Simms v. Friel
Simms v. Friel
Opinion
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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,
BACKGROUND
District Court.
Simms, the maternal grandmother of Friel's three minor children, filed a petition for grandparent visitation under
After an attempt to resolve the matter through mediation failed, Simms made an oral motion for "some temporary **3 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 *372 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
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cases addressing the issues on appeal, consideration was warranted under the public interest exception to the mootness doctrine. See
Simms v. Friel,
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,
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,
ANALYSIS
Before reaching the legal issues presented for review, it is our duty to determine whether we have jurisdiction to
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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
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taken.
Jennifer T. v. Lindsay P.,
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
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,
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
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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,
In
Carmicheal v. Rollins,
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In
Huskey v. Huskey,
As Steven S. , Carmicheal , and Huskey illustrate, an order that reduces a party's custody or visitation rights on a temporary basis pending a more permanent disposition does not generally affect a substantial right for purposes of § 25-1902. The order granting Simms temporary visitation in this case is such an order. The order did not affect Friel's custody at all. It disturbed his relationship with his children only to the extent it provided for 1 day of visitation per month between November 2016 and May 2017. Most importantly for purposes of analyzing whether the order affected a substantial right, it specifically said it was granting Simms' motion for "temporary visitation" and did not provide for any visitation after May 2017. Further, the district court set the matter for trial after granting the visitation order at issue, dispelling any possible belief that the order was not temporary.
We have previously recognized that circumstances could arise wherein successive temporary orders or a temporary order of long duration could affect a substantial right and constitute a final order, despite being labeled "temporary." See Huskey v. Huskey, supra. But there is no indication of successive orders here, and the duration of the order is no longer than other temporary orders we have found to not affect a substantial right. See, Huskey v. Huskey, supra ; Carmicheal v. Rollins, supra. We thus see no basis in the controlling case law to find that the order at issue affected a substantial right.
The Court of Appeals found that the order of temporary visitation affected a substantial right in reliance on
In re Interest of Cassandra B. & Moira B.,
In
In re Interest of Cassandra B. & Moira B., supra,
we held that a juvenile court order prohibiting a parent from
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homeschooling her child affected a substantial right, but we explicitly characterized the order there as not temporary. We pointed out that the order was subject to reconsideration at a review hearing in approximately 6 months, but the juvenile court was required to review the case every 6 months and thus "no order would have a longer duration than that."
Id. at 626,
At oral argument, counsel for both parties expressed hope that this court could provide guidance as to whether temporary orders are permitted in grandparent visitation proceedings. As counsel observed, the grandparent visitation statutes do not refer to temporary orders and this court has never before addressed whether such orders are permissible. But as helpful as resolution of this issue by this court might be, we do not have the authority to resolve issues merely because it would be
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helpful. Our appellate jurisdiction, as defined by statute, is limited to reviewing final orders or judgments. See, e.g.,
Heckman v. Marchio,
CONCLUSION
Contrary to the Court of Appeals' findings, we hold that the district court's order of temporary grandparent visitation did not affect a substantial right and that therefore, the Court of Appeals lacked jurisdiction to decide the issues presented for review. It follows that we too lack jurisdiction and that the appeal is subject to dismissal. We thus affirm the Court of Appeals' dismissal of the appeal, albeit on different grounds.
AFFIRMED .
Reference
- Full Case Name
- Karen SIMMS, Biological Grandmother and Next Friend of Megan Marie Friel Et Al., Minor Children, Appellee, v. Jeffrey Allen FRIEL, Appellant.
- Cited By
- 127 cases
- Status
- Published