- 720 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

Sonia Becher, appellant

Mark A. Becher, appel

___ N.W.2d ___

Filed March 29, 2019. No. S-18-608.

1. 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, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.

2. ____: ____. Before reaching the legal issues presented for review, an 

appellate court must determine whether it has jurisdiction.

3. Courts: Jurisdiction. While it is not a constitutional prerequisite for 

jurisdiction, the existence of an actual case or controversy is necessary 

for the exercise of judicial power.

4. Actions: Moot Question. An action becomes moot when the issues 

initially presented in the proceedings no longer exist or the parties lack 

a legally cognizable interest in the outcome of the action.

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

to determine a question that no longer rests upon existing facts or 

rights—i.e., a case in which the issues presented are no longer alive.

6. Moot Question. Mootness refers to events occurring after the filing of 

a suit which eradicate the requisite personal interest in the resolution of 

the dispute that existed at the beginning of the litigation.

7. Moot Question: Jurisdiction: Appeal and Error. Although mootness 

does not prevent appellate jurisdiction, it is a justiciability doctrine that 

can prevent courts from exercising jurisdiction.

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

9. Jurisdiction: Appeal and Error. Generally, once an appeal is perfected, 

the trial court no longer has jurisdiction until a mandate issues.

10. Jurisdiction: Child Custody: Visitation: Appeal and Error. Under 

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

Nebraska Supreme Court Online Library

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

05/10/2019 09:07 AM CDT
- 721 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

jurisdiction to provide for an order concerning custody and parenting 

time even while an appeal of one of its orders is pending.

11. Jurisdiction: Minors: Final Orders: Appeal and Error. Neb. Rev. 

Stat. § 42-351(2) (Reissue 2016) 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.

Appeal from the District Court for Lancaster County: Kev

R. McManaman, Judge. Vacated and dism

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for 

appellant.

David P. Kyker and Bradley A. Sipp for appellee.

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

Papik, and Freudenberg, J

Funke, J

Sonia Becher and Mark A. Becher were divorced by decree 

in 2015. The parenting plan ordered by the court established 

a parenting time schedule for only one of the parties’ three 

children. In 2018, while an appeal from the dissolution decree 

was pending in this court, Mark filed a motion seeking to 

establish parenting time and telephone communication with 

one of the other children. The court granted that motion, and 

Sonia appeals. For the reasons set forth herein, we vacate 

and dismiss.

BACKGROUND

Sonia and Mark were married in December 1991 and had 

three children: Daniel Becher, born in 2000; Cristina Becher, 

born in 2002; and Susana Becher, born in 2008. Sonia and 

Mark were divorced in 2015 after an exceptionally contentious 

dissolution proceeding.

Mark appealed, and Sonia cross-appealed the 2015 dissolution decree. Both parties, in part, assigned the district court 
- 722 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

erred in its ordering of the custodial arrangement and the award 

of parenting time. The court’s decree ordered what it described 

as a “split and joint” custody arrangement. We described the 

arrangement in Becher v. Becher (Becher I)1:

The district court found that a split and joint custody 

arrangement with [a] parenting plan designed to reduce 

potential conflicts was in the best interests of the children. 

In its decree, the court ordered that Sonia have permanent 

legal and physical care, custody, and control of the parties’ two daughters, while Mark have permanent legal 

and physical care, custody, and control of the parties’ son 

with each “subject to the rights of parenting time for the 

noncustodial parent as set forth in the parenting plan.” 

However, the court-ordered parenting plan provided that 

the parties would share joint legal custody of all three 

children, with Mark having primary physical custody of 

the parties’ son, Sonia having primary physical custody 

of the parties’ oldest daughter, and shared joint physical custody of the parties’ youngest daughter. . . . [T]he 

court-ordered parenting plan did not provide a parenting 

schedule for the two oldest children. It did provide a joint 

physical custody arrangement for the youngest child with 

Mark and Sonia having equal parenting time on alternating weeks.

