Simms ex rel. Friel v. Friel

911 N.W.2d 636, 25 Neb. Ct. App. 640
CourtNebraska Court of Appeals
DecidedMarch 20, 2018
DocketNo. A-17-054
StatusPublished
Cited by35 cases

This text of 911 N.W.2d 636 (Simms ex rel. Friel v. Friel) 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
Simms ex rel. Friel v. Friel, 911 N.W.2d 636, 25 Neb. Ct. App. 640 (Neb. Ct. App. 2018).

Opinion

Moore, Chief Judge.

*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 Neb. Rev. Stat. § 43-1802(2) (Reissue 2016) before granting grandparent visitation.

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 , 271 Neb. 659, 715 N.W.2d 512 (2006). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in *644a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system. Id.

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).

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 ., 290 Neb. 619, 861 N.W.2d 398 (2015). 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. Id. Therefore, we must consider whether the order of the district court which granted Simms temporary visitation affected a substantial right.

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Related

In re Interest of Brittney Sue P.
Nebraska Court of Appeals, 2019
Simms v. Friel
302 Neb. 1 (Nebraska Supreme Court, 2019)
In re Guardianship of Aimee S.
26 Neb. Ct. App. 380 (Nebraska Court of Appeals, 2018)
Berger v. Dempsey-Cook (In Re Guardianship of Aimee S.)
26 Neb. Ct. App. 380 (Nebraska Court of Appeals, 2018)
Simms v. Friel
25 Neb. Ct. App. 640 (Nebraska Court of Appeals, 2018)

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Bluebook (online)
911 N.W.2d 636, 25 Neb. Ct. App. 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simms-ex-rel-friel-v-friel-nebctapp-2018.