurisdic-
tion of the county court.48
We conclude that the district court’s order of consent does
not affect Jennifer’s alleged right to intervene in the adoption
proceedings. The order of consent was not final, and we lack
jurisdiction to address its merits. We turn next to the order
of stay.
47
See Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017).
Compare In re Adoption of Amea R., supra note 3.
48
See Smith v. Smith, supra note 19.
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District Court’s Stay
Was Not Final Order
[21] Orders staying proceedings to await the termination
of related proceedings in another court are usually not final.49
Stays are often used to regulate the court’s own proceedings or
to accommodate the needs of parallel proceedings.50 Regularly
allowing immediate appeals from such orders would promote
piecemeal appeals, chaos in trial procedure, and a succession
of appeals in the same case to secure advisory opinion to gov-
ern further actions of the trial court.51
[22,23] But the finality of an order granting a stay depends
“‘“upon the practical effect and impact the stay order might
have on the relief requested by the litigants.”’”52 We have held
that a substantial right is affected by an order granting a stay if
its effect is tantamount to a dismissal or to a permanent denial
of the requested relief.53
We have recognized orders staying litigation to be final in
just two instances, in Sullivan v. Storz54 and in Kremer v. Rural
Community Ins. Co.55
In 1952, in Sullivan v. Storz, we said that an order grant-
ing a continuance for approximately 2 years under the then
49
In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992). See, also,
Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000).
50
15A Charles Alan Wright et al., Federal Practice & Procedure § 3914.13
(2001).
51
See In re Adoption of Madysen S. et al., supra note 33.
52
In re Interest of L.W., supra note 49, 241 Neb. at 97, 486 N.W.2d at 496.
53
See, Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861
N.W.2d 425 (2015); Kremer v. Rural Community Ins. Co., 280 Neb. 591,
788 N.W.2d 538 (2010); In re Interest of L.W., supra note 49.
54
Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952). See, also, Tongue
v. Lloyd, 92 Neb. 488, 138 N.W. 738 (1912) (adjournment for more than
90 days, which was in violation of statutory maximum, worked dismissal
and was therefore final).
55
Kremer v. Rural Community Ins. Co., supra note 53.
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Soldiers’ and Sailors’ Civil Relief Act affected the plaintiff’s
substantial right to trial without unreasonable and unneces-
sary delay.56 Though we did not describe it as such, other
courts reason that certain delays may be so protracted as
to effectively dismiss the action and put the plaintiff out
of court.57
More recently, in Kremer v. Rural Community Ins. Co.,
we held that an order staying an action while the parties
engaged in court-ordered arbitration was final.58 We said that
the order diminished the party’s alleged entitlement to litigate
in court and was tantamount to a dismissal. The substantial
right affected was not the delay but the compulsion to arbi-
trate and the effective disposition of all the issues presented.59
We explained that the claimed right to litigate implicated by
the court’s order “cannot be effectively vindicated after the
party has been compelled to do that which it claims it is not
required to do.”60
[24] Jennifer relies on the concept of jurisdictional priority
in asserting that the district court’s stay of the custody pro-
ceeding affected a substantial right. But we have never held
that a stay granted in order to defer a court’s jurisdictional
priority to another court presents a final order. Jurisdictional
priority is not about the rights of parties but the rights of
the courts.61 And it is the effect on the appellant’s rights, not
56
See Sullivan v. Storz, supra note 54. See, also, Carmicheal v. Rollins, 280
Neb. 59, 783 N.W.2d 763 (2010).
57
See, King v. Cessna Aircraft Co., 505 F.3d 1160 (11th Cir. 2007);
Dependable Highway Exp. v. Navigators Ins. Co., 498 F.3d 1059 (9th Cir.
2007); 767 Third Ave. v. Consulate General of Yugoslavia, 218 F.3d 152
(2d Cir. 2000); American Mfrs. Mut. Ins. v. Edward D. Stone, Jr., 743 F.2d
1519 (11th Cir. 1984).
58
Kremer v. Rural Community Ins. Co., supra note 53.
59
See id.
60
Id. at 602, 788 N.W.2d at 549.
61
See Charleen J. v. Blake O., supra note 23.
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another’s, that justifies the immediate review of an interlocu-
tory order.62
There is some federal authority holding that a stay is
appealable if its practical effect is to permanently surrender
federal jurisdiction over the suit to a state court’s judgment
by virtue of the res judicata effect of the other judgment
precluding any further substantive decision in the federal
court.63 We can find no similar authority pertaining to the
surrender of jurisdiction from one court to another within the
same state.