We concluded the district court had not abused its discretion in entering this parenting plan and found the provisions 

of the decree adequately set forth each party’s rights and 

responsibilities.2

Relevant to the issues raised in the present appeal, the 

parenting plan gave the following rationale for not establishing a parenting time schedule for the two older children, 

and expressly contemplated future modification to address 

the issue.

1 Becher v. Becher, 299 Neb. 206, 224, 908 N.W.2d 12, 28 (2018).

2 Id.
- 723 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

Regular Monthly Parenting Time with Daniel and Cristina:

Based upon the recommendations of George Williams, 

PhD., the Court determines that it is in the best interests 

of Daniel and Cristina . . . that no set parenting time 

schedule be established at this time. This is because of 

the significant conflict that still exists between these children and their non-custodial parent. Until such time as 

counseling with the family has resolved at least some of 

these issues, Dr. Williams believes a required parenting 

schedule would be inappropriate and perhaps detrimental. 

Both parties have agreed to voluntarily continue counseling with Dr. Williams and involve the children as may be 

necessary in order to reduce family conflict before a set 

schedule with respect to these two children is established. 

This parenting plan will need to be modified at some point 

in the future to include specific parenting time with these 

children, on a regular monthly basis, during the summer 

and on holidays. Except for summer parenting time, specific parenting time only involves Susana at this time.

As to communications between the parents and children during 

specified summer parenting time, the parenting plan stated:

[D]uring the summer parenting time for each parent the 

parent who is not exercising parenting time is to have 

no communication of any nature with their children. 

They are not to attempt to contact their children in any 

fashion during the other parent summer parenting time. 

Additionally, the parent not having parenting time is 

not to accept or respond to any attempt by any child to 

communicate with them. In the event of an emergency 

of any nature during the summer parenting time, Mother 

and Father may communicate with each other to address 

the emergency.

Becher I was released March 9, 2018, and the mandate 

issued on July 13, 2018.3

3 Becher I, supra note 1.
- 724 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

After Becher I was released but before the mandate was 

issued, Mark filed a motion in the district court on June 8, 

2018, seeking to establish specific parenting time and telephone contact with Cristina. On June 11, Mark amended his 

motion to add a sentence to the notice of hearing purporting to 

provide that “[t]he hearing will be by affidavit.” Both motions 

were e-filed with the court and directed to Sonia’s attorney by 

U.S. mail.

Neither motion was styled as a complaint to modify the 

decree, and it does not appear from the record that either 

motion was served on Sonia personally, nor was a praecipe for 

summons ever requested.

On June 14, 2018, a hearing was held on the amended 

motion. Sonia did not appear personally or through counsel. 

Mark also did not personally appear but was represented by 

counsel. Mark’s affidavit was received as an exhibit. In it, 

he averred he had not had meaningful contact with Cristina 

since the entry of the decree and all telephone contact had to 

go through Sonia. Mark sought specific parenting time to take 

Cristina on a summer vacation in June 2018 and asked to purchase a cell phone to communicate directly with Cristina without having to go through Sonia. At the hearing, Mark’s counsel 

indicated that the motion was made pursuant to Neb. Rev. Stat. 

§ 42-351 (Reissue 2016) to enable the court to consider the 

issue of custody and parenting time before the mandate of the 

initial appeal issued.

The same day as the hearing, the district court entered an 

order providing, in full:

1. [Mark] may, at his sole expense, provide a cellular telephone for the minor child of the parties, Cristina 

. . . . While [Sonia] may restrict use of the cellular telephone, [Sonia] may not restrict any contact or communication between [Mark] and Cristina . . . through the use 

of the cellular phone.

2. [Mark] may have parenting time with Cristina during the week of June 19, 2018[,] at 9:00 a.m. to June 26, 
- 725 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

2018[,] at 9:00 a.m. [Mark] shall be responsible for all 

transportation necessary to effect parenting time with his 

daughter during this time.

