- 375 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

Connie S. Yori, appellee, v. 

Kirk P. Helms, appellant.

___ N.W.2d ___

Filed October 2, 2020. Nos. S-19-520, S-19-840.

1. Contempt: Appeal and Error. In a civil contempt proceeding where 

a party seeks remedial relief for an alleged violation of a court order, 

an appellate court employs a three-part standard of review in which (1) 

the trial court’s resolution of issues of law is reviewed de novo, (2) the 

trial court’s factual findings are reviewed for clear error, and (3) the trial 

court’s determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

2. Parental Rights: Appeal and Error. Whether relief entered in a proceeding to enforce a parent’s rights is reasonably necessary to enforce 

such rights is reviewed for an abuse of discretion.

3. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

4. Contempt. Contempt proceedings may both compel obedience to orders 

and administer the remedies to which the court has found the parties to 

be entitled.

5. ____. In a civil contempt proceeding, for the sanction to retain its civil 

character, the contemnor must, at the time the sanction is imposed, have 

the ability to purge the contempt by compliance and either avert punishment or, at any time, bring it to an end.

6. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing jurisdiction over a dissolution decree includes the power to provide equitable 

relief in a contempt proceeding.

7. Courts: Equity. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial 

action, a court of equity will devise a remedy to meet the situation.

8. Evidence: Appeal and Error. Where credible evidence is in conflict 

on a material issue of fact, the appellate court considers, and may give 

Nebraska Supreme Court Online Library

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

11/13/2020 12:06 AM CST
- 376 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

weight to, the fact that the trial court heard and observed the witnesses 

and accepted one version of the facts rather than another.

9. Jurisdiction: Appeal and Error. 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.

10. ____: ____. Generally, once an appeal has been perfected, the trial court 

no longer has jurisdiction.

11. ____: ____. A trial court’s jurisdiction under Neb. Rev. Stat. § 42-351(2) 

(Reissue 2016) during the pendency of an appeal is properly characterized as jurisdiction in aid of the appeal process.

12. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, the party must be appealing from a 

final order or a judgment.

13. Judgments: Final Orders: Appeal and Error. While all judgments not 

incorrectly designated as such are appealable, an order may be appealed 

only if a statute expressly makes the order appealable or the order falls 

within the statutory definition of a final order.

14. Final Orders: Appeal and Error. To be a final order subject to appellate review, the lower court’s order must (1) affect a substantial right 

and determine the action and prevent a judgment, (2) affect a substantial 

right and be made during a special proceeding, (3) affect a substantial 

right and be made on summary application in an action after a judgment is rendered, or (4) deny a motion for summary judgment which 

was based on the assertion of sovereign immunity or the immunity of a 

government official.

15. Final Orders. The inquiry of whether a substantial right is affected 

focuses on whether the right at issue is substantial and whether the 

court’s order has a substantial impact on that right.

16. ____. Whether an order affects a substantial right depends on whether it 

affects with finality the rights of the parties in the subject matter.

17. Final Orders: Time. The duration of an order is relevant to whether it 

affects a substantial right.

Appeals from the District Court for Lancaster County: John 

A. Colborn, Judge. Judgment in No. S-19-520 affirmed. 

Appeal in No. S-19-840 dismissed.

Gregory D. Barton, of Barton Law, P.C., L.L.O., for 

appellant.

Amie C. Martinez and Megan M. Zobel, of Anderson, 

Creager & Wittstruck, P.C., L.L.O., for appellee.
- 377 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

The district court found Kirk P. Helms in contempt of court 

for violating parenting provisions of a dissolution decree, 

imposed a suspended jail sentence, and modified terms of the 

parenting plan. Helms appealed, arguing that the modifications 

were punitive and not reasonably necessary (first appeal). While 

that appeal was pending, the district court entered an order of 

commitment and a purge order which contained a reduction 

in Helms’ parenting time but set the matter for a review hearing in 41

⁄2 months. Helms appealed that order (second appeal). 

Because the modifications involved in the first appeal were 

part of the equitable relief that the court was authorized to provide, we find no abuse of discretion and affirm. We dismiss the 

second appeal for lack of a final order.

