Simms v. Friel
302 Neb. 1
| Neb. | 2019Background
- Karen Simms (maternal grandmother) sued for grandparent visitation under Neb. Rev. Stat. § 43-1802 after the children’s mother died and Simms alleged Friel refused visitation.
- After mediation failed, Simms orally moved for temporary visitation pending the grandparent visitation action.
- The district court granted temporary visitation for one day per month from Nov. 2016 through May 2017 and set the matter for trial in January 2017; the court did not make express § 43-1802(2) findings.
- Friel moved to alter or amend; the court characterized the order as temporary (through the holidays) and denied relief.
- Friel appealed to the Court of Appeals; that court held the order was final and appealable but dismissed the appeal as moot (order had expired) and alternatively addressed the merits under the public‑interest exception, concluding district courts have inherent authority to enter temporary grandparent visitation.
- The Nebraska Supreme Court granted further review to decide whether the temporary order was a final, appealable order and whether courts have authority to issue temporary grandparent visitation orders.
Issues
| Issue | Plaintiff's Argument (Simms) | Defendant's Argument (Friel) | Held |
|---|---|---|---|
| Whether the district court’s temporary visitation order was a final, appealable order | Implicitly: order was reviewable (Court of Appeals treated it as final) | The temporary order was not final; district court lacked authority to issue temporary grandparent visitation and the order affected substantial rights because it effectively decided visitation | Held: Not a final, appealable order; did not affect a substantial right, so appellate courts lacked jurisdiction; appeal dismissed |
| Whether district courts have authority to issue temporary grandparent visitation orders during pendency of proceedings | Temporary orders are permissible/necessary to protect relationships pending final adjudication (as assumed in Court of Appeals) | Statutes do not authorize temporary orders; district courts exceeded authority by ordering visitation without statutory findings | Held: Supreme Court declined to decide the substantive authority issue (no jurisdiction); Court of Appeals erred to reach the merits |
| Whether failure to make § 43-1802(2) findings transforms a temporary order into a final disposition | N/A at Supreme Court level (argued by Friel that findings were required and thus order effectively decided the case) | Order was temporary and setting for trial shows no final decision; prior precedent shows identical findings for temp and final orders does not make temp orders appealable | Held: Even if same findings apply, that does not make a temporary order appealable; order remained nonfinal |
| Whether mootness/public‑interest exceptions allow merits review where order expired | N/A | Court of Appeals used public‑interest exception to consider merits despite mootness | Held: Supreme Court rejected merits review because it lacked jurisdiction; Court of Appeals should not have addressed merits |
Key Cases Cited
- Al-Ameen v. Frakes, 293 Neb. 248 (jurisdictional questions reviewed de novo)
- Jennifer T. v. Lindsay P., 298 Neb. 800 (appellate jurisdiction requires final order or judgment)
- Steven S. v. Mary S., 277 Neb. 124 (temporary custody/visitation orders generally do not affect a substantial right)
- Carmichael v. Rollins, 280 Neb. 59 (temporary custody during military deployment not a final order)
- Huskey v. Huskey, 289 Neb. 439 (temporary relocation order did not affect substantial right)
- In re Interest of Cassandra B. & Moira B., 290 Neb. 619 (order prohibiting homeschooling affected substantial right; order characterized as not temporary)
- In re Interest of Zachary W. & Alyssa W., 3 Neb. App. 274 (grandparent visitation for indefinite period treated differently from truly temporary orders)
- In re Interest of Zachary B., 299 Neb. 187 (same‑findings argument does not render a temporary order appealable)