Hall v. Hall

• Decision Date: 06 March 1964
• Docket Number: No. 35735,35735
• Citation: 176 Neb. 555,126 N.W.2d 839
• Parties: Betty Jo HALL, Appellant, v. Herbert Richard HALL, Appellee.
• Court: Nebraska Supreme Court

Page 839

126 N.W.2d 839

176 Neb. 555

Betty Jo HALL, Appellant, v. Herbert Richard HALL, Appellee.

No. 35735.

Supreme Court of Nebraska.

March 6, 1964.

Syllabus by the Court

1. An appeal to the Supreme Court does not operate as a stay of proceedings unless the appellant shall have superseded the judgment or final order in the manner provided by law.

2. The statute providing for the superseding of judgments and final orders must be regarded as an express legislative enactment that the judgment or final order shall, in the absence of a supersedeas bond, retain its vitality and be capable of execution during the pendency of an appeal.

3. The trial court may in its discretion grant supersedeas in cases not specified in section 25-1916, R.R.S. 1943. An allowance of supersedeas in such a case may be granted in such an amount and on such conditions as the court determines necessary for the protection of the parties.

4. The trial court in a divorce action may in its discretion grant supersedeas. An absolute right to supersedeas does not exist except when it is allowable under the express provisions of section 25-1916, R.R.S. 1943.

5. A trial court may in its discretion allow supersedeas of its order contained in a divorce decree awarding the custody of a minor child to one of its parents or to a third person.

6. Where the divorce decree awarding custody of a minor child has not been superseded, such award may be enforced by the trial court, as in the case of any other nonsuperseded judgment.

7. Temporary orders in the district court allowing alimony, child support, or the custody of minor children terminate with the rendition of a final decree of divorce.

8. The trial court is invested with authority to enforce its nonsuperseded judgment awarding the custody of a minor child by contempt proceedings notwithstanding an appeal to this court.

9. An order of the district court quashing a citation for contempt for failure to comply with the child-custody award of a nonsuperseded divorce decree for want of jurisdiction is erroneous, even though an appeal from the divorce decree has been lodged in the Supreme Court.

10. A motion by the wife for an order for temporary child support from the husband, pending appeal, will be denied where it appears that the wife is not entitled to the care and custody of the child.

Kier, Cobb & Luedtke, Donald R. Grant, Lincoln, for appellant.

Ginsburg, Rosenberg & Ginsburg, Marti, O'Gara & Dalton, Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

The matters considered herein arise as the result of the filing of two motions in this court pending the determination of the merits of an appeal in a divorce action. Because of the importance of the issues raised and the lack of precedent dealing therewith in the decisions of this court, we deem it necessary to dispose of the motions by formal opinion.

On November 15, 1963, plaintiff was granted a decree of divorce from the defendant on the ground of extreme cruelty. A division of the property owned by the parties was made. The court found that plaintiff and defendant were unfit persons to have the care and custody of Courtney Lynne Hall, the 9-year-old child of the parties. The decree awarded the custody of the child to Mr. and Mrs. Mark M Baldwin, uncle and aunt of the child, and ordered the defendant to pay $100 per month into court for the support of the child. Plaintiff filed a motion for a new trial, which was overruled on December 27, 1963. Plaintiff appealed.

On January 24, 1964, plaintiff filed a motion in this court for an allowance of $150 per month for the support of the child, pending the appeal. On January 30, 1964, defendant filed a motion for an order requiring plaintiff to show cause why she should not be punished for contempt for failure to deliver the custody of the child into the care and custody of Mr. and Mrs. Mark M. Baldwin in accordance with the provisions of the divorce decree.

The record shows that on January 2, 1964, defendant filed a motion in the trial court for an order citing plaintiff for contempt for failure to transfer the custody of the child to Mr. and Mrs. Mark M. Baldwin in accordance with the provisions of the divorce decree. After a hearing the trial court quashed the citation for contempt on the ground that an appeal had been taken from the divorce decree and that the Supreme Court had the exclusive jurisdiction of the contempt proceeding.

We point out that no application was made to supersede the divorce decree and, consequently, no supersedeas was granted. The first question to be determined is the effect of the appeal upon the powers of the trial court as it relates to the issues raised by the motions before this court.

It is provided by section 42-340, R.R.S.1943, that a decree of divorce shall not become final until 6 months after trial and decision, except for the purpose of review by appeal and for such purpose only the decree shall be treated as a final order as soon as rendered, provided if appeal has been instituted such decree shall not become final until such proceedings are finally determined. It is the general rule in this state that an appeal to the Supreme Court does not operate as a stay of proceedings unless the appellant shall execute a supersedeas bond within 20 days as required by section 25-1916, R.R.S.1943. Dovey v. McCullough, 60 Neb. 376, 83 N.W. 171; Rice v. Parrott, 76 Neb. 501, 107 N.W. 840. In the last case cited this court said: 'The second ground is that the appeal vacated the judgment of the district court and deprived it of jurisdiction over the cause by transferring the entire controversy to this court. Although in some respects and for some purposes an appeal has such an effect, it cannot be said to have it unqualifiedly in all cases and in all regards for, otherwise, the mere docketing of an appeal would operate as a supersedeas and dispense with the necessity for the undertaking prescribed by the statute upon the subject. That statute must itself be regarded as an express legislative enactment that the judgment shall, in the absence of the undertaking, retain its vitality and be capable of execution during the pendency of the appeal, and this court has held that even after supersedeas has been effected it may, for sufficient cause, be set aside and the judgment of the lower court restored to its original status and enforceability. Tulleys v. Keller, 42 Neb. 788, 60...