BACKGROUND

Marriage and Dissolution

Helms married Connie S. Yori in 1996, and a child was 

born to the marriage in July 2004. The parties subsequently 

sought to dissolve their marriage and entered into a mediated 

agreement.

On March 1, 2017, the district court entered a decree of 

dissolution. The decree awarded the parties joint legal and 

physical custody of the child. The parenting plan attached to 

the decree contained the terms of the parties’ mediated agreement and addressed topics such as day-to-day decisionmaking, 

alcohol consumption and testing, and parental responsibility 

and cooperation.

Contempt Proceedings

Yori claimed that Helms violated provisions of the parenting plan and mediated agreement. She filed an application for 

an order to show cause in October 2017 and thereafter filed 
- 378 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

several amended applications. The operative pleading, filed in 

September 2018, alleged over 60 violations by Helms of the 

mediated agreement and decree of dissolution. In particular, 

Yori alleged that Helms violated the provisions regarding payment of expenses for the child, medical appointments for the 

child, cooperation between the parents, and Helms’ consumption of alcohol and compliance with alcohol testing.

Trial began in October 2018 but needed to be continued to 

December. In November, Helms moved to continue the hearing. The court sustained the motion, subject to provisions contained in a temporary order. Trial resumed in March 2019.

The December 2018 temporary order addressed transportation of the child and also gave Yori “final say on matters 

relating to the minor child’s sports and athletics.” It ordered 

that during the pendency of the proceedings, Yori or her 

designated representative be allowed to provide the child’s 

transportation to and from all religious confirmation or youth 

group activities, educational meetings or events relating to an 

educational action plan, athletic practices, and athletic tournaments or games.

During a February 2019 hearing, the court clarified its intent 

with respect to the December 2018 temporary order. The court 

explained that its intent was for Yori to transport the child to 

the various activities, even if the activities occurred during 

Helms’ parenting time. The court stated that Yori “either is 

to return the child or, if . . . Helms is present at that activity, 

I don’t think there was any objection to him taking the child 

home from that activity, at least, from an email here it says 

you can take him home afterwards.” The court repeated, “The 

purpose and intent of this is to make sure the child makes it to 

all the activities . . . .”

During the hearings on Yori’s application for an order to 

show cause, a number of witnesses testified on Yori’s behalf. 

Tim McGovern, who coached the child’s basketball team with 

Yori, testified that during a meeting with the players’ parents, 

Helms said that Yori was bullying the children and should 

not be trusted to be in charge of their sons. It appeared to 
- 379 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

McGovern that “trying to make [Yori] look bad was the goal.” 

McGovern testified that he observed Helms at the child’s basketball tournaments and had concerns that Helms was under 

the influence of alcohol.

Other witnesses echoed McGovern’s testimony. Jennifer 

Cramer, who attended the meeting mentioned by McGovern, 

testified that Helms told the parents that Yori was abusive to 

the players and to him during their marriage. Cramer complained to Helms at that meeting about his failure to bring the 

child to practices or games. At a May 2018 basketball tournament, Cramer observed Helms exhibiting abnormal behavior, 

including “flip[ping her] off” in the presence of parents and 

children. Another parent testified about her concerns that 

Helms was under the influence of alcohol at the child’s basketball tournaments. She testified that she smelled alcohol on 

him and that she observed him “walk across the court, flipping off . . . towards our area.” Helms denied standing in the 

middle of a basketball court and flipping off the crowd. He 

also denied attending any of the child’s basketball games or 

events while under the influence of alcohol. But in February 

2019, Helms was arrested for driving under the influence on 

his way home from attending the child’s basketball event. At 

the time of the hearing, Helms did not have a driver’s license 

and relied on transportation by bicycle or bus or as provided 

by his family.

Yori testified about difficulties in obtaining reimbursement 

from Helms for the child’s medical expenses. She sent numerous emails to Helms, requesting reimbursement and including 

itemizations of expenses and copies of each billing statement. 

Helms did not reimburse Yori because she did not send him the 

insurer’s explanation of benefits and instead sent handwritten 

information and amounts. He also asked Yori to sign a release 

so that he could talk with the healthcare provider, but she did 

not do so.

