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Belitz v. Belitz

Court of Appeals of Nebraska

January 28, 2014

Kathleen Belitz, now known as Kathleen Monaco, appellee,
John F. Belitz, Jr., appellant.

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Page 616

Appeal from the District Court for Douglas County: JAMES T. sGleason, JUDGE.


Joan Watke Stacy, Omaha, for appellant.

Joni Visek for appellee.

Page 617

Moore,Pirtle, and Bishop, Judges.

1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law.

2. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which the trial court's (1) resolution of issues of law is reviewed de novo, (2) factual findings are reviewed for clear error, and (3) determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

3. 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, irrespective of whether the issue is raised by the parties.

4. 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.

5. Final Orders: Appeal and Error. Under Neb.Rev.Stat. ยง 25-1902 (Reissue 2008), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.

6. Child Custody. A proceeding regarding a child custody determination is considered a special proceeding under Nebraska law.

7. Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

8. Final Orders. When an order affects the subject matter of the litigation, by diminishing a claim or defense available to a party, the order affects a substantial right.

9. Parental Rights: Final Orders. Whether a substantial right of a parent has been affected by an order is dependent upon both the object of the order and the length of time over which the parent's relationship with the child may reasonably be expected to be disturbed.

10. Child Custody: Final Orders. Where child custody is modified on a permanent basis, the order clearly affects a substantial right.

11. Final Orders: Appeal and Error. When multiple issues are presented to a trial court for simultaneous disposition in the same proceeding and the court decides some of the issues, while reserving other issues for later determination, the court's determination of fewer than all the issues is an interlocutory order and is not a final order for the purpose of an appeal.

[21 Neb.App. 717] 12. Contempt: Words and Phrases. When a party to an action fails to comply with a court order made for the benefit of the opposing party, such act is ordinarily a civil contempt, which requires willful disobedience as an essential element. " Willful" means the violation was committed intentionally, with knowledge that the act violated the court order.

13. Contempt: Proof. Outside of statutory procedures imposing a different standard, it is the complainant's burden to prove civil contempt by clear and convincing evidence.

14. Jurisdiction: Appeal and Error. Once an appeal has been perfected, the trial court from which the appeal was taken no longer has jurisdiction.

15. Jurisdiction: Time: Appeal and Error. A party's failure to timely appeal from a final order prevents an appellate court from exercising jurisdiction over the issues raised and decided in that order.

Moore, Judge.

John F. Belitz, Jr., appeals following three orders of the district court for Douglas County which, among other things, modified the custody arrangement in the parties' decree of dissolution and awarded custody of the parties' youngest daughter, Katherine Belitz, to Kathleen Belitz, now known as Kathleen Monaco. John asserts the district court committed a number of errors in its orders, including in modifying custody, allowing the parties' older daughters to testify at trial, improperly calculating child support, awarding Kathleen attorney fees, failing to find Kathleen in contempt, and entering an order releasing garnished funds after John had filed his notice of appeal.

For the reasons that are set out in our analysis below, we find that we do not have jurisdiction to address John's arguments related to the modification order or the garnishment proceedings. We also conclude that the district court did not abuse its ...

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