Bayliss v. Bayliss

592 N.W.2d 165, 8 Neb. Ct. App. 269, 1999 Neb. App. LEXIS 113
CourtNebraska Court of Appeals
DecidedApril 13, 1999
DocketNo. A-97-1269
StatusPublished
Cited by6 cases

This text of 592 N.W.2d 165 (Bayliss v. Bayliss) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayliss v. Bayliss, 592 N.W.2d 165, 8 Neb. Ct. App. 269, 1999 Neb. App. LEXIS 113 (Neb. Ct. App. 1999).

Opinion

Mues, Judge.

INTRODUCTION

Marvin Ray Bayliss appeals the decision of the district court modifying the dissolution decree dissolving his marriage to Judy Lynn Bayliss, now known as Judy Lynn Lewis, by requiring Lewis to pay child support in the amount of $50 per month retroactive to the month the petition to modify was filed. Finding that the district court was without jurisdiction to enter a modification order virtually indistinguishable from another order in the same case on the same issue then pending on [270]*270appeal, we vacate the district court’s order and dismiss this case for lack of jurisdiction.

The issue presented is whether a district court retains jurisdiction under Neb. Rev. Stat. § 42-351(2) (Reissue 1998) to hold a hearing on a motion to modify the decree and to enter an order modifying the decree regarding child support obligations while a prior order modifying the decree and relating to those same child support obligations is on appeal to this court. We conclude it does not.

BACKGROUND

Bayliss and Lewis were married on November 20,1982. Two children were bom during the marriage: Jesse, bom February 28, 1986, and Jeanie, bom January 23, 1988. The couple divorced on November 17, 1993, and Lewis was granted custody with reasonable rights of visitation to Bayliss. Bayliss was ordered to pay child support of $427 per month and one-half of all unreimbursed medical expenses. Bayliss was to pay alimony of $100 per month for 36 months.

According to a joint stipulation, this decree was modified on January 26, 1994, to, inter alia, grant custody to Bayliss with visitation rights to Lewis. In addition, Bayliss’ obligation to pay alimony was extinguished in exchange for offsetting child support obligations from Lewis until November 1996.

On November 14, 1996, Bayliss filed a motion to modify child support, requesting that Lewis be required to pay child support in accordance with the Nebraska Child Support Guidelines and that she be responsible for transportation costs of visitation, one-half of the unreimbursed medical and dental expenses, and one-half of the day-care expenses. Lewis entered a special appearance, alleging that her summons was invalid. The special appearance was overruled, and the matter proceeded to trial on Bayliss’ motion to modify. Lewis chose to stand on her special appearance. On January 10,1997, the court modified the decree and ordered Lewis to pay child support of $50 per month. It also ordered Lewis to be responsible for one-half of the transportation expenses and 38 percent of the daycare and unreimbursed medical expenses. Lewis filed her notice of appeal on January 21, 1997 (initial appeal). In a memoran[271]*271dum opinion filed February 3,1998, the Court of Appeals, finding that the trial court had entered judgment before Lewis had properly been served with a summons, reversed the trial court’s decision and remanded the cause. The Court of Appeals’ mandate was issued on March 5, 1998.

On March 31, 1997, while the initial appeal was pending, Bayliss filed another motion to modify child support, requesting that Lewis be required to pay child support in accordance with Nebraska Child Support Guidelines, pay visitation transportation costs, and contribute to day-care expenses and unreimbursed medical expenses. Lewis demurred because, inter alia, the initial appeal was pending. The district court overruled the demurrer, finding that § 42-351 allowed it to retain jurisdiction while an appeal was pending.

After a trial on October 30, 1997, in which both of the parties testified on their own behalf, the court on November 13 ordered Lewis to pay child support in the amount of $50 per month and ordered each party to be responsible for transportation expenses for visitation. The court also made the child support retroactive to March 1, 1997. Bayliss appeals, and Lewis cross-appeals (second appeal).

ASSIGNMENTS OF ERROR

Bayliss alleges that the trial court erred in setting child support at $50 per month and in finding that Lewis does not owe contributions to visitation transportation costs or unreimbursed medical expenses.

Lewis alleges that the trial court erred in entering a conditional order for retroactive child support.

STANDARD OF REVIEW

An appellate court has the power and duty to determine whether the appellate court has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. In re Interest of Anthony G., 6 Neb. App. 812, 578 N.W.2d 71 (1998).

Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determina[272]*272tion made by the courts below. State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).

DISCUSSION

Jurisdiction.

While neither party raises the issue, we must first address the jurisdictional issue presented by this appeal. Specifically, this court must determine whether, in light of the pending initial appeal, the trial court had jurisdiction on October 30, 1997, to hold a hearing on Bayliss’ motion to modify and to enter an order again modifying child support on November 13.

Generally, once an appeal has been perfected, the trial court has no jurisdiction to determine any issues regarding the subject matter of the litigation. Kricsfeld v. Kricsfeld, ante p. 1, 588 N.W.2d 210 (1999). See McLaughlin v. Hellbusch, 251 Neb. 389, 557 N.W.2d 657 (1997). The November 13, 1997, order from which both parties now appeal was obviously entered after the initial appeal was perfected and before the Court of Appeals’ mandate reversing this modification was issued on March 5, 1998. However, the district court found that it had jurisdiction to enter the second order pursuant to § 42-351. Section 42-351(2) provides:

When final orders relating to proceedings governed by sections 42-347 to 42-381 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding custody, visitation, or support or other appropriate orders in aid of the appeal process.

(Emphasis supplied.) The district court relied on this statute to overrule Lewis’ demurrer and referenced it again in open court at the commencement of the October 30, 1997, hearing on Bayliss’ motion to modify: “We have 42-351 . . . that says for the purpose of child custody, child support and those things, the appeal does not affect the court’s ability to deal with those areas.”

Section 42-351(2) has been held to grant a district court jurisdiction over a motion regarding visitation notwithstanding that the separate issue of child support was on appeal. See Eisenmann v. Eisenmann, 1 Neb. App. 138, 488 N.W.2d 587 [273]*273(1992).

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Cite This Page — Counsel Stack

Bluebook (online)
592 N.W.2d 165, 8 Neb. Ct. App. 269, 1999 Neb. App. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayliss-v-bayliss-nebctapp-1999.