The parties testified regarding issues with alcohol monitoring through Soberlink. The decree required Helms to keep 

Soberlink in place and to test during his parenting time at 
- 380 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

8 a.m., 2 p.m., and 10 p.m. Six weeks after entry of the decree, 

Helms submitted a change request form to Soberlink, directing that Yori not be listed as a concerned party. Although a 

Soberlink form showed a change in the concerned party name 

to Helms’ sister, Helms testified that he just intended to add 

his sister as a contact. The same page of the form identified 

Yori as someone who is to receive test results. Helms testified 

that Yori never informed him that she was not timely receiving 

Soberlink reports and that he did not recall her complaining 

about not being listed as a concerned party.

Helms also reduced the Soberlink monitoring from “Level 

2” to “Level 1” monitoring. With Level 1 monitoring, in contrast with Level 2 monitoring, Yori does not receive missed 

tests alerts and Helms does not have scheduled testing. Helms 

testified that he switched from Level 2 to Level 1 because it 

was his understanding that dates and times for testing could not 

be changed on Level 2. He felt that Level 1 would work better 

under the parenting agreement, because dates when the child 

would be with him would not stay the same all year long.

Yori testified that through the summers of 2017 and 2018, 

Helms routinely missed Soberlink testing at 2 p.m. on Fridays. 

According to Helms, he tested at all required times when 

the child was with him. But if his parenting time ended at 3 

p.m., he would not take the 2 p.m. test unless he had to pick 

the child up for some reason. He admitted there was no language in the decree excusing him from taking a test at 2 p.m. 

on Fridays.

The decree gave Yori “final say” regarding educational 

and religious issues. Yori informed Helms that she wanted 

the child to participate in religious confirmation preparation, 

but she testified that Helms expressed unwillingness to allow 

the child to participate. Yori testified that because the child 

was struggling in school, his counselor and teacher devised a 

plan to help him which included arriving at school 30 minutes 

early. But of the 11 sessions during Helms’ parenting time, the 

child attended only 3. Yori testified that in April 2018, during 

Helms’ parenting time, the child was suspended from school 
- 381 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

and Helms did not inform her of a meeting with the principal 

and vice principal. Helms did not respond to Yori’s request 

inquiring of the consequences for the child.

Yori had concerns about the child’s attendance at athletic 

events. She testified that in the summer of 2017, Helms took 

the child to only 3 of 18 practices. She felt that Helms acted 

in a retaliatory fashion when he removed the child from an 

athletic team. Even after the court entered the temporary order 

allowing Yori to transport the child to and from events, Helms 

attempted to transport the child.

Order of Contempt

On May 1, 2019, the court entered an order of contempt. 

The court found that Helms willfully, intentionally, and contumaciously violated multiple provisions of the decree, including the obligation to not consume alcohol, to continue with 

Soberlink as ordered, and to comply with the parenting responsibilities and cooperation language. It also found that it had the 

authority to modify the decree as it related to the child in order 

to remedy the contempt. The court committed Helms to jail for 

21 days, but suspended execution of the sentence as long as 

Helms complied with several terms of the order. Among others, 

the terms included:

•refraining from consuming alcohol through December 31, 

2022;

•refraining from attending any practices for the child;

•allowing Yori or her designee to pick the child up from 

Helms’ house for various specified reasons and return the 

child following the event; and

•giving Yori “final say” on “all athletic issues and sports 

participation, religious activities, school activities, medical 

issues, and all other issues regarding the minor child’s participation, education and development.”

The court ordered that Helms comply with the purge plan for 

36 months.

On May 29, 2019, Helms filed a notice of appeal. The first 

appeal is docketed as case No. S-19-520.
- 382 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

Motion for Commitment

In July 2019, while the first appeal was pending, Yori moved 

for Helms’ commitment pursuant to the order of contempt. An 

amended motion additionally requested attorney fees and “such 

further and equitable relief as this Court deems just and equitable including, but not limited to, a modification of [Helms’] 

parenting time.”

Yori alleged that Helms violated the decree of dissolution in 

numerous ways. She alleged Helms failed to timely reimburse 

her for the child’s health care expenses, disparaged her in the 

child’s presence, failed to promptly notify her of orthodontic 

appointments scheduled for the child, scheduled the child’s 

orthodontic appointments during times that conflict with the 

child’s other activities, and scheduled an appointment for the 

child regarding an ankle injury without informing Yori of 

the time.

