Becher v. Becher

Decision Date29 March 2019
Docket NumberNo. S-18-608.,S-18-608.
Citation302 Neb. 720,925 N.W.2d 67
Parties Sonia BECHER, Appellant, v. Mark A. BECHER, Appellee.
CourtNebraska Supreme Court

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for appellant.

David P. Kyker, Lincoln and Bradley A. Sipp, for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J.Sonia Becher and Mark A. Becher were divorced by decree in 2015. The parenting plan ordered by the court established a parenting time schedule for only one of the parties’ three children. In 2018, while an appeal from the dissolution decree was pending in this court, Mark filed a motion seeking to establish parenting time and telephone communication with one of the other children. The court granted that motion, and Sonia appeals. For the reasons set forth herein, we vacate and dismiss.

BACKGROUND

Sonia and Mark were married in December 1991 and had three children: Daniel Becher, born in 2000; Cristina Becher, born in 2002; and Susana Becher, born in 2008. Sonia and Mark were divorced in 2015 after an exceptionally contentious dissolution proceeding.

Mark appealed, and Sonia cross-appealed the 2015 dissolution decree. Both parties, in part, assigned the district court erred in its ordering of the custodial arrangement and the award of parenting time. The court’s decree ordered what it described as a "split and joint" custody arrangement. We described the arrangement in Becher v. Becher ( Becher I )1 :

The district court found that a split and joint custody arrangement with [a] parenting plan designed to reduce potential conflicts was in the best interests of the children. In its decree, the court ordered that Sonia have permanent legal and physical care, custody, and control of the parties’ two daughters, while Mark have permanent legal and physical care, custody, and control of the parties’ son with each "subject to the rights of parenting time for the noncustodial parent as set forth in the parenting plan." However, the court-ordered parenting plan provided that the parties would share joint legal custody of all three children, with Mark having primary physical custody of the parties’ son, Sonia having primary physical custody of the parties’ oldest daughter, and shared joint physical custody of the parties’ youngest daughter. ... [T]he court-ordered parenting plan did not provide a parenting schedule for the two oldest children. It did provide a joint physical custody arrangement for the youngest child with Mark and Sonia having equal parenting time on alternating weeks.

We concluded the district court had not abused its discretion in entering this parenting plan and found the provisions of the decree adequately set forth each party’s rights and responsibilities.2

Relevant to the issues raised in the present appeal, the parenting plan gave the following rationale for not establishing a parenting time schedule for the two older children, and expressly contemplated future modification to address the issue.

Regular Monthly Parenting Time with Daniel and Cristina: Based upon the recommendations of George Williams, PhD., the Court determines that it is in the best interests of Daniel and Cristina ... that no set parenting time schedule be established at this time. This is because of the significant conflict that still exists between these children and their non-custodial parent. Until such time as counseling with the family has resolved at least some of these issues, Dr. Williams believes a required parenting schedule would be inappropriate and perhaps detrimental. Both parties have agreed to voluntarily continue counseling with Dr. Williams and involve the children as may be necessary in order to reduce family conflict before a set schedule with respect to these two children is established. This parenting plan will need to be modified at some point in the future to include specific parenting time with these children, on a regular monthly basis, during the summer and on holidays. Except for summer parenting time, specific parenting time only involves Susana at this time.

As to communications between the parents and children during specified summer parenting time, the parenting plan stated:

[D]uring the summer parenting time for each parent the parent who is not exercising parenting time is to have no communication of any nature with their children. They are not to attempt to contact their children in any fashion during the other parent summer parenting time. Additionally, the parent not having parenting time is not to accept or respond to any attempt by any child to communicate with them. In the event of an emergency of any nature during the summer parenting time, Mother and Father may communicate with each other to address the emergency.

Becher I was released March 9, 2018, and the mandate issued on July 13, 2018.3

After Becher I was released but before the mandate was issued, Mark filed a motion in the district court on June 8, 2018, seeking to establish specific parenting time and telephone contact with Cristina. On June 11, Mark amended his motion to add a sentence to the notice of hearing purporting to provide that "[t]he hearing will be by affidavit." Both motions were e-filed with the court and directed to Sonia’s attorney by U.S. mail.

Neither motion was styled as a complaint to modify the decree, and it does not appear from the record that either motion was served on Sonia personally, nor was a praecipe for summons ever requested.

