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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

SIMMS v. FRIEL

Cite as 25 Neb. App. 640

Karen Simms, biological grandmother and

next friend of Megan Marie Friel et al., 

minor children, appellee, v. Jeffrey

Allen Friel, appellant.

___ N.W.2d ___

Filed March 20, 2018. No. A-17-054.

1. Visitation: Appeal and Error. 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.

2. Judges: Words and Phrases. 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 a 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.

3. 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.

4. 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.

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

6. 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.

7. Juvenile Courts: Parental Rights: Parent and Child: Time: Final 

Orders. Whether a substantial right of a parent has been affected by 

an order in juvenile court litigation is dependent upon both the object 

Nebraska Supreme Court Online Library

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

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25 Nebraska Appellate Reports

SIMMS v. FRIEL

Cite as 25 Neb. App. 640

of the order and the length of time over which the parent’s relationship 

with the juvenile may reasonably be expected to be disturbed.

8. Moot Question: Jurisdiction: Appeal and Error. Mootness does not 

prevent appellate jurisdiction. But, because mootness is a justiciability 

doctrine that operates to prevent courts from exercising jurisdiction, 

appellate courts review mootness determinations under the same standard of review as other jurisdictional questions.

9. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of the litigation.

10. Moot Question: Words and Phrases. A moot case is one which seeks 

to determine a question which does not rest upon existing facts or rights, 

in which the issues presented are no longer alive.

11. Moot Question. As a general rule, a moot case is subject to summary dismissal.

12. Moot Question: Appeal and Error. An appellate court may choose to 

review an otherwise moot case under the public interest exception if it 

involves a matter affecting the public interest or when other rights or 

liabilities may be affected by its determination.

13. ____: ____. When determining whether a case involves a matter of public interest, an appellate court considers the public or private nature of 

the question presented, the desirability of an authoritative adjudication 

for future guidance of public officials, and the likelihood of future recurrence of the same or similar problem.

14. Courts: Visitation. A district court has inherent authority to issue a 

temporary order allowing visitation during the pendency of a proceeding 

for grandparent visitation.

15. ____: ____. A district court must make specific findings as set forth in 

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

Appeal from the District Court for Sarpy County: Stefanie

A. Martinez, County Judge. Appeal dismissed.

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

appellant.

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

appellee.

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

Judge, Retired.
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

SIMMS v. FRIEL

Cite as 25 Neb. App. 640

Moore, Chief Judge.

I. 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 initially 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 
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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

the 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

[1,2] 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 
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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

a 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.

[3] 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 completion of 

briefing and submission of the appeal.

[4] 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

[5,6] 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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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

[7] There is no question that the parent-child relationship is 

a constitutionally protected right and is entitled to protection 

from intrusion into that relationship. See In re Guardianship 

of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004). 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. In re Interest of Cassandra B. & Moira B., supra. In 

In re Interest of Cassandra B. & Moira B., an order affecting 

a parent’s educational rights to a juvenile that lasted approximately 6 months was found to be appealable as affecting a 

substantial right.

In re Interest of Zachary W. & Alyssa W., 3 Neb. App. 274, 

526 N.W.2d 233 (1994), was an appeal involving an order by 

the juvenile court granting grandparent visitation for an indeterminate period of time until at least an upcoming adjudication hearing. This court found that the order being appealed 

was of “sufficient importance and may reasonably be expected 

to last a sufficiently long period of time that the order affects 

a substantial right of [the parent].” Id. at 278, 526 N.W.2d 

at 237.

We conclude that the November 15, 2016, order, granting 

Simms grandparent visitation, affected a substantial right of 

Friel and was a final, appealable order. And because this was 

a final, appealable order, Friel’s motion to alter or amend the 

judgment or, in the alternative, to vacate the judgment tolled 

the time for filing the appeal. See, Neb. Rev. Stat. § 25-1239 

(Reissue 2016); Neb. Rev. Stat. § 25-1912(3) (Reissue 2016). 

Friel’s notice of appeal was timely filed from the December 23 

order overruling his motion.

(b) Mootness

Friel argues that because the last date covered by the temporary order granting her grandparent visitation was May 25, 

2017, the appeal has become moot. We agree that the order 
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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

granting temporary visitation expired by its terms in May 2017 

and that thus, the issues presented by Friel in this appeal have 

become moot.

[8-11] Mootness does not prevent appellate jurisdiction. 

But, because mootness is a justiciability doctrine that operates 

to prevent courts from exercising jurisdiction, appellate courts 

review mootness determinations under the same standard of 

review as other jurisdictional questions. Al-Ameen v. Frakes, 

293 Neb. 248, 876 N.W.2d 635 (2016). A case becomes moot 

when the issues initially presented in litigation cease to exist 

or the litigants lack a legally cognizable interest in the outcome of the litigation. Id. A moot case is one which seeks to 

determine a question which does not rest upon existing facts 

or rights, in which the issues presented are no longer alive. 

Id. As a general rule, a moot case is subject to summary dismissal. Id.

[12,13] An appellate court may choose to review an otherwise moot case under the public interest exception if it 

involves a matter affecting the public interest or when other 

rights or liabilities may be affected by its determination. Id. 

This exception requires a consideration of the public or private nature of the question presented, the desirability of an 

authoritative adjudication for future guidance of public officials, and the likelihood of future recurrence of the same or 

similar problem. Id.

