Johnson v. Johnson
| Decision Date | 19 December 2006 |
| Docket Number | No. A-06-337.,A-06-337. |
| Citation | 15 Neb. App. 292,726 N.W.2d 194 |
| Parties | Rita Ann JOHNSON, appellant, v. Michael Ray JOHNSON, appellee. |
| Court | Nebraska Court of Appeals |
Kent A. Schroeder, of Ross, Schroeder & George, Kearney, for appellant.
Chris A. Johnson, of Conway, Pauley & Johnson, P.C., Hastings, for appellee.
Rita Ann Johnson appeals from an order of the district court for Phelps County, Nebraska, which modified the decree dissolving her marriage to Michael Ray Johnson by changing custody of the parties' child from Rita to Michael. Rita asserts the district court abused its discretion in finding that a material change of circumstances had occurred and that the best interests of the child required modification of custody. Because the order appealed from reserved the issue of child support for future determination, the order was not final, and accordingly, we must dismiss this appeal for lack of jurisdiction.
On March 30, 2004, a decree of dissolution was entered which, among other things, awarded Rita the custody of the parties' child, born January 10, 2003, and specified visitation to Michael. On August 5, 2004, Michael filed an application to modify the decree, and on July 5, 2005, he filed an amended complaint for modification. Trial was held on October 19 and December 16. On March 14, 2006, an order was filed sustaining Michael's amended complaint and placing permanent custody of the parties' child with Michael, effective April 1.
The March 14, 2006, order, at paragraph 3, required Rita to pay child support effective April 1 and ordered the parties "to submit a stipulated child support calculation or schedule a hearing on the same." On March 24, Rita filed a notice of appeal of the March 14 order. On March 31, an order was filed which placed the parties' child in the temporary custody of Rita during the period of appeal, declined to enter a child support obligation for Rita at such time, and ordered that during the period of appeal, Michael continue to pay his child support previously ordered. The March 31 order further stated that paragraph 3 of the March 14 order is amended as follows: "The Court will enter an appropriate child support Order when this Order on custody becomes final."
On April 12, 2006, the district court apparently held a hearing on Michael's motion to set child support, although these proceedings are not contained in our record. On April 24, an order was entered finding that the March 14 order should be amended to include an amount for child support. The April 24 order provided that Rita should pay child support in the amount of $277 per month, effective April 1. Also on April 24, an additional order was entered which suspended Rita's child support obligation pending the decision on appeal.
Michael filed a motion for summary dismissal of the appeal in this court, asserting that Rita's appeal was premature because the March 14, 2006, order was not a final order for purposes of appeal. We overruled the motion without prejudice for further consideration of the question of whether the March 14 order is a final, appealable order and what effect, if any, the subsequent orders had.
Rita asserts the district court abused its discretion in finding that a material change in circumstances had occurred and that the best interests of the child required modification of custody.
Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).
A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Crawford v. Crawford, 263 Neb. 37, 638 N.W.2d 505 (2002).
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004).
It is necessary for us to determine whether the March 14, 2006, order, from which Rita appeals, is a final, appealable order. In Paulsen v. Paulsen, 10 Neb. App. 269, 634 N.W.2d 12 (2001), this court held that a court's order modifying custody but retaining jurisdiction for a determination of child support does not constitute a final order for purposes of appeal. In Paulsen, we recognized the longstanding principle that when multiple issues are presented to a trial court for simultaneous disposition in the same proceeding and the court decides some of the issues, while reserving some issue or issues for later determination, the court's determination of less than all the issues is an interlocutory order and is not a final order for the purpose of an appeal. Huffman v. Huffman, 236 Neb. 101, 459 N.W.2d 215 (1990).
In Paulsen, the father filed an application for modification of a divorce decree, specifically requesting that the trial court award him custody, child support, and attorney fees. This court determined that the order was not final because it had not determined all the issues submitted to the court, namely child support. Likewise, in Huffman, 236 Neb. at 106, 459 N.W.2d at 220, the Supreme Court held:
[W]hen an application is filed to modify a decree in a marital dissolution action, and the modification...
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Tilson v. Tilson
...are put [at] issue.... In short, there is no reason not to require a resolution of both custody and support to make the order final.In Johnson v. Johnson,22 the Court of Appeals clarified that it does not matter if the issue or issues yet undecided were explicitly requested in the applicati......
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McCaul v. McCaul
...(1990) (divorce decree resolving issue of permanent custody but reserving issue of visitation is not final order); Johnson v. Johnson, 15 Neb.App. 292, 726 N.W.2d 194 (2006) (order modifying child custody but failing to resolve closely related issue of child support is not final order). Alt......
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Vaughn v. Schnell, No. A-07-328 (Neb. App. 4/8/2008)
...normally be affirmed absent an abuse of discretion. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004); Johnson v. Johnson, 15 Neb. App. 292, 726 N.W.2d 194 (2006). Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewe......
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Bilderback-Vess v. Vess
...of less than all of the issues is an interlocutory order and is not a final order for purpose of an appeal. See, Johnson v. Johnson, 15 Neb. App. 292, 726 N.W.2d 194 (2006); Paulsen v. Paulsen, 10 Neb. App. 269, 634 N.W.2d 12 (2001). Therefore, we do not have jurisdiction to address Mark's ......