Yori also alleged that Helms failed to abide by multiple provisions of the order of contempt. Specifically, she alleged that 

Helms refused to allow Yori to transport the child to and from 

athletic events, refused to commence counseling to address the 

family dynamic, refused to allow Yori to speak with the child 

on the telephone, and failed to reimburse Yori for half of the 

cost of the child’s athletic activities.

During a hearing, Yori testified that it was important that she 

transport the child after events because Helms had removed the 

child from events early. Yori testified that a recurring problem 

was Helms’ demanding to transport the child. On one occasion, Yori arrived at Helms’ residence to pick the child up for 

a weightlifting session, but the child was still sleeping even 

though Yori communicated with Helms about the session earlier that morning.

Yori also presented evidence concerning Helms’ failure to 

pay his share of expenses. Despite Yori’s sending Helms a 

request for payment with attachments, including the explanation of benefits, Helms had not paid. Helms testified that he 

notified Yori that the explanation of benefits was not attached, 
- 383 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

but that she did not respond. He said he would pay his share 

if he received those documents. Yori also requested payment 

for athletic expenses, including hotel charges for out-of-state 

tournaments. But she had not received payment for anything 

sent in a July 8, 2019, email. Helms did not have any evidence 

that he paid Yori for any expenses she had incurred since May 

1, 2019.

On May 14, 2019, Yori sent Helms a copy of the court’s 

order requiring him to immediately commence counseling with 

a mutually agreed-upon provider and included the names of 

three counselors. On May 28, she sent another email stating 

that she had not received any communication regarding which 

counselor Helms had selected. Helms testified that he made an 

appointment but had not seen a counselor yet.

Yori claimed that Helms refused to allow her to speak to the 

child on May 1 and 12, 2019. According to Helms, Yori called 

to say that the child did not answer and to ask Helms to have 

the child call her. Helms was not home at the time, so he sent 

the child a text, told him to call Yori, and “left it at that.” On 

one occasion, Helms spoke with the child on the telephone for 

38 minutes, exceeding his 20-minute telephone call limit, but 

he did not realize he had done so because he “usually do[es]n’t 

keep track” when speaking to the child.

Order of Commitment

On August 1, 2019, the court entered an order of commitment. It committed Helms to the Lancaster County Department 

of Corrections for 21 days.

The next day, the court entered a purge order. It ordered 

Helms to serve his 21-day commitment, but stated that he shall 

be released from custody so long as he met the following terms: 

paid $513.74 for past-due athletic expenses, paid $537.34 for 

past-due medical expenses, and paid $5,000 in attorney fees.

The purge order contained additional terms. The court 

ordered that Helms immediately commence counseling per the 

May 1, 2019, order of contempt. It declared that Yori “shall 
- 384 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

have initial and final say on all medical, dental and orthodontic appointments for the minor child.” The order stated 

that Helms

is allowed to attend such appointments but shall not 

schedule such appointments nor transport the minor child 

to or from such appointments. [Yori] shall be contacted in 

the event [Helms] believes any medical, dental or orthodontic issue has arisen. [Yori] will be responsible for 

making any decision as to whether an appointment is necessary. [Helms] is granted authority only to take the minor 

child for emergent situations to the emergency room or 

Urgent Care during his parenting time. In the event he 

does so, he shall immediately notify [Yori] of the same 

including the reason for the emergent visit, and the location to which he will be taking the minor child.

The court reduced Helms’ parenting time from a “7/7” schedule to a “10/4” schedule, which it stated it was doing “[t]emporarily” until December 19 or until further order of the court. 

The court ordered Helms to not denigrate Yori in the child’s 

presence, to direct the child to do as Yori has decided, to support Yori’s decisions related to the child, and to “not sit silently 

with regard to those decisions.”

