Simms ex rel. Friel v. Friel
Simms ex rel. Friel v. Friel
Opinion of the Court
*642I. INTRODUCTION
Jeffrey Allen Friel appeals from an order entered by the district court for Sarpy County which granted Karen Simms, a grandparent to the minor children at issue, temporary visitation. Because we find that Friel's appeal is now moot, we dismiss the appeal. However, under the public interest exception, we determine that a district court has inherent authority to grant temporary grandparent visitation during the pendency of the proceeding. We further determine that a district court must make specific findings as set forth in
II. BACKGROUND
In May 2016, Simms, the maternal grandmother of Friel's three minor children, filed a complaint for the establishment of grandparent visitation pursuant to § 43-1802. Simms alleged that her daughter, the mother of the children, had died from a "sudden cardiac arrest" in February 2016 and that Friel had since refused to allow Simms to see her grandchildren despite her previous frequent contact with them. Simms alleged that at the time of her daughter's death, Friel and her daughter were separated and there was a pending dissolution of marriage action. In his answer, Friel denied, among other things, that it would be in the best interests of the children to order grandparent visitation with Simms and he asked that the complaint be dismissed.
Simms thereafter filed a motion to appoint an expert witness and/or guardian ad litem to make recommendations as to the children's best interests. A hearing was *640initially held on August 22, 2016, and the order indicated that affidavits and arguments were offered by both parties; however, our record does not contain any affidavits. In an order entered on September 16, the court ordered Friel to produce reports from counselors, psychologists, or other therapists that have seen *643the minor children since February 2016 and ordered the parties to attend mediation.
On October 24, 2016, another hearing was held on Simms' motion, at which time arguments were heard regarding the necessity of an expert witness. Simms also made an oral motion for "some temporary visitation" while the case was proceeding. The court allowed the parties 10 days to submit affidavits in regard to the oral motion. On November 10, the court entered an order appointing an expert witness. On November 15, the court entered an order on Simms' oral motion for temporary visitation. The court stated that it had considered the affidavits filed and the arguments by both parties, but, again, our record does not contain any affidavits. The court granted Simms visitation with the children 1 day each month, from 9 a.m. to 5 p.m., from November 2016 through May 2017.
On November 18, 2016, Friel filed a motion to alter or amend the judgment or, in the alternative, to vacate the November 10 and 15 orders. The court denied the motion in an order entered on December 23 in which it also denied Friel's oral motion for supersedeas bond. Friel appeals.
III. ASSIGNMENTS OF ERROR
Friel assigns, as summarized, that the district court erred in ordering him to provide visitation to Simms because (1) the statutes establishing grandparent visitation do not allow for temporary orders and (2) the court did not make the required statutory findings before ordering grandparent visitation.
IV. STANDARD OF REVIEW
Determinations concerning grandparent visitation are initially entrusted to the discretion of the trial judge, whose determinations, on appeal, will be reviewed de novo on the record and affirmed in the absence of abuse of the trial judge's discretion. Hamit v. Hamit ,
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 ,
V. ANALYSIS
1. JURISDICTION
The parties were previously ordered to address in their appellate briefs the jurisdictional question of whether the temporary order entered on November 15, 2016, was a final, appealable order. Simms thereafter filed a motion to dismiss the appeal, asserting that the order was not a final, appealable order; that Friel failed to timely appeal from the order; and that the appeal of the temporary visitation issue is now moot. We overruled the motion without prejudice to consideration of the jurisdiction issues raised in the motion following *641completion of briefing and submission of the appeal.
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. Al-Ameen v. Frakes, supra.