[25] Regardless, the custody and the adoption proceed-
ings concerning Chase do not have an identity of issues that
would unavoidably result in precluding further substantive
decisions by the district court. As Jennifer describes her argu-
ment, the custody action would be moot only if the county
court approved the stepparent adoption. She concedes that
her custody action would be unaffected if the county court
does not grant the adoption. Without deciding the merits of
Jennifer’s underlying mootness assumption, we hold that the
mere possibility of mootness is not the functional equiva-
lent of a dismissal or a permanent denial of the requested
relief.
[26] Furthermore, we note that the district court’s order did
not stay the custody action pending resolution of the adop-
tion proceedings. Instead, the action was stayed merely until
further order of the court. Presumably, the district court will
monitor the adoption proceedings and will revisit and reassess
the stay as it sees fit. We have held that a temporary stay that
“merely preserves the status quo pending a further order is not
62
See In re Adoption of Amea R., supra note 3.
63
See, Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.
Ct. 927, 74 L. Ed. 2d 765 (1983); In re Urohealth Systems, Inc., 252 F.3d
504 (1st Cir. 2001); Spring City Corp. v. American Bldgs. Co., 193 F.3d
165 (3d Cir. 1999); Granite State Ins. Co. v. Tandy Corp., 986 F.2d 94 (5th
Cir. 1992).
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an order that amounts to a dismissal of the action or that per-
manently denies relief to a party.”64
This appeal is distinguishable from Jesse B. v. Tylee H.65
Jesse B. presented an appeal from the final judgment dismiss-
ing a habeas and declaratory judgment action challenging the
legality of the proposed adoption that was pending when the
action commenced. Habeas corpus is an appropriate remedy
for a claim that a child is being illegally detained by the county
court for adoption.66 Despite this, the district court in Jesse B.
stayed the habeas and declaratory judgment action until the
adoption proceeding concluded. And, after the adoption was
approved, the district court dismissed the habeas and declara-
tory judgment action on the ground that it could no longer
exercise jurisdiction.
On appeal, we reversed the dismissal. We disagreed with any
contention that the habeas and declaratory judgment action,
inasmuch as it challenged the constitutionality of the certain
adoption consent statutes, was moot. We also opined that the
district court, as the first court to exercise jurisdiction over the
claims in the habeas proceeding, was required to retain it to the
exclusion of the county court.
But the present custody action, unlike the action in Jesse B.,
does not challenge the legality of the county court’s exercise
of jurisdiction over the child to be adopted. Furthermore, Jesse
B. did not present an immediate appeal from an interlocutory
order. It is thus inapposite to the question before us of whether
the stay presents a final order.
[27] We conclude that, without more, a litigant’s substan-
tial rights are not affected by the mere fact that one court has
determined that the interests of judicial administration are
64
Shasta Linen Supply v. Applied Underwriters, supra note 53, 290 Neb. at
648, 861 N.W.2d at 431.
65
Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).
66
See id.
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best served by temporarily deferring jurisdictional priority to
another court of this state. We hold this to be true even if the
issues presented to the court with jurisdictional priority might
be rendered moot by the time the stay is lifted.
As with the order of consent, Jennifer asserts that her
right to intervene was affected by the deferral of jurisdic-
tional priority reflected through the stay. She reasons that
the absence of a prior determination by the district court of
her in loco parentis status might serve as grounds for the
county court to deny her motion to intervene in the adoption
proceedings.
Jennifer presents no legal argument, however, that a prior
determination of her in loco parentis status by the district court
would be required for her to intervene in the adoption proceed-
ing. Such an argument would run contrary to the transitory
nature of in loco parentis status.
Neither does Jennifer argue that the county court lacks
jurisdiction to determine her in loco parentis status when con-
sidering her motion to intervene. As stated, in loco parentis is
a concept of standing. Standing ordinarily is determined in the
proceeding into which the party wishes to intervene.
Finally, Jennifer does not explain how her alleged right to
intervene in the adoption proceedings cannot be effectively
vindicated through an appeal in that proceeding. If the right
allegedly affected is the right to intervene in another proceed-
ing, then it is more apt to consider whether it can be effectively
vindicated in an appeal in that proceeding rather than in the
action before us.
Because the district court’s order does not determine the
merits of any issue pertaining to Jennifer’s ability to intervene
in the adoption proceedings, Jennifer should seek redress of
this right in the adoption proceeding—if indeed the county
court again denies her motion. The speculative effect of the
district court’s stay upon Jennifer’s right to intervene in the
adoption proceeding in county court does not rise to the level
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of “affecting a substantial right”67 for purposes of a final
order analysis.
CONCLUSION
Neither the order granting consent to adoption nor the order
staying the custody proceedings pending further order of the
court present a final, appealable order. Accordingly, we dis-
miss Jennifer’s appeal for lack of jurisdiction.
A ppeal dismissed.
Wright, J., not participating.
67
See § 25-1902.