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Nebraska Supreme Court Advance S

302 Nebraska Report

SIMMS v. FRIEL

Cite as 302 Neb. 1

Karen Simms, biological grandmoth

next friend of Megan Marie Friel et

minor children, appellee, v. Jeff

Allen Friel, appell

___ N.W.2d ___

Filed January 11, 2019. No. S-17-054.

1. Judgments: Jurisdiction: Appeal and Error. 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.

2. Jurisdiction: Final Orders: Appeal and Error. 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.

3. Final Orders: Appeal and Error. 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.

4. ____: ____. An order affects a substantial right when the right would 

be significantly undermined or irrevocably lost by postponing appellate review.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann, Judge, and Inbody, J

Retired, on appeal thereto from the District Court for Sarpy 

County, Stefanie A. Martinez, County Judge. Judgmen

Court of Appeals affirmed.

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

appellant.

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

for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/08/2019 08:09 AM CST
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SIMMS v. FRIEL

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Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

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 
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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 [t]emporary [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, 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

[1] 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

[2] 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 
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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.

[3,4] 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. 
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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 Carmichael 

v. Rollins, supra, we held that the order did not affect a substantial right. We pointed out that the order did not make a 

“permanent disposition,” but “affected the custody arrangement of the parties only temporarily.” Huskey v. Huskey, 289 

Neb. at 451, 855 N.W.2d at 387. We also emphasized that the 
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order would disrupt, but not substantially reduce, the father’s 

parenting time.

As Steven S., Carmichael, 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; Carmichael 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., 290 Neb. 619, 861 N.W.2d 398 

(2015), and In re Interest of Zachary W. & Alyssa W., 3 Neb. 

App. 274, 526 N.W.2d 233 (1994). See Simms v. Friel, 25 Neb. 

App. 640, 911 N.W.2d 636 (2018). We find that these cases do 

not squarely address the order at issue here.

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, 861 N.W.2d at 404. And while the order at issue in In re 

Interest of Zachary W. & Alyssa W. granted grandparent visitation, the visitation was for an unspecified and indefinite period 

of time. Neither of these cases involved truly temporary orders 

like the one at issue here.

Friel makes a slightly different argument as to whether 

the order affected a substantial right. He contends that 

because a district court must make certain findings set forth 

in § 43-1802(2) before ordering any grandparent visitation 

and because the district court ordered grandparent visitation 

in its November 2016 order, the district court “determine[d] 

the action.” Brief for appellant at 1. We understand Friel to be 

contending that despite the temporary nature of the November 

2016 order, the district court could only have awarded visitation consistent with § 43-1802(2) if it made the findings necessary to finally decide the petition for visitation and that thus, 

the order affects a substantial right. We have recently rejected 

substantially the same argument, however, finding that even if 

the findings necessary to make a temporary and final disposition of a matter are the same, it does not follow that a temporary order is appealable. See In re Interest of Zachary B., 299 

Neb. 187, 907 N.W.2d 311 (2018).

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, 296 Neb. 458, 894 N.W.2d 296 (2017). Because 

there is no final order or judgment to be reviewed in this case, 

there is no appellate jurisdiction. The Court of Appeals should 

not have addressed the merits, and neither can we.

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