Furstenfeld v. Pepin
| Decision Date | 01 March 2016 |
| Docket Number | No. A–14–976.,A–14–976. |
| Citation | 23 Neb.App. 673,875 N.W.2d 468 |
| Parties | Justin S. Furstenfeld, appellant, v. Lisa B. Pepin, appellee. |
| Court | Nebraska Court of Appeals |
Matt Catlett, of Law Office of Matt Catlett, Lincoln, for appellant.
Terrance A. Poppe and Andrew K. Joyce, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., Lincoln, for appellee.
Justin S. Furstenfeld appeals from orders entered by the district court for Lancaster County in the course of this modification action. Justin challenges the court's award to Lisa B. Pepin of $5,000 in temporary attorney fees. Furstenfeld also challenges the court's order acknowledging that Pepin had made payments to him under a contempt purge plan, discharging her from the contempt judgment, and awarding her $120 in attorney fees in connection with that order. Because the order awarding temporary attorney fees is not a final, appealable order, we dismiss the appeal as it relates to that order. We affirm the order discharging Pepin from the contempt judgment and awarding Pepin fees in connection with obtaining this order.
The parties were initially divorced in December 2010, and an amended decree was entered in January 2011. See Furstenfeld v. Pepin, 23 Neb.App. 155, 869 N.W.2d 353 (2015). The initial decree approved the parties' property settlement agreement, custody agreement, and support agreement, while the amended decree corrected errors in certain provisions. See id.
On August 30, 2011, Pepin filed an amended complaint to modify the parties' dissolution decree, seeking to modify Furstenfeld's parenting time and child support obligation. On September 18, Furstenfeld filed an answer and counterclaim, seeking custody of the parties' minor child. On December 2, he filed a voluntary dismissal of his counterclaim. We note that resolution of Pepin's modification action was delayed for some time because she experienced difficulty in obtaining Furstenfeld's medical records and she had to obtain a court order requiring him to provide certain medical records. Furstenfeld filed an appeal from the order, which appeal was dismissed by the Nebraska Supreme Court because the appeal was not from a final, appealable order. See Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013).
On June 18, 2012, Pepin filed a motion seeking to enforce a settlement agreement reached by the parties in May after prolonged negotiations, which Furstenfeld subsequently refused to sign.
On June 10, 2014, while resolution of Pepin's motion to enforce the settlement agreement was pending, Furstenfeld filed a motion seeking leave to file an amended or supplemental answer to Pepin's operative complaint for modification. The record on appeal does not contain a ruling by the district court on Justin's motion, but the parties both assert in their briefs that the court denied his request. On July 7, he filed his own complaint to modify the decree in which he asked for custody and child support.
On July 14, 2014, the district court entered an order finding Pepin in contempt for failing to make the parties' child available for a previously planned trip with Furstenfeld, and the court entered a purge order assessing Pepin with travel costs incurred by Furstenfeld and the minor child, as well as attorney fees.
On July 31, 2014, the district court entered an order granting Pepin's motion to enforce the parties' settlement agreement. The court noted that the issues under consideration were parenting time and child support and found that the settlement agreement was valid. On August 29, the court modified the decree to incorporate the terms of the settlement agreement. We note that this modification order does not mention Furstenfeld's July 7 complaint to modify. He appealed from the August 29 order, and in case No. A–14–814, this court affirmed the order of the district court enforcing the parties' settlement agreement. See Furstenfeld v. Pepin, 23 Neb.App. 155, 869 N.W.2d 353 (2015).
The present appeal involves orders entered by the district court on motions filed by the parties while Furstenfeld's appeal in case No. A–14–814 was pending.
On August 26, 2014, Furstenfeld filed a motion for the appointment of an expert and for production of the child for examination. On September 15, Pepin filed a motion for temporary attorney fees "with respect to [Furstenfeld's] Complaint for Modification of Decree." The district court heard these motions on September 23. The bill of exceptions on appeal does not include a transcription of the hearing, but it does reflect that the court received exhibit 86, an affidavit from Pepin in support of her motion for temporary attorney fees.
On September 29, 2014, the district court ordered the parties to submit to a custody evaluation and ordered Furstenfeld to pay temporary attorney fees to Pepin of $5,000.
On September 30, 2014, Pepin filed a "Motion Regarding Receipts," in which she asked for an order compelling Furstenfeld and his counsel to provide receipts for sums she had paid for travel expenses and attorney fees pursuant to the July 14 purge order. In addition, Pepin asked for the award of a reasonable attorney fee. On October 1, Furstenfeld filed a motion asking the district court to clarify and reconsider its September 29 order.
On October 14, 2014, the district court entered an order ruling on Furstenfeld's motion to clarify and reconsider and Pepin's motion for receipts. The court clarified its September 29 order with regard to the performance of the custody evaluation and a requirement that the minor child be made available for examination. The court denied his request to reconsider the award of temporary attorney fees, finding it had authority to award temporary attorney fees in a complaint to modify custody proceeding. With regard to Pepin's motion regarding receipts, the court noted that she had made payments in accordance with the court's July 14 purge order but that Furstenfeld's attorney refused to provide her with receipts for her payments, arguing that he and his client have a "First Amendment Right not to be compelled to sign a receipt." The court found that the July 14 judgment had been fully paid and satisfied. The court ordered the July 14 judgment for travel expenses and attorney fees discharged and canceled of record. The court awarded Pepin $120 in attorney fees in connection with her motion for receipts.
Furstenfeld subsequently perfected the present appeal from the district court's orders of September 29 and October 14, 2014.
Furstenfeld asserts that (1) the district court erred in ordering him to pay Pepin $5,000 in temporary attorney fees, (2) the court had no authority to rule on her motion for receipts, and (3) the court erred in ordering him to pay her $120 in attorney fees in connection with her motion for receipts.
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. In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).
In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
This case presents several jurisdictional issues. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011). First, we must consider the district court's authority to enter the September 29 and October 14, 2014, orders following Furstenfeld's action in perfecting his appeal in case No. A–14–814. If the court was not divested of jurisdiction by virtue of the appeal in case No. A–14–814, then we must also consider whether the orders he has appealed from in the present case were final, appealable orders.
Once an appeal is perfected to an appellate court, the trial court is divested of jurisdiction to hear a case involving the same matter between the same parties. In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004). Generally, once an appeal has been perfected, the trial court no longer has jurisdiction, although the district court retains jurisdiction under Neb.Rev.Stat. § 42–351(2) (Reissue 2008) for certain matters. See, e.g., Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
On appeal, Furstenfeld relies upon § 42–351(2) in support of his argument that the district court retained jurisdiction following the appeal in case No. A–14–814 to enter the orders of September 29 and October 14, 2014. Section 42–351(2) provides:
When final orders relating to proceedings governed by sections 42–347 to 42–381 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, parenting time, visitation, or other access, orders shown to be necessary to allow the use of property or to prevent the irreparable harm to or loss of property during the pendency of such appeal, or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal.
In Spady v. Spady, supra, the husband appealed from a decree of dissolution. During the pendency of the appeal, the district court entered an order awarding the wife temporary alimony. Thereafter, the wife pursued a contempt action, based in part upon the husband's failure to pay...
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