Becher . Becher
925 N.W.2d 67
Neb.2019Background
- Sonia and Mark Becher divorced in 2015 and had three children: Daniel (2000), Cristina (2002), and Susana (2008).
- The district court adopted a “split and joint” custody arrangement: Sonia had primary custody of two daughters, Mark of the son; the parenting plan provided specific parenting time only for the youngest child and explicitly declined to set a schedule for the two older children pending counseling.
- Both parties appealed the 2015 dissolution decree; this Court issued its opinion in Becher I on March 9, 2018, with the mandate issuing July 13, 2018.
- On June 8, 2018 (after opinion but before mandate), Mark moved in district court to establish one week of summer parenting time with Cristina and to allow him to provide her a cell phone for direct communication; Sonia was not personally present at the June 14 hearing.
- The district court granted one week of parenting time (June 19–26, 2018) and an open order allowing Mark to provide and have unrestricted phone contact with Cristina; the one-week period expired, but the phone authorization had no temporal limit.
- Sonia appealed, arguing the district court lacked jurisdiction to modify parenting/communication during the pendency of the appeal, among other procedural and due process complaints.
Issues
| Issue | Plaintiff's Argument (Sonia) | Defendant's Argument (Mark) | Held |
|---|---|---|---|
| Whether the district court’s grant of one-week summer 2018 parenting time is reviewable | The one-week award violated jurisdictional limits because appeal was pending | The court had authority under § 42-351(2) to issue orders while appeal pending | Moot — the awarded week elapsed; claims about that week were dismissed |
| Whether the court could permit unrestricted cell-phone communication during pendency of appeal | The order modified custody/parenting-time provisions that were on appeal and thus exceeded trial court jurisdiction | The § 42-351(2) retention of jurisdiction allowed the court to enter such orders and any order was implicitly temporary | Vacated — court lacked jurisdiction to enter a permanent order permitting unrestricted communication while custody/parenting issues were on appeal |
| Whether an order entered under § 42-351(2) is automatically temporary absent express language | Sonia: absent temporal language, order is permanent and impermissible on appeal issues | Mark: such orders are implicitly temporary and expire with the mandate | Court: § 42-351(2) does not render all such orders automatically temporary; absence of limiting language matters; cannot assume temporariness |
| Whether Sonia’s procedural-due-process/ service objections required reversal | Sonia: she was not properly served and was denied due process at hearing | Mark: proceeded under retained jurisdiction; hearing by affidavit was proper | Court: because it lacked jurisdiction for the permanent communication order, no need to resolve remaining procedural-due-process/service claims |
Key Cases Cited
- Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018) (prior appeal resolving custody/parenting-time disputes and describing parenting plan)
- Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016) (limits on trial court jurisdiction after appeal is perfected)
- Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018) (mootness and jurisdictional principles)
- Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018) (case-or-controversy and jurisdictional discussion)