On June 14, 2018, a hearing was held on the amended motion. Sonia did not appear personally or through counsel. Mark also did not personally appear but was represented by counsel. Mark’s affidavit was received as an exhibit. In it, he averred he had not had meaningful contact with Cristina since the entry of the decree and all telephone contact had to go through Sonia. Mark sought specific parenting time to take Cristina on a summer vacation in June 2018 and asked to purchase a cell phone to communicate directly with Cristina without having to go through Sonia. At the hearing, Mark’s counsel indicated that the motion was made pursuant to Neb. Rev. Stat. § 42-351 (Reissue 2016) to enable the court to consider the issue of custody and parenting time before the mandate of the initial appeal issued.

The same day as the hearing, the district court entered an order providing, in full:

1. [Mark] may, at his sole expense, provide a cellular telephone for the minor child of the parties, Cristina .... While [Sonia] may restrict use of the cellular telephone, [Sonia] may not restrict any contact or communication between [Mark] and Cristina ... through the use of the cellular phone.
2. [Mark] may have parenting time with Cristina during the week of June 19, 2018[,] at 9:00 a.m. to June 26, 2018[,] at 9:00 a.m. [Mark] shall be responsible for all transportation necessary to effect parenting time with his daughter during this time.

The order was prepared by Mark’s counsel. The order did not construe the motion as a complaint to modify, nor did the order purport to modify the decree or the court-ordered parenting plan. However, neither did the order indicate it was pursuant to § 42-351 nor that it was a temporary order. To the extent the order allowed specific parenting time for Mark, it was limited to 1 week in June 2018. The telephone parenting time authorized by the order contained no temporal limit.

ASSIGNMENTS OF ERROR

Sonia assigns, restated, that the district court erred in (1) modifying the decree while an appeal of the decree was pending, (2) exercising jurisdiction although Sonia had not been properly served, (3) failing to find Sonia was denied procedural due process, and (4) modifying the parties’ parenting time without a showing of a material change in circumstances.

STANDARD OF REVIEW

A jurisdictional question which 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.4

ANALYSIS

Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.5 While it is not a constitutional prerequisite for jurisdiction, the existence of an actual case or controversy is necessary for the exercise of judicial power.6

We first note the time period granted to Mark for the specific summer parenting time with Cristina has passed. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.7 A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.8 Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.9 Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.10 As a general rule, a moot case is subject to summary dismissal.11

On this point, the order stated that Mark "may have parenting time with Cristina during the week of June 19, 2018[,] at 9:00 a.m. to June 26, 2018[,] at 9:00 a.m." Because this period has passed and the order does not provide Mark a continuing summer parenting time schedule, the assigned errors concerning the order’s grant of specific summer 2018 parenting time are moot.

Taking this limitation into account, we turn to Sonia’s assignment that the district court erred in modifying the decree by allowing Mark to provide Cristina a cell phone and have unrestricted communication while an appeal of the decree was pending. Mark, in turn, argues that the court retained jurisdiction to issue the order under §...

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4 cases
  • State v. Heather N. (In re Michael N.)
    • United States
    • Nebraska Supreme Court
    • 29 Marzo 2019
  • Becher v. Becher
    • United States
    • Nebraska Supreme Court
    • 25 Febrero 2022
    ...has resulted in a great deal of litigation, including multiple contempt proceedings and three prior appeals. See, Becher v. Becher , 302 Neb. 720, 925 N.W.2d 67 (2019) ; Becher v. Becher , 299 Neb. 206, 908 N.W.2d 12 (2018) ; Becher v. Becher , 24 Neb. App. 726, 897 N.W.2d 866 (2017), rever......
  • McEwen v. Neb. State Coll. Sys.
    • United States
    • Nebraska Supreme Court
    • 12 Julio 2019
    ...In re Interest of Samantha C. , 287 Neb. 644, 843 N.W.2d 665 (2014).10 Capital Construction , supra note 3.11 Becher v. Becher , 302 Neb. 720, 925 N.W.2d 67 (2019).12 See State v. Hausmann , 277 Neb. 819, 765 N.W.2d 219 (2009).13 See State v. Taylor , 286 Neb. 966, 840 N.W.2d 526 (2013).14 ......
  • Crow v. Chelli
    • United States
    • Nebraska Court of Appeals
    • 11 Febrero 2020
    ...issued. Generally, once an appeal is perfected, the trial court no longer has jurisdiction until a mandate issues. Becher v. Becher, 302 Neb. 720, 925 N.W.2d 67 (2019). Under Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court may retain jurisdiction to provide for an order concerning......

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