Friel asserts that the district court did not have authority to 

issue a temporary order for grandparent visitation as temporary 

orders are not specifically provided for in the grandparent visitation statutes. He also asserts that the district court failed to 

make the requisite statutory findings regarding best interests of 

the child.

Section 43-1802(2) provides as follows:

In determining whether a grandparent shall be granted 

visitation, the court shall require evidence concerning the 

beneficial nature of the relationship of the grandparent 

to the child. The evidence may be presented by affidavit 
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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

and shall demonstrate that a significant beneficial relationship exists, or has existed in the past, between the 

grandparent and the child and that it would be in the 

best interests of the child to allow such relationship to 

continue. Reasonable rights of visitation may be granted 

when the court determines by clear and convincing evidence that there is, or has been, a significant beneficial 

relationship between the grandparent and the child, that 

it is in the best interests of the child that such relationship continue, and that such visitation will not adversely 

interfere with the parent-child relationship.

We have found no reported appellate cases that address the 

specific questions presented by this appeal: whether a district 

court has authority to issue a temporary order of grandparent visitation and whether the court is required to make specific findings regarding the beneficial relationship between the 

grandparent and child and the best interests of the child. We 

therefore choose to apply the public interest exception to the 

mootness doctrine to provide future guidance for the courts.

2. Temporary Grandparent

Visitation

Friel argues that the district court did not have authority to 

issue a temporary order granting Simms grandparent visitation. 

Friel points to the grandparent visitation statutes, Neb. Rev. 

Stat. § 43-1801 et seq. (Reissue 2016), which do not contain a 

specific reference to temporary orders.

In support of her argument that the district court had authority to issue a temporary order for grandparent visitation, 

Simms argues that Neb. Rev. Stat. § 43-1227(3) (Reissue 

2016) defines “[c]hild custody determination” as an order 

“providing for the legal custody, physical custody, or visitation

with respect to a child,” including a “permanent, temporary, 

initial, and modification order.” (Emphasis supplied.) Section 

43-1227 is part of the Uniform Child Custody Jurisdiction and 

Enforcement Act. The act defines “[c]hild custody proceeding” 
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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

in § 43-1227(4) as a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. 

Section 43-1227 goes on to set forth the various proceedings 

which are included in the definition, such as proceedings for 

divorce, separation, neglect, abuse, dependency, guardianship, 

paternity, termination of parental rights, and protection from 

domestic violence. The definition does not include grandparent 

visitation proceedings.

Moreover, the inclusion of visitation proceedings within 

application of the Uniform Child Custody Jurisdiction and 

Enforcement Act (and its reference to temporary orders) does 

not lead to the conclusion that temporary orders are necessarily 

allowed in grandparent visitation proceedings. In the context 

of legal separation or divorce actions, the statutes specifically 

provide for temporary orders during the pendency of a proceeding. See Neb. Rev. Stat. § 42-357 (Reissue 2016). As 

noted above, there is no such specific provision in the grandparent visitation statutes.

Nevertheless, we note that several grandparent visitation 

cases have shown that a temporary order was issued during the 

pendency of the proceeding. See, Hamit v. Hamit, 271 Neb. 

659, 715 N.W.2d 512 (2006); Pier v. Bolles, 257 Neb. 120, 596 

N.W.2d 1 (1999); Rust v. Buckler, 247 Neb. 852, 530 N.W.2d 

630 (1995), overruled on other grounds, Raney v. Blecha, 258 

Neb. 731, 605 N.W.2d 449 (2000). While the grandparent 

visitation statutes do not include a specific provision regarding temporary orders, a district court has inherent power to do 

all things necessary for the administration of justice within the 

scope of its jurisdiction. See, Putnam v. Scherbring, 297 Neb. 

868, 902 N.W.2d 140 (2017); Charleen J. v. Blake O., 289 

Neb. 454, 855 N.W.2d 587 (2014). Appellate review of a district court’s use of inherent power is for an abuse of discretion. 

Putnam v. Scherbring, supra.

[14] We conclude that a district court has inherent authority to issue a temporary order allowing visitation during the 

pendency of a proceeding for grandparent visitation.
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SIMMS v. FRIEL

Cite as 25 Neb. App. 640

3. Findings Required

Under § 43-1802(2)

[15] For the sake of completeness, we address Friel’s argument that the district court is required to make specific findings 

before granting grandparent visitation. We agree. As set forth 

above, § 43-1802(2) provides in part:

Reasonable rights of visitation may be granted when the 

court determines by clear and convincing evidence that 

there is, or has been, a significant beneficial relationship 

between the grandparent and the child, that it is in the 

best interests of the child that such relationship continue, 

and that such visitation will not adversely interfere with 

the parent-child relationship.

Clearly, a district court must make specific findings as set forth 

in § 43-1802(2) before granting grandparent visitation.

VI. CONCLUSION

Although Friel’s appeal of the order granting Simms temporary visitation with Friel’s children is now moot, we determine, 

under the public interest exception, that a district court has 

inherent authority to enter temporary orders of visitation in 

grandparent visitation proceedings. We also determine that a 

district court is required to make specific findings as set forth 

in § 43-1802(2) before granting grandparent visitation.

Appeal dismissed.