(a) Final, Appealable Order
For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. In re Interest of Cassandra B. & Moira B .,
*645There is no question that the parent-child relationship is a constitutionally protected right and is entitled to protection from intrusion into that relationship. See In re Guardianship of D.J .,
In re Interest of Zachary W. & Alyssa W. ,
We conclude that the November 15, 2016, order, granting Simms grandparent visitation, affected a substantial right of Friel and was a final, appealable order. And because this was a final, appealable order, Friel's motion to alter or amend the judgment or, in the alternative, to vacate the judgment tolled the time for filing the appeal. See,
(b) Mootness
Friel argues that because the last date covered by the temporary order granting her grandparent visitation was May 25, 2017, the appeal has become moot. We agree that the order *646granting temporary visitation expired by its terms in May 2017 and that thus, the issues presented by Friel in this appeal have become moot.
Mootness does not prevent appellate jurisdiction. But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, appellate courts review mootness determinations under the same standard of review as other jurisdictional questions. Al-Ameen v. Frakes,
An appellate court may choose to review an otherwise moot case under the public interest exception if it involves a matter affecting the public interest or when other rights or liabilities may be affected by its determination.
Friel asserts that the district court did not have authority to issue a temporary order for grandparent visitation as temporary orders are not specifically provided for in the grandparent visitation statutes. He also asserts that the district court failed to make the requisite statutory findings regarding best interests of the child.
Section 43-1802(2) provides as follows:
In determining whether a grandparent shall be granted visitation, the court shall require evidence concerning the beneficial nature of the relationship of the grandparent to the child. The evidence may be presented by affidavit *647and shall demonstrate that a significant beneficial relationship exists, or has existed in the past, between the grandparent and the child and that it would be in the best interests of the child to allow such relationship to continue. Reasonable rights of visitation may be granted when the court determines by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship.
We have found no reported appellate cases that address the specific questions presented by this appeal: whether a district court has authority to issue a temporary order of grandparent visitation and whether the court is required to make specific findings regarding the beneficial relationship between the grandparent and child and the best interests of the child. We therefore choose to apply the public interest exception to the mootness doctrine to provide future guidance for the courts.
2. TEMPORARY GRANDPARENT VISITATION
Friel argues that the district court did not have authority to issue a temporary order granting Simms grandparent visitation. Friel points to the grandparent visitation statutes,
In support of her argument that the district court had authority to issue a temporary order for grandparent visitation, Simms argues that
*648in § 43-1227(4) as a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. Section 43-1227 goes on to set forth the various proceedings which are included in the definition, such as proceedings for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence. The *643definition does not include grandparent visitation proceedings.
Moreover, the inclusion of visitation proceedings within application of the Uniform Child Custody Jurisdiction and Enforcement Act (and its reference to temporary orders) does not lead to the conclusion that temporary orders are necessarily allowed in grandparent visitation proceedings. In the context of legal separation or divorce actions, the statutes specifically provide for temporary orders during the pendency of a proceeding. See
Nevertheless, we note that several grandparent visitation cases have shown that a temporary order was issued during the pendency of the proceeding. See, Hamit v. Hamit ,
We conclude that a district court has inherent authority to issue a temporary order allowing visitation during the pendency of a proceeding for grandparent visitation.
*6493. Findings Required Under § 43-1802(2)
For the sake of completeness, we address Friel's argument that the district court is required to make specific findings before granting grandparent visitation. We agree. As set forth above, § 43-1802(2) provides in part:
Reasonable rights of visitation may be granted when the court determines by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship.
Clearly, a district court must make specific findings as set forth in § 43-1802(2) before granting grandparent visitation.
VI. CONCLUSION
Although Friel's appeal of the order granting Simms temporary visitation with Friel's children is now moot, we determine, under the public interest exception, that a district court has inherent authority to enter temporary orders of visitation in grandparent visitation proceedings. We also determine that a district court is required to make specific findings as set forth in § 43-1802(2) before granting grandparent visitation.
APPEAL DISMISSED .
Reference
- Full Case Name
- Karen SIMMS, biological grandmother and next friend of Megan Marie Friel, minor children v. Jeffrey Allen FRIEL
- Cited By
- 35 cases
- Status
- Published