Simms v. Friel

• Decision Date: 11 January 2019
• Docket Number: No. S-17-054,S-17-054
• Citation: 302 Neb. 1,921 N.W.2d 369
• Parties: Karen SIMMS, Biological Grandmother and Next Friend of Megan Marie Friel et al., Minor Children, Appellee, v. Jeffrey Allen FRIEL, Appellant.
• Court: Nebraska Supreme Court

302 Neb. 1

921 N.W.2d 369

Karen SIMMS, Biological Grandmother and Next Friend of Megan Marie Friel et al., Minor Children, Appellee,

v.Jeffrey Allen FRIEL, Appellant.

No. S-17-054

Supreme Court of Nebraska.

Filed January 11, 2019.

Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., Omaha, for appellant.

Aimee S. Melton, of Reagan, Melton & Delaney, L.L.P., for appellee.

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

Papik, J.

After the district court granted temporary visitation of his minor children to the children's maternal grandmother, Karen Simms, Jeffrey Allen Friel appealed. Friel contended that the district court lacked the authority to make a temporary order. The Nebraska Court of Appeals determined that the temporary visitation order was a final, appealable order, but that the appeal was moot because the order had expired by its terms. See Simms v. Friel, 25 Neb. App. 640, 911 N.W.2d 636 (2018). The Court of Appeals nonetheless examined the merits of Friel's claims under the public interest exception to the mootness doctrine and found that district courts do have authority to issue temporary orders allowing visitation during the pendency of grandparent visitation proceedings. On further review, we conclude that the order for temporary grandparent visitation was not a final, appealable order. Therefore, although we disagree with the Court of Appeals' conclusion that it had jurisdiction over the case, we affirm its dismissal of the appeal.

BACKGROUND

District Court.

Simms, the maternal grandmother of Friel's three minor children, filed a petition for grandparent visitation under Neb. Rev. Stat. § 43-1802 (Reissue 2016). Simms alleged that since her daughter, the mother of the children, had died, Friel had refused to allow Simms to see her grandchildren. Simms alleged that it would be in the best interests of Friel's children for Simms to be granted grandparent visitation rights. Friel denied, among other things, that it would be in the best interests of the children to have grandparent visitation and asked that the petition be dismissed.

After an attempt to resolve the matter through mediation failed, Simms made an oral motion for "some temporary visitation." Her counsel argued that temporary visitation was warranted, because several months had passed since the action was filed and various holidays were approaching. The district court heard arguments on the motion, and the parties submitted affidavits, which are not in our record.

Expressly in response to Simms' "oral [m]otion for [temporary [v]isitation," the district court granted Simms monthly visitation with the children. It granted Simms visitation on 7 specific days, 1 day each month from November 2016 through May 2017. The district court specified that each visit was to take place from 9 a.m. until 5 p.m., with the exception of the May 2017 visit, which was to occur "after school until 8:00 pm." The district court made no express findings concerning a significant beneficial relationship between Simms and the grandchildren or the children's best interests under § 43-1802.

Friel filed a motion to alter or amend. At a hearing on the motion, the district court stated that the temporary order was "not meant to be a final order" but was intended as a "temporary order through the holidays, mostly." The district court also scheduled a trial date of January 27, 2017. The district court took the motion to alter or amend under advisement and subsequently denied it.

Court of Appeals.

Friel appealed. He assigned that the district court erred in ordering the temporary visitation, because the statutes establishing grandparent visitation do not allow for temporary orders and because it did not make the required statutory findings before ordering grandparent visitation.

In a published opinion, the Court of Appeals concluded that the order appealed from was a final, appealable order but dismissed the appeal as moot because the order expired by its terms in May 2017. Despite its finding of mootness, the Court of Appeals considered the merits of the appeal. The Court of Appeals found that because there were no reported appellate cases addressing the issues on appeal, consideration was warranted under the public interest exception to the mootness doctrine. See Simms v. Friel, 25 Neb. App. 640, 911 N.W.2d 636 (2018).

The Court of Appeals acknowledged that the grandparent visitation statutes do not provide for temporary orders but concluded that district courts have inherent authority to enter temporary orders of grandparent visitation during the pendency of a grandparent visitation proceeding. The Court of Appeals further observed that, as required by § 43-1802(2), in order to award grandparent visitation, a court must find that there is a significant beneficial relationship between the grandparent and child, that it is in the child's best interests for that relationship to continue, and that any visitation ordered will not adversely interfere with the parent-child relationship. See Simms v. Friel, supra.

We granted Friel's petition for further review.

ASSIGNMENT OF ERROR

Upon further review, Friel assigns that the Court of Appeals erred by finding that the district courts had authority to issue temporary visitation orders during the pendency of an action for grandparent visitation.

STANDARD OF REVIEW

A jurisdictional question that 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. Al-Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635 (2016).

ANALYSIS

Before reaching the legal issues presented for review, it is our duty to determine whether we have jurisdiction to decide them. See Al-Ameen v. Frakes, supra. For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018). Because the temporary order did not dismiss the action or make a final determination on the merits, it was not a final judgment. See id. The jurisdictional question before us is thus whether we are presented with a final order.

Relevant here, among the three types of final orders which may be reviewed on appeal is an order that affects a substantial right made during a special proceeding. See Neb. Rev. Stat. § 25-1902 (Reissue 2016). A "substantial right" is an essential legal right, not a mere technical right. See Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009). A substantial right is affected if the order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant prior to the order from which an appeal is taken. Id. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial. See Cano v. Walker , 297 Neb. 580, 901 N.W.2d 251 (2017). Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter. Id. Most fundamentally, an order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. Tilson v. Tilson , 299 Neb. 64, 907 N.W.2d 31 (2018).

Where visitation, custody, and the parent-child relationship are involved, we have previously looked to juvenile cases for guidance to determine whether the grant or denial of visitation and custody affects a substantial right. See Steven S. v. Mary S. , supra . In doing so, we have said that " ‘ "[t]he question ... whether a substantial right of a parent has been affected by an order in juvenile court litigation is dependent upon both the object of the order and the length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed." ’ " Id. at 130, 760 N.W.2d at 33-34.

On a number of occasions, we have analyzed orders temporarily limiting a parent's custody or visitation rights under the framework set forth above. For instance, in Steven S. v.Mary S., supra, the parties were awarded joint legal custody of their children in a divorce, with the father receiving primary physical custody subject to the mother's rights of visitation. After the mother was arrested for alleged child abuse, the trial court entered a temporary order awarding legal and physical custody to the father and suspending the mother's visitation. The mother appealed, but we determined that the order did not affect a substantial right, because the mother's "relationship with the children will be disturbed for only a brief time period and the order was not a permanent disposition." Id. at 131, 760 N.W.2d at 34.

In Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010), we relied upon Steven S. and reiterated that an order affecting custody temporarily does not affect a substantial right. There, the trial court granted the father custody during the mother's 400-day military deployment, and the mother appealed. We concluded that this did not constitute a final order because it was temporary: Custody would revert to the mother when she returned from active duty. Additionally, we observed that the temporary order merely enforced the terms of the original order, which provided that the father would have custody while the mother was on active duty.

In Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014), we found another order that affected a custody arrangement only temporarily did not affect a substantial right. The order at issue in that case permitted a mother who had custody of two children to relocate the children to Georgia where she would serve a military assignment for approximately 8 months. The order had the effect of disrupting the parenting time of the children's father, who resided in Nebraska. Citing Steven S. v. Mary S. , 277 Neb. 124, 760 N.W.2d 28 (2009), and Carmicheal v....