The court set the matter for a review hearing on December 

19, 2019. The court explained that the purpose of the review 

hearing would be to allow Helms to prove his compliance 

with the court’s orders and to “adduce evidence as to the best 

interest of the minor child to support [Helms’] request for reinstatement of the original parenting time schedule.” The court 

stated that it would then address whether changes should be 

made to the 10/4 parenting time schedule. During the hearing, 

the court stated that if Helms was in compliance, the parenting schedule would “likely” go back to the 7/7 schedule. The 

court ordered that all provisions of prior court orders, except 

those specifically modified, shall remain in full force and 

effect. The court ordered Helms to comply with the purge 

plan for 36 months and provided that if he failed to do so, “he 
- 385 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

shall be immediately detained for a period of 21 days in the 

Lancaster County jail.”

On September 3, 2019, Helms filed a notice of appeal, stating his intent to appeal from the August 2 purge order. The 

second appeal is docketed as case No. S-19-840.

ASSIGNMENTS OF ERROR

In the first appeal, Helms assigns several errors to the district court’s parenting plan modifications which he claims went 

beyond what was reasonably necessary and were punitive and 

therefore contrary to the law and the evidence. Specifically, he 

challenges (1) the “transportation provisions” of the original 

mediated parenting plan, (2) the modifications banning him 

from attending the child’s athletic and piano practices, and 

(3) the “final say provisions” of the original mediated parenting plan.

In the second appeal, Helms assigns that the court erred by 

(1) reducing his parenting time by 43 percent, (2) making parenting plan modifications that were not reasonably necessary to 

enforce Yori’s rights, and (3) finding he was in arrears on his 

obligation to pay half of the child’s athletic expenses.

STANDARD OF REVIEW

[1] In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate 

court employs a three-part standard of review in which (1) the 

trial court’s resolution of issues of law is reviewed de novo, (2) 

the trial court’s factual findings are reviewed for clear error, 

and (3) the trial court’s determinations of whether a party is in 

contempt and of the sanction to be imposed are reviewed for 

abuse of discretion. 1

[2] Whether relief entered in a proceeding to enforce a parent’s rights is reasonably necessary to enforce such rights is 

reviewed for an abuse of discretion. 2

1 Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020).

2 See Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).
- 386 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

[3] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law. 3

ANALYSIS

First Appeal

The court modified the parenting plan after finding Helms 

to be in contempt. Helms does not contest the finding of contempt. Nor does he dispute the court’s authority to modify the 

decree and parenting plan. Rather, he challenges particular 

modifications included in the order of contempt and purge 

plan. He claims that those modifications were punitive and 

were not reasonably necessary.

[4,5] Contempt proceedings may both compel obedience 

to orders and administer the remedies to which the court has 

found the parties to be entitled. 4 The sanction in a civil contempt proceeding is both remedial and coercive. 5 In a civil contempt proceeding, for the sanction to retain its civil character, 

the contemnor must, at the time the sanction is imposed, have 

the ability to purge the contempt by compliance and either 

avert punishment or, at any time, bring it to an end. 6

[6] A court’s continuing jurisdiction over a dissolution decree 

includes the power to provide equitable relief in a contempt 

proceeding. 7 Neb. Rev. Stat. § 42-364.15(1) (Reissue 2016) 

explicitly authorizes a court to “enter such orders as are reasonably necessary to enforce rights of either parent including 

the modification of previous court orders relating to parenting 

time, visitation, or other access” and to “use contempt powers 

to enforce its court orders relating to parenting time, visitation, 

or other access.”

3 Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

4 Martin v. Martin, supra note 2.

5 See Braun v. Braun, supra note 1.

6 Id.

7 Martin v. Martin, supra note 2.
- 387 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

Helms argues that certain modifications were punitive rather 

than coercive and that they were not reasonably necessary to 

protect Yori’s rights under the parenting plan. He challenges 

as punitive the transportation provisions, the ban on his attendance at athletic and piano practices, and the final say provisions. He argues that the transportation provisions were punitive because the purpose was to ensure that the child make it to 

all of his activities; thus, it was unnecessary to give Yori control over transportation from the event. He also argues that they 

are punitive because there is nothing he can do to avoid them 

through his conduct—they are unconditional. Helms argues 

that there was no factual or remedial justification to ban him 

from attending the child’s athletic and musical practices or 

to deprive him of final say over the child’s participation in 

musical activities or any say regarding participation in athletic 

events. He contends that the alcohol and Soberlink testing provisions were not reasonably necessary to protect Yori’s rights 

under the parenting plan.

