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Simms v. Friel

Court of Appeals of Nebraska

March 20, 2018

Karen Simms, Biological Grandmother and NEXT FRIEND OF MEGAN MARIE FRIEL ET AL., minor children, Appellee,
v.
Jeffrey Allen Friel, Appellant.

         1. Visitation: Appeal and Error. Determinations concerning grandparent visitation are initially entrusted to the discretion of the trial judge, whose determinations, on appeal, will be reviewed de novo on the record and affirmed in the absence of abuse of the trial judge's discretion.

         2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system.

         3. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that 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. 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.

         5. Jurisdiction: 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.

         6. Final Orders: Appeal and Error. Among the three types of final orders which may be reviewed on appeal is an order that affects a substantial right made during a special proceeding.

         7. Juvenile Courts: Parental Rights: Parent and Child: Time: Final Orders. Whether a substantial right of a parent has been affected by an order in juvenile court litigation is dependent upon both the object [25 Neb.App. 641] of the order and the length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed.

         8. Moot Question: Jurisdiction: Appeal and Error. Mootness does not prevent appellate jurisdiction. But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, appellate courts review mootness determinations under the same standard of review as other jurisdictional questions.

         9. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of the litigation.

         10. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

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

         12. Moot Question: Appeal and Error. An appellate court may choose to review an otherwise moot case under the public interest exception if it involves a matter affecting the public interest or when other rights or liabilities may be affected by its determination.

         13. ___: ___. When determining whether a case involves a matter of public interest, an appellate court considers the public or private nature of the question presented, the desirability of an authoritative adjudication for future guidance of public officials, and the likelihood of future recurrence of the same or similar problem.

         14. Courts: Visitation. A district court has inherent authority to issue a temporary order allowing visitation during the pendency of a proceeding for grandparent visitation.

         15. ___: ___.A district court must make specific findings as set forth in Neb. Rev. Stat. § 43-1802(2) (Reissue 2016) before granting grandparent visitation.

         Appeal from the District Court for Sarpy County: Stefanie A. Martinez, County Judge. Appeal dismissed.

          Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for appellant.

          Aimee S. Melton, of Reagan, Melton & Delaney, ...


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