The order was prepared by Mark’s counsel. The order did 

not construe the motion as a complaint to modify, nor did 

the order purport to modify the decree or the court-ordered 

parenting plan. However, neither did the order indicate it 

was pursuant to § 42-351 nor that it was a temporary order. 

To the extent the order allowed specific parenting time for 

Mark, it was limited to 1 week in June 2018. The telephone 

parenting time authorized by the order contained no temporal limit.

ASSIGNMENTS OF ERROR

Sonia assigns, restated, that the district court erred in (1) 

modifying the decree while an appeal of the decree was pending, (2) exercising jurisdiction although Sonia had not been 

properly served, (3) failing to find Sonia was denied procedural 

due process, and (4) modifying the parties’ parenting time 

without a showing of a material change in circumstances.

STANDARD OF REVIEW

[1] A jurisdictional question which 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

ANALYSIS

[2,3] Before reaching the legal issues presented for review, 

an appellate court must determine whether it has jurisdiction.5

While it is not a constitutional prerequisite for jurisdiction, 

4 In re Grand Jury of Douglas Cty., ante p. 128, 922 N.W.2d 226 (2019); 

Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).

5 See, In re Grand Jury of Douglas Cty., supra note 4; Nesbitt v. Frakes, 300 

Neb. 1, 911 N.W.2d 598 (2018).
- 726 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

the existence of an actual case or controversy is necessary for 

the exercise of judicial power.6

[4-8] We first note the time period granted to Mark for the 

specific summer parenting time with Cristina has passed. An 

action becomes moot when the issues initially presented in 

the proceedings no longer exist or the parties lack a legally 

cognizable interest in the outcome of the action.7 A moot case 

is one which seeks to determine a question that no longer 

rests upon existing facts or rights—i.e., a case in which the 

issues presented are no longer alive.8 Mootness refers to events 

occurring after the filing of a suit which eradicate the requisite 

personal interest in the resolution of the dispute that existed at 

the beginning of the litigation.9 Although mootness does not 

prevent appellate jurisdiction, it is a justiciability doctrine that 

can prevent courts from exercising jurisdiction.10 As a general 

rule, a moot case is subject to summary dismissal.11

On this point, the order stated that Mark “may have parenting time with Cristina during the week of June 19, 2018[,] at 

9:00 a.m. to June 26, 2018[,] at 9:00 a.m.” Because this period 

has passed and the order does not provide Mark a continuing 

summer parenting time schedule, the assigned errors concerning the order’s grant of specific summer 2018 parenting time 

are moot.

Taking this limitation into account, we turn to Sonia’s 

assignment that the district court erred in modifying the decree 

by allowing Mark to provide Cristina a cell phone and have 

unrestricted communication while an appeal of the decree 

was pending. Mark, in turn, argues that the court retained 

6 Nesbitt, supra note 5.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.
- 727 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

jurisdiction to issue the order under § 42-351(2) and that such 

order was implicitly temporary.

[9,10] Generally, once an appeal is perfected, the trial court 

no longer has jurisdiction until a mandate issues.12 However, 

a trial court retains jurisdiction under § 42-351(2) for certain 

matters. 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 support, 

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

shown to be necessary to allow the use of property or to 

prevent the irreparable harm to or loss of property during 

the pendency of such appeal, or other appropriate orders 

in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal.

Thus, a trial court may retain jurisdiction to provide for an 

order concerning custody and parenting time even while an 

appeal of one of its orders is pending.