In characterizing the modifications as punitive, Helms 

appears to be trying to impose a “least remedial measure” rule. 

But that is not consistent with statute. Section 42-364.15(1) 

empowers the court to solve the problem. Rather than a sanction, the modifications here were remedial measures to gain 

compliance. While it is possible that a modification could be 

so extreme that it qualifies as a sanction, the modifications here 

do not rise to that level.

[7] Where a situation exists that is contrary to the principles 

of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the 

situation. 8 Here, the court had the equitable authority, within 

the contempt proceeding, to modify the decree and parenting 

plan to remedy issues that led to contempt.

[8] The evidence showed that the remedial modifications 

were reasonably related to behavior prompting the contempt 

8 Id.
- 388 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

proceeding. Yori adduced evidence that Helms violated the 

parenting plan on numerous occasions and in numerous ways. 

Where credible evidence is in conflict on a material issue of 

fact, the appellate court considers, and may give weight to, 

the fact that the trial court heard and observed the witnesses 

and accepted one version of the facts rather than another. 9

There was evidence that Helms expressed an unwillingness to 

allow the child to participate in some events, failed to transport him to educational meetings and practices, and had him 

depart early from other events. The court also heard testimony 

about Helms’ intoxication and inappropriate behavior at the 

child’s athletic games and practices. And Yori testified that 

he had been confrontational. We conclude the modifications 

about which Helms complains were part of the equitable relief 

that the court is authorized to provide. 10 We find no abuse 

of discretion.

Second Appeal

[9] 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. 11 This appeal presents 

two distinct jurisdictional issues: whether the district court possessed jurisdiction to further modify aspects of the parenting 

plan and whether Helms has appealed from a final order.

[10,11] Helms argues that the district court did not have 

jurisdiction to further modify the final say provisions of the 

parenting plan while an appeal concerning the final say provisions was pending. Generally, once an appeal has been perfected, the trial court no longer has jurisdiction. 12 But under 

Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court retains 

jurisdiction for certain matters. Section 42-351(2) provides:

9 Id.

10 See id.

11 Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 

(2018).

12 Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
- 389 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

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 support, 

custody, parenting time, visitation, or other access . . . 

or other appropriate orders in aid of the appeal process. 

Such orders shall not be construed to prejudice any party 

on appeal.

A trial court’s jurisdiction under § 42-351(2) during the pendency of an appeal is properly characterized as jurisdiction in 

aid of the appeal process. 13

A trial court’s jurisdiction to modify a decree regarding 

an issue which is pending appeal is not unlimited. Section 

42-351(2) does not grant a trial court authority to hear and 

determine anew the very issues then pending on appeal and 

to enter permanent orders addressing these issues during the 

appeal process. 14 In the first appeal, Helms opposed modifications to provisions regarding transportation, the ban on his 

attendance at athletic and piano practices, the final say provisions, and his alcohol use and testing. Following the filing of 

the notice of appeal, the district court held further hearings, 

but it did not make new determinations about the identical 

issues being appealed. Rather, in the August 2019 purge order, 

the court set forth terms for Helms to comply with in order to 

be released from jail. This falls within the court’s continuing 

jurisdiction to provide for such orders regarding parenting time 

or other access.

[12,13] Yori contends that the August 2019 order is not a 

final, appealable order. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final 

order or a judgment. 15 A judgment is the final determination 

13 See Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).

14 Burns v. Burns, supra note 12.

15 State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 701 (2020).
- 390 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

of the rights of the parties in an action. 16 Every direction of the 

court made or entered in writing and not included in a judgment is an order. 17 While all judgments 18 not incorrectly designated as such 19 are appealable, an order may be appealed only 

if a statute expressly makes the order appealable or the order 

falls within the statutory definition of a final order. 20

[14] Under our final order statute, 21 to be a final order 

subject to appellate review, the lower court’s order must (1) 

affect a substantial right and determine the action and prevent 

a judgment, (2) affect a substantial right and be made during a 

special proceeding, (3) affect a substantial right and be made 

on summary application in an action after a judgment is rendered, or (4) deny a motion for summary judgment which was 

based on the assertion of sovereign immunity or the immunity 

of a government official. 22 Proceedings regarding modification of a marital dissolution are special proceedings. 23 And we 

have described a contempt order as one made upon a summary 

application in an action after judgment. 24 Here, our focus is 

not upon the procedural classification under § 25-1902, but, 

rather, whether the order affected a substantial right of one or 

more parties. 25

[15,16] The inquiry of whether a substantial right is 

affected focuses on whether the right at issue is substantial 

and whether the court’s order has a substantial impact on that 

16 Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018).

