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Becher v. Becher

Supreme Court of Nebraska

March 29, 2019

Sonia Becher, appellant,
v.
Mark A. Becher, appellee.

         1. Jurisdiction: Appeal and Error. A jurisdictional question which 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.

         2.___:___. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.

         3. Courts: Jurisdiction. While it is not a constitutional prerequisite for jurisdiction, the existence of an actual case or controversy is necessary for the exercise of judicial power.

         4. Actions: Moot Question. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.

         5. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights-i.e., a case in which the issues presented are no longer alive.

         6. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.

         7. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.

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

         9. Jurisdiction: Appeal and Error. Generally, once an appeal is perfected, the trial court no longer has jurisdiction until a mandate issues.

         10. Jurisdiction: Child Custody: Visitation: Appeal and Error. Under Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court may retain [302 Neb. 721] jurisdiction to provide for an order concerning custody and parenting time even while an appeal of one of its orders is pending.

         11. Jurisdiction: Minors: Final Orders: Appeal and Error. Neb. Rev. Stat. § 42-351(2) (Reissue 2016) does not grant a trial court authority to hear and determine anew the very issues then pending on appeal and to enter permanent orders addressing these issues during the appeal process.

          Appeal from the District Court for Lancaster County: Kevin R. McManaman, Judge. Vacated and dismissed.

          Sally A. Rasmussen, of Mattson Ricketts Law Firm, for appellant.

          David P. Kyker and Bradley A. Sipp for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Funke, J.

         Sonia Becher and Mark A. Becher were divorced by decree in 2015. The parenting plan ordered by the court established a parenting time schedule for only one of the parties' three children. In 2018, while an appeal from the dissolution decree was pending in this court, Mark filed a motion seeking to establish parenting time and telephone communication with one of the other children. The court granted that motion, and Sonia appeals. For the reasons set forth herein, we vacate and dismiss.

         BACKGROUND

         Sonia and Mark were married in December 1991 and had three children: Daniel Becher, born in 2000; Cristina Becher, born in 2002; and Susana Becher, born in 2008. Sonia and Mark were divorced in 2015 after an exceptionally contentious dissolution proceeding.

         Mark appealed, and Sonia cross-appealed the 2015 dissolution decree. Both parties, in part, assigned the district court [302 Neb. 722] erred in its ordering of the custodial arrangement and the award of parenting time. The court's decree ordered what it described as a "split and joint" custody arrangement. We described the arrangement in Becher v. Becher (Becher I)[1]:

The district court found that a split and joint custody arrangement with [a] parenting plan designed to reduce potential conflicts was in the best interests of the children. In its decree, the court ordered that Sonia have permanent legal and physical care, custody, and control of the parties' two daughters, while Mark have permanent legal and physical care, custody, and control of the parties' son with each "subject to the rights of parenting time for the noncustodial parent as set forth in the parenting plan." However, the court-ordered parenting plan provided that the parties would share joint legal custody of all three children, with Mark having primary physical custody of the parties' son, Sonia having primary physical custody of the parties' oldest daughter, and shared joint physical custody of the parties' youngest daughter. . . . [T]he court-ordered parenting ...

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