[11] Nevertheless, there is a limit on a trial court’s jurisdiction to enter an order concerning an issue which is pending on 

appeal.13 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 instant case, Mark’s motion sought to change the 

decree and court-ordered parenting plan concerning custody 

and parenting time even though those were issues pending on 

appeal. In Becher I, the appeal of the dissolution decree, Sonia 

and Mark both assigned errors related to the district court’s 

award of custody and parenting time.15 During that appeal, 

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

13 See id.

14 Id.

15 See Becher I, supra note 1.
- 728 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

we considered the validity of the custodial arrangement and 

award of parenting time, the interpretation of terminology used 

concerning the custodial arrangement and award of parenting 

time, and whether the decree was contradicted by the parenting 

plan. The resolution of these issues on appeal potentially could 

have had an effect on the summer parenting time explained in 

the parenting plan which prohibited communication between 

the parent not exercising the parenting time and the children. 

Specifically, that section of the plan stated that “the parent who 

is not exercising parenting time is to have no communication of 

any nature with their children” and further explained that “the 

parent not having parenting time is not to accept or respond to 

any attempt by any child to communicate with them.”

The order currently on appeal also addressed parent-child 

communication. As between Mark and Cristina, the order 

provided: “[Mark] may, at his sole expense, provide a cellular 

telephone for . . . Cristina . . . . While [Sonia] may restrict use 

of the cellular telephone, [Sonia] may not restrict any contact 

or communication between [Mark] and Cristina . . . through 

the use of the cellular phone.” This order did not limit the 

contact between Mark and Cristina, including during those 

times when Sonia would be exercising summer parenting time. 

Instead, the order stated that Sonia could not act to restrict any 

communication through the cell phone and permitted Mark 

to contact Cristina without limitation. Such provision is at 

odds with the section of the parenting plan governing summer parenting time, the review of which was still pending, 

that explicitly stated the nonexercising parent is prohibited 

from attempting communication with the children. As stated 

above, this provision was included in the parenting plan section governing custody and parenting time and was at issue in 

the initial appeal. Mark filed his motion for specific parenting 

time after the release of our opinion in Becher I, but before the 

issuance of the mandate. Thus, at that point, the district court 

did not have jurisdiction to enter a permanent order affecting 

parenting time.
- 729 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

Mark argues that the district court retained jurisdiction, 

because any order entered during the pendency of the initial 

appeal was implicitly temporary and expired upon the issuing 

of the mandate. Mark argues that as a temporary order, any 

change of parenting time scheduling or communication would 

not affect contradictory provisions of the decree on appeal, 

because such modification would expire once the original 

decree was affirmed, and that the original decree’s provisions 

would control.

However, Mark offers no support for such assertion and we 

find none. The language of § 42-351(2) does not state that any 

order issued through its operation is temporary. As a result, 

we cannot say that an order is always temporary even if there 

is no limiting language when the underlying motion seeks to 

affect the rights of the parties while an appeal on those rights 

is pending.

Moreover, while Mark’s counsel mentioned the motion 

was pursuant to § 42-351 during the hearing, Mark’s motion 

and the district court’s order failed to indicate that it was a 

§ 42-351(2) motion. The order issued by the court contained 

no temporal limit, and Mark’s motion failed to describe that 

it sought only a temporary order. As such, the court’s order 

providing Mark the ability to communicate with Cristina 

without restriction was not implicitly temporary and its issuance conflicted with the decree’s provision on parent-child 

communication.

Because we find that during the pendency of the initial 

appeal, the district court lacked jurisdiction to enter a permanent order and erred in awarding Mark unrestrained cell phone 

communication with Cristina, we need not address Sonia’s 

remaining assignments.

CONCLUSION

We conclude Sonia’s assignments concerning the award 

of specific summer 2018 parenting time between Mark and 

Cristina are moot, because the period during which the 
- 730 -

Nebraska Supreme Court Advance S

302 Nebraska Report

BECHER v. BECHER

Cite as 302 Neb. 720

parenting time was awarded has passed. As such, these assignments are dismissed. Regarding Sonia’s assignments concerning the order awarding Mark unrestrained cell phone communication with Cristina, the district court lacked subject matter 

jurisdiction during the appeal of the dissolution decree. As a 

result, we vacate the order of the district court on this issue 

and dismiss this appeal.

Vacated and dismiss