911 N.W.2d 636
Neb. Ct. App.2018Background
- Maternal grandmother Karen Simms filed for grandparent visitation after her daughter died and father Jeffrey Friel denied visitation.
- Simms sought appointment of an expert/guardian ad litem; court ordered reports and mediation and later appointed an expert.
- On November 15, 2016, the district court granted Simms temporary visitation one day per month from Nov 2016 through May 2017; Friel moved to alter/vacate and appealed after denial.
- Friel challenged (1) whether grandparent-visitation statutes authorize temporary orders and (2) whether the court made required statutory findings under Neb. Rev. Stat. § 43-1802(2).
- The temporary order expired in May 2017; the appeal was thus moot, but the court invoked the public-interest exception to decide the legal questions for future guidance.
Issues
| Issue | Plaintiff's Argument (Friel) | Defendant's Argument (Simms) | Held |
|---|---|---|---|
| Whether a district court may issue a temporary grandparent-visitation order | Statutes for grandparent visitation do not authorize temporary orders | General custody statutes reference temporary orders and prior practice shows temporary orders during pendency | Court: District courts have inherent authority to enter temporary visitation orders during pendings of grandparent-visitation proceedings |
| Whether court must make specific findings under § 43-1802(2) before granting visitation | Court failed to make required findings about beneficial relationship, best interests, and interference with parent-child relationship | Simms relied on affidavits/arguments presented below (record incomplete) | Court: Must make specific findings as set forth in § 43-1802(2) and require clear and convincing evidence for those elements |
| Whether the November 15 order was final and appealable | (Implicit) Friel appealed the denial of his postjudgment motions; argued procedural errors | Simms argued order was not final and appeal was untimely/moot | Court: The temporary visitation order affected a substantial parental right and was a final, appealable order; subsequent appeal was timely; but moot on merits due to expiration |
| Whether mootness prevents review or public-interest exception applies | Friel maintained substantive relief warranted review | Simms argued mootness and sought dismissal | Court: Appeal moot but invoked public-interest exception to resolve issues for future guidance |
Key Cases Cited
- Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006) (standard of appellate review and trial court discretion in grandparent-visitation matters)
- Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999) (prior instance of temporary visitation during pendency)
- Rust v. Buckler, 247 Neb. 852, 530 N.W.2d 630 (1995) (prior grandparent-visitation proceedings issuing temporary relief)
- Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017) (recognition of inherent judicial powers to administer justice)
- Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014) (inherent powers and appellate abuse-of-discretion review)
- In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004) (parental rights as constitutionally protected)
- In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398 (2015) (when a juvenile-court order affects a substantial right and is appealable)
- In re Interest of Zachary W. & Alyssa W., 3 Neb. App. 274, 526 N.W.2d 233 (1994) (grandparent visitation order affecting substantial parental rights)
- Raney v. Blecha, 258 Neb. 731, 605 N.W.2d 449 (2000) (overruling context cited regarding grandparent-visitation jurisprudence)