17 State v. Fredrickson, supra note 15.

18 See § 25-1301(1) (defining judgment).

19 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).

20 See State v. Fredrickson, supra note 15.

21 See Neb. Rev. Stat. § 25-1902 (Supp. 2019).

22 See State v. Fredrickson, supra note 15.

23 Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).

24 See McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).

25 See State v. Fredrickson, supra note 15.
- 391 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

right. 26 Whether an order affects a substantial right depends on 

whether it affects with finality the rights of the parties in the 

subject matter. 27 An order affects a substantial right when the 

right would be significantly undermined or irrevocably lost by 

postponing appellate review. 28

[17] The duration of an order is relevant to whether it affects 

a substantial right.

 29 In several cases, we have determined that 

orders temporarily affecting a parent’s custodial, visitation, or 

educational rights were not final. 30 With respect to a visitation 

order in a guardianship proceeding, we stated that where a 

final guardianship hearing was scheduled for 3 weeks later, an 

order that effectively denied visitation until that hearing did not 

affect a substantial right because “the length of time that [the 

mother’s] relationship with [the child] was to be disturbed was 

brief, and the order was not a permanent disposition.” 31

Here, the court did not intend its order to be a permanent 

disposition. The order stated in part:

IT IS FURTHER ORDERED that this matter be set 

for review hearing on Thursday, December 19, 2019 at 

1:30 p.m. At such hearing, [Helms] shall be allowed 45 

minutes to present evidence. [Yori] shall be awarded a 

like amount of time. The purpose of the review hearing 

shall be to allow [Helms] to prove his compliance with 

the Court’s orders and adduce evidence as to the best 

interest of the minor child to support [Helms’] request 

for reinstatement of the original parenting time schedule. 

26 See id.

27 Id.

28 Id.

29 Tilson v. Tilson, supra note 23.

30 See, id.; In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 

(2013); Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009); Gerber 

v. Gerber, 218 Neb. 228, 353 N.W.2d 4 (1984).

31 In re Guardianship of Sophia M., 271 Neb. 133, 139, 710 N.W.2d 312, 317 

(2006).
- 392 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

YORI v. HELMS

Cite as 307 Neb. 375

The Court notes it is specifically interested in [Helms’] 

compliance with the Court’s orders and the information 

from Dr. Williams. The Court will address what changes, 

if any, should be made to the 10/4 parenting time schedule as in the best interest of the minor child.

And the court orally advised that it was changing Helms’ parenting time “[t]emporarily” and that the “temporary order” 

would be in effect until December 19, 2019. The court anticipated that the parenting schedule would “likely” revert to the 

7/7 schedule if Helms complied with the purge order.

That the court planned to revisit the parenting time schedule 

in 41⁄2 months demonstrates the temporary nature of the order. 

We recognize that the length of time involved here is perhaps 

on the outer edge of what would be considered a temporary 

disturbance, but we cannot say the reduction in parenting time 

from a 7/7 schedule to a 10/4 schedule for 41⁄2 months affects 

a substantial right.

Because the order did not affect a substantial right of Helms, 

it is not a final order that may be appealed under § 25-1902. 

We dismiss the second appeal for lack of jurisdiction.

CONCLUSION

In the first appeal, we conclude that the court’s modifications were part of the equitable relief that it had the authority 

to provide to remedy issues that led to contempt. We find no 

abuse of discretion and affirm the district court’s judgment. 

Because the second appeal was not taken from a final order, we 

dismiss it for lack of jurisdiction.

Judgment in No. S-19-520 affirmed.

Appeal in No. S-19-840 dismissed.